In re J.G. , 2021 Ohio 3259 ( 2021 )

[Cite as In re J.G., 2021-Ohio-3259.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
:
J.G. 2 (DOB: 10/23/2011) : Hon. Craig R. Baldwin, P.J.
: Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
:
: Case No. CT2021-0019
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Juvenile
Division, Case No. 21730262
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 15, 2021
APPEARANCES:
For Muskingum Co. Adult and: For Mother P.G.:
Child Protective Services: ANDREW RUSS
RON WELCH P.O. Box 520
MUSKINGUM CO. PROSECUTOR Pickerington, OH 43147
JOHN CONNOR DEVER
27 North Fifth St., P.O. Box 189 For Foster Parents:
Zanesville, OH 43702 SCOTT RANKIN
45 N. 4th Street
Guardian Ad Litem: Zanesville, OH 43701
RUTHELLEN WEAVER
542 S. Drexel Avenue
Bexley, OH 43209
[Cite as In re J.G., 2021-Ohio-3259.]
Delaney, J.
{¶1} Appellant P.G. (“Mother”) appeals from the March 18, 2021 Entry
Terminating Parental Rights and Granting Permanent Custody of the Minor Child to
Muskingum County Children Services of the Muskingum County Court of Common Pleas,
Juvenile Division. Appellee is Muskingum County Adult and Child Protective Services
(“Agency”).
FACTS AND PROCEDURAL HISTORY
{¶2} This case is related to, but not consolidated with, In the Matter of: J.G. 1,
5th Dist. Muskingum No. CT2021-0017. J.G. 2 is the sibling of J.G. 1 and both are the
natural children of appellant Mother.
Procedural history
{¶3} On March 4, 2015, the Agency filed a complaint for both children and they
were adjudicated dependent and neglected.
{¶4} At a review hearing on May 23, 2017, Mother agreed for the children to be
placed in the legal custody of a relative, T.M. T.M. voluntarily returned the children to the
Agency on October 2, 2017 and the children were returned to foster care.
{¶5} On December 4, 2017, the original cases were dismissed due to time
limitations. The Agency refiled a Complaint for both children alleging dependency and
requesting permanent custody.
{¶6} On February 22, 2018, the children were adjudicated dependent. On July
31, 2018, a hearing was held upon the Agency’s ongoing request for permanent custody.
An interim order was issued placing the children in the Agency’s temporary custody and
ordering an attempted reunification with maternal relative T.M.
[Cite as In re J.G., 2021-Ohio-3259.]
{¶7} On March 8, 2019, a hearing was held upon the Agency’s motion for
permanent custody, Mother’s oral motion to reinstate visitation, and Mother’s oral motion
to dismiss the Agency’s complaint. The trial court issued an interim order continuing the
motion for permanent custody and denying Mother’s motions. The children continued in
the Agency’s temporary custody and the Agency was ordered to immediately file all
omitted case plans. Additionally, the trial court ordered T.M. to be added to the case plan.
{¶8} The Agency filed an amended case plan on March 15, 2019.
{¶9} On June 21, 2019, the trial court denied the Agency’s request for permanent
custody and found that from July 31, 2018 through March 8, 2019, the Agency failed to
make reasonable efforts and failed to work any meaningful permanency plan and
reunification with the prior legal custodian, T.M., and/or either legal parent. The children
continued in the temporary custody of the Agency and a review was scheduled for June
25, 2019.
{¶10} A review hearing was held on June 25, 2019, and the children were
continued in the temporary custody of the Agency. Visitation with Mother and/or other
family members were ordered at the discretion of the Agency.
{¶11} On October 22, 2019, the Guardian Ad Litem filed a motion for permanent
custody.
{¶12} On April 7, 2020, the Agency also filed a motion for permanent custody.
{¶13} A hearing began on October 27th, 2020, and the trial court granted the
Agency’s motion by judgment entry dated March 18, 2021. The following evidence is
adduced from the permanent custody hearing.
[Cite as In re J.G., 2021-Ohio-3259.]
Evidence adduced at the permanent custody hearing
{¶14} Mother is the natural mother of J.G. 1 (DOB: 11/26/2010) and J.G. 2 (DOB:
10/23/2011) (“the children”). K.G. is the natural father of the children.1
{¶15} The case was originally opened in February 2015 due to domestic violence
between Mother and her live-in paramour at the time, Kevin Gilmore. In January 2015,
Mother was charged and convicted of domestic violence after she stabbed Gilmore during
an argument. The children were present in the home during the stabbing, although
accounts differed as to whether they were upstairs at the time or sitting in the same room
and actually witnessed the incident.
