In re D.N.

[Cite as In re D.N., 2011-Ohio-3395.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

IN THE MATTER OF: [D.N.], :
:
Adjudicated Dependent Child. : Case No: 11CA3213
:
:
: DECISION AND
: JUDGMENT ENTRY
:
File-stamped date: 7-06-11

APPEARANCES:

David A. Sams, West Jefferson, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Judith Heimerl Brown,
Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.

Kline, J.:

{¶1} D.N.’s mother (hereinafter the “Mother”) appeals the judgment of the Ross

County Court of Common Pleas, Juvenile Division, which granted permanent custody of

D.N. to Ross County Job and Family Services, Children’s Division (hereinafter “Children

Services”). For various reasons, Mother contends that the trial court erred in granting

Children Services’ motion for permanent custody. But except for plain error, Mother has

waived all but one of her permanent-custody arguments. In the sole argument that

Mother has not waived, we find that competent, credible evidence supports the trial

court’s decision. Furthermore, we cannot find plain error in any of Mother’s remaining

permanent-custody arguments.
Ross App. No. 11CA3213 2

{¶2} Next, Mother contends that the trial court violated D.N.’s right to counsel.

Essentially, Mother argues that, because of a conflict, the same person should not have

served as both D.N.’s (1) guardian ad litem and (2) legal counsel. Again, Mother has

waived her right-to-counsel argument except for plain error. And because there was no

express conflict between the guardian ad litem’s recommendation and D.N.’s wishes,

we cannot find plain error related to D.N.’s right to counsel.

{¶3} Accordingly, we overrule Mother’s two assignments of error and affirm the

judgment of the trial court.

I.

{¶4} D.N. was born on November 22, 1995. After being removed from his parents’

home in 2005, D.N. was placed in the legal custody of relatives. In early 2007, D.N.’s

relatives informed the juvenile court that they could no longer care for D.N. Children

Services then filed a complaint alleging that D.N. was a dependent child.

{¶5} On July 5, 2007, the juvenile court appointed the same person to serve as

both guardian ad litem and legal counsel for D.N. Then, on October 24, 2007, the

juvenile court (1) adjudicated D.N. to be dependent and (2) placed D.N. in the

temporary custody of his paternal cousins.

{¶6} D.N. remained in his paternal cousins’ temporary custody until April 2008.

Then, in an April 7, 2008 entry, the juvenile court granted temporary custody of D.N. to

Children Services.

{¶7} Children Services developed a case plan to reunify D.N. with his parents.

Under the case plan, Mother and D.N.’s father were to (1) receive treatment for their

drug addictions, (2) be tested for drug use, (3) obtain stable housing, and (4) participate
Ross App. No. 11CA3213 3

in family counseling with D.N. Unfortunately, neither Mother nor D.N.’s father fulfilled

the objectives of the case plan. For example, Mother refused to submit to drug testing,

and D.N.’s father tested positive for cocaine and THC in December 2008. Furthermore,

after the juvenile court found D.N. to be dependent, both Mother and D.N.’s father were

incarcerated for drug-related offenses.

{¶8} Children Services investigated eight of D.N.’s relatives as potential placement

options. For various reasons, however, Children Services was not able to place D.N.

with any of these relatives. D.N.’s older brother (hereinafter the “Brother”) was one of

the relatives investigated by Children Services. But as D.N.’s caseworker later testified,

Brother (1) failed two home studies, (2) had financial stability issues, (3) had frequent

involvement with law enforcement, and (4) had a positive drug screen. As a result,

Children Services did not approve Brother as a placement option for D.N.

{¶9} On April 28, 2009, Children Services filed a motion for permanent custody

under R.C. 2151.413. D.N.’s guardian ad litem (also, D.N.’s attorney) recommended

that the motion for permanent custody be granted.

