[Cite as In re M.H., 2013-Ohio-1063.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                        FAYETTE COUNTY




IN THE MATTER OF:                              :

        M.H.                                   :      CASE NO. CA2012-11-035

                                               :              OPINION
                                                               3/22/2013
                                               :

                                               :

                                               :



             APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                             Case No. 10AND0597



Susan Wollscheid, 121 West Market Street, P.O. Box 841, Washington Court House, Ohio
43160, guardian ad litem

Jennifer Hitt, 63 North Main Street, Suite B, London, Ohio 43140, for appellant, C.G.

Jess C. Weade, Fayette County Prosecuting Attorney, James B. Roach, 1st Floor
Courthouse, 110 East Court Street, Washington Court House, Ohio 43160, for appellee,
Fayette County Department of Job and Family Services



        HENDRICKSON, P.J.

        {¶ 1} Appellant, the biological mother of M.H., appeals a decision of the Fayette

County Court of Common Pleas, Juvenile Division, granting permanent custody of the child to

a children services agency.
                                                                    Fayette CA2012-11-035

       {¶ 2} Fayette County Children Services filed a complaint on June 23, 2010, alleging

M.H. was abused and dependent. The complaint alleged that M.H., who was five years old

at the time, and her older brother, D.H., were the victims of sexual abuse by their oldest
                                                                                   1
brother. The court adjudicated M.H. an abused and dependent child on July 28, 2010. The

oldest brother was removed from the home and M.H. and D.H. remained in their home with

appellant with protective supervision by the agency.

       {¶ 3} On August 2, 2010, less than two months after the first complaint, the agency

filed a second complaint alleging M.H. was dependent and abused. The second complaint

alleged that on August 1, 2010, M.H. was the victim of sexual abuse by an adult male. M.H.

was again adjudicated an abused and dependent child. She was removed from appellant's

home and placed in the temporary custody of the agency.

       {¶ 4} On removal from her home, M.H. was placed in a foster home. While in foster

care, she was diagnosed with post-traumatic stress disorder and was hospitalized for over a

week after her behavioral problems escalated. In May 2011, the foster family notified the

agency that they were no longer able to keep M.H. in their home due to the child's behavior

problems.

       {¶ 5} The agency was unwilling and unable to place M.H. in a long-term residential

facility due to her young age, and, because it was the only option, placed the child back with

appellant on May 5, 2011. Five days later, after behavioral problems at school, M.H. was

hospitalized for 12 days at a mental health facility. She returned to appellant's home after

hospitalization, but the court declined to approve the change in the case plan.

       {¶ 6} The court held a review hearing on August 16, 2011 and heard evidence

indicating there were cleanliness and safety issues in appellant's home. These issues


1. D.H. was adjudicated a dependent child on the same date.


                                                  -2-
                                                                    Fayette CA2012-11-035

included physical care, as the child had numerous bug bites, and testimony that while in

appellant's care, the child was left alone with a convicted sex offender. The court determined

that it was in M.H.'s best interest to remain in the temporary custody of the agency and

ordered the child removed from appellant's home. This court affirmed the trial court's

decision on appeal, finding that the trial court's decision to remove M.H. from appellant's

home and continue temporary custody with the agency was supported by competent,

credible evidence. In re M.H., 12th Dist. App. No. CA2011-10-022, 2012-Ohio-2257.

       {¶ 7} Following the trial court's review hearing, M.H. was placed in the care of her

paternal grandmother. Problems arose with this placement, and M.H. was again hospitalized

for behavior problems in December 2011. After a month's hospitalization, M.H. was placed in

a therapeutic treatment foster home.

       {¶ 8} On February 2, 2012 the agency filed for permanent custody of the child. At a

hearing on the motion, the agency caseworker testified that the child has been hospitalized

three times for her behavior, which includes biting, pulling hair, kicking, refusing to get

dressed, and taking off her clothes. She indicated at one point, the child had to be

transferred to the hospital in a police cruiser because of safety issues. The caseworker

stated that M.H. has attention deficit hyperactive disorder, post-traumatic stress syndrome,

and shows signs of bipolar disorder and radical attachment disorder. The child is not

currently visiting with appellant based on the recommendations of the doctors who have been

treating the child since January 2012.

       {¶ 9} The caseworker indicated that the agency considered several relatives for

placement, including an aunt who was eliminated as a possibility due to her boyfriend's

felony convictions. The agency also considered an uncle, who has young children in his

home, and expressed unrealistic expectations of how to deal with M.H.'s behavior problems,

stating that her behaviors "would not happen in my home." The maternal grandmother was
                                             -3-
                                                                     Fayette CA2012-11-035

not considered due to the fact that she is married to a sex offender who went to prison for the

sexual abuse of his 11-year-old stepdaughter. The agency tried placement with the paternal

grandmother, but M.H. inexplicably lost 20 pounds while with the grandmother and was not

taking her medication on time. The grandmother denied services in the home, argued and

would not cooperate with the workers. The father was excluded for placement because he

has custody of M.H.'s brother, who has sexual issues with M.H.

