[Cite as In re N.P, 2016-Ohio-3125.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF N.P. AND E.M., : OPINION
DEPENDENT CHILDREN.
:
CASE NOS. 2016-L-002
: 2016-L-003
Civil Appeals from the Lake County Court of Common Pleas, Juvenile Division.
Case Nos. 2013 DP 00145 and 2013 NG 02047.
Judgment: Affirmed.
Christopher J. Boeman, P.O. Box 583, Willoughby, OH 44096 (For Appellant Veronica
Pease).
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Appellee Lake County Department of Job and Family
Services).
Darya Jeffreys Klammer, The Klammer Law Office, Ltd., 7482 Center Street, Unit 6,
Mentor, OH 44060 (Guardian ad litem).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Veronica Pease, appeals from the December 4, 2015 judgment
of the Lake County Court of Common Pleas, Juvenile Division. The trial court declined
to appoint independent counsel for the minor children (N.P., d.o.b. 2/18/07, and E.M.,
d.o.b. 10/29/08) following our remand order and affirmed its prior decision granting
permanent custody to appellee, Lake County Department of Job and Family Services
(“LCDJFS”). The complete factual and procedural history of this matter is recited in In
re N.P. & E.M., 11th Dist. Lake Nos. 2015-L-061 & 2015-L-062, 2015-Ohio-4542. For
the following reasons, we affirm the trial court’s decision.
{¶2} On January 6, 2015, LCDJFS filed motions for permanent custody of the
minor children. On February 26, 2015, appellant filed a motion to return custody to her.
These motions were set for a hearing. Prior to the hearing, the guardian ad litem filed
her reports on April 8, 2015, recommending the court grant permanent custody of the
children to LCDJFS.
{¶3} The hearing was held before the juvenile court judge on April 15, 2015.
Appellant was represented by counsel. Timothy and Stacy Zimmerman, the children’s
maternal aunt and uncle who had been joined as parties, appeared pro se. The
children’s guardian ad litem was present, but she did not testify. The parties stipulated
to the admission of the guardian ad litem’s reports. In addition to appellant, the
following witnesses testified before the court: Jennifer Dzugan, E.M.’s counselor at
Crossroads Mental Health Service; Shannon Easter Kelley, N.P.’s counselor at
Signature Health; Laurie Truhan, appellant’s counselor at Signature Health; Heather
Riser, a former social worker and supervisor at LCDJFS; Jessica Ray, a social worker
at LCDJFS; Stacy Zimmerman, with whom E.M. was residing; Ann Brown, the children’s
maternal grandmother and with whom appellant was residing; and Selena Hickman, the
children’s maternal great aunt.
{¶4} Ms. Riser testified that N.P. has “gone back and forth for a very long time”
about her wishes regarding living with appellant; that N.P. likes visiting with appellant,
but that she wanted to live with Ms. Hickman; and that N.P. did not feel safe at Mrs.
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Brown’s, where appellant was living. Ms. Ray testified that N.P. feels safe with her
paternal grandmother in Georgia and with her foster mother, but neither are options for
permanent placement. The guardian ad litem’s report states that N.P. “has reported
concerns about returning to the home of [Mrs. Brown], where [appellant] resides”; that
N.P. clearly loves appellant; and that N.P. knows she is safe with her foster family and
is not safe with appellant given the circumstances. Ms. Hickman testified, on the other
hand, that N.P. repeatedly expressed she wants to go home to live with appellant.
{¶5} N.P. was interviewed by the court in camera in the presence of her
guardian ad litem. The court found that N.P. “loves her mother, however, she knows it
is unsafe to return to her maternal grandmother’s home (where her mother lives) and
she does not wish to live there. She has expressed a desire to live with her mother, but
she also expresses a desire to live with her paternal grandmother in Georgia.”
{¶6} E.M. was not interviewed in camera by the court, and a request for an
interview with E.M. was never made. Ms. Zimmerman testified that E.M. has, at times,
expressed to her that he wants to return home and live with appellant. Ms. Riser also
testified that E.M. has, at times, expressed he wants to return to appellant. The
guardian ad litem’s report indicated that E.M. stated he wants to stay with the
Zimmermans, but the guardian is not certain E.M. understands what that means; the
report indicates E.M. “misses [appellant] terribly.” The guardian also stated that E.M.
has never affirmatively stated he wants to live with appellant, but has stated he “is bad”
because he thinks he will not be able to go back to her.
