In Re J.W.

{¶ 1} J.W. Sr. ("appellant-father" or "father") appeals the juvenile court's decision and entry granting permanent custody of his eight-year-old son, J.W. Jr., to Franklin County Children Services ("FCCS" or "agency"). The decision was issued August 29, 2006. J.W. Jr. ("appellant-child" or "child"), by and through counsel, appeals the judgment separately. Counsel for appellant-child filed a motion to consolidate Nos. 06AP-1017 and 07AP-15, and on January 17, 2006, we granted the motion by judgment entry on the basis that both appeals arise under the same transaction or occurrence and common nucleus of operative facts.

{¶ 2} The child was born February 11, 1999. Just prior to his fourth birthday, an agent for the Ohio Youth Advocate Program ("OYAP") filed a complaint in juvenile court alleging the child was abused, neglected, and dependent, under R.C. 2151.031(C) and (D), 2151.03(A)(2), and 2151.04(C). The allegations in the complaint were related by a children's hospital physician who found several bruises on the child's body, in various stages of healing, about which the doctor concluded, "Abuse can't be ruled out." The child's mother, who is now estranged, had an apparent drug problem as well as several criminal convictions for, inter alia, child endangerment and loitering for prostitution.

{¶ 3} On March 11, 2003, the matter came for hearing before a juvenile court magistrate. The juvenile court adopted the magistrate's decision finding that the child was abused under R.C. 2151.031(C) and (D). The charges of neglect and dependency were dismissed. The court granted temporary court custody ("TCC") to FCCS, adopted the agency's case plan, and ordered an annual review to evaluate the parents' progress toward completing the plan. The purpose of the agency's case plan was to rectify parenting deficiencies so that the child could be reunited with his parents. The case plan required both parents to attend various types of counseling, anger management, and housekeeping-type workshops, and to maintain full-time employment. OYAP was supposed to assist the parents in each area, including employment assistance. Additionally, the mother was required to seek drug counseling and to submit to drug screening.

{¶ 4} During the time the child was in TCC, his father visited him regularly, and the record demonstrates that the father substantially complied with the case plan until its scheduled annual review on January 8, 2004. The mother did not regularly visit her son.

{¶ 5} Following the annual review hearing, the magistrate issued a new decision acknowledging the father's progress but nonetheless recommending that TCC be extended six months, on the basis that the father had not yet secured appropriate housing or full-time employment. The extended period of TCC would have expired on or about July 11, 2004.

{¶ 6} On March 1, 2004, FCCS filed a motion seeking permanent court custody ("PCC") under R.C. 2151.413 et seq.

{¶ 7} FCCS's motion languished in the trial court for more than two years. The court granted at least 13 continuances, citing a variety of circumstances to justify the extraordinary delay: failure of service on the parties (mainly with respect to the mother), the judge's availability, appointing counsel for the parties, change of the guardian ad litem ("GAL"), and GAL illness.

{¶ 8} Shortly before the final hearing, the father got engaged. The father's fiancée, Sharon Dixon, is a retired nurse who lives in Oklahoma. Ms. Dixon testified at the PCC hearing that she had made plans for her fiancé and his son to move to Oklahoma where she could share her three-bedroom home. Ms. Dixon also testified that she believed one of her adult sons could help her fiancé find steady work. Id.

{¶ 9} The motion for PCC was finally heard on August 29, 2006. The court found that the father had completed all but two requirements in the case plan, but nonetheless granted FCCS's motion for permanent custody of the child.

{¶ 10} The father filed a timely notice of appeal with this court, raising a single assignment of error for our review:

The trial court's decision terminating appellant's parental rights to his child was not supported by clear and convincing evidence.

{¶ 11} Counsel for the child also filed a timely notice of appeal, raising the following assignments of error:

[I] The trial court's decision to terminate [J.W. Jr.'s] familial relationship with his father was not supported by clear and convincing evidence.

[II] R.C. 2151.414(B)(1)(d), permitting the court to grant permanent custody of [J.W. Jr.] to [FCCS] simply because he had been in temporary custody of the agency for twelve of a consecutive twenty-two month period, is unconstitutional.

[III] The trial court erred in granting permanent custody of [J.W. Jr.], to [FCCS] because [J.W. Jr.] was only in the legal custody of FCCS for ten months.

