In re Lau.W. , 2017 Ohio 7384 ( 2017 )

[Cite as In re Lau.W., 2017-Ohio-7384.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re Lau.W., A.W., Cai.W., Court of Appeals No. L-17-1015
Car.W., Las.W. Cat.W.
Trial Court No. JC 15248300
DECISION AND JUDGMENT
Decided: August 29, 2017
*****
Adam H. Houser, for appellant.
Angela Y. Russell, for appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the January 13, 2017 judgment of the Lucas County
Court of Common Pleas, Juvenile Division, which awarded permanent custody of the
minor children, Lau.W., A.W., Cai.W., Car.W., Las.W., and Cat.W. to appellee, Lucas
County Children Services (“LCCS”), and terminated the parental rights of appellant-
mother, R.W.1 For the reasons set forth herein, we affirm.
{¶ 2} On June 8, 2015, LCCS filed a complaint in dependency and neglect, and a
motion for a shelter care hearing, in which it alleged that the agency had received
multiple referrals that the children were home alone and that mother left the children,
then ranging in age from five to 14, for days at a time to be with her boyfriend in
Kentucky. The complaint further alleged that the home had a strong odor and was
littered with garbage, standing water, dog feces, flies and dirty clothing and dishes. After
alleged persistent evasions about her whereabouts, mother admitted to being in Kentucky
and stated that her car had broken down. The complaint further stated that LCCS had
previous referrals for the family based on domestic violence allegations, alleged sexual
abuse of some of the children, and housing and hygiene issues. The complaint stated that
the husband/father’s whereabouts were unknown but the family was from Michigan. On
the same day, the shelter care hearing was held and interim temporary custody was
awarded to LCCS; the children were placed in foster care.
{¶ 3} After mother defaulted at the July 28, 2015 adjudication and disposition
hearing, the children were found to be dependent, neglected, and abused. Temporary
custody of the children was awarded to LCCS.
1
The parental rights of father, C.W., were also terminated. Father is not a party to this
appeal and we will not discuss the court’s findings relative to him.
2.
{¶ 4} The original case plan was filed on July 9, 2015, and recommended
counseling services for the children. As to appellant, it noted that her whereabouts were
still unknown. It required that appellant show an interest in her children and contact
LCCS. Further, once she returned to the area she was to establish visitation at LCCS.
Appellant returned to Toledo in early 2016; she was added to the case plan and was
required to attend mental health and domestic violence counseling and obtain housing
and employment.
{¶ 5} On April 5, 2016, LCCS filed a motion for permanent custody of the
children. LCCS argued that appellant demonstrated a lack of commitment to her children
and that she abandoned them. The motion stated that appellant did not contact the agency
following the June 2015 removal of the children from the home until January 2016.
Contact was made only after her boyfriend was accused of sex charges against some of
her children. The matter proceeded to a trial on the motion on October 19, and
December 1, 2016.
{¶ 6} LCCS presented the testimony of multiple witnesses. Clinical therapist
Patricia Paul testified that appellant first met with her for counseling services on
February 18, 2016. She met with appellant two times. Paul testified that appellant failed
to attend two sessions and canceled a third. Paul testified that she last saw appellant on
March 7, 2016. Paul testified that appellant did not successfully address her treatment
plan.
3.
{¶ 7} Dr. Randall Schlievert, child abuse expert, testified that he evaluated all six
children for suspected sexual abuse. One of the children alleged that appellant’s
boyfriend penetrated her with a brown dildo. Her physical exam results were consistent
with penetrating trauma. The child also reported physical abuse by the children’s father
and appellant’s boyfriend. Although only one child reported sexual abuse by the
mother’s boyfriend, Schlievert testified that he recommended that none of the children
have any contact with the alleged perpetrator. Schlievert further recommended that the
children have no contact with appellant or the children’s father.
{¶ 8} Schlievert stated that some of the children’s sexual knowledge was advanced
in relation to their ages. Many of them also reported sexual acting out, or “sexually
reactive” behaviors among the siblings and that such behaviors were frequently seen as a
response to “exposure, stressors, [or] prior sexual abuse.” Schlievert acknowledged that
the reports were not corroborated among the children but that this was not uncommon
where children are afraid to discuss sexual abuse. Dr. Schlievert’s reports for each child,
dating from November 2015 through January 2016, were admitted into evidence.
