In re C.R.

2020 Ohio 4082

Opinion

[Cite as In re C.R., 2020-Ohio-4082.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: JUDGES: Hon. William B. Hoffman, P.J. C.R., A.D., & J.D. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.

Case Nos. 2020CA00044, 2020CA00045, & 2020CA00046

O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Juvenile Division, Case Nos. 2018JCV00666, 2018JCV00667 & 2018JCV00668

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 12, 2020

APPEARANCES:

For Plaintiff-Appellee For Mother Defendant-Appellant

BRANDON J. WALTENBAUGH BERNARD L. HUNT Stark County Department of Jobs 2395 McGinty Road, N.W. And Family Services North Canton, Ohio 44720 402 – 2nd Street, S.E. Canton, Ohio 44702 Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 2

Hoffman, P.J. {¶1} In Stark App. Nos. 20-44, 20-45, and 20-46, Appellant Tabitha Flowers

(“Mother”) appeals the February 3, 2020 Judgment Entries and accompanying Findings

of Fact and Conclusions of Law entered by the Stark County Court of Common Pleas,

Family Court Division, which terminated her parental rights and responsibilities with

respect to her three minor children (“Child 1”, “Child 2”, and “Child 3”, individually; and

“the Children”, collectively), and granted permanent custody of the Children to appellee

Stark County Department of Job and Family Services (“SCDJFS”).

STATEMENT OF THE FACTS AND CASE

{¶2} Mother and Jeffrey Ramsey (“Father Ramsey”) are the biological parents of

Child 1.1 Mother and Bernard Daugherty, Jr. (“Father Daugherty”) are the biological

parents of Child 2 and Child 3.2 On June 26, 2018, SCDJFS filed complaints alleging the

Children were dependent and/or neglected. The trial court conducted an emergency

shelter care hearing on June 27, 2018. Neither Mother nor Fathers appeared. The trial

court placed the Children in the emergency temporary custody of SCDJFS. At a pretrial

hearing on July 25, 2018, Mother requested an evidentiary hearing with regards to

adjudication and disposition.

{¶3} The trial court conducted an adjudication and dispositional hearing on

September 13, 2018. SCDJFS moved to delete the allegations of neglect. Mother

stipulated to findings of dependency. Ramsey did not appear. Following SCDJFS’s

presentation of evidence with regards to Father Ramsey, the trial court found Child 1 to

be dependent. Father Daugherty stipulated to a finding of dependency as to Child 2 and

1 Father Ramsey is not a party to this Appeal. 2 Father Daugherty is not a party to this Appeal. Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 3

Child 3. The trial court found the Children to be dependent and proceeded to disposition.

Mother was ordered to complete her substance abuse treatment and maintain sobriety.

Mother had been arrested and was completing inpatient treatment as ordered by the

criminal court. The trial court placed the Children in the temporary custody of SCDJFS.

{¶4} The trial court conducted a review hearing on December 21, 2018. The

Children’s attorney/guardian ad litem indicated Mother and Father Daugherty were doing

a “fantastic” job. Mother was compliant with her Summit County probation, was attending

counseling at Coleman Behavioral Health, had successfully completed her inpatient

substance abuse treatment, and was providing negative drug screens. Mother voluntarily

requested and completed parenting classes. The trial court approved and adopted the

case plan and maintained the status quo.

{¶5} On March 29, 2019, SCDJFS filed a motion to extend temporary custody.

Following a review hearing on August 20, 2019, the trial court extended temporary

custody to December 26, 2019, and maintained the status quo. SCDJF filed motions for

permanent custody on November 4, 2019. At a review hearing on November 21, 2019,

the trial court found no compelling reason to preclude a request for permanent custody to

SCDJFS.

{¶6} The guardian ad litem submitted her report on January 9, 2020. The

guardian recommended the Children be placed in the permanent custody of SCDJFS.

The trial court conducted a hearing on SCDJF’s motions for permanent custody on

January 16, 2020.