       {¶ 10} The caseworker testified that appellant is employed, but does not have regular

income, and receives HUD housing. She was the victim of domestic violence by her

boyfriend and has a protective order, but still maintains some form of contact. Appellant

failed to give the agency proof of completing parenting classes, and did not complete a

mental health evaluation which was requested because of reported bipolar issues and stress.

The caseworker testified that the agency has concerns regarding appellant's judgment and

her ability to protect the child as M.H. was sexually abused twice within two months, then

when returned to appellant's home, the child was left alone with a convicted sex offender.

The caseworker indicated M.H. needs to be in a home with caregivers who are trained to

deal with her behavior issues, who are able to handle these issues, take her to appointments,

and to provide a routine and long-term stability.

       {¶ 11} The foster mother testified that as a therapeutic foster home they have special

training to deal with different behavior problems, including anger, aggression and sexualized

behaviors. The foster mother described M.H.'s behavior as "very complicated" and indicated

the child has to be kept very busy, with no idle time, and that she gets into things, sneaks and

lies. She indicated M.H. has had problems at school, including not wanting to do her work,

throwing tantrums, swearing at teachers, throwing things, ripping clothes and hiding under

the desk. She was "kicked off the bus" the previous year for engaging in sexualized

behavior.

                                              -4-
                                                                     Fayette CA2012-11-035

       {¶ 12} The foster mother indicated M.H. has some of the same behaviors at home

when she does not get her way, along with sexualized behaviors that require the child to be

kept busy and supervised at all times. M.H. is in a "behavior class" at school for children who

cannot be in a regular school setting because they are disruptive to other students. She

started attending school for a half day, and has now worked up to attending a full day. She is

in therapeutic counseling and takes medication. M.H. is improving in school and the foster

mother indicated the child is making progress with her behavioral issues. M.H. has a bond

with the foster mother, and calls her "mom." The foster mother indicated that she and her

husband have thought about adopting M.H., but have not yet made an affirmative expression

of this desire to the agency.

       {¶ 13} Following the hearing, the trial court granted permanent custody of M.H. to the

agency. Appellant now appeals that decision, and raises two assignments of error for our

review:

       {¶ 14} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

FOUND BY CLEAR AND CONVINCING EVIDENCE THAT THE MINOR CHILD COULD

NOT BE PLACED WITH EITHER OF HER PARENTS WITHIN A REASONABLE TIME OR

SHOULD NOT BE PLACED WITH EITHER OF HER PARENTS.

       {¶ 15} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING BY

CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE BEST INTEREST OF

THE MINOR CHILD TO PERMANENTLY TERMINATE THE PARENTAL RIGHTS OF

[MOTHER] AND PLACE THE MINOR CHILD IN THE PERMANENT CUSTODY OF

FAYETTE COUNTY CHILDREN'S SERVICES, AND ERRED IN FAILING TO ASCERTAIN

THE WISHES OF THE MINOR CHILD.

       {¶ 16} Before a natural parent's constitutionally protected liberty interest in the care

and custody of her child may be terminated, the state is required to prove by clear and
                                              -5-
                                                                        Fayette CA2012-11-035

convincing evidence that the statutory standards for permanent custody have been met.

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review

of a juvenile court's decision granting permanent custody is limited to whether sufficient

credible evidence exists to support the juvenile court's determination. In re Starkey, 150

Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding

by the juvenile court that the evidence was clear and convincing only if there is a sufficient

conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th

Dist.).

          {¶ 17} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and

award permanent custody to a children services agency if it makes findings pursuant to a

two-part test. First, the court must find that the grant of permanent custody to the agency is

in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the

court must find that any of the following apply: the child is abandoned; the child is orphaned;

the child has been in the temporary custody of the agency for at least 12 months of a

consecutive 22-month period; or where the preceding three factors do not apply, the child

cannot be placed with either parent within a reasonable time or should not be placed with

either parent. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Nos. CA2009-10-

139, CA2009-11-146, 2010-Ohio-1122, ¶ 22.

          {¶ 18} The juvenile court found by clear and convincing evidence that M.H. had been

in the temporary custody of the agency for more than 12 months of a consecutive 22-month

period as of the date the agency filed the permanent custody motion and that granting

permanent custody was in M.H.'s best interest. The court also found that M.H. could not be

placed with either parent within a reasonable time and should not be placed with either

parent.

          {¶ 19} We begin with appellant's second assignment of error in which she challenges
                                                -6-
                                                                    Fayette CA2012-11-035

the court's best interest determination. Specifically, appellant argues that there was little

testimony on the interaction and relationship between M.H. and her parents and siblings,

there was no evidence on the wishes of the child, a possible conflict between the guardian ad

litem and attorney for the child roles existed, and that a legally secure placement could be

achieved without a grant of permanent custody.

