In re T.S.

[Cite as In re T.S., 2017-Ohio-482.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
IN THE MATTER OF: : Appellate Case Nos. 2016-CA-26
: Appellate Case Nos. 2016-CA-28
T.S. :
: Trial Court Case No. N44994
:
: (Juvenile Appeal from
: Common Pleas Court)
:
:
:
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OPINION
Rendered on the 10th day of February, 2017.
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STEPHEN K. HALLER, Atty. Reg. No. 0009172, by NATHANIEL R. LUKEN, Atty. Reg.
No. 0087864, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
Attorney for Appellee, State of Ohio
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
Attorney for Appellant, Mother
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, 120 West 2nd Street, Suite 333,
Dayton, Ohio 45402
Attorney for Appellant, Father
.............
HALL, P.J.
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{¶ 1} T.S. (“Mother”) and S.S. (“Father”) appeal separately from the trial court’s
judgment entry terminating parental rights to their minor child, T.S., and awarding
permanent custody to appellee Greene County Children Services (GCCS).
{¶ 2} In his sole assignment of error in this expedited appeal, Father contends the
trial court’s decision is not supported by clear and convincing evidence. For her part,
Mother advances five assignments of error. First, she asserts that the trial court’s decision
is against the weight of the evidence. Second, she claims the trial court erred in failing to
address whether GCCS made reasonable efforts to reunify the family. Third, she argues
that the trial court erred in finding an award of permanent custody to GCCS to be in the
child’s best interest. Fourth, she maintains that the trial court erred in “not discounting” a
guardian ad litem’s recommendation and in not appointing separate counsel for T.S. Fifth,
she contends the trial court erred in not adequately considering T.S.’s wishes and in not
appointing separate counsel to help the child adjudicate those wishes.
{¶ 3} The record reflects that T.S. resided with Mother in September 2013 when
the child initially was adjudicated neglected and dependent. T.S. was four years old at
that time. The adjudication followed a domestic-violence incident in which Father, who
lived separately, assaulted Mother in front of the child. As a result of that incident, an
investigation ensued, resulting in concerns about Mother’s stability and ability to care for
the child. Following the neglect and dependency adjudication, GCCS was granted
protective supervision. (Doc. #28).
{¶ 4} In January 2014, a second neglect and dependency complaint was filed. This
complaint resulted in a second dependency adjudication based on stipulated facts and
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an award of temporary custody to GCCS. (Doc. #69). In connection with both of the
foregoing adjudications, the trial court found that GCCS had made “reasonable efforts” to
prevent T.S.’s removal and continued removal from Mother’s home and to return her to
Mother. (Doc. #28, 69). Approximately one year later, in March 2015, the guardian ad
litem filed a report indicating that Mother had done everything required of her and
recommending that custody be returned to Mother with GCCS retaining protective
supervision. (Doc. #110). Following a hearing, the trial court returned T.S. to Mother’s
custody in April 2015. (Doc. #113). That ruling also included a “reasonable efforts”
determination. (Id.).
{¶ 5} In July 2015, GCCS filed a third dependency complaint. (Doc. #129). The
complaint raised newfound concerns about Mother’s stability and ability to meet T.S.’s
basic needs. It also stated that GCCS had assumed “temporary custody through a
voluntary custody agreement approved by [Mother].” (Id. at 3). The complaint requested
an award of permanent custody to the agency. (Id. at 6).On August 14, 2015, the trial
court granted interim custody to GCCS. (Doc. #140). Its ruling included a finding that the
agency had made “reasonable efforts” to prevent T.S.’s removal and continued removal
from Mother’s home and to return her home. The ruling explained what those efforts
included and why they had failed. (Id. at 4). GCCS’s permanent-custody complaint
proceeded to a three-day hearing before the trial court in January and February 2016.
Following the hearing, the trial court filed a June 30, 2016 judgment entry in which it
awarded GCCS permanent custody of T.S. and terminated Mother’s and Father’s
parental rights. (Doc. #189). This appeal followed.
{¶ 6} A trial court’s decision to grant permanent custody to the State and to
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terminate parental rights must be supported by clear and convincing evidence. In re L.C.,
2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066, ¶ 14. We apply an abuse-of-discretion
standard, and we will not disturb such a decision on evidentiary grounds “if the record
contains competent, credible evidence by which the court could have formed a firm belief
or conviction that the essential statutory elements for a termination of parental rights have
been established.” (Citation omitted.) Id.; see also In re S.S., 2d Dist. Miami No. 2011-
CA-07, 2011-Ohio-5697, ¶ 7. The phrase “abuse of discretion” implies a decision that is
unreasonable, arbitrary, or unconscionable. Id. Therefore, a trial court’s termination of
parental rights cannot be reversed based on a mere difference of opinion or substitution
of our judgment for that of the lower court. Id.
