In re D.N.

2014 Ohio 5397

• Court: Ohio Court of Appeals
• Decided: December 8, 2014
• Docket: CA2014-07-016
• Status: Published

Opinion

[Cite as In re D.N., 2014-Ohio-5397.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

IN THE MATTER OF: : CASE NO. CA2014-07-016 D.N., et al. : OPINION : 12/8/2014

:

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. 12AND0375 & 12AND0376

Kristina M. Oesterle, P.O. Box 314, Washington C.H., Ohio 43160, Guardian Ad Litem

Jennifer J. Hitt, 63 North Main Street, Suite B, London, Ohio 43140, for appellant

Jess Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington C.H., Ohio 43160, for appellee

S. POWELL, J.

{¶ 1} Appellant ("Father"), the biological father of D.N. and A.N., appeals a decision

of the Fayette County Court of Common Pleas, Juvenile Division, granting permanent

custody of his children to a children services agency.

{¶ 2} On May 11, 2012, Fayette County Children Services ("FCCS") filed two

complaints alleging that D.N. and A.N. were abused and neglected children, and moved for Fayette CA2014-07-016

emergency temporary custody. The complaints alleged that a passer-by had observed D.N.,

who was three years old at the time, in a diaper on a public street with no adult supervision,

and that A.N., who was almost two years old at the time, was found strapped in a car seat on

the same street. The complaints also alleged that the children's biological mother ("Mother")

was arrested for child endangerment, and that Father was found hiding in a nearby house

where he was subsequently arrested on an outstanding warrant.

{¶ 3} The juvenile court granted temporary custody to FCCS on May 11, 2012, and

after a hearing the following week, affirmed that temporary custody would remain with FCCS

pending the disposition of the case. A guardian ad litem ("the GAL") was appointed for the

children on May 18, 2012, and a case plan was approved in June 2012 with the goal of

returning the children to their parents.

{¶ 4} On September 25, 2012, the juvenile court adjudicated D.N. and A.N.

dependent children, and ordered that temporary custody remain with FCCS. The juvenile

court then held several review hearings between October 2012 and April 2014, and extended

FCCS's temporary custody of the children each time. Prior to the last review hearing, FCCS

filed a motion for permanent custody.

{¶ 5} The permanent custody hearing was held on May 13, 2014. Mother was

present with her attorney. Father was also present with his attorney, having been transported

to the proceedings from prison. However, Father was removed from the courtroom at his

request at the beginning of the hearing. Thereafter, the juvenile court heard the testimony of

two witnesses: the FCCS caseworker who was responsible for the case, and the children's

GAL. Mother elected not to testify.

{¶ 6} The FCCS caseworker, Margo Robinson, provided information on Father's and

Mother's compliance with the case plan. Robinson testified that the children had been in the

custody of FCCS continuously since the case was opened on May 11, 2012. During that -2- Fayette CA2014-07-016

time, she stated that Father had not complied with the case plan, and had only visited the

children once, in September 2012. Robinson stated that Father was serving time in prison in

Highland County for possession of heroin, and had been incarcerated nine or ten times on

various charges since the case was opened in 2012. She also noted that for the majority of

the case there was a protection order in place to keep Father away from Mother.

{¶ 7} Continuing, Robinson testified that Mother had substantially complied with the

case plan and visited the children regularly when she was not incarcerated. Robinson

observed during Mother's visits that Mother was bonded with the children and interacted with

them appropriately, and that the children were bonded with her. Robinson also stated Mother

had completed the parenting classes, and had passed all three drug screens she took

between her release from substance abuse treatment in August 2013 and the permanent

custody hearing.

{¶ 8} However, Robinson also voiced several concerns. She noted that Mother had

been incarcerated 12 times since 2012 for probation violations, theft, and child

endangerment, including a span of eight consecutive months during which she was either

incarcerated or in a substance abuse treatment program. Robinson also pointed out that

Mother had not been able to maintain stable housing or steady income. In addition to being

incarcerated, Mother had had four different addresses during the case, and was presently

living in a small house with her elderly grandparents. Mother had not been employed at any

point during the case, and had no immediate job prospects. Further, according to Robinson,

Mother's compliance with the case plan decreased markedly after she had the protection

order against Father dropped in the fall of 2013.

