In re L.M. , 2013 Ohio 2669 ( 2013 )

[Cite as In re L.M., 2013-Ohio-2669.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: L.M. C.A. No. 26772
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 11-08-566
DECISION AND JOURNAL ENTRY
Dated: June 26, 2013
BELFANCE, Judge.
{¶1} Appellant, Latasha M. (“Mother”), appeals from a judgment of the Summit
County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her
minor child, L.M., and placed her in the permanent custody of Summit County Children Services
(“CSB”). This Court affirms.
I.
{¶2} L.M., born April 19, 2008, had been living with Mother before this case began.
Paternity was never established, and no one claiming to be the father of L.M. ever appeared.
{¶3} The case began with a complaint filed on August 22, 2011, alleging neglect and
dependency of L.M. The filing was spurred by events occurring shortly before that date. Mother
later testified that she was in the process of moving from Cleveland to the Akron area and left
L.M. with a friend for “three or four days” so that she could set up a new apartment. When the
2
friend later refused to give the child back to her, Mother called the police for assistance in
retrieving her daughter.
{¶4} When the police arrived, they had concerns that Mother was under the influence
of an intoxicant and also recognized the home address Mother provided as a drug house. Mother
apparently could not provide the names of any relatives that could care for the child.
Consequently, the police assumed custody of L.M. and contacted CSB.
{¶5} At the adjudicatory hearing, the magistrate heard testimony that Mother may have
left L.M. with the friend for more than a few days and, perhaps, as long as six weeks. The
magistrate determined that the friend was an inappropriate care provider as she had previously
lost custody of her own children. The trial court found L.M. to be neglected and dependent, and
placed the child in the temporary custody of the agency. The trial court also adopted the case
plan put forward by the agency. That case plan addressed concerns regarding housing, substance
abuse, and mental health.
{¶6} On November 22, 2011, CSB moved, pursuant to R.C. 2151.419(A)(2)(e), to
bypass the statutory requirement that CSB make reasonable efforts to return the child to
Mother’s home on the basis that Mother’s parental rights had been involuntarily terminated in
2003 with respect to another child. The motion was granted and, therefore, the agency was not
required to make reasonable efforts to prevent the removal of the child from her home, eliminate
the continued removal of the child from her home, or return the child to her home. See R.C.
2151.419(A)(2).
{¶7} On June 18, 2012, the agency moved for permanent custody. Following a hearing
on the motion, the trial court granted permanent custody of L.M. to CSB. Mother appeals and
assigns two errors for review.
3
II.
ASSIGNMENT OF ERROR I
THE COURT ERRED AND ABUSED ITS DISCRETION IN PLACING THE
CHILD IN THE PERMANENT CUSTODY OF SUMMIT COUNTY
CHILDREN SERVICES AS THE MANIFEST WEIGHT OF THE EVIDENCE
PROVIDED FOR THE GRANTING OF A SIX MONTH EXTENSION OF
TIME FOR MOTHER TO COMPLETE HER CASEPLAN OBJECTIVES.
{¶8} Mother contends that the trial court erred in determining that L.M. could not or
should not be placed with a parent within a reasonable time. See R.C. 2151.414(B)(1)(a). In
particular, she contends that the evidence fails to support any of the R.C. 2151.414(E) factors
that would sustain this finding on the first prong of the permanent custody test. See R.C.
2151.414(B)(1)(a).
{¶9} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period, or that
the child cannot be placed with either parent within a reasonable time or should not be placed
with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of
permanent custody to the agency is in the best interest of the child, based on an analysis under
R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75
Ohio St.3d 95, 99 (1996).
{¶10} The trial court found that the first prong of the permanent custody test was
satisfied because L.M. could not be placed with a parent within a reasonable time or should not
be placed with a parent. In reaching that conclusion, the court relied upon subsections R.C.
2151.414(E)(1) [failure to remedy conditions despite reasonable case planning]; R.C.
