[Cite as In re G.F., 2014-Ohio-2580.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




IN THE MATTER OF:                                  :

        G.F., et al.                               :      CASE NO. CA2013-12-248

                                                   :              OPINION
                                                                   6/16/2014
                                                   :

                                                   :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                             Case No. JN2011-0224



Andrew M. Temin, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011, guardian
ad litem for G.F., C.F. & T.F.

Richard Koehler II, 6 South Second Street, Suite 205, Hamilton, Ohio 45011, guardian ad
litem for A.R.

Matthew N. Miller, 1400 Eaton Avenue, Hamilton, Ohio 45013, for appellant M.R. a.k.a. M.K.

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for appellee, Butler County
Children Services

Christina Minch, 7723 Tyler Place Blvd., #129, West Chester, Ohio 45069, for A.R.

Dawn S. Garrett, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, for G.F., C.F. &
T.F.
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        RINGLAND, P.J.

        {¶ 1} Appellant, M.R., appeals the decision of the Butler County Court of Common

Pleas, Juvenile Division, granting permanent custody of her minor children, A.R., G.F., C.F,

and T.F., to appellee, Butler County Department of Job & Family Services ("BCDJFS").

        {¶ 2} In May of 2011, Middletown police officers found G.F, C.F. and T.F. wandering

alone outside at 11:00 p.m.1 Thereafter, upon locating A.R. at appellant's home, she handed

the officers a bag of marijuana which is inferred to have belonged to appellant.2 Officers also

discovered a pipe containing residue and Xanax pills lying in plain view. Appellant was

subsequently convicted of endangering children. BCDJFS filed complaints on behalf of the

children, after which they were removed from appellant's home and placed into foster care.

All four children were adjudicated dependent by stipulation.

        {¶ 3} BCDJFS prepared and filed four case plans to address the issues that resulted

in the removal of the children, with reunification as the goal. Reunification was unsuccessful

as appellant failed to consistently obtain mental health treatment, failed multiple drug tests,

was unable or unwilling to obtain stable housing, lacked attention to T.F.'s serious medical

needs, and failed to consistently attend visitation.

        {¶ 4} On September 24, 2012, BCDJFS moved for permanent custody. After a

series of hearings on the permanent custody motion, the magistrate determined that

permanent custody of the children should be granted to BCDJFS. Appellant's objections to

the decision were overruled by the juvenile court.

        {¶ 5} Appellant appeals the juvenile court's decision, raising two assignments of error

for our review.



1. The children were three, four and five years old at the time, respectively.

2. A.R. was eight years old at the time.


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          {¶ 6} Assignment of Error No. 1:

          {¶ 7} THE TRIAL COURT ERRED IN AN ABUSE OF DISCRETION BY RULING

AGAINST THE MANIFEST WEIGHT OF EVIDENCE.3

          {¶ 8} 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

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.).

          {¶ 9} 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. Warren Nos.

CA2009-10-139, CA2009-11-146, 2010-Ohio-1122, ¶ 22.


3. The attorneys for A.R., G.F., C.F. and T.F. also filed briefs essentially making the same arguments as those
presented under appellant's first assignment of error.

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       {¶ 10} The juvenile court found by clear and convincing evidence, and appellant does

not dispute, that the children have been in the temporary custody of the agency for more than

12 months of a consecutive 22-month period. However, appellant does dispute the juvenile

court's finding that granting permanent custody of the children to the agency is in the

children's best interest.

       {¶ 11} 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:

              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;

              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;

              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 * * *;

              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;

              Whether any of the factors in divisions (E)(7) to (11) of this
              section apply in relation to the parents and child.

       {¶ 12} With respect to R.C. 2151.414 (D)(1)(a), the inter-relationship between T.F.,

C.F. and G.F. is quite positive with the children having bonded well to one another. However,

the relationship between those children and A.R. has proven disconcerting. While there was

testimony indicating that A.R. cares a great deal for her siblings, there was also testimony

that A.R. was separated from her siblings due to her aggressive behaviors toward them.

