In re R.P. , 2011 Ohio 5377 ( 2011 )

[Cite as In re R.P. , 2011-Ohio-5377.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF:
R.P. AND I.S., NEGLECTED/DEPENDENT
CHILDREN
JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. Julie A. Edwards, J
: Hon. Patricia A. Delaney, J.
:
:
: Case No. 2011AP050023
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No.
10JN00138
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 14, 2011
APPEARANCES:
For-Mother For Father
SHARON BUCKLEY-MIRHAIDARI JOHN GARTRELL, JR.
152 N. Broadway Ave., Ste. 101 153 N. Broadway
New Philadlephia, OH 44663 New Philadelphia, OH 44663
For Job & Family Services Guardian Ad Litem
JEFF KIGGANS KAREN DUMMERMUTH
th
389 16 Street S.W. Box 494
New Philadelphia, OH 44663 New Philadelphia, OH 44663
For Maternal Grandmother For Paternal Grandparents
MICHAEL JOHNSON SHAWN LINDSAY
117 South Broadway Box 272
New Philadelphia, OH 44663 Uhrichsville, OH 44683
Gwin, P.J.
{¶ 1} Appellant-mother J.S.1 appeals the April 26, 2011, judgment entry of the
Tuscarawas County Court of Common Pleas, Juvenile Court Division, which terminated
her parental rights with respect to her minor children, R.P. and I.S. and granted
permanent custody of the children to appellee, Tuscarawas County Job & Family
Services (hereinafter “TCJFS”).
I. PROCEDURAL HISTORY
{¶ 2} Appellant J.S. is the biological mother of R.P.2 [b. 2/15/04] and I.S.3 [b.
4/18/01]. On March 29, 2010, TCJFS filed a complaint alleging the minor children, R.P.
age six and I.S. age eight were neglected and dependent. An adjudicatory hearing was
held on May 25, 2010. The trial court found the children to be dependent and
neglected. By agreement of the parties the case proceeded to immediate disposition.
The parents agreed to the services set forth in the case plan and the court adopted the
case plan for reunification with the parents. The children had remained in the custody
of their parents since the filing of the complaint. The trial court ordered their removal at
the conclusion of the dispositional hearing. The paternal grandparents, Mr. and Mrs. P.
requested a home study, but the court denied the same at the dispositional hearing.
{¶ 3} The case was set for review hearing on August 30, 2010 and for annual
review on March 21, 2011. The parents attended all hearings and participated in case
plan services.
1
For purposes of anonymity, initials designate appellant’s name only. See, e.g., In re C.C., Franklin App.
No. 07-AP-993, 2008-Ohio-2803 at ¶ 1, n.1.
2
The biological father of R.P., R.P. III has filed a separate appeal See, Tuscarawas App. No. 2011 AP 05
0024.
3
B.W. the biological father of I.S. did not appear or participate in any court proceedings.
{¶ 4} On February 18, 2011, TCJFS filed a motion for permanent custody. The
permanent custody hearing was held on April 7 and April 14, 2011 at the same time as
the permanent custody hearing of R.E.P. the newborn brother of R.P. and I.S. The trial
court awarded TCJFS permanent custody of all three minor children.
II. STATEMENT OF THE FACTS
{¶ 5} The concerns presented were that the parents in the home, mother J.S.
and father R.P. were not following through with the recommendations of TCJFS in a
recently-closed diversion case. The parents would make improvements while TCJFS
was involved with hygiene, supervision, etc., but as soon as TCJFS was no longer
involved the situation devolved again to one of neglect.
{¶ 6} A case plan was filed for the parents with the goal of reunification. Worker
Jaime Grunder testified that the plan did not require the parents to complete services
that were very recently completed by mother and/or father, such as parenting classes.
{¶ 7} The children were placed in a foster home with the Village Network. The
worker assigned to the children was Ms. Brandi Ankrom. Ms. Ankrom also is the
counselor for R.P. The counselor for I.S. through the Village Network is Ms. Judy
McGill. She already had a relationship with both R.P. and I.S. due to her position as the
school social worker at New Philadelphia City Schools. The children were attending
New Philadelphia Schools while in the home of the parents.
