In re A.S.

[Cite as In re A.S., 2022-Ohio-1861.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: [A.S.], :
: No. 21AP-249
(C.P.C. No. 18JU-5657)
[J.S. Mother, :
(ACCELERATED CALENDAR)
Appellant]. :
In re: [A.S.], :
: No. 21AP-259
(C.P.C. No. 18JU-5657)
[P.H. Father, :
(ACCELERATED CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on June 2, 2022
On brief: Yeura R. Venters, Public Defender, and Timothy E.
Pierce, for mother J.S. Argued: Timothy E. Pierce.
On brief: April F. Campbell, for father P.H.
On brief: Steven Thomas D. Potts, for Franklin County
Children Services. Argued: Steven Thomas D. Potts.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
DORRIAN, J.
{¶ 1} Appellant, J.S., mother of A.S., a minor child, and appellant, P.H., father of
A.S., appeal the April 22, 2021 judgment entry of the Franklin County Court of Common
Pleas, Division of Domestic Relations, Juvenile Branch, which granted permanent custody
Nos. 21AP-249 and 21AP-259 2
of A.S. to appellee Franklin County Children Services ("FCCS"). For the following reasons,
we reverse.
I. Facts and Procedural History
{¶ 2} On February 15, 2018, prior to the filing of the complaint in the matter before
us, FCCS filed a complaint in a separate case alleging that A.S. was a dependent child
pursuant to R.C. 2151.04(C).1 In the case before us, on May 10, 2018, FCCS filed a
complaint in which FCCS alleged A.S. was a dependent child pursuant to R.C. 2151.04(C).
On May 14, 2018, the juvenile court magistrate filed an order granting temporary custody
of A.S. to FCCS. On May 17, 2018, the magistrate reappointed Brian Herzberger, who
previously served as A.S.'s guardian ad litem ("GAL")2 from his appointment in the prior
dependency case, to be A.S.'s GAL effective May 14, 2018.3
{¶ 3} On July 29, 2018, Herzberger filed a GAL report in which he stated he
interviewed or contacted the FCCS caseworker, J.S., P.H., and the attorneys for J.S. and
P.H. Herzberger did not state that he visited A.S. or viewed A.S.'s interactions with either
1 Pursuant to Evid.R. 201, a court, including an appellate court, may take judicial notice of a fact not subject
to reasonable dispute that is " 'either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.' " See State ex rel. Brime v. McIntosh, 10th Dist. No. 19AP-70, 2019-Ohio-4019, ¶ 28, quoting
Evid.R. 201(B); State v. Murphy, 10th Dist. No. 12AP-952, 2013-Ohio-5599, ¶ 23; State ex rel. Coles v.
Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, ¶ 20, citing Liberty Mut. Ins. Co. v. Rotches Pork Packers,
Inc., 969 F.2d 1384, 1388 (2d Cir.1992), quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991)
(citing Liberty Mut. Ins. Co. for the proposition that a " 'court may take judicial notice of a document filed in
another court "not for the truth of the matters asserted in the other litigation, but rather to establish the fact
of such litigation and related filings" ' "). We take judicial notice of the fact that a complaint alleging A.S. was
a dependent child pursuant to R.C. 2151.04(C) was previously filed in the juvenile court in case No. 18JU-1801
on February 15, 2018. The juvenile court assigned a magistrate, who granted emergency custody of A.S. to
FCCS on the same date. On May 16, 2018, the magistrate filed a decision and entry granting dismissal without
prejudice of the complaint and noting that the complaint was being refiled in this case under case No. 18JU-
5657.
2 We note the Rules of Juvenile Procedure define a "[g]uardian ad litem" as "a person appointed to protect the
interests of a party in a juvenile court proceeding." Juv.R. 2(O).
3We take judicial notice of the juvenile court's March 29, 2018 entry in case No. 18JU-1801 appointing
Herzberger to be A.S.'s GAL effective February 16, 2018.
Nos. 21AP-249 and 21AP-259 3
J.S. or P.H. at visitations. On August 8, 2018, FCCS filed a case plan.4 On July 30, 2018,
the magistrate held an adjudicatory hearing on the dependency complaint. On August 15,
2018, the magistrate filed a decision and entry finding A.S. is a dependent minor child as
defined under R.C. 2151.04(C). On August 31, 2018, FCCS filed a semiannual review.
{¶ 4} On January 11, 2019, FCCS filed a motion for an extension of temporary
custody. On February 14, 2019, FCCS filed a semiannual review. On April 23, 2019, the
magistrate held a hearing and filed findings of fact and conclusions of law, finding FCCS
made reasonable efforts to prevent the continued removal of A.S. from the home. On
April 23, 2019, Herzberger filed a second GAL report, in which he stated he interviewed or
contacted an FCCS caseworker supervisor, J.S., P.H., and J.S.'s and P.H.'s attorneys.
Herzberger stated in his report that he visited J.S. at the home she shared with P.H. on
February 9, 2019. Herzberger noted in his report that he had not observed visitation
between A.S. and J.S., but would schedule a time to observe them forthwith. Herzberger
did not state that he visited A.S. at his placement at the time.
{¶ 5} On April 25, 2019, FCCS filed an amended case plan, which was approved
and adopted by the court on May 6, 2019. Under the amended case plan, J.S. was required
to complete the following by January 31, 2020: (1) alcohol and drug assessment, complete
random drug screens, and comply with any recommendations from the assessment;
(2) successfully complete a mental health assessment, including an assessment of
parenting skills and domestic violence, and comply with any recommendations;
(3) complete a psychiatric assessment for medication and comply with recommendations;
(4) sign all releases of information on request; (5) complete a parenting education program
and demonstrate acquired skills with A.S.; (6) comply with rules of probation; (7) attend all
visitations; and (8) be available for monthly announced and unannounced contact with
FCCS. J.S. was also expected to be able to meet all of A.S.'s basic needs. Under the same
case plan, P.H. was required to complete the following by January 31, 2020: (1) alcohol and
4We note that in the case plan filed August 8, 2018, J.S. was required to maintain housing free from physical
hazards supported by a legal source of income sufficient to meet A.S.'s needs; complete alcohol and other drug
assessment and follow all recommendations; complete random drug screens through American Court
Services; complete a mental health assessment, including an assessment on parenting skills, and follow all
recommendations; complete an assessment for domestic violence and follow all recommendations; sign all
releases of information requested by FCCS; be available for announced and unannounced home visits; and
attend all scheduled visitations with A.S. In the same case plan, P.H. was required to establish paternity and
establish a relationship with A.S.
Nos. 21AP-249 and 21AP-259 4
drug assessment, complete random drug screens, and comply with any recommendations
from the assessment; (2) successfully complete a mental health assessment and comply
with any recommendations; (3) sign all releases of information on request; (4) complete a
parenting education program and demonstrate acquired skills with A.S.; (5) maintain
stable housing and income for his family, including providing proof of housing, utilities,
and income; and (6) be available for monthly announced and unannounced contact with
FCCS. P.H. was also prohibited under the terms of the case plan from having any future
incidents of domestic violence. On May 6, 2019, the magistrate filed an entry granting
FCCS's motion for extension of temporary custody and adopting the April 25, 2019
amended case plan as an order of the court.
{¶ 6} On July 5, 2019, FCCS filed a motion for a second extension of temporary
custody. On August 1, 2019, the magistrate held an annual review hearing at which the
July 5, 2019 motion for a second extension of temporary custody was dismissed and the
court sua sponte granted a second extension of temporary custody. At the August 1, 2019
hearing, the magistrate required Herzberger to file an updated GAL report, noting that "a
report does need to be filed with the [annual] review." (Aug. 1, 2019 Tr. at 8-9.) On
August 2, 2019, Herzberger filed a third GAL report. In his third report, Herzberger stated
he had previously interviewed or contacted J.S., P.H., and an FCCS caseworker supervisor.
Herzberger did not describe the nature of his contacts with any of the individuals listed in
the report or otherwise note he had observed A.S. at his placement at the time or with either
P.H. or J.S. at visitations.
{¶ 7} On September 5, 2019, FCCS filed a semiannual review. On December 10,
2019, FCCS filed a motion for permanent custody5 of A.S. pursuant to R.C. 2151.413,
2151.414, and Juv.R. 14 and 19. On January 27, 2020, Herzberger filed a fourth GAL report.
On March 17 and September 23, 2020, FCCS filed semiannual reviews. On October 9,
2020, the juvenile court held a pretrial hearing on the motion for permanent custody. On
November 5, 2020, the juvenile court filed a pretrial order in which it ordered Herzberger
to file a GAL report on or before seven days prior to the hearing on the permanent custody
5"Permanent custody" is defined as "a legal status that vests in a public children services agency or a private
child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption,
and divests the natural parents or adoptive parents of all parental rights, privileges, and obligations, including
all residual rights and obligations." R.C. 2151.011(B)(31).
Nos. 21AP-249 and 21AP-259 5
motion and to comply with In re Swisher, 10th Dist. No. 02AP-1408, 2003-Ohio-5446,
¶ 47-48, Sup.R. 48(D), Loc.Juv.R. 27, and R.C. 2151.281.
{¶ 8} On January 26, 2021, the juvenile court held a second pretrial hearing on the
December 10, 2019 motion for permanent custody. At the second pretrial hearing, the
juvenile court reminded Herzberger that he needed to update the GAL report and noted
some children as young as A.S. were able to express their own wishes regarding placement.
On February 4, 2021, Herzberger filed a final GAL report. In his report, Herzberger stated
his last contact with J.S. was in February 2020; he attempted to contact J.S. by telephone
three times in February 2021, but had not received a response. Herzberger stated he
contacted P.H., but did not provide the date for the contact. Herzberger observed A.S. with
his current foster caregiver via videoconference, but did not provide a date for the contact
or state that he spoke with A.S. outside of the presence of the foster caregiver. Herzberger
did not state in his report that he observed A.S. with either J.S. or P.H. at visitations.
{¶ 9} On February 11, 2021, the juvenile court held a hearing on FCCS's
December 10, 2019 motion for permanent custody. At the hearing, Luann Layman, a social
worker for FCCS, testified that she had been assigned to A.S.'s case since December 31,
2018. According to Layman, A.S. had not been in either parent's custody since February 14,
2018, approximately two months before A.S.'s first birthday. On that date, police
responded to an emergency at J.S.'s home. Police found J.S. to be mentally unstable and,
as a result of the disturbance, removed A.S. from the home and placed A.S. in FCCS's
custody.
{¶ 10} For the next eight months following the disturbance, A.S. was placed with
C.S., A.S.'s half-sister. Due to C.S.'s inability to meet A.S.'s special needs, A.S. was removed
and placed in a treatment foster home for approximately six months. The foster parents
were unable to safely meet A.S.'s behavioral and developmental needs while keeping their
other foster children safe, so A.S. was moved to a second treatment foster home. At the
time of the permanent custody hearing, A.S. continued to reside at the second foster home,
where he had been for approximately one year and nine months. A.S.'s current foster
parents were interested in adopting A.S. if adoption became available.