{¶10} On September 20, 2010, the juvenile court held a hearing before a

magistrate. D.N.’s caseworker testified on behalf of Children Services. Mother,

Brother, Brother’s girlfriend, and D.N.’s father also testified. At the close of the hearing,

Mother’s counsel made the following request: “[W]e ask the Court to deny the

Permanent Custody Motion and… uh… either place the child with [Mother] or with

[Brother] or in the alternative grant the Permanent Plan Living Arrangement.” Transcript

at 132. The magistrate, however, granted Children Services’ motion for permanent

custody.
Ross App. No. 11CA3213 4

{¶11} After Mother filed six objections to the magistrate’s decision, the juvenile court

adopted “the order of the Magistrate as the Order of the Court.” January 14, 2011

Judgment Entry at 4. As a result, Mother and D.N.’s father’s parental rights were

terminated, and D.N. was placed in the permanent custody of Children Services.

{¶12} Mother appeals and asserts the following two assignments of error: I. “THE

TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY.” And, II. “THE

MINOR CHILD WAS DEPRIVED OF HIS RIGHT TO COUNSEL.”

II.

{¶13} In her first assignment of error, Mother contends that the trial court erred in

granting permanent custody of D.N. to Children Services.

A.

{¶14} A parent’s “interest in the care, custody, and control of [his or her] children ‘is

perhaps the oldest of the fundamental liberty interests[.]’” In re D.A., 113 Ohio St.3d 88,

2007-Ohio-1105, at ¶8, citing Troxel v. Granville (2000), 530 U.S. 57, 65. Further,

“[p]ermanent termination of parental rights has been described as ‘the family law

equivalent of the death penalty in a criminal case.’” In re D.A., 2007-Ohio-1105, at ¶10,

quoting In re Smith (1991), 77 Ohio App.3d 1, 16. As such, “parents ‘must be afforded

every procedural and substantive protection the law allows.’” In re D.A., 2007-Ohio-

1105, at ¶10, quoting In re Hayes (1997), 79 Ohio St.3d 46, 48. “‘[I]t is plain that the

natural rights of a parent are not absolute, but are always subject to the ultimate welfare

of the child, which is the polestar or controlling principle to be observed.’” In re

Cunningham (1979), 59 Ohio St.2d 100, 106, quoting In re R.J.C. (Fla.App. 1974), 300

So.2d 54, 58.
Ross App. No. 11CA3213 5

{¶15} “A public or private child-placement agency may file a motion under R.C.

2151.413(A) to request permanent custody of a child after a court has committed the

child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re

C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, at ¶22. Once a R.C. 2151.413(A) motion is

filed, the court must follow R.C. 2151.414. Id.

{¶16} A trial court may grant the agency’s motion for permanent custody if it

determines by clear and convincing evidence that: (1) one of the four conditions outlined

in R.C. 2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.

2151.414(B)(1); In re McCain, Vinton App. No. 06CA654, 2007-Ohio-1429, at ¶13. The

Supreme Court of Ohio has defined “clear and convincing evidence” as “the measure or

degree of proof that will produce in the mind of the trier of fact a firm belief or conviction

as to the allegations sought to be established. It is intermediate, being more than a

mere preponderance, but not to the extent of such certainty as required beyond a

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In re

Estate of Haynes (1986), 25 Ohio St.3d 101, 104.

{¶17} We will not reverse the judgment of the trial court when some competent,

credible evidence supports the trial court’s findings. In re Marano, Athens App. No.

04CA30, 2004-Ohio-6826, at ¶12. Accordingly, we must determine if competent,

credible evidence supports the trial court’s findings regarding both the best interest of

the child and the requirements of R.C. 2151.414(B)(1)(1)(a)-(d).

B.

{¶18} First, we must address whether Mother has waived the arguments under her

first assignment of error. “The juvenile rules require written objections to a magistrate’s
Ross App. No. 11CA3213 6

decision to be filed within 14 days of the decision. Juv.R. 40(D)(3)(b)(i). The rules

provide that ‘[e]xcept for a claim of plain error, a party shall not assign as error on

appeal the court’s [adoption] of any factual finding or legal conclusion * * * unless the

party has objected to that finding as required by Juv.R. 40(D)(3)(b).’ Juv.R.