{¶7} Rachael William, the ongoing caseworker assigned to the family, testified

SCDJFS had been working with the family on a non-court basis since November, 2017, Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 4

after Mother was arrested for using methamphetamine and violating her probation.

Mother was pregnant with Child 3 at the time. Child 1 and Child 2 were staying with

Father Daugherty while Mother was in a residential correctional center. After Father

Daugherty was arrested for using methamphetamine and violating his probation, Child 1

and Child 2 stayed with relatives. On February 8, 2018, Mother was released from the

treatment facility and gave birth to Child 3 four days later. SCDJFS put a safety plan in

place.

{¶8} Mother’s initial case plan included substance abuse treatment, mental

health services, complying with probation, and obtaining housing. Mother was diagnosed

with depression and anxiety. Individual counseling was recommended, but Mother was

inconsistent with counseling.

{¶9} Mother continued to test positive for methamphetamine, which lead to

probation violations, arrests, and incarcerations. As a result, SCDJFS filed the complaints

herein. Mother was referred to Interval Brotherhood Treatment Center. She was

discharged on September 25, 2018. Interval Brotherhood staff recommended ongoing

counseling and participation in meetings. Mother completed an assessment at

CommQuest on February 22, 2019. CommQuest staff recommended an intensive

outpatient program. Mother entered CommQuest Deliverance House on April 5, 2019.

On April 13, 2019, Mother left the facility against staff advice. She returned to Interval

Brotherhood on June 17, 2019, and remained in the facility until August 15, 2019. Mother

then went back to CommQuest, but was unsuccessfully discharged from treatment on

January 13, 2020, due to non-compliance. Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 5

{¶10} Mother missed more than forty drug screens in 2019. She tested positive

for amphetamine and methamphetamine on February 25, 2019, positive for

amphetamine, methamphetamine, and marijuana on May 1, 2019, positive for

amphetamine, marijuana, and alcohol on May 20, 2019, positive for amphetamine,

methamphetamine, and marijuana on June 4, 2019, and positive for amphetamine,

methamphetamine, and marijuana on October 16, 2019.

{¶11} Although employed at the time of the hearing, Mother struggled with

maintaining stable employment throughout the course of the proceedings. Mother had

moved at least three times during SCDJF’s court and non-court involvement. At the time

of the hearing, she was living with a friend. Mother admitted she previously told Williams

she did not want the Children to live with the friend. Mother testified she was not involved

with any substance abuse treatment. Mother denied the need for mental health treatment

and maintained she would not have mental health issues once she obtained “sobriety.”

Mother indicated she has struggled with methamphetamine use for at least eight years.

Mother revealed she had used methamphetamine three times in October, 2019.

{¶12} Rachael Williams testified during the best interest portion of the hearing.

Williams stated the Children are physically healthy. Child 1, who had moved placements

multiple times throughout the proceeding, had some emotional and behavioral issues.

Child 1 had been in his current foster home for several months and was bonded with his

foster family. Child 2 and Child 3 are placed together in a foster home. They have been

with the foster family since their initial removal. Child 1 and Child 2 are bonded with the

foster family and the foster family is interested in adopting them. Williams believed

permanent custody was in the Children’s best interest. Williams was unaware of any Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 6

appropriate relatives interested in pursuing custody of the Children. When asked if Child

1 would like to return to Mother, Williams acknowledged, “I think that is a yes.” Thereafter,

counsel for Mother expressed concern Child 1’s wishes were different from the

recommendations of the guardian ad litem, adding “usually in those circumstances I think

we appoint an attorney” for Child 1.

{¶13} The trial court issued separate Findings of Fact and Conclusions of Law on

February 3, 2020. The trial court found Mother had failed to remedy the conditions which

caused the removal of the Children from her home. The trial court further found Mother’s

severe and chronic chemical dependency rendered her incapable of providing a home for

the Children within one year. The trial court concluded the Children cannot be placed

with Mother within a reasonable time or should not be placed with her. The trial court

also concluded it would be in the best interest of the Children to grant permanent custody

to SCDJFS.