{¶ 11} Layman testified that A.S. was very attached to and bonded with everyone in
his current foster home. A.S. did not ask Layman about J.S. or P.H. According to Layman,
Nos. 21AP-249 and 21AP-259 6
A.S. was having all needs met and doing very well in his current foster home. Layman
attributed this in part to A.S.'s natural growth and development over time, but also because
of the structure in the foster home and the additional services A.S. was receiving.
{¶ 12} According to Layman, A.S. knew who his parents were. A.S. was particularly
excited to see P.H. at visitations. A.S. responded well to P.H. because P.H. was very joyful
and happy with A.S. Layman testified there were many times A.S. was happy to see J.S. at
visitations. However, A.S. also sometimes struggled with J.S. or was more reserved during
visitations with J.S. because of her demeanor. Layman did not believe there was much of a
bond between A.S. and either J.S. or P.H., other than A.S.'s knowledge of who they were.
{¶ 13} Layman testified that several services are linked for A.S., including trauma
focused counseling, occupational therapy, and Help Me Grow through his school to
participate in a special needs preschool. He is also linked with the county developmental
disabilities board. Layman testified A.S.'s diagnosis is basic as he is only three years old,
but he has developmental delays and is a little behind on speech. Layman testified she did
not know how many doctors or therapy appointments P.H. was invited to and that she never
notified him of any such appointments. Layman further testified that A.S. gets occupational
therapy at school and special needs services at preschool, and "[h]e would have been invited
to all of the school appointments" by the school. (Feb. 11, 2021 Tr. at 188.) It was
determined A.S. did not need physical therapy or speech therapy although they are
monitoring his speech. The occupational therapy is not an appointment but, rather,
"something that happens in conjunction with his special needs preschool. It's not for a
parent to attend." (Feb. 11, 2021 Tr. at 192.) A.S. also had difficulty regulating emotions,
especially when upset, which resulted in dangerous or damaging actions such as "throwing
himself down and banging his head or even banging his [head] full force into a wall."
(Feb. 11, 2021 Tr. at 141.)
{¶ 14} Layman testified that J.S.'s case plan was designed to address concerns
related to drugs and alcohol, mental health, appropriate parenting, and meeting A.S.'s
needs. Layman stated that J.S. had not successfully maintained compliance with any
portion of the case plan for an extended duration. J.S. had started many of the services, but
had been inconsistent with providers. J.S. also failed to take drug and alcohol screens or
otherwise maintain sobriety. Layman stated that J.S. had been linked with sufficient
Nos. 21AP-249 and 21AP-259 7
resources to comply with case plan objectives but had not consistently availed herself of
those resources to maintain compliance. From April 2018 to January 2020, J.S. had
completed 38 of 151 alcohol and drug screens. Of the 38 completed screens, 25 screens
were positive for marijuana, and several screens reflected irregular creatinine levels.
{¶ 15} J.S. completed several assessments, including drug and alcohol assessments
at mental health providers, but did not regularly comply with recommendations from such
assessments. When the case plan was adopted, J.S participated in psychiatric services with
Lower Lights. J.S. also participated in counseling services at Concord Counseling, but was
discharged from the program without successful completion in March or April 2019 after
approximately three to four months. J.S. participated in comprehensive services at Ohio
Guidestone beginning in January or February 2020 and was discharged from the program
without successful completion in March 2020. J.S. began participating in services at Access
Ohio in May 2020 and remained with them at the time of the permanent custody hearing.
J.S. was compliant overall with the program except for some gaps in contact for weeks at a
time.
{¶ 16} Layman testified that J.S. was generally consistent in providing releases,
staying in contact with Layman, and participating in visitations with A.S., with several
notable exceptions. Overall, Layman described J.S.'s behavior during visitation as
appropriate. There were times that FCCS staff approached J.S. about smelling of alcohol
during visits. However, even in those instances where she smelled of alcohol, J.S. generally
did not display combative or erratic behavior, or otherwise behave in a way that would
necessitate FCCS ending the visitation. J.S. responded appropriately to A.S.'s behavior,
including by getting on the floor to prevent A.S. from being hurt by headbanging or by
throwing himself on the floor. FCCS staff worked with both J.S. and P.H. to educate them
about A.S.'s behavior.
{¶ 17} In 2018 and early 2019, J.S. was consistently visiting A.S. every week. At the
end of 2019, J.S. missed several visitations, resulting in her seeing A.S. approximately every
other week. In recent months before the permanent custody hearing, there had been
challenges with providing releases and participating in meetings due to J.S.'s housing
instability. J.S. stopped coming to visitations at FCCS's offices after a visitation on
November 5, 2020. At that visitation, J.S. arrived late and smelling of alcohol. J.S. was very
Nos. 21AP-249 and 21AP-259 8
hostile with FCCS staff and aggressive toward P.H. J.S. voluntarily agreed to leave the
visitation and then did not return at the next scheduled visitation. FCCS removed J.S. from
the visitation schedule with A.S. on January 5, 2021; J.S. did not participate in another
visitation until February 2, 2021. On February 2, 2021, J.S. participated in a virtual
visitation with A.S. and FCCS staff via videoconferencing technology. Layman described
the visitation as challenging due to technical difficulties. J.S. ended the visit early after 10
to 15 minutes.
{¶ 18} Layman testified that J.S. had been living with P.H., who had been paying for
housing in a series of residences. There were other issues related to stability of J.S.'s
housing, including break-ins and "domestic concerns" which sometimes resulted in either
P.H. or J.S. leaving the residence for a few days at a time. (Feb. 11, 2021 Tr. at 159.) At the
time of the permanent custody hearing, J.S. no longer resided with P.H. and was homeless.
Layman testified that J.S. failed to complete the parenting course as required by the case
plan. Layman opined that J.S. had not demonstrated good parenting because, although it
was clear she loved A.S., J.S. was unable to consistently demonstrate that she was able to
meet both her and A.S.'s needs in part due to ongoing concerns with mental health and
sobriety.
{¶ 19} Next, Layman testified regarding P.H.'s compliance with his case plan
requirements. P.H. completed a drug assessment and screenings, which were required due
to his admitted use of marijuana. According to Layman, there were domestic dispute
concerns involving P.H., including situations in which he was the aggressor as well as
situations in which he was the victim. P.H. was required to participate in a mental health
assessment, attend counseling, and comply with any recommendations from the
counseling. P.H. had been inconsistent with attending counseling; he attended two to three
months of appointments, but had not successfully completed any program. P.H. had not
established himself enough with a provider to determine if they would make a
recommendation for him to have additional domestic violence specific counseling. P.H.
completed the required parenting course.
{¶ 20} Layman received a voicemail from P.H.'s mother informing Layman that P.H.
was obtaining new housing on or about February 5, 2021 and providing her with the
address. Layman did not learn that P.H. had actually secured housing until the date of the
Nos. 21AP-249 and 21AP-259 9
permanent custody hearing. According to Layman, P.H. was very consistent in attending
visitations with A.S., missing a minimal number of visitations. When FCCS permitted, P.H.
participated in two visitations by videoconference during the COVID-19 restrictions.6 P.H.
was responsive to A.S.'s special needs during visitations. Layman testified she talked with
P.H. and J.S. and worked through some of A.S.'s acting out behavior and headbanging. In
response to a question whether P.H. and J.S. "do a pretty all right job of managing the --
the head banging at the visits," Layman testified "[y]es," and "mom did a pretty good job
with that, mom and dad both do." (Feb. 11, 2021 Tr. at 157.) She also noted that A.S. is
older now and learning some techniques of self-regulation and it is easier to reason with a
child of three and one-half than a one or two year old child. When P.H. had the opportunity
to spend longer amounts of time with A.S., he would decline those opportunities. P.H.
struggled to entertain A.S. for longer than one hour. Layman explained that some of the
difficulty with visitations was due to restrictions put into place by the COVID-19 pandemic:
Things have changed as far as what parents can do in visitation
for safety and health of everybody, since we reopened visitation
in August of 2020. So there's not a lot -- there's no food and
there's nothing brought in from the outside. So it challenges
visits, but as a parent, you need to be able to parent your child
24/7.
(Feb. 11, 2021 Tr. at 166.) Layman testified there were concerns with P.H.'s comprehension
and cognitive abilities. According to Layman, P.H. disclosed that "he doesn't think like
other people think and that he doesn't read well." (Feb. 11, 2021 Tr. at 170.)
{¶ 21} FCCS investigated placing A.S. with a maternal aunt who expressed interest
in obtaining custody of A.S. FCCS, in cooperation with Pennsylvania authorities, began a
home study with A.S.'s aunt as part of Interstate Compact on the Placement of Children
("ICPC") process. However, A.S.'s aunt declined to move forward with the process. A.S.'s
maternal grandparents also began to participate in the ICPC process while they determined
whether or not they would be able to care for A.S. In 2020, A.S.'s maternal grandparents
moved from South Carolina to Pennsylvania without notifying FCCS. In January 2021,
maternal grandmother remained undecided on whether or not she would be interested in
pursuing placement.
6As noted below, FCCS was not able to conduct visits by videoconference from March 16 through August 1,
2020, and due to COVID-19 restrictions did not facilitate any visits between P.H. and A.S.
Nos. 21AP-249 and 21AP-259 10
{¶ 22} Layman testified that A.S. was in need of a legally secure permanent
placement. According to Layman, there was never a period of time where FCCS was able
to return A.S. to the custody of either parent. A.S. had been in FCCS's custody for over two
years. Layman opined that granting permanent custody for purposes of adoption was in
A.S.'s best interests because A.S. needed the stability and consistency inherent in a
permanent placement. Layman testified that a change to J.S.'s housing circumstances
would not alter her conclusion that granting permanent custody was in the best interests of
A.S. because J.S. had not completed and maintained the other requirements of the case
plan. Layman did not recommend placement with J.S. because J.S. had issues of instability
regarding mental health, sobriety, housing, and income in addition to ongoing concerns
with J.S.'s ability to parent A.S. and consistently provide for A.S.'s special needs. Layman
testified that reunification with P.H. was not recommended because P.H. had only recently
achieved sobriety and secured housing. Further, Layman expressed concerns related to
P.H.'s mental health or cognitive delays because it impacted P.H.'s ability to meet his own
needs independently in addition to complications with A.S.'s special needs and behaviors.
{¶ 23} On cross-examination, Layman testified that prior to the COVID-19
pandemic, P.H. brought clothing, gifts, and food for A.S. at visitations. For a period of time
at the beginning of the pandemic, from March 16 through August 1, 2020, FCCS stopped
allowing visitation. During that time, FCCS did not facilitate visitation between A.S. and
either P.H. or J.S. over videoconferencing because FCCS was not equipped to use
videoconferencing technology at the time. FCCS did not establish contact between P.H.
and A.S.'s current foster parents. Instead, FCCS mailed pictures of A.S. to P.H. and J.S. at
their various residences. P.H. consistently attended visitations both before the pandemic-
related restrictions on in-person visitations were implemented and after they were lifted.
Once visitations resumed, FCCS provided parents with coloring pages and crayons for visits
but did not permit parents to bring items to the visitations.