40(D)(3)(b)(iv). This waiver under the rule embodies the long-recognized principle that

the failure to draw the trial court’s attention to possible error when the error could have

been corrected results in a waiver of the issue for purposes of appeal. In re Etter

(1998), 134 Ohio App.3d 484, 492. The objections made under this rule must be

‘specific’ and must ‘state with particularity all grounds for objection.’ Juv.R.

40(D)(3)(b)(ii). ‘The failure to file specific objections is treated the same as the failure to

file any objections.’ In re D.R., Butler App. No. CA2009-01-018, 2009-Ohio-2805, at

¶29.” In re D.S., Clermont App. Nos. CA2010-08-058, CA2010-08-064, & CA2010-08-

065, 2011-Ohio-1279, at ¶31.

{¶19} Mother has raised four arguments under her first assignment of error: (1) the

trial court erred by not placing D.N. with a suitable relative; (2) the trial court did not

consider D.N.’s wishes concerning placement; (3) Children Services did not use its best

efforts to avoid a judgment of permanent custody; and (4) the trial court erred by not

placing D.N. in a planned permanent living arrangement.

{¶20} Mother, however, raised only one of these arguments with specificity in her

objections to the magistrate’s decision. The magistrate found that “[t]here are no

appropriate and willing relatives to care for the child.” Magistrate’s Decision at 1. In

response, Mother filed the following objection: “The mother testified that her older son,

[Brother], wanted to have custody of the child and would be able to provide for him.”
Ross App. No. 11CA3213 7

Objections to Magistrate’s Decision at 2. This is the only objection in the proceedings

below that specifically coincides with Mother’s arguments on appeal. Therefore, we will

use the competent-credible-evidence standard to review Mother’s argument that D.N.

should have been placed with Brother, and we will analyze Mother’s remaining

arguments for plain error only.

{¶21} “In appeals of civil cases, the plain error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances where error,

to which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the legitimacy

of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116,

1997-Ohio-401, syllabus.

1.

{¶22} Initially, we will consider Mother’s argument that the trial court erred by “not

placing the child with a suitable relative[.]” Brief of Appellant at 6. On appeal, this

particular issue contains both new arguments and arguments that Mother raised in her

objections to the magistrate’s decision. Therefore, we will review the following

argument under the competent-credible-evidence standard: that the trial court should

have placed D.N. with Brother. And we will analyze the following argument for plain

error only: that Children Services did not make reasonable efforts to place D.N. with a

relative.

a. Placing D.N. With Brother

{¶23} Mother contends that the trial court should have placed D.N. with a suitable

relative. And for that reason, Mother argues that the trial court committed reversible
Ross App. No. 11CA3213 8

error. (In her appellate brief, Mother does not refer to a particular suitable relative. We

will, however, presume that Mother is referring to Brother based on (1) the request

made at the September 20, 2010 hearing and (2) Mother’s objections to the

magistrate’s decision.) Here, we find that competent, credible evidence supports the

trial court’s decision not to place D.N. with Brother. After conducting two different home

studies, Children Services found Brother’s home to be unsuitable for D.N. Brother also

had a positive drug screen, and, as Brother admitted, “the cops are [at his residence] a

lot.” Transcript at 87. Because of this competent, credible evidence, the trial court did

not err when it determined that placement with Brother was not in D.N.’s best interest.

b. Reasonable Efforts to Place D.N. With a Suitable Relative

{¶24} Mother contends that Children Services did not make reasonable efforts to

place D.N. with a relative. And for that reason, Mother argues that the trial court

committed reversible error. We recently rejected a similar argument in In re M.O., Ross

App. No. 10CA3189, 2011-Ohio-2011. As we observed, “Contrary to Mother’s

contention, a public children services agency has no statutory duty to make ‘reasonable

efforts’ to place the child with an extended family member before it can obtain

permanent custody of the child.” Id. at ¶16. See, also, In re Warren, Stark App.

