[Cite as In re J.H., 2019-Ohio-137.]


                                           COURT OF APPEALS
                                          PERRY COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                               :       JUDGES:
                                                :       Hon. W. Scott Gwin, P.J.
        P.H. AND J.H.                           :       Hon. John W. Wise, J.
                                                :       Hon. Craig R. Baldwin, J.
                                                :
                                                :
                                                :       Case Nos. 18-CA-00008
                                                :                 18-CA-00010
                                                :
                                                :       OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Perry County Court
                                                        of Common Pleas, Juvenile Court
                                                        Division, Case Nos. 2016-C-251 and
                                                        2016-C-250



JUDGMENT:                                               Reversed and Remanded




DATE OF JUDGMENT:                                       January 17, 2019




APPEARANCES:

For Plaintiff-Appellant, B.B.                           For Defendant-Appellee Perry County
                                                        Childrens Services
JAMES S. SWEENEY
James Sweeney Law, LLC                                  EMILY STRANG TARBERT
97 S. Liberty Street                                    401 Market Street, Suite 209
Powell, Ohio 43065                                      Zanesville, Ohio 43701
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                    2



Baldwin, J.

       {¶1}   Appellant B.B. appeals from the June 28, 2018 Order of the Perry County

Court of Common Pleas, Juvenile Division, granting permanent custody of P.H. and J.H.

to Perry County Children Services.

                        STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant B.B. is the biological mother of P.H. (DOB 6/25/10) and J.H. (DOB

10/13/14).

       {¶3}   On August 19, 2016, a complaint was filed in Case No. 2016-C-251 alleging

that P.H. was a dependent child. On the same date, another complaint was filed in Case

No. 2016-C-250 alleging that J.H. was an abused child.           Temporary custody of both

children was granted to Perry County Children’s Services.

       {¶4}   On March 6, 2018, Perry County Children’s Services filed motions in both

cases seeking permanent custody of the children.          A hearing on the motion was held

on May 16, 2018.      While the children’s father represented himself, he left the hearing

before it was completed and is not involved in this appeal. Appellant and the father were

never married.

       {¶5}   At the hearing, Daniel Kelty, a licensed social worker with Wild Ohio

Counseling Center, testified that he had counseled the two children in this case and had

been seeing them for over a year. He testified that P.H. has emotional regulation resulting

from a lack of stability in her biological family. He further testified that she was “extremely

parentified with her younger brother” and that J.H. had issues with anger and emotional

regulation. Transcript at 17. According to Kelty, the children reported seeing substance

abuse and sexual activity in their original home. When asked what causes parentification
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                     3


in young children, Kelty testified that often children become parentified when there “is a

lack of parental structure in the home and that children will feel the need to self-regulate

and become the parental figure when that parental figure is not present.” Transcript at 18.

He testified that the children seemed bonded and attached to their foster mother            and

that she was responsive to his instruction regarding their mental health. Kelty testified

that it was “paramount in their development and extremely important in their continued

emotional stability” that the children maintain stability. Transcript at 19.

       {¶6}   Kelty testified that the children were originally placed with their

grandparents, but that the grandparents had surrendered placement due to struggles with

the children’s behaviors including defiance and aggression. He testified that the children,

in their current placement, were more stable and well behaved and that he saw significant

improvements in their behaviors. Kelty testified that J.H. used to have a hard time with

speck, but that he was able to make complete sentences. Both children had been

diagnosed as victims of child neglect and child abuse and both needed long-term

counseling. Kelty testified that visits with their biological parents would not be in their best

interest and that he had witnessed increased trauma and problematic behavior when

visits took place. Kelty testified that he believed that any change in placement would be

detrimental to their stability and that while a maternal aunt had filed a motion for legal

custody, the children had not disclosed a relationship to her during his one plus year of

counseling them.