{¶ 12} The child's first assignment of error is substantially similar to the father's sole assignment of error, and because both are based on the same facts, we address them together.

{¶ 13} The right to parent one's children and maintain and pursue intimate familial associations are fundamental rights guaranteed by the Due Process Clause of the United States Constitution. See, e.g.,Troxel v. Granville (2000), 530 U.S. 57, 66,120 S. Ct. 2054, 147 L. Ed. 2d 49; Moore v. E. Cleveland (1977),431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531. Ohio recognizes these well-established fundamental rights as well. See, e.g.,In re Hayes (1997), 79 Ohio St. 3d 46, 48,679 N.E.2d 680; In re Murray (1990), 52 Ohio St. 3d 155, 157,556 N.E.2d 1169; In re Day (Feb. 15, 2001), Franklin App. No. 00AP-1191, 2001 WL 125180. Indeed, the Supreme Court of Ohio analogizes the termination of parental rights as "``the family law equivalent of the death penalty.'" In re Hayes at 48, 679 N.E.2d 680, quoting In re Smith (1991),77 Ohio App. 3d 1, 16, 601 N.E.2d 45.

{¶ 14} Consequently, the United States Supreme Court holds that before any court may completely and irrevocably sever a parent's rights in their natural child, "due process requires that the State support its allegations by at least clear and convincing evidence." Santosky v. Kramer (1982), 455 U.S. 745, 747-748, 102 S. Ct. 1388, 71 L. Ed. 2d 599;see M.L.B. v. S.L.J. (1996), 519 U.S. 102, 118,117 S. Ct. 555, 136 L. Ed. 2d 473. The General Assembly codified the clear-and-convincing standard in R.C. 2151.414 et seq., which has been upheld by the Supreme Court of Ohio and followed by this court. See, e.g., In re William S. (1996),75 Ohio St. 3d 95, 97, 661 N.E.2d 738; see, also, In re Day. Thus, we review the record of the juvenile court's proceedings to determine whether the court complied with Ohio's statutory requirements and whether its decision was supported by clear and convincing evidence. See In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368, 18 OBR 419, 481 N.E.2d 613.

{¶ 15} Slightly less stringent than "proof beyond a reasonable doubt," the clear-and-convincing standard carries the highest burden of proof that can be required in a civil proceeding — defined as more than a mere preponderance of the evidence, clear and convincing evidence is that which is sufficient to establish a firm belief or conviction as to the facts sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469, 53 Ohio Op. 361, 120 N.E.2d 118, paragraph three of the syllabus.

{¶ 16} PCC proceedings are governed by R.C.2151.414, which provides a two-pronged, multipart analysis that must be proven, by clear and convincing evidence, before a court can issue an order terminating a parent's rights under R.C.2151.413. See In re Day. The court must hold a hearing to determine whether permanent custody is in the best interests of the child. See R.C. 2151.414(A). If the court finds, by clear and convincing evidence, that permanent placement is in the child's best interest, the court must also find that one of the circumstances in R.C. 2151.414(B) applies before a motion seeking PCC can be granted. R.C. 2151.414(B) has its own set of factors for determining whether the child can or cannot be placed with his parents within a reasonable period of time. See R.C. 2151.414(E).

{¶ 17} Determining the child's "best interest" is a prerequisite to making findings to terminate parental rights. The best-interest criteria are outlined in R.C. 2151.414(D):

(1) 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;

(2) 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;

(3) 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 ending on or after March 18, 1999;

(4) 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;

(5) Whether any of the factors in divisions (e)(7) to (11) of this section apply in relation to the parents and child.

{¶ 18} The trial judge here carefully considered subsections (1), (2), and (3). The trial court correctly found that father and son were "bonded." The court also found that the child had bonded with his foster family. Further, the court found that the child's wishes, as related by the GAL and the child's attorney, were such that he clearly wanted to be with his father. These findings indicate the trial court's consideration of the first two prongs of the best-interest analysis under R.C. 2151.414(D).

{¶ 19} The trial court made findings as to the child's custodial history. The child had been in the custody of FCCS for over three and one-half years at the time of the final hearing on the PCC motion. During that time, the child's mother had lost interest in seeking custody of the child. J.W. Sr. had, however, visited his son as often as permitted during that period of time and had maintained the bonding with J.W. Jr., perhaps even increased it.

