In re A.C. , 2014 Ohio 4918 ( 2014 )

[Cite as In re A.C., 2014-Ohio-4918.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: A.C. C.A. No. 27328
D.M.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 12-02-0118
DN 12-02-0119
DECISION AND JOURNAL ENTRY
Dated: November 5, 2014
WHITMORE, Judge.
{¶1} Appellant, Ashley J., (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to her minor
children, A.C. and D.M., and placed them in the permanent custody of Summit County Children
Services (“CSB”). This Court affirms.
I
{¶2} Appellant is the mother of A.C., born August 17, 2006, and D.M., born October 1,
2009. Douglas C. is the father of A.C., and Dewayne M. is the father of D.M. Mother and
Dewayne M. also had another child, I.M., born June 5, 2013. That child’s custody is not at issue
in the current appeal. Both fathers participated to varying degrees in the trial court proceedings,
but neither father has appealed from the judgment of the trial court.
{¶3} A.C. had previously been removed from Mother’s custody upon an adjudication
of dependency in a 2008 case. At that time, there were concerns that Mother was using illicit
2
drugs, had untreated mental health issues, and had left the child in the care of others for extended
periods of time. A.C. was placed with her father, Douglas C., until he was incarcerated for a
burglary conviction in April 2011, at which time Mother regained custody of the child.
{¶4} Nine months later, based again on reports of drug abuse and child neglect, police
conducted a welfare check at Mother’s apartment. It is unclear from the record whether
Dewayne M. resided with the family at this time, although Mother later testified that she had
been in a relationship with him for six years and resided with him at the time of the permanent
custody hearing. Five-year-old A.C. opened the door for the police. Mother was “semi-
unresponsive” and in possession of Percocet that was not prescribed to her. Mother was arrested
and later convicted of aggravated possession of drugs. She was sentenced to 12 months of
community control. Additional charges for child endangerment were dismissed. The children
were taken into custody pursuant to Juvenile Rule 6, but they were returned to Mother upon her
agreement to participate in a voluntary case plan with CSB.
{¶5} During the following month, Mother failed to comply with CSB’s requests for
drug screens or to otherwise begin services under the voluntary case plan. Therefore, CSB filed
a dependency complaint on February 14, 2012. The complaint alleged that Mother continued to
use drugs, even in the presence of her children, and left drugs accessible to them. The complaint
further alleged that Mother often left the children unsupervised or with the maternal grandmother
who also used drugs, and Mother failed to provide for the children’s needs. Five-year-old A.C.
was sometimes left to care for two-year-old D.M. and fed him potato chips. Following an initial
hearing, the trial court permitted the children to remain in Mother’s custody with protective
supervision to CSB.
3
{¶6} At the adjudicatory hearing, Mother and Dewayne M. stipulated to the truth of the
facts in the complaint. On that basis, the trial court found the children to be dependent. At the
dispositional hearing in May 2012, the trial court continued the children in the custody of Mother
subject to the protective supervision of CSB.
{¶7} All three parents were given case plans. Mother’s case plan focused on substance
abuse; counseling to address parenting skills, coping skills, and trauma from domestic violence;
and participating in the Stop the Cycle program. Dewayne M.’s case plan required him to follow
the terms of probation from a September 2011 domestic violence conviction, and it also
addressed substance abuse, anger management, and mental health issues. Douglas C.’s case plan
focused on substance abuse, housing, and abstaining from criminal behavior.
{¶8} Four days after the dispositional hearing, CSB sought emergency temporary
custody of D.M. A.C. was not included in the order because she was with the maternal great
grandmother visiting family in Georgia at the time. The basis for the motion was that Mother
was unable to provide safe and stable housing for the children. Following her conviction for
aggravated possession of drugs, Mother had lost her Akron Metropolitan Housing Authority
housing. She and D.M. began staying with the child’s paternal grandfather, but soon Dewayne
M. and two grandmothers also moved into the home. Mother stated that the new residents were
using drugs and a domestic violence incident occurred between her and Dewayne M. Mother
planned to leave that home and to move into a home with four children and seven adults, one of
whom was a registered sexual offender. Mother refused to accept an available space at a shelter
as an alternative. A safety plan was implemented whereby Mother and D.M. would remain with
the paternal grandfather and the new residents would leave. Notwithstanding this, the paternal
4
grandfather was about to be evicted. On these facts, the trial court granted CSB’s motion for
emergency temporary custody of D.M., pending further hearing.