       {¶7}   On cross-examination, Kelty testified that he had not spoken to either of the

parents. He testified that he was aware that the parents had split up and that he knew

that appellant B.B. had been incarcerated and was not seeing the children after her
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                 4


incarceration. Kelty testified that P.H. was doing well in school. When asked, he indicated

that it was possible that the children could be united with a family member over a period

of time. Kelty further testified that the children suffered from depression. On redirect, he

testified that the parents would have to be clean and sober before he considered involving

them in counseling with their children, but that they were not. When asked if it was

recommended to remove the children from their placement of 11 months when they

already suffered from trauma relating to stability, Kelty testified “Absolutely not.”

Transcript at 39.

       {¶8}   The next witness to testify was Regina Yost a clinical supervisor with Perry

Behavioral Health Choices. She testified that appellant B.B. was referred to her agency

in August of 2016 and that it was recommended that appellant B.B. engage in outpatient

treatment. Appellant B.B. successfully completed outpatient treatment and was

discharged on February 7, 2017. Appellant was also referred for follow-up treatment after

her discharge. Yost testified that appellant’s probation officer disclosed to her that

appellant had overdosed and that her parole was going to be revoked and that she knew

this when she reassessed appellant in January of 2018. It was then recommended that

appellant complete residential treatment for substance abuse disorders followed up by

intensive outpatient treatment, go through individual sessions, continue mental health

counseling, maintain total abstinence from all substances of abuse and continue 12-step

meeting attendance. From January 25, 2018, until early February, appellant was testing

negative and was waiting on a bed in an inpatient facility. However, appellant was

incarcerated, so never entered the facility.
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                   5


       {¶9}   As a result of a previous assessment in 2016, the agency had

recommended that appellant abstain from all mood-altering substances, complete

outpatient treatment, obtain employment, transportation and housing, attend NA meeting

and be referred for mental health counseling. Yost testified that when she reassessed

appellant in January of 2018, appellant had successfully completed the outpatient

treatment with her agency and had reported to Yost that she was attending 12-step

programs.

       {¶10} Mandy Tripp, an operations specialist with American Court Services,

testified that she provided drug tests for appellant who was first screened on August 12,

2016. Appellant’s last screen was on February 8, 2018. Tripp testified that appellant had

37 negative screens, 13 positive screens and had missed 61 tests and missed calling in

87 times to see if she was selected for testing on a particular day. Appellant’s last positive

test was on January 29, 2018 and her last negative test was on February 8, 2018. She

testified that appellant never contacted their office why she missed so many calls. Tripp

further testified that appellant most commonly screened positive for methamphetamines

but that on November 29, 2017, she tested positive for marijuana as well.

       {¶11} Emily Earle, an outpatient clinician with Allwell Behavioral Health, testified

next. She testified that they received referral for treatment for appellant. Appellant, who

had not been discharged from counseling, was being treated for a bipolar disorder and

anxiety.

       {¶12} Lacy Bateson, a caseworker with Perry County Children Services, testified

that she was assigned to this case. She testified that P.H. was seven years old and J.H.

was four years old and that both had been in care for approximately two years.            The
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                6


children had been placed with their foster care family in June and July of 2017. Bateson

testified that the paternal grandparents agreed with the placement change since they

could not handle the children’s behavior. The agency has had custody of the children

since August 10, 2016. Bateson testified that both children had been in the custody of the

agency in excess of 12 out of the last 22 months.

      {¶13} Bateson testified that the agency became involved when appellant and the

children’s’ father were stopped by police in a vehicle and meth and prescription drugs

were found on appellant. The man driving the car was under the influence and appellant

was charged with possession of drugs and drug instruments. Appellant signed a case

plan on September 15, 2016 that required her to participate in assessment at Perry

Behavioral Health Choices and follow any recommendations for further treatment,

participate in mental health counseling, case management and assistance with housing,

and complete random drug testing. She testified that appellant was referred to Perry

Behavioral Health Choices at the beginning of the case due to positive drug screens and

was re-referred on June 8, 2017 due to a positive drug screen on May 30, 2017. Appellant

was referred again on October 26, 2017 due to a positive drug screen on September 29,

2017. Because appellant kept testing positive, Bateson recommended on January 26,

2018 that appellant attend inpatient treatment. Appellant was incarcerated on February

13, 2018 due to a positive drug screen and never availed herself of inpatient treatment

before her incarceration. Bateson testified that appellant did not comply with the

recommendation for follow-up counseling and had no housing prior to her incarceration,

but was living with her parents. She testified that it was not a suitable placement for the
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                   7


children because there was suspected drug use there. She further testified that appellant

had problems getting transportation to her drug screens but not to visits with the children.

