In re B.W.

[Cite as In re B.W., 2012-Ohio-3416.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: B.W., J.W., J.W., D.W., R.W., T.W. C.A. No. 12CA0016-M
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE Nos. 2011 01 NE 00022011 01 NE 00032011 01 NE 00042011 01 NE 00052011 01 NE 00062011 01 NE 0007DECISION AND JOURNAL ENTRY
Dated: July 30, 2012
WHITMORE, Presiding Judge.
{¶1} Appellant, Lynn W. (“Mother”), appeals from a judgment of the Medina County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to her six minor
children and placed them in the permanent custody of Medina County Job and Family Services
(“MCJFS”). This Court affirms.
I
{¶2} Mother’s family has a lengthy history with MCJFS, dating back to 2003.
Because MCJFS presented extensive evidence to illustrate this history and its relevance to this
case, more than a cursory review is in order. Although Mother has at least three other children
who have been involved with MCJFS in prior cases, only her six minor children are at issue in
the current case: B.W., born November 16, 1998; J.W., born October 29, 2000; J.W., born April
2
14, 2002; D.W., born December 1, 2003; R.W., born January 17, 2005; and T.W., born October
28, 2006.
{¶3} Although the father of all six children was involved in the prior dependency and
neglect cases, he was not actively involved in the current case and is not a party to this appeal.
At the time the children were most recently removed from the home, the father was no longer
living there because he was incarcerated on a felony conviction of child endangering, as well as
another, unidentified offense. He later voluntarily relinquished his parental rights. Although
both parents had a responsibility to provide these six children with a safe and sanitary home,
because the father did not appeal and did not contest the permanent custody motion, we will
focus our review on the parental rights and responsibilities of Mother.
{¶4} During 2003, MCJFS first removed the children from the custody of both parents
due to the unsanitary and unsafe living conditions in the home. The record includes few details
about the 2003 case, except that the children were removed from the home for a short period of
time while church volunteers came in to clean.
{¶5} By May 2005, the condition of the home had deteriorated to an even worse
condition and the police removed the children pursuant to Juv.R. 6. Mother, and apparently also
the father, were charged with and convicted of child endangering, a first degree misdemeanor.
R.C. 2919.22(E)(1)(a). The record includes detailed testimony about the condition of the home
in May 2005 from the detective who removed the children from the home. He described the
home at that time as uninhabitable, with a foul odor, insects, and piles of dirty clothing, old food,
and trash everywhere.
{¶6} The detective also identified photographs that were taken at that time, which
MCJFS admitted as exhibits. The photographs depicted piles of dirty clothing, toys, trash, and
3
miscellaneous items scattered throughout the home. The clutter was wedged in corners, under
every piece of furniture, and covered so much of each room that there was little usable space in
the house. The kitchen sink and the bathtub in the downstairs bathroom were completely filled
with dirty water, dirty dishes, and other debris. The inside of the refrigerator was filthy, with
food spilled and caked all over it.
{¶7} One photograph depicted the then-youngest child sleeping in a crib that was
surrounded by piles of dirty clothes, with an exposed electrical cord in one of the piles on the
floor just beneath him. Another photo showed one of the older children lying on a sofa that was
surrounded by piles of dirty clothing and unrelated items.
{¶8} The focus of the reunification goals in the 2005 case, as well as each subsequent
case with this family, has remained essentially the same. In addition to providing her children
with adequate supervision and a safe and sanitary home, Mother was required to complete
parenting classes, obtain a current psychological evaluation, and follow through with any
recommended counseling. The agency’s concerns about Mother’s mental health specifically
focused on Mother’s failure to understand that she had a responsibility to provide her children
with a safe and sanitary home. The psychologist who performed Mother’s mental health
evaluation in the 2005 case expressed concern that Mother externalized responsibility for her
family’s situation, blaming her husband and children for failing to clean up after themselves. For
that reason, MCJFS had concerns that the unsanitary conditions of the home would reoccur.
Nonetheless, after volunteers again helped to clean the home, and the parents apparently
demonstrated to MCJFS that they would work to keep the house clean, the children were
returned to the home and the 2005 case was later closed.
4
{¶9} During March 2009, Wadsworth Police were sent to the home on an unrelated
matter and discovered that the living conditions inside the home were again deplorable. The
home was so unsanitary in 2009 that the city health department became involved and
extermination was also required because mice were living in the walls. Professional cleaners
inspected the home and informed MCJFS that most of the contents were contaminated and
should be discarded. They further advised that anyone who entered the home should wear
protective clothing and masks. Their estimate to clean the home was over $10,000, which was
cost prohibitive, so the agency again enlisted the help of church volunteers to clean the family’s
home.
