In re N.P

2016 Ohio 3125

• Court: Ohio Court of Appeals
• Decided: May 23, 2016
• Docket: 2016-L-002 & 2016-L-003
• Status: Published

Opinion

[Cite as In re N.P, 2016-Ohio-3125.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

IN THE MATTER OF N.P. AND E.M., : OPINION DEPENDENT CHILDREN. : CASE NOS. 2016-L-002 : 2016-L-003

Civil Appeals from the Lake County Court of Common Pleas, Juvenile Division. Case Nos. 2013 DP 00145 and 2013 NG 02047.

Judgment: Affirmed.

Christopher J. Boeman, P.O. Box 583, Willoughby, OH 44096 (For Appellant Veronica Pease).

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee Lake County Department of Job and Family Services).

Darya Jeffreys Klammer, The Klammer Law Office, Ltd., 7482 Center Street, Unit 6, Mentor, OH 44060 (Guardian ad litem).

TIMOTHY P. CANNON, J.

{¶1} Appellant, Veronica Pease, appeals from the December 4, 2015 judgment

of the Lake County Court of Common Pleas, Juvenile Division. The trial court declined

to appoint independent counsel for the minor children (N.P., d.o.b. 2/18/07, and E.M.,

d.o.b. 10/29/08) following our remand order and affirmed its prior decision granting

permanent custody to appellee, Lake County Department of Job and Family Services (“LCDJFS”). The complete factual and procedural history of this matter is recited in In

re N.P. & E.M., 11th Dist. Lake Nos. 2015-L-061 & 2015-L-062, 2015-Ohio-4542. For

the following reasons, we affirm the trial court’s decision.

{¶2} On January 6, 2015, LCDJFS filed motions for permanent custody of the

minor children. On February 26, 2015, appellant filed a motion to return custody to her.

These motions were set for a hearing. Prior to the hearing, the guardian ad litem filed

her reports on April 8, 2015, recommending the court grant permanent custody of the

children to LCDJFS.

{¶3} The hearing was held before the juvenile court judge on April 15, 2015.

Appellant was represented by counsel. Timothy and Stacy Zimmerman, the children’s

maternal aunt and uncle who had been joined as parties, appeared pro se. The

children’s guardian ad litem was present, but she did not testify. The parties stipulated

to the admission of the guardian ad litem’s reports. In addition to appellant, the

following witnesses testified before the court: Jennifer Dzugan, E.M.’s counselor at

Crossroads Mental Health Service; Shannon Easter Kelley, N.P.’s counselor at

Signature Health; Laurie Truhan, appellant’s counselor at Signature Health; Heather

Riser, a former social worker and supervisor at LCDJFS; Jessica Ray, a social worker

at LCDJFS; Stacy Zimmerman, with whom E.M. was residing; Ann Brown, the children’s

maternal grandmother and with whom appellant was residing; and Selena Hickman, the

children’s maternal great aunt.

{¶4} Ms. Riser testified that N.P. has “gone back and forth for a very long time”

about her wishes regarding living with appellant; that N.P. likes visiting with appellant,

but that she wanted to live with Ms. Hickman; and that N.P. did not feel safe at Mrs.

2 Brown’s, where appellant was living. Ms. Ray testified that N.P. feels safe with her

paternal grandmother in Georgia and with her foster mother, but neither are options for

permanent placement. The guardian ad litem’s report states that N.P. “has reported

concerns about returning to the home of [Mrs. Brown], where [appellant] resides”; that

N.P. clearly loves appellant; and that N.P. knows she is safe with her foster family and

is not safe with appellant given the circumstances. Ms. Hickman testified, on the other

hand, that N.P. repeatedly expressed she wants to go home to live with appellant.

{¶5} N.P. was interviewed by the court in camera in the presence of her

guardian ad litem. The court found that N.P. “loves her mother, however, she knows it

is unsafe to return to her maternal grandmother’s home (where her mother lives) and

she does not wish to live there. She has expressed a desire to live with her mother, but

she also expresses a desire to live with her paternal grandmother in Georgia.”