       {¶14} Bateson testified that prior to appellant’s incarceration, appellant and the

chidrens’ father had visitation with the children. Visitation had to be moved to the agency

due to fights and arguments among the parents and positive drug screens. Most of the

later visits were canceled as a result of incarceration. Bateson testified that neither parent

supported the children financially over the past two years and that neither had a driver’s

license.

       {¶15} Bateson testified that the current foster home was an adoptive placement

and that the foster parents were willing to adopt the children if the permanent custody

motion was granted. She testified that the children appeared bonded and attached to their

foster parents and that the foster parents were receptive to her request for counseling for

the children.    She testified that she had observed an improvement in the children’s

behavior since their placement with the foster parents 11 months before. Bateson tested

that P.H. was doing well in school and her grades had improved. She further testified that

the relative who filed a motion for legal custody had not contacted the agency and that

J.H. did not know her. The children had no relationship with this relative.

       {¶16} On cross-examination, Bateson testified that appellant had in person

visitation with the children as well as phone conversations with them when they were at

the paternal grandparents and foster parents. She testified that visitation between

appellant and her children was appropriate and that appellant and the children’s father

showed love and affection toward them and the children showed love and affection toward

their parents.
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                     8


       {¶17} After the agency rested, appellant called Rodney Walter, the Chief of Police

for the Village of Crooksville. He testified that appellant told him that the children’s’ father

was following her and harassing her at 2:00 a.m. Appellant also called her relative B.Y.

who testified that appellant was her niece and that she had indicated that she wanted to

file for permanent custody. B.Y. testified that she tried to contact the agency three weeks

prior, but that her call was not retuned. B.Y. testified that she was 61 years old and that

her two grandchildren (ages 11 and 14) lived with her. B.Y. admitted that she had not had

any contact with the P.H. and J.H. since they had been in foster care and, when asked

how she would financially support them, testified she would do the best she could with

what she had. She testified that P.H. knew who she was, but that J.H. might not remember

her.

       {¶18} On cross-examination, B.Y. testified that she learned that the children were

in the custody of the agency around the time that appellant went to prison the last time,

but that she did not come forward until May of 2018 because she did not know that she

could do so. She testified that she last had contact with either of the two children a few

months before appellant went to prison. She was unaware of the children’s special needs

and did not know where they went to school or what medical needs that they had. On

redirect, she admitted that she did not have a lot of contact with the children and that she

did not want to see the children adopted because she thought that appellant was going

to change.

       {¶19} The following is an excerpt from the trial:

       {¶20} [The Court] Our first witness today was the counselor for the children who

testified that these two children have severe mental health issues because of the time
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                    9


they were away from the parents. That counselor has diagnosed them with extreme

parentified for [P.H.] and emotional regulation - - regulatory issues for both children. [J.H.]

has severe anger. This counselor has been seeing them for over a year. So there are

significant issues that the children have by virtue of their time with the parents. They’ve

been removed two different occasions: One from the grandparents and one from the

parents. These children have suffered through a lot.

       Were you aware of any of that?

       {¶21} THE WITNESS [B.Y.]: I did not know this, no. I did not know that much,

no.

       {¶22} THE COURT: Were you aware of the situation when - - (INAUDIBLE) - -

was arrested and how?

       {¶23} THE WITNESS: On this last?

       {¶24} THE COURT: In August of 2016.

       {¶25} THE WITNESS: No. I was not aware of that.

       {¶26} THE COURT: She [appellant] was in a car with an intoxicated driver, and

the child, [P.H.] was with her.

       {¶27} MS. TARBERT: [J.H.].

       {¶28} THE COURT: [J.H.] was with her unrestrained in the car.

       {¶29} THE WITNESS: See, I thought - -

       {¶30} THE COURT: She had methamphetamine which she hid drugs in her

vagina.

