In re D.N. , 2014 Ohio 5397 ( 2014 )

[Cite as In re D.N., 2014-Ohio-5397.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
IN THE MATTER OF: :
CASE NO. CA2014-07-016
D.N., et al. :
OPINION
: 12/8/2014
:
:
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 12AND0375 & 12AND0376
Kristina M. Oesterle, P.O. Box 314, Washington C.H., Ohio 43160, Guardian Ad Litem
Jennifer J. Hitt, 63 North Main Street, Suite B, London, Ohio 43140, for appellant
Jess Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington C.H.,
Ohio 43160, for appellee
S. POWELL, J.
{¶ 1} Appellant ("Father"), the biological father of D.N. and A.N., appeals a decision
of the Fayette County Court of Common Pleas, Juvenile Division, granting permanent
custody of his children to a children services agency.
{¶ 2} On May 11, 2012, Fayette County Children Services ("FCCS") filed two
complaints alleging that D.N. and A.N. were abused and neglected children, and moved for
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emergency temporary custody. The complaints alleged that a passer-by had observed D.N.,
who was three years old at the time, in a diaper on a public street with no adult supervision,
and that A.N., who was almost two years old at the time, was found strapped in a car seat on
the same street. The complaints also alleged that the children's biological mother ("Mother")
was arrested for child endangerment, and that Father was found hiding in a nearby house
where he was subsequently arrested on an outstanding warrant.
{¶ 3} The juvenile court granted temporary custody to FCCS on May 11, 2012, and
after a hearing the following week, affirmed that temporary custody would remain with FCCS
pending the disposition of the case. A guardian ad litem ("the GAL") was appointed for the
children on May 18, 2012, and a case plan was approved in June 2012 with the goal of
returning the children to their parents.
{¶ 4} On September 25, 2012, the juvenile court adjudicated D.N. and A.N.
dependent children, and ordered that temporary custody remain with FCCS. The juvenile
court then held several review hearings between October 2012 and April 2014, and extended
FCCS's temporary custody of the children each time. Prior to the last review hearing, FCCS
filed a motion for permanent custody.
{¶ 5} The permanent custody hearing was held on May 13, 2014. Mother was
present with her attorney. Father was also present with his attorney, having been transported
to the proceedings from prison. However, Father was removed from the courtroom at his
request at the beginning of the hearing. Thereafter, the juvenile court heard the testimony of
two witnesses: the FCCS caseworker who was responsible for the case, and the children's
GAL. Mother elected not to testify.
{¶ 6} The FCCS caseworker, Margo Robinson, provided information on Father's and
Mother's compliance with the case plan. Robinson testified that the children had been in the
custody of FCCS continuously since the case was opened on May 11, 2012. During that
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time, she stated that Father had not complied with the case plan, and had only visited the
children once, in September 2012. Robinson stated that Father was serving time in prison in
Highland County for possession of heroin, and had been incarcerated nine or ten times on
various charges since the case was opened in 2012. She also noted that for the majority of
the case there was a protection order in place to keep Father away from Mother.
{¶ 7} Continuing, Robinson testified that Mother had substantially complied with the
case plan and visited the children regularly when she was not incarcerated. Robinson
observed during Mother's visits that Mother was bonded with the children and interacted with
them appropriately, and that the children were bonded with her. Robinson also stated Mother
had completed the parenting classes, and had passed all three drug screens she took
between her release from substance abuse treatment in August 2013 and the permanent
custody hearing.
{¶ 8} However, Robinson also voiced several concerns. She noted that Mother had
been incarcerated 12 times since 2012 for probation violations, theft, and child
endangerment, including a span of eight consecutive months during which she was either
incarcerated or in a substance abuse treatment program. Robinson also pointed out that
Mother had not been able to maintain stable housing or steady income. In addition to being
incarcerated, Mother had had four different addresses during the case, and was presently
living in a small house with her elderly grandparents. Mother had not been employed at any
point during the case, and had no immediate job prospects. Further, according to Robinson,
Mother's compliance with the case plan decreased markedly after she had the protection
order against Father dropped in the fall of 2013.