      {¶ 20} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a

permanent custody hearing:

             [T]he court shall consider all relevant factors, including, but not
             limited to the following:

             (a) The interaction and interrelationship of the child with the
             child's parents, siblings, relatives, foster caregivers and out-of-
             home providers, and any other person who may significantly
             affect the child;
             (b) 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;
             (c) The custodial history of the child, including whether the child
             has been in the temporary custody of one or more public
             children services agencies or private child placing agencies for
             twelve or more months of a consecutive twenty-two month
             period * * *;
             (d) 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 to the agency;
             (e) Whether any of the factors in divisions (E)(7) to (11) of this
             section apply in relation to the parents and child.

      {¶ 21} With respect to R.C. 2151.414 (D)(1)(a), the juvenile court found that the

evidence showed M.H.'s bi-weekly supervised visits with her father went well. The court

further found that appellant and the paternal grandmother both testified that M.H. interacts

well with them. However, the court found there were problems when M.H. lived with

appellant and problems when she lived with her grandmother. M.H. was sexually abused

twice within a two month period while in the care and under the supervision of appellant, and

when placed back in the home for a period of time, was again removed after the child was


                                             -7-
                                                                    Fayette CA2012-11-035

left alone with a registered sex offender. The court found that while with the grandmother,

M.H. inexplicably lost 20 pounds and was hospitalized upon removal from the home.

      {¶ 22} The court further found that the evidence showed M.H. interacts well and has a

positive relationship with her current foster parents. The court found M.H.'s behavior has

improved since being placed in the current foster home, and she is now able to attend school

for a full day. The foster parents understand that M.H. must be supervised constantly, kept

busy, and monitored while around other children. The foster parents take her to counseling

and ensure that she takes her medication. The court found that M.H. calls the foster mother

"mom" and the child is improving and making positive progress in all aspects of her life.

      {¶ 23} With respect to R.C. 2151.414(D)(1)(b), the juvenile court indicated that M.H.

was seven years old. The court stated that she was not interviewed by the court and the

child's wishes were not contained in the guardian ad litem report. The court concluded that

her wishes were unknown.

      {¶ 24} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that M.H. has

been in the custody of the agency since the time of her removal on August 2, 2010 after a

second incident of sexual abuse occurred. The court found that while in agency custody, the

child has been placed with a foster family, back with appellant, with a paternal grandmother,

and none of these settings were positive for the child. The court determined that the current

placement in a therapeutic foster home is "the most safe and secure this child has

experienced since coming into the agency's care." The court further found that the foster

parents have discussed adopting M.H., but have not yet discussed adoption with the agency.

      {¶ 25} With respect to R.C. 2151.414 (D)(1)(d), the juvenile court found that M.H. is "in

desperate need of a legally secure and safe placement." The court indicated that M.H. was

sexually abused twice while in appellant's home and when placed back in the home,

appellant left the child alone with a registered sex offender. The court found that one of
                                             -8-
                                                                      Fayette CA2012-11-035

M.H.'s brothers is placed with her father, which precludes M.H. from being placed in his

custody. The court also found that the father testified that the brother spends up to three

nights a week with appellant, and found the situation would also be problematic from this

standpoint if M.H. were returned to appellant.

       {¶ 26} The court also considered an uncle who expressed some interest initially, but

who has young children, making placement in the home problematic with M.H.'s behavior

problems. The court also found that an aunt and her boyfriend were not an appropriate

placement due to a number of felony convictions.

       {¶ 27} The court found that the maternal grandmother is married to a registered sex

offender who victimized his 11-year-old stepdaughter, making placement impossible. Finally,

the court found that the child's placement with the paternal grandmother was problematic, as

the grandmother did not cooperate with service providers, and the child lost 20 pounds and

was hospitalized while in the paternal grandmother's care.

       {¶ 28} We find the trial court's findings regarding M.H.'s best interest are supported by

sufficient, credible evidence. While appellant argues that she is able to take care of the child

and the child's behavior was better while she was in appellant's care, issues of credibility

were for the trial court to determine. "It is well-established that the juvenile court had the

opportunity 'to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered testimony.'"

In re C.B., 12th Dist. Nos. CA2008-01-002, CA2008-01-003, 2008-Ohio-5543, ¶ 18, quoting

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

       {¶ 29} Further, while appellant argues there was little testimony on the interaction and

relationship M.H. has with appellant, the court considered the testimony presented and

considered appellant's testimony that she and child interact well. In addition, while appellant

argues there is no information on the effect on M.H. from separation from her siblings, there
                                               -9-
                                                                        Fayette CA2012-11-035

was evidence that due to sexual abuse and continuing behavior problems, exposure to

M.H.'s siblings was not recommended by M.H.'s doctors.