{¶ 7} Having identified our standard of review, we turn now to the issues before
us. We note that “[t]here are two avenues by which an agency can obtain permanent
custody of a child: (1) by requesting it in the abuse, neglect or dependency complaint
under R.C. 2151.353 or (2) by filing a motion under R.C. 2151.413 after obtaining
temporary custody.” In re S.B., 6th Dist. Lucas No. L-08-1453, 2009-Ohio-2290, ¶ 7.
When an agency pursues the second method (by filing a permanent-custody motion
under R.C. 2151.413 after obtaining temporary custody), a two-part test found in R.C.
2151.414 directly applies. See R.C. 2151.414 (addressing the procedure when a children-
services agency files a motion for permanent custody). When an agency pursues the first
method (by requesting permanent custody in the dependency complaint without first
being awarded temporary custody), a slightly different approach applies but results in a
similar analysis. See R.C. 2151.353(A)(4) (looking to the requirements of R.C. 2151.414
to determine whether an agency may be granted permanent custody when that
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disposition is requested in a dependency complaint).
{¶ 8} Here GCCS previously had obtained temporary custody of T.S. But the child
had been returned to Mother before the agency became involved again. GCCS’s most
recent activity involved filing a third dependency complaint and requesting permanent
custody therein, without again formally obtaining temporary custody. (Doc. #129).
Therefore, the procedure set forth in R.C. 2151.353 appears to apply. It authorizes a trial
court to order the following disposition for a dependent child:
(4) Commit the child to the permanent custody of a public children
services agency or private child placing agency, if the court determines in
accordance with division (E) of section 2151.414 of the Revised Code that
the child cannot be placed with one of the child’s parents within a
reasonable time or should not be placed with either parent and determines
in accordance with division (D)(1) of section 2151.414 of the Revised Code
that the permanent commitment is in the best interest of the child. If the
court grants permanent custody under this division, the court, upon the
request of any party, shall file a written opinion setting forth its findings of
fact and conclusions of law in relation to the proceeding.
R.C. 2151.353(A)(4).
{¶ 9} As an initial matter, we note that neither party requested findings of fact or
conclusions of law as authorized by the foregoing provision. In any event, the trial court
filed a judgment consisting of four single-spaced pages containing sufficient findings to
enable appellate review. (Doc. #189). With regard to the finding required by R.C.
2151.414(E), the trial court determined that Father had “demonstrated a lack of
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commitment towards T.S. by failing to regularly support, visit, or communicate with T.S.
when he is able to do so.” (Doc. #189 at 2). The trial court also determined that Father
had abandoned T.S. (Id.). Under R.C. 2151.414(E), both of these findings by the trial
court support a conclusion that T.S. cannot or should not be placed with Father within a
reasonable time. See R.C. 2151.414(E). With regard to Mother, the trial court recognized
that T.S. already had been adjudicated dependent three times while in Mother’s care.
(Doc. #189 at 2). This finding supports a conclusion that T.S. cannot or should not be
placed with Mother within a reasonable time. See R.C. 2151.414(E)(16) (catch-all) and
2151.414(B)(1)(e) (stating that once three dependency findings have been made, the only
relevant issue is the child’s best interest). Finally, the trial court found elsewhere in its
ruling that T.S. needs a legally secure permanent placement, which it opined “cannot be
achieved without a grant of permanent custody” to GCCS. (Doc. #189 at 3). This specific
finding by the trial court reasonably negates the possibility of any belief by the trial court
that T.S. could or should be placed with either parent within a reasonable time.
{¶ 10} The real disputed issue (at least with regard to Father’s lone assignment of
error and Mother’s first and third assignments of error) is the trial court’s best-interest
finding. In his assignment of error, Father cites the statutory best-interest factors and
appears to challenge the trial court’s analysis of them. (Father’s appellate brief at 4-7).
For her part, Mother argues in her first assignment of error that the trial court’s disposition
is against the manifest weight of the evidence because she effectively had satisfied her
most recent case-plan objectives. (Mother’s brief at 5-7). In her third assignment of error,
Mother directly challenges the trial court’s statutory best-interest findings. (Id. at 8-11).