{¶ 9} In addition to Robinson's testimony, the juvenile court heard testimony from the

GAL about the report she prepared regarding the children's best interests. In her report, the

GAL indicated that D.N., who was five years old at the time of the GAL's interview with him, -3- Fayette CA2014-07-016

said that he still wanted to visit Mother. A.N., who was approximately three and one-half

years old at the time of her interview, indicated that she wanted to live with Mother.

Nevertheless, the GAL reported that Mother had admitted during her interview that she was

not yet prepared to take custody of the children due to unsuitable housing and lack of

income. The GAL's report therefore concluded that because D.N. and A.N. required

permanency and stability in their lives, and because Mother and Father were unable to

provide for the children's basic needs, permanent custody should be granted to FCCS.

{¶ 10} In her testimony, the GAL acknowledged a bond between Mother and children.

She also testified that she had observed some of Mother's visits with the children, and that

they seemed to enjoy being with their mother. Yet, when asked to assess the maturity of the

children, the GAL stated that the children were on target developmentally, but "I don't know

that I'd necessarily rely on their opinions for what's in their best interest." Hence, the GAL

affirmed her recommendation that permanent custody be granted to FCCS.

{¶ 11} On June 13, 2014, the juvenile court granted FCCS's motion for permanent

custody of D.N. and A.N. Father now appeals, raising one assignment of error.

{¶ 12} THE [JUVENILE] COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE BEST

INTEREST OF THE MINOR CHILDREN TO PERMANENTLY TERMINATE THE PARENTAL

RIGHTS OF [FATHER] AND PLACE THE MINOR CHILDREN IN THE PERMANENT

CUSTODY OF FAYETTE COUNTY CHILDREN SERVICES BY NOT APPOINTING A

SEPARATE ATTORNEY TO ADVOCATE FOR THE WISHES OF THE MINOR CHILDREN.

{¶ 13} Before a natural parent's constitutionally protected liberty interest in the care

and custody of his children may be terminated, the state must prove by clear and convincing

evidence that the statutory standards for permanent custody have been met. Santosky v.

Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388 (1982). Appellate review of a juvenile court's -4- Fayette CA2014-07-016

decision granting permanent custody is limited to whether sufficient credible evidence exists

to support the juvenile court's determination. In re M.H., 12th Dist. Fayette No. CA2012-11-

035, 2013-Ohio-1063, ¶ 16.

{¶ 14} Pursuant to R.C. 2151.414(B)(1), a juvenile court may terminate parental rights

and award permanent custody to a children services agency if it makes findings pursuant to a

two-part test. In re M.H. at ¶ 17. First, the juvenile court must find clear and convincing

evidence that the grant of permanent custody to the agency is in the best interest of the

children, utilizing, in part, the factors of R.C. 2151.414(D). Id. Second, the court must find

that any of the following apply:

[T]he child is abandoned; the child is orphaned; the child has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; or where the preceding three factors do not apply, the child cannot be placed with either parent within a reasonable time or should not be placed with either parent.

Id., citing R.C. 2151.414(B)(1).

{¶ 15} The only aspect of the juvenile court's decision that Father calls into question in

this appeal is the juvenile court's finding with respect to one of the best interest factors. In

determining the best interest of the child, R.C. 2151.414(D)(1)(b) requires the court to

consider "[t]he 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." Father contends that the

juvenile court did not properly consider the wishes of D.N. and A.N. because it did not

appoint separate counsel for them when it appeared there was a conflict between the GAL's

recommendation and the children's wishes.

{¶ 16} At the outset, we note that Father elected to leave the permanent custody

hearing before either of the two witnesses were called, and thus failed to raise his objection

to the juvenile court. Generally, a party's failure to draw the lower court's attention to a

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potential error, by objection or otherwise, results in a waiver of the issue for purposes of

appeal, unless we find plain error. In re T.J., 12th Dist. Preble No. CA2008-10-019, 2009-

Ohio-1844, ¶ 34. Invocation of the plain error doctrine in civil cases is strictly limited to the

"'extremely rare case involving exceptional circumstances where error, to which no objection

was made at the trial court, seriously affects the basic fairness, integrity, or public reputation

of the judicial process, thereby challenging the legitimacy of the underlying judicial process

itself.'" Id. at ¶ 34-35, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.

