In re D.N. , 2011 Ohio 3395 ( 2011 )

[Cite as In re D.N., 2011-Ohio-3395.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
IN THE MATTER OF: [D.N.], :
:
Adjudicated Dependent Child. : Case No: 11CA3213
:
:
: DECISION AND
: JUDGMENT ENTRY
:
File-stamped date: 7-06-11
APPEARANCES:
David A. Sams, West Jefferson, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Judith Heimerl Brown,
Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Kline, J.:
{¶1} D.N.’s mother (hereinafter the “Mother”) appeals the judgment of the Ross
County Court of Common Pleas, Juvenile Division, which granted permanent custody of
D.N. to Ross County Job and Family Services, Children’s Division (hereinafter “Children
Services”). For various reasons, Mother contends that the trial court erred in granting
Children Services’ motion for permanent custody. But except for plain error, Mother has
waived all but one of her permanent-custody arguments. In the sole argument that
Mother has not waived, we find that competent, credible evidence supports the trial
court’s decision. Furthermore, we cannot find plain error in any of Mother’s remaining
permanent-custody arguments.
Ross App. No. 11CA3213 2
{¶2} Next, Mother contends that the trial court violated D.N.’s right to counsel.
Essentially, Mother argues that, because of a conflict, the same person should not have
served as both D.N.’s (1) guardian ad litem and (2) legal counsel. Again, Mother has
waived her right-to-counsel argument except for plain error. And because there was no
express conflict between the guardian ad litem’s recommendation and D.N.’s wishes,
we cannot find plain error related to D.N.’s right to counsel.
{¶3} Accordingly, we overrule Mother’s two assignments of error and affirm the
judgment of the trial court.
I.
{¶4} D.N. was born on November 22, 1995. After being removed from his parents’
home in 2005, D.N. was placed in the legal custody of relatives. In early 2007, D.N.’s
relatives informed the juvenile court that they could no longer care for D.N. Children
Services then filed a complaint alleging that D.N. was a dependent child.
{¶5} On July 5, 2007, the juvenile court appointed the same person to serve as
both guardian ad litem and legal counsel for D.N. Then, on October 24, 2007, the
juvenile court (1) adjudicated D.N. to be dependent and (2) placed D.N. in the
temporary custody of his paternal cousins.
{¶6} D.N. remained in his paternal cousins’ temporary custody until April 2008.
Then, in an April 7, 2008 entry, the juvenile court granted temporary custody of D.N. to
Children Services.
{¶7} Children Services developed a case plan to reunify D.N. with his parents.
Under the case plan, Mother and D.N.’s father were to (1) receive treatment for their
drug addictions, (2) be tested for drug use, (3) obtain stable housing, and (4) participate
Ross App. No. 11CA3213 3
in family counseling with D.N. Unfortunately, neither Mother nor D.N.’s father fulfilled
the objectives of the case plan. For example, Mother refused to submit to drug testing,
and D.N.’s father tested positive for cocaine and THC in December 2008. Furthermore,
after the juvenile court found D.N. to be dependent, both Mother and D.N.’s father were
incarcerated for drug-related offenses.
{¶8} Children Services investigated eight of D.N.’s relatives as potential placement
options. For various reasons, however, Children Services was not able to place D.N.
with any of these relatives. D.N.’s older brother (hereinafter the “Brother”) was one of
the relatives investigated by Children Services. But as D.N.’s caseworker later testified,
Brother (1) failed two home studies, (2) had financial stability issues, (3) had frequent
involvement with law enforcement, and (4) had a positive drug screen. As a result,
Children Services did not approve Brother as a placement option for D.N.
{¶9} On April 28, 2009, Children Services filed a motion for permanent custody
under R.C. 2151.413. D.N.’s guardian ad litem (also, D.N.’s attorney) recommended
that the motion for permanent custody be granted.