{¶10} An intake caseworker went to the home one week later and observed that,
although some cleaning had been done, the home remained in an uninhabitable condition. Even
while standing outside on the front porch, the intake worker smelled a strong, foul odor that was
almost overwhelming inside the home, particularly in the basement. The caseworker described
the huge volume of clothes, toys, food, and trash that was all over the home. The kitchen floor
was sticky, the refrigerator was filthy, and food was stuck to the walls and ceiling. The
caseworker could hear mice running in the walls and, as he talked to Mother in the living room,
she swatted a broom at two mice that ran through the room. In her conversation with the
caseworker, Mother again downplayed the significance of the problem and her responsibility for
keeping the home clean. She explained to him that she was busy at work and felt it was the
responsibility of her husband and children to keep the home clean.
{¶11} In August 2009, Mother was again convicted of child endangering. The trial
court accepted her plea of guilty to the offense as a misdemeanor, even though it could have
convicted her of a fourth-degree felony due to her prior conviction. R.C. 2919.22(E)(1)(a) and
5
(b). Mother was later placed on probation for a period of two years, on conditions that included
maintaining a safe and sanitary home for her children. After the home was again cleaned by
volunteers, the children were eventually returned to the home and the 2009 dependency and
neglect case was closed.
{¶12} During the pendency of the 2009 dependency and neglect case, the father was also
convicted of another offense of child endangering. Unlike Mother, he was convicted of the
felony level of the offense, as well as another, unspecified felony. Because the father later
voluntarily relinquished his parental rights, the details about his convictions and his role in the
family were not fully developed in the record. The record does reveal that he was sentenced to a
period of incarceration in 2009 and did not reside with the family again. His absence from the
home was relevant, however, as it later became apparent to MCJFS that the father had played a
more significant role than Mother in caring for the children and the home and that, without the
father’s assistance, the children apparently were left to fend for themselves.
{¶13} By January 2011, the children had been residing in the sole care of Mother for
over a year and the condition of the home had again deteriorated. The current case began after
some of the children informed school personnel about the deplorable living conditions in their
home. The police detective who had removed them from the home in 2005 interviewed four of
the children. Based on his prior experience with this family, the information that he received
from the children, and his observation that each of them was filthy and wearing dirty and ill-
fitting clothes, he obtained a warrant to search the home.
{¶14} The search revealed that the home was once again uninhabitable. In addition to
the detective’s testimony about the unsanitary living conditions in the home, MCJFS introduced
several photographs and a video that the police recorded as they walked through the home. The
6
video showed the home completely strewn with trash, pieces of partially-eaten food, dirty dishes
and containers, splattered food and crumbs, and random pieces of clothing, toys, and other items.
The caseworker who had inspected the home in 2009 later verified that it was in even worse
condition this time. In fact, upon the detective’s initial entry into the home, he and the other
officers went back to their vehicles to get protective clothing and masks before they walked
through the home, due to the bad odor, filth, and insects in the home. The odor, which the
detective described as a mixture of dirt, mold, and old food, was so overpowering that he put
Vick’s Vapo-Rub inside his mask to enable him to tolerate the smell.
{¶15} A continual crunching noise can be heard on the video recording as the police
walked through the home, as they were unable to avoid stepping on the debris that was scattered
everywhere. Food and other filth was smeared or splattered on all of the furniture, walls, kitchen
cabinets and appliances, and even inside the cabinets. Much of the furniture was broken and a
broken glass was on the floor under one piece of furniture among the other debris. The
dishwasher and kitchen sink were completely filled with dirty water, dirty dishes, and trash.
None of the plumbing in the kitchen was working. The downstairs bathroom was so full of
debris and old food that the door could barely be opened. That bathroom had apparently been
used as an extension of the kitchen, as the bathroom sink and bathtub were filled with dirty
dishes and other trash and food items, including broken eggshells and dried egg yolk all over the
side of the bathtub. An old turkey carcass was in a pan behind the bathroom door. At that time,
however, the plumbing in the bathroom sink and toilet did not appear to be working.
{¶16} There was no clean space in the kitchen or bathroom, nor did there appear to be
any clean dishes, towels, or other supplies. There was almost no edible food in the kitchen, other
than approximately 15-20 unopened cans of food and a bag of noodles. Instead, the kitchen
7
table, counters, sink, floor, refrigerator, dishwasher, and cupboards were covered with crumbs
and splattered food, debris, old food containers, dirty dishes, and utensils caked with food. Many
of the containers and dishes contained prepared food that was rotting and covered with insects
and/or mold. Dead and live insects were visible in the kitchen and bathroom and throughout the
house.
{¶17} The video recording depicted similar conditions in every room of the house, with
piles of trash, dirty clothes, unrelated items, and old pizza and other prepared food left inside
containers or dishes, or randomly scattered about. Mixed in with the rotting food debris were the
children’s toys and clothing, some of which were lying right on top of plates with rotting food.
In some rooms, the piles of debris appeared to have been shoved into corners and behind the
furniture. Debris was strewn on the stairs and in the hallway leading to the upstairs bedrooms.
In the bedrooms, most the beds had filthy, torn mattresses without sheets or pillows. The stairs
leading to the basement were completely impassible because they were buried in debris.
{¶18} The children were removed pursuant to Juv.R. 6 and MCJFS filed complaints
alleging that each child was dependent and neglected. The six children were placed in two
separate foster homes, with the oldest three in one home and the youngest three in the other.
They were filthy and hungry when they came into foster care. Each exhibited signs of neglect
and was later diagnosed with adjustment disorder. Each child started counseling and later
revealed to their counselors and foster parents that they had been left to care for themselves and
each other and often did not have enough to eat.
{¶19} By failing to maintain a safe and sanitary home, Mother had violated the terms of
her 2009 probation. She was convicted of five counts of child endangering, all fourth degree
felonies, and remained incarcerated throughout most of this case. Although Mother could have
8
complied with many of the reunification goals of the case plan while in prison, she did not.
Instead, she told the caseworker that her incarceration was her first vacation in twenty years and
she chose to take classes that interested her. She did not obtain a psychological assessment or
participate in any counseling and continued to shift the blame for her failure to provide her
children with a safe and sanitary home. Mother also failed to maintain regular contact with her
children while incarcerated and had no contact with them at all after she was released.
{¶20} On November 1, 2011, MCJFS moved for permanent custody of all six children.
Following a hearing on the motion, the trial court found that the children could not be returned to
Mother’s home within a reasonable time or should not be returned to her home and that
permanent custody was in their best interests. Consequently, it terminated Mother’s parental
rights and placed the children in the permanent custody of MCJFS. Mother appeals and raises
three assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT’S GRANT OF PERMANENT CUSTODY OF ALL SIX
(6) CHILDREN TO [MCJFS] WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE AS THE AGENCY FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT SUCH A DISPOSITION WAS IN THE
BEST INTEREST OF THE CHILDREN.
{¶21} Through her first assignment of error, Mother argues that the trial court’s
permanent custody decision was not supported by the evidence presented at the hearing. We
disagree.
{¶22} Before a juvenile court may terminate parental rights and award to a proper
moving agency permanent custody of children, it must find clear and convincing evidence of
both prongs of the permanent custody test that: (1) the children are abandoned, orphaned, have
9
been in the temporary custody of the agency for at least 12 months of the prior 22 months, or that
the children cannot be placed with either parent within a reasonable time or should not be placed
with either parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent
custody to the agency is in the best interests of the children, based on an analysis under R.C.
2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio
St.3d 95, 99 (1996).
{¶23} The trial court found that the first prong of the permanent custody test had been
satisfied because the children could not be returned to Mother’s home within a reasonable time
or should not be returned to her home based on several factors under R.C. 2151.414(E),
including that Mother: had failed to substantially remedy the conditions that caused the
children’s continued removal from her home, R.C. 2151.414(E)(1); demonstrated a lack of
commitment to the children by failing to support, visit, or communicate with them when able to
do so, R.C. 2151.414(E)(4); was incarcerated for an offense against her children at the time the
motion was filed, R.C. 2151.414(E)(5); had been convicted more than once of child endangering
against her children under R.C. 2919.22(A), R.C. 2151.414(E)(6); and had allowed the children
to suffer neglect and that the likelihood of reoccurrence of that neglect posed a threat to the
children’s safety, R.C. 2151.414(E)(15). Mother does not specifically dispute any of the trial
court’s findings on the first prong of the permanent custody test. Moreover, the record includes
substantial, undisputed evidence to support each of these findings.
{¶24} Mother focuses her challenge on the trial court’s finding that permanent custody
was in the best interests of her six children. When determining whether a grant of permanent
custody is in a child’s best interests, the juvenile court must consider the following factors:
10
(a) The interaction and interrelationship of the child[ren] with [their] 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[ren], as expressed directly by [them] or through [their]
guardian ad litem, with due regard for the maturity of [each] child;
(c) The custodial history of the child[ren], including whether [they] ha[ve] been in
the temporary custody of one or more public children services agencies or private
child placing agencies for twelve or more months of a consecutive twenty-two-
month period ***;
(d) The child[ren]’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[.]
R.C. 2151.414(D)(1)(a)-(d).1
{¶25} Because Mother was incarcerated throughout most of this case, her ability to
interact with the children was limited to letters and phone calls, but there was no evidence that
she sent any written communication to the children. Mother was permitted to make up to 20
minutes of phone calls from prison every Monday. MCJFS arranged for each foster family to
have a prepaid cell phone so Mother could call the children on those phones from prison. After
MCJFS and the foster families arranged for the children to be available for weekly phone calls,
Mother had approximately 38 opportunities to call them while she was incarcerated, but she did
not take advantage of her ability to maintain contact with them. During a period of nearly nine
months, Mother called the older children five or six times and called the younger children only
five times. The foster mothers testified that the children enjoyed hearing from Mother and would
1
The factor set forth in R.C. 2151.414(D)(1)(e) does not apply to the facts of this case.
11
often ask why she did not call them more often. More significantly, during the two or three
months before the permanent custody hearing, Mother was no longer incarcerated, yet she did
not once contact the children by phone or letter, nor did she contact MCJFS to arrange for visits
with them.
{¶26} Mother’s lack of commitment to her children was further demonstrated through
her comments to the caseworker that she viewed her time away from her children as a vacation.
Mother told the caseworker that her incarceration was “the best thing that ever happened to her”
because she finally had a chance to relax. The caseworker tried to encourage Mother to work on
the reunification goals of the case plan, but Mother told the caseworker that she would request
extensions of temporary custody and work toward reunification later.
{¶27} Consequently, although Mother had the opportunity to work on several of the case
plan goals while in prison, rather than obtaining the required psychological assessment and
counseling, Mother joined groups and took classes that interested her. Of particular concern to
MCJFS was that Mother continued to accept no responsibility for the fact that her children had
been raised in an uninhabitable environment. MCJFS had worked with Mother over a period of
eight years, yet she still seemed to have no understanding that she had an obligation as a parent
to provide her children with a safe and sanitary home.
{¶28} The interaction between Mother and the children during the periods that they did
reside together was characterized by ongoing neglect. There was substantial evidence that
Mother did not properly feed, supervise, of otherwise care for the children. According to the
maternal grandmother, Mother never cooked for the children, but the older children would cook
and care for the younger children and themselves or Father would cook for them, until he left the
home in 2009.
12
{¶29} Even D.W., who was only seven years old when he last lived in Mother’s home,
would care for himself and his younger siblings. D.W. told his counselor that he often had to
feed himself and that he was most often cared for by his older siblings, not his parents. D.W.
further told his counselor about an incident when he burned himself while trying to prepare food.
{¶30} Because Mother did not obtain a psychological assessment, the state of her mental
health is unclear. In addition to her failure to tend to her home and her children, however, there
was other evidence to suggest that Mother suffered from untreated depression and anger issues,
including that she spent a great deal of time in bed, while her children fended for themselves.
There was further evidence that Mother had a volatile temper and would often yell at others in
the home. D.W. told his counselor that her anger made the children sad.
{¶31} When the children were removed from Mother’s home in 2011, they exhibited
many signs of neglect. They were hungry, had not bathed for days, and were wearing clothes
that were dirty, stained, ill-fitting, and inappropriate for the January weather. The foster mothers
each testified that, when the children came into their care, they fed and bathed them and
immediately took them shopping for clothes, as they were filthy and their clothes were not
salvageable. The children had to be taught basic hygiene practices and some were even afraid of
bathing because it was not a common experience for them. One of the foster mothers testified
that she had trouble getting the children to sit down to eat, and some of them hoarded food,
because they were afraid that there would not be enough for them to eat.