{¶ 11} We turn initially to Mother’s first assignment of error. Her argument is that
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the trial court’s decision is against the weight of the evidence because she had completed
all of her case plan objectives except for a 12-week parenting class, which GCCS added
to the plan six weeks before the final hearing. In particular, Mother argues that she had
maintained safe and stable housing, she had offered to participate in counseling to
address T.S.’s special needs, she had discontinued violent relationships, she had
obtained assistance to deal with her finances, she had passed drug screens, she had
arranged childcare, she had complied with mental-health treatment, and she had not
allowed T.S. to be around unsafe individuals.
{¶ 12} Upon review, we find Mother’s first assignment of error to be unpersuasive.
We do not dispute that, by the time of the final hearing on T.S.’s third and most recent
dependency complaint, Mother at least arguably had satisfied her case plan objectives,
a fact recognized by the guardian ad litem. (Tr. Vol. III at 714-715). That fact, however, is
not dispositive at the best-interest stage. In re T.D., 2d Dist. Montgomery No. 27136,
2016-Ohio-7245, ¶ 12. “ ‘[A] parent’s case plan compliance, while it may be relevant to a
best interest analysis, does not automatically override a trial court’s decision regarding
what is in a child’s best interests.’ ” Id., quoting In re M .B., 4th Dist. Highland No. 15CA19,
2016-Ohio-793, ¶ 59, citing In re N.L., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶
35. This court has recognized that “[w]hen the focus is on the child’s best interest, a trial
court conceivably could terminate parental rights even if a parent completed all of her
case-plan objectives.” In re T.D. at ¶ 12, citing In re M.B. This court also has observed
that “[t]he case plan is simply ‘a means to a goal, but not the goal itself,’ and other
considerations still may justify an award of permanent custody to a children-services
agency.” Id., quoting In re J.H., 12th Dist. Clinton Nos. CA2015-07-014, CA2015-07-015,
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2016-Ohio-640, ¶ 47 (citations omitted); see also In re R.P., 2d Dist. Montgomery Nos.
26744, 26754, 2015-Ohio-4295, ¶ 17 (“While Father and Mother admittedly made
progress on their case plans, that fact is not dispositive of their child’s best interest. The
trial court is best positioned to weigh the various best-interest factors, and an award of
permanent custody to the State can be appropriate even when just one of those factors
supports such a disposition.”).
{¶ 13} Because Mother’s compliance with her most recent case-plan objectives is
relevant to, but not dispositive of, the trial court’s best-interest determination, we will
proceed to Father’s sole assignment of error and Mother’s third assignment of error,
which address the best-interest issue directly.
{¶ 14} The statutory best-interest factors include the following:
(a) The interaction and interrelationship of the child with the child’s parents,
siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child;
(b) The 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;
(c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies
or private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, * * * ;
(d) The child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
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(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
R.C. 2151.414(D)(1).
{¶ 15} In its ruling, the trial court addressed the best-interest factors as follows:
The Court has [reviewed] the relevant factors herein, including those
as set forth in ORC 2151.414(D)(1)(a)-(e) and the Court finds the
interrelationship of T.S. and her foster family in making its decision. T.S.
and her foster family have developed a bond. T.S. and her foster family
began living together in 2013 and continually since 2014. T.S. needs in her
life legally secure permanent placement and that type of placement cannot
be achieved without a grant of permanent custody. As such, GCCS has met
the burden of its motion to terminate [Mother’s] and [Father’s] parental
rights.
(Doc. #189 at 3).
{¶ 16} Although the trial court made few factual findings to support its conclusions,
Mother and Father did not request findings of fact as they could have done pursuant to
R.C. 2151.353(A)(4). Moreover, based on our review of the record, we conclude that it
contains evidence upon which the trial court reasonably could have relied to find, clearly
and convincingly, that awarding GCCS permanent custody was in T.S.’s best interest.