No.2007CA00054, 2007–Ohio–5703, at ¶23 (“[T]he Department’s duty to use

reasonable efforts applies only to efforts to avoid removal of a child from her home or to

reunify the child with her family, following removal. The Department is under no

statutory duty to make reasonable efforts to place a child with relatives although relative

placement is to be investigated.”). Therefore, we find no plain error in Mother’s

reasonable-efforts argument.
Ross App. No. 11CA3213 9

2.

{¶25} In another argument under her first assignment of error, Mother contends that

the trial court did not “consider the child’s wishes concerning placement[.]” Brief of

Appellant at 6. We, however, find no plain error under this argument.

{¶26} Under R.C. 2151.414(D)(1)(b), “In determining the best interest of a child * * *

the court shall consider all relevant factors, including * * * [t]he 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[.]” And as Mother notes, “The failure to consider [this]

factor[] in reaching a determination concerning a child’s best interest is prejudicial error.”

In re J.W., Franklin App. Nos. 06AP-864, 06AP-1062, & 06AP-875, 2007-Ohio-1419, at

¶17.

{¶27} Here, we find evidence of D.N.’s wishes in the record below. The guardian ad

litem reported that D.N. “has little attachment to either parent. Whatever bonding [D.N.]

may have once had with either of them is simply not there anymore due to the parents

pursuing other avenues, including substance abuse, left untreated, and related criminal

conduct which has put them behind bars for substantial periods of time.” Report of

Guardian Ad Litem at 2. Furthermore, D.N.’s caseworker testified that D.N. “didn’t wish

to talk” to his mother. Transcript at 22. D.N.’s caseworker also agreed that D.N. had

“never expressed an interest” in living with his father. Transcript at 45. Thus, the

juvenile court heard evidence of D.N.’s wishes.

{¶28} We also presume that the juvenile court considered D.N.’s wishes when it

granted permanent custody of D.N. to Children Services. Granted, neither the

magistrate nor the juvenile court made an express finding regarding D.N.’s wishes.
Ross App. No. 11CA3213 10

Nevertheless, “[a] general principal of appellate review is the presumption of regularity;

that is, a trial court is presumed to have followed the law unless the contrary is made to

appear in the record.” Tonti v. East Bank Condominiums, LLC, Franklin App. No. 07AP-

388, 2007-Ohio-6779, at ¶26. Because there is no evidence to the contrary, we must

presume that the juvenile court considered D.N.’s wishes. Therefore, we find no plain

error under Mother’s wishes-of-the-child argument.

3.

{¶29} In another argument under her first assignment of error, Mother contends that

Children Services did not “use its best efforts to avoid a judgment of permanent

custody[.]” Brief of Appellant at 6. Essentially, Mother argues that Children Services

did not make reasonable efforts to avoid the permanent-custody action. We, however,

find no plain error under this argument.

{¶30} “Pursuant to R.C. 2151.419(A)(1), ‘the public children services agency or

private child placing agency that filed the complaint in the case, removed the child from

home, has custody of the child, or will be given custody of the child’ must have [‘]made

reasonable efforts to prevent the removal of the child from the child’s home, [to]

eliminate the continued removal of the child from the child’s home, or [to] make it

possible for the child to return safely home.’” In re Gibbs, Stark App. Nos. 2007 CA

00304 & 2007 CA 00305, 2008-Ohio-1386, at ¶24, quoting R.C. 2151.419(A)(1). Here,

Children Services filed for permanent custody under R.C. 2151.413. This is significant

because “R.C. 2151.419(A)(1) does not apply in a hearing on a motion for permanent

custody filed pursuant to R.C. 2151.413.” In re C.F., 2007-Ohio-1104, at ¶43.