Because of that aggressiveness, combined with A.R.'s issues with personal boundaries and
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inappropriate touching of her peers, A.R. was removed from the foster home she shared with

her siblings. Despite that, the evidence indicates that all of the children look forward to

visiting with one another and enjoy their time together.

       {¶ 13} Appellant appears to have developed a bond with G.F., C.F. and T.F. Those

children have consistently expressed a desire to be reunited with appellant. However, the

children's behavior following their visits with appellant has been erratic. G.F., C.F. and T.F.

have also bonded with their foster family. The foster mother has stated a willingness to

adopt those children and facilitate contact between them and A.R. if permanent custody is

granted to the agency.

       {¶ 14} Appellant's relationship with A.R. has been more problematic. During the only

unsupervised visit between A.R. and appellant, they came into contact with appellant's ex-

boyfriend, whose son is alleged to have sexually abused A.R.            This resulted in A.R.

becoming "petrified," leaving her "scared and * * * shaking." Appellant was not permitted

unsupervised visits after that incident. Other visits with appellant have proven to be highly

charged, with A.R. lashing out towards appellant and appellant reacting emotionally. A.R.

has bonded well with her foster family, though she has also engaged in aggressive behavior

towards them, including threatening her foster mother with a knife. Testimony indicated that

such an action is likely a result of her reactive attachment disorder and post-traumatic stress.

Regardless, the foster mother has expressed a desire to adopt A.R. and facilitate contact

between her and G.F., C.F. and T.F. if permanent custody is granted to the agency.

       {¶ 15} Appellant has been notably inconsistent in her attempts to attend visitation with

the children. As a result of those actions, the court ordered that appellant must confirm her

attendance the morning of her scheduled visitations. Between February and May of 2013,

appellant attended only three of the 11 possible visits with her children. The court ordered

that visits be suspended entirely after appellant was discovered to have shown up intoxicated
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for a visit on May 30, 2013.

       {¶ 16} Finally, appellant's spouse testified that she has bonded with the children.

However, testimony indicated that the children's behavior worsens around appellant's spouse

because they do not listen to her.

       {¶ 17} With respect to R.C. 2151.414 (D)(1)(b), the guardians ad litem ("GALs") for the

children both recommended that permanent custody be awarded to the agency. No in

camera interviews of G.F., C.F. or T.F. were conducted. An in camera interview of A.R. was

conducted, and the court stated that it took the child's wishes and concerns into

consideration in making its decision.

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

children have been in the temporary custody of the agency since July 16, 2011. The court

found that the children have been in the agency's custody for more than 12 months of a

consecutive 22-month period before the permanent custody motion was filed. By the start of

the trial, the children had been in the temporary custody of the agency for approximately 20

months.

       {¶ 19} In considering R.C. 2151.414 (D)(1)(d), the juvenile court found that there was

a need for legally secure placement for the children based on the "testimony of the witnesses

and exhibits presented at trial, the custodial history, and the prior entries herein."

       {¶ 20} The children were initially removed from appellant's custody after they were

found wandering outside at night and unsupervised. The eldest child was then found inside

the home with drugs and paraphernalia in sight. Appellant was subsequently found guilty of

child endangerment.

       {¶ 21} Appellant was provided four case plans with the goal of reunifying her with the

children. Appellant consistently failed to meet the goals outlined in the case plans. While

appellant did receive positive reports from the Development of Living Skills program in which
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she participated, those sessions were frequently held at Family Connections due to

appellant's inability to consistently retain stable housing.

       {¶ 22} In fact, appellant had moved seven times in the 17 months while the present

case was ongoing. When she was able to obtain housing, it was often with family members

with whom she had contentious relationships, resulting in police responses to those

residences on multiple occasions. In two instances, appellant was evicted from her housing.