       {¶31} THE WITNESS: No. I did not know that.

       {¶32} THE COURT: You didn’t know any of that?
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                  10


       {¶33} THE WITNESS: No.

       {¶34} Transcript at 148-149. B.Y. testified that if she had known all of this, she

would still have sought custody of the children.

       {¶35} Appellant testified on her own behalf. She testified that she had been

incarcerated when she was 18 for petty theft and that she was mentally and physically

abused by the children’s father and was scared to leave him. She admitted that she did

not obtain housing and testified that she finally broke up with the children’s’ father on

January 3, 2018. Appellant testified that “for the most part,” she kept all her drug

counseling appointments and testified that she had obtained her license on August 8,

2017. Transcript at 156. She further testified that, while in prison, she took advantage of

groups such as NA and AA and that she had three months remaining on her prison term.

Appellant also discussed her employment history and testified that she was fired from

Dollar General because the children’s’ father kept coming in and making scenes and that

she lost her nurse’s aide job due to her incarceration. The following testimony was

adduced when appellant was asked if she supported her children by any means during

the pendency of the case:

       {¶36} A: Clothes, shoes, coats, hats, food. We made homemade playdough

together, painted stuff, crafts, toys. Yes, I believe I supported my children. I would always

ask them if they needed anything. I got [P.H.] a lunch box and stuff so she could pack

her own lunch. I got her new shoes because the ones she wore to the visit were way too

big so she needed new shoes for school. I offered to get her new clothes and stuff, and

Dee told me it was taken care of. I still supplied some. For Jack and Sue, I had gave

them trash bags full. Yes, I believe I supported my children, all besides housing.
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                11


      {¶37} Transcript at 159.

      {¶38} Appellant testified she celebrated birthdays and holidays with the children

and that, at the time of the hearing she was receiving treatment for addiction. Appellant

indicated that she had no knowledge of the children observing her having sex with the

children’s’ father and testified that she had always provided the children with food and

clothing at her parents’ house. Appellant admitted that she had made mistakes and

abused drugs and testified that she was working to become a better person. Appellant

testified that her children were everything to her and that she loved them very much and

that she wanted her children to be placed with her aunt even though the aunt had

minimum contact with the children.

      {¶39} On cross-examination, appellant testified that she had been taking

medication for bipolar disorder, but that she stopped taking them in 2016 after her doctor

discharged her for using illegal drugs. She admitted to using methamphetamine and

marijuana routinely. When asked why her performance in the call-in program was so

poor, appellant testified that she believed the reason was incarceration. She had no other

reasons for an additional 70 calls that she missed when she was not incarcerated.

      {¶40} The trial court, pursuant to an Order filed on June 28, 2018, granted Perry

County Children Service’s motion for permanent custody of P.H. and J.H.

      {¶41} Appellant now appeals from the trial courts Order, raising the following

assignments of error in both cases:

      {¶42} “I.THE TRIAL COURT’S (SIC) ERRED WHEN IT FAILED TO APPOINT A

GUARDIAN AD LITEM IN VIOLATION OF R.C. 2151.281 AND JUV.R. 4(B)(5).”
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                    12


       {¶43} “II. THE TRIAL COURT’S FINDING THAT THE BEST INTEREST OF THE

MINOR CHILDREN WOULD BE SERVED BY GRANTING PCCS’S MOTION FOR

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                              I

       {¶44} Appellant, in her first assignment of error, argues that the trial court erred in

failing to appoint a Guardian ad Litem in violation of R.C. 2151.281 and Juv.R. 4(B)(5).

We agree.

       {¶45} Whether the R.C. 2151.281(B)(1) and Juv.R. 4(B)(5) impose a mandatory

duty upon the court to appoint a GAL and whether the court failed to discharge that duty

constitute questions of law. We review questions of law de novo. Cleveland Elec. Illum.

Co. v. Pub. Util. Comm., 76 Ohio St.3d 521, 668 N.E.2d 889 (1996).