{¶16} Mother completed a domestic violence assessment in early April 2015, but
was charged with a new domestic violence offense on April 22, 2015, also against
Gilmore.
{¶17} The Agency was also concerned about confirmed drug use in the home.
{¶18} Mother’s progress on her case plan was hindered by her problematic
behaviors. Agency caseworkers described Mother’s “outbursts, instability, and lack of
impulse control.” At the first six-month review, Mother was asked to leave due to her out-
of-control behavior. Mother threatened the life of an ongoing caseworker, resulting in a
conviction of aggravated menacing. During the progress of the case, several different
caseworkers were assigned due to Mother’s behaviors, threats, and failure to cooperate
with each successive caseworker.
1Father has been incarcerated for the majority of the case; he is unwilling or unable to
complete case plan services and has had no meaningful contact with the children or the
Agency. He is not a party to this appeal. As of August 2016, Father was sentenced to a
six-year prison term.
[Cite as In re J.G., 2021-Ohio-3259.]
{¶19} Mother eventually completed an anger management program, but an
Agency supervisor testified that she continues to demonstrate outbursts, instability, and
a lack of impulse control.
{¶20} On July 17, 2018, law enforcement went to Mother’s house to serve a
warrant on her then-paramour, Joshua Stevenson, who was hiding in the house. Mother
denied Stevenson was in the house, became agitated, and was ultimately arrested and
charged with obstructing official business. Upon transport to the county jail, Mother
demanded that deputies remove their badges so she could fight them and “not get into
trouble.”
{¶21} On October 17, 2019, Mother was charged with disorderly conduct after she
waited for Stevenson in an alley near the courthouse and spat on him.
{¶22} Mother’s criminal history is thus replete with domestic violence and other
offenses stemming from her anger and lack of impulse control. The trial court cited
Mother’s record of criminal charges and convictions as follows: domestic violence in 2013;
domestic violence as reduced from assault in July 2014; domestic violence in March
2015; domestic violence in June 2015; aggravated menacing in April 2016; possession
of drug paraphernalia in April 2018; and obstructing official business in September 2018.
{¶23} Mother also has a history of relationships with men with extensive criminal
histories. Her paramour at the time of the permanent custody hearing, Derek Combs,
was recently released after a four-year prison term for convictions of burglary and theft in
2016. Mother was involved in domestic violence incidents with K.G., the children’s father,
in August and November, 2012. Father was arrested and convicted of domestic violence
following those incidents. Mother’s subsequent paramour Kevin Gilmore was involved in
[Cite as In re J.G., 2021-Ohio-3259.]
domestic violence incidents with Mother in April and July 2014 and April 2015. Gilmore
was convicted of domestic violence following each of those incidents. Dr. Gary Wolfgang,
a psychologist, in fact testified that Mother has never had a romantic relationship that was
not problematic.
{¶24} Mother’s drug use was a concern. Mother has continued marijuana use
throughout the history of the case and obtained a medical marijuana card prior to the
permanent custody hearing. The physician who prescribed the medical marijuana card
testified that the prescription was based upon Mother’s self-reported diagnosis of PTSD
when she was a juvenile. The prescribing physician also acknowledged that medical
marijuana is meant to be vaporized, thus failing to explain Mother’s posts on social media
about smoking her “medical marijuana” as a “blunt.” A friend of Mother’s testified that
Mother “likes to have a good time” and that Mother smokes “blunts” and pipes containing
marijuana. Mother submitted 54 drug screens for testing over the history of the case, and
53 were positive for marijuana.
{¶25} Mother’s only income is $783 per month from Social Security Disability and
Mother claims to spend $100-300 per month on marijuana.
{¶26} In 2018, Mother entered a substance abuse treatment program at St. Lucy
Sober House for Women and was recommended for a 90-day treatment program, but left
against staff advice less than a week later. The Agency subsequently referred Mother to
another inpatient substance abuse program at Women’s Recovery, but Mother denied
the need for treatment and demanded to be treated at a facility that “only” dealt with
marijuana abuse.
[Cite as In re J.G., 2021-Ohio-3259.]
{¶27} Dr. Wolfgang completed two psychological evaluations of Mother and
testified about her extensive history of mental illness. Mother’s romantic relationships are
fraught with problems; she minimizes the effect of domestic violence on her children; and
minimizes her own history of treatment as a child. Mother reported diagnoses of bi-polar,
obsessive-compulsive disorder, and social anxiety, but resisted psychotropic medication
while extolling the virtues of cannabis, which she started using at age 12.