{¶ 9} In addition to Robinson's testimony, the juvenile court heard testimony from the
GAL about the report she prepared regarding the children's best interests. In her report, the
GAL indicated that D.N., who was five years old at the time of the GAL's interview with him,
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said that he still wanted to visit Mother. A.N., who was approximately three and one-half
years old at the time of her interview, indicated that she wanted to live with Mother.
Nevertheless, the GAL reported that Mother had admitted during her interview that she was
not yet prepared to take custody of the children due to unsuitable housing and lack of
income. The GAL's report therefore concluded that because D.N. and A.N. required
permanency and stability in their lives, and because Mother and Father were unable to
provide for the children's basic needs, permanent custody should be granted to FCCS.
{¶ 10} In her testimony, the GAL acknowledged a bond between Mother and children.
She also testified that she had observed some of Mother's visits with the children, and that
they seemed to enjoy being with their mother. Yet, when asked to assess the maturity of the
children, the GAL stated that the children were on target developmentally, but "I don't know
that I'd necessarily rely on their opinions for what's in their best interest." Hence, the GAL
affirmed her recommendation that permanent custody be granted to FCCS.
{¶ 11} On June 13, 2014, the juvenile court granted FCCS's motion for permanent
custody of D.N. and A.N. Father now appeals, raising one assignment of error.
{¶ 12} THE [JUVENILE] COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE BEST
INTEREST OF THE MINOR CHILDREN TO PERMANENTLY TERMINATE THE PARENTAL
RIGHTS OF [FATHER] AND PLACE THE MINOR CHILDREN IN THE PERMANENT
CUSTODY OF FAYETTE COUNTY CHILDREN SERVICES BY NOT APPOINTING A
SEPARATE ATTORNEY TO ADVOCATE FOR THE WISHES OF THE MINOR CHILDREN.
{¶ 13} Before a natural parent's constitutionally protected liberty interest in the care
and custody of his children may be terminated, the state must prove by clear and convincing
evidence that the statutory standards for permanent custody have been met. Santosky v.
Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388 (1982). Appellate review of a juvenile court's
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decision granting permanent custody is limited to whether sufficient credible evidence exists
to support the juvenile court's determination. In re M.H., 12th Dist. Fayette No. CA2012-11-
035, 2013-Ohio-1063, ¶ 16.
{¶ 14} Pursuant to R.C. 2151.414(B)(1), a juvenile court may terminate parental rights
and award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. In re M.H. at ¶ 17. First, the juvenile court must find clear and convincing
evidence that the grant of permanent custody to the agency is in the best interest of the
children, utilizing, in part, the factors of R.C. 2151.414(D). Id. Second, the court must find
that any of the following apply:
[T]he child is abandoned; the child is orphaned; the child has
been in the temporary custody of the agency for at least 12
months of a consecutive 22-month period; or where the
preceding three factors do not apply, the child cannot be placed
with either parent within a reasonable time or should not be
placed with either parent.
Id., citing R.C. 2151.414(B)(1).
{¶ 15} The only aspect of the juvenile court's decision that Father calls into question in
this appeal is the juvenile court's finding with respect to one of the best interest factors. In
determining the best interest of the child, R.C. 2151.414(D)(1)(b) requires the court to
consider "[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." Father contends that the
juvenile court did not properly consider the wishes of D.N. and A.N. because it did not
appoint separate counsel for them when it appeared there was a conflict between the GAL's
recommendation and the children's wishes.
{¶ 16} At the outset, we note that Father elected to leave the permanent custody
hearing before either of the two witnesses were called, and thus failed to raise his objection
to the juvenile court. Generally, a party's failure to draw the lower court's attention to a
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potential error, by objection or otherwise, results in a waiver of the issue for purposes of
appeal, unless we find plain error. In re T.J., 12th Dist. Preble No. CA2008-10-019, 2009-
Ohio-1844, ¶ 34. Invocation of the plain error doctrine in civil cases is strictly limited to 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.'" Id. at ¶ 34-35, quoting Goldfuss v. Davidson, 79 Ohio St. 3d 116 (1997), syllabus.
{¶ 17} In support of his argument that the juvenile court should have appointed
separate counsel for the children, Father observes that Juv.R. 4(A) provides that children
have the right to counsel where they are subject to a juvenile proceeding. He also points to a
case from the Eleventh Appellate District for the proposition that where a guardian ad litem's
recommendations are in conflict with the child's wishes, the child is unrepresented in the
proceedings. See In re Williams, 11th Dist. Geauga Nos. 2002-G-2454 and 2002-G-2459,
2002-Ohio-6588. It therefore appears to be Father's position that the juvenile court could not
have properly considered the wishes of D.N. and A.N. because the children were not properly
represented at the hearing. However, Father's position is based on a misinterpretation of this
point of law.
{¶ 18} Generally, when an attorney is appointed as guardian ad litem, that attorney
may also act as counsel for the child, absent a conflict of interest. In re B.K., 12th Dist. No.
Butler CA2010-12-324, 2011-Ohio-4470, ¶ 19. The Ohio Supreme Court reviewed the
Williams case to which Father refers, and noted approvingly that:
Like other courts that have reached this conclusion, the
[Eleventh Appellate District] recognized that courts should make
a determination, on a case-by-case basis, whether the child
actually needs independent counsel, taking into account the
maturity of the child and the possibility of the guardian ad litem
being appointed to represent the child.
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(Emphasis added.) In re Williams, 101 Ohio St. 3d 398, 2004-Ohio-1500, ¶ 17. In other
words, although it is possible for a conflict to arise between the distinct roles of guardian ad
litem and counsel for the child, neither the Eleventh Appellate District nor the Ohio Supreme
Court suggested, as Father does, that a child has an absolute right to separate counsel when
the guardian ad litem's recommendations conflict with the wishes of the child. Id. at ¶ 18.
{¶ 19} Rather, where the guardian ad litem's recommendations conflict with the wishes
of the child, the juvenile court must, on a case-by-case basis, assess the maturity of the child
and determine whether the child actually needs separate counsel. In re B.K., 2011-Ohio-
4470 at ¶ 19. "Such appointment may be necessary when the child has consistently and
repeatedly expressed a strong desire that differs and is otherwise inconsistent with the
guardian ad litem's recommendations." Id.
{¶ 20} Based on the facts of this case, we find no error in the juvenile court's decision
not to appoint the children separate counsel. While it may be true that A.N. expressed a
desire to live with Mother, and D.N. expressed a desire to visit with Mother, there is no
indication that the desire was strong, or that they expressed the desire consistently or
repeatedly. Id. at ¶ 20. The GAL filed a number of reports over the two years that D.N. and
A.N. were in the custody of FCCS. Most of the reports indicate that the children were well-
adjusted to their foster homes. Indeed, the final report – the same report which indicated that
D.N. still wanted to visit with Mother – suggested that D.N. would rather live with his former
foster parents than with Mother.
{¶ 21} Further, at the time of the permanent custody hearing, D.N. and A.N. were five
years old and three and one-half years old, respectively. Although it is not unusual for
children of such young ages to express a desire to be with their parents, this desire does not
necessarily equate with a desire to remain in the parents' household. See In re G.C. & M.C.,
8th Dist. Cuyahoga No. 83994, 2004-Ohio-5607, ¶ 9. This is particularly so where, as here,
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the consequences of the issues with which the parents are struggling – drugs, lack of
adequate housing, unemployment, incarceration – are not readily understood by young
children. See, e.g., In re Lane, 3d Dist. Marion Nos. 9-03-61 and 9-03-62, 2004-Ohio-2798,
¶ 45 (finding no error in failing to appoint separate counsel where the children lacked the
maturity to make a meaningful representation of their wishes and there was overwhelming
evidence to support the court's findings that termination of parental rights was in the child's
best interests).
{¶ 22} The juvenile court's decision makes clear that it duly considered the testimony
of both Robinson and the GAL that the children appeared to be bonded with Mother. The
juvenile court also noted that A.N. expressed the desire to live with Mother, and D.N. wanted
to continue to visit Mother. Yet, taking into account all of the significant issues experienced
by Mother and Father, the juvenile court found clear and convincing evidence that the
children need a legally secure permanent placement, and that such a placement cannot be
achieved without a grant of permanent custody to FCCS. There is ample credible evidence
in the record to support the juvenile court's determination.
{¶ 23} For the foregoing reasons, Father's single assignment of error is overruled.
{¶ 24} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.
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