{¶32} While in foster care, the children had been working with the foster parents and
their counselors to improve their social and coping skills. A counselor testified that each of the
children had been diagnosed with adjustment disorder and also exhibited some symptoms of
long-term neglect, including that they were anxious and distrustful of others. She further
13
testified that it was possible for them to overcome these symptoms through counseling and by
living in a safe, stable, and structured environment. After spending several months in foster
placements that were providing the children with such positive environments, the children were
showing improvement in their behavior and outward appearance. Several witnesses testified
about how the children’s behavior and socialization had improved and that their hygiene was no
longer a problem.
{¶33} The children had also been building a positive relationship with their foster
families and with each other. According to the caseworker, each sibling group was comfortable
and doing well in its respective foster home. The foster mothers had made arrangements to get
all of the children together on a regular basis to engage in family activities and to maintain their
sibling relationship.
{¶34} The guardian ad litem testified that the children had initially wanted to return to
Mother’s home but that, over time, most of them no longer expressed that desire or had waffled
back and forth about their wishes. D.W.’s counselor further testified that, although he had
initially expressed a desire to return to Mother’s home, he no longer wanted to go home, unless
he knew that Mother would be different. He did not want to return to the same living conditions
as before.
{¶35} Mother argued at the hearing that there was a conflict between the wishes of the
children and the recommendation of the guardian ad litem. Because the children’s wishes were
not entirely clear from the testimony and report of the guardian ad litem, the trial judge
interviewed each child in camera. Most of the children expressed to the trial judge that they did
not know where they wanted to live. The older J.W. told the judge that he wanted to stay in the
foster home. Although seven-year-old R.W. said that he wanted to return to Mother’s home, the
14
trial judge found that R.W. lacked sufficient maturity to decide where he wanted to live. The
guardian ad litem had also testified that she believed that R.W. lacked sufficient maturity to
express his wishes and there is nothing in the record to dispute their findings. Therefore, the trial
judge was not required to consider the wishes of R.W., but could instead consider the
recommendation of the guardian ad litem. See R.C. 2151.414(D)(1)(b).
{¶36} The guardian ad litem, who had been involved with this family since 2003,
recommended permanent custody to MCJFS. The guardian expressed concern that Mother had
been given repeated opportunities to remedy the condition of her home but had not demonstrated
any ability or desire to do so. For more than eight years, Mother had continually repeated the
same cycle: the children would be removed due to the deplorable condition of the home; with the
help of outsiders, Mother’s home would be cleaned; the children would be returned; and the
condition of the home would eventually deteriorate again. The caseworker testified that Mother
did not demonstrate any understanding of her responsibility to provide her children with a safe
and sanitary environment but seemed to believe that the agency would continually bring in
outsiders to clean her home.
{¶37} The custodial history of the children involved living in the temporary custody of
the agency in this case for nearly a year and repeated removals from Mother’s home over a
period of eight years. This Court has repeatedly stressed, however, that “the time period in and
of itself cannot be held against the parent without considering the reasons for it and the
implications that it had on th[ese] child[ren].” In re C.M., 9th Dist. No. 21372, 2003-Ohio-5040,
¶ 16, quoting In re Smith, 9th Dist. No. 20711, 2002 WL 5178, *5 (Jan. 2, 2002). As already
explained in detail, the repeated removals of these children were due to the same problem and
15
Mother had made no progress in resolving it. In fact, the condition of the home at the time of the
most recent removal was even worse than in the past three cases.
{¶38} The six children, who had spent most of their lives moving in and out of Mother’s
home, were in need of a legally secure permanent placement. Mother had failed to demonstrate
that she had the ability to provide her children with a suitable home and MCJFS had found no
relatives who were willing and able to do so. Consequently, the trial court reasonably concluded
that adoption after permanent custody to the agency was the only way to achieve a legally secure
permanent placement for these children.
{¶39} Given the evidence presented at the hearing, the trial court reasonably concluded
that permanent custody to MCJFS was in the best interests of B.W., J.W., J.W., D.W., R.W., and
T.W. Mother’s first assignment of error is overruled.
Assignment of Error Number Two
THE CHILDREN WERE DENIED A FAIR HEARING AND THEIR DUE
PROCESS RIGHTS BY THE TRIAL COURT’S FAILURE TO APPOINT
COUNSEL FOR THE CHILDREN WHEN THEIR WISHES WERE IN
CONFLICT WITH THE RECOMMENDATION OF THE GUARDIAN AD
LITEM.