4
2151.414(E)(4) [lack of commitment]; and R.C. 2151.414(E)(11) [prior involuntary termination
of parental rights] in regard to Mother, and R.C. 2151.414(E)(10) [abandonment] in regard to the
unknown father. Mother challenges the findings regarding herself as not being supported by the
weight of the evidence.
{¶11} The first-prong of the statutory test may be satisfied by clear and convincing
evidence of any one of the R.C. 2151.414(E) factors. See R.C. 2151.414(E). We find it
unnecessary to consider Mother’s arguments concerning the other factors because we conclude
that the test is satisfied by reliance on R.C. 2151.414(E)(11). That factor is applicable where the
parent has had parental rights terminated with respect to a sibling of the child and the parent has
failed to provide clear and convincing evidence to demonstrate that the parent can provide a
legally secure permanent placement and adequate care for the health, welfare and safety of the
child. Id.{¶12} Mother disputes the trial court’s reliance on R.C. 2151.414(E)(11) by claiming
that her loss of custody of her other child was the result of a voluntary surrender rather than an
involuntary termination. In sole support of this claim, Mother relies on the rather fragmented
testimony of the CSB social worker in the present case. In pertinent part, the caseworker
testified that “Mother lost parental rights in 2002 and, voluntarily, the child was placed into
permanent custody due to lack of case plan compliance on mother’s part.” Thereupon, the
prosecutor indicated: “I do have a certified copy of the record.” The trial judge acknowledged:
“That will speak for itself.”
{¶13} A certified copy of the trial court’s April 29, 2003 judgment entry along with the
magistrate’s decision of the same date in Case No. DN 02-1-5 of the Summit County Court of
Common Pleas, Juvenile Division, regarding Mother’s older child were introduced into evidence.
5
Together, these documents demonstrate that Mother’s parental rights to L.M.’s sibling were
involuntarily terminated pursuant to R.C. 2151.414. They reveal that the matter came on for a
contested hearing on CSB’s motion for permanent custody, that the court determined that the
child could not be placed with either parent within a reasonable time, and that the termination of
Mother’s parental rights was in the best interest of the child.
{¶14} The incongruous use of the word “voluntarily” by the caseworker in the present
case is insufficient to establish that Mother voluntarily surrendered her parental rights to this
sibling of L.M. There is no evidence that Mother voluntarily consented to the termination of her
parental rights to that child, nor is there evidence that a juvenile court accepted such a surrender.
See R.C. 5103.15(B)(1) and Juv.R. 38(B)(1) (providing that a parent may agree to surrender
permanent custody of a child with the approval of a juvenile court, where the court determines it
is in the child’s best interest). See also In re A.P., 9th Dist. No. 23698, 2007-Ohio-5413, ¶ 13
(noting that the parents voluntarily, knowingly, and intelligently surrendered parental rights and
that the trial judge accepted their voluntary surrender). To the contrary, Mother, in fact, testified
that her other child was “taken away” by Children Services because “I was never there with my
child, and I left my baby with my foster sisters.” Mother’s testimony is consistent with the
involuntary termination reflected by the certified copies of court documents placed in evidence
before the trial court.
{¶15} The conclusion that Mother’s parental rights had been involuntarily terminated as
to a prior child is further supported by procedural facts in the present case. The magistrate
granted a reasonable efforts bypass to CSB on the grounds that Mother’s parental rights had been
involuntarily terminated as to a sibling of L.M. See R.C. 2151.419(A)(2)(e). In the absence of
any objection by Mother, the trial judge adopted the decision of the magistrate. The statutory
6
provision for reasonable efforts bypass is explicitly applicable to involuntary terminations of
parental rights, and it does not apply to voluntary terminations. See id. Mother’s failure to
object to the magistrate’s decision is additional evidence that Mother’s parental rights were
involuntarily terminated as to a sibling of L.M. Moreover, absent objection, Mother may not
challenge that finding on appeal. See Juv.R. 40(D)(3)(b)(iv).
{¶16} Accordingly, the weight of the evidence supports the trial court’s finding that
Mother’s parental rights were involuntarily terminated as to a sibling of L.M. See R.C.