{¶9} D.M. had a brief, and unsatisfactory,1 placement with a paternal great aunt. He
joined A.C. in a placement with the maternal great grandmother by early July 2012. The agency
retained protective supervision. By August 8, 2012, the maternal great grandmother found
herself overwhelmed by the level of care required by the two young children and requested that
they be removed. She also had conflicts with Mother and Dewayne M. These parents had made
insufficient progress on their case plans to warrant a return of the children, and there were no
other suitable relatives available to assume care of them. The court then granted temporary
custody to CSB, which placed the children in a foster home.
{¶10} Over the course of eight months, all three parents were unsuccessful in their
efforts to address their case plans. For her part, Mother completed a substance abuse evaluation
and was diagnosed with opioid dependence, heroin, but failed to complete the recommendations
in her evaluation. In quick order, she was discharged from two counseling centers for
noncompliance. The guardian ad litem was unable to contact her for three full months. Next,
Dewayne M. was advised to engage in an opioid-specific intensive outpatient program that had
three phases. He reached only the first step of the first phase before he was unsuccessfully
terminated from Oriana House and incarcerated on his suspended sentence for domestic
violence. He tested positive for opioids and marijuana on October 16, 2012. And finally,
Douglas C. was released from prison in November 2012, but failed to accomplish any of the
1
D.M.’s behavior was said to have changed significantly while he was with the paternal
great aunt. He became withdrawn and shy, and he claimed that she burned him with a cigarette.
In addition, there were visitation problems. The aunt permitted Dewayne M. to visit, but not
Mother. This relative later sought legal custody, but both children firmly indicated that they did
not want to live with her.
5
objectives on his case plan. He visited with A.C. only three times, and his last visit was in
March 2013. During those visits, A.C. clung uncomfortably to the caseworker.
{¶11} Accordingly, in January 2013, the trial court denied CSB’s motion for an
extension of temporary custody, finding insignificant progress by the parents on their case plans.
Given these negative developments, CSB moved for permanent custody on April 8, 2013. As the
parties prepared for a permanent custody hearing, the guardian ad litem filed a motion with the
juvenile court, requesting the appointment of an attorney to represent the wishes of the children
because their “wish to return to the custody of [Mother]” conflicted with her view that permanent
custody was in their best interests. The trial court granted the motion and appointed an attorney
to “represent the wishes of the children.”
{¶12} Two months later, Mother seemed to have turned things around. Because she was
pregnant, the caseworker had been able to get Mother readmitted to a substance abuse counseling
program that had previously discharged her upon the condition that she first go to a hospital for
detoxification and a full evaluation. Mother was reluctant, but eventually agreed. Having
admitted to using and experimenting with opioids for five years off-and-on, the hospital released
Mother on Subutex, an opioid substitute for the treatment of addiction in pregnant women.
Mother made progress in the treatment of substance abuse as well as mental health issues and
successfully completed the Touchstone Program, residing there from March 27 to June 27, 2013.
I.M. was born on June 5, 2013. Upon leaving Touchstone, Mother and the infant resided with
the maternal great grandmother, and Mother was on a waiting list for housing. The agency saw
the great grandmother as a supportive family member and her home as safe, clean, and
appropriate. Mother had been sober for six months, as reflected by twice weekly drug tests. She
completed the Stop the Cycle program and planned to continue her substance abuse treatment
6
with aftercare. Visits were expanded and overnight visits were taking place in the great
grandmother’s home on weekends. Mother completed her community control in May 2013 and
had had no legal problems since January 2012.
