[Cite as In re S.D., 2016-Ohio-1493.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

IN RE: S.D.                                           C.A. Nos.      15CA010864
       K.S.                                                          15CA010867
       J.S.
       E.S.

                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
                                                      CASE Nos. 14JC42473
                                                                 14JC42474
                                                                 14JC42475
                                                                 14JC42476

                                 DECISION AND JOURNAL ENTRY

Dated: April 11, 2016



        SCHAFER, Judge.

        {¶1}     Appellants, Tanya U. (“Mother”) and John S. (“Father), appeal from a judgment

of the Lorain County Court of Common Pleas, Juvenile Division, that terminated their parental

rights to their three minor children and placed them in the permanent custody of Lorain County

Children Services (“LCCS”). Although Mother also appeals from the trial court’s separate

judgment that placed her oldest child in the legal custody of her maternal grandmother, she has

not challenged any aspect of that judgment on appeal. For the reasons that follow, we affirm.

                                                 I.

        {¶2}     Mother is the biological mother of four minor children: S.D., born April 19, 1998;

K.S., born February 28, 2003; J.S., born August 17, 2007; and E.S., born August 4, 2011. Father
                                               2


is the biological Father of only K.S., J.S., and E.S., the children who are at issue in this

permanent custody appeal.

       {¶3}   LCCS first became involved with this family during 2008, before E.S. was born.

S.D., K.S., and J.S. were adjudicated neglected and dependent and placed under the protective

supervision of LCCS because of domestic violence and substance abuse in the home and

concerns about the ability of Mother and Father to meet the children’s needs.         Protective

supervision was later terminated and the case was closed.

       {¶4}   LCCS again became involved with the family shortly after the birth of E.S. based

on a referral that Mother was abusing drugs and was suffering from post-partum depression.

LCCS worked with the family on a voluntary basis to address Mother’s mental health and drug

issues as well as renewed concerns about Father’s substance abuse and domestic violence in the

home. That case was also eventually closed.

       {¶5}   On June 11, 2014, LCCS filed complaints to begin this case, alleging that all four

children were neglected and dependent because, among other things, the family was homeless.

The children were later adjudicated neglected and dependent. K.S., J.S., and E.S. were placed in

the temporary custody of LCCS and S.D. was later placed in the temporary custody of her

maternal grandmother.

       {¶6}   In addition to ongoing substance abuse by the parents, domestic violence between

them, and their lack of stable housing and income, LCCS became increasingly concerned about

Mother’s unstable mental health. Although the original case plan included a requirement that

Mother manage mental health symptoms, if diagnosed in conjunction with her substance abuse

assessment or treatment, Mother did not complete a substance abuse assessment during 2014, nor

did she engage in any substance abuse treatment.
                                                 3


       {¶7}      On September 5, 2014, Mother was admitted to an area hospital as a psychiatric

patient because she was suffering from major depression, anxiety, and suicidal thoughts. She

began taking psychiatric medication and was dismissed from the hospital four days later with

instructions to follow up with community mental health treatment. Although Mother briefly

started counseling at an outpatient facility, she attended only three sessions. The therapist

believed that Mother needed to continue with treatment, but Mother did not return after the end

of October 2014.

       {¶8}      According to one of the caseworkers, Mother often behaved erratically and

exhibited dramatic mood swings. Although Father would typically try to calm her, Mother

sometimes behaved inappropriately during her visits with the children, which was upsetting to

them. Mother would not comply with the caseworker’s attempts to redirect her behavior and,

more than once, threatened to harm the caseworker in the presence of the children.

       {¶9}      Mother’s behavior during her visit with the children on December 4, 2014, was so

erratic that the caseworker ended the visit. Mother lunged at the caseworker and threatened to

break her “f’ing neck,” but backed off, stating that the caseworker was not worth a prison

sentence. Mother then yelled that she hoped the caseworker had cancer and “died a slow, painful

death.” The children were visibly upset by Mother’s outburst. The caseworker explained that

she was more frightened by Mother’s threats than she had ever been during her 15-year career,

so she filed a police report against Mother. LCCS later assigned a different caseworker to this

case. The guardian ad litem observed the incident and supported the decision of LCCS to amend

the case plan.

       {¶10} The case plan was amended the next day to add a more comprehensive mental

health component for Mother and to suspend her visitation with the children until she stabilized
                                                     4


her mental health through ongoing treatment. Mother filed no objections to the amended case

plan, so it was formally adopted by the trial court. Mother did not pursue mental health

treatment, however, so she had no visits with K.S., J.S., and E.S. for the remainder of the case.

       {¶11} Father continued to have supervised visits with the children because his behavior

was usually appropriate.       Nevertheless, he was not allowed to have more frequent or

unsupervised visits with the children during this case because he did not comply with the

substance abuse component of the case plan. Father obtained a substance abuse assessment but

he did not begin treatment for several months and attended only three counseling sessions.