2151.414(E)(11). That finding, in turn, supports the trial court’s determination that L.M. cannot
or should not be placed with a parent within a reasonable time. See R.C. 2151.414(B)(1)(a). The
first prong of the permanent custody test is thereby satisfied.
{¶17} Mother also argues that the trial court erred in failing to grant her motion for a
six-month extension of temporary custody. In her appellate brief, Mother explains that an
extension of temporary custody requires consideration of the best interest of the child. Since we
conclude, in the second assignment of error below, that the trial court did not err in finding that
an award of permanent custody was in the best interest of the child, we also conclude the trial
court did not err in finding that an extension of temporary custody was not in the child’s best
interest.
{¶18} Mother’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS
DISCRETION BY FINDING PERMANENT CUSTODY TO BE IN THE
CHILD’S BEST INTEREST, ESPECIALLY IN LIGHT OF THE FACT THAT
THE COURT FAILED TO APPOINT COUNSEL FOR THE MINOR CHILD
AND AS SUCH COULD NOT PROPERLY DETERMINE THE CHILD’S
BEST INTEREST.
7
{¶19} Mother contends that the trial court erred in finding that it was in the best interest
of the child to be placed in the permanent custody of CSB. See R.C. 2151.414(D)(1).
Specifically, she argues that the guardian ad litem could not effectively represent L.M.’s wishes
to the court because the guardian ad litem did not ask the child what her wishes were. R.C.
2151.414(D)(1)(b). In addition, Mother argues that the child should have been given her own
attorney because L.M told Mother she wanted to live with her and this expression was contrary
to the guardian ad litem’s recommendation.
{¶20} When determining whether a grant of permanent custody is in a child’s best
interest, the juvenile court must consider all the relevant factors, including those enumerated in
R.C. 2151.414(D): the interaction and interrelationships of the child, the wishes of the child, the
custodial history of the child, the child’s need for permanence in his life, and any of the factors in
R.C. 2151.414(E)(7) to (11) if relevant. See In re R.G., 9th Dist. Nos. 24834 & 24850, 2009-
Ohio-6284, ¶ 11. “Although the trial court is not precluded from considering other relevant
factors, the statute explicitly requires the court to consider all of the enumerated factors.” In re
Smith, 9th Dist. No. 20711, 2002 WL 5178, *3, (Jan. 2, 2002); see also In re Palladino, 11th
Dist. No. 2002-G-2445, 2002-Ohio-5606, ¶ 24. Furthermore, in evaluating the evidence
regarding the best interest of the child, no single factor is to be “given greater weight or
heightened significance.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 57, citing In re
Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56. All factors relevant to the best interest of
the child are to be weighed together. In re Schaefer at ¶ 64.
{¶21} The first best interest factor requires consideration of the child’s interactions and
interrelationships with those involved in her life. See R.C. 2151.414(D)(1)(a). Mother’s
relationship with her child was evidenced, in part, by the caseworker’s testimony regarding the
8
weekly visits she supervised. The caseworker testified that Mother attended the visits fairly
regularly and that Mother and child were happy to see each other. Mother generally interacted
well with L.M. and was appropriate in her interactions with her. She typically brought age
appropriate activities and either snacks or dinner to the visits. The caseworker indicated that
Mother and child cried at separation, but that once the child was back to the foster home, she was
all right. The caseworker would occasionally need to redirect Mother during visits, however,
such as when Mother became frustrated with L.M. for refusing to listen to her and when she
promised L.M. that she would be coming back home. The caseworker also testified that Mother
inappropriately blamed L.M. for putting them in this situation with Children Services.
{¶22} Additionally, the caseworker addressed Mother’s limited progress on her case
plan and the issues that stood between her and reunification with her daughter. As to housing,
the caseworker explained that Mother had a history of unstable housing arrangements. Mother
eventually obtained her own housing, a two-bedroom apartment, in August 2012. The
caseworker had seen the lease and believes Mother can financially maintain that housing.