{¶ 8} When the schedule of the children’s counseling was changed in late
August 2010 due to scheduling reasons to directly follow the visits between the children
and their parents, the counseling sessions for both I.S. and R.P. deteriorated
dramatically. The visits were suspended for a brief trial period in October per the
agreement of the parties. The visits were suspended indefinitely by the Court in
February 2011 in an attempt to see if the visits were the reasons that the children had
become out of control. The behaviors of the children improved dramatically according
to all the professionals involved during the times when the visitation schedule was
suspended.
{¶ 9} R.P. stated to Ms. Ankrom that he would get his “ass beat” in the home of
his parents regarding his toileting accidents. I.S. also told his counselor Ms. McGill that
he saw R.P. getting hit with a belt in reference to toileting issues. Ms. McGill testified
that this physical retribution for toileting accidents made toileting issues worse for R.P.
{¶ 10} While the case was progressing with R.P. and I.S., mother gave birth to
R.E.P. on February 8, 2011.
{¶ 11} Ms. Grunder testified that mother continued to deny that she was pregnant
and did not begin to receive prenatal care until December for her child that was born in
February.
{¶ 12} Ms. Grunder further testified both parents completed their case plan
objectives in this case. Ms. Grunder testified that the parents contacted Developmental
Disability services but they were not eligible for services because they did not have
mental health issues. Dr. Exley also recommended case management services for the
parents. Ms. Grunder testified that mother did everything within her power to try and get
case management services. The agency contacted CMH Southeast and MRDD now
known as DD and when these 2 agencies reported parents were not eligible for
services, the agency did nothing further to obtain case management services for the
parents.
{¶ 13} The maternal grandmother, M. B. and her husband also offered to assist
in case management services, but were denied.
{¶ 14} Judy McGill (I.S.’s counselor), Julie McFarland (R.P.’s personal one-on
one school aide) and Brandi Ankrom (Village Network Assistant Coordinator and R.P.’s
individual therapist) all testified that R.P.’s toileting issues of defecating and urinating in
his pants have continued even though he has been in foster care for almost a year.
{¶ 15} Ms. McGill testified that she was aware of two accidents with R. P. since
his visits with his parents were suspended and she was also aware of accidents
occurring at the Village Network during counseling sessions. One of the accidents
occurred when R.P. was sick with diarrhea and the other when he had a tooth pulled
and was on antibiotics.
{¶ 16} Ms. McGill initially had contact with the older child I. S. through her
position at New Philadelphia in the fall of 2007. At this time, he was in the care of his
parents. Ms. McGill testified that “his behavior was very aggressive, he, his hygiene,
um, very disheveled, he was often dirty, had a strong body odor”. Someone had to
intervene with I.S. because of his behaviors in the classroom every day.
{¶ 17} R.P's one-on-one personal school aide, Julie McFarland testified that she
has been R.P.’s aide since January 2011 and that prior to January 2011, R. P. never
had a one-on-one personal school aide. Ms. McFarland testified that when she first
started working with R.P. in January 4, 2011 she had to remove him from the classroom
every day. As of the date of trial Ms. McFarland still had to remove him from the
classroom two to three times a week. R. P. is still soiling his pants during the 3 ½
months that she has been his personal aide and he still wears pull ups to school every
day and wears them all day long Ms. McFarland has also had to send R.P. home to the
foster parents to clean him up for a soiling accident because it was a mess that needed
more attention than just wipes at the school.
{¶ 18} Ms. McGill worked again with I. S. and R. P. in her position as a counselor
at The Village Network. Ms. McGill testified that during the summer of 2010, her
counseling sessions went fairly well. However, she further testified that once her
sessions with the children directly followed the visitation the children had with their
parents, the situation drastically changed. Ms. McGill testified that the behavior of the
child deteriorated to a degree to which she only attempted to manage his behaviors,
and there was very little counseling happening during those sessions.