In May of 2013, appellant moved into a four-bedroom residence with her wife. Testimony

indicated that the home is not furnished to accommodate the children. Testimony also

revealed that appellant and wife separated for a period shortly after moving into the house.

       {¶ 23} Appellant also failed to consistently pass drug screenings. Appellant tested

positive for marijuana multiple times. While she tested negative for marijuana during one

seven-month period of her outpatient treatment, she once against tested positive just before

she was scheduled to complete the treatment.

       {¶ 24} Appellant participated in a psychological screening on September 2, 2011,

wherein she was diagnosed with several disorders. Despite that, appellant attended only 15

of 29 appointments for counseling and 9 of 15 appointments for pharmacological

management. Her drug screenings also indicated that she was not taking her medications as

prescribed.

       {¶ 25} As stated previously, appellant failed to consistently attend scheduled visits with

the children. After arriving for one visitation intoxicated, visits were suspended entirely.

Appellant's missed visits clearly upset the children. When she did attend the visitations, the

testimony indicated that the children's behavior worsened, both at the time and for days

afterwards.

       {¶ 26} Finally, one of the children, T.F., has a serious medical condition involving her

lungs that requires dedicated attention and treatment.         T.F.'s condition requires daily
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treatments through the use of medical equipment, frequent visits with a physician, and a

smoke-free environment. Appellant has shown a disregard for T.F.'s medical condition.

Despite caustic smells being hazardous to T.F.'s condition, appellant has continued to

regularly smoke and smell of smoke at visitations. Testimony revealed that appellant would

remove T.F.'s protective mask during visits. Appellant also frequently caused T.F. to miss

appointments with her doctors. After moving into foster care, T.F.'s condition has improved

significantly. She has been receiving the necessary daily treatments and is in a smoke-free

environment. As a result, she has not required the emergency use of steroids that were

often necessary while she lived with appellant, and her general health has improved.

       {¶ 27} Three home studies were requested by relatives of the children, but none came

to fruition. One was withdrawn, while the other two were denied.

       {¶ 28} We agree with the juvenile court that based on appellant's own mental health

issues and failure to consistently seek treatment, her inability to maintain stable housing, her

failure in numerous drug screenings, her relationship with A.R. and apparent indifference to

protect A.R. from future abuse, and her disregard for T.F.'s medical condition, she is unable

to provide a legally secure permanent placement. Conversely, the foster families, having

bonded with the children and expressed a willingness to adopt them and facilitate contact

between the children, will provide legally secure permanent placement for the children.

       {¶ 29} In considering R.C. 2151.414 (D)(1)(e), the juvenile court found that appellant

was convicted of child endangerment under R.C. 2919.22(A).

       {¶ 30} Finally, appellant argues that the agency failed to make a reasonable effort

towards a timely reunification with her children. In determining whether the agency made

reasonable efforts to prevent the removal of the child from the home, the issue is not whether

the agency could have done more, but whether it did enough to satisfy the reasonableness

standard under the statute. In re K. M., 12th Dist. Butler No. CA2004-02-052, 2004-Ohio-
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4152, ¶ 23. "Reasonable efforts" does not mean all available efforts. Otherwise, there would

always be an argument that one more additional service, no matter how remote, may have

made reunification possible. Id.

       {¶ 31} Appellant argues that any and all subsequent problems she encountered would

not have occurred but for the agency's failure to reunify her with her children sooner. Notably

she alleges that, (1) the unsupervised visit where she and A.R. came into contact with the

father of A.R.'s alleged sexual abuser would not have occurred, (2) she would not have failed

a drug test because she would not have had time to associate with persons using marijuana

if she were caring for her children, (3) she would have avoided eviction because she would

have been required to work harder to support her children. This court is unpersuaded by

such excuses or explanations for appellant's failures and cannot find that those events are in

any way the result of the agency's actions. The examples of problems that appellant alleges

would not have occurred if she had been reunified with the children provide exactly the

reasoning why it was proper that reunification did not occur.