Furthermore, D.N.’s caseworker testified that Children Services went to considerable
Ross App. No. 11CA3213 11

lengths to reunite D.N. with his parents. Children Services developed a reunification

case plan, and D.N.’s caseworker reviewed the case plan with D.N.’s parents.

Unfortunately, D.N.’s parents failed to complete the case-plan objectives.

{¶31} For the foregoing reasons, we find no plain error under Mother’s reasonable-

efforts argument.

4.

{¶32} In the remaining argument under her first assignment of error, Mother

contends that the trial court erred by “not placing the child in a planned permanent living

arrangement[.]” Brief of Appellant at 6. We, however, find no plain error under this

argument.

{¶33} “If a child is adjudicated an abused, neglected, or dependent child, the court

may * * * [p]lace the child in a planned permanent living arrangement with a public

children services agency or private child placing agency, if a public children services

agency or private child placing agency requests the court to place the child in a planned

permanent living arrangement and if the court finds, by clear and convincing evidence,

that a planned permanent living arrangement is in the best interest of the child and that

one of the following exists:

{¶34} “(a) The child, because of physical, mental, or psychological problems or

needs, is unable to function in a family-like setting and must remain in residential or

institutional care now and for the foreseeable future beyond the date of the dispositional

hearing held pursuant to section 2151.35 of the Revised Code.

{¶35} “(b) The parents of the child have significant physical, mental, or

psychological problems and are unable to care for the child because of those problems,
Ross App. No. 11CA3213 12

adoption is not in the best interest of the child, as determined in accordance with

division (D)(1) of section 2151.414 of the Revised Code, and the child retains a

significant and positive relationship with a parent or relative.

{¶36} “(c) The child is sixteen years of age or older, has been counseled on the

permanent placement options available to the child, is unwilling to accept or unable to

adapt to a permanent placement, and is in an agency program preparing the child for

independent living.” R.C. 2151.353(A)(5)(a)-(c).

{¶37} Here, there is no evidence that D.N. qualifies for a planned permanent living

arrangement. First, according to the evidence, D.N. does not have “physical, mental, or

psychological problems or needs” that would cause him to be “unable to function in a

family-like setting.” R.C. 2151.353(A)(5)(a). Second, there is no evidence that D.N.’s

parents “have significant physical, mental, or psychological problems and are unable to

care for [D.N.] because of those problems.” R.C. 2151.353(A)(5)(b). But even if we

considered the parents’ substance abuse problems to be significant physical, mental, or

psychological problems, the evidence does not demonstrate that adoption is not in

D.N.’s best interest. See id. And finally, D.N. is under the age of sixteen. See R.C.

2151.353(A)(5)(c). Therefore, we find no plain error under Mother’s planned-

permanent-living-arrangement argument.

C.

{¶38} For the foregoing reasons, we overrule Mother’s first assignment of error.

III.

{¶39} In her second assignment of error, Mother contends that D.N. was deprived of

his right to independent counsel. In the proceedings below, D.N.’s guardian ad litem
Ross App. No. 11CA3213 13

recommended that permanent custody of D.N. be granted to Children Services. Mother

argues that the permanent-custody recommendation conflicted with D.N.’s wishes. And

because the guardian ad litem also served as D.N.’s attorney, Mother argues that the

trial court should have appointed independent counsel for D.N.

{¶40} This court addressed a similar argument in In re Hilyard, Vinton App. Nos.

05CA600, 05CA601, 05CA602, 05CA603, 05CA604, 05CA606, 05CA607, 05CA608, &

05CA609, 2006-Ohio-1965. The following quote from Hilyard discusses the legal

principles relevant to Mother’s second assignment of error.

{¶41} “R.C. 2151.281 and Juv.R. 4(B) mandate that the juvenile court appoint a

guardian ad litem to protect the interests of a child in a juvenile court proceeding

involving allegations of abuse or neglect of the child. Under R.C. 2151.352 and Juv.R.