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{¶7} Appellant testified that she believes the children want to come back home
to live with her. Appellant currently lives with her mother, Mrs. Brown; Mrs. Brown also
testified that the children repeatedly state they miss appellant and want to come home.
{¶8} On April 17, 2015, the juvenile court granted LCDJFS’ motions for
permanent custody, and appellant was completely and permanently divested of all
parental rights regarding N.P. and E.M. In its entry, the court stated “that Mrs. Brown’s
testimony is not credible, that Ms. Hickman’s testimony is marginally credible and that
[appellant’s] testimony is completely unrealistic about her plans or ability to care for the
children.” It made no findings at that time as to the credibility of Ms. Zimmerman or that
it had considered the necessity of independent counsel for either child.
{¶9} Appellant appealed the trial court’s order. The sole issue on appeal was
whether N.P. and E.M., as minor children involved in a case where an agency was
seeking to terminate their parent’s parental rights, were entitled to independent counsel.
We held the trial court erred by not stating it had considered the necessity of
independent counsel for either child. N.P., supra, at ¶21. “This was necessary because
there was, in fact, testimony that the children’s wishes were contrary to the
recommendation of the guardian ad litem.” Id.
With no indication on the record that this was even considered, we
cannot determine whether the children’s due process rights were
protected. The trial court may have made a factual determination
that there was no conflict or that the maturity level was such that
independent counsel was not necessary, but that is not evident
from this record. Many things may have occurred that are not a
part of this record that influenced the trial court’s decision.
However, it is not appropriate for this court to make that initial
determination de novo on appeal.
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Id. at ¶22. We remanded the matter to the juvenile court for the limited purpose of
determining whether to appoint independent counsel for either child, “taking into
account the maturity of each child and the possibility of a conflict between each child’s
wishes and the recommendation of the guardian ad litem. * * * If it decides that
independent counsel for the children is not warranted, the reasons why should be set
forth in the record.” Id. at ¶23.
{¶10} On remand, the trial court found that “the children’s wishes were not in
conflict with the recommendation of the Guardian ad Litem, therefore the appointment of
separate counsel was not warranted and hereby affirms its April 17, 2015 decision.”
{¶11} Appellant again appealed and asserts one assignment of error for our
review:
{¶12} “The trial court erred by determining that the appointment of separate
counsel for N.P. and E.M. to advocate for their wishes regarding permanent custody
was not warranted.”
{¶13} “[P]ursuant to R.C. 2151.352, as clarified by Juv.R. 4(A) and Juv.R. 2(Y),
a child who is the subject of a juvenile court proceeding to terminate parental rights is a
party to that proceeding and, therefore, is entitled to independent counsel in certain
circumstances.” In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, ¶29 (emphasis
added). One circumstance in which it has been held that independent counsel is
generally warranted is “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.” In re Qu.W, 11th
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Dist. Ashtabula No. 2015-A-0016, 2015-Ohio-2202, ¶61 (emphasis sic), quoting In re
Hilyard, 4th Dist. Vinton Nos. 05CA600—05CA609, 2006-Ohio-1965, ¶36.
{¶14} This determination, however, is to be made “on a case-by-case basis,
whether the child actually needs independent counsel, taking into account the maturity
of the child and the possibility of the child’s guardian ad litem being appointed to
represent the child.” Williams, 2004-Ohio-1500, ¶17. Regarding the issue of maturity,
there is “no bright-line rule * * * regarding what age a child would be considered mature
for the purposes of the appointment of legal counsel.” In re Williams, 11th Dist. Geauga
Nos. 2002-G-2454 & 2004-G-2459, 2002-Ohio-6588, ¶25. Further, “there is no need to
consider the appointment of counsel based upon a child’s occasional expression of a
wish to be with a parent or because of a statement made by an immature child.” Id. at
¶24.
{¶15} Our standard of review on appeal, therefore, is whether the juvenile court
properly applied the law to the facts of the case, giving deference to the juvenile court’s
factual findings. N.P., supra, at ¶19.