{¶ 17} In arguing to the contrary, Mother asserts that she now has stable housing,
income, and a support system. She also points out that she took parenting classes and a
domestic-violence class. She also has visited T.S. regularly. Mother further asserts that
the trial court could have awarded GCCS temporary custody or could have placed the
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child with an aunt, grandmother, or family friend. (Mother’s appellate brief at 10-11). For
his part, Father contends he and his extended family had substantial contact with T.S.
before GCCS became involved in 2013. Father denies allegations that he was insensitive
to T.S.’s diagnosed post-traumatic stress disorder. He also denies inappropriately
disciplining her during overnight visits. He admits becoming angry and refusing to work
with GCCS for a period of time after his unsupervised visits were suspended. He insists
that he subsequently became part of the case plan, however, and “completed the tasks
he was able to do.” (Father’s appellate brief at 5). Father also notes that he had
supervised visits with T.S. in November and December 2015, before testing positive for
an illegal substance, THC, and not visiting again. (Id.). Father additionally argues that the
guardian ad litem’s report contained inaccuracies concerning Mother. (Id. at 6). Finally,
he suggests that the trial court should have placed T.S. with his sister.
{¶ 18} We find the foregoing arguments to be unpersuasive. As a preliminary
matter, the trial court had no obligation to consider placing T.S. with a relative or family
friend. In re E.S., 2d Dist. Clark No. 2016-CA-36, 2017-Ohio-219, ¶ 59. Unlike biological
parents, other relatives or friends seeking placement are not afforded special status or
presumptive rights. Id. A trial court need not find a child’s relative or family friend
unsuitable before granting an agency permanent custody, and a court is not required to
favor a relative or friend where an award of permanent custody serves the child’s best
interest. Id., quoting In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-5595, ¶ 44.
{¶ 19} In any event, the trial court heard evidence about possibly placing T.S. with
C.L., who has been Father’s girlfriend since 2014. The record contains evidence that
Father struck C.L. in the face outside a nightclub in July 2015 after she caught him with
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another woman. (Tr. Vol. II at 183). The record also contains evidence that C.L. works a
lot and that Father resides with her about half of the time. (Tr. Vol. I at 106-108). Part of
her proposed child-care plan involved relying on her teen-aged daughter. (Id.). The record
also contains evidence that C.L. did not understand and would not discuss T.S.’s special
psychological needs. (Id. at 232-233). GCCS ultimately concluded that she would not be
a good fit for the child. (Id. at 233-234). GCCS also considered two other placement
options: a grandmother and an aunt. When she was under consideration, the
grandmother’s one-bedroom apartment was too small and her husband would not submit
to required fingerprinting. (Id. at 236-237). Finally, the record contains evidence that the
aunt exhibited hostility and uncooperativeness during the pendency of the proceedings
and refused to provide updated information. (Id. at 238-242).
{¶ 20} With regard to Father, the record supports a conclusion that he lacks
stability and other characteristics needed to provide T.S. with a legally-secure permanent
placement. Father has four children in all, does not have custody of any of them, and has
not paid his required child support. (Id. at 198; Tr. Vol. III at 527). The record contains
evidence that he “hasn’t been a stable figure in [T.S.’s life] and has only seen her
sporadically since the case opened.” (Tr. Vol. I at 267). On December 23, 2015, Father
appeared for a supervised visit and tested positive for using illegal drugs. (Tr. Vol. I at
170-171). He subsequently never appeared for another visit. (Id.). Father also has an
extensive criminal history that includes convictions for aggravated burglary, aggravated
robbery, possession of cocaine and crack cocaine, and felony theft. (Tr. Vol. II at 193-
196). In addition, he has convictions for resisting arrest and public intoxication as well as
numerous convictions for driving under suspension. (Tr. Vol. III at 528, 532-533). His most
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recent convictions appear to have been for felony possession of cocaine in January 2015
and public intoxication in July 2015. (State’s Hearing Exhibits; Tr. Vol. III at 528). Father
also admitted having been incarcerated while T.S.’s dependency case was pending
below. (Id. at 552). Caseworker Ann Masters characterized him at the final hearing as
“frequently incarcerated.” (Tr. Vol. II at 196). At the time of the hearing, she had not been
able to verify the stability of Father’s housing. (Id. at 343-344). Father also lacks a driver’s
license and had obtained a job only a week before the final hearing. (Id. at 452-455).
{¶ 21} As for Mother, she gave birth to five children prior to T.S. and voluntarily
relinquished or involuntarily lost custody of all of them. (Id. at 200; Tr. Vol. III at 684-688).
Although she lacks Father’s extensive criminal record, she was convicted of felonious
assault in 2003. (Id. at 199). Caseworker Masters testified that Mother lacks the ability to
manage her bills and personal affairs without assistance. (Id. at 208). According to
Masters, Mother has a learning disability and becomes “anxious” and “overwhelmed” very
easily. (Id. at 230). In general, Mother has a hard time recognizing T.S.’s needs because
she is “busy focusing on daily tasks.” (Id. at 231).
{¶ 22} The record reflects that GCCS initially became involved with Mother and
T.S. in May 2013 after Father punched her in the face and choked her while exchanging
the child. (Tr. Vol. III at 605-606; Tr. Vol. I at 143; Doc. #69 at Stipulated Facts). Following
that incident, Mother moved into a domestic-violence shelter with T.S. (Tr. Vol. III at 605).
While there, Mother exhibited “a pattern of aggressive behavior toward her daughter.” (Tr.
Vol. I at 134). Caseworker Masters testified: “[M]other was having a difficult time caring
for [T.S.] on a daily basis. The police had been called to the Domestic Violence Prevention
Center twice in regards to [Mother’s] aggression towards [T.S.], and we were concerned
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that we would have—or that [T.S.] would have no eyes on her when [Mother] left the
shelter.” (Id.). On that occasion, Mother signed an “agreement of care.” (Id.). T.S. went
into foster care until January 2014, when Mother convinced GCCS that she had the ability
to care for the child. (Id. at 135-139). In particular, Mother obtained counseling and
medication, obtained suitable housing, and demonstrated basic parenting skills. (Id.).
{¶ 23} Shortly after reuniting with T.S., however, Mother started becoming
“overwhelmed” and sought respite care from the child’s former foster parents to give
herself a break from parenting. (Id. at 139-140). Within weeks, another dependency
complaint was filed and GCCS obtained temporary custody of T.S., who returned to the
same foster care. The agency became involved this time after a neighbor called the police
and reported hearing “slapping sounds and screaming and crying from [T.S.] inside
Mother’s apartment.” (Id. at 140). The resulting dependency adjudication was based on
stipulated facts that included, among other things, the following:
In foster care TS was observed yelling and slapping dolls in the face
if they “didn’t behave.” It was reported the child had been having nightmares
about Texas Chainsaws and Freddy and Jason. TS acted out cutting off
limbs from the doll and told the foster parent she watched movies with her
mom. It was also reported and witnessed by the caseworker that TS
becomes visibly upset when she was preparing to visit her mother like
shaking and crying. TS has told this CW several times “I’m scared” and “I’m
scared to go” (to her mother’s) on multiple occasions.
Recently, the police were called to [Mother’s] residence by someone
who reported hearing TS being repeatedly slapped and yelled at, stating
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that “I’m your mother” and “You will call me mommy.” The report claims that
a similar incident had been heard in the recent past, but was not reported.
Later that same day, [Mother] was observed pulling and yanking on TS’s
hair (while braiding it) so hard that the child was crying in pain. When
instructed to stop [Mother] refused and continued doing what she was
doing.
* * * The reporter also indicated that TS was observed sitting in an
overly sexual manner and using words like “sexy” to describe herself.
[Mother] did not find this concerning. This concern has been previously
discussed with [Mother] by the agency after it was reported that TS had
referred to herself as sexy and stated she watched mommy and her
“boyfriend” kissing on the bed.
(Doc. #69 at 2).
{¶ 24} Mother proceeded to work on a new case plan to address GCCS’s multiple
concerns. By March 2015, she had made sufficient progress and had “stabilized” to the
point that GCCS agreed to return custody to her with protective supervision. (Tr. Vol. I at
154, 157-158). Mother was reunited with T.S. in April 2015. (Id. at 158). Although things
initially went well, by July 2015 Mother had accrued a delinquent electric bill in excess of
$1,100. (Tr. Vol. III at 619). Caseworker Masters testified that Mother’s inability to pay her
utility bill was a recurring problem throughout the agency’s involvement in the case. (Tr.
Vol. II at 209-211). On the occasion in July 2015, Mother wrote a bad check to pay the
bill, and her utilities were disconnected when it bounced. (Tr. Vol. II at 211; 326; Tr. Vol.
III at 618-620). As a result, she was evicted from her apartment. (Id.). Around that time,
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Mother lost unspecified survivor benefits she had been receiving, further impairing her
financial situation. (Tr. Vol. I at 159). Mother also began having trouble with her child-care
provider, who reported Mother not supplying food for T.S. and not paying the child-care
provider for her work. (Id. at 160). According to Masters, Mother admitted that she had
started leaving the child with a grandfather who was a drug user. (Id. at 161-162). The
record further reflects that Mother had lost her driver’s license and needed $1,200 to get
it back. (Tr. Vol. III at 646). Despite her lack of a license, she admitted driving with T.S. in
the car. (Id. at 695).
{¶ 25} In July 2015, GCCS filed a third dependency complaint. (Doc. #129). Mother
again began working on case-plan objectives. At some point, she moved in with her
mother in law before obtaining the apartment where she resided at the time of the final
hearing in January and February 2016. When the hearing commenced, Mother had been
living in her most recent apartment for about four months. (Tr. Vol. III at 604-605). When
caseworker Ann Masters visited the apartment, it “didn’t have any furniture.” (Id. at 676).
At that time, T.S. already had been returned to her previous foster home because Mother
had “agreed that she was struggling and that it was in [T.S.’s] best interest to come back
into agency custody.” (Tr. Vol. I at 162).
{¶ 26} Although the guardian ad litem opined at the final hearing that Mother
essentially had completed her most recent case plan objectives, she added: “Well,
working a case plan when you are accountable is one thing. But once you’re turned loose,
what’s going to happen? * * * [W]hat happens when nobody’s looking anymore?” (Tr. Vol.
III at 711). Caseworker Masters expressed more specific concerns. She opined:
[Mother] has been unable to stabilize her own personal life long
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enough for her to care for a child. [Mother] has a pattern of behavior, and
the way it works with [Mother] is she’ll get stable and she’s stable for a
minute, and then something happens, her disability gets in the way and it’s
very hard for her to function and things start falling apart.
***
I’m taking—we are asking for permanent custody because [Mother]
doesn’t have the ability to remain stable long enough to raise a child
successfully.
(Tr. Vol. II at 322).
{¶ 27} By January and February 2016, when the final hearing took place, T.S. had
been in foster care with the same family almost continuously since November 2013
(except for brief periods of time when the child had been returned to Mother). (Tr. Vol. I
at 10). T.S.’s undesirable behaviors had decreased, and she enjoyed being around the
foster parents’ other children. (Id. at 10-11). She referred to them as her brothers and
sisters and had a sibling-like relationship with them. (Id. at 12). T.S.’s foster mother
expressed a desire for her family to adopt the child. (Id. at 24-27).
{¶ 28} Having reviewed the record, we see clear and convincing evidence to
support the trial court’s finding that awarding GCCS permanent custody of T.S. is in the
child’s best interest. Although both parents at times have made substantial progress on
their case plans, T.S.’s interaction with relevant parties, including Mother, Father, and the
foster parents, militates in favor of the trial court’s decision. Although T.S. is of tender
years and has expressed varying wishes, the record reveals that, if anything, she most
often has expressed a desire to reside with her foster parents. T.S.’s custodial history
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also weighs in favor of awarding GCCS permanent custody. Finally, T.S.’s need for a
legally secure permanent placement and the prolonged inability of Mother or Father to
provide such an environment support the trial court’s decision. As set forth more fully
above, T.S., who turned six years old during the pendency of the proceedings below,
already has been adjudicated dependent three times and has spent approximately two
years in the care of a foster family where she is happy and doing well. An award of
permanent custody will enable that family to provide the legally secure permanent
placement that T.S. needs. For all of the foregoing reasons, we overrule Mother’s first
and third assignments of error and Father’s sole assignment of error.
{¶ 29} In her second assignment of error, Mother contends the trial court erred in
not addressing whether GCCS had made reasonable efforts to “reunify the family.” More
specifically, Mother argues that the trial court failed to consider whether the agency made
reasonable efforts to reunify her with T.S. Absent a reasonable-efforts finding, Mother
argues that the trial court was not authorized to grant permanent custody to GCCS. In
connection with her argument, Mother also asserts that GCCS could have placed T.S.
with a suitable relative rather than seeking permanent custody.1 (Mother’s appellate brief
at 7-8).
{¶ 30} Upon review, we find Mother’s second assignment of error to be
unpersuasive. In support of her reasonable-efforts argument, Mother relies on R.C.
2151.419(A)(1), which provides:
(A)(1) Except as provided in division (A)(2) of this section, at any
1We fully addressed the issue of T.S.’s placement with a suitable relative above and
need not repeat that analysis here.
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hearing held pursuant to section 2151.28, division (E) of section 2151.31,
or section 2151.314, 2151.33, or 2151.353 of the Revised Code at which
the court removes a child from the child’s home or continues the removal of
a child from the child’s home, the court shall determine whether 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 has 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. * * *
(Emphasis added).