{¶10} On September 20, 2010, the juvenile court held a hearing before a
magistrate. D.N.’s caseworker testified on behalf of Children Services. Mother,
Brother, Brother’s girlfriend, and D.N.’s father also testified. At the close of the hearing,
Mother’s counsel made the following request: “[W]e ask the Court to deny the
Permanent Custody Motion and… uh… either place the child with [Mother] or with
[Brother] or in the alternative grant the Permanent Plan Living Arrangement.” Transcript
at 132. The magistrate, however, granted Children Services’ motion for permanent
custody.
Ross App. No. 11CA3213 4
{¶11} After Mother filed six objections to the magistrate’s decision, the juvenile court
adopted “the order of the Magistrate as the Order of the Court.” January 14, 2011
Judgment Entry at 4. As a result, Mother and D.N.’s father’s parental rights were
terminated, and D.N. was placed in the permanent custody of Children Services.
{¶12} Mother appeals and asserts the following two assignments of error: I. “THE
TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY.” And, II. “THE
MINOR CHILD WAS DEPRIVED OF HIS RIGHT TO COUNSEL.”
II.
{¶13} In her first assignment of error, Mother contends that the trial court erred in
granting permanent custody of D.N. to Children Services.
A.
{¶14} A parent’s “interest in the care, custody, and control of [his or her] children ‘is
perhaps the oldest of the fundamental liberty interests[.]’” In re D.A., 113 Ohio St. 3d 88,
2007-Ohio-1105, at ¶8, citing Troxel v. Granville (2000), 530 U.S. 57, 65. Further,
“[p]ermanent termination of parental rights has been described as ‘the family law
equivalent of the death penalty in a criminal case.’” In re D.A., 2007-Ohio-1105, at ¶10,
quoting In re Smith (1991), 77 Ohio App. 3d 1, 16. As such, “parents ‘must be afforded
every procedural and substantive protection the law allows.’” In re D.A., 2007-Ohio-
1105, at ¶10, quoting In re Hayes (1997), 79 Ohio St. 3d 46, 48. “‘[I]t is plain that the
natural rights of a parent are not absolute, but are always subject to the ultimate welfare
of the child, which is the polestar or controlling principle to be observed.’” In re
Cunningham (1979), 59 Ohio St. 2d 100, 106, quoting In re R.J.C. (Fla.App. 1974), 300
So. 2d 54, 58.
Ross App. No. 11CA3213 5
{¶15} “A public or private child-placement agency may file a motion under R.C.
2151.413(A) to request permanent custody of a child after a court has committed the
child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re
C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, at ¶22. Once a R.C. 2151.413(A) motion is
filed, the court must follow R.C. 2151.414. Id.
{¶16} A trial court may grant the agency’s motion for permanent custody if it
determines by clear and convincing evidence that: (1) one of the four conditions outlined
in R.C. 2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.
2151.414(B)(1); In re McCain, Vinton App. No. 06CA654, 2007-Ohio-1429, at ¶13. The
Supreme Court of Ohio has defined “clear and convincing evidence” as “the measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the allegations sought to be established. It is intermediate, being more than a
mere preponderance, but not to the extent of such certainty as required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In re
Estate of Haynes (1986), 25 Ohio St. 3d 101, 104.
{¶17} We will not reverse the judgment of the trial court when some competent,
credible evidence supports the trial court’s findings. In re Marano, Athens App. No.
04CA30, 2004-Ohio-6826, at ¶12. Accordingly, we must determine if competent,
credible evidence supports the trial court’s findings regarding both the best interest of
the child and the requirements of R.C. 2151.414(B)(1)(1)(a)-(d).
B.
{¶18} First, we must address whether Mother has waived the arguments under her
first assignment of error. “The juvenile rules require written objections to a magistrate’s
Ross App. No. 11CA3213 6
decision to be filed within 14 days of the decision. Juv.R. 40(D)(3)(b)(i). The rules
provide that ‘[e]xcept for a claim of plain error, a party shall not assign as error on
appeal the court’s [adoption] of any factual finding or legal conclusion * * * unless the
party has objected to that finding as required by Juv.R. 40(D)(3)(b).’ Juv.R.