{¶40} Mother next argues that the trial court denied the children a fair hearing because it
failed to appoint independent counsel for the children due to the apparent conflict between the
wishes of the children and the recommendation of the guardian ad litem. We disagree.
{¶41} When the record demonstrates that the children’s wishes are in conflict with the
recommendation of the guardian ad litem, the trial court should appoint independent counsel to
represent a child who is of sufficient maturity. See In re Williams, 101 Ohio St.3d 398, 2004-
Ohio-1500, ¶ 17-18, 29. In this case, the guardian ad litem recommended permanent custody to
MCJFS and testified that the children had waffled back and forth between indicating that they
16
wanted to return to Mother’s home or stay with their foster families. Because the trial judge was
concerned that there might be a conflict between the wishes of the children and the
recommendation of the guardian ad litem, he interviewed each of the children in camera to
ascertain their actual wishes at that time. At the time of the in camera interview, only R.W.
expressed a desire to return to Mother’s custody. The trial judge determined that R.W. lacked
sufficient maturity to either decide where he wanted to live or to require the assistance of
counsel.
{¶42} Moreover, even if R.W. were of sufficient maturity to work with counsel, the
record fails to reveal that an actual conflict existed between R.W.’s wishes and the
recommendation of the guardian ad litem. As this Court has repeatedly emphasized, to
demonstrate a “conflict” between the child’s wishes and the guardian’s recommendation that
permanent custody is in the child’s best interest, the record must demonstrate that the child has
repeatedly and consistently expressed the affirmative desire to return to the parent’s home. E.g.,
In re J.P.-M., 9th Dist. Nos. 23694 & 23714, 2007-Ohio-5412, ¶ 56; In re J.B., 9th Dist. No.
23436, 2007-Ohio-620, ¶ 22-23. According to the guardian ad litem, all of the children had
waffled back and forth about their wishes throughout this case. Because there was no evidence
before the trial court that R.W. or any of the children had consistently and repeatedly expressed a
desire to return to Mother’s custody, there was no evidence of a conflict between their wishes
and the recommendation of the guardian ad litem. Therefore, the trial court did not err in failing
to appoint independent counsel for the children. Mother’s second assignment of error is
overruled.
17
Assignment of Error Number Three
THE TRIAL COURT ERRED BY ITS FAILURE TO DISCHARGE THE
GUARDIAN AD LITEM FOR FAILURE TO ADEQUATELY PERFORM HER
DUTIES AS REQUIRED BY R.C. 2151.281(D).
{¶43} Mother’s third assignment of error is that the trial court erred because it failed to
discharge the guardian ad litem. Specifically, she asserts that, pursuant to R.C. 2151.281(D), the
trial court was required to discharge the guardian for failing to fulfill her duties as set forth in
R.C. 2151.281(B)(1) and (I) and in Sup.R. 48. We disagree.
{¶44} Mother did not request removal of the guardian ad litem in the trial court, but
instead raises this issue for the first time on appeal. As this Court has repeatedly emphasized, the
Ohio General Assembly has expedited proceedings to terminate parental rights in an effort to
prevent children from lingering in foster care and “[a parent] should not be permitted to impose
an additional delay in the proceedings by raising a belated challenge for the first time on
appeal[.]” In re T.E., 9th Dist. No. 22835, 2006-Ohio-254, ¶ 9. Mother had the opportunity to
raise this issue at the permanent custody hearing, but chose not to. This Court is not inclined to
reward Mother “for sitting idly on her rights by addressing an alleged error that should have been
raised, and potentially rectified, in the trial court in a much more timely fashion.” Id.{¶45} Mother does not argue plain error, nor does the record demonstrate that the trial
court’s failure to remove the guardian affected “the basic fairness, integrity, or public reputation
of the judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, (1997) syllabus. As detailed above, there was
overwhelming evidence before the trial court to support its conclusion that the children could not
be returned to Mother’s custody within a reasonable time or should not be returned to her home
and that permanent custody was in their best interests. Because any failure on the part of the
18
guardian ad litem did not affect the outcome of this case, the trial court’s failure to remove her
did not constitute plain error. Mother’s third assignment of error is overruled.
III
{¶46} Mother’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
19
CARR, J.
MOORE, J.
CONCUR.
APPEARANCES:
CONRAD G. OLSON, Attorney at Law, for Appellant.
JENNIFER A. MOORE, Attorney at Law, for Appellee.
MARY ELLEN LESLIE, Guardian ad litem.