{¶ 9} An LCCS assessment caseworker testified that the agency had received
several referrals regarding the family. The allegations included sexual abuse by the
father which was indicated, but not substantiated; abuse by one child against some of the
others which was unsubstantiated; sexual relations between two of the children which
was unsubstantiated; and sexual abuse of a child by appellant’s boyfriend, the abuse was
substantiated.
4.
{¶ 10} The family’s LCCS caseworker testified that on May 12, 2015, a call was
received alleging that the children were home alone and that appellant was in Kentucky.
Between June 2015 and December 2015, the caseworker tried calling appellant three
times and left multiple messages. Appellant had no face-to-face contact with her children
during this time; there were reports of some telephone contact with her oldest child.
{¶ 11} The caseworker testified that appellant contacted her by telephone on
January 11, 2016, and left a voicemail. The caseworker stated that appellant kept calling
until reaching her the next day. Appellant told the caseworker that the allegations against
her boyfriend were false; the call was prompted by the boyfriend’s arrest on rape charges.
Appellant did state that she wanted to get her children back and that she had been stuck in
Kentucky because her car broke down and she was trying to get money.
{¶ 12} The caseworker’s next contact with appellant was on February 24, 2016,
when she telephoned from a domestic violence shelter in Toledo. The two met in person
on March 8, 2016. Appellant indicated her desire to get the children back and stated that
she was receiving mental health counseling services. Appellant was told that she needed
to complete mental health counseling, domestic violence services, parenting services, and
obtain stable housing and income.
{¶ 13} Regarding her case plan, the caseworker testified that appellant was
noncompliant with her initial counseling services; in September 2016, she reengaged in
services. There was no record of appellant attending any domestic violence counseling.
5.
Appellant informed the caseworker that she attended some counseling in Findlay, Ohio,
but did not complete the program.
{¶ 14} The caseworker noted that appellant had not obtained housing or
employment. In June 2016, appellant moved to Findlay, Ohio, and lived with a friend
because she believed she had better job opportunities there. Appellant was briefly
employed at a diner but after moving back to Toledo, maintained no employment.
{¶ 15} The caseworker stated that appellant’s supervised visitation at LCCS
commenced on April 12, 2016. She appeared at 22 of the 27 scheduled visits. The
caseworker discussed how each of the children was doing in foster care, school, and
emotionally. The caseworker testified that LCCS was recommending that it receive
permanent custody of all six children. As to appellant, the caseworker noted that
appellant only contacted the agency, seven months after her children were in temporary
custody of LCCS, to refute the sex charges against her boyfriend and that she failed to
make any real progress on her case plan goals. The caseworker stated that permanent
custody to LCCS was in the children’s best interests.
{¶ 16} Appellant’s child, A.W., testified regarding the alleged abuse perpetrated
by her father. A.W. testified that she wanted to live with her mother and that her mother
has never physically or sexually abused her. An in-camera interview was also conducted
of Lau.W.
{¶ 17} Appellant presented the testimony of her maternal aunt, L.C., who stated
that she felt that her niece deserved some “consideration” because she had been abused
6.
by her husband. L.C. also felt that the boyfriend may have been abusive and “coerced”
her to leave town. L.C. stated that she observed appellant parenting the children and that
she was a “good mother.” She stated that the children were groomed and dressed.
{¶ 18} The guardian ad litem (“GAL”) testified she had been appointed for the
children in June 2015. She testified regarding her investigation and stated that she
believed it was in the children’s best interests that permanent custody be awarded to
LCCS.
{¶ 19} At the conclusion of the hearing, the trial court orally granted LCCS’
motion. Its judgment entry was filed on January 13, 2017, and this appeal followed with
appellant raising three assignments of error for our review:
1. The Guardian Ad Litem did not perform her duty under the Rules
of Superintendence and her testimony should not have been allowed and
should have been stricken.
2. The child did not receive effective assistance of counsel as
counsel only met with the child once and did not present any witnesses or
exhibits.
3. The finding that the child could not be placed with appellant
within a reasonable time was against the manifest weight of the evidence.
{¶ 20} In her first assignment of error, appellant contends that the children’s GAL
failed to perform her duties as required under Rule 48(D) of the Ohio Rules of
7.
Superintendence. Appellant further contends that appellant’s counsel was ineffective by
failing to object to the testimony which should have been stricken.
{¶ 21} The rule provides, in part:
(D) Responsibilities of a guardian ad litem. In order to provide the
court with relevant information and an informed recommendation regarding
the child’s best interest, a guardian ad litem shall perform, at a minimum,
the responsibilities stated in this division, unless impracticable or
inadvisable to do so.
