[Cite as In re H.M., 2014-Ohio-755.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY


IN RE:

        H.M.,                                        CASE NO. 8-13-11

DEPENDENT CHILD.
                                                     OPINION
[MARLA LEWELLEN - APPELLANT].


IN RE:

        L.L.,                                        CASE NO. 8-13-12

DEPENDENT CHILD.
                                                     OPINION
[MARLA LEWELLEN - APPELLANT].


IN RE:

        J.L.,                                        CASE NO. 8-13-13

DEPENDENT CHILD.
                                                     OPINION
[MARLA LEWELLEN - APPELLANT].


               Appeals from Logan County Common Pleas Court
            Trial Court Nos. 11-CS-0060, 11-CS-0061 and 11-CS-0067

                      Judgments Reversed and Causes Remanded

                             Date of Decision: March 3, 2014
Case Nos. 8-13-11, 8-13-12, 8-13-13



APPEARANCES:

       Alison Boggs for Appellant

       Deborah K. Brown for Appellee



ROGERS, J.

       {¶1} Appellant, Marla Lewellan, appeals the judgment of the Court of

Common Pleas of Logan County granting permanent custody of her three minor

children, H.M., L.L., and J.L., to Logan County Children Services (“LCCS”). On

appeal, Lewellan argues that the trial court erred by: entering a judgment that was

against the manifest weight of the evidence; improperly focusing on Lewellan’s

mental health; and failing to make independent findings of fact and conclusions of

law. Lewellan also argues that LCCS did not use reasonable efforts to reunify the

family, that the guardian ad litem (“GAL”) for her children did not adequately

perform his duties; and that her GAL did not adequately perform his duties. For

the reasons that follow, we reverse the judgment of the trial court and remand this

matter for further proceedings consistent with this opinion.

       {¶2} While this appeal concerns three separate cases, we will discuss their

procedural histories together, as they are intertwined.

       {¶3} On March 26, 2011, LCCS received a referral regarding the care and

well-being of two minor children: H.M. and L.L. Lewellan and her husband,

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James Lewellan (“James”), father of L.L., entered into a Voluntary Case Plan with

LCCS to rectify problems with the cleanliness of their home. On September 1,

2011, the LCCS received another referral indicating that Lewellan had attacked

H.M., stabbing her with a fork in the head and hand, believing she was a demon.

        {¶4} On September 7, 2011, a Family Team Meeting was held where LCCS

expressed its concerns for the safety of the children with Lewellan and James.

Lewellan stated that she was eight months pregnant, and due to the pregnancy she

had needed to stop taking her medicine for her mental health problems. She also

stated that she was under extreme stress, partially due to the involvement of LCCS

through the Voluntary Case Plan, and she had been told by three different doctors

that she was on the verge of a mental or nervous breakdown. James stated that he

had a temper, but that he thought it was under control. As a result of the meeting,

H.M. was voluntarily sent to stay with a relative, Nancy Losey1, and L.L. was

voluntarily sent to stay with his grandparents, Marlene and Ferlyn Butler.

        {¶5} On September 8, 2011, LCCS filed a complaint in Case Nos. 11-CS-

0060 and 11-CS-0061, alleging H.M. and L.L., respectively, to be dependent and

neglected children. On that same day, LCCS filed a motion for orders to grant

temporary custody of H.M. to Losey and temporary custody of L.L. to LCCS. The

1
  Losey’s father was married to the mother of Tim Lewellan, James’ father. James was placed in the
custody of Losey when he was between eight and nine years old, returned to his parents for approximately
nine months, and afterward was again placed in Losey’s custody. She considers him “one of [her]
children.” Jun. 19, 2013 Tr., p. 40.

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Case Nos. 8-13-11, 8-13-12, 8-13-13



trial court, upon its own motion, appointed attorney James Gudgel as both counsel

and GAL for the children. The trial court scheduled a hearing on the motion for

temporary custody for September 23, 2011.

