In re B.S.

2012 Ohio 1036

• Court: Ohio Court of Appeals
• Decided: March 13, 2012
• Docket: 11AP100041
• Status: Published

Opinion

[Cite as In re B.S., 2012-Ohio-1036.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES: Hon. Patricia A. Delaney, P.J. B.S. AND S.S. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.

Case No. 11AP100041

OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvnile Division Case No. 10 JN 00161

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 13, 2012

APPEARANCES:

For Appellant/Mother For Father

SHARON BUCKLEY-MIRHAIDARI JEFFREY GINSBURG 152 N. Broadway Ave., Suite 200 P.O. Box 250 New Philadelphia, Ohio 44663 Millersburg, Ohio 44654

For Appellee, Tuscarawas Guardian Ad Litem County Job and Family Services

DAVID HAVERFIELD KAREN DUMMERMUTH 389 16th Street, S.W. 349 East High Avenue New Philadelphia, Ohio 44663 Box 494 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 11AP100041 2

Hoffman, J.

{¶1} Appellant Charity Schenker (“Mother”) appeals the September 26, 2011

Judgment Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile

Division, which terminated her parental rights, privileges and obligations with respect to

her two minor children and granted permanent custody of the children to Appellee

Tuscarawas County Job and Family Services (“TCJFS”).

STATEMENT OF THE CASE AND FACTS

{¶2} On April 12, 2010, TCJFS filed a Complaint, alleging B.S. (dob 11/22/05)

and S.S. (dob 9/22/09) were neglected and dependent. Mother and Brock Schenker

are the biological parents of the two girls.1 TCJFS became involved after Mother

dismissed a protection order she had sought against Father based upon threats of harm

by Father as well as domestic violence. At the adjudicatory hearing on June 11, 2010,

Mother and Father stipulated the children were neglected and dependent. The trial

court approved and adopted a case plan for both parents. The children remained in the

temporary custody of TCJFS with parents being granted supervised visitation. TCJFS

suspended Mother’s visits following her first visit as Mother engaged in disruptive

conduct and left the visitation room and the agency inexplicably. The trial court

reinstated her visits, but suspended such again in April, 2011, after Mother repeatedly

tested positive for illegal drugs. Following the suspension of her visit in April, 2011,

Mother did not see the children and did not have any contact with TCJFS or the trial

court.

1 Father is not a party to this appeal. Tuscarawas County, Case No. 11AP100041 3

{¶3} On March 1, 2011, TCJFS filed a motion seeking permanent custody of

B.S. and S.S. The trial court conducted a hearing on the motion on August 11, 2011.

{¶4} At the hearing, Dr. Anita Exley, a clinical psychologist at Chrysalis

Counseling Center, testified she conducted an evaluation of Mother. As a result, Dr.

Exley diagnosed Mother with adjustment disorder with a histrionic personality disorder

as well as narcissistic personality features. Dr. Exley recommended Mother engage in

therapy to assist her in confronting her issues and to develop an ability to be more

emotionally available to her daughters. Dr. Exley stated if Mother did not follow through

with the recommendation of therapy, she would have concerns about reuniting the

children with Mother. The doctor explained she found Mother to be self-absorbed,

focused on her own issues, and placed her own needs and concerns above those of her

daughters.

{¶5} Jamie Grunder, the ongoing case manager for the family, testified drug

use was not a concern when the complaint was initially filed, but developed over time

regarding both parents. Grunder stated the last time she saw Mother was April 4, 2011,

at the hearing during which her visits with the children were suspended. Grunder

indicated Mother had moved out of state and had been evicted from her last residence

in April, 2011. Mother tested positive for marijuana at each meeting with Grunder.

Grunder had a difficult time finding Mother, who would not show up for appointments or

cancel them. Although the case plan was adopted in May, 2010, Mother did not submit

to her psychological evaluation until January, 2011. Mother did not follow through with

any of the recommendations. Mother completed the parenting classes. Grunder did not

know if Mother had housing as she had been evicted in April. Mother never provided Tuscarawas County, Case No. 11AP100041 4

Grunder of any proof of employment. Mother never completed a drug and alcohol

assessment. Mother tested positive for marijuana on the day of her last court

appearance in April, 2011.

{¶6} Via Judgment Entry dated September 25, 2011, the trial court terminated

Mother’s parental rights, privileges and responsibilities with respect to her two minor

daughters and granted permanent custody of the children to TCJFS.