***
(13) A guardian ad litem shall make reasonable efforts to become
informed about the facts of the case and to contact all parties. In order to
provide the court with relevant information and an informed
recommendation as to the child’s best interest, a guardian ad litem shall, at
a minimum, do the following, unless impracticable or inadvisable because
of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with
each parent, foster parent, guardian or physical custodian and conduct at
least one interview with the child where none of these individuals is
present;
8.
(b) Visit the child at his or her residence in accordance with any
standards established by the court in which the guardian ad litem is
appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and other
significant individuals who may have relevant knowledge regarding the
issues of the case;
(e) Review pleadings and other relevant court documents in the case
in which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative records
pertaining to the child and, if appropriate, to the child’s family or to other
parties in the case;
(g) Interview school personnel, medical and mental health providers,
child protective services workers and relevant court personnel and obtain
copies of relevant records;
(h) Recommend that the court order psychological evaluations,
mental health and/or substance abuse assessments, or other evaluations or
tests of the parties as the guardian ad litem deems necessary or helpful to
the court; and
(i) Perform any other investigation necessary to make an informed
recommendation regarding the best interest of the child.
9.
{¶ 22} Relying on the rule, appellant argues that the children’s GAL failed to meet
with her outside of the agency or see her at any of the 22 agency visits she attended since
April 2016. Thus, appellant contends that the court committed plain error by allowing
her testimony.
{¶ 23} This court has examined the application of Sup.R. 48 in custody
proceedings. In re K.V., 6th Dist. Lucas No. L-11-1087, 2012-Ohio-190. In In re K.V.,
an action involving the transfer of legal custody of appellant’s child to a cousin, the GAL
did not file a report close in time to the dispositional hearing though she participated in
all stages of the proceedings. Id. at ¶ 25. Appellant argued that it was plain error for the
court to adopt the magistrate’s decision without reviewing the written report by the GAL
as required under Sup.R. 48(F)(1)(C). Id. at ¶ 21. Rejecting appellant’s argument we
concluded that the “Rules of Superintendence are only general guidelines for the court to
follow at its discretion and do not give rise to substantive rights.” Id. at ¶ 27. Accord In
re B.K., 12th Dist. Butler No. CA2010-12-324, 2011-Ohio-4470; In re D.C.J., 8th Dist.
Cuyahoga Nos. 97681, 97776, 2012-Ohio-4154.
{¶ 24} In the present case, the GAL testified that her investigation consisted of
frequent contacts with the children, foster parents, and caseworker. She also reviewed
appellant’s counseling reports, Dr. Schlievert’s reports for all the children, and the
LCCS’ reports. The GAL stated that she had spoken with appellant at LCCS staffing
meetings and had observed appellant with her children at two recent visitations. The
GAL stated that she filed reports on July 20, 2015, August 12, and November 23, 2016.
10.
{¶ 25} The GAL stated that she unsuccessfully attempted to contact appellant
during the eight-month period when she was in Kentucky. The GAL indicated that
despite her telephone number being available through LCCS, appellant never contacted
her.
{¶ 26} Based on the foregoing, we find that there was no error in the GAL’s
testimony being presented at trial. Appellant’s first assignment of error is not well-taken.
{¶ 27} In appellant’s second assignment of error she argues that A.W. received
ineffective assistance of counsel. Specifically, appellant claims that counsel was
appointed only a few months before trial, met with the children only once, failed to
present any witnesses or exhibits, and permitted the child-client to testify.
{¶ 28} Appellant correctly states that a child in a proceeding to terminate parental
rights is a party to the matter and has a right to counsel. In re Williams, 101 Ohio St.3d
398, 2004-Ohio-1500, 805 N.E.2d 1110, ¶ 29. The test for ineffective assistance of
counsel in a parental rights termination proceeding is the same as that used in criminal
cases. Jones v. Lucas County Children Servs. Bd., 46 Ohio App.3d 85, 86, 546 N.E.2d
471 (6th Dist.1988). To prevail on a claim of ineffective assistance, appellant must
satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness, and a reasonable
probability exists that, but for counsel’s error, the result of the proceedings would have
been different. Id. at 687-688.
11.
{¶ 29} In this case, on August 16, 2016 a motion was filed requesting that the
children be appointed counsel because five of the six minor children expressed wishes
contrary to the recommendations of the GAL. On August 19, 2016, the motion was
granted; the attorney was appointed on August 23.
{¶ 30} On October 19, 2016, prior to the start of the trial, counsel for the children
informed the court that only one of the children, A.W., expressed a desire to return to
appellant. Counsel then indicated that she would be representing A.W.’s interests at trial.