{¶ 24} Layman testified that P.H. completed all genetic testing and releases of
information requested by FCCS. In 2019, P.H. was linked with a mental health counseling
service but was terminated from the program for failing to attend sessions. In December
2020, P.H. became reinvolved with mental health counseling. According to Layman, P.H.
was scheduled for five counseling sessions, which were held virtually due to COVID-19
Nos. 21AP-249 and 21AP-259 11
pandemic restrictions on in-person counseling sessions. The counseling service cancelled
two of the five sessions through no fault of P.H. Of the three sessions he could attend, P.H.
attended one full session, participated in about half of one session, and completely missed
one session.
{¶ 25} Layman testified that A.S.'s behaviors were challenging although they had
become more manageable over time as A.S. learned coping skills. P.H. was sometimes able
to help manage A.S.'s behavior and calm A.S. down during visitations. Layman stated it
was fairly common for a child of A.S.'s age to be focused on the people around him instead
of asking about other people who were not present at the time, such as P.H. and J.S. A.S.
currently receives occupational therapy through his school. Layman stated it was possible
for P.H. to take A.S. to a special needs school that provided occupational therapy.
{¶ 26} When asked by the court whether there were any concerns with placing A.S.
with P.H., Layman testified "[s]imilar concerns [parenting to address and learn A.S.'s
special needs and to be able to meet his needs consistently]. He's just newly established a
sobriety where he's been clean for a few -- couple months now. Inconsistency with stability
with his menta -- mental health or cognitive delays to be able to meet his own needs
independently let alone meet a child's needs and to meet the child's needs that has special
needs and special behaviors. He's just established housing, but I haven't been able to verify
that so that's new. Housing been instable -- unstable for periods of time over these last few
years." (Feb. 11, 2021 Tr. at 242.)
{¶ 27} Next, Herzberger testified that he was the GAL both on this case and the prior
case involving A.S. that had been dismissed. Herzberger stated he was in compliance with
his GAL training requirements and had received training on recent changes to the Rules of
Superintendence for GALs. In the course of investigating the matter, Herzberger reviewed
all court filings, discovery provided by FCCS, and the case plan. Herzberger had recently
spoken with Layman, P.H.'s mother, and P.H., but not J.S.
{¶ 28} Herzberger testified he was not able to observe A.S. with his current foster
family in person due to concerns regarding the ongoing COVID-19 pandemic, but was able
to participate in a virtual visit with A.S. and at least one of A.S.'s foster parents. According
to Herzberger, A.S. appeared to be bonded with one of the foster parents. Herzberger did
not observe anything that raised concerns regarding the care A.S. was receiving from the
Nos. 21AP-249 and 21AP-259 12
second foster family. However, Herzberger admitted he did not witness A.S.'s interactions
with all the members of A.S.'s foster family.
{¶ 29} Herzberger stated he had been unable to contact J.S. immediately prior to the
permanent custody hearing. Herzberger was concerned about J.S.'s inconsistency in
complying with the case plan requirements. Furthermore, Herzberger was concerned
about J.S.'s ability to respond to A.S.'s special needs and J.S.'s lack of suitable housing.
{¶ 30} Herzberger was able to contact P.H. via videoconferencing prior to the
permanent custody hearing. Herzberger virtually viewed P.H.'s new residence, which he
described as "wonderful." (Feb. 11, 2021 Tr. at 249.) He stated that the residence looked
almost brand new, had several safety features, and would meet both P.H.'s needs and those
of a child. Herzberger acknowledged that P.H. was complying with screening requirements,
staying in touch with FCCS, and had expressed commitment to playing with A.S. and taking
A.S. to the doctor when needed. However, Herzberger believed, just based on his
conversations with P.H., that P.H. was not in a position to recognize A.S.'s special needs or
to meet A.S.'s needs in general. Herzberger also was concerned with P.H.'s ability to pay
for housing considering the cost of his current residence relative to his income. Yet, he also
testified that P.H. indicated he planned to apply for Section VIII.
{¶ 31} No family members contacted Herzberger about a potential alternative legal
placement. Herzberger had no doubt that both J.S. and P.H. loved A.S. According to
Herzberger, A.S. was not able to express any wishes regarding permanent custody or
reunification. Herzberger opined that A.S. was in need of a legally secure and permanent
placement. As a result, he recommended the court grant the motion for permanent
custody.
{¶ 32} On cross-examination, Herzberger admitted he had not visited A.S. when he
was in C.S.'s custody. Herzberger also had not observed any of P.H.'s visitations with A.S.,
either before or after the beginning of the COVID-19 pandemic. Herzberger stated that
P.H.'s new residence appeared to have ample space, working utilities, and suitable
furniture. Herzberger had no difficulty contacting P.H., and described him as "cooperative
and polite." (Feb. 11, 2021 Tr. at 255.) Herzberger stated P.H. might have had some issues
with case plan compliance, but observed that P.H. "tried his best as he is able to with the
developmental issues that he has." (Feb. 11, 2021 Tr. at 255.)
Nos. 21AP-249 and 21AP-259 13
{¶ 33} Herzberger testified he spoke with J.S. "a fair amount" at the beginning of the
case, but did not have frequent communication with her after the adjudicatory hearing in
2o18. (Feb. 11, 2021 Tr. at 257.) However, Herzberger admitted that since 2018, he only
had two face-to-face conversations with J.S. outside of contact at the court. Herzberger
never observed any of J.S.'s visitations with A.S. Herzberger was aware of J.S.'s
engagement with services at Access Ohio and stated that his recommendation might have
been different if J.S. had been engaging with services earlier in the history of the case.
{¶ 34} Herzberger seemed to suggest to the court that another option was to
continue the child in the placement, however the court explained it was not able to grant
another extension as it had been almost three years since the complaint was filed. The court
ultimately opined it was in A.S.'s best interest for the motion for permanent custody to be
granted.
{¶ 35} Next, J.S. testified that A.S. went to live with C.S. upon being removed from
her custody. J.S. admitted she was an alcoholic and stated that she was working with her
case managers at Access Ohio to address her alcoholism. J.S. stated she had a "license" to
allow for use of marijuana, which she admitted to smoking. (Feb. 11, 2021 Tr. at 80.) J.S.
testified she would not drink alcohol or use drugs again. J.S. also stated she would never
drink around A.S. again. J.S. was diagnosed with bipolar disorder, post-traumatic stress
disorder, and anxiety. J.S. planned to receive medication for bipolar disorder after the
permanent custody hearing.
{¶ 36} J.S. lived with P.H. at four different residences from the time A.S. was
removed until she became homeless, approximately December 2020. At the time FCCS
obtained custody of A.S., J.S. lived with P.H. at a residence on Siebert Avenue in Columbus.
After leaving the residence on Siebert Avenue, J.S. testified she and P.H. lived at residences
on East Main Street, Napoleon Avenue, and Frebis Avenue in Columbus. Although J.S.
acknowledged she was unemployed and had been homeless for the last four months, she
had funds and was seeking housing. J.S. did not have a driver's license and used buses for
transportation.
{¶ 37} At her visitations with A.S., J.S. brought food and toys. J.S. denied ever
drinking before visitations with A.S., stating that she only sometimes drank the day before
visitation. According to J.S., FCCS did not provide her with notice of A.S.'s appointments
Nos. 21AP-249 and 21AP-259 14
with doctors or return several phone calls. J.S. stated FCCS's decision to temporarily
discontinue visitation with A.S. due to the COVID-19 pandemic hurt her ability to bond
with A.S. during that time.
{¶ 38} J.S. did not believe Herzberger gained enough information about her to
render an opinion, specifically citing Herzberger's single visit to her residence. J.S. stated
she believed it was in A.S.'s best interest to be returned either to P.H. or her. When asked
whether she was able to have A.S. returned to her on the day of the permanent custody
hearing, J.S. stated "[i]f I had a home, absolutely could and I have a team in the city that's
unbelievable from churches to doctors that all know each other and have walked a mile with
me to get me where I'm at today." (Feb. 11, 2021 Tr. at 303.)
{¶ 39} Next, P.H. testified that he entered into a relationship with J.S.
approximately five years before the permanent custody hearing. According to P.H., J.S.
had been aggressive toward him and filed domestic violence charges against him. P.H. had
never been convicted, but had been ordered to stay away from J.S. P.H. was living with J.S.
but was not present when A.S. was removed and placed into FCCS's custody. According to
P.H., J.S. was drinking alcohol every day before A.S. was removed and was responsible for
causing issues that resulted in their being removed from four different residences. P.H.
ended the relationship with J.S. in December 2020.
{¶ 40} P.H. admitted to smoking marijuana with J.S. over the course of their
relationship. However, P.H. stated he quit smoking entirely in fall 2020 because his
"concern is that little boy need[s] to come home with me; that's my main concern, that little
boy." (Feb. 11, 2021 Tr. at 46.) P.H. completed paternity testing, an alcohol and drug
assessment, and parenting classes; he was scheduled to participate in counseling with
North Central Mental Health following the permanent custody hearing.
{¶ 41} When A.S. was removed by FCCS, P.H. lived with J.S. at a residence on
Siebert Avenue. After moving out of the residence on Siebert Avenue, P.H. testified that he
lived with J.S. at residences on Mound Street, Napoleon Avenue, and Cleveland Avenue.
Thereafter, P.H. stayed with his mother to save money. In February 2021, P.H. moved into
a residence with two bedrooms, where he lived by himself. P.H. paid for his own utilities
and spent $835 per month on rent. P.H. testified he had received Social Security Disability
Insurance ("SSDI") payments for his entire life and was receiving approximately $1,185 per
Nos. 21AP-249 and 21AP-259 15
month at the time of the permanent custody hearing. P.H. did not have a driver's license
and he used buses and taxis for transportation.
{¶ 42} P.H. testified he attended visitation with A.S. every Monday and, prior to
COVID-19 pandemic-related restrictions, brought food, toys, and clothing to give to A.S. at
visitations. P.H. used to be able to visit with A.S. for two hours when both he and J.S.
attended visitation, but FCCS had reduced his visitation time to one hour after J.S. stopped
coming to visitations. P.H. was unaware of any special needs that A.S. might have, but
agreed that A.S. had temper tantrums. P.H. was uncertain of whether A.S. was in preschool.
If he had custody of A.S., P.H. testified he would take A.S. to preschool and would be able
care for any special needs A.S. might have. P.H. also testified that he would get A.S. on
Social Security Disability and take him to appointments. Furthermore, if A.S. was returned
to P.H.'s custody, P.H. would not allow J.S. to be unsupervised around A.S. until J.S.
complied with case plan requirements, including taking prescribed medication and
screening for drugs and alcohol.
{¶ 43} On March 16, 2021, FCCS filed a semiannual review. On April 22, 2021, the
juvenile court filed a judgment entry granting permanent custody of A.S. to FCCS.
II. Assignments of Error
A. J.S.'s Appeal
{¶ 44} J.S. appeals and assigns the following four errors for our review:
[I.] The lower court plainly erred when it failed to apply and
enforce R.C. 2151.2187(D) and (I) with respect to the GAL for
A.S.
[II.] The lower court plainly erred by admitting the testimony
of the GAL.
[III.] Attorneys for Mother J.S. provided ineffective assistance
of counsel in violation of her rights under the Sixth and
Fourteenth Amendments of the United States Constitution
and Article I, Sections 1, 10, and 16 of the Ohio Constitution
and R.C. 2151.352.