40(D)(3)(b)(iv). This waiver under the rule embodies the long-recognized principle that
the failure to draw the trial court’s attention to possible error when the error could have
been corrected results in a waiver of the issue for purposes of appeal. In re Etter
(1998), 134 Ohio App. 3d 484, 492. The objections made under this rule must be
‘specific’ and must ‘state with particularity all grounds for objection.’ Juv.R.
40(D)(3)(b)(ii). ‘The failure to file specific objections is treated the same as the failure to
file any objections.’ In re D.R., Butler App. No. CA2009-01-018, 2009-Ohio-2805, at
¶29.” In re D.S., Clermont App. Nos. CA2010-08-058, CA2010-08-064, & CA2010-08-
065, 2011-Ohio-1279, at ¶31.
{¶19} Mother has raised four arguments under her first assignment of error: (1) the
trial court erred by not placing D.N. with a suitable relative; (2) the trial court did not
consider D.N.’s wishes concerning placement; (3) Children Services did not use its best
efforts to avoid a judgment of permanent custody; and (4) the trial court erred by not
placing D.N. in a planned permanent living arrangement.
{¶20} Mother, however, raised only one of these arguments with specificity in her
objections to the magistrate’s decision. The magistrate found that “[t]here are no
appropriate and willing relatives to care for the child.” Magistrate’s Decision at 1. In
response, Mother filed the following objection: “The mother testified that her older son,
[Brother], wanted to have custody of the child and would be able to provide for him.”
Ross App. No. 11CA3213 7
Objections to Magistrate’s Decision at 2. This is the only objection in the proceedings
below that specifically coincides with Mother’s arguments on appeal. Therefore, we will
use the competent-credible-evidence standard to review Mother’s argument that D.N.
should have been placed with Brother, and we will analyze Mother’s remaining
arguments for plain error only.
{¶21} “In appeals of civil cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances where error,
to which no objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy
of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St. 3d 116,
1997-Ohio-401, syllabus.
1.
{¶22} Initially, we will consider Mother’s argument that the trial court erred by “not
placing the child with a suitable relative[.]” Brief of Appellant at 6. On appeal, this
particular issue contains both new arguments and arguments that Mother raised in her
objections to the magistrate’s decision. Therefore, we will review the following
argument under the competent-credible-evidence standard: that the trial court should
have placed D.N. with Brother. And we will analyze the following argument for plain
error only: that Children Services did not make reasonable efforts to place D.N. with a
relative.
a. Placing D.N. With Brother
{¶23} Mother contends that the trial court should have placed D.N. with a suitable
relative. And for that reason, Mother argues that the trial court committed reversible
Ross App. No. 11CA3213 8
error. (In her appellate brief, Mother does not refer to a particular suitable relative. We
will, however, presume that Mother is referring to Brother based on (1) the request
made at the September 20, 2010 hearing and (2) Mother’s objections to the
magistrate’s decision.) Here, we find that competent, credible evidence supports the
trial court’s decision not to place D.N. with Brother. After conducting two different home
studies, Children Services found Brother’s home to be unsuitable for D.N. Brother also
had a positive drug screen, and, as Brother admitted, “the cops are [at his residence] a
lot.” Transcript at 87. Because of this competent, credible evidence, the trial court did
not err when it determined that placement with Brother was not in D.N.’s best interest.
b. Reasonable Efforts to Place D.N. With a Suitable Relative
{¶24} Mother contends that Children Services did not make reasonable efforts to
place D.N. with a relative. And for that reason, Mother argues that the trial court
committed reversible error. We recently rejected a similar argument in In re M.O., Ross
App. No. 10CA3189, 2011-Ohio-2011. As we observed, “Contrary to Mother’s
contention, a public children services agency has no statutory duty to make ‘reasonable
efforts’ to place the child with an extended family member before it can obtain
permanent custody of the child.” Id. at ¶16. See, also, In re Warren, Stark App.