       {¶ 32} In light of the foregoing, having found that the juvenile court's decision was in

the best interests of the children and supported by the manifest weight of the evidence,

appellant's first assignment of error is overruled.

       {¶ 33} Assignment of Error No. 2:

       {¶ 34} THE TRIAL COURT ERRED IN GRANTING WITHDRAW OF ATTORNEY FOR

APPELLEE [M.R.] AND A GRANTING OF A SPLIT GAL ROLES SO CLOSE IN TIME TO

THE PERMANENT CUSTODY HEARINGS WITHOUT CONTINUING SAID HEARINGS.

       {¶ 35} Within this assignment of error, appellant argues that she was "prejudiced by

the changing of her attorney, and the splitting roles of the GALs a few weeks before the

permanent custody trial dates in February 2013." She also argues that GAL Andrew Temin

was not "adequately prepared to represent the children's wishes during the February 2013
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trials and thereafter."

                                     Appellant's Counsel

       {¶ 36} We have long recognized that "Juv.R. 4 and R.C. 2151.352 clearly provide

parents who are parties to juvenile proceedings with the right to be represented by counsel at

all stages of juvenile proceedings." Burton v. Caudill, 12th Dist. Brown No. CA2009-12-047,

2010-Ohio-4946, ¶ 32; In re Lander, 12th Dist. Butler No. CA99-05-096, 2000 WL 819775, *

2 (June 26, 2000). Once appointed, an attorney "may withdraw only with the consent of the

court upon good cause shown." Juv.R. 4(F).

       {¶ 37} To determine whether there is good cause for the withdrawal of an attorney's

representation, the "attorney seeking to withdraw must appear before the juvenile court and

demonstrate that representation of the party's interest has become impossible because of an

inability to ascertain the party's wishes or to obtain cooperation." In re Walling, 1st Dist.

Hamilton No. C-040745, 2005-Ohio-1558, ¶ 12. See also In re Tyler S., 6th Dist. Lucas No.

L-04-1294, 2005-Ohio-1225, ¶ 32. "A party's lack of cooperation or failure to communicate

with counsel may be good cause for withdrawal." In re Walling at ¶ 12. However, before the

court can determine whether the party's alleged uncooperativeness has made it

unreasonably difficult for counsel to represent his client effectively, the court must inquire into

the source of the uncooperativeness. In re M.L.R., 150 Ohio App.3d 39, 2002-Ohio-5958, ¶

16 (8th Dist.).

       {¶ 38} On January 8, 2013, appellant's court-appointed attorney filed a motion to

withdraw as counsel, citing "irreconcilable differences" that rendered her "no longer able to

effectively and adequately provide representation." The juvenile court granted the motion on

January 9, 2013. On January 10, 2013, Amy Ashcroft was appointed counsel for appellant,

32 days prior to the commencement of the permanent custody hearings.

       {¶ 39} Appellant makes a generalized, blanket assertion that the granting of her
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previous counsel's motion to withdraw and subsequent appointment of Ashcroft as her

attorney, "must have prejudiced [her] to some degree." However, appellant cites to no

specific instances, nor has this court discovered any, wherein she was prejudiced by those

actions. After granting the motion to withdraw, the trial court quickly appointed new counsel

for appellant, and subsequently delayed the January 31, 2013 pretrial hearing to

accommodate the new counsel.

       {¶ 40} After a thorough review of the record, we find no indication that appellant was

prejudiced by the appointment of Ashcroft a month prior to the commencement of the trial.

Ashcroft proficiently replied to motions, demanded discovery, and successfully examined and

cross-examined witnesses to the benefit of appellant. Beyond appellant's mere speculation,

we find no prejudice.