{¶23} Next, the caseworker explained that Mother had failed to substantially address
either the mental health or the substance abuse objectives of her case plan. Regarding the mental
health objective, Mother completed an assessment at Catholic Social Services, but only saw her
counselor twice before being discharged for lack of benefits and lack of attendance. She had had
no counseling since January 2012. The caseworker sought to assist Mother in getting her
funding reinstated and also issued referrals to other agencies, but Mother never followed through
with those. Mother did an assessment at Portage Path and obtained a diagnosis, but never
returned for treatment and that case was closed. At Mother’s request, recent efforts to process a
second referral for counseling at Portage Path were completed shortly before the permanent
9
custody hearing. That agency then determined that they were unable to provide Mother with
mental health treatment until her substance abuse treatment was addressed.
{¶24} In her testimony, Mother admitted that she was slow to comply with the mental
health objective because she was too depressed to do anything and also felt she should not have
to obtain treatment. She reasoned that she had friends to talk to and did not need a counselor. At
the same time, Mother admitted to suffering from depression and receiving social security
disability payments for that diagnosis. We also note that Mother’s mental health issues,
including severe depression, suicidal and homicidal feelings, and feelings of being overwhelmed
were cited in the juvenile court’s 2003 opinion that resulted in the termination of Mother’s
parental rights to her older child. See In re L.M. (DOB 6/6/01), Summit J.C. No. DN 02-1-5,
Magistrate’s Decision, page 2 (Apr. 29, 2003). Mother did not follow through with counseling
sessions at that time either, and the counseling agency closed her case for lack of attendance.
{¶25} Finally, the caseworker testified about Mother’s efforts to address substance
abuse. Even though the caseworker made several referrals for a substance abuse assessment and
arranged to personally drive Mother to one of those appointments, Mother never completed an
assessment. Mother submitted only seven drug screens over the course of 14 months, although
weekly testing was requested. Two of those screens were positive for marijuana and one was
positive for alcohol. Mother said she did not do more screens because she was “overwhelmed
with a lot of stuff.” In 2003, Mother similarly failed to obtain the recommended assessment for
substance abuse and did not submit regular drug tests as requested. Significantly, Mother was
arrested in September 2012 and convicted for possession of cocaine more than a year into the
case. She was placed on probation for two years. At the time of the hearing, Mother testified
that she had another substance abuse assessment scheduled for one week after the permanent
10
custody hearing. Based on this evidence, Mother has had a long history of difficulty with both
mental health problems and substance abuse.
{¶26} L.M. had no relationship with her father as he was undetermined. She also had no
relationship with Mother’s older child since that child was placed in permanent custody before
L.M. was born. There is no evidence that L.M. had any relationships with other relatives.
{¶27} L.M.’s custodial history reveals that she resided with Mother for three and one-
half years until her removal at the start of this case. Since that time, the child has been in foster
care with the same family for 16 months. See R.C. 2151.414(D)(1)(c).
{¶28} As found by the trial judge, Mother cannot provide for herself, let alone care for
her child. No relatives are available to provide care for the child. CSB inquired of known
relatives, but obtained no positive responses. See R.C. 2151.414(D)(1)(d). In evaluating the
factors relevant to the child’s best interest, the trial court was also entitled to consider the fact
that Mother had her parental rights involuntarily terminated with respect to a sibling of the child.
See R.C. 2151.414(D)(1)(e) and R.C. 2151.414(E)(11).
{¶29} Mother’s argument on appeal focuses on the best interest factor concerning the
wishes of the child regarding her future custody. See R.C. 2151.414(D)(1)(b). Mother seems to
argue that the guardian ad litem could not indicate the wishes of L.M. because there was no
evidence that the guardian ad litem “ever asked the child what her wishes were.” R.C.