{¶ 19} It came to a point in October 2010 where Ms. McGill and Ms. Brandi
Ankrom, the counselor for R.P., asked TCJFS what could be done. It was decided, with
the approval of the parents, that the visits between the children and their parents would
be stopped for a two-week period to determine if any difference could be noted in the
children. There was indeed an improvement for that short time. However, when visits
were re-started, the problems restarted.
{¶ 20} Maternal grandmother Ms. B. testified that prior to the current case being
filed, she was unaware that the children were having difficulty in school even though
they were having contact with the children. She further referred to her daughter J.S. as
a “good mom,” and that they got good physical care from their parents.
{¶ 21} Paternal grandmother Ms. T. P. stated that she did not have any concerns
about the children’s mother and her son’s ability to parent the children.
{¶ 22} Ms. Grunder testified that she did not think that either set of grandparents
would protect the children from their parents.
{¶ 23} By an entry filed April 26, 2011, the court granted TCJFS’ request for a
permanent commitment of R.P. and I.S. to the agency.
{¶ 24} It is from this entry that the appellant-mother has appealed.
III. ASSIGNMENTS OF ERROR
{¶ 25} On appeal, mother asserts the following assignments of error:
{¶ 26} “I. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY
SERVICES PERMANENT CUSTODY AS SAID DECISION WAS NOT SUPPORTED
BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY O.R.C. 2151.414 AND
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 27} “II. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY
SERVICES PERMANENT CUSTODY WHEN APPROPRIATE RELATIVE
PLACEMENT WAS AVAILABLE FOR THE CHILDREN.
{¶ 28} “III. THE CHILDREN WERE DENIED THEIR RIGHT TO DUE PROCESS
AS GUARANTEED BY THE OHIO AND U.S. CONSTITUTIONS WHEN THEY WERE
NOT APPOINTED LEGAL COUNSEL.”
A. Burden of Proof
{¶ 29} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, quoting Stanley v. Illinois
(1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. A parent's interest in the care,
custody and management of his or her child is “fundamental.” Id.; Santosky v. Kramer
(1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. The permanent termination
of a parent's rights has been described as, “* * * the family law equivalent to the death
penalty in a criminal case.” In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.
Therefore, parents “must be afforded every procedural and substantive protection the
law allows.” Id.{¶ 30} An award of permanent custody must be based upon clear and convincing
evidence, R.C. 2151.414(B) (1). The Ohio Supreme Court has defined “clear and
convincing evidence” as “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d
101, 103-104, 495 N.E.2d 23.
B. Standard of Review
{¶ 31} Even under the clear and convincing standard, our review is deferential. If
some competent, credible evidence going to all the essential elements of the case
supports the trial court’s judgment, an appellate court must affirm the judgment and not
substitute its judgment for that of the trial court. In re Myers III, Athens App. No.
03CA23, 2004-Ohio-657, ¶ 7, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564
N.E.2d 54. The credibility of witnesses and weight of the evidence are issues primarily
for the trial court, as the trier of fact. In re Ohler, Hocking App. No. 04CA8, 2005-Ohio-
1583, ¶ 15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461
N.E.2d 1273.
IV. Requirements for Permanent Custody Awards
{¶ 32} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
must schedule a hearing, and provide notice, upon filing of a motion for permanent
custody of a child by a public children services agency or private child placing agency
that has temporary custody of the child or has placed the child in long-term foster care.
{¶ 33} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, and the child cannot be placed with either of the child’s
parents within a reasonable time or should not be placed with the child’s parents; (b) the
child is abandoned and the parents cannot be located; (c) the child is orphaned and
there are no relatives of the child who are able to take permanent custody; or (d) the
child has been in the temporary custody of one or more public children services
agencies or private child placement agencies for twelve or more months of a
consecutive twenty-two month period ending on or after March 18, 1999.
{¶ 34} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B) (1) (a) through (d) is present before proceeding to a determination
regarding the best interest of the child.