{¶16} On remand, the trial court considered whether independent counsel was
needed for the children and set forth its reasons in the entry why the appointment of
independent counsel was not warranted. It found “the children’s wishes were not in
conflict with the recommendations of the guardian ad litem,” and “E.M. was not mature
enough to understand the gravity of the permanent custody situation * * * and therefore,
does not have the skills to adequately or completely communicate or understand his
thoughts and/or feelings.” The court further found that “if any such conflict existed, the
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Court believes that [the guardian ad litem] would have notified the Court pursuant to
Superintendence Rule 48.”
{¶17} Regarding N.P., there was testimony that she expressed a desire to live
with appellant. That testimony, however, was found to be not credible or marginally
credible by the trial court. During her in camera interview, N.P. expressed she does not
feel safe at her maternal grandmother’s house, which is where appellant resides, and
that returning to appellant would be dangerous for her. We therefore agree with the trial
court that N.P.’s wishes and the guardian ad litem’s recommendation are not in conflict.
{¶18} Regarding E.M., his aunt, with whom he was living, testified that he had at
times expressed to her a desire to live with appellant. In its December 4, 2015
judgment entry, the trial court stated it found this testimony to be credible, but noted that
due to his mental health issues and lack of maturity, E.M. was unable to understand
permanent custody. E.M. had expressed to his guardian ad litem that he wanted to
remain with his aunt and uncle, but the guardian ad litem was not certain he understood
what that meant. E.M. did not ever express to the guardian ad litem that he wished to
return to appellant. The guardian ad litem also indicated to the trial court that E.M.
“would just play along” if the court were to interview him due to his lack of
communication skills. Jennifer Dzugan, E.M.’s counselor at Crossroads Mental Health
Service, testified that E.M. had difficulty expressing and discussing his feelings: “Any
time he felt uncomfortable or the feelings were tough for him, he would become
extremely disregulated. * * * He became highly anxious and would be in a frenzied
state, running, throwing things at people, pushing people away, things like that.”
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{¶19} The trial court found that E.M. is unable to understand his own thoughts
and feelings regarding permanent custody due to his mental health issues and lack of
maturity. The trial court also stated that the “seasoned” guardian ad litem would have
notified the court if she found a conflict existed between E.M.’s best interest and E.M.’s
wishes. Because she did not do so, the trial court was confident that the guardian ad
litem’s recommendations were consistent with both.
{¶20} Some cases have held that a trial court should, at a minimum, hold an in
camera interview of the minor child before determining whether a conflict exists for
purposes of appointing independent counsel. See, e.g., In re Roque, 11th Dist.
Trumbull No. 2005-T-0138, 2006-Ohio-7007. Here, however, there is no compelling
evidence that E.M. unequivocally expressed a desire to live with appellant and
understood the consequence of doing so. Further, it is apparent that E.M.’s mental
health issues and lack of communication skills would have rendered an in camera
interview fairly superfluous. Due to E.M.’s immaturity and upon the facts of this case,
any possible error in “failing to further probe the child’s wishes” would have been
harmless error. In re J.B., 9th Dist. Summit No. 23436, 2007-Ohio-620, ¶24, citing In re
Shrider, 3d Dist. Wyandot No. 16-05-21, 2006-Ohio-2792, ¶25.
{¶21} Also, it must be noted that appellant, the children’s mother, was present at
all stages of the proceedings. At no time during the hearings did she request the trial
court appoint separate counsel for the children nor did she request the trial court
conduct an in camera interview with E.M. Even on remand, appellant did not request an
in camera interview with E.M.
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{¶22} Ultimately, we must be mindful that “the fundamental or primary inquiry at
the dispositional phase of these juvenile proceedings” is the “best interests and welfare
of [the] child.” In re Cunningham, 59 Ohio St.2d 100, 106 (1979) (emphasis sic). At no
point on appeal has appellant challenged the trial court’s judgment as being against the
best interests or welfare of her children, and it is apparent from a review of the record
that such a challenge would have been unsuccessful. We do not perceive any benefit
either child would have received with regard to this issue had independent counsel been
appointed.
{¶23} Under the specific facts and circumstances of this case, we cannot say the
trial court committed error when it declined to appoint an independent attorney to
represent either child for purposes of the permanent custody proceedings.