{¶13} As to Dewayne M., he obtained an early release from prison in July 2013. He
began substance abuse counseling at the end of September 2013, and began a Methadone
program in November 2013, for an opioid addiction. His counselor attempted to focus on
relapse prevention skills, including making better choices and identifying his triggers.
{¶14} With these improvements, CSB withdrew its pending motion for permanent
custody in June 2013. The agency again sought an extension of temporary custody, and the trial
court granted this extension. In September 2013, CSB moved to modify temporary custody to
protective supervision based on Mother’s significant case plan progress. The children were
being prepared to return home and were looking forward to that.
{¶15} By October 2013, however, conditions deteriorated again. Mother was forced to
leave the maternal great grandmother’s home when she accused Mother of theft. Mother
admitted that she took money from her, only disputing the amount. Mother tested positive for
opioids on August 5, 2013, September 9, 2013, and October 21, 2013. Mother’s Touchstone
counselor believed she needed inpatient treatment and Mother agreed, but instead opted for an
outpatient program and began residing with Dewayne M. For his part, Dewayne M. had two
positive drug screens for amphetamines in August 2013. He failed to complete a substance
abuse evaluation, had no independent housing, and had no verifiable source of income.
Consequently, infant I.M. was removed from his parents’ custody, and, on November 5, 2013,
CSB sought permanent custody of A.C. and D.M.
7
{¶16} Following a hearing, the trial court granted CSB’s motion for permanent custody.
Mother has appealed and has assigned three errors for review.
II
Assignment of Error Number One
THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW
WHEN IT GRANTED PERMANENT CUSTODY TO SUMMIT COUNTY
CHILDREN SERVICES DESPITE ITS NOT ASCERTAINING THE WISHES
OF THE CHILDREN FROM EITHER THE CHILDREN OR THE GUARDIAN
AD LITEM[.]
Assignment of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW
WHEN IT GRANTED PERMANENT CUSTODY TO SUMMIT COUNTY
[CHILDREN] SERVICES, AS ITS DECISION WAS CONTRARY TO THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error Number Three
THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW
AND COMMITTED PLAIN ERROR WHEN IT CONSIDERED THE
GUARDIAN AD LITEM’S REPORT IN GRANTING PERMANENT
CUSTODY TO SUMMIT COUNTY [CHILDREN] SERVICES, WHEN THE
GUARDIAN AD LITEM HAD FAILED TO COMPLETE HER DUTIES
UNDER THE LAW[.]
{¶17} Mother’s three assignments of error will be considered together because they are
related. In her second assignment of error, Mother has argued that the judgment granting
permanent custody is against the weight of the evidence because she and Dewayne M.
substantially complied with their case plans. In her first and third assignments of error, Mother
has asserted that the trial court erred in granting permanent custody to CSB because it did not
have evidence of the wishes of the children, and that the trial court erred in considering the report
of the second guardian ad litem because the report did not contain such evidence.
8
{¶18} R.C. 2151.414(B)(1) establishes a two-part test for courts to apply when
determining whether to terminate parental rights and award permanent custody of a child to a
proper moving agency. The statute requires the court to find, by clear and convincing evidence,
that: (1) one of the enumerated factors in R.C. 2151.414(B)(1)(a)-(e) apply, and (2) permanent
custody is in the best interest 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 (1954), paragraph three
of the syllabus.
First Prong of Permanent Custody Test
{¶19} The trial court found that the first prong of the permanent custody test was
satisfied on three alternative grounds: (1) the children had been in the temporary custody of CSB
for at least 12 of the prior 22 months, see R.C. 2151.414(B)(1)(d); (2) the children should not be
placed with Mother because she failed to remedy the conditions that brought the children into
care, see R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E)(1); and (3) the children should not be
placed with Mother or Dewayne M. because they both have chemical dependencies so severe
that they are unable to provide the children with an adequate permanent home, see R.C.
2151.414(B)(1)(a) and R.C. 2151.414(E)(2). In addition, the trial court found that Douglas C.
had abandoned A.C. See R.C. 2151.414(B)(1)(b) and R.C. 2151.414(E)(10).