       {¶46} R.C. 2151.281 states, in relevant part, as follows:

              (B)(1) Except as provided in division (K) of this section, the court shall

       appoint a guardian ad litem, subject to rules adopted by the supreme court,

       to protect the interest of a child in any proceeding concerning an alleged

       abused or neglected child and in any proceeding held pursuant to section

       2151.414 of the Revised Code. The guardian ad litem so appointed shall

       not be the attorney responsible for presenting the evidence alleging that the

       child is an abused or neglected child and shall not be an employee of any

       party in the proceeding.

       {¶47} In turn, Juv.R. 4(B)(5) provides that “[t]he court shall appoint a guardian ad

litem to protect the interests of a child or incompetent adult in a juvenile court proceeding
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                13


when:… (5) Any proceeding involves allegations of abuse or neglect, voluntary surrender

of permanent custody, or termination of parental rights as soon as possible after the

commencement of such proceeding.”

      {¶48} When used in a statute, the word “shall” denotes that compliance with the

terms of that statute is mandatory. (Citations omitted.) Smith v. Leis, 106 Ohio St.3d 309,

2005-Ohio-5125, 835 N.E.2d 5, at ¶ 62.

      {¶49} As noted by the court in In re Adoption of Howell (1991), 77 Ohio App.3d

80,91-92 601 N.E.2d 92. :

             Many unreported cases affirm the statutory requirement of

      mandatory appointment of a guardian ad litem in permanent custody cases.

      *92 In re Strowbridge (Oct. 25, 1982), Lawrence App. No. 1574, unreported,

      1982 WL 3565, found that a child's right to have a guardian ad litem

      appointed in neglect and permanent custody proceedings is a mandatory

      right conferred by statute. Without such an appointment a child's due

      process rights in such proceedings would be severely infringed upon

      requiring **100 reversal of any court order subsequent thereto. In re Lewis

      (Sept. 2, 1982), Lawrence App. No. 1573, unreported, 1982 WL 3527,

      failure to appoint a guardian ad litem for a child in a permanent custody

      case is reversible error. In re Wilson (Nov. 12, 1981), Paulding App. No. 11–

      80–28, unreported, 1981 WL 6717, a guardian ad litem should be appointed

      for children in a permanent custody case since their interests conflict with

      their mother's. In re Smith (Dec. 20, 1978), Muskingum App. No. CA–78–

      25, unreported, a guardian ad litem should be appointed in a permanent
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                                     14


       custody case under Juv.R. 4(B)(2) because the child's and the parent's

       interests may conflict.

       {¶50} Based on the foregoing, we find that the trial court was required by Juv.R.

4(B)(5) and R.C. 2151.281(B)(1) to appoint a guardian ad litem for appellant's children.

While there was no objection by appellant to the failure to appoint a GAL, because the

right to the appointment of a guardian belongs to the child, and because the interests of

the other parties to the proceeding may conflict with the child's interests, failure of a party

to object cannot constitute waiver of the court's statutory duty to appoint a GAL. See, e.g.,

In re Myer, 5th Dist. Delaware App. No. 80–CA–10, 1981 WL 6316 (June 16, 1981).

       {¶51} Accordingly, we hold that appellant's failure to request the appointment of a

GAL below could not waive the court's mandatory duty to appoint a GAL to represent the

interest of P.H. and J.H. We note that appellee, in its brief, agrees that the trial court erred

in failing to appoint a GAL.

       {¶52} Based on the foregoing, appellant’s first assignment of error is sustained.

                                               II

       {¶53} Appellant, in her second assignment of error, contends that the trial court’s

finding that the best interest of the children would be served by a grant of permanent

custody is against the manifest weight of the evidence.

       {¶54} Based on our disposition of appellant’s first assignment error, we decline to

address her second assignment of error.
Perry County, Case Nos. 18-CA-00008 and 18-CA-00010                               15


      {¶55} Accordingly, the judgment of the Perry County Court of Common Pleas,

Juvenile Division, granting permanent custody of P.H. and J.H. to the Perry County

Children Services Agency is reversed and this case is remanded with instructions for the

court to appoint a GAL to represent the interests of J.H. and P.H. and to conduct further

proceedings consistent with this Opinion.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.