       {¶ 30} Finally, appellant argues that the court erred in not determining the child's

wishes and that there was a potential conflict of interest in the dual role of guardian ad litem

and attorney for the child.

       {¶ 31} As discussed above, when determining a child's best interest in a permanent

custody hearing, R.C. 2151.414 requires a court to consider all relevant factors, including

"[t]he child 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." R.C. 2151.414(D)(1)(b). The

trial court indicated that M.H.'s wishes were not contained in the guardian ad litem's report

and the court did not interview the child. The guardian ad litem recommended granting

permanent custody to the agency.

       {¶ 32} While, in general, a court must consider the child's wishes or should determine

whether the child is incapable of expressing her wishes, we find that based on the unique

nature of the facts in this case, the trial court's failure to determine the child's wishes was not

prejudicial error. The record indicates that M.H. has severe mental health issues. The court

found that M.H. had been diagnosed with post-traumatic stress disorder. She has behavior

problems, and the court found that the record is "replete with accounts of M.H.'s destructive

rages." The court found the child "has broken items, thrown things, yelled and screamed

until she literally exhausted herself." The severe behavior led to an IEP and until recently,

M.H. was only able to attend school two hours a day. She was admitted to the mental health

ward of the hospital on several occasions due to severe emotional outbursts. She has been

physically and/or sexually aggressive with other children, was banned from the school bus

and has been observed masturbating in front of others. Given these facts, the record fails to

suggest that the child had the necessary maturity to provide a credible indication of her
                                               - 10 -
                                                                      Fayette CA2012-11-035

wishes as to custody. See In re A.T., 9th Dist. App. No. 23065, 2006-Ohio-3919, ¶ 63.

       {¶ 33} Moreover, the record indicates that options for the child's placement are limited.

She cannot be placed with her father because he has custody of M.H.'s brother. She cannot

be placed with appellant due to safety concerns as the child was sexually abused twice while

in appellant's care, then left in the care of a registered sex offender. Placement with the

grandmother was problematic because she failed to cooperate with service providers, felt

their presence was intrusive, did not agree with their recommendations and thought her

granddaughter should be able to keep things private. Given the specific facts of this case,

we find the failure to determine the child's wishes, or to determine if she was capable of

expressing her wishes, was not reversible error. See In re E.W., 10th Dist. Nos. 05AP-1088,

05AP-1089, 05AP-1090, 05AP-1091, 2006-Ohio-2609, ¶ 11.

       {¶ 34} Likewise, we find no error in the court's failure to consider the need for a

separate counsel and guardian ad litem for the child. Generally, when an attorney is

appointed as guardian ad litem, "that attorney may also act as counsel for the child, absent a

conflict of interest."   In re Holt, 10th Dist. No. 03AP-355, 2003-Ohio-5580, ¶ 20.           In

determining whether a conflict exists, courts 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. In re B.K., Butler App. No. CA2010-12-324, 2011-Ohio-4470, ¶ 19. Such

appointment may be necessary when the child has consistently and repeatedly expressed a

strong desire that is inconsistent with the guardian ad litem's recommendations. Id.

       {¶ 35} There was no indication at any point in the proceedings that the child's wishes

differed from that of the guardian ad litem, nor was the issue of a possible conflict raised for

the trial court to consider. Appellant had the opportunity to cross-examine the guardian and

failed to question her on this issue. Given the fact that there is no evidence of a conflict, and

based on the specific facts of this case discussed above, we find no error in this respect.
                                              - 11 -
                                                                    Fayette CA2012-11-035

Appellant's second assignment of error is overruled.

       {¶ 36} In her first assignment of error, appellant argues that the court erred in

determining that M.H. could not or should not be placed with either parent within a

reasonable time. Appellant argues that she completed her case plan and substantially

remedied the conditions that led to M.H.'s removal from the home.

       {¶ 37} However, while the court made a finding that the child could not or should not

be placed with either of her parents, the court also found that M.H. had been in agency

custody for 12 of 22 months. When a court makes a finding that a child has been in agency

custody for 12 of 22 months, a determination that the child cannot be returned to her parents

within a reasonable time is unnecessary. In re A.F., 12th Dist. No. CA2011-12-233, 2012-

Ohio-2958.

       {¶ 38} While the court's finding that M.H. could not be placed with her parents was not

required, we note that the finding was supported by the evidence. As discussed above, M.H.

could not be placed with her father because he has custody of her brother. The trial court

also determined that the child could not be placed with appellant, as appellant was unable to

protect the child and to provide a safe environment for her. Appellant's first assignment of

error is overruled.

       {¶ 39} Judgment affirmed.


       S. POWELL and PIPER, JJ., concur.




                                            - 12 -