{¶20} Mother does not directly challenge any of these first prong findings, but rather
claims that the judgment granting permanent custody is against the weight of the evidence
because she and Dewayne M. substantially complied with their case plans. This Court has
repeatedly emphasized that substantial compliance with a case plan, in and of itself, does not
establish that a grant of permanent custody to an agency is erroneous. See, e.g., In re M.Z., 9th
9
Dist. Lorain No. 11CA010104, 2012-Ohio-3194, ¶ 19. Rather, the termination of parental rights
is governed by the provisions of R.C. 2151.414.
{¶21} To the extent, however, that Mother’s claim of substantially completing her case
plan challenges the finding that she failed to remedy the conditions that brought the children into
care, we find the argument to be without merit for two reasons. First, even if true, the first prong
of the permanent custody test would nevertheless be satisfied by either of the alternative findings
made by the trial court and left unchallenged by Mother. See In re M.M., 9th Dist. Lorain Nos.
10CA009744, 10CA009745, 10CA009746, 10CA009747, 2010-Ohio-2278, ¶ 12. Second, the
record does not, in fact, demonstrate that Mother remedied the conditions that brought the
children into care. Although only Mother has appealed, Mother has argued that the decision of
the trial court should be reversed on the basis of case plan compliance efforts by both her and
Dewayne M. Moreover, Dewayne M.’s status is relevant because Mother apparently plans to
reside with him and involve him in parenting the children. Consequently, we consider the case
plan compliance efforts of both Mother and Dewayne M.
{¶22} In addition to considering the efforts towards case plan compliance before the
filing of the motion for permanent custody as set forth above, we consider the efforts during the
four month interval between the permanent custody motion, filed on November 5, 2013, and the
permanent custody hearing on March 11, 2014. Mother tested positive for amphetamines on
November 13, 2013, and for opioids on November 20, 2013, even though she was attending her
second intensive outpatient treatment program at the time and was receiving Methadone.
Mother’s counselor reported that Mother completed the outpatient program, but she was not
compliant with the aftercare program, having missed a recent counseling session and a recent
aftercare session. Mother stated that she believed aftercare was voluntary. Mother had no
10
positive drug test results from November 21, 2013 until the March 11, 2014 permanent custody
hearing. However, the caseworker testified that substance abuse was still a concern because
Mother was not consistently engaged in treatment and because she was residing with someone
who had recently relapsed. For these reasons, Mother’s risk of relapse was said to be high. The
caseworker believed that Mother had not completed the substance abuse component of her case
plan.
{¶23} Mother also failed to complete the requested treatment for mental health issues.
Furthermore, Mother resided in eight different places during the course of this case, often losing
her housing because of drugs, drug-related problems, criminal behavior, or lack of positive
support. She was residing with Dewayne M. at the time of the permanent custody hearing. That
was said to be concerning because Dewayne M. pays the rent, but was currently on probation and
had a January 2014 theft conviction and a March 2014 positive test result for amphetamines.
Mother had no other viable options for housing. Her only income was food stamps. She
believed the felony on her record has kept her from getting a job, but also believed that her
conviction could be expunged in June 2014. Notably, Mother and Dewayne M. list each other
and arguments between them as triggers for their substance abuse. At the hearing, Mother
testified that she believes Dewayne M. has changed, that she now trusts him, and that they no
longer argue as much, although they do have conflicts involving the children. Mother admitted
that his recent positive drug test is cause for concern, but she did not believe his drug use would
continue.