[IV.] The lower court's award of permanent custody to the
agency was not supported by clear and convincing evidence
and was against the manifest weight of the evidence.
7Given the context, as well as the supporting arguments in J.S.' brief, we believe appellant J.S. is referring to
R.C. 2151.281(D) and (I) and analyze the same.
Nos. 21AP-249 and 21AP-259 16
B. P.H.'s Appeal
{¶ 45} P.H. appeals and assigns the following three errors for our review:
I. The trial court's decision to grant permanent custody of A.S.
to Franklin County Children Services should be reversed,
because the record does not support the trial court's finding
that A.S. could not be placed with his father within a
reasonable time.
II. The trial court's decision to grant permanent custody of
A.S. to Franklin County Children Services should be reversed,
because it was not in A.S.'s best interest to do so.
III. The trial court's decision should be reversed because the
Supreme Court of Ohio's tolling provision extended the time
periods required by R.C. 2151.414.
III. Applicable Law—Parenting Is a Fundamental Right
{¶ 46} "The right to parent one's child is a fundamental right protected by the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and Article
I, Section 16, of the Ohio Constitution." In re L.W., 10th Dist. No. 17AP-586, 2018-Ohio-
2099, ¶ 6. See also In re Murray, 52 Ohio St.3d 155, 157 (1990), quoting Stanley v. Illinois,
405 U.S. 645, 651 (1972) ("[T]he right to raise one's children is an 'essential' and 'basic civil
right.' "). "Parents have a 'fundamental liberty interest' in the care, custody, and
management of the child." Id. at 157, quoting Santosky v. Kramer, 455 U.S. 745, 753
(1982). "Permanent termination of parental rights has been described as 'the family law
equivalent of the death penalty in a criminal case.' Therefore, parents 'must be afforded
every procedural and substantive protection the law allows.' " In re Hayes, 79 Ohio St.3d
46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991).
Nos. 21AP-249 and 21AP-259 17
{¶ 47} However, the state has broad authority to intervene to protect children from
abuse and neglect.8 In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, citing R.C. 2151.01.
An award of permanent custody, which terminates parental rights, is an " 'alternative of last
resort and is only justified when it is necessary for the welfare of the children.' " In re C.G.,
10th Dist. No. 13AP-632, 2014-Ohio-279, ¶ 28, quoting Swisher, 2003-Ohio-5446, ¶ 26.
IV. J.S.'s First and Second Assignments of Error—GAL
{¶ 48} In her first and second assignments of error, J.S. argues the juvenile court
committed plain error by admitting the testimony of the GAL and by failing to apply R.C.
2151.281(D) and (I) to the GAL. In the course of our analysis of J.S.'s first and second
assignments of error, we will also address P.H.'s arguments raised in support of his first
and second assignments of error as they relate to deficiencies in the GAL's reports and
testimony.
A. Applicable Law and Rules
{¶ 49} R.C. 2151.281, which governs the appointment of a GAL, requires a juvenile
court to "appoint a guardian ad litem, subject to rules adopted by the supreme court, to
protect the interest of a child in any proceeding * * * held pursuant to [R.C.] 2151.414." R.C.
8On appeal, a court of appeals will not reverse a juvenile court's determination that it was in the best interest
of a child to grant a motion for permanent custody unless such determination is against the manifest weight
of the evidence. L.W. at ¶ 8. The juvenile court's determination must be supported by clear and convincing
evidence. R.C. 2151.414(B)(1). " 'Weight of the evidence concerns "the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other. * * * Weight is not a
question of mathematics, but depends on [the evidence's] effect in inducing belief." ' " (Emphasis deleted.)
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). See In re C.G., 10th Dist. No. 13AP-632,
2014-Ohio-279, ¶ 31. Thus, in reviewing a judgment under the manifest weight standard, a court of appeals
weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines
whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley at ¶ 20.
In conducting its review, a court of appeals must make every reasonable presumption in favor of the juvenile
court's findings of fact and judgment. L.W. at ¶ 8; Eastley at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 80 (1984), fn. 3. " '[I]f the evidence is susceptible of more than one construction, we must
give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the
trial court's verdict and judgment.' " L.W. at ¶ 8, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988).
Moreover, a court of appeals must recognize that "[t]he discretion which the juvenile court enjoys in
determining whether an order of permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceedings and the impact the court's determination will have on the
lives of the parties concerned." (Internal quotations omitted.) In re W.D., 10th Dist. No. 09AP-589, 2009-
Ohio-6903, ¶ 34, quoting In re A.D., 10th Dist. No. 08AP-238, 2008-Ohio-3626, ¶ 8, quoting In re Hogle,
10th Dist. No. 99AP-944 (June 27, 2000).
Nos. 21AP-249 and 21AP-259 18
2151.281(B)(1). R.C. 2151.281(D) governs a court's responsibility regarding the
appointment of a GAL and provides as follows:
The court shall require the guardian ad litem to faithfully
discharge the guardian ad litem's duties and, upon the
guardian ad litem's failure to faithfully discharge the guardian
ad litem's duties, shall discharge the guardian ad litem and
appoint another guardian ad litem. The court may fix the
compensation for the service of the guardian ad litem, which
compensation shall be paid from the treasury of the county,
subject to rules adopted by the supreme court.
R.C. 2151.281(I), which governs a GAL's responsibilities and duties, provides:
The guardian ad litem for an alleged or adjudicated abused,
neglected, or dependent child shall perform whatever
functions are necessary to protect the best interest of the
child, including, but not limited to, investigation, mediation,
monitoring court proceedings, and monitoring the services
provided the child by the public children services agency or
private child placing agency that has temporary or permanent
custody of the child, and shall file any motions and other court
papers that are in the best interest of the child in accordance
with rules adopted by the supreme court.
{¶ 50} The Ohio Rules of Juvenile Procedure, which were recently amended
effective July 1, 2020, provide that a juvenile court "shall appoint a guardian ad litem to
protect the interests of a child * * * in a juvenile court proceeding when * * * [a]ny
proceeding involves allegations of abuse, neglect, or dependency, voluntary surrender of
permanent custody, or termination of parental rights as soon as possible after the
commencement of such proceeding." Juv.R. 4(B)(5).9
{¶ 51} Article IV, Section 5(A)(1) of the Ohio Constitution provides the Supreme
Court of Ohio with general superintendence over all the courts in the state. In accordance
with this authority, the Supreme Court originated the Rules of Superintendence for the
Courts of Ohio, including the courts of common pleas and the divisions thereof. Sup.R. 1.
See Arlington Bank v. Bee, Inc., 10th Dist. No. 10AP-41, 2010-Ohio-6040, ¶ 16; In re D.E.,
10th Dist. No. 20AP-83, 2021-Ohio-524, ¶ 72. The Rules of Superintendence, which were
9We note that prior to July 1, 2020, Juv.R. 4(B) provided in pertinent part that a juvenile court "shall appoint
a guardian ad litem to protect the interests of a child * * * in a juvenile court proceeding when * * * [a]ny
proceeding involves allegations of abuse or neglect, voluntary surrender of permanent custody, or termination
of parental rights as soon as possible after the commencement of such proceeding." 2019 Juv.R. 4(B)(5).
Nos. 21AP-249 and 21AP-259 19
recently amended effective January 1, 2021,10 contain certain specified provisions that
apply in domestic relations and juvenile court cases where the court appoints a GAL. See
2020 Sup.R. 48; 2021 Sup.R. 48.11
{¶ 52} The Rules of Superintendence provide a nonexhaustive list of duties that
GALs are required to perform. 2021 Sup.R. 48.03(D), which was in effect when Herzberger
prepared his final GAL report and testified at the permanent custody hearing, provided the
following with respect to the duties of a GAL:
Unless specifically relieved by the court, the duties of a
guardian ad litem shall include, but are not limited to, the
following:
(1) Become informed about the facts of the case and contact
all relevant persons;
(2) Observe the child with each parent, foster parent, guardian
or physical custodian;
(3) Interview the child, if age and developmentally
appropriate, where no parent, foster parent, guardian, or
physical custodian is present;
(4) Visit the child at the residence or proposed residence of
the child in accordance with any standards established by the
court;
(5) Ascertain the wishes and concerns of the child;
10We have previously noted that "[s]ignificant changes were made" in the January 1, 2021 amendments to the
Rules of Superintendence governing GALs, "including the deletion of the GAL's discretion to not perform
duties 'unless impracticable or inadvisable' and to 'make reasonable efforts' to perform the duties." D.E. at
¶ 73, fn. 15. We further noted the amended rules, in addition to imposing "different and additional
requirements," now also "provide the GAL shall perform the duties '[u]nless specifically relieved by the court,'
thereby giving the discretion to the court, not the GAL, to determine when it is impracticable or inadvisable
to not perform duties and whether the GAL has engaged in reasonable efforts to perform the duties." Id. As
the GAL in this case was required to comply with the prior version of the Rules of Superintendence until they
were superseded by the version as amended effective January 1, 2021, we shall refer to both versions of the
rules throughout our discussion. For avoidance of confusion, we shall note all references to the version of the
Rules of Superintendence amended effective January 1, 2021 as "2021 Sup.R." and all references to the version
in effect prior to the January 1, 2021 amendments as "2020 Sup.R."
11We note that under both the present and former versions of the Rules of Superintendence, the rules
mandated that the provisions related to GALs "shall apply in all domestic relations and juvenile cases in the
courts of common pleas where a court appoints a guardian ad litem" for the child. Compare 2020 Sup.R. 48
and 2021 Sup.R. 48.
Nos. 21AP-249 and 21AP-259 20
(6) Interview the parties, foster parents, guardians, physical
custodian, and other significant individuals who may have
relevant knowledge regarding the issues of the case. The
guardian ad litem may require each individual to be
interviewed without the presence of others. Upon request of
the individual, the attorney for the individual may be present.
(7) Interview relevant school personnel, medical and mental
health providers, child protective services workers, and court
personnel and obtain copies of relevant records;
(8) Review pleadings and other relevant court documents in
the case;
(9) Obtain and review relevant criminal, civil, educational,
mental health, medical, and administrative records pertaining
to the child and, if appropriate, the family of the child or other
parties in the case;
(10) Request that the court order psychological evaluations,
mental health or substance abuse assessments, or other
evaluations or tests of the parties as the guardian ad litem
deems necessary or helpful to the court;
(11) Review any necessary information and interview other
persons as necessary to make an informed recommendation
regarding the best interest of the child.
(Emphasis added.) 2021 Sup.R. 48.03(D). 2020 Sup.R. 48(D) provided the following with
respect to the duties of a GAL:
(13) A guardian ad litem shall make reasonable efforts to
become informed about the facts of the case and to contact all
parties. In order to provide the court with relevant
information and an informed recommendation as to the
child's best interest, a guardian ad litem shall, at a minimum,
do the following, unless impracticable or inadvisable because
of the age of the child or the specific circumstances of a
particular case:
(a) Meet with and interview the child and observe the child
with each parent, foster parent, guardian or physical
custodian and conduct at least one interview with the child
where none of these individuals is present;
Nos. 21AP-249 and 21AP-259 21
(b) Visit the child at his or her residence in accordance with
any standards established by the court in which the guardian
ad litem is appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and
other significant individuals who may have relevant
knowledge regarding the issues of the case;
(e) Review pleadings and other relevant court documents in
the case in which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative
records pertaining to the child and, if appropriate, to the
child's family or to other parties in the case;
(g) Interview school personnel, medical and mental health
providers, child protective services workers and relevant court
personnel and obtain copies of relevant records;
(h) Recommend that the court order psychological
evaluations, mental health and/or substance abuse
assessments, or other evaluations or tests of the parties as the
guardian ad litem deems necessary or helpful to the court; and
(i) Perform any other investigation necessary to make an
informed recommendation regarding the best interest of the
child.