{¶28} Dr. Wolfgang observed Mother to be very angry and opinionated, to have
very little impulse control, and to have engaged in a pattern of interactions with individuals
that escalate into violence. Ultimately, Wolfgang testified, a successful outcome is
unlikely if Mother is reunited with the children because Mother is a “very, very disturbed
young girl.”
{¶29} Further, Mother has very limited awareness of her own mental health issues
despite a history of mental health treatment. As a child, Mother received mental health
treatment including inpatient care between the ages of 12 and 18. She has not, however,
engaged in mental health services for some time. A social worker/clinician at All Well
Behavioral Health testified that she conducted a mental health assessment of Mother on
January 29, 2020; she diagnosed Mother with adjustment disorder, mild cannabis use,
and PTSD, but Mother stopped attending counseling in June 2020.
{¶30} Shortly after the case was opened, Mother was evicted from her housing;
in 2018, she was reported to be homeless and staying with various friends. At the time
of the permanent custody hearing, Mother did have housing, renting a one-bedroom
home which she testified could be turned into a three-bedroom home. Mother did not
provide confirmation of this statement from the homeowner.
[Cite as In re J.G., 2021-Ohio-3259.]
{¶31} Mother does not have a vehicle or a valid driver’s license.
{¶32} Mother’s visitation with the children has been supervised at the Agency for
most of the case due to Mother’s outbursts and unpredictability. Sometimes, a social
worker testified, Mother has “blown up at stuff” and lost her temper, and Agency staff had
to intervene to remove the children from the room. Once Mother was visiting with J.G. 2
and became frustrated; in an attempt to correct the child, Mother “smacked [the child’s]
hand five or six times.” Agency staff had to intervene and advise Mother that the Agency
does not condone physical punishment. Mother’s visits have been suspended at times.
At one point, visitation was supervised by the foster placement, but due to Mother’s
outbursts, had to be moved back to the Agency.
{¶33} Mother has not completed case plan services despite the case being open
over five years.
{¶34} A relative of Mother, T.M., came forward in May 2017; following a home
study and agreement by Mother, the children were placed in T.M.’s legal custody on May
23, 2017. In October 2017 T.M. voluntarily returned the children to the Agency, citing the
children’s special needs and Mother’s behavior as reasons why she could not continue
to care for them. The children were returned to foster care.
{¶35} In July 2018 T.M. again agreed to care for the children and was granted
party status; an attorney was appointed to represent T.M.’s interest in the matter and the
trial court ordered that the Agency attempt reunification between the children and T.M.
The children were placed in T.M.’s home on August 15, 2018; on August 27, 2018, T.M.
again voluntarily surrendered the children due to their behaviors and the behavior of
[Cite as In re J.G., 2021-Ohio-3259.]
Mother. J.G. 1 was immediately removed and placed in residential treatment; J.G. 2 was
removed on September 8, 2018 and placed in foster care.
{¶36} The trial court found that the Agency made reasonable efforts to find a less-
restrictive or kinship placement for the children, but no appropriate placement has been
found.
{¶37} The children are now ten and eleven years old, and were five and six when
the case was opened. They are both special needs children and have extreme behavioral
issues.
{¶38} J.G. 1 has delayed cognitive functioning and has a difficult time processing
normal-age information in the areas of speech and bathroom habits. J.G. 1 was in
residential treatment at Belmont Pines where issues addressed included mood stability,
decreasing aggressive behaviors, improving social interactions with peers and adults,
improving the relationship with Mother, attending school, and improving personal hygiene
and impulse control. Stressors upon J.G.1 include the history of physical and emotional
abuse and exposure to domestic violence and drug use.
{¶39} J.G. 1 has moved at least 11 times, including several different family-
certified foster homes, several therapeutic foster homes, and two different residential
treatment facilities.
{¶40} J.G. 1 is presently in a Level 5 treatment foster-to-adopt home and is doing
well. The current foster placement for J.G.1 testified that J.G.1’s severe behaviors upon
placement included aggression, tantrums, cursing, threats, sleeping issues, fear of using
the bathroom, and angry outbursts. However, upon a change of medication and learning
[Cite as In re J.G., 2021-Ohio-3259.]
how to address J.G. 1’s behaviors, those behaviors have improved. J.G. 1 continues in
weekly counseling.
{¶41} A counselor for J.G. 2 testified that the child has been in counseling since
May 2019 and has been diagnosed with ADHD and Adjustment Disorder with a
Disturbance in Emotion and Conduct. The counselor worked with J.G.2 on impulse
control, emotional regulation, the child’s relationships with peers and the foster family.
The counselor testified that J.G. 2 has concerns regarding visitation with Mother and J.G.