{¶14} In Stark App. Nos. 20-44, 20-45, and 20-46, Mother raises the following

identical assignments of error:

I. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY OF C.R. PURSUANT TO R.C.2151.352 AS CLARIFIED BY

JUV. R. 4(A) AND JUV. R. 2(Y).

II. THE TRIAL COURT’S JUDGMENT THAT C.R. SHOULD NOT BE

PLACED WITH THE APPELLANT WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE. Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 7

{¶15} These cases come to us on the expedited calendar and shall be considered

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

STARK APP. NO. 20-44

I

STARK APP. NO. 20-45

STARK APP. NO. 20-46

{¶16} In her first assignment of error in all three appeals, Mother submits the trial

court erred in granting permanent custody of Child 1 without appointing independent

counsel for him as Child 1’s wishes were different from the guardian ad litem’s

recommendation. Mother makes no arguments relative to Child 2 and/or Child 3;

therefore, our analysis will address only Child 1.

{¶17} R.C. 2151.352 provides:

A child or the child's parents, custodian, or other person in loco

parentis of such child is entitled to representation by legal counsel at all

stages of the proceedings under this chapter or Chapter 2152. of the

Revised Code and if, as an indigent person, any such person is unable to

employ counsel, to have counsel provided for the person * * *. Counsel must

be provided for a child not represented by the child's parent, guardian, or

custodian. If the interests of two or more such parties conflict, separate

counsel shall be provided for each of them. Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 8

{¶18} In addition, Juv.R. 4(A) provides:

Every party shall have the right to be represented by counsel and

every child, parent, custodian, or other person in loco parentis the right to

appointed counsel if indigent. These rights shall arise when a person

becomes a party to a juvenile court proceeding. When the complaint alleges

that a child is an abused child, the court must appoint an attorney to

represent the interests of the child. This rule shall not be construed to

provide for a right to appointed counsel in cases in which that right is not

otherwise provided for by constitution or statute.

{¶19} “Pursuant to R.C. 2151.352, as clarified by Juv.R. 4(A) and Juv.R. 2(Y)3, a

child who is the subject of a juvenile court proceeding to terminate parental rights is a

party to that proceeding and, therefore, is entitled to independent counsel in certain

circumstances.” In re Williams, 101 Ohio St.3d 398, 805 N.E.2d 1110, 2004–Ohio–

1500, syllabus. The Williams Court did not mandate a child always have independent

counsel in a juvenile court proceeding to terminate parental rights. Rather, a child is

entitled to independent counsel in a termination of parental rights proceeding only when

“certain circumstances” exist. Id.

{¶20} The Williams Court did not explicitly explain the “certain circumstances”

which would warrant the appointment of independent counsel, but offered the following

guidance to a trial court in ascertaining if “certain circumstances” exist: “courts should

3 The definition of “Party” found in Juv. R. 2(Y) includes “a child who is the subject of a juvenile court proceeding.” Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 9

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

trial court must appoint independent counsel for a child “when a guardian ad litem who is

also appointed as the juvenile's attorney recommends a disposition that conflicts with the

juvenile's wishes.” Id.at ¶ 18.

{¶21} As such, a trial court ordinarily should appoint independent counsel for a

child “ ‘when the child has consistently and repeatedly expressed a strong desire that

differs and is otherwise inconsistent with the guardian ad litem's recommendations’.” In

re V.L., 12th Dist. Butler No. CA2016-03-045, 2016-Ohio-4898, 2016 WL 3654502, ¶ 39,

quoting In re B.K., 12th Dist. Butler No. CA2010-12-324, 2011-Ohio-4470, 2011 WL

3891495, ¶ 19; accord, In re Hilyard, 4th Dist. Vinton Nos. 05CA600 - 05CA609, 2006-

Ohio-1965, 2006 WL 1045495, ¶ 36. However, a trial court generally need not “ ‘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’. ” In re N.P., 2016-

Ohio-3125, 65 N.E.3d 319 (11th Dist.), ¶ 14, quoting In re Williams, 11th Dist. Geauga

Nos. 2002-G-2454, 2002-Ohio-6588, 2002 WL 31716777, ¶ 24; accord In re E.S., 2d Dist.