{¶24} As to Dewayne M., the record reflects that, at the time of the hearing, he had
maintained an apartment for three months, which is the longest he had had housing, and he had
been employed by McDonald’s for two months. At the same time, he had not completed anger
11
management or substance abuse treatment as required by his case plan. Most significantly, he
had not remained drug free. After starting a Methadone program in September 2013, for control
of opioids, he had multiple positive drug test results. He tested positive for marijuana, opioids,
and oxycodone on November 4, 2013; for amphetamines on November 5, 2013; for cocaine,
amphetamines, and opioids on November 19, 2013; for amphetamines on December 9, 10, and
18, 2013; and for amphetamines on March 6, 2014. He also had a diluted drug test on February
10, 2014, which indicates that he consumed a lot of liquid before the test and the result is
inconclusive. Dewayne M.’s counselor explained that Dewayne M., currently 28, started using
marijuana at 12, heroin and methamphetamine at 17, and cocaine at 18. His counselor further
indicated that addictions to these drugs are among the more difficult to treat. The caseworker
stated that Dewayne M. was not close to attaining sobriety, nor had he demonstrated an ability to
maintain it. Additionally, Dewayne M. did not obtain a mental health evaluation until January
2014, and had not begun treatment at the time of the permanent custody hearing. Dewayne M.
also had not demonstrated compliance with the requirement of refraining from criminal activity
and following the rules of his probation.
{¶25} The record fails to demonstrate that Mother and Dewayne M. substantially
complied with their case plans. Correspondingly, the evidence clearly and convincingly
indicates that Mother failed to remedy the conditions that caused the removal of the children
from her care. See R.C. 2151.414(E)(1).
Second Prong - Best Interests of the Children
{¶26} In order to determine the best interests of the children, the juvenile court must
consider all relevant factors, including the factors enumerated in R.C. 2151.414(D): the
interaction and interrelationships of the children, the wishes of the children, the custodial history
12
of the children, and the children’s need for permanence in their lives. In re R.G., 9th Dist.
Summit Nos. 24834 & 24850, 2009-Ohio-6284, ¶ 11. In her first and third assignments of error,
Mother has asserted that the trial court did not have evidence of the wishes of the children
regarding placement before it, and that the trial court erred in considering the report of the
second guardian ad litem2 because it did not contain such evidence. For the reasons that follow,
we find these arguments to be without merit.
Interactions and Interrelationships of the Children
{¶27} Both children began attending counseling in the fall of 2012 to address difficulties
from the disruptions of their multiple placements and anger issues. Their counselor testified that
the structure, consistency and behavior modification of the foster home, as well as affection from
the parents and the foster parents, helped the children stabilize and decrease their anger issues.
She explained that the children seemed happy, had improved self-esteem, and exhibited no
anxiety. A.C. was thriving socially and was receiving outstanding grades. D.M. had decreased
his temper tantrums, physical aggression and swearing. He was listening better. The children
had made good progress and the counselor was able to close their cases shortly before the
permanent custody hearing.
{¶28} The children were strongly bonded to Mother and Dewayne M., and they looked
forward to their visits. D.M., in particular, was very attached to his father, Dewayne M., and got
upset when he did not come to visits. The children sometimes had difficulties returning to the
foster home, although they also had a very strong bond with the foster parents as well. D.M. was
also said to be very attached to the foster father. The foster parents were not considering
adoption because of their age.
2
As explained below, two individuals served as guardian ad litem in this matter.
13
{¶29} The children’s counselor testified that Mother and Dewayne M. interacted
appropriately with the children during their weekly visits. The children behaved for them and
responded positively to the parents. Mother affectionately offered praise, hugs, and kisses to the
children. She also implemented suggestions offered by the counselor. The counselor stated that
Dewayne M. was nurturing with the children and had recently done pretty well. However, she
stated that he appeared to be under the influence of something at one or two visits and
dangerously climbed on top of playground equipment on one occasion.
{¶30} Despite this strong bond, the evidence did not demonstrate that the parents had the
ability to provide long-term safety and stability for the children. The caseworker testified that
although the parents provided some consistency during their two-hour visits, she had concerns
about whether such consistency would be maintained if the children were returned home. The
guardian ad litem testified similarly, stating that she had no major concerns about visits, but did
have a concern regarding Mother’s inconsistency in addressing her own case plan appointments.