                                     Guardians Ad Litem

       {¶ 41} Appellant argues that she was prejudiced by the splitting of the GAL and

attorney roles for G.F., C.F. and T.F. Dawn Garrett had been acting as both the attorney and

GAL for those children prior to the splitting of the roles. After the split, she continued as

those children's attorney, while Andrew Temin was appointed their GAL.

       {¶ 42} As this court has previously noted, a juvenile who is the subject of a permanent

custody proceeding is a party to the proceeding and therefore entitled to counsel. In re

Williams, 101 Ohio St.3d 398, 2004-Ohio-1500. In some situations, a guardian ad litem can

serve a dual role as both GAL and attorney for the child. See id. at paragraph 18. However,

the roles of GAL and attorney are not always compatible as they serve different functions. In

re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985). The role of a GAL is to investigate the

child's situation and then ask the court to do what is in the child's best interest, while the role

of an attorney is to zealously represent his client within the bounds of the law. Id. Generally,

the appointment of independent counsel is necessary when the child has "repeatedly
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expressed a strong desire that differs and is otherwise inconsistent with the guardian ad

litem's recommendations." In re B.K., 12th Dist. Butler App. No. CA2010-12-324, 2011-Ohio-

4470, ¶ 19.

        {¶ 43} In the present case, Garrett's recommendations conflicted with the children's

newly stated preference to return to appellant. Accordingly, Garrett could no longer zealously

advocate for the children's wishes when she disagreed as to what was in their best interests

in her role as their GAL.

        {¶ 44} Appellant also argues that Temin, the new GAL, was not adequately prepared

to represent the children's best interests.4 Here again, appellant's contentions of prejudice

are purely speculative. She argues that the Temin couldn't reasonably be expected to

properly stipulate to necessary evidence, yet cites to no specific examples where evidence

was or was not stipulated to that resulted in prejudice.

        {¶ 45} She further asserts that Temin failed to properly cross-examine witnesses,

alleging a bias against appellant. While we agree that Temin elicited significant negative

testimony with regard to appellant, we disagree that such an effort amounted to error. If we

were to find that the elicitation of a greater abundance of negative testimony rather than

positive amounted to error, we would reduce the role of a GAL to nothing more than an

advocate for the parent's wishes. Furthermore, it would have been redundant for Temin to

ask questions on cross-examination that were intended to generate positive responses when

those same questions and responses were already brought out by appellant's counsel on

direct examination.

        {¶ 46} Finally, appellant argues she was prejudiced when Temin filed a motion



4. Appellant's brief questions whether Temin was "adequately prepared to represent the children's wishes." As
a GAL does not represent the children's wishes, but rather their best interests, we presume that was appellant's
intended argument.


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seeking an order to suspend appellant's visits with the children altogether after Temin had

been acting as their GAL for less than two months. However, a review of the record reveals

that Temin first sought and was granted an order requiring appellant to confirm her visits by

10:00 a.m. on the visitation day because she had frequently failed to appear for the visits,

causing the children to become extremely upset. Subsequently, appellant consistently failed

to appear for the visits or call ahead of time as required by the court order. Temin only

sought the order seeking to suspend appellant's visits after appellant arrived for a visitation

on May 30, 2013 in a clearly intoxicated state, resulting in the cancellation of the visit.

Accordingly, we find that Temin's actions in those instances were in support of the children's

best interests.

       {¶ 47} In light of the foregoing, having found that (1) appellant provided no evidence

that she was prejudiced by the appointment of new counsel one month prior to the start of

trial, (2) the trial court properly split the roles of attorney and GAL for the children where the

wishes of the children and the best interest recommendation of the GAL conflicted, and (3)

Temin adequately represented the children's best interests, appellant's second assignment of

error is overruled.

       {¶ 48} Accordingly, we find no error in the juvenile court's determination that it was in

the children's best interest to grant permanent custody to the agency and that the juvenile

court's decision was supported by the evidence.

       {¶ 49} Judgment affirmed.


       HENDRICKSON and PIPER, JJ., concur.




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