Clark No. 2016-CA-36, 2017-Ohio-219, 2017 WL 275893, ¶ 49.

{¶22} In the case at bar, “certain circumstances” do not exist. At the permanent

custody hearing, counsel for Mother asked the caseworker, Rachael Williams, if Child 1

would like to return to Mother. Williams answered, “I think that is a yes.” Transcript of

January 16, 2020 Permanent Custody Hearing at 56. Other than Williams’ opinion, there

is nothing in the record to establish Child 1 “consistently and repeatedly expressed a Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 10

strong desire” to live with Mother. Accordingly, we find the appointment of independent

counsel was not required.

{¶23} Mother’s first assignment of error is overruled.

II

{¶24} In her second assignments of error, Mother maintains the trial court’s finding

the Children should not be placed with her was against the manifest weight and

sufficiency of the evidence.

{¶25} 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.

{¶26} 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 Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 11

placing agency that has temporary custody of the child or has placed the child in long-

term foster care.

{¶27} 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

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

18, 1999.

{¶28} 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.

{¶29} If the child is not abandoned or orphaned, 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 Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 12

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

{¶30} As set forth in our statement of the facts and case, supra, Mother failed to

complete her case plan. Mother’s initial case plan included substance abuse treatment,

mental health services, complying with probation, and obtaining housing. Individual

counseling was recommended to address Mother’s anxiety and depression, but Mother

was inconsistent with counseling. Mother continued to use methamphetamine throughout

the case. Mother failed to successfully complete residential drug treatment despite

multiple admissions into treatment facilities. Mother missed more than forty drug screens

in 2019. She tested positive for amphetamine and methamphetamine on February 25,

2019, positive for amphetamine, methamphetamine, and marijuana on May 1, 2019,

positive for amphetamine, marijuana, and alcohol on May 20, 2019, positive for

amphetamine, methamphetamine, and marijuana on June 4, 2019, and positive for

amphetamine, methamphetamine, and marijuana on October 16, 2019.

{¶31} Although employed at the time of the hearing, Mother struggled with

maintaining stable employment throughout the course of the proceedings. Mother had

moved at least three times during SCDJF’s court and non-court involvement. At the time

of the hearing, she was living with a friend. Mother admitted she previously told Williams

she did not want the Children to live with the friend. Mother testified she was not involved

with any substance abuse treatment. Mother denied the need for mental health treatment

and maintained she would not have mental health issues once she obtained “sobriety.”

Mother indicated she has struggled with methamphetamine use for at least eight years.

Mother revealed she had used methamphetamine three times in October, 2019. Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 13

{¶32} The Children are physically healthy. Child 1, who had moved placements

multiple times throughout the proceeding, had some emotional and behavioral issues.

Child 1 had been in his current foster home for several months and was bonded with his

foster family. Child 2 and Child 3 are placed together in a foster home. They have been

with the foster family since their initial removal. Child 1 and Child 2 are bonded with the

foster family and the foster family is interested in adopting them. Williams believed

permanent custody was in the Children’s best interests.

{¶33} Based upon the foregoing, we find the trial court's finding it was in the

Children’s best interests to grant permanent custody to SCDJFS is not against the

manifest weight of the evidence. We further find the trial court's finding the Children could

not be placed with Mother within a reasonable period of time or should not be placed with

her is not against the manifest weight of the evidence.

{¶34} Mother’s second assignments of error are overruled. Stark County, Case Nos. 2020CA00044, 2020CA00045 & 2020CA00046 14

{¶35} The judgments of the Stark County Court of Common Pleas, Juvenile

Division, are affirmed.

By: Hoffman, P.J. Gwin, J. and Baldwin, J. concur