No.2007CA00054, 2007–Ohio–5703, at ¶23 (“[T]he Department’s duty to use
reasonable efforts applies only to efforts to avoid removal of a child from her home or to
reunify the child with her family, following removal. The Department is under no
statutory duty to make reasonable efforts to place a child with relatives although relative
placement is to be investigated.”). Therefore, we find no plain error in Mother’s
reasonable-efforts argument.
Ross App. No. 11CA3213 9
2.
{¶25} In another argument under her first assignment of error, Mother contends that
the trial court did not “consider the child’s wishes concerning placement[.]” Brief of
Appellant at 6. We, however, find no plain error under this argument.
{¶26} Under R.C. 2151.414(D)(1)(b), “In determining the best interest of a child * * *
the court shall consider all relevant factors, including * * * [t]he wishes of the child, as
expressed directly by the child or through the child’s guardian ad litem, with due regard
for the maturity of the child[.]” And as Mother notes, “The failure to consider [this]
factor[] in reaching a determination concerning a child’s best interest is prejudicial error.”
In re J.W., Franklin App. Nos. 06AP-864, 06AP-1062, & 06AP-875, 2007-Ohio-1419, at
¶17.
{¶27} Here, we find evidence of D.N.’s wishes in the record below. The guardian ad
litem reported that D.N. “has little attachment to either parent. Whatever bonding [D.N.]
may have once had with either of them is simply not there anymore due to the parents
pursuing other avenues, including substance abuse, left untreated, and related criminal
conduct which has put them behind bars for substantial periods of time.” Report of
Guardian Ad Litem at 2. Furthermore, D.N.’s caseworker testified that D.N. “didn’t wish
to talk” to his mother. Transcript at 22. D.N.’s caseworker also agreed that D.N. had
“never expressed an interest” in living with his father. Transcript at 45. Thus, the
juvenile court heard evidence of D.N.’s wishes.
{¶28} We also presume that the juvenile court considered D.N.’s wishes when it
granted permanent custody of D.N. to Children Services. Granted, neither the
magistrate nor the juvenile court made an express finding regarding D.N.’s wishes.
Ross App. No. 11CA3213 10
Nevertheless, “[a] general principal of appellate review is the presumption of regularity;
that is, a trial court is presumed to have followed the law unless the contrary is made to
appear in the record.” Tonti v. East Bank Condominiums, LLC, Franklin App. No. 07AP-
388, 2007-Ohio-6779, at ¶26. Because there is no evidence to the contrary, we must
presume that the juvenile court considered D.N.’s wishes. Therefore, we find no plain
error under Mother’s wishes-of-the-child argument.
3.
{¶29} In another argument under her first assignment of error, Mother contends that
Children Services did not “use its best efforts to avoid a judgment of permanent
custody[.]” Brief of Appellant at 6. Essentially, Mother argues that Children Services
did not make reasonable efforts to avoid the permanent-custody action. We, however,
find no plain error under this argument.
{¶30} “Pursuant to R.C. 2151.419(A)(1), ‘the public children services agency or
private child placing agency that filed the complaint in the case, removed the child from
home, has custody of the child, or will be given custody of the child’ must have [‘]made
reasonable efforts to prevent the removal of the child from the child’s home, [to]
eliminate the continued removal of the child from the child’s home, or [to] make it
possible for the child to return safely home.’” In re Gibbs, Stark App. Nos. 2007 CA
00304 & 2007 CA 00305, 2008-Ohio-1386, at ¶24, quoting R.C. 2151.419(A)(1). Here,
Children Services filed for permanent custody under R.C. 2151.413. This is significant
because “R.C. 2151.419(A)(1) does not apply in a hearing on a motion for permanent
custody filed pursuant to R.C. 2151.413.” In re C.F., 2007-Ohio-1104, at ¶43.
Furthermore, D.N.’s caseworker testified that Children Services went to considerable
Ross App. No. 11CA3213 11
lengths to reunite D.N. with his parents. Children Services developed a reunification
case plan, and D.N.’s caseworker reviewed the case plan with D.N.’s parents.
Unfortunately, D.N.’s parents failed to complete the case-plan objectives.
{¶31} For the foregoing reasons, we find no plain error under Mother’s reasonable-
efforts argument.
4.
{¶32} In the remaining argument under her first assignment of error, Mother
contends that the trial court erred by “not placing the child in a planned permanent living
arrangement[.]” Brief of Appellant at 6. We, however, find no plain error under this
argument.
{¶33} “If a child is adjudicated an abused, neglected, or dependent child, the court
may * * * [p]lace the child in a planned permanent living arrangement with a public
children services agency or private child placing agency, if a public children services
agency or private child placing agency requests the court to place the child in a planned
permanent living arrangement and if the court finds, by clear and convincing evidence,
that a planned permanent living arrangement is in the best interest of the child and that
one of the following exists:
{¶34} “(a) The child, because of physical, mental, or psychological problems or
needs, is unable to function in a family-like setting and must remain in residential or
institutional care now and for the foreseeable future beyond the date of the dispositional
hearing held pursuant to section 2151.35 of the Revised Code.
{¶35} “(b) The parents of the child have significant physical, mental, or
psychological problems and are unable to care for the child because of those problems,
Ross App. No. 11CA3213 12
adoption is not in the best interest of the child, as determined in accordance with
division (D)(1) of section 2151.414 of the Revised Code, and the child retains a
significant and positive relationship with a parent or relative.
{¶36} “(c) The child is sixteen years of age or older, has been counseled on the
permanent placement options available to the child, is unwilling to accept or unable to
adapt to a permanent placement, and is in an agency program preparing the child for
independent living.” R.C. 2151.353(A)(5)(a)-(c).
{¶37} Here, there is no evidence that D.N. qualifies for a planned permanent living
arrangement. First, according to the evidence, D.N. does not have “physical, mental, or
psychological problems or needs” that would cause him to be “unable to function in a
family-like setting.” R.C. 2151.353(A)(5)(a). Second, there is no evidence that D.N.’s
parents “have significant physical, mental, or psychological problems and are unable to
care for [D.N.] because of those problems.” R.C. 2151.353(A)(5)(b). But even if we
considered the parents’ substance abuse problems to be significant physical, mental, or
psychological problems, the evidence does not demonstrate that adoption is not in
D.N.’s best interest. See id. And finally, D.N. is under the age of sixteen. See R.C.
2151.353(A)(5)(c). Therefore, we find no plain error under Mother’s planned-
permanent-living-arrangement argument.
C.
{¶38} For the foregoing reasons, we overrule Mother’s first assignment of error.
III.
{¶39} In her second assignment of error, Mother contends that D.N. was deprived of
his right to independent counsel. In the proceedings below, D.N.’s guardian ad litem
Ross App. No. 11CA3213 13
recommended that permanent custody of D.N. be granted to Children Services. Mother
argues that the permanent-custody recommendation conflicted with D.N.’s wishes. And
because the guardian ad litem also served as D.N.’s attorney, Mother argues that the
trial court should have appointed independent counsel for D.N.
{¶40} This court addressed a similar argument in In re Hilyard, Vinton App. Nos.
05CA600, 05CA601, 05CA602, 05CA603, 05CA604, 05CA606, 05CA607, 05CA608, &
05CA609, 2006-Ohio-1965. The following quote from Hilyard discusses the legal
principles relevant to Mother’s second assignment of error.
{¶41} “R.C. 2151.281 and Juv.R. 4(B) mandate that the juvenile court appoint a
guardian ad litem to protect the interests of a child in a juvenile court proceeding
involving allegations of abuse or neglect of the child. Under R.C. 2151.352 and Juv.R.