2020 Sup.R. 48(D)(13). 2021 Sup.R. 48.03(G) provides that a GAL "shall perform
responsibilities in a prompt and timely manner." 2021 Sup.R. 48.06 and 48.07 govern the
responsibilities of courts appointing GALs and provide that juvenile courts, among other
listed duties, "shall review all guardian ad litem reports, written or oral, to ensure that the
guardian ad litem has performed those responsibilities required by R.C. 2151.281." 2021
Nos. 21AP-249 and 21AP-259 22
Sup.R. 48.06(B)(2).12 2021 Sup.R. 48.07 requires that courts appointing GALs "shall,"
among other listed duties, "[r]eview all guardian ad litem reports, written or oral, to ensure
that the guardian ad litem has performed those responsibilities required by R.C. 2151.281."
2021 Sup.R. 48.07(G).
{¶ 53} In addition to statutory provisions and rules promulgated by the Supreme
Court, the local rules of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch also address GAL duties and reports.13 2020 Loc.Juv.R. 4(D)
provided:
Duties and responsibilities of appointed counsel and
guardians ad litem.
Attorneys accepting appointments to serve as guardian ad
litem * * * shall initiate and maintain reasonable contact with
their client, which should be no less than once per month. The
* * * guardian ad litem shall advise his / her client / ward of
the client's / ward's rights and the possible consequences of
the pending action.
***
(1) Upon appointment the * * * guardian ad litem * * * shall
make reasonable efforts to become informed about the facts
of the case and to contact all relevant persons. The * * *
guardian ad litem * * * shall, at a minimum, perform certain
basic duties, as warranted by the facts of the case, unless
12 2020 Sup.R. 48(F) provided in pertinent part:
A guardian ad litem shall prepare a written final report, including recommendations to the
court, within the times set forth in this division. The report shall detail the activities
performed, hearings attended, persons interviewed, documents reviewed, experts consulted
and all other relevant information considered by the guardian ad litem in reaching the
guardian ad litem's recommendations and in accomplishing the duties required by statute,
by court rule, and in the court's Order of Appointment[:]
(1) In juvenile abuse, neglect, and dependency cases and actions to terminate parental rights:
(a) All reports, written or oral, shall be used by the court to ensure that the guardian ad litem
has performed those responsibilities required by section 2151.281 of the Revised Code.
13We note the local rules of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch were amended effective February 1, 2021, prior to the filing of the final GAL report in this
matter. For avoidance of confusion, we shall note all references to the version of the local rules in effect
following the February 1, 2021 amendments as "2021 Loc.Juv.R." and all references to the local rules in effect
prior to the February 1, 2021 amendments as "2020 Loc.Juv.R."
Nos. 21AP-249 and 21AP-259 23
impracticable or inadvisable because of the age of the child or
the specific circumstances of a particular case.
(a) When the child is of sufficient age to have communicative
ability, meet with and interview the child(ren) and ascertain
the child's wishes. Observe the child with each parent, foster
parent, guardian or physical custodian and conduct at least
one interview with the child where none of these individuals
is present. Be aware of the interaction between the parent
and child, and the appropriateness of discipline,
conversations, and activities. Interview both parents if
permitted by their counsel. If only one parent is known,
attempt to ascertain the identity and whereabouts of the other
parent.
(b) Review pleadings and other relevant court documents, and
consult with each attorney as to position and issues. File
pleadings, motions and other documents as appropriate
under the applicable rules of procedure. Review the court file,
and request discovery.
(c) Meet with and interview all significant individuals who
may have relevant knowledge regarding the issues of the case.
(d) Determine the physical and mental health of the child.
Interview medical and mental health providers, and obtain
copies of relevant records, including medical and hospital
records.
(e) Interview school personnel. Obtain information regarding
the child's behavior in school and interaction with parents.
Review and obtain copies of the child's school records.
(f) Perform home visits (this may be combined with the
interview process). Observe the living conditions of each
parent and the child's sleeping arrangements.
(g) Evaluate the necessity, if any, of psychological evaluations
or counseling, mental health and / or substance abuse
assessments, or other evaluations or tests of the parties and
file a motion requesting the same.
***
(i) Communicate with the Franklin County Children Services
worker, and other direct service providers. Obtain the case
history. Confirm whether the child has been removed from
Nos. 21AP-249 and 21AP-259 24
home and the child's adjustment to his/her current
placement. Confirm the names, addresses, and telephone
numbers of parents and care providers. Determine what
services are being provided the parents.
***
(k) Ask the care providers for their perceptions of the child's
adjustment. Assess the child's developmental level. If the
child relates a new allegation of abuse or neglect, immediately
call FCCS intake, the caseworker, and the Family Assessment
caseworker.
(l) Review criminal, civil, educational and administrative
records pertaining to the child and, if appropriate, to the
child's family or to other parties in the case.
(m) Be cognizant that the duty of an attorney to his/her client
and the duty of a guardian ad litem to his/her ward are not
always identical and, in fact, may conflict. The role of the
guardian ad litem is to investigate the ward's situation and
then to ask the court to do what the guardian ad litem feels is
in the ward's best interest.
***
(o) Perform any other investigation necessary and appear and
participate in any hearing for which the duties of the attorney
or guardian ad litem or any issues substantially within an
attorney's or guardian ad litem's duties and scope of
appointment are to be addressed.
***
(q) Perform all duties and responsibilities in a prompt and
timely manner, and, if necessary, request timely court reviews
and judicial intervention in writing with notice to parties or
affected agencies.
***
(s) Maintain a log documenting all work performed, all
contact with the child, parties, witnesses, etc., and all
telephone calls. Keep accurate records of the time spent,
services rendered, and expenses incurred in each case and file
an itemized statement and accounting with the court.
Nos. 21AP-249 and 21AP-259 25
(3) Reports and court appearances.
A guardian ad litem shall be present at all hearings pertaining
to the child(ren), and shall prepare a written final report,
including recommendations to the court, within the times set
forth in this division. The report shall detail the activities
performed, hearings attended, persons interviewed,
documents reviewed, experts consulted and all other relevant
information considered by the guardian ad litem in reaching
the guardian ad litem's recommendations and in
accomplishing the duties required by statute, by court rule,
and in the court's Order of Appointment. In addition, the
following provisions shall apply to guardian ad litem reports:
In juvenile abuse, neglect, and dependency cases and actions
to terminate parental rights:
(a) All reports, written or oral, shall be used by the court to
ensure that the guardian ad litem has performed those
responsibilities required by Ohio Revised Code 2151.281.
(b) Oral and written reports may address the substantive
allegations before the court, but shall not be considered as
conclusive on the issues.
***
(d) A guardian ad litem shall be available to testify at the
dispositional hearing and may orally supplement the final
report at the conclusion of the hearing.
(e) A guardian ad litem also may file an interim report, written
or oral, any time prior to the dispositional hearing and prior
to hearings on actions to terminate parental rights. Written
reports may be accessed in person or by phone by the parties
or their legal representatives.
(f) Any written interim report shall be filed with the court and
made available to the parties for inspection no less than seven
days before a hearing, unless the due date is extended by the
court. Written reports may be accessed in person or by phone
by the parties or their legal representatives. A copy of the
interim report shall be provided to the court at the hearing.
(Emphasis added.) 2020 Loc.Juv.R. 4(D). Similarly, though with some notable
differences, 2021 Loc.Juv.R. 4.1(B) provides:
Nos. 21AP-249 and 21AP-259 26
Duties and Responsibilities of Appointed Counsel and
Guardian ad Litem:
1. Attorneys accepting appointments to serve as guardian ad
litem * * * shall all be familiar with following and be able to
apply them to their practice: Sup. R. 48.01, et seq. * * * and
the Court's Local Rules as all may be updated or
supplemented from time to time.
2. Attorneys accepting appointments to serve as guardian ad
litem, court appointed counsel, or in the dual capacity of both
attorney and guardian ad litem, shall:
a) Be knowledgeable of the laws of Ohio, case law, and Ohio
Rules of Juvenile Procedure applicable to the cases for which
they receive appointments;
***
d) Initiate and maintain reasonable contact with their client
or ward, which should be no less than once per month and
shall be done outside of scheduled court hearings;
e) Review all pleadings and other relevant court documents,
and request discovery in a timely manner;
f) Communicate prior to and outside of scheduled court
hearings with counsel (and unrepresented parties),
caseworkers, community supervision workers, and other
professionals providing services to their client or ward
regarding the issues in the case and resolution of those issues
in advance of hearing dates;
***
h) Be prepared to discuss outstanding issues and be
knowledgeable of the facts of the case at each hearing;
i) File necessary motions and pleadings as needed and in a
timely manner;
j) Communicate with all counsel, parties, and court staff
regarding scheduling conflicts well in advance of scheduled
hearings;
k) Advise their client/ward of the client's/ward's rights and
the possible consequences of the pending action;
Nos. 21AP-249 and 21AP-259 27
***
3. Attorneys appointed to serve as guardian ad litem or in the
dual capacity of both attorney and guardian ad litem, shall
perform all duties and responsibilities and comply with all
requirements as set forth in Sup. R. 48.01, et. seq.
***
5. Repeated failure to maintain contact with client or ward,
appear for hearings timely, communicate regarding
scheduling conflicts in advance, work to resolve matters
outside of scheduled hearing dates, comply with the
requirements of Sup. R. 48 (for guardians ad litem) including
timely filing of reports, or to personally appear on behalf of
the client or ward will result in removal from the guardian ad
litem/appointed counsel lists as outlined in Section 4.4 of this
Rule.
(Emphasis added.) 2021 Loc.Juv.R. 4.1(B). 2021 Loc.Juv.R. 4.4(A) provides that
"guardians ad litem may be removed from any court appointment list(s) with the approval
of a majority of the judges of the Domestic Relations and Juvenile Court if, in the estimation
of the Court, that * * * [a] guardian ad litem failed to comply with the duties and
responsibilities required of them as set forth in the Court's Local Rules, [or] Sup.R. 48 * * *
as all may be updated or supplemented from time to time."
B. Standard of Review
{¶ 54} J.S. failed to object to the admission of the GAL's testimony and report.