She wondered if Mother would be able to consistently get the children to school, doctor visits,
and other appointments and for how long. She was also concerned with the lack of case plan
compliance by Dewayne M. In two years, he had made little progress and very recently had a
positive drug test result.
{¶31} All three parents have histories of drug abuse, criminal behavior, and instability.
In addition to a conviction for the aggravated possession of drugs, Mother had only very brief
employment at two fast food restaurants and moved at least eight times during this case. She
admitted to using heroin since approximately 2007. This case represents Mother’s second drug-
related involvement with children services in four years. Her oldest child resided out of her care
longer than with her.
14
{¶32} Dewayne M. has a history of drug abuse, including marijuana, cocaine, heroin,
and methamphetamines, from the age of 12. His criminal record includes convictions for
attempted escape in March 2007, deception to obtain a dangerous drug in December 2009,
violating community control in July 2010, domestic violence in September 2011, and again
violating community control in December 2012. In July 2013, he was granted judicial release
and was placed on community control for two years. Thereafter, on January 23, 2014, he pled
guilty to misdemeanor theft and tested positive for amphetamines just five days before the
permanent custody hearing. At the time of the hearing, he had maintained an apartment for three
months and employment for two months.
{¶33} Douglas C. was convicted of burglary in April 2011, and he was convicted of
theft and possession of drug abuse instruments in December 2013. At the time of the permanent
custody hearing, his whereabouts were unknown.
{¶34} Besides the maternal great grandmother, who apparently moved out of state, the
record does not reveal that the children had significant positive relationships with any other
relatives. In particular, A.C. did not have a positive relationship with her father, Douglas C.,
even though she apparently resided with him from 2008 until 2011. Douglas C. visited with
A.C. just three times and had not seen her in a year.
Wishes of the Children
{¶35} R.C. 2151.414(D)(1)(b) provides that the trial court is 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” in determining the best interest of the children.
{¶36} The purpose of a guardian ad litem for a child in a juvenile custody case is “to
protect the interest of the child and ‘assist a court in its determination of a child’s best interest.’”
15
In re C.B., 129 Ohio St. 3d 231, 2011-Ohio-2899, ¶ 14, citing R.C. 2151.281(B) and Sup.R.
48(B)(1). In this role, the guardian shall “perform whatever functions are necessary to protect
the best interest of the child, including, but not limited to * * * [filing] any motions and other
court papers that are in the best interest of the child[.]” R.C. 2151.281(I). See also Sup.R.
48(B)(1) and (D)(1). Where, however, a conflict exists between what the guardian believes is in
the child’s best interest and the child’s wishes regarding placement, the child is entitled to
independent counsel. See In re Williams, 101 Ohio St. 3d 398, 2004-Ohio-1500, syllabus, and In
re C.B., 129 Ohio St. 3d 231, 2011-Ohio-2899, ¶ 17.
{¶37} In the present case, the guardian ad litem who was initially appointed to this
matter was not an attorney and she recognized such a conflict to exist. She, therefore, filed a
motion seeking the appointment of independent counsel to represent the wishes of the children,
specifically explaining that the children wanted to return to Mother while she believed their best
interests would be served by an order of permanent custody. No one opposed the motion, and
the trial court granted it. At this point, the responsibilities of the guardian ad litem and those of
the attorney for the children became distinct.
{¶38} The role of the guardian ad litem was to investigate the children’s situation and
then ask the court to do what the guardian feels is in the children’s best interest, while the role of
the attorney was to determine and represent the children’s wishes within the bounds of the law.
See In re Baby Girl Baxter, 17 Ohio St. 3d 229, 232 (1985). The children’s attorney represented
the children for nine months before the permanent custody hearing and then participated in the
permanent custody hearing by examining witnesses and presenting arguments to the court. She
did not appeal from the decision of the trial court.
16
{¶39} Three weeks before the permanent custody hearing, the original guardian ad litem
requested permission to withdraw from her appointment in this case because of an employment
opportunity and the trial court permitted her to do so. The trial court immediately appointed
another guardian to represent the best interests of the children. While a change of the guardian
ad litem at such a late date in the proceeding is unfortunate and unusual, Ohio statutes and
juvenile rules appear to anticipate the occasional need for replacement of a guardian ad litem.