Father initially told the counselor that he had been sober for almost one year but later admitted

that he had consumed six beers that morning after the counselor accused him of drinking. Father

also tested positive for cocaine during this case.

       {¶12} Mother also failed to comply with the substance abuse component of the case

plan. Although she eventually met with a substance abuse counselor and agreed to engage in

substance abuse treatment, she never returned to begin counseling. She did not regularly submit

to drug testing and, when she did, she continued to test positive for controlled substances.

Mother told LCCS and service providers that she had prescriptions for pain killers, but she never

provided documentation or signed releases to enable the caseworker or service providers to

verify that she had valid prescriptions. Moreover, Mother repeatedly tested positive for cocaine,

a controlled substance that would not be prescribed by a physician to a patient.

       {¶13} On March 27, 2015, LCCS moved for permanent custody of K.S., J.S., and E.S.

The agency alleged that the children could not be returned to their parents’ custody within a

reasonable time or should not be returned to them and that permanent custody was in their best

interests. Alternatively, the parents sought a six-month extension of temporary custody.
                                                 5


          {¶14} The trial court held a hearing over a five-day period. Father failed to appear for

the first four days but appeared for the final day of the hearing, during which he testified on his

behalf.     Mother left during the fourth day of the hearing.          According to the maternal

grandmother, Mother had become upset and wanted to go home. She did not return that day or

for the final day of the hearing. After the conclusion of the hearing, the trial court terminated the

parents’ rights to K.S., J.S., and E.S., and placed the children in the permanent custody of CSB.

          {¶15} Mother and Father separately appealed and their appeals were later consolidated.

Mother raises three assignments of error and Father raises one, which will be rearranged and

consolidated to facilitate review.

                                                 II.

                                 Mother’s Assignment of Error II

          The trial court erred in not granting [Mother’s] motion to appoint an
          attorney for [K.S.]

          {¶16} Because Mother’s second assignment of error pertains to the constitutionality of

the permanent custody hearing, this Court will address it first. Mother asserts that the trial court

erred in proceeding with the hearing without appointing independent trial counsel to represent

K.S. because there was a conflict between her wishes and the opinion of the guardian ad litem.

According to Mother, a conflict existed in this case because the guardian ad litem was

recommending that K.S. be placed in the permanent custody of LCCS, but K.S. had expressed a

desire to return to Mother’s home.

          {¶17} Although the trial court should appoint independent counsel for the child when

the record demonstrates her wishes conflict with the recommendation of the guardian ad litem,

this Court has repeatedly stressed that, “to demonstrate a ‘conflict’ between the child’s wishes

and the guardian’s recommendation that permanent custody is in the child’s best interest, the
                                                 6


record must demonstrate that the child has repeatedly and consistently expressed the affirmative

desire to return to the parent’s home.” In re B.W., 9th Dist. Medina No. 12CA0016-M, 2012-

Ohio-3416, ¶ 42, citing In re J.P.-M., 9th Dist. Summit Nos. 23694 & 23714, 2007-Ohio-5412, ¶

56; In re J.B., 9th Dist. Summit No. 23436, 2007-Ohio-620, ¶ 22-23. The record in this case

fails to reveal that K.S. had expressed a consistent desire to return to Mother’s home.

       {¶18} The trial court heard evidence about the wishes of K.S. through the testimony of

several witnesses, including the two caseworkers, the guardian ad litem, and the child’s therapist.

Mother points to evidence that K.S. told several people that she did not want to be adopted.

There was substantial evidence before the trial court, however, that the foster parents would

honor her wishes and not proceed with an adoption unless and until K.S. was ready. More

significantly, the evidence about K.S. not wanting to be adopted was never linked to a desire to

return to Mother’s custody.

       {¶19} Although K.S. once told the former caseworker that she wanted to go home, the

caseworker explained that K.S. was very emotional at that time because she missed her family

and was having trouble adjusting to her temporary placement. After that one occasion, K.S. did

not again tell the caseworker that she wanted to go home. Moreover, the caseworker testified

that K.S. never told her that she wanted to permanently live with Mother.

       {¶20} The current caseworker testified that K.S. missed Mother and had feelings for her.

Nevertheless, K.S. had told her that she did not want to return to her parents’ home because she

did not feel that they could provide for her basic needs, given their history of being unable to

“hold it together.”

       {¶21} The mental health therapist who counseled K.S. testified that K.S. went back and

forth about whether she even wanted to see Mother. The therapist explained that K.S. had not
                                                 7


often spoken about going home because she had conflicted feelings about Mother and had

difficulty expressing her true feelings. She believed that K.S. was happy and adjusted to living

with her current caregivers.