Therefore, we apply a plain error standard of review in considering whether the juvenile
court erred by failing to remove Herzberger as GAL and by admitting his testimony. D.E. at
¶ 76; In re A.L., 10th Dist. No. 07AP-638, 2008-Ohio-800, ¶ 24 (applying plain error
standard where "no party asked the trial court to remove the public defender as GAL on the
basis of bias or for any other reason"); In re West, 4th Dist. No. 05CA4, 2005-Ohio-2977,
¶ 25. See also In re D.T., 5th Dist. No. 20 CA 000004, 2020-Ohio-3808, ¶ 62-66. "In civil
cases, the plain error doctrine is not favored and may only be applied in the extremely rare
case involving exceptional circumstances such that the error, if left uncorrected, would
challenge the fairness, integrity, or public reputation of the judicial process itself." Brisco
v. U.S. Restoration & Remodeling, Inc., 10th Dist. No. 18AP-109, 2019-Ohio-5318, ¶ 25.
Nos. 21AP-249 and 21AP-259 28
See State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 40, quoting Goldfuss v.
Davidson, 79 Ohio St.3d 116, 121 (1997) (stating that "[a]s when they apply criminal plain-
error review, reviewing courts applying civil plain-error review 'must proceed with the
utmost caution, limiting the doctrine strictly to those extremely rare cases where
exceptional circumstances require its application to prevent a manifest miscarriage of
justice' "); L.W., 2018-Ohio-2099, ¶ 36. " 'Because parental rights determinations are
difficult to make and appellate courts accord wide latitude to the trial court's consideration
of evidence in these cases, "[p]lain error is particularly difficult to establish." ' " Hamilton
v. Hamilton, 10th Dist. No. 14AP-1061, 2016-Ohio-5900, ¶ 8, quoting Faulks v. Flynn, 4th
Dist. No. 13CA3568, 2014-Ohio-1610, ¶ 20, quoting Robinette v. Bryant, 4th Dist. No.
12CA20, 2013-Ohio-2889, ¶ 28.
C. The Juvenile Court Committed Plain Error with Regard to the GAL
{¶ 55} J.S. argues the juvenile court erred both in admitting the GAL's report and
testimony and also by failing to enforce R.C. 2151.281(D) and (I) by removing and replacing
the GAL. The juvenile court's focus in determining whether to terminate parental rights is
the best interest of the child. R.C. 2151.414(B)(1) and (D). The juvenile court is assisted in
making this determination by considering information presented by the GAL, including the
GAL's report, recommendation, and other testimony. See 2020 Sup.R. 48(D)(13) (stating
that the duties established by the Rules of Superintendence are imposed "[i]n order to
provide the court with relevant information and an informed recommendation as to the
child's best interest"). The GAL here did little to assist the court in this regard. P.H. argues
in his second assignment of error that the juvenile court's determination that permanent
custody was in A.S.'s best interest was not supported by clear and convincing evidence in
the record, in part due to the GAL's lack of testimony or evidence related to his
recommendation that permanent custody was in A.S.'s best interest.
1. The GAL failed in not faithfully discharging his duties
{¶ 56} The Rules of Superintendence are intended to provide a nonexhaustive list of
responsibilities and duties to guide GALs in faithfully discharging their duties as required
by law, other rules, and pursuant to court order. Here, as noted above, the GAL was
required to comply with the prior version of the Rules of Superintendence from the time of
his appointment until January 1, 2021, when he was required to comply with the amended
Nos. 21AP-249 and 21AP-259 29
rules. Likewise, he was required to comply with the applicable local juvenile rules.
Therefore, we analyze the GAL's performance under all versions of the rules as applicable
to the facts of this case.
a. Duty to become informed about the facts
{¶ 57} The Rules of Superintendence make clear that it is incumbent upon the GAL
to "[b]ecome informed about the facts of the case." 2021 Sup.R. 48.03(D)(1); 2020 Sup.R.
48(D)(13). See also 2020 Loc.Juv.R. 4(D)(1). The GAL in this case appears to have not been
informed about many important facts of the case. For instance, in his final report, the GAL
described P.H. as the "Alleged Father" and stated that "[t]here has been no genetic testing."
(Feb. 4, 2021 Final GAL Report at 5.) However, FCCS's exhibits at the permanent custody
hearing demonstrated that P.H. established paternity via genetic testing effective
February 21, 2019, nearly two years before the permanent custody hearing and the GAL's
final report. (FCCS Ex. 5.)
b. Duties to meet with, interview, and observe A.S.
{¶ 58} Many of the Rules of Superintendence impose a requirement that the GAL
meet with, interview, or observe the children. 2020 Sup.R. 48(D)(13)(a), (b), and (c)
require the GAL: (1) meet with and interview the children, (2) observe the children with the
parent, foster parent, guardian or physical custodian, (3) conduct one interview with the
children where none of these individuals is present, (4) visit the children at his or her
residence in accordance with any standards established by the court in which the GAL is
appointed, and (5) ascertain the wishes of the children. See also 2021 Sup.R. 48.03(D)(2)
through (6). The juvenile court imposed similar standards pursuant to 2020 Loc.Juv.R.
4(D) and 2021 Loc.Juv.R. 4.1(B)(2)(d) in part requiring the GAL to initiate and maintain
reasonable contact with their client no less than once per month, with 2021 Loc.Juv.R.
4.1(B)(2)(d) further providing that such contact "shall be done outside of scheduled court
hearings." 2020 Loc.Juv.R. 4(D)(1)(a) required the GAL to "[o]bserve the child [and] [b]e
aware of the interaction between the parent and child, and the appropriateness of
discipline, conversations, and activities." The GAL did not comply with many of these
requirements.
{¶ 59} First, it appears from the record that the GAL only met with A.S. once over
the nearly three years from the time of A.S.'s removal to the permanent custody hearing.
Nos. 21AP-249 and 21AP-259 30
This is well short of the "once per month" standard set forth in the local juvenile rules and
frankly well short of any standard considering the GAL had served for nearly three years
prior to writing his final report and testifying at the permanent custody hearing. The GAL
testified that "I would have preferred quite frankly to have done an in-person visit, with
COVID I'm - - am just simply not doing them right now. That'll change the end of next or
middle of next month * * * and I'll start doing those again, but like many of the guardians
ad litem we're doing our visits by [videoconference]." (Feb. 11, 2021 Tr. at 248.) Regardless
of concerns related to in-person visits due to the COVID-19 pandemic, the GAL did not visit
A.S., either with his current foster family or in prior placements, in the approximately two
years he served as A.S.'s GAL prior to the implementation of pandemic-related restrictions
in 2020. In addition, the GAL only conducted one single interview via videoconference
when the COVID-19 pandemic-related restrictions and concerns were in place. Also, there
is no evidence the GAL ever interviewed A.S. where no foster parent, guardian, or physical
custodian was present.
{¶ 60} Second, significantly, there is no evidence the GAL ever observed A.S. at a
visitation with J.S., P.H., or both. Although the record reflects that J.S. sometimes was
absent from visitations, the record is clear that P.H. consistently attended visitations. This
is not a case where the parents have abandoned the child or repeatedly failed to visit the
child. To the contrary, the evidence revealed and the juvenile court found that P.H.
consistently visited A.S., played with A.S. at visitations, and deeply cared for A.S. The court
specifically quoted P.H.'s testimony regarding his love for A.S. as follows: " 'I love him to
death.' " (Apr. 22, 2021 Decision at 13.) The court found A.S. was excited to see P.H. and
sometimes happy to see J.S. at visitations. The evidence is undisputed that P.H. maintained
regular contact with A.S. through consistent attendance at visitations, which were
uninterrupted with the exception of the period of time FCCS prevented contact during the
COVID-19 pandemic. Layman testified that A.S. was "particularly" excited to see P.H. at
visitations. (Feb. 11, 2021 Tr. at 174.) She further testified that A.S. responded well to P.H.
because P.H. was joyful and happy with A.S. Layman testified that J.S. was less consistent
with visits and less compliant with her case plan in all aspects compared to P.H. But
Layman also testified that although J.S. was more reserved with A.S. because of her
demeanor, there were many times A.S. was happy to see J.S. as well. Furthermore, Layman
testified that as recently as eight days prior to the permanent custody hearing, when J.S.
Nos. 21AP-249 and 21AP-259 31
and A.S. met via videoconference, A.S. called J.S. "mom" and was showing some signs of
bonding with J.S. (Feb. 11, 2021 Tr. at 217.) Layman testified that, after working with FCCS
staff, both J.S. and P.H. responded appropriately to A.S.'s behavior including by getting on
the floor to prevent A.S. from being hurt by his own headbanging. There is no plausible
explanation for the GAL's failure to observe A.S. at a visitation with P.H. and J.S., even
considering the impact of the COVID-19 pandemic.
{¶ 61} Third, both J.S. and P.H. argue the GAL failed to ascertain A.S.'s wishes as he
was required to do. The GAL testified he did not believe A.S. was able to express his own
wishes. J.S. testified that she believed A.S. was able to express himself. Given A.S.'s young
age and developmental issues, it may be that A.S. was not able to express himself. However,
the GAL made this determination after only a single meeting between the GAL, A.S., and
A.S.'s current foster family via videoconference. In support of this opinion that A.S. was
not able to express his wishes, the GAL stated that A.S. was on the foster parent's lap during
the virtual meeting and "had to be redirected a lot." (Feb. 11, 2021 Tr. at 247.) In his final
written report to the juvenile court filed February 4, 2021, the GAL stated that A.S.
"appeared to be bonded with [one foster parent] and other children in the home." (Feb. 4,
2021 Final GAL Report at 3.) With regard to A.S.'s bond with his current foster family, the
GAL testified at the permanent custody hearing as follows:
[F]rom what I could see, he did seem to be bonded with -- I
didn't see him with the entire -- all the people that live in [the
foster parents'] household, but from what I could see, he did
seem to be bonded with the people that I saw him interact with
including [one of the foster parents].
***
But I had not heard anything at all that had to do with any
concern of nothing well cared for simulated [sic] being, you
know, bonded with the family, haven't heard anything.
(Feb. 11, 2021 Tr. at 248.) However, the record does not reflect the GAL attempted to speak
with A.S. without the foster parents present or in another setting about A.S.'s wishes,
concerns, or bonds with P.H., J.S., or the foster family members.
Nos. 21AP-249 and 21AP-259 32
c. Duties to contact all parties, foster parents, and other significant
individuals
{¶ 62} The Rules of Superintendence in effect until January 1, 2021 also imposed a
requirement that the GAL "contact all parties," including "[m]eet[ing] with and
interview[ing] the parties, foster parents and other significant individuals who may have
relevant knowledge regarding the issues of the case [in addition to] school personnel,
medical and mental health providers." 2020 Sup.R. 48(D)(13)(d) and (g). Under the Rules
of Superintendence effective January 1, 2021, in addition to the above requirements, the
GAL was informed that the GAL "may require" the parties, foster parents, and other
significant individuals "to be interviewed without the presence of others." 2021 Sup.R.
48.03(D)(6). The juvenile court imposed similar standards requiring the GAL "to contact
all relevant persons" in conjunction with 2020 Loc.Juv.R. 4(D)(1)(c), (d), and (e) duties.
2020 Loc.Juv.R. 4(D)(1). 2020 Loc.Juv.R. 4(D)(1) further required the GAL to
"[d]etermine the physical and mental health of the child," "[a]sk the care providers for their
perceptions of the child's adjustment," and "[a]ssess the child's developmental level." 2020
Loc.Juv.R. 4(D)(1)(d) and (k). Our review of the record reveals the GAL failed to fulfill
many of the aforementioned duties of contacting the specifically identified persons in
addition to any other relevant persons.