A. Parental Placement within a Reasonable Time-R.C. 2151.414(B) (1) (a).
{¶ 35} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed
with the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a
finding under R.C. 2151.414(E) (1) – (15), the court shall determine the children cannot
or should not be placed with the parent. A trial court may base its decision that a child
cannot be placed with a parent within a reasonable time or should not be placed with a
parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of
one factor alone will support a finding that the child cannot be placed with the parent
within a reasonable time. See In re: William S., 75 Ohio St.3d 95, 1996-Ohio-182, 661
N.E.2d 738; In re: Hurlow (Sept. 21, 1998), Gallia App. No. 98 CA 6, 1997 WL 701328;
In re: Butcher (Apr. 10, 1991), Athens App. No. 1470, 1991 WL 62145.
{¶ 36} R.C. 2151.414(E) sets forth factors a trial court is to consider in
determining whether a child cannot be placed with either parent within a reasonable
period of time or should not be placed with the parents. Specifically, Section (E)
provides, in pertinent part, as follows:
{¶ 37} “(E) In determining at a hearing held pursuant to division (A) of this section
or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a
child cannot be placed with either parent within a reasonable period of time or should
not be placed with the parents, the court shall consider all relevant evidence. If the court
determines, by clear and convincing evidence, at a hearing held pursuant to division (A)
of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised
Code that one or more of the following exist as to each of the child's parents, the court
shall enter a finding that the child cannot be placed with either parent within a
reasonable time or should not be placed with either parent:
{¶ 38} “(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency to assist
the parents to remedy the problems that initially caused the child to be placed outside
the home, the parent has failed continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child's home. In determining
whether the parents have substantially remedied those conditions, the court shall
consider parental utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to the parents
for changing parental conduct to allow them to resume and maintain parental duties.
{¶ 39} “***
{¶ 40} “(16) Any other factor the court considers relevant.”
{¶ 41} R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child's best interests would be served by granting the
permanent custody motion. These factors include but are not limited to: (1) the
interrelationship of the child with others; (2) the wishes of the child; (3) the custodial
history of the child; (4) the child's need for a legally secure placement and whether such
a placement can be achieved without permanent custody; and (5) whether any of the
factors in divisions (E) (7) to (11) apply.
{¶ 42} In this case, the trial court made its permanent custody findings pursuant
to R.C. 2151.414(B) (1) (a). The trial court found that the evidence established that R.P.
and I.S. could not be placed with appellant-mother within a reasonable period and
should not be placed with her.
{¶ 43} As set forth in our Statement of Facts, supra, the trial court’s findings are
based upon competent credible evidence. The record includes testimony of the
witnesses at trial. The trial court was in the best position to determine the credibility of
the witnesses.
{¶ 44} The children love their mother and the mother loves her children and has
developed a bond. The evidence demonstrated the successful efforts appellant-mother
had made in the case to regain custody of her children. On that point, the evidence
demonstrates that any improvement the appellant-mother has made in her life is
tentative and, perhaps, temporary, and that she is at risk of relapse. The trial court
found that, regardless of appellant’s compliance with aspects of his case plan, she was
still not able to be a successful parent to R.P. and I.S.
{¶ 45} In the case of In re: Summerfield, Stark App. No. 2005CA00139, 2005-
Ohio-5523, this court found where, despite marginal compliance with some aspects of
the case plan, the exact problems that led to the initial removal remained in existence, a
court does not err in finding the child cannot be placed with the parent within a
reasonable time.
{¶ 46} Further, substantial compliance with a case plan, in and of itself, does not
prove that a grant of permanent custody to an agency is erroneous. In re Watkins v.
Harris (Aug. 30, 1995), 9th Dist. No. 17068, at 9. The dispositive issue is not whether
the parent has substantially complied with the case plan, but rather, whether the parent
has substantially remedied the conditions that caused the child's removal. See, e.g., In
re McKenzie (Oct. 18, 1995), 9th Dist. No. 95CA0015, at 7-8; In re Pittman, Summit
App. No. 20894, 2002-Ohio-2208 at ¶ 60.