4(A), every child who is the subject of a juvenile court proceeding also has the right to

be represented by counsel and, if indigent, to be appointed counsel to represent the

interests of the child. State ex rel. Asberry v. Payne[,] 82 Ohio St.3d 44, 48[,1998-Ohio-

596]; In re Emery, Lawrence App. No. 02CA40, 2003-Ohio-2206, [at] ¶9. R.C.

2151.281(H) and Juv.R. 4(C)(1) permit a licensed attorney to serve as both attorney

and guardian ad litem for a child in juvenile court proceedings provided the court makes

an explicit dual appointment and no conflicts arise due to the dual representation. See

In re Emery; In re Duncan/Walker Children, [] at 844-845. The court expressly ordered

dual representation in this case. Thus, we focus on the issue of conflicts.

{¶42} “As recognized in Juv.R. 4(C)(1), the roles of guardian ad litem and attorney

are not always compatible, as they serve different functions. In re Baby Girl Baxter

(1985), 17 Ohio St.3d 229, 232; Emery[.] ‘The role of guardian ad litem is to investigate
Ross App. No. 11CA3213 14

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

child’s best interest. The role of the attorney is to zealously represent his client within

the bounds of the law.’ Id. Thus, a conflict between the roles may arise when a child’s

wishes differ from what the guardian ad litem believes is in the child’s best interests. In

that event, the attorney must bring potential conflicts to the attention of the court, and

where he or she fails to do so, the court may be obliged to act sua sponte. See In re

Howard (1997), 119 Ohio App.3d 201, 206[.] A new guardian ad litem should be

appointed if either the court or the attorney finds there is a conflict. R.C. 2151.281(H);

Juv.R. 4(C)(2). * * *.

{¶43} “The Ohio Supreme Court has concluded that a child who is the subject of a

juvenile court proceeding to terminate parental rights is entitled to independent counsel

in certain circumstances. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500,

syllabus[.] A court’s determination whether a child actually needs independent counsel

should be made on a case-by-case basis, taking into account the maturity of the child

and the possibility of the child’s guardian ad litem being appointed to represent the

child. In re Williams, [at] ¶17; In re Brooks[, Franklin App. No. 04AP-164, 2004-Ohio-

3887,] at ¶¶79, 87. Generally, the appointment of independent counsel is warranted

when a child has ‘repeatedly expressed a desire’ to remain or be reunited with a parent

but the child’s guardian ad litem believes it is in the child’s best interest that permanent

custody of the child be granted to the state. Id.” Hilyard at ¶34-36 (footnotes omitted)

(emphasis sic).

{¶44} First, we note that Mother did not request independent counsel for D.N.

during the proceedings below. Furthermore, Mother did not raise the issue of
Ross App. No. 11CA3213 15

independent counsel in her objection to the magistrate’s decision. Therefore, Mother

has waived her independent-counsel argument except for plain error. See In re

Reardon, Tuscarawas App. Nos. 2005AP080055 & 2005AP040060, 2006-Ohio-629, at

¶55; In re Johnson, Franklin App No. 03AP–1264, 2004–Ohio–3886, at ¶14.

{¶45} Here, because D.N. did not express a desire to remain or be reunited with his

parents, we cannot find plain error related to Mother’s second assignment of error. As

we noted earlier, the guardian ad litem reported that D.N. “has little attachment to either

parent.” And again, according to D.N.’s caseworker, D.N. “didn’t wish to talk” to his

mother and “never expressed an interest” in living with his father. Transcript at 22, 45.

Therefore, the evidence does not demonstrate a conflict between D.N.’s wishes and the

guardian ad litem’s recommendation, and we cannot find plain error related to the

independent-counsel issue.

{¶46} Accordingly, we overrule Mother’s second assignment of error. Having

overruled both assignments of error, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED.
Ross App. No. 11CA3213 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Ross County Court of Common Pleas, Juvenile Division, to carry this judgment into
execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________
Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.