       {¶6} Lewellan gave birth to J.L. in September of 2011. LCCS filed a

complaint on September 23, 2011, in Case No. 11-CS-0067, alleging J.L. to be a

dependent child. In its complaint, LCCS asserted that Lewellan’s home was

unsafe and unsanitary for a newborn, Lewellan would need time to readjust to her

mental health medication, and that J.L. had been born premature and required

treatment. LCCS moved for orders to grant temporary custody of J.L. to LCCS

and the court, on its own motion, appointed Gudgel as J.L.’s counsel and GAL.

Further, it scheduled the hearing on the motion for that day, September 23, to

coincide with the hearing already scheduled for H.M. and L.L. As a result of the

hearing, Losey was granted temporary custody of H.M. and LCCS was granted

temporary custody of both L.L. and J.L.

       {¶7} On October 18, 2011, Lewellan and James reached an agreement with

LCCS and stipulated that all three children were dependent. As a result, the trial

court, after a review of the record, found by clear and convincing evidence that all

three children were dependent and dismissed the allegations that H.M. and L.L.

were neglected. On November 21, 2011, the day of the dispositional hearing,

Gudgel filed a GAL report stating that he had reviewed the terms of the case plan

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Case Nos. 8-13-11, 8-13-12, 8-13-13



and found them to be in the best interests of the children while reunification, at

that time, was not. The court ordered that Losey remain the temporary custodian

of H.M. and that LCCS be granted protective supervision of H.M. and remain the

temporary custodian of both L.L. and J.L. At two subsequent status hearings,

where evidence was presented that inadequate progress had been made on the case

plan, the court continued its previous orders.

       {¶8} On June 13, 2012, LCCS moved the trial court to grant it temporary

custody of H.M., as the placement with Losey was not intended to last beyond the

end of the school year. At a hearing held on June 25, 2012, Lewellan agreed that

LCCS should have temporary custody of H.M., and the motion was granted. At

the children’s annual review hearings, the trial granted an extension of temporary

custody of the children to LCCS. In response to psychological evaluations of both

Lewellan and James and out of concern that they did not fully comprehend the

recommendations of the providers they were working with or how to be adequate

parents, the court appointed them each a GAL.

       {¶9} On December 12, 2012, LCCS moved for permanent custody of all

three children. On June 17, 2013, Gudgel submitted his GAL report regarding the

three minor children. In the report, Gudgel stated that the cleanliness of the house

remained unsuitable for the children, visitations were chaotic and dysfunctional,

and that the recent separation of Lewellan and James was a detriment to

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Case Nos. 8-13-11, 8-13-12, 8-13-13



reunification, as neither parent had demonstrated that they could adequately parent

the children alone. Ultimately, Gudgel did not believe that reunification would be

in the best interests of the children.

       {¶10} The permanent custody hearing for all three children commenced on

June 18, 2013. At the time, H.M. was nearly ten years old, L.L. was nearly six,

and J.L. was nearly two. At the hearing, testimony was elicited that, when LCCS

obtained custody of the children, H.M. was on an Individualized Education

Program at school for ADHD, behavioral and impulsivity issues, and for some

psychological issues related to sexual abuse. L.L. was on the autism spectrum,

had some additional developmental delays including difficulty in understanding

his speech, and had physical problems as a result of having muscular dystrophy.

J.L. was typically developing, although he had some urinary tract problems.

       {¶11} LCCS called the children’s GAL, Gudgel, as a witness. Gudgel

stated that over the course of his appointment he had met with the children and the

parents. He further testified that “based on the documents and information that

have been provided, my recommendation was permanent custody was in the

children’s best interest.” Jun. 18, 2013 Tr., p. 41. On cross examination, Gudgel

testified that he had never observed the parents interact with their children.

Further, when asked whether he based his report “solely on the reports and



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Case Nos. 8-13-11, 8-13-12, 8-13-13



statements of the caseworker and other coaches and other sources,” Gudgel replied

“Correct.” Id. at 42.

       {¶12} Chris Christensen, the caseworker for the three children, also

testified for LCCS. In regard to H.M., Christensen testified that she “is thriving

academically. She is making more advances socially, within the environment. * *

* I am not going to say she hasn’t tested the boundaries of their rules and

guidelines and restrictions. But she understands the boundaries that she can not

[sic] cross, the zero tolerance things.” Id. at 71. As to L.L., Christensen testified

that he could speak more clearly, walk without the assistance of any device, and

that “[h]e takes a whole lot of pride in his academics and wants to do well. Even

with the developmental issues that he has, he has gotten to an age-appropriate

level with being able to soak up a great level of information * * *. He has made

strides with cognitive skills.” Id. at 72-73. With regard to J.L., Christensen

testified that he had no developmental delays.

       {¶13} LCCS called Grace Schoessow, a licensed behavioral therapist

contracted as a coach by LCCS to provide in-home training during visitations, as a

witness.   When asked whether the children had an appropriate and healthy

relationship with their foster caregivers, she stated:

       A. Yes, he it [sic] does. Actually, this last visit, Marla handed
       [H.M.] the phone, and called. She handed her the phone and she
       talked to her sister, which would be [H.M.]’s aunt. [H.M.] expressed

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Case Nos. 8-13-11, 8-13-12, 8-13-13



       she wants to live with the current foster parent. So I know the kids
       are always happy to go with the foster parents.

Id. at 147. When asked what she believed was in the best interests of the children,

she stated that the children were “stable and well adjusted [sic] in their current

situation.” Id. at 148.

       {¶14} H.M.’s second grade teacher, Jill Walton-Cronkelton, testified as to

H.M.’s attendance and behavioral problems, cleanliness issues, and academic

delays while she was still in the care of Lewellan. When asked what changes

H.M. displayed after being removed, she responded:

       A: Physical. She came clean, her hair was always done. She was
       so . . . she was so funny, because she was so happy. She would say,
       “Don’t I look cute today?” “Don’t you like my shirt?” “Don’t you
       like my new shoes?” Just even the cleanliness and just the attention
       that she he [sic] got made her more confident. She then was able to -
       - she socialized with kids. They loved her. She loved them. It was
       a completely different situation than when she came at the beginning
       of the school year.

       Q:   Did her attendance improve?

       A:   Yes, she only had two absences in second grade.

       Q:   As a result of that, academically she obviously improved?

       A:   Um-hum.

       Q:   Self esteem improved?

       A:   Yes.

       Q:   Behaviors? Did those improve?

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Case Nos. 8-13-11, 8-13-12, 8-13-13




       A:   Yes.

Jun. 18, 2013 Tr., p. 180-181.

       {¶15} After   Walton-Cronkelton’s        testimony,   LCCS   called    Krista

Adelsberger, principal of H.M.’s school, as a witness. She testified as to the

concerns many teachers had regarding H.M.’s attendance, behaviors, and

cleanliness while she was still in Lewellan’s custody. She also testified as to how

much H.M. improved after being placed with Losey, academically, behaviorally,

and socially.

       {¶16} Anne Stuck, occupational therapist for both H.M. and L.L., was

called as a witness by LCCS. She worked with the children both before and after

they were removed from Lewellan’s care. She testified that H.M. improved in

both hygiene and personal demeanor after being removed, and that she put forth a

better effort during her therapy sessions. In regard to any differences in L.L., she

stated that his “[h]ygiene was much improved. Appropriate for his age. * * * As

far as demeanor, no tantrums. I think maybe one tantrum since being placed in

foster care. More verbal. More willing to attend to the task and complete things

requested.” Jun. 19, 2013 Hearing Tr., p. 22.        When asked where his current

developmental level was, she testified:

       He is close to being age appropriate. And most recent progress note,
       which was actually done in April, we conduct those every 12 weeks,

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Case Nos. 8-13-11, 8-13-12, 8-13-13



       he has met all but 3 age appropriate tasks. One of them I haven’t
       addressed at all. This is for a patient 5 to 6 years old. Then his
       scissors skills, he is just not as detail-oriented with cutting out. But
       as far as writing and shapes and that type of thing, is he [sic] age
       appropriate.

Id. at 25.

       {¶17} Losey also testified for LCCS. When asked to describe the changes

in H.M. from before she was placed in her care, Losey stated:

       She was clean. Mrs. [Walton-]Cronkelton said after 3 weeks from
       when I had her, she couldn’t believe of the difference. She had a
       bed time. She had an up time. Very structured. Behavior
       completely stopped. She could interact with other kids. We got her
       off of stool softeners, no problem since. Just a very happy kid.
       Jumping on the trampoline. Able to be outside.

Id. at 43. Rebecca Ann Clark, H.M.’s foster parent at the time of the hearing,

testified that H.M. came to live with her and her husband on September 6, 2012.

When asked by LCCS whether there were any current behavioral issues, the

following exchange took place:

       A: She has her ups an [sic] downs. But nothing out of the
       ordinary. Her therapist said the issues we talk about are typical of a
       child her age.

       Q: Does she know what is going on with respect to these
       proceedings?

       A:    She does.

       Q:    You don’t want to keep her out of the loop since this is her life?



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Case Nos. 8-13-11, 8-13-12, 8-13-13



         A: It is. She is old enough. She, we have not given her everything.
         But she knew at some point there was going to be a hearing and a
         judge was going to decide what was best for her and how she would
         go through life.

Id. at 54. On cross-examination, when asked whether H.M. was told that she

might not be able to go home to her mother, Clark responded “[w]e told her we

didn’t know what was going on. At some point she was either going to go home

or she was not going to go home. We told her if she didn’t go home, it might not

necessarily be with us. We can’t say for sure what is going to happen to her.” Id.

at 57.

         {¶18} L.L.’s and J.L.’s current foster parents, Ashley Day and Angela

Moeller, were the last witnesses called by LCCS. As to L.L., Day stated that “[h]e

is more mobile. He is talking now. He is potty trained. He is more independent.

He dresses himself. He can get his own cereal.” Id. at 68. When asked about

whether the children displayed any behaviors, she testified “[t]hey can be typical

kids. There is some sibling rivalry going on. Typical kid stuff.” Id. at 70. She

also reiterated that J.L. had no developmental delays. Day and Moeller both

testified that they believed it to be in the children’s best interest to have permanent

custody granted to LCCS.

         {¶19} After LCCS rested, Lewellan called her father, Ferlyn Butler, to

testify. When asked whether he had any concerns regarding the children being


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Case Nos. 8-13-11, 8-13-12, 8-13-13



returned to their mother, he replied “[n]o. The kids loved their - - like the boys

they would - - [L.L.] was always hugging on her. Mama! Mama! The boys really

love their mom. And [H.M.], she would hug around on her mom and stuff too.

She says, ‘I will just be glad when I get home.’ ” (Emphasis sic.) Id. at 79.

       {¶20} At the conclusion of the evidence the court found that permanent

custody was in the best interests of all three children. The court did not orally

state its findings on the record, and instead directed “the Prosecutor to prepare the

judgment entry.” Jun. 21, 2013 Tr., p. 11. Further, the court stated:

       And see if you can live with, because I would certainly allow you to
       critically analyze her proposed judgment entry. I am not going to
       assign [sic] it until I get input from all of you.
             So for me, [making oral findings] is not necessary. I suppose
       based upon - - does anybody else think that? I don’t want to short
       shift [sic] anybody. * * *
             I also thought in my looking at mom and dad here today, I
       would almost find that to be cruel. I suppose to review some of
       those things.
             I know we are here in a court of record and we say things on
       the Record. But all of you heard those things too.
             If [the Prosecutor] proposes anything, a finding of fact or a
       reference to a particular statute sub division in 2151, I am sure you
       will call it to the Court’s attention.
             If we have to have one other meeting of all other counsel to
       discuss this and hash it out, we will. This is an important matter for
       James and [Lewellan], but also for the kids. I can certainly schedule
       that.




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Case Nos. 8-13-11, 8-13-12, 8-13-13



Id. at 11-12. The court filed its judgment entry stating findings of fact and

conclusion of law on July 8, 2013, granting permanent custody of all three

children to LCCS.

      {¶21} Lewellan timely filed her appeal, presenting the following

assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT’S DECISION IS AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE. APPELLEE DID
      NOT PROVE BY CLEAR AND CONVINCING EVIDENCE
      THAT THE COURT SHOULD GRANT ITS MOTION FOR
      PERMANENT CUSTODY OF THE MINOR CHILDREN.

                           Assignment of Error No. II

      THE TRIAL COURT ERRED IN GRANTING THE MOTION
      FOR PERMANENT CUSTODY WHEN IT PRIMARILY
      FOCUSED ON APPELLANT’S MENTAL HEALTH AND
      RELIED ON THAT AS THE BASIS FOR DEPRIVING
      APPELLANT CUSTODY OF HER MINOR CHILDREN.

                           Assignment of Error No. III

      THE TRIAL COURT ERRED IN FINDING APPELLEE USED
      REASONABLE    EFFORTS     FOR    REUNIFICATION
      THROUGHOUT THE CASE

                           Assignment of Error No. IV

      THE CHILDREN’S GUARDIAN AD LITEM FAILED TO
      PERFORM NECESSARY DUTIES PURSUANT TO OHIO
      REVISED CODE SECTION 2151.281 AND SUPERINDENT
      [sic] RULE 48, THEREBY NOT ACTING IN THE


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Case Nos. 8-13-11, 8-13-12, 8-13-13



         CHILDREN’S BEST INTEREST, TO APPELLANT’S
         DETRIMENT AND IN VIOLATION OF HER DUE PROCESS.

                             Assignment of Error No. V

         APPELLANT’S COURT APPOINTED GUARDIAN AD
         LITEM FAILED TO PERFORM HIS DUTIES TO
         APPELLANT’S DETRIMENT AND IN VIOLATION OF HER
         DUE PROCESS.

                             Assignment of Error No. VI

         THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
         FAILED TO PUT ITS FINDINGS OF FACT AND
         CONCLUSIONS OF LAW ON THE RECORD BY
         DIRECTING APPELLEE TO DRAFT THE JUDGMENT
         ENTRY BASED ON HER PERCEIVED FINDINGS AND
         CONCLUSIONS AND NOT THE COURT’S INDEPENDENAT
         REVIEW OF THE EVIDENCE PRESENTED AT THE
         PERMANENT CUSTODY HEARING.

         {¶22} Due to the nature of the assignments of error, we elect to address

them out of order, and address first and fourth assignments of error together.

                          Assignments of Error Nos. I & IV

         {¶23} In her first and fourth assignments of error, Lewellan argues that the

trial court erred in granting permanent custody of her children to LCCS.

Specifically, she argues that the trial court’s failure to investigate the wishes of the

children, coupled with the failure of the children’s GAL to investigate and express

their wishes, either through testimony or a report, constitutes reversible error. We

agree.


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                                 Standard of Review

       {¶24} When reviewing a grant of permanent custody, we note that “the

right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Hayes, 79 Ohio

St.3d 46, 48 (1997), citing In re Murray, 52 Ohio St.3d 155, 157 (1990). Parents

have a fundamental interest in the “care, custody, and upbringing of their

children.”   In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 50.

Therefore, the parents must be given “every procedural and substantive protection

the law allows.” Hayes at 157. However, “ ‘the natural rights of a parent are not

absolute, but are always subject to the ultimate welfare of the child, which is the

polestar or controlling principle to be observed.’ ” In re Cunningham, 59 Ohio

St.2d 100, 106 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App. 1974).

But, as this court has noted, “ ‘the termination of parental rights is an alternative of

last resort.’ ” In re Lopez, 166 Ohio App.3d 688, 2006-Ohio-2251, ¶ 25 (3d Dist.),

quoting In re Capasso, 3d Dist. Hancock Nos. 5-04-36, 5-04-37, 5-04-38, and 5-

04-39, 2005-Ohio-1601, ¶ 6.

       {¶25} Under R.C. 2151.414, permanent custody determinations must be

supported by clear and convincing evidence. In re A.F. at ¶ 51. Clear and

convincing evidence has been defined as “the 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

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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, 25 Ohio St.3d 101, 103-04 (1986). In addition, when “the

degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross v.

Ledford, 161 Ohio St. 469, 477 (1954). Thus, we are required to determine

whether the trial court’s determination was supported by sufficient credible

evidence to satisfy the requisite degree of proof.      In re McCann, 12th Dist.

Clermont No. CA2003-02-017, 2004-Ohio-283, ¶ 12.

       {¶26} In applying this standard of review, we note that trial courts are

vested with broad discretion in determining parental rights. Blaker v. Wilhelm, 6th

Dist. Wood No. WD-04-003, 2005-Ohio-317, ¶ 9. We may not simply substitute

our own judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). Therefore, absent an abuse of discretion, “a trial court’s

decision regarding the allocation of parental rights and responsibilities for a minor

child must be upheld.” In re Franklin, 3d Dist. Marion Nos. 9-06-12, 9-06-13,

2006-Ohio-4841, ¶ 10. An abuse of discretion occurs when a trial court’s decision

“is contrary to law, unreasonable, not supported by the evidence, or grossly



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unsound.” In re B.C., 191 Ohio App.3d 739, 2010-Ohio-6377, ¶ 16 (3d Dist.),

citing State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.).

                          Best Interests of H.M, J.L., & L.L

       {¶27} In determining whether permanent custody is in the best interest of a

child, a trial court needs to consider all relevant factors, including but not limited

to, the five listed under R.C. 2151.414(D). These factors include, “the interaction

and interrelationship of the child with the child’s parents, siblings, relatives, foster

caregivers, and out-of-home providers; the wishes of the child; the custodial

history of the child; the child’s need for legally secure permanent placement and

whether that type of placement can be achieved without a grant of permanent

custody to the agency[;]” and whether any of the factors in division (E)(7)-(11)

apply to the child. In re B.S., 184 Ohio App.3d 463, 2009-Ohio-5497, ¶ 46 (8th

Dist.); R.C. 2151.414(D).

       {¶28} A trial court can determine that granting permanent custody to the

state is in the child’s best interest, even with a lack of clear and convincing

evidence in a single factor. In re Schaeffer Children, 85 Ohio App.3d 683, 392

(3d Dist. 1993). However, each of the factors must be addressed by the trial court

in its findings, or by some indication in the record. In re D.H., 3d Dist. Marion

No. 9-06-57, 2007-Ohio-1762, ¶ 21. Further, it is not the prerogative of the

appellate court “to review the factual record or narrative and then make the

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necessary inferences to determine whether the trial court must have considered

each of the required statutory factors.” Id. at ¶ 20. Instead, the judgment entry

must identify the clear and convincing evidence that supports a finding that each

factor was considered. See id.; see also In re McMillin, 171 Ohio App.3d 686,

2007-Ohio-2046, ¶ 14-15, (3d Dist.).

        {¶29} R.C. 2151.414(D)(1)(b) requires that when a court determines the

best interests of a child it considers that child’s wishes.2 These wishes must be

“expressed directly by the child or through the child’s GAL, with due regard for

the maturity of the child.” Id. Thus, trial courts are limited, when investigating

the wishes of the child, to the testimony of the GAL or the child, and may not

consider testimony from other sources. In re T.V., 10th Dist. Franklin Nos. 04AP-

1159, 04AP-1160, 2005-Ohio-4280, ¶ 60; In re Walling, 1st Dist. Hamilton No. C-

050646, 2006-Ohio-810, ¶ 23.

        {¶30} This court has made clear the importance of ascertaining the wishes

of the child, encouraging both courts and GALs to specifically address the issue.

See In re Lane, 3d Dist. Marion Nos. 9-03-61, 9-03-62, 2004-Ohio-2798, ¶ 46.

2
  The importance of this determination cannot be understated, as it implicates whether a GAL can also
serve as the child’s attorney. The Ohio Supreme Court has found that a child who is the subject of a
permanent custody hearing “is a party to that proceeding and, therefore, is entitled to independent counsel
in certain circumstances.” In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, syllabus. As a result,
where the wishes of the child conflict with the disposition recommended by a GAL who is also serving in
the role of attorney, independent counsel should be appointed by the court. See id. at ¶ 18, 29 (affirming
court of appeals opinion stating same). Though not argued as an assignment of error, we note that without
determining the wishes of the children, the court could not determine whether the children required
independent counsel in this case.

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There must be clear and convincing evidence on the record that there was

investigation into to the wishes of the child to support a finding that the trial court

considered the children’s wishes. See In re Lopez, 2006-Ohio-2251, at ¶ 24, 37;

see also T.V. at ¶ 61.

       {¶31} Evidence that adequate investigation was made of the child’s wishes

can come from the GAL’s report. See In re K.H., 3d Dist. Hancock No. 5-10-06,

2010-Ohio-3801, ¶ 33-34. In K.H., the judgment entry of the court after the

permanent custody hearing stated that it considered the wishes of the children as

expressed by the GAL. Id. at ¶ 33. The GAL’s report stated that the child was

only four and was unable to speak during visits with the guardian. Id. The report

also stated that it was the guardian’s belief that, if the child were able to express

his wishes, they would be to stay in the foster placement. Id. This court found

that this report provided sufficient evidence that the trial court considered the

wishes of the child. Id.

       {¶32} The trial court, on its own, can find that a child is too immature to

express his or her wishes, so long as that finding is supported in the record. Lopez,

2006-Ohio-2251, at ¶ 38. In Lopez, the trial court found that the four children that

were subject to the proceeding were too young to express their wishes and “noted

that the children had special needs due to developmental delays and sexual abuse.”

Id. at ¶ 34. At the hearing, there was no testimony as to the children’s wishes, nor

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Case Nos. 8-13-11, 8-13-12, 8-13-13



was there any indication in the GAL report that he attempted to investigate those

wishes. Id. at ¶ 36. As evidence was presented regarding specific delays for three

of the children, all under the age of four, this court found that the trial court’s

determination that the children were too young to express their wishes was

supported on the record. Id. at ¶ 38. However, for the five year old daughter,

there was nothing in the record regarding any kind of delay or any investigation

into her maturity. Id. at 37. As a result, the trial court’s finding that she was too

young to express her wishes was not supported by clear and convincing evidence,

resulting in a reversal of a grant of permanent custody to the state agency. Id.

       {¶33} In the case sub judice, the children did not testify, nor did the GAL

testify, regarding their wishes or lack of maturity. At the hearing, the trial court

did not orally make any findings, reasoning it would be cruel to the parents. In its

judgment entry, the trial court, when listing how it considered the wishes of the

children, stated:

       Attorney James R. Gudgel, Legal Counsel and Guardian Ad Litem
       for the minor children, has recommended the Court grant the Motion
       for Permanent Custody filed by Logan County Children Services.
       Further, based upon the testimony of Grace Schoessow, the minor
       child, H.M. (Female) has indicated she desires to stay with [her
       foster parents].




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Case Nos. 8-13-11, 8-13-12, 8-13-13



(8-13-11 & 8-13-12 Docket No. 176, p. 193; 8-13-13 Docket No. 207, p. 19). The

trial court did not make any finding that the children were too immature to express

their wishes, in essence relying on the testimony of Grace Schoessaw and the

report of the GAL as an expression of those wishes.

          {¶34} While Schoessaw testified that she heard H.M. state that she wanted

to stay with her foster parents while on the phone with her aunt, her grandfather,

Feryln Butler, testified that he heard her tell her mother that she wanted to come

home.        Neither Schoessaw nor Butler are H.M.’s GAL. As a result, their

statements cannot form the basis of the trial court’s consideration of H.M.’s

wishes, as R.C. 2151.414(D)(1)(b) requires that the child’s wishes be expressed

either directly or through a GAL.

          {¶35} As to the GAL, Gudgel did not testify as to the wishes of the children

or discuss how their immaturity or developmental delays might have prevented

him from ascertaining those wishes. Further, unlike the facts in K.H., the report

here contained no mention of the wishes of the children or why those wishes could

not be ascertained. In fact, in our review of the record, there is evidence that the

children may have been mature enough to express their wishes.

          {¶36} While J.L. was not yet two at the time of the hearing, all of the

evidence presented was that he was typically developing. There was evidence that

3
    The Docket for 8-13-11 and 8-13-12 was combined.

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Case Nos. 8-13-11, 8-13-12, 8-13-13



L.L., who was almost six, had delays when temporary custody was granted to

LCCS. However, the testimony adduced at trial continually stated that he had

made great strides, both developmentally and cognitively. Of particular note was

the testimony of Chris Christensen, who stated how far he had come cognitively,

and Anne Stuck, who described how he had only missed three age appropriate

markers. As to H.M., who was almost ten, ample testimony was given as to how

close she was to developmental appropriateness.         Her teachers and principal

testified as to how much she had matured and changed since being removed from

her parents.   She was more social, had made large academic leaps, and her

behavior had come under control. Further, her foster parents testified that she

understood what the proceedings were going to determine: whether she would

ever be allowed to return home. In spite of all of this, the report failed to state

why Gudgel never asked the children their wishes.

       {¶37} Further, unlike Lopez, the trial court did not find that the children

were too immature to be able to express their wishes. It failed to find any reason

why the children could not express their wishes. This is especially troubling in

regard to H.M., as her foster parents testified that she understood that the result of

the trial may be that she would never go home again. The court had evidence that

at least one of the children had the cognitive capacity to understand the results of

the proceedings, but never inquired as to what the child wanted that result to be.

                                        -22-
Case Nos. 8-13-11, 8-13-12, 8-13-13



       {¶38} Here, the trial court failed to investigate the wishes of the children, or

investigate whether the children could express those wishes. In light of the ample

evidence from providers, foster parents and teachers that J.L. was typically

developing, L.L. had made large strides cognitively, physically, academically, and

behaviorally, and in light of H.M.’s age, understanding of the proceedings, and

great strides socially and behaviorally, we cannot say that there is clear and

convincing evidence that the children were incapable of expressing those wishes.

       {¶39} This court understands how important permanent placement is for

each child, and how those interests are paramount, even over the interests of the

parents. Both trial courts and GALs must be diligent in investigating the wishes of

the children during permanent custody proceedings. Without any evidence on the

record that the trial court or GAL investigated those wishes, under the facts of this

case, we cannot find that the trial court adequately considered the wishes of the

children as statutorily required.

       {¶40} Accordingly, Lewellan’s first and fourth assignments of error are

sustained.

                            Assignment of Error No. VI

       {¶41} In her sixth assignment of error, Lewellan argues that the trial court

improperly accepted LCCS’s findings of fact and conclusions of law as its own.

We agree.

                                         -23-
Case Nos. 8-13-11, 8-13-12, 8-13-13



       {¶42} Trial courts are allowed to accept the proposed findings of fact and

conclusions of law of a party. New Haven Corner Carry Out, Inc. v. Clay Distrib.

Co., 3d Dist. No. 13-01-30, 2002-Ohio-2726, ¶ 26.           The trial court must

thoroughly review the document and ensure that it is accurate. Clark v. Smith, 130

Ohio App.3d 648, 659 (3d Dist. 1998). Harmless error occurs when a court

accepts proposed findings of fact and conclusions of law that include minor

mistakes that do not prejudice a party. See id., see also New Haven at ¶ 29.

However, if the law or facts are unsupported and cause prejudice, the trial court

was in error to accept them. See Clark at 659. The accuracy of the findings of

fact and conclusions of law are reviewed under manifest weight. New Haven at ¶

26.

       {¶43} As we have already discussed, the finding that the court considered

the wishes of the children is against the manifest weight of the evidence. As a

result, accepting the proposed finding by LCCS that the court considered the

wishes of the children was also in error.

       {¶44} Therefore, Lewellan’s sixth assignment of error is sustained.

                      Assignments of Error Nos. II, III, & V

       {¶45} In Lewellan’s second, third, and fifth assignments of error, she

argues that the trial court improperly focused on her mental health, LCCS did not

expend reasonable efforts toward reunification, and her own guardian failed to

                                        -24-
Case Nos. 8-13-11, 8-13-12, 8-13-13



adequately perform his duties. Having found error prejudicial to Lewellan in the

resolution of her first, fourth, and sixth assignments of error, the remaining

assignments of error are moot and we elect not to address them.           App.R.

12(A)(1)(c).

       {¶46} Having found error prejudicial to Lewellan in her first, fourth, and

sixth assignments of error, we reverse the judgments of the trial court and remand

this matter for further proceedings consistent with this opinion.

                                                           Judgments Reversed and
                                                                Causes Remanded

WILLAMOWSKI, P.J., concurs.
PRESTON, J., concurs in Judgment Only.

/jlr




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