{¶ 47} Based upon the foregoing, as well as the entire record in this case, the
Court properly found R.P. and I.S. could not or should not be returned to the appellant-
mother within a reasonable time. Despite offering numerous services, the appellant-
mother was unable to mitigate the concerns that led to the children's removal.
B. The Best Interest of the Child.
{¶ 48} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the 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; (3) the custodial history of the child; and (4) the
child's need for a legally secure permanent placement and whether that type of
placement can be achieved without a grant of permanent custody.
{¶ 49} The focus of the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re: Awkal (1994), 95 Ohio
App.3d 309, 315. A finding that it is in the best interest of a child to terminate the
parental rights of one parent is not dependent upon the court making a similar finding
with respect to the other parent. The trial court would necessarily make a separate
determination concerning the best interest of the child with respect to the rights of the
mother and the rights of the father.
{¶ 50} The trial court made findings of fact regarding the child’s best interest. It is
well-established that “[t]he discretion which the juvenile court enjoys in determining
whether an order of permanent custody is in the best interest of a child should be
accorded the utmost respect, given the nature of the proceeding and the impact the
court's determination will have on the lives of the parties concerned.” In re: Mauzy
Children (Nov. 13, 2000), Stark App. No. 2000CA00244, quoting In re Awkal (1994), 95
Ohio App.3d 309, 316, 642 N.E.2d 424.
{¶ 51} As an appellate court, we neither weigh the evidence nor judge the
credibility of witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck
v. Jeffries (February 10, 1982), Stark App. No. CA-5758. “A fundamental premise of
our criminal trial system is that ‘the jury is the lie detector.’ United States v. Barnard, 490
F.2d 907, 912 (C.A.9 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct.
1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of witness
testimony, therefore, has long been held to be the ‘part of every case [that] belongs to
the jury, who are presumed to be fitted for it by their natural intelligence and their
practical knowledge of men and the ways of men.’ Aetna Life Ins. Co. v. Ward, 140 U.S.
76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”. United States v. Scheffer (1997),
523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267. Reviewing courts should accord
deference to the trial court’s decision because the trial court has had the opportunity to
observe the witnesses’ demeanor, gestures, and voice inflections that cannot be
conveyed to us through the written record, Trickey v. Trickey (1952), 158 Ohio St. 9,13-
14,106 N.E.2d 772,774; Bechtol v. Bechtol(1990) 49 Ohio St.3d 21, 21, 550 N.E.2d 178,
179.
{¶ 52} In the case at bar, the judgment entry granting permanent custody
specifically included a statement that the trial court had considered all the factors listed
in R.C. 2151.414. “The fact that the trial court did not specifically mention each of the
factors listed in R.C. 2151.414(D) does not mean that the trial court did not consider
such factors.” In re Schupbach Children (July 6, 2000), Tuscarawas App. 2000 AP
010005. The Guardian ad Litem also indicated that it was in the children’s best interest
to be placed in the permanent custody of TCJFS.
1). Relative Placement.
{¶ 53} The child's best interests are served by the child being placed in a
permanent situation that fosters growth, stability, and security. In re Adoption of
Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055. Accordingly, a court is not
required to favor a relative if, after considering all the factors, it is in the child's best
interest for the agency to be granted permanent custody. In re A.C., 12th Dist. No. CA
2006-12-105, 2007-Ohio-3350 at ¶17; In re Turner, 5th Dist. No. 2006CA00062, 2006-
Ohio-4906 at ¶ 35; In re Perry, 4th Dist. Nos. 06 CA 648, 06 CA 649, 2006-Ohio-6128 at
¶62.
{¶ 54} During the permanent custody hearing, the court received testimony
concerning the relative placement. TCJFS Worker Jaime Grunder testified to the long
history that maternal grandmother Ms. B. has with TCJFS. This included more than one
substantiated abuse and a substantiated neglect. Ms. Grunder stated that while these
incidences are now nearly twenty years old, they are still relevant because “these were
children that she raised and these things happened when they were in her care.” (Id.)