{¶6} E.M. was not interviewed in camera by the court, and a request for an

interview with E.M. was never made. Ms. Zimmerman testified that E.M. has, at times,

expressed to her that he wants to return home and live with appellant. Ms. Riser also

testified that E.M. has, at times, expressed he wants to return to appellant. The

guardian ad litem’s report indicated that E.M. stated he wants to stay with the

Zimmermans, but the guardian is not certain E.M. understands what that means; the

report indicates E.M. “misses [appellant] terribly.” The guardian also stated that E.M.

has never affirmatively stated he wants to live with appellant, but has stated he “is bad”

because he thinks he will not be able to go back to her.

3 {¶7} Appellant testified that she believes the children want to come back home

to live with her. Appellant currently lives with her mother, Mrs. Brown; Mrs. Brown also

testified that the children repeatedly state they miss appellant and want to come home.

{¶8} On April 17, 2015, the juvenile court granted LCDJFS’ motions for

permanent custody, and appellant was completely and permanently divested of all

parental rights regarding N.P. and E.M. In its entry, the court stated “that Mrs. Brown’s

testimony is not credible, that Ms. Hickman’s testimony is marginally credible and that

[appellant’s] testimony is completely unrealistic about her plans or ability to care for the

children.” It made no findings at that time as to the credibility of Ms. Zimmerman or that

it had considered the necessity of independent counsel for either child.

{¶9} Appellant appealed the trial court’s order. The sole issue on appeal was

whether N.P. and E.M., as minor children involved in a case where an agency was

seeking to terminate their parent’s parental rights, were entitled to independent counsel.

We held the trial court erred by not stating it had considered the necessity of

independent counsel for either child. N.P., supra, at ¶21. “This was necessary because

there was, in fact, testimony that the children’s wishes were contrary to the

recommendation of the guardian ad litem.” Id.

With no indication on the record that this was even considered, we cannot determine whether the children’s due process rights were protected. The trial court may have made a factual determination that there was no conflict or that the maturity level was such that independent counsel was not necessary, but that is not evident from this record. Many things may have occurred that are not a part of this record that influenced the trial court’s decision. However, it is not appropriate for this court to make that initial determination de novo on appeal.

4 Id. at ¶22. We remanded the matter to the juvenile court for the limited purpose of

determining whether to appoint independent counsel for either child, “taking into

account the maturity of each child and the possibility of a conflict between each child’s

wishes and the recommendation of the guardian ad litem. * * * If it decides that

independent counsel for the children is not warranted, the reasons why should be set

forth in the record.” Id. at ¶23.

{¶10} On remand, the trial court found that “the children’s wishes were not in

conflict with the recommendation of the Guardian ad Litem, therefore the appointment of

separate counsel was not warranted and hereby affirms its April 17, 2015 decision.”

{¶11} Appellant again appealed and asserts one assignment of error for our

review:

{¶12} “The trial court erred by determining that the appointment of separate

counsel for N.P. and E.M. to advocate for their wishes regarding permanent custody

was not warranted.”

{¶13} “[P]ursuant to R.C. 2151.352, as clarified by Juv.R. 4(A) and Juv.R. 2(Y),

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, 2004-Ohio-1500, ¶29 (emphasis

added). One circumstance in which it has been held that independent counsel is

generally warranted is “when a child has ‘repeatedly expressed a desire’ to remain or be

reunited with a parent but the child’s guardian ad litem believes it is in the child’s best

interest that permanent custody of the child be granted to the state.” In re Qu.W, 11th

5 Dist. Ashtabula No. 2015-A-0016, 2015-Ohio-2202, ¶61 (emphasis sic), quoting In re

Hilyard, 4th Dist. Vinton Nos. 05CA600—05CA609, 2006-Ohio-1965, ¶36.

{¶14} This determination, however, is to be made “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.” Williams, 2004-Ohio-1500, ¶17. Regarding the issue of maturity,

there is “no bright-line rule * * * regarding what age a child would be considered mature

for the purposes of the appointment of legal counsel.” In re Williams, 11th Dist. Geauga

Nos. 2002-G-2454 & 2004-G-2459, 2002-Ohio-6588, ¶25. Further, “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.” Id. at

¶24.

{¶15} Our standard of review on appeal, therefore, is whether the juvenile court

properly applied the law to the facts of the case, giving deference to the juvenile court’s

factual findings. N.P., supra, at ¶19.

