In re K.S.

2016 Ohio 7587

• Court: Ohio Court of Appeals
• Decided: November 2, 2016
• Docket: 28257
• Status: Published

Opinion

[Cite as In re K.S., 2016-Ohio-7587.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: K.S. C.A. No. 28257 K.S.

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 14-05-335

DECISION AND JOURNAL ENTRY

Dated: November 2, 2016

WHITMORE, Judge.

{¶1} Appellant, Candace D. (“Mother”), appeals from a judgment of the Summit

County Court of Common Pleas, Juvenile Division, that terminated her parental rights to two of

her minor children and placed them in the permanent custody of Summit County Children

Services Board (“CSB”). This Court affirms.

I

{¶2} Mother is the biological mother of K.S., born April 23, 2009; and K.S., born

January 19, 2012. Mother has an older minor child who was placed in the custody of his paternal

grandfather and is not a party to this appeal. The fathers of K.S. and K.S. did not appeal from

the trial court’s judgment.

{¶3} Mother voluntarily placed K.S. and K.S. with CSB on August 14, 2013. Both

children were later adjudicated as dependent children and CSB eventually moved for permanent

custody of them. Mother did not dispute that she was unable to provide her children with a 2

suitable home because, by that time, she had been convicted of a felony and would remain

incarcerated for several years. Instead, she filed a motion for the children to be placed in the

legal custody of her adult son.

{¶4} Following a hearing on the alternate dispositional motions, the trial court

terminated parental rights and placed K.S. and K.S. in the permanent custody of CSB. Mother

filed a timely motion for a new trial, but the trial court denied her motion.

{¶5} Pursuant to App.R. 4(B)(2)(b), the time to appeal from the permanent custody

judgment did not begin to run until the trial court denied Mother’s motion for new trial. Mother

timely appealed and raises one assignment of error.

II

Assignment of Error

THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY FAILING TO APPOINT AN ATTORNEY FOR A CHILD AFTER LEARNING OF A CONFLICT BETWEEN THE GUARDIAN AD LITEM RECOMMENDATION AND CHILD’S WISHES.

{¶6} Although Mother has timely appealed from the trial court’s permanent custody

judgment and its judgment denying her motion for new trial, she does not challenge the trial

court’s denial of her motion for new trial through her assignment of error and argument. See

App.R. 12(A)(1)(b); App.R. 16(A)(7). Consequently, this Court does not address the propriety

of the trial court denying her motion for a new trial under Civ.R 59.

{¶7} Mother confines her argument to the trial court’s permanent custody judgment

and argues that the trial court erred in failing to appoint independent counsel for the older K.S.

because there was a conflict between her wishes and the recommendation of the guardian ad

litem. See, e.g., In re K.H., 9th Dist. Summit No. 22765, 2005-Ohio-6323, ¶ 38. Mother did not

file a written motion with the trial court to appoint counsel for the child, nor did she make an oral 3

request before or during the permanent custody hearing. Instead, she asserts that the trial court

should have sua sponte appointed counsel for the older K.S. because “[t]he Court became aware

of the conflict at trial, but took no action.” Mother’s assertion that the trial court became aware

of an apparent conflict during the permanent custody hearing is not supported by the record. In

fact, nothing in the record before or during the permanent custody hearing even suggests that

there was a conflict between the wishes of the older K.S. and the recommendation of the

guardian ad litem. Because Mother has premised her argument on facts that do not exist in the

record, her assignment of error is overruled.

III

{¶8} Mother’s assignment of error is overruled. The judgment of the Summit 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 Summit, 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. 4

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

MOORE, P. J. HENSAL, J. CONCUR.

APPEARANCES:

RANDALL C. BRAY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

MARY ELLEN LESLIE, Attorney at Law, for Appellee.

DAVID C., pro se, Appellee.