{¶ 63} First, there is no evidence in the record to support finding the GAL observed
A.S.'s interaction with both foster parents. The GAL testified he observed A.S. one time via
videoconference with his foster mother and some of the children in the home. It is clear
from the GAL's own testimony that he did not interview or observe the foster father and
every other member of the foster family. Nor did the GAL observe A.S. when he was placed
with C.S., his half-sister. As noted above, the GAL also never observed visitations between
P.H. and A.S. or visited P.H.'s residences aside from a virtual tour of P.H.'s new residence
immediately before the permanent custody hearing. Regardless of this limited contact, the
GAL opined that A.S. "is bonded with his foster family which includes the foster parents
and other children in the home." (Feb. 4, 2021 Final GAL Report at 7.) Furthermore, when
Nos. 21AP-249 and 21AP-259 33
the juvenile court inquired if he was recommending permanent custody to FCCS for
purposes of adoption, the GAL replied yes.14
{¶ 64} Second, while the rules required the GAL to contact the parties, there was
some evidence the GAL believed it was the responsibility of the parties to contact him. In
response to questioning about his contact with J.S., the GAL stated: "Well, here's the thing.
They can call me too[.] * * * You know, one of the things that I've always done, one of the
values I have as a guardian is that I value when the – when the parents are proactive and
contact me." (Feb. 11, 2021 Tr. at 258-59.) Although the record did reflect some difficulty
with maintaining contact with J.S. due to her having multiple different phone numbers over
the course of the case, the record is also clear that the GAL never observed J.S. at visitations
or had more than two to three face-to-face conversations with J.S. outside of court
appearances over the course of the proceedings.
{¶ 65} Third, the GAL's testimony and his report do not reflect that the GAL spoke
to all relevant parties as required by the Rules of Superintendence and local juvenile rules.
The record reflects A.S. attended preschool at the time of the permanent custody hearing
and had been seen by healthcare providers with regard to his developmental and special
needs. However, the record does not reflect the GAL spoke with any of A.S.'s school
personnel or healthcare providers. The GAL's reports do not include any medical,
occupational therapy, or school records in the list of records he stated he reviewed, and
contains no information or assessment regarding the same. This information was
important to know for a best interest recommendation and determination—in order to
consider whether J.S. and/or P.H. could meet A.S.'s needs and whether FCCS and the
current foster family were able to meet A.S.'s needs, the GAL and the court would
necessarily need to know what A.S.'s needs are and, in particular, his special needs and how
those needs can be met. The GAL provided no information in this regard based on his own
investigation.
d. Duty to request evaluation/assessment of the parties
{¶ 66} The Rules of Superintendence 2021 Sup.R. 48.03(D)(9) and 2020 Sup.R.
48(D)(13)(h) require a GAL to recommend/request that the court order "psychological
14Layman testified that A.S. was placed in a foster-to-adopt home and that if A.S. were to become available
for adoption, they would be interested in pursuing adoption of A.S. She further testified there were ten
individuals in the home, two adults and eight children, including A.S.
Nos. 21AP-249 and 21AP-259 34
evaluations, mental health and/or substance abuse assessment, or other evaluations or
tests of the parties as the guardian ad litem deems necessary or helpful to the court."
(Emphasis added.) The local juvenile rules impose a similar requirement. 2020 Loc.Juv.R.
4(D)(g). Yet, the GAL never recommended to the court that an evaluation be conducted to
determine if P.H. had cognitive impairments or developmental delays—and, if so, the extent
to which such impairment or delay would impede caring for and meeting the needs of A.S.,
if at all. The GAL first generally noted some cognitive delays in P.H. in his third GAL report;
then again in his fourth GAL report. Finally, in his final GAL report he noted more details
as relayed to him by P.H.'s mother.
{¶ 67} In support of his second assignment of error, P.H. argues the record does not
support the juvenile court's finding that P.H. himself had cognitive delays and as a result
struggled to meet his own needs as well as the needs of A.S. P.H. argues there was no
admitted competent testimony regarding whether he had cognitive delays at all and/or that
he struggled with his own needs. P.H. correctly asserted that when Layman attempted to
testify regarding the reason P.H. receives SSDI, an objection was made and sustained on
grounds that such testimony would require a medical opinion and it was based on hearsay
from what P.H.'s mother told Layman. The juvenile court did permit Layman to testify
regarding what P.H. himself told her, that "he doesn't think like other people think and that
he doesn't read well." (Feb. 11, 2021 Tr. at 170.)
{¶ 68} The GAL testified he believed P.H. "has tried his best as he is able to with the
developmental issues that he has." (Feb. 11, 2021 Tr. at 255.) The GAL also testified that
P.H.'s mother had made him aware of P.H.'s cognitive impediments and the reason P.H.
receives SSDI.15 The GAL then testified that "I have a friend whose daughter has the same
condition as [P.H.] has and a lot of [P.H.'s] actions are similar to this young lady although
[P.H.] is far – higher functioning than my friend's daughter." (Feb. 11, 2021 Tr. at 273.)
The GAL ultimately opined that he believed "some of the – the cognitive delays that [P.H.]
15Recognizing it was hearsay, the GAL did not elaborate on what P.H.'s mother told him regarding P.H.'s
cognitive impediments and the reason he receives SSDI.
Nos. 21AP-249 and 21AP-259 35
has without – without consistent support16 is gonna be difficult and * * * not in [A.S.'s] best
interest." (Feb. 11, 2021 Tr. at 272.)
{¶ 69} The testimony of both Layman and the GAL was nonspecific and
consequently only invited speculation as to whether P.H. had cognitive delays and as to
whether P.H. could or could not meet his own or A.S.'s needs as a result of such cognitive
delays. The amended case plan for P.H. did not include any assessment or evaluation
regarding the existence or extent of cognitive or developmental delays or regarding whether
such delays impaired P.H.'s abilities to care for himself and, more importantly, care for A.S.
The GAL indicated that he reviewed the amended case plan. Thus, he was aware that no
such evaluation was required by FCCS, but he did not request that the court perform such
an evaluation, despite being aware generally of some cognitive issues at least as early as
August 2, 2019 when he filed his third GAL report. Notwithstanding, the GAL based his
best interest recommendation, in part, on his concerns that P.H. had cognitive delays that
impaired him being able to meet A.S.'s needs.
e. Duty to conduct independent assessments
{¶ 70} The GAL opined both in his final written report and in testimony at trial that
it is in A.S.'s best interest to place him into the permanent custody of FCCS. However, as
summarized above, the GAL failed to perform his required duties in significant ways.
Importantly, his report and testimony do not appear to have been supported by sustained,
independent observations and contact with A.S. and relevant parties over the nearly three
years from the time of his appointment to the writing of his final report. Instead, his report
and testimony appear to be based on the mere handful of times he interacted with some of
the relevant parties in addition to ongoing contact with FCCS caseworkers and supervisors.
Moreover, it appears the GAL was basing his opinion at the permanent custody hearing in
part on testimony he heard at the hearing itself. In answering whether A.S. should be
placed with J.S., the GAL answered "I haven't heard any testimony from [J.S.] about her
ability to address [A.S.'s] special needs." (Feb. 11, 2021 Tr. at 270.) "A GAL is under a duty
16In his final GAL report, the GAL stated he spoke with P.H.'s mother and she stated that prior to A.S. being
removed, P.H. "attended to [A.S.'s] needs by purchasing diapers, formula, other baby supplies, 'everything'
that the child needed. [P.H.] also paid the bills and took care of the utilities." (Feb. 4, 2021 Final GAL Report
at 4.) P.H.'s mother would help by taking P.H. to the store to buy groceries, toys, and supplies for A.S. P.H.'s
mother stated P.H. "can parent on his own without help," but that she would support him and A.S. by being
present "on a regular basis, possibly every day." (Feb. 4, 2021 Final GAL Report at 5.)
Nos. 21AP-249 and 21AP-259 36
to 'provide the juvenile court with an independent evaluation of the issues.' " D.E., 2021-
Ohio-524, at ¶ 90, quoting In re Ridenour, 11th Dist. No. 2003-L-146, 2004-Ohio-1958,
¶ 25. In order to accomplish this duty, a "guardian's recommendation, then, should not be
based on the testimony given at the hearing, but on the guardian's own experience in the
case." Ridenour at ¶ 25. See In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, ¶ 13
(stating that the purpose of the statutory provisions providing for the appointment of a GAL
"is to give the court information, in addition to that elicited at the hearing, to assist it in
making sound decisions concerning permanent custody placements").
f. Requirement to apply "best interest" factors as outlined in R.C.
2151.414(D)
{¶ 71} R.C. 2151.281(I) requires the GAL to perform whatever functions are
necessary to protect the best interest of the child. In determining whether granting
permanent custody to FCCS is in the best interest of the child, the court must consider one
of two alternatives and the best interest factors outlined in either R.C. 2151.414(D)(1) or
(2).17 The GAL, however, outlined in his final report the best interest factors in R.C. 3109.04
17Pursuant to R.C. 2151.414(B)(1), a juvenile court may grant permanent custody of a child to an agency if the
court determines, by clear and convincing evidence, that: (1) one of the factors set forth in R.C. 2151.414(B)(1)
applies, and (2) it is in the best interest of the child."
In determining whether granting permanent custody to a public children services agency is in the child's best
interest, the court must consider one of two alternatives. Under R.C. 2151.414(D)(1), the court must consider
all relevant factors, including, but not limited to, 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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent
agency in another state;
(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents
and child.
Nos. 21AP-249 and 21AP-259 37
R.C. 2151.414(D)(1)(a) through (e). The additional factors referenced by R.C. 2151.414(D)(1)(e) are:
(7) The parent has been convicted of or pleaded guilty to one of [a list of criminal offenses].
(8) The parent has repeatedly withheld medical treatment or food from the child when the parent has
the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent
withheld it for a purpose other than to treat the physical or mental illness or defect of the child by
spiritual means through prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or
drug abuse and has rejected treatment two or more times or refused to participate in further
treatment two or more times after a case plan issued pursuant to section 2151.412 of the Revised Code
requiring treatment of the parent was journalized as part of a dispositional order issued with respect
to the child or an order was issued by any other court requiring treatment of the parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the child
pursuant to this section or section 2151.353 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, and the parent has failed to provide clear and convincing evidence to prove that,
notwithstanding the prior termination, the parent can provide a legally secure permanent placement
and adequate care for the health, welfare, and safety of the child.
R.C. 2151.414(E)(7) through (11).
In the alternative, if a court finds that all four of the factors under R.C. 2151.414(D)(2) apply, then "permanent
custody is in the best interest of the child, and the court shall commit the child" to the custody of a public
children services agency and grant the motion for permanent custody. (Emphasis added.) R.C. 2151.414(D)(2).
The four enumerated factors required for making a finding under R.C. 2151.414(D)(2) are:
(a) The court determines by clear and convincing evidence that one or more of the factors in [R.C.
2151.414(E)] exist and the child cannot be placed with one of the child's parents within a reasonable
time or should not be placed with either parent.
