In re S.C.

938 N.E.2d 390, 189 Ohio App. 3d 308
CourtOhio Court of Appeals
DecidedJuly 12, 2010
DocketNos. 09CA798 and 09CA799
StatusPublished
Cited by6 cases

This text of 938 N.E.2d 390 (In re S.C.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re S.C., 938 N.E.2d 390, 189 Ohio App. 3d 308 (Ohio Ct. App. 2010).

Opinion

McFarland, Presiding Judge.

{¶ 1} Appellants John Collins and Mary Nichols appeal the decision of the Pike County Court of Common Pleas terminating their parental rights and awarding permanent custody of their children to the Pike County Children Services Board. Regarding Collins’s appeal, because we cannot say that there is clear and convincing evidence that such an action was in the best interests of the children, we must reverse the trial court’s decision to terminate his parental rights. However, as to Nichols’s appeal, we find that she failed to oppose the motion for permanent custody in the proceedings below. And even if in so doing she did not waive her right to appeal, none of her assignments of error are warranted. Accordingly, we affirm the trial court’s decision as to Nichols, overrule its decision as to Collins, and remand the matter for further proceedings consistent with this opinion.

I. Facts

{¶ 2} This case involves the permanent custody of three minor children, S.C., M.C., and D.C. In July 2009, the time of the final permanent-custody hearing, [311]*311S.C. was nine years old, M.C. was seven, and D.C. was three. The children’s parents are the appellants in this case, John Collins and Mary Nichols. Though never married, Collins and. Nichols have been involved in a relationship for many years. They are also the parents of an older child, approximately 14 years old at the time of the permanent-custody hearing. This older child is not directly involved in the case at hand.

{¶ 3} Pike County Children Services first obtained temporary custody of S.C. and M.C. in December 2004; D.C. was not yet born. Temporary custody was obtained due to allegations of neglect, concerns with Collins’s alcohol abuse, poor home conditions, and lack of parental supervision. All parties stipulated to a finding of dependency. A case plan was implemented, with which both Collins and Nichols successfully complied, and they regained custody of S.C. and M.C. in September 2005. In late 2006, the couple split and began living in separate residences.

{¶ 4} In May 2007, S.C., M.C., and D.C., living with Nichols, were removed from her home due to her mental illness. At the time, Nichols was hallucinating and displaying delusional behavior. In August 2007, Children Services filed dependency complaints and again sought temporary custody of the children. Collins requested placement of the children in his home. Collins and Nichols later both stipulated to a finding of dependency, and the trial court again awarded temporary custody to Children Services. Children Services implemented a case plan with Collins and Nichols, with the goal of reunification. Under the terms of the case plan, due to his history of alcohol abuse, Collins was to continue therapy and follow all recommendations of his therapist and treatment team. Children Services also requested that he undergo a psychological evaluation, which he agreed to. At some point after temporary custody was awarded to Children Services, Collins and Nichols began residing together again.

{¶ 5} In October 2008, Children Services filed a motion for permanent custody of S.C., M.C., and D.C. The motion was subsequently withdrawn and then refiled in March 2009. The final permanent-custody hearings took place in May and July 2009. At the hearing, Children Services presented the testimony of caseworkers, the foster parents, the children’s guardian ad litem, and the psychologists who had given Collins and Nichols psychological evaluations back in 2007. At the close of the hearing, the trial court requested briefs from the parties and took the matter under advisement. The trial court subsequently entered a judgment granting permanent custody of the children to Children Services.

{¶ 6} Collins and Nichols separately appealed the trial court’s decision. We sua sponte consolidated the appeals and consider them together in this opinion.

[312]*312II. John Collins’s Assignments of Error

First Assignment of Error

The due process rights of the children were violated by the failure of the trial court to properly notify the children, through their guardian ad litem, to apply for legal counsel on the permanent custody motion.

Second Assignment of Error

The trial court erred by failing to appoint an attorney in addition to a non-attorney guardian ad litem to represent the interests of the children in violation of their due process rights.

Third Assignment of Error

The trial court erred by permitting a non-attorney guardian ad litem to act as trial counsel for the children during the initial trial on permanent custody; and by not insuring guardian ad litem compliance with Supreme Court Rule of Superintendence 48, as amended.

Fourth Assignment of Error

The trial court erred by admiting [sic] and relying upon the guardian ad litem reports that contained underlying hearsay information, and that were submitted outside of the requirements of Supreme Court Superintendence Rule 48.

Fifth Assignment of Error

The trial court denied Collins’ right to effective assistance of counsel by failing to grant Collins’ motion for independent psychological evaluation, or at least requiring the agency to update the evaluation.

Sixth Assignment of Error

The evidence does not support the trial court’s finding the agency made reasonable efforts.

Seventh Assignment of Error

The trial court’s ruling is not supported by clear and convincing evidence.

III. Mary Nichols’s Assignments of Error

The trial court erred in failing to appoint an attorney in addition to a non-attorney guardian ad litem to represent the interests of the children in violation of their due process rights.

[313]*313Second Assignment of Error

The trial court erred to the prejudice of Mary Nichols by permitting a non-attorney guardian ad litem standing as a trial counsel for the children during the initial trial on permanent custody; and specifically the guardian ad litem violated various provisions of Ohio Supreme Court Rule of Superintendence 48 as amended.
The trial court erred to the prejudice of appellant by admiting [sic] and relying upon the guardian ad litem reports that contained underlying hearsay information, and further that were submitted following the conclusion of the permanent custody proceedings and outside of the requirements of Supreme Court Superintendence Rule 48 as amended.
The due process rights of the children were violated by the failure of the trial court to properly notify the children, through their guardian ad litem of the right of the children to apply for legal counsel on the permanent custody motion.
Appellant, Mary Nichols was denied her constitutional due process rights at all stages of the proceedings before the trial court.
Appellant, Mary Nichols was denied effective assistance of counsel during the permanent custody proceedings.

IV. Standard of Review

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Cite This Page — Counsel Stack

Bluebook (online)
938 N.E.2d 390, 189 Ohio App. 3d 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sc-ohioctapp-2010.