{¶ 55} Ms. B. testified that prior to the current case being filed, she was unaware
that the children were having difficulty in school even though they were having contact
with the children. She further referred to her daughter J. S. as a “good mom,” and that
they got good physical care from their parents. However, the trial court found that based
upon her entire testimony Ms. B did in fact know about many of the instances of issues
concerning the children as they occurred.
{¶ 56} Paternal grandmother Ms. T. P. stated that she did not have any concerns
about Jackie and her son’s ability to parent the children. Case Worker Grunder also
testified that in her opinion Mr. and Mrs. P. had little insight about what the concerns
were regarding the children. The trial court found that the couple was aware of the filthy
living conditions with animal feces and roaches and they did nothing to actively
intervene.
{¶ 57} The willingness of a relative to care for the child does not alter what a
court considers in determining permanent custody. In re Patterson (1999), 134 Ohio
App.3d 119, 129-130, 730 N.E.2d 439, 446-447. (Citing In re Mastin (Dec. 17, 1997),
Lorain App. Nos. 97CA006743 and 97CA006746 at 7). The child being placed in a
permanent situation that fosters growth, stability, and security serves the child's best
interests. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055.
Accordingly, a court is not required to favor a relative if, after considering all the factors,
it is in the child's best interest for the agency to be granted permanent custody. In re
A.C., 12th Dist. No. CA 2006-12-105, 2007-Ohio-3350 at ¶ 17; In Re Dylan B., Luna B,
Stark App. No.2007-CA-00362, 2008-Ohio-2283 at ¶ 66; In re Turner, 5th Dist.
No.2006CA00062, 2006-Ohio-4906 at ¶ 35; In re Perry, 4th Dist. Nos. 06 CA 648, 06
CA 649, 2006-Ohio-6128 at ¶ 62.
{¶ 58} The court must consider all of the elements in R.C. 2151.414(D) as well as
other relevant factors. There is not one element that is given greater weight than the
others pursuant to the statute. In re Schafer, 11 Ohio St.3d 498, 2006-Ohio-5513 at ¶
56. Schafer made it clear that a trial court's statutory duty, when determining whether it
is in the best interest of a child to grant permanent custody to an agency, did not include
finding by clear and convincing evidence that no suitable relative was available for
placement. “The statute requires a weighing of all relevant factors, and the trial court did
that in this case. R.C. 2151.414 requires the court to find the best option for the child
once a determination has been made pursuant to R.C. 2151.414(B)(1)(a) through (d).
The statute does not make the availability of a placement that would not require a
termination of parental rights an all-controlling factor. The statute does not even require
the court to weigh that factor more heavily than other factors.” Schaeffer at 111 Ohio
St.3d, 498, 857 N.E.2d 532, 2006-Ohio-5513, at ¶ 64; In Re Dylan B., Luna B, supra at
¶ 67; In re Avon, 5th Dist. No.2006-AP-09-0051, 2007-Ohio-1431 at ¶ 26.
{¶ 59} Based on the evidence submitted at trial, the court properly determined
the best interest of R.P. and I.S. would be served by the grant of permanent custody to
TCJFS rather than to be placed with either the maternal or paternal grandparents.
There was sufficient evidence submitted at the hearing to call into question, the
relatives' ability to provide a long term, stable placement for the children.
{¶ 60} For these reasons, we find that the trial court’s determination that
appellant-mother had failed to remedy the issues that caused the initial removal and
therefore R.P. and I.S. could not be placed with her within a reasonable time or should
not be placed with her was not against the manifest weight or sufficiency of the
evidence. We further find that the trial court’s decision that permanent custody to
TCJFS was in R.P. and I.S.’s best interest was not against the manifest weight or
sufficiency of the evidence.
{¶ 61} Appellant's First and Second Assignments of Error are overruled.
III.