At that point, appellant’s and the father’s counsel both objected to the attorney’s
representation based on the fact that she had only met with the children one time.
Counsel requested a continuance for counsel to establish a “bond” with the children.
Denying the request, the court questioned counsel; she indicated that she was “very
confident” that she knew what their wishes were and that they were very comfortable
speaking with her.
{¶ 31} Reviewing appellant’s argument, we cannot find that counsel’s
representation was substandard. Counsel actively cross-examined LCCS’ witnesses in an
attempt to elicit testimony supporting her client’s wishes. Appellant contends that having
A.W. testify was evidence of counsel’s ineffectiveness. We disagree. Reviewing A.W.’s
testimony, she was simply expressing her wish to live with her mother. Further,
appellant has failed to argue what additional witnesses A.W.’s counsel should have called
or what evidence she should have presented. Finally, there is no demonstration that these
12.
alleged failures affected the outcome of the proceedings. Appellant’s second assignment
of error is not well-taken.
{¶ 32} In appellant’s third assignment of error, she contends that the trial court’s
judgment is against the manifest weight of the evidence. In order to terminate parental
rights and award permanent custody of a child to a public services agency under R.C.
2151.414, the juvenile court must find, by clear and convincing evidence, two things:
(1) that one of the enumerated factors in R.C. 2151.414(B)(1)(a)-(d) apply, and (2) that
permanent custody is in the best interests of the child. R.C. 2151.414(B)(1). Clear and
convincing evidence is that which is sufficient to produce in the mind of the trier of fact a
firm belief or conviction as to the facts sought to be established. Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. The clear and
convincing standard requires more than a preponderance of the evidence, but it does not
require proof beyond a reasonable doubt. Id.{¶ 33} “A trial court’s determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence.” In re A.H.,
6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th
Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. We recognize that,
as the trier of fact, the trial court is in the best position to weigh the evidence and evaluate
the testimony. Id., citing In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d
Dist.1994). Thus, “[j]udgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed by a reviewing court as being
13.
against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 34} R.C. 2151.414(B)(1)(a) provides that a trial court may grant permanent
custody of a child to the agency if it finds that, in addition to the placement being in the
best interest of the child:
The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, * * * and the child cannot be placed with either
of the child’s parents within a reasonable time or should not be placed with
the child’s parents.
{¶ 35} R.C. 2151.414(E) requires a trial court to find that a child cannot be placed
with either of the child’s parents within a reasonable time or should not be placed with
either parent if any of 16 factors are met. Here, the trial court found that R.C.
2151.414(E)(1), (4), (14), and (16) applied. Those sections provide:
(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
14.
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to provide
an adequate permanent home for the child.
***
(14) The parent for any reason is unwilling to provide food, clothing,
shelter, and other basic necessities for the child or to prevent the child from
suffering physical, emotional, or sexual abuse or physical, emotional, or
mental neglect.
***
(16) Any other factor the court considers relevant.
{¶ 36} In reaching its findings, the trial court found that appellant failed to remedy
the conditions which caused her children to be removed from the home by failing to
attend and complete the counseling services set forth in the case plan. The court found
that appellant demonstrated a lack of commitment to her children by leaving them alone
15.
for eight months while residing in another state, she also allowed abuse of the children by
her boyfriend to occur. Finally, the court found that appellant was unwilling to provide
the necessities of food, shelter, and clothing for her children and that she was unwilling to
prevent the abuse of her children.
{¶ 37} Appellant argues that the court’s judgment was against the weight of the
evidence because upon her return to Toledo she had been consistently visiting the
children, was actively in services, and was looking for a home. Reviewing appellant’s
argument, we find that it does not refute the court’s findings. Appellant does not dispute
that she left her children for eight months and initially contacted LCCS in order to defend
her boyfriend following his arrest. Once she finally returned to Toledo, she again left to
live in Findlay for a period of time. Finally, appellant failed to complete any of the case
plan requirements. Based on these findings the court concluded that an award of
permanent custody to LCCS was in the children’s best interests. We find that the trial
court’s judgment is supported by competent, credible evidence. Appellant’s third
assignment of error is not well-taken.
{¶ 38} On consideration whereof, we find that substantial justice was done the
party complaining, and the judgment of the Lucas County Court of Common Pleas,
Juvenile Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the
costs of this appeal.
Judgment affirmed.
16.
In re Lau.W.
C.A. No. L-17-1015
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
17.