{¶7} It is from this judgment entry Mother appeals, raising the following

assignments of error:

{¶8} “I. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY

SERVICES PERMANENT CUSTODY AS SAID DECISION WAS NOT SUPPORTED

BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY O.R.C. 2151.414 AND

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶9} “II. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY

SERVICES PERMANENT CUSTODY WHEN APPROPRIATE RELATIVE

PLACEMENT WAS AVAILABLE FOR THE CHILDREN.

{¶10} “III. THE CHILDREN WERE DENIED THEIR RIGHT TO DUE PROCESS

AS GUARANTEED BY THE OHIO AND U.S. CONSTITUTIONS WHEN THEY WERE

NOT APPOINTED LEGAL COUNSEL.”

{¶11} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).

I

{¶12} In her first assignment of error, Mother contends the trial court erred in

granting permanent custody of B.S. and S.S. to TCJFS as such decision was not Tuscarawas County, Case No. 11AP100041 5

supported by clear and convincing evidence and was against the manifest weight of the

evidence.

{¶13} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant,

competent and credible evidence upon which the fact finder could base its judgment.

Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments

supported by some competent, credible evidence going to all the essential elements of

the case will not be reversed as being against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Constr. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.

{¶14} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶15} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to

grant permanent custody to the agency, and that any of the following apply: (a) the child

is not abandoned or orphaned, and the child cannot be placed with either of the child's

parents within a reasonable time or should not be placed with the child's parents; (b) the

child is abandoned; (c) the child is orphaned and there are no relatives of the child who

are able to take permanent custody; or (d) the child has been in the temporary custody

of one or more public children services agencies or private child placement agencies for Tuscarawas County, Case No. 11AP100041 6

twelve or more months of a consecutive twenty-two month period ending on or after

March 18, 1999.

{¶16} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) the wishes of

the child as expressed directly by the child or through the child's guardian ad litem, with

due regard for the maturity of the child; (3) the custodial history of the child; and (4) the

child's need for a legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody.

{¶17} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

{¶18} If the child is not abandoned or orphaned, then the focus turns to whether

the child cannot be placed with either parent within a reasonable period of time or

should not be placed with the parents. Under R.C. 2151.414(E), the trial court must

consider all relevant evidence before making this determination. The trial court is

required to enter such a finding if it determines, by clear and convincing evidence, that

one or more of the factors enumerated in R.C. 2151.414(E)(1) through (16) exist with

respect to each of the child's parents. Tuscarawas County, Case No. 11AP100041 7

{¶19} In the instant action, Mother argues the trial court’s finding the children

could not or should not be placed with her within a reasonable time is against the

manifest weight of the evidence. Mother maintains the evidence established she

“successfully and substantially completed all case plan requirements except for the drug

and alcohol assessment.” We find the record belies Mother’s assertion.

{¶20} Some seven months after she was ordered to undergo a psychological

evaluation, Mother commenced the process. There was no evidence Mother followed

through with any of the recommendations. The psychologist diagnosed Mother with

adjustment and histrionic personality disorders as well as narcissistic personality traits.

Without Mother’s engaging in therapy, Dr. Extley expressed concerns about returning

the children to Mother.

{¶21} Mother’s visitation with the children was suspended as the result of her

drug use on two occasions during the pendency of the matter. Mother, however, did not

complete a drug and alcohol assessment. After her visitation was suspended on April

14, 2011, Mother had no further contact with the children, TCJFS, or the trial court.

{¶22} There was no evidence Mother had established stable housing. In fact,

the caseworker testified Mother had been evicted in April, 2011. The caseworker had

been informed Mother had moved to North Carolina.

{¶23} Based upon the foregoing, we find the trial court’s finding the children

could not or should not be returned to Mother was not against the manifest weight of the

{¶24} Mother’s first assignment of error is overruled. Tuscarawas County, Case No. 11AP100041 8

II

{¶25} In her second assignment of error, Mother asserts the trial court erred in

granting permanent custody of the children to TCJFS as there was appropriate relative

placement.

{¶26} In In re Schaefer, 111 Ohio St.3d 498, 857 N.E.2d 532, 2006–Ohio–5513,

the Ohio Supreme Court clearly found a trial court's statutory duty in determining

whether it is in the best interest of a child to grant permanent custody to an agency does

not include finding, by clear and convincing evidence, no suitable relative is available for

placement. The statute requires the trial court to weigh all relevant factors. R.C.

2151.414 requires the court to find the best option for the child once a determination

has been made pursuant to R.C. 2151.414(B)(1)(a) through (d). The statute does not

make the availability of a placement which would not require a termination of parental

rights an all-controlling factor nor require the court to weigh that factor more heavily than

other factors. Schaeffer at ¶ 64.