{¶ 31} As explained above, “[t]here are two avenues by which an agency can
obtain permanent custody of a child: (1) by requesting it in the abuse, neglect or
dependency complaint under R.C. 2151.353 or (2) by filing a motion under R.C. 2151.413
after obtaining temporary custody.” In re S.B., 2009-Ohio-2290, at ¶ 7. When an agency
pursues the second method by filing a permanent-custody motion under R.C. 2151.413
after obtaining temporary custody, the reasonable-efforts statute, R.C. 2151.419(A)(1),
does not directly apply. In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816,
¶ 41-43. But when an agency pursues the first method by requesting permanent custody
in its complaint under R.C. 2151.353, the reasonable-efforts requirement ordinarily does
apply. In re S.B. at ¶ 7, citing R.C. 2151.419(A)(1).
{¶ 32} Here GCCS previously had obtained temporary custody of T.S. But the child
had been returned to Mother before the agency became involved again. GCCS’s most
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recent activity involved filing a third dependency complaint and requesting permanent
custody therein. (Doc. #129). Therefore, a reasonable-efforts finding ordinarily would be
required. The reasonable-efforts statute contains exceptions, however, negating the need
for such a finding. In relevant part, R.C. 2151.419(A)(2) states:
(2) If any of the following apply, the court shall make a determination
that the agency is not required to make reasonable efforts to prevent the
removal of the child from the child’s home, eliminate the continued removal
of the child from the child’s home, and return the child to the child’s home:
***
(e) The parent from whom the child was removed has had parental
rights involuntarily terminated with respect to a sibling of the child pursuant
to section 2151.353, 2151.414, or 2151.415 of the Revised Code or under
an existing or former law of this state, any other state, or the United States
that is substantially equivalent to those sections.
{¶ 33} In the present case, the trial court recognized the existence of the
reasonable-efforts issue. It determined, however, that GCCS was not required to make
the reasonable efforts discussed above because the facts fit within one of the exceptions
in R.C. 2151.419(A)(2). (Doc. #189 at 4). Although the trial court did not specify the
applicable exception, it potentially may have relied on R.C. 2151.419(A)(2)(e) based on
the involuntary termination of mother’s parental rights with respect to one of T.S.’s
siblings. In any event, Mother’s appellate brief fails to mention, much less challenge, this
aspect of the trial court’s ruling.2 As a result, she has not demonstrated error in the trial
2 The record reflects that Mother did not have custody of any of her six children. At least
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court’s decision. We note too that the trial court repeatedly made “reasonable efforts”
findings in this case, which commenced in 2013. The last of those findings appears to
have been made as recently as August 2015 when the trial court granted GCCS interim
custody after the agency’s third dependency complaint. Under these circumstances, we
would find harmless error even if the trial court were required to include a reasonable-
efforts finding in its permanent-custody decision. The record illustrates, and the trial court
repeatedly found, that GCCS did make reasonable efforts to avoid removing T.S. from
Mother’s care and to return the child there. See, e.g., In re C.B.C., 4th Dist. Lawrence
Nos. 15CA18, 15CA19, 2016-Ohio-916, ¶ 78 (noting that a trial court’s failure to make a
“reasonable efforts” finding can constitute harmless error under appropriate
circumstances); In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶ 15 (finding
at most harmless error in trial court’s determination that agency was not required to make
“reasonable efforts” to reunify parent and child, in termination of parental rights
proceeding, where the trial court already had made several “reasonable efforts” findings
earlier in the case). Accordingly, Mother’s second assignment of error is overruled.
{¶ 34} In her fourth assignment of error, Mother contends the trial court erred in
“not discounting” the guardian ad litem’s recommendation and in not appointing separate
counsel for T.S.
{¶ 35} With regard to the first issue, Mother argues that the guardian ad litem, who
recommended permanent custody to GCCS, contravened Sup.R. 48(D)(13) by failing to
make reasonable efforts to become informed about the facts and to contact all parties.
one of those children had been “taken” from Mother by a children services agency and
placed in foster care until reaching age 18. (Tr. Vol. II at 202-203; Tr. Vol. III at 684-685).
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While acknowledging that the rule lacks the “force of law,” she maintains that the trial
court still should have rejected the guardian ad litem’s report and opinions because the
guardian’s conduct fell far below the standards found in Sup.R. 48(D)(13). With regard to
the appointment of counsel, Mother asserts that separate counsel was required for T.S.
because the child’s custody wishes conflicted with the guardian’s.