{¶16} On remand, the trial court considered whether independent counsel was

needed for the children and set forth its reasons in the entry why the appointment of

independent counsel was not warranted. It found “the children’s wishes were not in

conflict with the recommendations of the guardian ad litem,” and “E.M. was not mature

enough to understand the gravity of the permanent custody situation * * * and therefore,

does not have the skills to adequately or completely communicate or understand his

thoughts and/or feelings.” The court further found that “if any such conflict existed, the

6 Court believes that [the guardian ad litem] would have notified the Court pursuant to

Superintendence Rule 48.”

{¶17} Regarding N.P., there was testimony that she expressed a desire to live

with appellant. That testimony, however, was found to be not credible or marginally

credible by the trial court. During her in camera interview, N.P. expressed she does not

feel safe at her maternal grandmother’s house, which is where appellant resides, and

that returning to appellant would be dangerous for her. We therefore agree with the trial

court that N.P.’s wishes and the guardian ad litem’s recommendation are not in conflict.

{¶18} Regarding E.M., his aunt, with whom he was living, testified that he had at

times expressed to her a desire to live with appellant. In its December 4, 2015

judgment entry, the trial court stated it found this testimony to be credible, but noted that

due to his mental health issues and lack of maturity, E.M. was unable to understand

permanent custody. E.M. had expressed to his guardian ad litem that he wanted to

remain with his aunt and uncle, but the guardian ad litem was not certain he understood

what that meant. E.M. did not ever express to the guardian ad litem that he wished to

return to appellant. The guardian ad litem also indicated to the trial court that E.M.

“would just play along” if the court were to interview him due to his lack of

communication skills. Jennifer Dzugan, E.M.’s counselor at Crossroads Mental Health

Service, testified that E.M. had difficulty expressing and discussing his feelings: “Any

time he felt uncomfortable or the feelings were tough for him, he would become

extremely disregulated. * * * He became highly anxious and would be in a frenzied

state, running, throwing things at people, pushing people away, things like that.”

7 {¶19} The trial court found that E.M. is unable to understand his own thoughts

and feelings regarding permanent custody due to his mental health issues and lack of

maturity. The trial court also stated that the “seasoned” guardian ad litem would have

notified the court if she found a conflict existed between E.M.’s best interest and E.M.’s

wishes. Because she did not do so, the trial court was confident that the guardian ad

litem’s recommendations were consistent with both.

{¶20} Some cases have held that a trial court should, at a minimum, hold an in

camera interview of the minor child before determining whether a conflict exists for

purposes of appointing independent counsel. See, e.g., In re Roque, 11th Dist.

Trumbull No. 2005-T-0138, 2006-Ohio-7007. Here, however, there is no compelling

evidence that E.M. unequivocally expressed a desire to live with appellant and

understood the consequence of doing so. Further, it is apparent that E.M.’s mental

health issues and lack of communication skills would have rendered an in camera

interview fairly superfluous. Due to E.M.’s immaturity and upon the facts of this case,

any possible error in “failing to further probe the child’s wishes” would have been

harmless error. In re J.B., 9th Dist. Summit No. 23436, 2007-Ohio-620, ¶24, citing In re

Shrider, 3d Dist. Wyandot No. 16-05-21, 2006-Ohio-2792, ¶25.

{¶21} Also, it must be noted that appellant, the children’s mother, was present at

all stages of the proceedings. At no time during the hearings did she request the trial

court appoint separate counsel for the children nor did she request the trial court

conduct an in camera interview with E.M. Even on remand, appellant did not request an

in camera interview with E.M.

8 {¶22} Ultimately, we must be mindful that “the fundamental or primary inquiry at

the dispositional phase of these juvenile proceedings” is the “best interests and welfare

of [the] child.” In re Cunningham, 59 Ohio St.2d 100, 106 (1979) (emphasis sic). At no

point on appeal has appellant challenged the trial court’s judgment as being against the

best interests or welfare of her children, and it is apparent from a review of the record

that such a challenge would have been unsuccessful. We do not perceive any benefit

either child would have received with regard to this issue had independent counsel been

appointed.

{¶23} Under the specific facts and circumstances of this case, we cannot say the

trial court committed error when it declined to appoint an independent attorney to

represent either child for purposes of the permanent custody proceedings.

{¶24} Appellant’s assignment of error is without merit.

{¶25} The judgment of the Lake County Court of Common Pleas, Juvenile

Division, is affirmed.

DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

____________________

COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.