4(A), every child who is the subject of a juvenile court proceeding also has the right to
be represented by counsel and, if indigent, to be appointed counsel to represent the
interests of the child. State ex rel. Asberry v. Payne[,] 82 Ohio St. 3d 44, 48[,1998-Ohio-
596]; In re Emery, Lawrence App. No. 02CA40, 2003-Ohio-2206, [at] ¶9. R.C.
2151.281(H) and Juv.R. 4(C)(1) permit a licensed attorney to serve as both attorney
and guardian ad litem for a child in juvenile court proceedings provided the court makes
an explicit dual appointment and no conflicts arise due to the dual representation. See
In re Emery; In re Duncan/Walker Children, [] at 844-845. The court expressly ordered
dual representation in this case. Thus, we focus on the issue of conflicts.
{¶42} “As recognized in Juv.R. 4(C)(1), the roles of guardian ad litem and attorney
are not always compatible, as they serve different functions. In re Baby Girl Baxter
(1985), 17 Ohio St. 3d 229, 232; Emery[.] ‘The role of guardian ad litem is to investigate
Ross App. No. 11CA3213 14
the ward’s situation and then to ask the court to do what the guardian feels is in the
child’s best interest. The role of the attorney is to zealously represent his client within
the bounds of the law.’ Id. Thus, a conflict between the roles may arise when a child’s
wishes differ from what the guardian ad litem believes is in the child’s best interests. In
that event, the attorney must bring potential conflicts to the attention of the court, and
where he or she fails to do so, the court may be obliged to act sua sponte. See In re
Howard (1997), 119 Ohio App. 3d 201, 206[.] A new guardian ad litem should be
appointed if either the court or the attorney finds there is a conflict. R.C. 2151.281(H);
Juv.R. 4(C)(2). * * *.
{¶43} “The Ohio Supreme Court has concluded that a child who is the subject of a
juvenile court proceeding to terminate parental rights is entitled to independent counsel
in certain circumstances. In re Williams, 101 Ohio St. 3d 398, 2004-Ohio-1500,
syllabus[.] A court’s determination whether a child actually needs independent counsel
should be made on a case-by-case basis, taking into account the maturity of the child
and the possibility of the child’s guardian ad litem being appointed to represent the
child. In re Williams, [at] ¶17; In re Brooks[, Franklin App. No. 04AP-164, 2004-Ohio-
3887,] at ¶¶79, 87. Generally, the appointment of independent counsel is warranted
when a child has ‘repeatedly expressed a desire’ to remain or be reunited with a parent
but the child’s guardian ad litem believes it is in the child’s best interest that permanent
custody of the child be granted to the state. Id.” Hilyard at ¶34-36 (footnotes omitted)
(emphasis sic).
{¶44} First, we note that Mother did not request independent counsel for D.N.
during the proceedings below. Furthermore, Mother did not raise the issue of
Ross App. No. 11CA3213 15
independent counsel in her objection to the magistrate’s decision. Therefore, Mother
has waived her independent-counsel argument except for plain error. See In re
Reardon, Tuscarawas App. Nos. 2005AP080055 & 2005AP040060, 2006-Ohio-629, at
¶55; In re Johnson, Franklin App No. 03AP–1264, 2004–Ohio–3886, at ¶14.
{¶45} Here, because D.N. did not express a desire to remain or be reunited with his
parents, we cannot find plain error related to Mother’s second assignment of error. As
we noted earlier, the guardian ad litem reported that D.N. “has little attachment to either
parent.” And again, according to D.N.’s caseworker, D.N. “didn’t wish to talk” to his
mother and “never expressed an interest” in living with his father. Transcript at 22, 45.
Therefore, the evidence does not demonstrate a conflict between D.N.’s wishes and the
guardian ad litem’s recommendation, and we cannot find plain error related to the
independent-counsel issue.
{¶46} Accordingly, we overrule Mother’s second assignment of error. Having
overruled both assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 11CA3213 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Ross County Court of Common Pleas, Juvenile Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.