{¶ 17} In support of his argument that the juvenile court should have appointed

separate counsel for the children, Father observes that Juv.R. 4(A) provides that children

have the right to counsel where they are subject to a juvenile proceeding. He also points to a

case from the Eleventh Appellate District for the proposition that where a guardian ad litem's

recommendations are in conflict with the child's wishes, the child is unrepresented in the

proceedings. See In re Williams, 11th Dist. Geauga Nos. 2002-G-2454 and 2002-G-2459,

2002-Ohio-6588. It therefore appears to be Father's position that the juvenile court could not

have properly considered the wishes of D.N. and A.N. because the children were not properly

represented at the hearing. However, Father's position is based on a misinterpretation of this

point of law.

{¶ 18} Generally, when an attorney is appointed as guardian ad litem, that attorney

may also act as counsel for the child, absent a conflict of interest. In re B.K., 12th Dist. No.

Butler CA2010-12-324, 2011-Ohio-4470, ¶ 19. The Ohio Supreme Court reviewed the

Williams case to which Father refers, and noted approvingly that:

Like other courts that have reached this conclusion, the [Eleventh Appellate District] recognized that courts 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 guardian ad litem being appointed to represent the child.

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(Emphasis added.) In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, ¶ 17. In other

words, although it is possible for a conflict to arise between the distinct roles of guardian ad

litem and counsel for the child, neither the Eleventh Appellate District nor the Ohio Supreme

Court suggested, as Father does, that a child has an absolute right to separate counsel when

the guardian ad litem's recommendations conflict with the wishes of the child. Id. at ¶ 18.

{¶ 19} Rather, where the guardian ad litem's recommendations conflict with the wishes

of the child, the juvenile court must, on a case-by-case basis, assess the maturity of the child

and determine whether the child actually needs separate counsel. In re B.K., 2011-Ohio-

4470 at ¶ 19. "Such appointment may be necessary when the child has consistently and

repeatedly expressed a strong desire that differs and is otherwise inconsistent with the

guardian ad litem's recommendations." Id.

{¶ 20} Based on the facts of this case, we find no error in the juvenile court's decision

not to appoint the children separate counsel. While it may be true that A.N. expressed a

desire to live with Mother, and D.N. expressed a desire to visit with Mother, there is no

indication that the desire was strong, or that they expressed the desire consistently or

repeatedly. Id. at ¶ 20. The GAL filed a number of reports over the two years that D.N. and

A.N. were in the custody of FCCS. Most of the reports indicate that the children were well-

adjusted to their foster homes. Indeed, the final report – the same report which indicated that

D.N. still wanted to visit with Mother – suggested that D.N. would rather live with his former

foster parents than with Mother.

{¶ 21} Further, at the time of the permanent custody hearing, D.N. and A.N. were five

years old and three and one-half years old, respectively. Although it is not unusual for

children of such young ages to express a desire to be with their parents, this desire does not

necessarily equate with a desire to remain in the parents' household. See In re G.C. & M.C.,

8th Dist. Cuyahoga No. 83994, 2004-Ohio-5607, ¶ 9. This is particularly so where, as here, -7- Fayette CA2014-07-016

the consequences of the issues with which the parents are struggling – drugs, lack of

adequate housing, unemployment, incarceration – are not readily understood by young

children. See, e.g., In re Lane, 3d Dist. Marion Nos. 9-03-61 and 9-03-62, 2004-Ohio-2798,

¶ 45 (finding no error in failing to appoint separate counsel where the children lacked the

maturity to make a meaningful representation of their wishes and there was overwhelming

evidence to support the court's findings that termination of parental rights was in the child's

best interests).

{¶ 22} The juvenile court's decision makes clear that it duly considered the testimony

of both Robinson and the GAL that the children appeared to be bonded with Mother. The

juvenile court also noted that A.N. expressed the desire to live with Mother, and D.N. wanted

to continue to visit Mother. Yet, taking into account all of the significant issues experienced

by Mother and Father, the juvenile court found clear and convincing evidence that the

children need a legally secure permanent placement, and that such a placement cannot be

achieved without a grant of permanent custody to FCCS. There is ample credible evidence

in the record to support the juvenile court's determination.

{¶ 23} For the foregoing reasons, Father's single assignment of error is overruled.

{¶ 24} Judgment affirmed.

RINGLAND, P.J., and M. POWELL, J., concur.

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