       {¶22} The guardian ad litem testified that K.S. never told him that she wanted to go

home and, in fact, had told him that she did not want to return to her parents’ home. He further

opined that K.S. was happy living with her current caregivers.

       {¶23} Consequently, this Court’s review of the evidence before the trial court, including

the in camera interview of K.S., has revealed nothing to support Mother’s argument that K.S. had

consistently expressed a desire to return to Mother’s custody. Because there was no conflict

between the wishes of K.S. and the recommendation of the guardian ad litem, the trial court did

not err by denying Mother’s request to appoint independent counsel for K.S. Mother’s second

assignment of error is overruled.

                                Mother’s Assignment of Error I

       The trial court erred in not granting a six month extension [of temporary
       custody.]

                               Mother’s Assignment of Error III

       The trial court erred in granting permanent custody when there was a strong
       parent/child bond.

                                    Father’s Assignment of Error

       The trial court erred and abused its discretion in violation of Father’s [right
       under the] Fourteenth Amendment to the United States Constitution and
       Article I Section Sixteen of the Ohio Constitution in terminating [Father’s]
       parental rights by granting permanent custody of [K.S., J.S., and E.S.] to
       [LCCS] when the trial court’s judgment was against the manifest weight of
       the evidence.

       {¶24} The remaining assignments of error will be addressed together because they all

pertain to the merits of the trial court’s permanent custody decision. Before a juvenile court may
                                               8


terminate parental rights and award permanent custody of children to a proper moving agency it

must find clear and convincing evidence of both prongs of the permanent custody test: (1) that

the children are abandoned, orphaned, have been in the temporary custody of the agency for at

least 12 months of a consecutive 22-month period, or that the children cannot be placed with

either parent within a reasonable time or should not be placed with either parent, based on an

analysis under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in

the best interest of the children, based on an analysis under R.C. 2151.414(D). See former R.C.

2151.414(B)(1)1 and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).

       {¶25} The parents challenge the trial court’s findings on each prong of the permanent

custody test. Although they also assert that CSB failed to make reasonable efforts to reunify

them with their children, neither parent preserved that challenge for appellate review. Following

the adjudicatory and dispositional hearings, the magistrate found that LCCS had exerted

reasonable efforts to return the children and prevent their continued removal from the custody of

Mother and Father. Neither parent challenged any of those findings through timely objections.

Consequently, they have forfeited all but plain error. In re B.C., 9th Dist. Summit Nos. 26976,

26977, 2014-Ohio-2748, ¶ 24, citing Juv.R. 40(D)(3)(b)(iv). Moreover, because the record does

not include transcripts of those hearings, this Court must presume propriety of the reasonable

efforts findings. See In re T.K., 9th Dist. Summit No. 24006, 2008-Ohio-1687, ¶ 22. At the

permanent custody hearing, the trial court was not required to again determine whether CSB had

made reasonable efforts toward reunification, particularly given that neither parent argued that

CSB had failed to make reasonable reunification efforts in this case. See In re C.F., 113 Ohio




       1
           Section 2151.414(B)(1) was amended effective September 17, 2014.
                                                 9


St.3d 73, 2007-Ohio-1104, ¶ 41-43; In re P.W.T., 9th Dist. Wayne No. 11CA0020, 2011-Ohio-

5858, ¶ 11; In re K.H., 9th Dist. Summit No. 22765, 2005-Ohio-6323, ¶ 9-10.

       {¶26} The trial court found that the first prong of the permanent custody test had been

satisfied because K.S., J.S., and E.S. could not be returned to the custody of Mother and Father

within a reasonable time or should not be returned to them because they had failed to

substantially remedy the conditions that caused the children to be placed outside the home. See

R.C. 2151.414(E)(1).2 Both parents challenge this finding.

       {¶27} There was overwhelming evidence before the trial court to support its conclusion

that both parents had failed to substantially remedy the conditions that caused their children to be

removed from their home and to remain outside their custody. The children were removed from

the parents’ custody because both parents were homeless, lacked stable income, suffered from

untreated substance abuse, and Mother also suffered from untreated mental illness.

       {¶28} At the time of the hearing, neither parent had secured stable income or housing.

Moreover, neither had consistently addressed their substance abuse and/or mental health

problems. Mother continued to abuse drugs and her mental health remained erratic throughout

this case. Despite the case planning efforts by LCCS over a period of several years, which

ultimately culminated in her having no contact with her children for a period of several months,

Mother refused to follow through with either mental health or substance abuse treatment.

       {¶29} Father likewise continued abusing drugs and alcohol throughout this case. The

guardian ad litem testified that he had visited the parents’ home the week before the hearing and

saw Father drinking at that time. Father admitted at the hearing that he had been unable to


       2
          Although the trial court made an alternate finding that R.C. 2151.414(E)(4) was
satisfied because the parents had demonstrated a lack of commitment to the children, this Court
confines its review to the trial court’s finding under R.C. 2151.414(E)(1).
                                                 10


remain sober, that he was about to be evicted from his current home, and that he was “not really

sure what’s going on with me.” He conceded that he needed to achieve sobriety and testified that

he planned to do so. Nonetheless, he was not involved in any treatment at that time.