See R.C. 2151.281(G)(6) (the guardian ad litem or a replacement shall serve until resignation or
removal by the court) and Juv.R. 4(F) (the guardian ad litem may withdraw only with the consent
of the court upon good cause shown). In any event, the trial court permitted the withdrawal, and
no party opposed the withdrawal or the replacement.
{¶40} The second guardian ad litem served on this case for three weeks. She filed a
written report before the permanent custody hearing. At the hearing, she explained that she
familiarized herself with the case by reviewing prior reports, contacting the caseworker,
observing Mother and Dewayne M. interact with the children at two visits, meeting with Mother
at her residence, and reading much of the unofficial court file. She reported that the visits and
home were generally appropriate. She expressed concerns, however, with the inconsistency of
Mother and Dewayne M. over the course of two years. She explained that during her short time
on the case, she did not have an appropriate opportunity to discuss the children’s wishes with
them. She admitted that she would have liked to have had more time on the case, but also
asserted that she did not need more time in order to be confident in her recommendation. After
concluding her investigation, she felt confident in recommending that permanent custody was in
the best interests of the children.
17
{¶41} In the trial court’s opinion, the judge noted the guardian ad litem’s
recommendation that permanent custody was in the best interest of the children, while also
recognizing D.M’s desire and A.C.’s conflicted desire to return to Mother. On the basis of all
the evidence before her, the trial judge concluded that it was in the best interests of the children
to be placed in the permanent custody of CSB.
{¶42} In her first assignment of error, Mother has argued that the trial court erred in
granting permanent custody to CSB when it did not have evidence of the wishes of the children
as derived from either the children or the second guardian ad litem. For the following reasons,
we find this argument to be without merit.
{¶43} First, Mother has failed to demonstrate prejudice in the failure of the second
guardian ad litem to ask the children their wishes for placement or in the lack of direct testimony
by the children, either in camera or in court. The trial judge acknowledged the children’s desire
to return to Mother in reaching her decision. Their desire to return home was, therefore, part of
the trial court’s consideration in arriving at a determination of the best interests of the children.
At trial, Mother did not proffer any wishes of the children that were different from those found
by the trial judge, nor has she suggested any on appeal. Consequently, Mother has not
demonstrated prejudice in the failure of the second guardian ad litem to inquire of the children or
in the failure of the children to testify directly regarding their wishes for placement.
{¶44} Second, the record establishes that the trial court appointed an attorney to
represent the children for the very reason that they wished to return to Mother and the opinion of
the original guardian ad litem as to their best interests conflicted with that view. The children’s
attorney served as the legal representative of their personal interests and wishes for nine months
and she continued in that role throughout the permanent custody hearing. She never indicated
18
that the children’s wishes had changed, and she did not request to withdraw from the case. The
record, therefore, demonstrates that the children’s wishes were known to the trial court by way of
the original guardian ad litem’s motion for the appointment of independent counsel for the
children and thereafter through their attorney. Accordingly, Mother’s argument regarding a lack
of evidence of the children’s wishes is without merit.
{¶45} In her third assignment of error, Mother has asserted that the trial court committed
plain error in considering the report of the second guardian ad litem because the guardian did not
fulfill her role as set forth under Sup.R. 48, most particularly, to ascertain the wishes of the
children. See Sup.R. 48(D)(13)(c). Mother’s argument does not go to the admissibility of the
report, but rather to its weight. The guardian ad litem’s testimony was subject to cross-
examination by all parties. Mother’s attorney took the opportunity to highlight perceived
deficiencies in her investigation. The trial judge, as trier of fact, was permitted to believe or
disbelieve the guardian’s testimony, to assign it whatever weight she deemed appropriate, and to
consider it in the context of all the evidence before the court. As noted above, independent
counsel was appointed to represent the children’s wishes, and the trial court considered their
wishes in arriving at a full determination of their best interests. Accordingly, Mother’s argument
that the trial court erred in considering the report of the guardian ad litem is not well taken.