2151.414(D)(1)(b) specifically provides that the wishes of the child may be “expressed directly
by the child or through the child’s guardian ad litem, with due regard for the maturity of the
child[.]” Id. See also In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 55. Further, the Ohio
Supreme Court has specifically indicated that the trial court is imbued with the “discretion to
accept the testimony of the guardian ad litem on the child’s wishes rather than hearing a direct
11
expression of those wishes made by the child.” In re C.F. at ¶ 56. As recognized by the statute,
a very young child will not be able to address this question directly and with the mature
consideration it deserves. Thus, in the case of a very young child, the Ohio Supreme Court has
accepted the testimony of a guardian ad litem indicating his or her belief regarding the custody
alternative that would be in the best interest of the child. In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, ¶ 60. The decision of whether to accept testimony of the guardian ad litem or
hear a direct expression of those wishes made by the child rests in the sound discretion of the
trial court. In re C.F. at ¶ 56.
{¶30} In this case, the guardian ad litem testified that, at four years of age, L.M. was too
young to express her own wishes regarding custody, and she believed that an award of
permanent custody was in the child’s best interest. The guardian ad litem explained that Mother
had made so little progress on her mental health and chemical dependency objectives that she
would be concerned if L.M. were returned to her care. She also stated that L.M. is doing well in
her foster home and that she is very comfortable with the foster family. She interacts well with
the other two children in the foster home and loves the pet cat. While living with her foster
family, L.M. has participated in community and church activities, including choir. She attends
Head Start and is said to be well adjusted in the classroom. The trial court was entitled to find
that the guardian ad litem’s testimony satisfies this portion of the best interest test.
{¶31} Finally, Mother asserts that L.M. should have had separate counsel appointed to
represent her wishes. In making this claim on appeal, she cites her own testimony indicating that
the child told her she wanted to live with her. She claims that the trial court erred in failing to
conduct an in camera interview of the child and cites In re Ridenour, 11th Dist. Nos. 2003-L-
146, 2003-L-147, 2003-L-148, 2004-Ohio-1958, in support of her position. Ridenour fails to
12
require an investigation by the trial court in every such case, but rather only when the child
“consistently” expresses a desire to be with a parent. Id. at ¶ 51, quoting In re Williams, 11th
Dist. Nos. 2002-G-2454 and 2002-G-2459, 2002-Ohio-6588, at ¶ 26. The subsequent decision
of the Ohio Supreme Court, in In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, emphasizes
that the child in that case had repeatedly and consistently expressed a desire to remain with his
mother. Id. at ¶ 5 - 6. Since that decision was issued, this Court has “repeatedly emphasized,
[that] to demonstrate a ‘conflict’ between the child’s wishes and the guardian’s recommendation
that permanent custody is in the child’s best interest, the record must demonstrate that the child
has repeatedly and consistently expressed the affirmative desire to return to the parent’s home.”
In re B.W., 9th Dist. No. 12CA0016-M, 2012-Ohio-3416, ¶ 42, citing In re J.P.-M., 9th Dist.
Nos. 23694 & 23714, 2007-Ohio-5412, ¶ 56; and In re J.B., 9th Dist. No. 23436, 2007-Ohio-
620, ¶ 22-23.
{¶32} In the present case, there is no evidence that child repeatedly and consistently
expressed a desire to live with Mother. Rather, the only indication that L.M. wished to live with
Mother came during Mother’s testimony as the final witness in the permanent custody hearing.
At that time, Mother was asked how her visits with L.M. had been going and Mother responded
that they are good and that her daughter says she wants to come home. Mother does not cite any
other evidence indicating that the child had expressed a desire to return to live with Mother.
Mother’s single statement at the very close of the permanent custody hearing does not establish a
conflict with the guardian ad litem’s recommendation such as to warrant investigation of the
need to appoint separate legal counsel for this four-year-old child.
{¶33} Based upon the lack of a consistent expression of a desire for reunification by the
child and the overwhelming evidence supporting the trial court’s finding that the child’s best
13
interest would be served by awarding custody to CSB, we conclude that the trial court did not err
in failing to appoint independent counsel for L.M. Mother’s second assignment of error is
overruled.
III.
{¶34} Mother’s two assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
HENSAL, J.
CONCUR.
14
APPEARANCES:
RONALD T. GATTS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.