{¶27} TCJFS conducted a home study on the residence of maternal

grandmother, Donna Zarnick. Such was conducted even though neither Zarnick nor

Mother filed a motion with the trial court requesting Zarncik be considered for

placement. Following the home study, the case worker had concerns about placing the

children with Zarnick. The case worker noted Zarnick blamed the situation on Father

and the court system. Zarncik believed Mother should be able to parent her daughters.

The case worker indicated Zarnick was uncooperative and difficult during the home

study process. The case worker expressed concerns regarding the physical condition

of Zarnick’s home. Tuscarawas County, Case No. 11AP100041 9

{¶28} We find no error in the trial court’s decision not to place B.S. and S.S. with

their maternal grandmother.

{¶29} Mother’s second assignment of error is overruled.

III

{¶30} In her final assignment of error, Mother submits the trial court denied the

children their right to due process by failing to appoint legal counsel for the children as

the children’s wishes conflicted with the guardian ad litem’s recommendation.

{¶31} In In re Williams (2004), 101 Ohio St.3d 398, 805 N.E.2d 1110, 2004–

Ohio–1500, the Ohio Supreme Court held a child who is the subject of a juvenile court

proceeding to terminate parental rights is a party to that proceeding and is entitled to

independent counsel under certain circumstances. “[C]ourts should make a

determination, on a case-by-case basis, whether the child actually needs independent

counsel, taking into account the maturity of the child and the possibility of the child's

guardian ad litem being appointed to represent the child.” Id. at ¶ 17.

{¶32} The Williams court did not explain what circumstances might trigger the

juvenile court's duty to appoint counsel. See, In re A.T., Summit App. No. 23065, 2006–

Ohio–3919 at ¶ 57; In re Wylie, 2d Dist. No.2004CA0054, 2004–Ohio–7243, at ¶ 70.

The facts of Williams indicate the child whose custody was at issue was four years of

age at the time he was initially placed in the temporary custody of the child protective

agency. Williams at ¶ 2. He was subsequently returned to his mother, removed again,

and was six years of age at the time the permanent custody hearing was conducted. Id.

at ¶ 4. The child was represented by a guardian ad litem, who was an attorney, but was

not appointed to represent the child in a dual capacity. In re Williams, 11th Dist. Nos. Tuscarawas County, Case No. 11AP100041 10

2002–G2454, 2002–G–2459, 2002–Ohio–6588, at ¶ 20. The child was said to have

“repeatedly expressed a desire to remain with his mother,” and the guardian ad litem

recommended that permanent custody be granted to the agency. Williams, 2004–Ohio–

1500, at ¶ 5.

{¶33} The Williams Court emphasized the child expressed his wish for

reunification “often,” “consistently,” and “repeatedly.” Williams, 2002–Ohio–6588, at ¶

17, ¶ 20, and ¶ 9. He “often did not want to let appellant out of his sight.” Id. at ¶ 9.

Significantly, the appellate court recognized “there is no need to consider the

appointment of counsel based upon a child's occasional expression of a wish to be with

a parent or because of a statement made by an immature child.” (Emphasis added.) Id.

at ¶ 24; In re A. T., supra.

{¶34} In the case at bar, the only evidence to which Mother cites in support of

her position the trial court should have appointed separate legal counsel for B.S. and

S.S. was a letter from Gail Weisend, B.S.’s counselor, to the case worker, in which

Weisend stated B.S. was grieving the loss of Father “especially”, and wanted to go

home. B.S. never expressed any wishes directly to the case worker.

{¶35} Although the specific wishes of the child/children are a statutory factor the

trial court may consider in making a best interest determination, such consideration

must be made “with due regard for the maturity of the child”. R.C. 2151.414(B)(1)(b).

B.S. was five years of age at the time.

{¶36} We find the counselor’s general expression of the girl’s emotions does not

equate to the child’s ability to make a knowing choice to remain with one parent. The

counselor also noted B.S. was open to being loved by another mother and father. We Tuscarawas County, Case No. 11AP100041 11

find the counselor’s letter does not create a conflict with the recommendation for

permanent custody by a guardian ad litem as to warrant the appointment of separate

legal counsel for the children.

{¶37} The judgment of the Tuscarawas County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER Tuscarawas County, Case No. 11AP100041 12

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : B.S. AND S.S. : : : JUDGMENT ENTRY : : : Case No. 11AP100041

For the reasons stated in our accompanying Opinion, the judgment of the

Tuscarawas County Court of Common Pleas, Juvenile Division, is affirmed. Costs to

appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER