[Cite as In re L.J., 2016-Ohio-2658.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 IN THE MATTER OF:                            :
                                              :
          L.J. and M.J.                       :   C.A. CASE NO. 2015-CA-85
                                              :
                                              :   T.C. NO. 2014-534 and 2014-535
                                              :
                                              :   (Civil Appeal from Common Pleas
                                              :    Court, Juvenile Division)
                                              :
                                              :

                                         ...........

                                        OPINION

                 Rendered on the ___22nd___ day of _____April_____, 2016.

                                         ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Appellee State of Ohio

JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 N. Ludlow Street, Suite 386
Talbott Tower, Dayton, Ohio 45402
       Attorney for Appellant H.K.

LISA J. NILES, Atty. Reg. No. 0061134, 1122 W. High Street, Springfield, Ohio 45505
      Guardian Ad Litem

                                        .............

FROELICH, J.

        {¶ 1} H.K. (Mother) appeals from a judgment of the Clark County Court of Common

Pleas, Domestic Relations Division, Juvenile Section, which granted Clark County

Children Services’s (CCCS) motion for permanent custody of two of Mother’s children,
                                                                                       -2-


L.J. and M.J.

       Custody Proceedings

       {¶ 2} On April 14, 2014, CCCS filed a complaint alleging that L.J. and M.J. were

dependent children, and the children were removed from Mother’s home. A guardian ad

litem was appointed for the children. On June 13, 2014, the trial court adjudicated the

children to be dependent and granted temporary custody to CCCS. Temporary custody

was extended at CCCS’s request in April 2015.

       {¶ 3} In August 2015, CCCS filed a motion for permanent custody of L.J. and M.J.

A hearing was held in September 2015. L.J. and M.J. were ten and nine years old,

respectively, at the time of the hearing.      Their father did not participate in the

proceedings, was not a legal resident of the United States, and was living out of the

country. After the hearing, the trial court granted permanent custody of the children to

CCCS.

       Assignments of Error

       {¶ 4} Mother appeals from the judgment of the trial court, raising four assignments

of error.   The first three assignments relate to the manner in which the trial court

considered the children’s wishes about custody. Specifically, Mother claims that the trial

court erred or abused its discretion in 1) failing to appoint an attorney for the children

separate from the guardian ad litem, 2) failing to conduct an in camera interview with the

children about their wishes, and 3) failing to give appropriate consideration to the

children’s wishes with respect to custody. In her fourth assignment, she asserts that the

trial court erred in awarding permanent custody to CCCS.

       In Camera Hearing and Appointing an Attorney for the Children
                                                                                           -3-


       {¶ 5} The first and second assignments of error are interrelated, and we will

address them together.      The first assignment states that the trial court “committed

reversible error” when it failed to appoint an attorney to represent the children; the second

asserts that the trial court committed reversible error in failing to conduct an in camera

interview with the children to determine their views about custody and whether their

preferences about custody were in conflict with the views of the guardian ad litem about

their best interest, and thus required the appointment of an attorney.

       {¶ 6} “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 Janie

M., 131 Ohio App.3d 637, 639, 723 N.E.2d 191 (6th Dist.1999), citing R.C. 2151.281(H)

and In re Smith, 77 Ohio App.3d 1, 14, 601 N.E.2d 45 (6th Dist. 1991). The duty of a

lawyer to his or her client and the duty of a guardian ad litem to his or her ward are not

always identical and, in fact, may conflict. The role of guardian ad litem is to investigate

the ward’s situation and then to ask the court to do what the guardian feels is in the ward’s

best interest; the role of the attorney is to zealously represent his or her client within the

bounds of the law. In re Baby Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d 257

(1985). However, a court is not required to appoint separate counsel for the children in

a permanent custody proceeding unless the guardian ad litem’s recommendations

regarding the children’s best interest conflict with the children’s own wishes. See In re

J.M., 12th Dist. Warren No. CA2008-12-148, 2009-Ohio-4824, ¶ 52, citing In re Williams,

101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110.

       {¶ 7} Effective March 1, 2009, the Supreme Court of Ohio adopted Rule 48 of the

Rules of Superintendence for the Courts of Ohio to govern guardian ad litem standards
                                                                                            -4-


in Ohio. Sup.R. 48(D)(8) provides: “When a guardian ad litem determines that a conflict

exists between the child’s best interest and the child’s wishes, the guardian ad litem shall,

at the earliest practical time, request in writing that the court promptly resolve the conflict

by entering appropriate orders.” Additionally, Ohio Rule of Juvenile Procedure 4(C)(2)

provides: “If a person is serving as guardian ad litem and as attorney for a ward and either

that person or the court finds a conflict between the responsibilities of the role of attorney

and that of guardian ad litem, the court shall appoint another person as guardian ad litem

for the ward.”

       {¶ 8} 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., 12th Dist. Butler No.

CA2010-12-324, 2011-Ohio-4470, ¶ 19.          Generally, the appointment of independent

counsel is necessary when the child has “consistently and repeatedly expressed a strong

desire that is inconsistent with the guardian ad litem’s recommendations.” In re M.H.,

12th Dist. Fayette No. CA2012-11-035, 2013-Ohio-1063, ¶ 34; In re B.W., 9th Dist.

Medina No. 12CA0016-M, 2012-Ohio-3416, ¶ 42.

       {¶ 9} Some appellate courts have found that, where no request is made in the

trial court for counsel to be appointed for the children in permanent custody proceedings,

the issue will not be addressed for the first time on appeal. See, e.g., In re K.H., 9th Dist.

Summit No. 22765, 2005-Ohio-6323, ¶ 41; In re Graham, 4th Dist. Athens No. 01CA57,

2002-Ohio-4411, ¶ 31-33.

       {¶ 10} In this case, the guardian ad litem expressed her view that L.J. and M.J.

were old enough to state their wishes about custody, and she testified about their wishes
                                                                                           -5-


as expressed to her. According to the guardian ad litem, L.J. had “gone back and forth”

about his wishes, alternately expressing 1) anger at Mother, saying he did not want to live

with her, 2) a desire to go home with Mother, promising to behave if he went home, and

3) a desire to remain in his foster home. “He’s been all over the map.” M.J. had

expressed to the guardian ad litem her sadness that she had to live away from her mother

and brother, but she also expressed that she felt very safe and happy in foster care and

loved her foster parents. M.J. also stated that she would want to live with Mother “if

[Mother] wouldn’t cry anymore.”1

       {¶ 11}   The trial court did not conduct an in camera interview with the children

about their wishes. Based on the record of the case, the trial court had no reason to

question the guardian ad litem’s representations as to the children’s feelings, and Mother

did not request that the children be interviewed in camera at any time prior to or during

the hearing. Mother also did not request in the trial court that an attorney be appointed

for the children. Considering the relatively young ages of the children (10 and 9) and the

lack of any other indications in the record that the children had a consistent and strong

opinion about the custody determination that directly conflicted with the views of the

guardian ad litem or that the guardian ad litem failed to report to the court, the trial court

did not err or abuse its discretion by not conducting in camera interviews with the children

sua sponte.



1 The guardian ad litem’s report further noted that L.J. “cannot be left alone with other
children due to his violent nature” and that L.J. had a “history of sexually offending against
his sister” and another child. Thus, even if the court had denied CCCS’s motion for
permanent custody, it would have been necessary to address concerns about whether
the children could safely be placed together.
                                                                                         -6-


       {¶ 12} Moreover, the record fails to reveal that an actual conflict existed between

the children’s wishes and the recommendations of the guardian ad litem. Based on the

guardian ad litem’s report and testimony, the transcript of the hearing, and the exibits

presented in the trial court, there was no basis to conclude that L.J. or M.J. had

“consistently and repeatedly expressed a strong desire” with respect to their placement

that was inconsistent with the guardian ad litem’s recommendations, i.e., a strong desire

to be placed with Mother. A child’s “waffling” back and forth about his or her wishes, or

a child’s expression that he or she would like to go home if “Mother would be different,”

but not under the same living conditions as existed previously, does not demonstrate a

consistent, repeated, or strong desire to return the the parent’s care. See In re B.W., 9th

Dist. Medina No. 12CA0016-M, 2012-Ohio-3416, ¶ 34.

       {¶ 13} Under the circumstances presented in this case, including the

inconsistency in the children’s stated desires and their relatively young ages, we disagree

with Mother’s assertion that the court was required to appoint counsel for the children;

there was no evidence that the children had consistently and repeatedly expressed

wishes as to the custody determination that conflicted with the guardian ad litem’s view

of their best interest. We also disagree with Mother’s assertion that in camera interviews

were essential to the court’s determination, particularly in the absence of any request that

the court conduct such interviews and of any evidence that the guardian ad litem’s report

did not accurately reflect the children’s views.

       {¶ 14} The first and second assignments of error are overruled.

       Consideration of Children’s Wishes

       {¶ 15} In her third assignment of error, Mother argues that the trial court failed to
                                                                                            -7-


consider the wishes of the children.          She also suggests that, in order for the

consideration of the children’s wishes to be meaningful, someone must have explained

to the children what permanent custody means, i.e., that it resulted in the “extinguishment

of any possibility for reunification; termination of visits and contact with parents and

siblings; and potential for adoption.”

       {¶ 16} Mother’s suggestion that the trial court did not consider the children’s

wishes is not supported by the record. Although the trial court did not discuss the issue

at length in its judgment, it did note that the children (through the guardian ad litem)

“indicate[d] a strong desire to be placed in a loving, secure, and permanent home.” This

characterization of the children’s wishes does not reference the children’s occasional and

qualified statements of a desire to return to Mother’s care, but it is consistent with the

children’s statements to the guardian ad litem that changes in their own behavior (L.J.) or

Mother’s behavior (M.J.) would be necessary to make living with Mother workable or

desirable.    This characterization is also consistent with the guardian ad litem’s

statements about the significant progress the children had made in the more stable

environments of their foster homes.

       {¶ 17} Mother cites no authority for her assertion that a child must be informed of

all the ramifications of a permanent custody determination before the child’s “wishes” can

be meaningfully considered, and we are aware of none. R.C. 2151.414(D) states that

the court shall consider “all relevant factors,” including “the wishes of the child, * * * with

due regard for the maturity of the child.” This provision does not require that all of the

specific consequences of a permanent custody determination be explained to the child

as a prerequisite to consideration of his or her “wishes.” Giving “due regard for the
                                                                                          -8-


maturity” of children 9 and 10 years old, particularly ones dealing with emotional and

psychological issues, as in this case, the court could have reasonably concluded that an

attempt to explain all of the weighty ramifications of a permanent custody decision would

place an inappropriate emotional burden on the children and might even cause them to

obscure their true wishes. What is required is that the court have an understanding and

appreciation of the wishes of each child concerning his or her future life with the parent.

       Best Interest Analysis

       {¶ 18} Mother’s fourth and final assignment of error challenges the trial court’s

determinations that awarding permanent custody of L.J. and M.J. to CCCS was in the

children’s best interests and that the children could not be returned to Mother’s care within

a reasonable period of time.

       {¶ 19} R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public children services agency. The

statute requires the court to find, by clear and convincing evidence, that: (1) granting

permanent custody of the child to the agency is in the best interest of the child; and (2)

either the child (a) cannot be placed with either parent within a reasonable period of time

or should not be placed with either parent if any one of the factors in R.C. 2151.414(E) is

present; (b) is abandoned; (c) is orphaned and no relatives are able to take permanent

custody of the child; or (d) has been in the temporary custody of one or more public or

private children services agencies for twelve or more months of a consecutive twenty-two

month period. R.C. 2151.414(B)(1); In re S.J., 2d Dist. Montgomery No. 25550, 2013-

Ohio-2935, ¶ 14, citing In re K.M., 8th Dist. Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8.

       {¶ 20} R.C. 2151.414(D) directs the trial court to consider all relevant factors
                                                                                         -9-


when determining the best interest of the child, including but not limited to: (1) the

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

parents and any other person who may significantly affect the child; (2) the wishes of the

child; (3) 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;

(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 to the agency; and (5)

whether any of the factors in R.C. 2151.414(E)(7) through (11) are applicable. See also

In re S.J. at ¶ 15. R.C. 2151.414(E)(7) through (11) include whether the parent has been

convicted of any of a number of listed offenses; whether the parent has repeatedly

withheld medical treatment or food; whether the parent has placed the child at substantial

risk of harm two or more times due to substance abuse and has rejected treatment two

or more times or refused to participate in treatment; whether the parent has abandoned

the child; and whether the parent has had parental rights previously terminated.

       {¶ 21} All of the court’s findings must be supported by clear and convincing

evidence. R.C. 2151.414(E); In re J.R., 2d Dist. Montgomery No. 21749, 2007-Ohio-

186, ¶ 9. A trial court’s decision on termination of parental rights “will not be overturned

as against the manifest weight of the evidence if the record contains competent, credible

evidence by which the court could have formed a firm belief or conviction that the essential

statutory elements for a termination of parental rights have been established.” (Citations

omitted.) In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15.

       {¶ 22} The evidence presented at the hearing was as follows:
                                                                                           -10-


       {¶ 23} The guardian ad litem for the children had been involved with the family

since the children’s removal in April 2014. With respect to Mother’s mental health, which

was frequently discussed at team meetings, the guardian ad litem stated that Mother

would report that she (Mother) was in compliance with the case plan, attending her group

and individual sessions, medical appointments, and the like, but Mother would not give

the guardian ad litem access to any records from which these claims could be verified.

The guardian ad litem testified that there were lots of discrepancies between the records

she could access and Mother’s self-reporting, and that she (the guardian ad litem)

perceived a lack of credibility in Mother’s reporting of events in her life, her treatment, her

reasons for canceling visits, and in other contexts. The guardian ad litem had watched

Mother’s visitation with the children and reported that their interaction was appropriate,

but she had never been allowed access to Mother’s home.

       {¶ 24} The guardian ad litem testified that Mother “has a very hard time staying

stable in her life, taking care of her own mental health needs over a consistent period of

time, and that she had small spurts of success * * * kind of grabs ahold of things for a

short while and it looks like she’s going to gain momentum, and then it just falls off, and

then she might start again.” The guardian ad litem’s written report further detailed that

Mother had a history of major depression, histrionic personality disorder, post-traumatic

stress disorder, and panic disorder. Mother had unresolved issues with grief and loss

and “crippling” panic and anxiety attacks, which sent her to the hospital three times during

the course of these proceedings; she had previously attempted suicide two times.

According to the guardian ad litem’s report, Mother took “powerful medications” for her

mental health diagnoses, had taken numerous pain medications, and was in “very poor
                                                                                      -11-


physical health.” Additionally, Mother had endured “severe domestic violence” at the

hands of her mother and two men, as well as sexual assault.

      {¶ 25} The guardian ad litem had not seen any indication that Mother could do

what was necessary to accomplish reunification with the children, care for her own

medical needs, and stay out of jail (for shoplifting, as discussed below). Mother was

noncompliant with many of the services offered to her, as well as with her medications,

therapy, and techniques and skills that had been taught to her. Likewise, L.J. (the 10-

year-old) was not compliant with his mental health treatment, and the children had very

poor attendance at school, while in Mother’s care.

      {¶ 26} The guardian ad litem noted that Mother had been evaluated twice by a

psychologist, Dr. Hrinko, who stated after the first evaluation that he believed Mother’s

difficulties could “respond to treatment” and that she could develop the skills to be an

effective parent.   After the second assessment, however, the guardian ad litem

expressed concerns that Dr. Hrinko’s recommendations were based, at least in part, on

inaccurate reporting by Mother. For example, Mother had reported to Dr. Hrinko that she

had been “actively involved in mental health treatment” since September 2014, an

assertion that the guardian ad litem characterized as “simply not true.”

      {¶ 27} Mother told the guardian ad litem that L.J. “had significant and ongoing

problems his whole life; that he had been medicated; diagnosed with * * * schizophrenia

and bipolar; and that he had been violent in the past toward her, had been violent toward

[M.J.], and had been really, really difficult.” Mother claimed that these were among

reasons she could not get L.J. to school, and she was afraid of L.J.

      {¶ 28} The guardian ad litem observed that L.J. had a “severe behavioral history”
                                                                                         -12-


and that, in the guardian ad litem’s opinion, Mother blamed L.J. for the chaos in the family

because he was “not normal.”        The guardian ad litem also observed that L.J. has

exhibited anger directed at women specifically. L.J. has had fewer behavioral problems

in foster case because he goes to school regularly and attends his health and counseling

appointments regularly.

       {¶ 29} The behavior of M.J., the nine-year-old, also improved significantly in foster

care. She went from “screaming for hours” to “significant and noticeable change” with

the stability of foster care. M.J. was diagnosed with adjustment disorder attributable to

the chaos, inconsistency, and traumatic atmosphere of Mother’s home and to the abuse

Mother suffered in some of her relationships with men, including the children’s father.

Mother acknowledged neither the abuse nor M.J.’s emotional problems.

       {¶ 30} The guardian ad litem testified that she believed the children were

adoptable and recommended that CCCS be awarded permanent custody of the children.

       {¶ 31} The CCCS caseworkers, Hannah Wenner and Brooke Bodenmiller,

testified that CCCS had been involved with Mother several times, specifically in 1993,

1996, and 2009. Throughout these involvements, there had been concerns regarding

Mother’s mental health, her stability, her compliance with services for the children, and

the children’s attendance at school; there had also been several referrals for physical

abuse and neglect. Father had not been involved with the family or CCCS at least since

the April 2014 removal of the children, and he was reported by Mother now to be living

out of the country. In addition to L.J. and M.J., Mother has three older children with a

different father or fathers; the oldest two were placed for adoption voluntarily, and the

third was placed in the legal custody of the child’s father.
                                                                                        -13-


       {¶ 32} Wenner was first assigned to the case in 2014. She testified that Mother’s

mental health diagnoses included major depressive disorder, anxiety, mood disorder, and

dependent personality disorder. L.J.’s mental health was also a concern at that time; he

had been diagnosed with oppositional defiant disorder, attention deficit hyperactivity

disorder, psychotic disorder, and bipolar disorder.    Mother was not keeping up with

counseling appointments or school attendance, and L.J. was not getting his medications.

       {¶ 33}   Mother’s case plan focused on the following objectives: Mother was to

address her own mental health, including therapy and medication, have a psychological

assessment and follow any recommendations given, and complete a drug and alcohol

assessment. Mother was also expected to visit with the children regularly and to attend

their medical appointments. L.J. and M.J. were to attend counseling as well.

       {¶ 34} In March 2014, Mother appeared at the juvenile court as a result of a truancy

charge. The probation officer who she was there to see reported that Mother’s speech

was slurred and that she “seemed extremely intoxicated or heavily medicated.” The

probation officer was particularly concerned about this behavior because Mother had just

dropped off L.J. and M.J. at another location. The probation officers did not allow Mother

to walk or drive home because of their concern about her condition, and they called a

relative to pick her up.

       {¶ 35} According to Wenner, one of the recommendations from Mother’s

psychological evaluation was that she attend intensive counseling, which she did on far

fewer occasions than what was recommended. With respect to visitation with L.J. and

M.J., Wenner reported that Mother canceled many visits; between April and December

2014, Mother completed 20 of 35 scheduled visits. Mother “made a lot of excuses” to
                                                                                       -14-


the caseworker about why she was not in compliance with the case plan, and Wenner

believed that part of the problem was that Mother had trouble balancing the things that

were being asked of her. Wenner stated that Mother had made minimal progress on her

case plan, but not as much as Mother claimed to have made. Although Mother stated

on at least one occasion that she wanted help dealing with her children and the challenges

they presented, Wenner testified that many community agencies were already familiar

with Mother at that time and did not want to work with her due to her poor record of

showing up for appointments.

      {¶ 36} Wenner reported that Mother had more problems dealing with L.J. than

with M.J. because of L.J.’s mental health issues, and Wenner reported “emotional

maltreatment” of L.J., as documented by a “disturbing” tape recording. L.J. attended a

program combining education and mental health treatment, rather than a traditional

school.   When the foster parents advocated for cutting back on L.J.’s medications

because he was always tired and “zombie-like,” Mother resisted the change and stated

that she would put L.J. back on the medications if he returned to her care. L.J. was

successfully weaned from all but one of his medications during the time that Wenner

worked on the case.

      {¶ 37} Wenner testified that, at the time she turned the case over to another

caseworker, Mother wasn’t participating in the case plan objectives, including mental

health treatment, like she should, and that Mother was “less than truthful” about how she

was doing. Wenner believed that Mother was “really overwhelmed” by what was being

asked of her and was not able to meet even her own needs. Mother was not working

and was receiving Social Security Disability, Section 8 housing, and food stamps; there
                                                                                            -15-


had been some concerns about fraud with respect to the housing and food stamp

programs, and Wenner believed that Mother was having to pay back some benefits.

Mother had been charged with theft four times in 2014, and on at least one occasion she

had shoplifted while her kids were with her. Mother had been banned from four stores

in Springfield due to such behaviors.

       {¶ 38} Wenner reported that M.J. was flourishing in foster care and doing well in

school and with her counseling. L.J. had had three foster homes since his removal from

Mother’s home; Wenner testified that “it can be difficult to find a foster home that is the

right fit,” especially if a child has a lot of behavior issues.

       {¶ 39} Mother eventually completed the drug and alcohol assessment required by

her case plan but, according to Wenner, it took Mother three months to complete because

Mother kept canceling and “always [had] an excuse.”               Wenner testified that, in her

opinion, granting permanent custody to CCCS was in L.J.’s and M.J.’s best interest. “I

really just don’t think she [Mother] has the ability to complete all the things in her case

plan. I think her mental health really prevents her from accomplishing things and getting

things done.”

       {¶ 40} The current caseworker, Brooke Bodenmiller, also testified; she had served

as the CCCS caseworker since December 2014. Bodenmiller stated that Mother’s case

plan had been amended to add a parent-child interaction assessment and a review of

Mother’s psychological evaluation, and to allow visits with the children at Mother’s home

with a parent aide. Mother initially made progress on the plan, including attending more

(but not all) of her own behavioral health group sessions. Based on Mother’s progress,

CCCS requested an extension of temporary custody in April 2015.                  But Mother’s
                                                                                        -16-


progress began to fall apart in the summer, when Mother again asserted many conflicts

with her behavioral health appointments, was in and out of jail, and gave various excuses

for missing appointments. The behavioral health agency ended up reducing Mother’s

schedule from five days a week to three and then to two days per week because of poor

attendance. In early 2015, Mother also did better attending her medication reviews and

individual therapy sessions, but at the time of the hearing (September 2015), she had not

attended individual therapy since May 2015, when her counselor had changed.

       {¶ 41} Mother did complete a drug and alcohol assessment and kept 9 out of 16

appointments as part of her treatment at Mercy Reach; she “was completed from the

program” in January 2015, but Bodenmiller expressed doubt about whether Mother had

actually benefitted from the program.

       {¶ 42} With respect to visitation, Mother had completed 35 of 58 visits at the

Visitation Center in 2014, before the assignment of a parent aide to her case. Since

January 2015, Mother had been more consistent, particularly after May 2015; Mother had

missed only one visit in which the parent aide was expected to participate. Mother was

not compliant, however, with counseling attendance; although Mother reported following

through with behavioral health treatment and doing well, the records contradicted her

claims. According to Bodenmiller, Mother did not even know who her current counselor

was.   Mother claimed to have a valid drivers’ license, when in fact she did not.

Bodenmiller testified that it was difficult to make face-to-face contact with Mother due to

Mother’s many cancellations of appointments, but that Mother could generally be reached

by phone. Bodenmiller was unsure why Mother received Social Security payments and

did not work, but she believed it was due to Mother’s anxiety. Mother told her therapy
                                                                                           -17-


group that she had more frequent panic attacks after her visits with the children in her

home began, but Mother had not reported this fact to the caseworker.

       {¶ 43} According to Bodenmiller, L.J. was doing well with his current (third) foster

placement and his behavior had improved. L.J. was attending a regular public school at

the time of the hearing, but a change to a program more like one he had previously

attended and which included a component of mental health treatment was being

considered. Bodenmiller further testified that M.J.’s speech had improved and that both

children were consistently attending school, which had been a significant area of concern

when they lived with their Mother.         Bodenmiller believed that both children were

adoptable.

       {¶ 44} In sum, Bodenmiller testified that she did not think that L.J. and M.J. could

safely be reunited with Mother due to Mother’s mental health history, L.J.’s need for

mental health treatment, and Mother’s lack of follow-through with treatment for herself

and L.J.     Bodenmiller believed that Mother’s not having custody would allow the

children’s needs to be met more consistently and, by preventing Mother from feeling

overwhelmed by her responsibilities, would also better allow Mother to manage her own

treatment.

       {¶ 45} The parent aide who worked with Mother during this case testified that she

began working with Mother and the children in May 2015; Mother’s initial visits with the

children were “okay,” but more recently the visits had been “pretty bad.” L.J. acted

disrespectfully, Mother became “agitated or irritable or overwhelmed,” and M.J. did not

get any attention because of Mother’s focus on L.J.’s bad behavior. Mother made an

effort to engage in structured activities with the children, but these activities often did not
                                                                                         -18-


engage the children. The aide also reported some inappropriate conversation in front of

the children “with respect to the children’s father” on topics such as domestic violence

and rape, and Mother had indicated her approval of the children’s watching R-rated

movies. The aide believed that Mother “would have problems” parenting L.J. on her own

because L.J. has “very severe mental health issues.” According to the aide, Mother had

acknowledged to her (the aide) that she (Mother) would have difficulty parenting L.J.

M.J. was “very low maintenance,” but gets her feelings hurt very easily. The aide testified

that Mother could parent M.J. more effectively than L.J., but that L.J. bullied and hurt

M.J.’s feelings, and Mother could not address this problem with L.J. effectively.

       {¶ 46} An uncle who helped care for L.J., M.J., and one of the older children when

they were removed from Mother’s home on previous occasions, testified about prior

traumas in Mother’s life, including her own mother’s suicide in the family home, after which

Mother and her siblings had discovered the body. The uncle described this incident as

having a “large impact” on Mother’s life and her mental health issues.      He stated that

Mother continued to struggle with her own mental health needs.

       {¶ 47} The uncle testified that he supported CCCS’s current motion for permanent

custody and that he had not agreed with CCCS’s decision to return the children to

Mother’s care after a prior period of removal in 2010. The uncle continued to maintain

monthly contact with L.J. and M.J. and testified that they were both doing very well in

foster care.   He stated that the children are “thriving and enjoying what they’re

becoming.” The uncle further testified that L.J. “appreciates the structure that’s expected

of him” at his (the uncle’s) house and in foster care, noting that Mother does not provide

structure. L.J. had previously thrown tantrums when he did not get his way. The uncle
                                                                                          -19-


believed that M.J. was a “savvy” girl who understood what had been going on within the

family for the past several years. Even though Mother would be better able to handle

M.J. than L.J., the uncle did not believe it was in M.J.’s best interest to return to Mother’s

care, even as the only child in her care; M.J. enjoyed the success she was having in foster

care and was doing well in school. The uncle stated that there was no chance of the

children’s being placed together with family members, other than with Mother.

       {¶ 48} M.J.’s foster mother also testified that M.J.’s behavior had improved

significantly since she first came to foster care, and that the foster family was willing to

consider adoption.

       {¶ 49} Mother also testified at the hearing. She stated that she received Social

Security Disability based on her “mental health, plus [her] knee.” Mother stated that she

had five children by two different men, both of whom were abusive. Her own father was

an alcoholic who had recently attempted suicide and, after her mother’s death by suicide,

Mother’s father had not encouraged her (Mother) to get “mental health assistance.”

Mother reported that her mental health diagnoses have “always been bipolar and

depression.”

       {¶ 50} Mother described L.J.’s mental health diagnoses as schizophrenia and

bipolar disorder.    She also testified that the school had recently reported he was

experiencing anxiety, which she attributed to CCCS’s seeking custody. She blamed

others for her failure to comply with case plan requirements and/or minimized the

problems which formed the basis of those requirements.

       The Trial Court Decision

       {¶ 51}   The trial court found that the children had “improved greatly” since being
                                                                                           -20-


removed from their mother’s home, that they needed stability in their lives, and that they

“simply can’t wait for their mother to establish an appropriate relationship with them.”

The court found that L.J., in particular, was “in desperate need of stability, love, consistent

enforcement of rules, and consistent administration of medicine.” It also found that

Mother “cycles on and off in her interest in caring for the children.”

       {¶ 52} Further, the trial court concluded that Mother was not credible or honest in

her testimony or her recounting of events involving the children; she consistently claimed

that her inability to complete the case plan and to meet the needs of the children resulted

from other people not doing what they were supposed to do or not giving her time to

complete the objective. The court found that Mother had consistently failed to visit with

the children when she had the opportunity to do so, had failed to attend their medical

appointments, and had consistently demonstrated her lack of commitment to the children.

       {¶ 53} The court ultimately found that it was in the best interest of the children to

grant permanent custody to CCCS because, among other reasons, 1) there was a

reasonable probability that they could be adopted and would greatly benefit from a

permanent, secure home; 2) there was no probability that Mother would be able to provide

a safe, secure and appropriate home for the children anytime soon; 3) Mother had not

remedied the conditions that caused the children to be removed from the home; 4) there

was no harmonious and loving relationship between the children and Mother or any

extended family; and 5) there was no significant risk of harm to the children by not

returning to Mother’s care.

       Conclusion

       {¶ 54}   The trial court’s findings were supported by the evidence in the record,
                                                                                    -21-


and its conclusions that permanent custody was in the children’s best interest and that

the children could not be returned to their Mother’s care within a reasonable period of

time were supported by clear and convincing evidence. The trial court did not err or

abuse its discretion in awarding permanent custody to CCCS.

      {¶ 55} The assignments of error are overruled.

      {¶ 56} The judgment of the trial court will be affirmed.

                                        .............

FAIN, J. and HALL, J., concur.

Copies mailed to:

Ryan A. Saunders
James S. Armstrong
Lisa J. Niles
Hon. Joseph N. Monnin