{¶ 62} In her Third Assignment of Error, appellant-mother argues that the trial
court erred by not appointing counsel for R.P. and I.S. independent of the guardian ad
litem.4
{¶ 63} In In re Williams (2004), 101 Ohio St.3d 398, 805 N.E.2d 1110, 2004-
Ohio-1500, the Ohio Supreme Court held that a child who is the subject of a juvenile
court proceeding to terminate parental rights is a party to that proceeding and is entitled
to independent counsel under certain circumstances. "[C]ourts 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 child's
guardian ad litem being appointed to represent the child." Id. at ¶ 17.
{¶ 64} The Williams court did not explain what circumstances might trigger the
juvenile court's duty to appoint counsel. See, In re A.T., Summit App. No. 23065, 2006-
Ohio-3919 at ¶57; In re Wylie, 2d Dist. No.2004CA0054, 2004-Ohio-7243, at ¶ 70. The
4
In the case at bar, the record establishes that the guardian ad litem was not appointed as legal counsel
for any of the three minor children. See, Judgment Entry Filed March 30, 2010 in Case No. 10JN00138;
Judgment Entry filed February 10, 2011 in Case No. 11JN00088.
facts of Williams indicate that the child whose custody was at issue was four years of
age at the time he was initially placed in the temporary custody of the child protective
agency. Williams at ¶ 2. He was subsequently returned to his mother, removed again,
and was six years of age at the time the permanent custody hearing was conducted.
Williams at ¶ 4. The child was represented by a guardian ad litem, who was an attorney,
but was not appointed to represent the child in a dual capacity. In re Williams, 11th Dist.
Nos.2002-G2454, 2002-G-2459, 2002-Ohio-6588, at ¶ 20. The child was said to have
“repeatedly expressed a desire to remain with his mother,” and the guardian ad litem
recommended that permanent custody be granted to the agency. Williams, 2004-Ohio-
1500, at ¶ 5.
{¶ 65} The appeals court in Williams emphasized that the child expressed his
wish for reunification “often,” “consistently,” and “repeatedly.” Williams, 2002-Ohio-
6588, at ¶ 17, ¶ 20, and ¶ 9. He “often did not want to let appellant out of his sight.” Id.
at ¶ 9. Significantly, the appellate court recognized that “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.” (Emphasis added.)
Williams, 2002-Ohio-6588, at ¶ 24; In re A.T., supra.
{¶ 66} In the case at bar, the only evidence to which the appellant-mother cites
occurred during the questioning of Brandi Ankrom5, that “he (R.P.) made a comment
that he wanted to go back to live with Jackie and Bobby, and I asked him why and he
said that he poops in the potty and Bobby wouldn’t beat his ass.”6 However, Ms.
Ankrom then went on in detail to describe how R. P. in particular did not bring up his
5
The Village Networker caseworker and the counselor for R. P.
6
T. at 123-124.
parents and that when he did discuss them it was in the context of violence such as
smashing toy cars wherein everyone would perish. Ms. Grunder testified that neither
child ever informed her that they wished to go home.
{¶ 67} In sum, this record does not support a conclusion that either R.P. or I.S.
ever affirmatively expressed a desire to return home, nor does it support a conclusion
that either R.P. or I.S. consistently and repeatedly expressed such a desire, as was the
case with the child in Williams. In re A.T., supra at ¶ 64.
{¶ 68} Based upon the lack of a consistent expression of a desire for reunification
and the overwhelming evidence supporting the trial court's findings that the children's
best interests would be served by awarding custody to TCJFS we conclude that the trial
court did not err in failing to appoint independent counsel for R.P. or I.S.
{¶ 69} Appellant-mother’s Third Assignment of Error is overruled.
{¶ 70} The judgment of the Tuscarawas County Court of Common Pleas,
Juvenile Court Division is affirmed.
By Gwin, P.J.,
Edwards, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JULIE A. EDWARDS
_________________________________
HON. PATRICIA A. DELANEY
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF:
R.P. AND I.S.,
NEGLECTED/DEPENDENT
CHILDREN :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2011AP050023
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Tuscarawas County Court of Common Pleas, Juvenile Court Division is affirmed.
Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JULIE A. EDWARDS
_________________________________
HON. PATRICIA A. DELANEY