{¶ 36} We find neither of Mother’s arguments to be persuasive. This court
previously addressed Sup.R. 48(D)(13) and characterized it as “an administrative
directive” that creates no individual rights and lacks the force of law. Corey v. Corey, 2d
Dist. Greene No. 2013-CA-73, 2014-Ohio-3258, ¶ 9. A trial court has discretion to
consider a guardian’s opinion and report even when the guardian does not comply with
the directives found in Sup.R. 48(D)(13).
{¶ 37} Here we find no abuse of discretion in the trial court’s consideration of the
guardian’s recommendation. In her appellate brief, Mother identifies a litany of things that
she believes the guardian either failed to do or failed to do sufficiently. (Mother’s appellate
brief at 13). We note, however, that the guardian was examined at length regarding those
perceived deficiencies and what she did, or did not do, in this case. (Tr. Vol. III at 701-
746). We note too that much of the guardian’s hearing testimony was favorable to Mother.
Among other things, the guardian acknowledged that Mother effectively had completed
her most recent case-plan objectives and had done everything GCCS had asked her to
do. The guardian also acknowledged that some of GCCS’s information about the case
appeared to be inaccurate or incomplete. (Tr. Vol. III at 701-718). On the record before
us, we are unconvinced that the trial court abused its discretion in considering the
guardian’s hearing testimony and written report notwithstanding the perceived
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deficiencies cited by Mother.
{¶ 38} We are equally unpersuaded by Mother’s argument about the appointment
of separate counsel for T.S. The basis for Mother’s argument is that the child’s wishes
regarding permanent custody differed from the guardian’s. Under such circumstances,
Mother contends the appointment of separate counsel to assist T.S. was required. We
disagree that separate counsel was required here.
{¶ 39} Separate counsel must be appointed to represent a child in permanent-
custody cases only when the child consistently has expressed a desire that is inconsistent
with the guardian’s recommendation and when the child is mature enough to understand
the situation. See, e.g., In re J.W., 2d Dist. Clark Nos. 2013-CA-113, 2013-CA-114, 2014-
Ohio-2814, ¶ 38-48. In the present case, T.S. was four years old when GCCS initially
became involved with her. She turned six years old during the pendency of the
proceedings. At different times, T.S. expressed a desire to live with her foster parents.
The child also once expressed a desire to live with Mother, but without the “scary
boyfriends.” Under these circumstances, the trial court did not err in failing to appoint
separate counsel for T.S. Mother’s fourth assignment of error is overruled.
{¶ 40} In her fifth assignment of error, Mother asserts that the trial court erred in
not adequately considering T.S.’s wishes and in not appointing separate counsel to help
the child adjudicate those wishes.
{¶ 41} Insofar as this assignment of error references the non-appointment of
separate counsel, we resolved that issue above. With regard to the trial court’s
consideration of T.S.’s wishes, we see no error. Mother’s entire substantive argument is
as follows:
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In the instant matter, the trial court failed to consider the wishes of
the child. The CASA/guardian ad litem did not list the wishes of the child in
her report. The child was never interviewed by the court, nor did the child
have counsel who could advocate the child’s position. Therefore, the trial
court committed reversible error. Mother respectfully requests that this
Court find the same.
(Mother’s appellate brief at 14).
{¶ 42} Contrary to Mother’s argument, the guardian ad litem filed multiple reports
addressing T.S.’s wishes. The guardian ad litem also testified about the child’s wishes at
the permanent-custody hearing. In its ruling, the trial court stated that it had considered
the factors set forth in R.C. 2151.414(D)(1)(a)-(e). (Doc. #189 at 3). Notably, those factors
include “[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.” R.C. 2151.414(D)(1)(b).
Because the foregoing provision authorized the trial court to ascertain the child’s wishes
through the guardian ad litem, the trial court was not required to interview the child.
Although the trial court did not explicitly discuss the child’s wishes in its ruling, the record
reflects that it possessed and considered information about those wishes, which were
inconsistent in any event. For the foregoing reasons, Mother’s fifth assignment of error is
overruled.
{¶ 43} Having overruled all assignments of error raised by Mother and Father, we
affirm the judgment of the Greene County Common Pleas Court, Juvenile Division.
.............
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FROELICH, J., and WELBAUM, J., concur.
Copies mailed to:
Stephen K. Haller
Nathaniel R. Luken
Hilary Lerman
Marcy A. Vonderwell
Hon. Adolfo A. Tornichio