{¶46} Finally, we must emphasize that the wishes of the children are but one of the best
interest factors for the consideration of the trial court in determining the best interests of the
children. The fact that the children wished to return to Mother is not dispositive when
considering the children’s best interest. Although the trial court was required to consider each of
the statutory best interest factors, no single factor is given greater weight or heightened
importance and the trial court is required to weigh the totality of evidence on all of the factors to
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reach a best interest decision. In re Schaefer, 111 Ohio St. 3d 498, 2006-Ohio-5513, ¶ 56, 63-64.
See also In re C.G., 9th Dist. Summit Nos. 24099 & 24097, 2008-Ohio-3773, ¶ 28.
Custodial history
{¶47} Absent evidence in the record to the contrary, we presume that A.C. resided with
Mother for two years until she was removed from Mother’s custody in the 2008 dependency
case. A.C. was then placed in the custody of her father, Douglas C., until he was incarcerated in
April 2011, at which time Mother regained her custody. Ninth months later, the present case
regarding both children began on a voluntary basis. After one more month, the agency initiated a
dependency case in juvenile court. The children remained in Mother’s care under the protective
supervision of the agency for four months. The agency then attempted two brief relative
placements before obtaining temporary custody of the children and placing them in foster care.
The children spent five weeks in one foster home. When those foster parents could no longer
meet the behavioral needs of the children, the children were placed in a therapeutic foster home
and they remained there for 16 months.
Legally secure permanent placement
{¶48} There was evidence before the trial court that the children were in need of
stability and there were no suitable friends or relatives willing to provide for their long-term care.
A child center recruiter searched through more than 20 relatives and made many attempts to find
a relative placement for the children. Placement of D.M. with a paternal great aunt was
unsuccessful. That relative volunteered to assume legal custody, but both children indicated that
they did not want to reside with her. The maternal great grandmother also attempted to care for
the children, but was not able to do so on a long-term basis.
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{¶49} At the time of the permanent custody hearing, Mother had accomplished three
months of sobriety, but the caseworker did not believe she was in a better position than when she
had earlier accomplished six months of sobriety and then relapsed. During the previous period,
Mother was taking Subutex, completed an inpatient program, resided with the great
grandmother, and Dewayne M. was incarcerated. Most recently, Mother achieved three months
of sobriety and was taking Methadone, but missed counseling and aftercare sessions, and
declined a recommended inpatient program in favor of residing with Dewayne M. who had
multiple positive drug test results over that same period of time.
{¶50} The children’s counselor believed it would be very difficult for the children to go
to another home, but also explained that if the children were returned to a home that was not
stable or consistent, that they would be adversely affected. The caseworker similarly
acknowledged that the children would experience some grief if permanent custody is granted, but
that their current caregivers are willing to help them through the process and the agency would
also assist if needed.
{¶51} Mother and the children obviously share a strong bond and she clearly loves them,
but it is evident that the trial court’s decision reflects the concern that these children were in need
of safety and stability which could not be achieved absent the grant of permanent custody.
Mother was given many opportunities to maintain or regain custody of her children, but she
failed to take advantage of them. The concerns that initially brought the children to the attention
of the agency have not been resolved. Notwithstanding brief periods of sobriety, the record
reflects that Mother has not demonstrated the ability to sustain stability or consistency. At the
time of the permanent custody hearing, Mother resided with a man who himself has substance
abuse issues and recently tested positive for amphetamines. The evidence fails to demonstrate
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that a legally secure permanent placement can be achieved without a grant of permanent custody
to the agency.
{¶52} Upon careful review of the record, the trial court did not err in finding that
permanent custody is in the best interests of the children. Additionally, the trial court’s judgment
terminating the Mother’s parental rights is not against the weight of the evidence. Mother’s three
assignments of error are overruled.
III
{¶53} Mother’s three 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.
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Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.