       {¶30} The parents also challenge the trial court’s finding that permanent custody was in

the best interests of K.S., J.S., and E.S. Mother asserts that the trial court should have instead

granted a six-month extension of temporary custody. The trial court must conduct a best interest

analysis to determine whether to place the child in the permanent custody of the agency or to

extend temporary custody.      If permanent custody was in the children’s best interests, the

alternative disposition of extending temporary custody was not. See In re I.A., 9th Dist. Summit

No. 26642, 2013-Ohio-360, ¶ 10. Moreover, the trial court would have authority to extend

temporary custody only if it also found that Mother and Father had made “significant progress”

on the case plan and that there was reasonable cause to believe that the children would be

reunified with them or otherwise permanently placed during the extension period.                R.C.

2151.415(D)(1).    As explained above, neither parent had made even minimal progress in

working on their case plan goals.

       {¶31} We agree with the trial court that LCCS demonstrated by clear and convincing

evidence that permanent custody was in the children’s best interests. When determining the

children’s best interests under R.C. 2151.414(D), the juvenile court must consider all “relevant”

factors, including the interaction and interrelationships of the children, the children’s wishes, the

custodial history of the children, their need for permanence in their lives, and any factors under

R.C. 2151.414(E)(7) through (11), if applicable. See In re R.G., 9th Dist. Summit Nos. 24834,

24850, 2009-Ohio-6284, ¶ 11.
                                                11


        {¶32} During this case, the parents’ interaction with their children was limited to

weekly, supervised visits because they did not comply with the mental health and substance

abuse components of the case plan. Mother’s visits were terminated more than seven months

before the hearing because LCCS, the guardian ad litem, and trial court agreed that her untreated

mental health problems posed an emotional threat to the children. Although Mother now argues

that the trial court committed error by terminating her visits with the children, she did not timely

raise this issue in the trial court. Moreover, the record reveals that Mother’s untreated mental

illness caused her to behave erratically around the children, which was upsetting to them. The

older children, K.S. and J.S., were angry at Mother and J.S. had expressed fear of Mother and did

not want to see her. When E.S. expressed concern that Mother was not visiting, the caseworker

asked Mother to write a letter to reassure the child. Four months later, Mother eventually wrote

a letter to E.S.

        {¶33} Father’s supervised visits continued throughout the case but he sometimes failed

to come and he rarely stayed for the entire visit. The children were disappointed when Father did

not come and, as time went by, K.S. and J.S. refused to come to the visits because they did not

want to see Father.

        {¶34} On the other hand, in the foster home where K.S., J.S., and E.S. had been placed

together, they had become closely bonded with each other and the foster parents, who were

willing to provide all three with a permanent home. The foster parents had also arranged for the

children to see their maternal grandmother and their older sibling and planned to continue

facilitating those visits.

        {¶35} K.S. and J.S. had both expressed to the guardian ad litem that they were happy in

the foster home and that they did not want to return to their parents’ custody. The guardian ad
                                                12


litem opined that E.S. was too young to express her wishes about where she wanted to live. He

believed that she was also happy in the foster home and that permanent custody was in her best

interest.

        {¶36} By the time of the hearing, K.S., J.S., and E.S. had spent more than a year living

outside their parents’ custody. While living with their parents, they had been exposed to years of

domestic violence, substance abuse, Mother’s erratic mental health, and their parents’ inability to

provide for their basic needs in a safe and stable home environment. They were in need of a

legally secure permanent placement, but neither parent was able to provide them with a suitable

home and LCCS had been unable to find any relatives who were willing and able to do so.

Therefore, the trial court reasonably concluded that a legally secure permanent placement would

only be achieved by placing the children in the permanent custody of LCCS.

        {¶37} Consequently, the evidence before the trial court clearly and convincingly

supported its decision to place K.S., J.S., and E.S. in the permanent custody of LCCS. Mother’s

first and third assignments of error and Father’s sole assignment of error are overruled.

                                                III.

        {¶38} The parents’ assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                               Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 13


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      JULIE A. SCHAFER
                                                      FOR THE COURT



HENSAL, P. J.
BALDWIN, J.
CONCUR.

(Baldwin, J., of the Fifth District Court of Appeals, sitting by assignment.)


APPEARANCES:

ROBERT CABRERA, Attorney at Law, for Appellant.

BARBARA WEBBER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and EMILY W. KIRSCH, Assistant Prosecuting
Attorney, for Appellee.

CLAUDE THOMPSON, Guardian ad Litem.