(b) The child has been in an agency's custody for two years or longer, and no longer qualifies for
temporary custody pursuant to [R.C. 2151.415(D)].
(c) The child does not meet the requirements for a planned permanent living arrangement pursuant
to [R.C. 2151.353(A)(5)].
(d) Prior to the dispositional hearing, no relative or other interested person has filed, or has been
identified in, a motion for legal custody of the child.
Thus, in order to make a finding under R.C. 2151.414(D)(2)(a), the juvenile court must also make a finding
that one or more of the factors under R.C. 2151.414(E) apply. The juvenile court found the following factors
under R.C. 2151.414(E) applied in this matter:
Nos. 21AP-249 and 21AP-259 38
(F)(1)(a) through (e)—which apply in the context of determining custody in the case of
"divorce, legal separation, or annulment proceeding and in any proceeding pertaining to
the allocation of parental rights and responsibilities for the care of a child." R.C.
3109.04(A). In this case, the GAL was making a recommendation of best interest to the
court regarding a motion for termination of parental rights, not allocation of parental
rights.
2. The juvenile court plainly erred in not requiring the GAL to perform
his duties and in not discharging the GAL
{¶ 72} In addition to the obligations imposed on the GAL under the plain terms of
R.C. 2151.281(I), the Rules of Superintendence, the juvenile rules, and the local rules of the
juvenile court, the juvenile court itself was obligated by R.C. 2151.281(D) to "require the
guardian ad litem to faithfully discharge the guardian ad litem's duties and, upon the
guardian ad litem's failure to faithfully discharge the guardian ad litem's duties, shall
discharge the guardian ad litem and appoint another guardian ad litem." Furthermore, the
juvenile court was obligated by the Rules of Superintendence to "review all guardian ad
litem reports, written or oral, to ensure that the guardian ad litem has performed those
responsibilities required by R.C. 2151.281." 2021 Juv.R. 48.06(B)(2). The court itself noted
the GAL's obligation to comply with the rules and law applicable to GALs in its November 5,
2020 pre-trial orders on the motion for permanent custody, stating that "GAL SHALL
comply with Swisher, 2003-Ohio-5446, ¶ 47 and 48, Sup.R. 48(D), Local R. 27, & R.C.
2151.281. Report SHALL be filed on or before seven (7) days prior to trial." (Emphasis sic.)
(Nov. 5, 2020 Pre-Trial Orders at 2.) Both the juvenile court and the magistrate separately
(1) Following the placement of the child outside the child's home and notwithstanding reasonable
case planning and diligent efforts by the agency to assist the parents to remedy the problems that
initially caused the child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be placed outside the child's
home. In determining whether the parents have substantially remedied those conditions, the court
shall consider parental utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to the parents for the purpose
of changing parental conduct to allow them to resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly
support, visit, or communicate with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the child.
Nos. 21AP-249 and 21AP-259 39
reminded the GAL to update and file reports. It is incumbent upon the juvenile court to
comply with these statutory provisions and court-promulgated rules in order to ensure the
permanent custody proceedings are fair and just, and that the best interests and welfare of
any minor children subject to such proceedings are adequately and properly represented.
{¶ 73} Presumably, pursuant to its duty, the juvenile court was reviewing the GAL's
reports. The GAL filed five reports. Not one of them indicated the GAL had observed A.S.
with J.S. or P.H. Not one of them indicted the GAL contacted school or medical personnel.
There was no indication in the first four reports that the GAL had ever visited A.S. And,
although the GAL indicated in the third, fourth, and final reports that he was aware of
general cognitive issues with P.H., there was never a request for evaluation regarding the
same. Other than the general admonition to the GAL to comply with its duties and to file
and update reports, the juvenile court did not enforce the specific duties outlined above.
{¶ 74} FCCS argues that we have previously stated that "it would be a rare
circumstance for the court to find that the GAL's failure to comply with the Rules of
Superintendence or local rules alone would result in reversal." D.E., 2021-Ohio-524, at
¶ 92. FCCS further argues that neither J.S., P.H., nor their counsel objected to the
admission of the GAL's testimony or otherwise argued that the juvenile court was required
to replace the GAL under R.C. 2151.281(D). Indeed, we acknowledge both arguments are
true.
{¶ 75} Notwithstanding, under the facts and circumstances present in this case, as
outlined above, we find the juvenile court committed plain error under R.C. 2151.281(D) in
not requiring the GAL to faithfully discharge his duties and in not discharging the GAL and
appointing a new GAL for failure to faithfully discharge GAL duties, as well as in admitting
the GAL's report and testimony. In finding plain error, we consider all the facts specific to
this case,18 in particular the fact that over the course of three years, the GAL never observed
18 Recently, in D.E., 2021-Ohio-524, this court found that despite significant deficiencies in the GAL's
investigation, the juvenile court did not plainly err in admitting the GAL's testimony. The facts in D.E. can be
distinguished from the facts in the case before us in several ways, including the fact that the juvenile court
recognized and commented upon the GAL's deficiencies. Id. at ¶ 78-79. Also, the appellant in D.E. was "very
inconsistent" and "very sporadic" with visitation with the children and had not visited the children for a seven-
month period. Id. at ¶ 22. In addition, the GAL in D.E. did visit each of the children at least once. Furthermore,
the appellant in D.E. had not made progress in complying with her case plan as J.S. and in particular P.H. did
in the case before us. Furthermore, in D.E., the appellant did not assert as error, plain or otherwise, that the
juvenile court erred pursuant to R.C. 2151.281(D) and (I).
Nos. 21AP-249 and 21AP-259 40
A.S. with J.S. or P.H. and only visited A.S. once via videoconference. In a permanent
custody proceeding, the best interest of the child is paramount. Furthermore, as we have
noted, when considering permanent termination of parental rights, parents "must be
afforded every procedural and substantive protection the law allows." In re Hayes, 79 Ohio
St.3d 46, 48 (1997). With this in mind, we find this is the extremely rare case involving
exceptional circumstances such that the juvenile court's error, if left uncorrected, would
challenge the fairness, integrity, and public reputation of the permanent custody parental
termination judicial process.
{¶ 76} Accordingly, we sustain J.S.'s first and second assignments of error.
V. J.S. and P.H.'s Remaining Assignments of Error
{¶ 77} Our resolution of J.S.'s first and second assignments of error is dispositive of
this appeal and forms the basis for our decision to reverse and remand this case as to J.S.
and P.H.19 We need not, therefore, express an opinion concerning J.S.'s remaining
assignments of error and as to P.H.'s three assignments of error. Accordingly, we render
moot J.S.'s third and fourth assignments of error and P.H.'s three assignments of error.
VI. Conclusion
{¶ 78} We sustain J.S.'s first and second assignments of error. We render moot
J.S.'s third and fourth and P.H.'s three assignments of error. Therefore, we reverse the
April 22, 2021 judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch. On remand, the juvenile court shall (1) vacate its
April 22, 2021 judgment; (2) retain jurisdiction over A.S.; (3) discharge the GAL in this case
and appoint a new GAL with instructions for the new GAL to faithfully discharge the duties
of the GAL in compliance with the applicable statutes and rules addressed herein and to
address in particular deficiencies in the GAL's evaluation, report and recommendation as
identified herein; (4) instruct FCCS to report and provide new evidence to the juvenile court
19 We acknowledge that P.H. did not assert as error the juvenile court's plain error in failing to enforce R.C.
2151.281(D) and (I) as J.S. did. The duty of a child's GAL is to provide the court with information and
recommendations regarding the child's best interest. In determining its recommendation regarding A.S.'s best
interest, the GAL's must consider what is revealed in its independent evaluation and assessment of both J.S.
and P.H., and the juvenile court must consider the same. Furthermore, as noted above, P.H. raised many
arguments regarding the GAL's deficiencies in support of his first and second assignments of error. Therefore,
we do not consider it appropriate at this time to dispose of P.H.'s assignments of error as the new GAL shall
conduct a new independent evaluation and assessment as it relates to both J.S. and P.H. when determining
its best interest recommendation to the juvenile court. Likewise, the juvenile court shall consider
supplemental and new evidence regarding J.S. as well as P.H. at the new hearing.
Nos. 21AP-249 and 21AP-259 41
on progress, or lack thereof, regarding compliance with the amended case plans, since the
February 11, 2021 hearing; (5) conduct a new hearing and consider evidence already
presented as well as supplemental and new evidence admitted after remand; and (6) enter
an order of disposition as determined appropriate by the juvenile court pursuant to R.C.
2151.353 and 2151.414(A)(2) ("[t]he court shall issue an order that grants, denies, or
otherwise disposes of the motion for permanent custody"). Finally, sensitive to the concern
that children and parents not be left in legal limbo for months and even years while waiting
for courts to process their cases, we instruct the juvenile court to act promptly on remand
and to proceed consistent with this decision.
Judgment reversed
and cause remanded with instructions.
MENTEL, J., concurs.
LUPER SCHUSTER, P.J., dissents.
LUPER SCHUSTER, P.J., dissenting.
{¶ 79} Because I would affirm the judgment of the juvenile court granting FCCS's
motion for permanent custody of A.S., I respectfully dissent.
{¶ 80} The majority finds the trial court committed plain error both in failing to
discharge and replace the GAL and in admitting the testimony and report of the GAL. I
agree with the majority that the GAL's investigation of the matter was deficient, but I
nonetheless would not find this case to be the "rare circumstance" in which the GAL's
deficiencies alone should result in reversal. In re D.E., 10th Dist. No. 20AP-83, 2021-Ohio-
524, ¶ 92. Here, FCCS presented ample evidence that granting the motion for permanent
custody was in the best interest of A.S., including competent, credible evidence that neither
parent could adequately meet A.S.'s basic and special needs. I would not find that any
concerns with the thoroughness of the GAL's investigation detracted from the other
evidence at trial. See In re D.E. at ¶ 92 (noting a juvenile court is not bound by a GAL's
recommendation). Thus, I would find the GAL's conduct and the trial court's admission of
the GAL's testimony and report did not affect the outcome of the trial. In re D.K., 10th Dist.
No. 19AP-801, 2020-Ohio-5251, ¶ 40 (considering plain error in a civil case, including a
permanent custody case, " '[a]n error is prejudicial if it "impacted the party's 'substantial
Nos. 21AP-249 and 21AP-259 42
rights' by affecting the outcome of the trial" ' "), quoting In re J.L., 10th Dist. No. 15AP-889,
2016-Ohio-2858, ¶ 60, quoting In re C.C., 1oth Dist. No. 04AP-883, 2005-Ohio-5163, ¶ 27.
{¶ 81} In addition to finding that the granting of the permanent custody motion was
in the best interest of A.S. and that the trial court did not plainly err with respect to the
GAL, I would further find that J.S.'s arguments about her trial counsel do not substantiate
a claim of ineffective assistance of counsel, that the record supports the trial court's finding
that A.S. could not be placed with P.H. within a reasonable time, and that the Supreme
Court of Ohio's pandemic tolling order did not apply to the permanent custody hearing.
Accordingly, I would overrule all four of J.S.'s assignments of error and all three of P.H.'s
assignments of error, and I would affirm the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch.
{¶ 82} For these reasons, I respectfully dissent.