1; the counselor gave J.G. 2 a “safe word” to use during visitations with Mother if the child
became uncomfortable and wanted intervention by a social worker to end the visit.
{¶42} Mother has admitted J.G. 2 was exposed to domestic violence and criminal
activity in the home.
{¶43} A school psychologist testified who has been involved with J.G. 2 for three
years. Over that time, J.G. 2 showed great improvement in all areas of the BASC test
(Behavior Assessment System for Children).
{¶44} J.G. 2 has been moved at least nine times, including several different family
foster homes. J.G. 2 is presently in a foster-to-adopt home and is doing very well.
{¶45} J.G. 2’s foster mother also testified that J.G. 2’s severe behaviors have
greatly improved during the child’s time in foster placement, but those behaviors did
regress when visits with Mother started again.
{¶46} The trial court conducted in-camera interviews of both J.G. 1 and J.G. 2.
J.G. 1 appeared younger than his or her age and had evident cognitive delays, including
an inability to sit still. Although the child was very talkative, he or she was easily distracted
and avoided all eye contact. J.G. 2 was very well-behaved and forthcoming. Both
[Cite as In re J.G., 2021-Ohio-3259.]
children are described as in “good places,” happy, comfortable, and bonded in their
current foster placements. The children’s needs are being met by the foster placements.
{¶47} The trial court granted the Agency’s motion for permanent custody by
Judgment Entry dated March 18, 2021. Mother now appeals from the judgment entry of
the trial court.
{¶48} Mother raises one assignment of error:
ASSIGNMENT OF ERROR
{¶49} “THE JUVENILE COURT’S JUDGMENT GRANTING PERMANENT
COURT COMMITMENT OF THE MINOR CHILD TO MUSKINGUM COUNTY
CHILDREN’S SERVICES WITHOUT APPOINTING APPELLANT A GUARDIAN AD
LITEM WAS CONTRARY TO R.C. 2151.281 AND OHIO JUVENILE RULE 4.”
ANALYSIS
{¶50} In her sole assignment of error, Mother argues the trial court erred in
granting the Agency’s motion for permanent custody of the children without appointing a
guardian ad litem on Mother’s behalf. We disagree.
{¶51} At the permanent custody hearing, two mental health professionals testified
about Mother’s mental health issues: Dr. Wolfgang, a psychologist, and Kathy Chapman,
a social worker/clinician. Both witnesses addressed Mother’s litany of mental health
diagnoses, including but not limited to bipolar disorder, social anxiety, obsessive-
compulsive disorder, and depression. The witnesses also discussed Mother’s cannabis
use and her anger and volatility. The record is devoid of evidence that any of these issues
rendered Mother “incompetent,” however, and any question of Mother’s competence was
not raised during the history of the case, nor at the evidentiary hearing.
[Cite as In re J.G., 2021-Ohio-3259.]
{¶52} Mother directs our attention to R.C. 2151.281(C), which states: “In any
proceeding concerning an alleged or adjudicated delinquent, unruly, abused, neglected,
or dependent child in which the parent appears to be mentally incompetent * * *, the
court shall appoint a guardian ad litem to protect the interest of that parent.” (Emphasis
added).
{¶53} Additionally, Ohio Juv.R. 4(B) states in pertinent part: The court shall
appoint a guardian ad litem to protect the interests of a child or incompetent adult in a
juvenile court proceeding when:
* * * *.
(3) The parent is under eighteen years of age or appears to
be mentally incompetent;
* * * *.
(8) Appointment is otherwise necessary to meet the
requirements of a fair hearing;
* * * *. (Emphasis added).
{¶54} Courts have used the definition of “incompetence” from the criminal code in
applying the Rule and the statute; in the context of a criminal trial, a defendant is deemed
to be incompetent to stand trial, if, because of her present mental condition, she “is
incapable of understanding the nature and objective of the proceedings against [her] or
of assisting in [her] defense [.]” In re D.C.H., 9th Dist. Summit No. 22648, 2005-Ohio-
4257, ¶ 8, citing R.C. 2945.37(G).
{¶55} Mother summarily argues that she is “clearly an incompetent adult” without
pointing to any evidence in the record that she was incapable of understanding the nature
[Cite as In re J.G., 2021-Ohio-3259.]
and objective of the permanent-custody proceedings. Brief, 6. Mother points to Dr.
Wolfgang’s testimony that she had a (self-reported) history of mental illness and treatment
as a child, and he diagnosed her with contemporaneous permanent, chronic mood issues
and personality disorders, and multiple dysfunctional personality traits. Mother offers no
authority for her underlying premise that Wolfgang’s mental health assessment rendered
her “incompetent” within the meaning of R.C. 2151.281(C) and Juv.R. 4.