{¶26} I would reverse and remand, with orders that the trial court appoint

counsel for the minor children, conduct an in camera interview with E.M., and hold a

new hearing on the motions for permanent custody. This matter was reversed and

9 remanded originally because we could not tell from the record what steps the trial court

took regarding appointment of counsel for the children, and what its reasoning was in

not appointing them counsel. On remand, the trial court did not take any new evidence:

it simply entered a judgment based on what it did before. The remand did not

accomplish its purpose. The best interest of the child is the paramount concern in

permanent custody proceedings. The trial court has not taken the steps necessary to

discover what these two children believe is in their own best interest nor could it discern,

without an interview, if they were mature enough to require separate counsel or

understand the gravity of the permanent custody situation.

{¶27} As the majority notes, the Supreme Court of Ohio has held that children

subject to juvenile proceedings are parties to the case, and are entitled to “independent

counsel in certain circumstances.” Williams, supra, at ¶29. This court has held that,

“[t]he ‘certain circumstances’ in which it has been found necessary to appoint

independent counsel are cases in which a motion for permanent custody has been filed

or in which there have been allegations of abuse.” In re B.J., 11th Dist. Geauga No.

2010-G-2946, 2010-Ohio-4696, ¶35. (Emphasis added.) These are permanent custody

proceedings. Under our own prior authority, the trial court had an absolute duty to

appoint counsel for these children.

{¶28} Further, it is universally recognized that when there is a conflict between

the expressed wishes of a child in permanent custody proceedings, and the

recommendation of the guardian ad litem, appointment of counsel for the child is

warranted.

10 {¶29} The trial court justified its failure to appoint counsel for E.M. because he

was not “mature enough to understand the gravity of the permanent custody situation,”

and “is not mature enough to express his desires or wishes.” This court has held:

“When a child lacks the maturity to express his or her wishes and nothing otherwise

indicates that the child’s wishes conflict with the guardian ad litem, a juvenile court is not

required to appoint counsel for the child. In re L.W., 9th Dist. Summit Nos. 26861 and

26871, 2013-Ohio-5556, ¶20.” In re Qu. W., 11th Dist. Ashtabula No. 2015-A-0016,

2015-Ohio-2202, ¶61. In this case, various witnesses testified E.M. loves his mother,

and wishes to be with her. These witnesses include two social workers involved in the

case. The report of the guardian ad litem indicates he still loves his mother. Thus, at

the very least other circumstances indicate his wishes conflict with the opinion of the

guardian ad litem, entitling him to counsel. Id.

{¶30} I note the trial court did not interview E.M. in camera, even on remand. In

In re Williams, 11th Dist. Geauga Case Nos. 2003-G-2498 and 2003-G-2499, at ¶18,

this court held:

{¶31} “When, as in this case, the court is informed of the child’s expressed

desire to remain with his natural parent, the decision to appoint counsel should be made

on a case by case basis based on the child’s maturity. At a minimum, the court should

conduct an in-camera, recorded interview with the child before making a lack of maturity

to benefit from having appointed counsel decision.” (Emphasis added.)

{¶32} By not conducting an in camera interview with E.M., the trial court ignored

our binding precedent.

11 {¶33} I believe the trial court has an independent obligation to conduct such an

interview in permanent custody proceedings, when there are indications the child and

the guardian ad litem do not agree. The failure to conduct such an interview with E.M.

in this case further illustrates the necessity of appointing counsel for children in

permanent custody proceedings – so there is someone present to advocate for the

child, as by requesting an in camera interview.

{¶34} The trial court found that N.P. felt unsafe at the home of her maternal

grandmother, with whom mother lives. The guardian ad litem found the same.

Nevertheless, both the guardian ad litem, and the trial court, agreed that N.P. misses

her mother, and loves her. One of the social workers testifying stated that N.P.

expressed periodically a desire to live again with her mother, or with her maternal aunt.

These are sufficient indicia that N.P.’s wishes conflicted sufficiently with the

recommendation of the guardian ad litem so as to require appointment of counsel for

her.

{¶35} As I stated in my concurring opinion on the initial appeal, “[b]ecause the

minor children went [through these proceedings] without legal representation, they did

not receive due process in this juvenile, permanent custody proceeding. See, e.g., In re

Gault, 387 U.S. 1, * * * (1967).” In re N.P. & E.M., supra, at ¶37. They still have not.

{¶36} I respectfully dissent.