{¶ 20} Some analysis of R.C. 2151.414(D)(4) can be inferred from the trial court's opinion, but the factor is particularly problematic in J.W. Jr.'s case. The child had been in two separate foster homes while he was in the custody of FCCS. Because the child had acted out in the first foster-care home, he had been transferred to a second foster-care home. The family in the second home was not expressing an interest in adopting J.W. Jr. This situation meant that upon the granting of the PCC motion, J.W. Jr. was going to have his ties to his father cut and was going to have his ties to the second foster family cut. No one had expressed an interest in adopting the child as of the date of the final hearing.

{¶ 21} If the testimony of Ms. Dixon, J.W. Sr.'s fiancée, is to be believed, a secure permanent home was immediately available for the child and his father without the granting of PCC of the child. The trial court did not question Ms. Dixon's credibility, but discounted her resolution of the placement of the child because Ms. Dixon had had a relationship with J.W. Sr. for a period of approximately six months, and the couple had been engaged for only about two weeks as of the date of the final hearing on the PCC motion. The problem with the proof of this factor — R.C. 2151.414(D)(4) — is the primary reason that we hold that the proof of the need for the granting of PCC did not meet the standard of clear and convincing evidence required both by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by the pertinent Ohio statute.

{¶ 22} The fifth factor required by R.C.2151.414(D), regarding 2151.414(E)(7) to (11), involves criminal convictions, withholding of medical treatment, substantial risk of harm due to alcohol or drug abuse, abandonment of the child, and termination of parental rights with respect to siblings. None of the factors are present with respect to J.W. Sr.

{¶ 23} The Supreme Court of Ohio has indicated that a juvenile court shall consider all relevant factors in determining the best interests of a child, not just the factors enumerated in R.C. 2151.414(D). See In re C.F.,113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816. However, none of the other factors described by the trial court strengthen the proof here to the point of proof by clear and convincing evidence.

{¶ 24} In light of our findings with respect to the proof, we sustain the father's sole assignment of error and the child's first assignment of error.

{¶ 25} In light of our ruling on these two assignments of error, we do not address either the trial court's ruling on R.C. 2151.414(B)(1)(d) or the remaining assignments of error because they become moot issues.

{¶ 26} This case presents a structural concern that was not addressed in an assignment of error but may be significant for further cases. Juv.R. 4(A) requires that an abused or allegedly abused child be represented by counsel. The precise words of Juv.R. 4(A) are:

Assistance of counsel. Every party shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent. These rights shall arise when a person becomes a party to a juvenile court proceeding. When the complaint alleges that a child is an abused child, the court must appoint an attorney to represent the interests of the child. This rule shall not be construed to provide for a right to appointed counsel in cases in which that right is not otherwise provided for by constitution or statute.

{¶ 27} Frequently, the juvenile courts in central Ohio have appointed attorneys to serve as guardians ad litem with the understanding that the guardian will serve to both protect the interest of a child as required by Juv.R. 4(B) and represent the interests of the child under Juv.R. 4(A). Given the mandate of Juv.R. 4(A), the better course would be for the juvenile court to expressly appoint an attorney in dual roles as a guardian ad litem and as an attorney for the child. If the attorney finds that the two roles conflict, then a separate attorney and guardian ad litem can be appointed. The roles of attorney and guardian ad litem can conflict in situations in which the child, especially an allegedly abused child, wants something that conflicts with what the guardian ad litem feels is in the child's best interests.

{¶ 28} In J.W. Jr.'s case, no separate attorney was appointed to represent the child for over one and one-half years. We cannot say that the delay impacted the outcome. We also cannot say from the record before us whether the original guardian ad litem served in both roles or viewed herself as serving in both roles. However, the record before us would be better and more in compliance with Juv.R. 4(A) if the trial court had expressly made the dual appointment to represent J.W. Jr. from the beginning of the proceedings.

{¶ 29} As indicated above, the child's first assignment of error and the father's sole assignment of error are sustained. The child's remaining assignments of error are rendered moot. The judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is vacated, and the cause is remanded for further appropriate proceedings.

Judgment vacated cause remanded.

BROWN, J., concurs.

SADLER, P.J., dissents.