{¶56} Additionally, neither Mother nor her attorney requested appointment of a
guardian ad litem on Mother’s behalf, therefore Mother has waived all but plain error. In
re McHugh Children, 5th Dist. Licking No. 2004CA00091, 2005-Ohio-2345, ¶ 37. The
plain-error doctrine originated in criminal law and is embodied in Crim.R. 52(B) which
provides: “Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” Id., citing In re Etter, 134 Ohio App.3d 484,
492, 731 N.E.2d 694 (1st Dist.1998). The plain-error doctrine has been applied in civil
cases as well. Id., citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099(1997); see also, In re Etter, supra. Plain error may be applied only in the extremely rare
civil case “ * * * where exceptional circumstances require its application to prevent a
manifest miscarriage of justice, and where the error complained of, if left uncorrected,
would have a material adverse effect on the character of, public confidence in, judicial
proceedings.” Id.
{¶57} In an appropriate case, a reviewing court can find plain error when the trial
court has failed to appoint a guardian ad litem and such failure results in prejudice to the
party in need of a guardian. McHugh, supra, at ¶ 38, citing In re Holmes, 8th Dist.
Cuyahoga No. 77785, 2001 WL 128007, *3.
[Cite as In re J.G., 2021-Ohio-3259.]
{¶58} The first inquiry in determining whether the trial court complied with R.C.
2151.281(C) and Juv.R. 4(B) is whether the parent appeared “mentally incompetent”
during the trial court proceedings. McHugh, supra, at ¶ 48, internal citations omitted. As
the Agency points out, Mother did not appear mentally incompetent during the
proceedings. She took the stand upon being called by her own counsel for direct
examination; she testified to her children’s names and birthdates, her residential address,
her relationship with her father; her childhood experience with children’s services; her
mental health history; and her high school grade point average. She demonstrated that
she understood the case plan and its objectives, and that she understood the stakes of
permanent custody and her children’s best interest. Although Mother was sometimes
reprimanded by the trial court for argumentative responses, her mental competency was
not at issue in the proceedings.
{¶59} Mother points to no evidence in the record indicating that she was not
mentally competent. Instead, she argues that she has extensive mental health diagnoses
such as post-traumatic stress disorder and bipolar disorder. The existence of these
mental disorders does not equate to incompetence and Mother points to no authority
demonstrating otherwise.
{¶60} If the court finds that a guardian ad litem should have been appointed, the
next inquiry is whether there was any prejudice by the failure to appoint a guardian ad
litem. McHugh, supra, at ¶ 49, internal citations omitted. Mother does not point to any
prejudice she sustained from the absence of her own guardian ad litem. The procedural
history of this case indicates Mother had many opportunities to cooperate with the Agency
and to work her case plan, but her own volatility stood in her way. We cannot discern,
[Cite as In re J.G., 2021-Ohio-3259.]
and Mother does not explain, how the presence of a guardian ad litem would have
changed the effect of Mother’s volatile disruptive behavior. Further, “a parent will not
suffer prejudice if the parent is represented by counsel and that counsel ‘safeguards the
parent's rights and advocates for reunification in accordance with the parent's wishes.’”
In re F.S., 12th Dist. Fayette No. CA2020-08-011, 2021-Ohio-345, ¶ 43, citing In re M.T.,
6th Dist. Lucas No. L-09-1197, 2009-Ohio-6674, ¶ 17. In the instant case, the record
supports our conclusion that Mother’s counsel safeguarded her rights and advocated for
reunification in accord with her wishes.
{¶61} Mother has not pointed to anything in the record to show how she was
prejudiced by the failure to have a guardian ad litem and also has not argued how having
a guardian ad litem would have altered the outcome. McHugh, supra, at ¶ 50.
{¶62} We conclude appointment of a guardian ad litem would not have remedied
Mother's failure to comply with her case plan and would not have changed her history of
volatile, disruptive behavior. In short, the evidence was overwhelming in support of the
Agency obtaining permanent custody. We further find that Mother had been adequately
protected because she had been represented by counsel throughout the entire
dispositional hearing. McHugh, supra, at ¶ 52.
{¶63} Mother has not shown that she was prejudiced by the lack of an appointed
guardian ad litem and her sole assignment of error is therefore overruled.
[Cite as In re J.G., 2021-Ohio-3259.]
CONCLUSION
{¶64} Mother’s sole assignment of error is overruled and the judgment of the
Muskingum County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J.,
Baldwin, P.J. and
Wise, John, J., concur.