{¶24} Appellant’s assignment of error is without merit.
{¶25} The judgment of the Lake County Court of Common Pleas, Juvenile
Division, is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.
{¶26} I would reverse and remand, with orders that the trial court appoint
counsel for the minor children, conduct an in camera interview with E.M., and hold a
new hearing on the motions for permanent custody. This matter was reversed and
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remanded originally because we could not tell from the record what steps the trial court
took regarding appointment of counsel for the children, and what its reasoning was in
not appointing them counsel. On remand, the trial court did not take any new evidence:
it simply entered a judgment based on what it did before. The remand did not
accomplish its purpose. The best interest of the child is the paramount concern in
permanent custody proceedings. The trial court has not taken the steps necessary to
discover what these two children believe is in their own best interest nor could it discern,
without an interview, if they were mature enough to require separate counsel or
understand the gravity of the permanent custody situation.
{¶27} As the majority notes, the Supreme Court of Ohio has held that children
subject to juvenile proceedings are parties to the case, and are entitled to “independent
counsel in certain circumstances.” Williams, supra, at ¶29. This court has held that,
“[t]he ‘certain circumstances’ in which it has been found necessary to appoint
independent counsel are cases in which a motion for permanent custody has been filed
or in which there have been allegations of abuse.” In re B.J., 11th Dist. Geauga No.
2010-G-2946, 2010-Ohio-4696, ¶35. (Emphasis added.) These are permanent custody
proceedings. Under our own prior authority, the trial court had an absolute duty to
appoint counsel for these children.
{¶28} Further, it is universally recognized that when there is a conflict between
the expressed wishes of a child in permanent custody proceedings, and the
recommendation of the guardian ad litem, appointment of counsel for the child is
warranted.
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{¶29} The trial court justified its failure to appoint counsel for E.M. because he
was not “mature enough to understand the gravity of the permanent custody situation,”
and “is not mature enough to express his desires or wishes.” This court has held:
“When a child lacks the maturity to express his or her wishes and nothing otherwise
indicates that the child’s wishes conflict with the guardian ad litem, a juvenile court is not
required to appoint counsel for the child. In re L.W., 9th Dist. Summit Nos. 26861 and
26871, 2013-Ohio-5556, ¶20.” In re Qu. W., 11th Dist. Ashtabula No. 2015-A-0016,
2015-Ohio-2202, ¶61. In this case, various witnesses testified E.M. loves his mother,
and wishes to be with her. These witnesses include two social workers involved in the
case. The report of the guardian ad litem indicates he still loves his mother. Thus, at
the very least other circumstances indicate his wishes conflict with the opinion of the
guardian ad litem, entitling him to counsel. Id.
{¶30} I note the trial court did not interview E.M. in camera, even on remand. In
In re Williams, 11th Dist. Geauga Case Nos. 2003-G-2498 and 2003-G-2499, at ¶18,
this court held:
{¶31} “When, as in this case, the court is informed of the child’s expressed
desire to remain with his natural parent, the decision to appoint counsel should be made
on a case by case basis based on the child’s maturity. At a minimum, the court should
conduct an in-camera, recorded interview with the child before making a lack of maturity
to benefit from having appointed counsel decision.” (Emphasis added.)
{¶32} By not conducting an in camera interview with E.M., the trial court ignored
our binding precedent.
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{¶33} I believe the trial court has an independent obligation to conduct such an
interview in permanent custody proceedings, when there are indications the child and
the guardian ad litem do not agree. The failure to conduct such an interview with E.M.
in this case further illustrates the necessity of appointing counsel for children in
permanent custody proceedings – so there is someone present to advocate for the
child, as by requesting an in camera interview.
{¶34} The trial court found that N.P. felt unsafe at the home of her maternal
grandmother, with whom mother lives. The guardian ad litem found the same.
Nevertheless, both the guardian ad litem, and the trial court, agreed that N.P. misses
her mother, and loves her. One of the social workers testifying stated that N.P.
expressed periodically a desire to live again with her mother, or with her maternal aunt.
These are sufficient indicia that N.P.’s wishes conflicted sufficiently with the
recommendation of the guardian ad litem so as to require appointment of counsel for
her.
{¶35} As I stated in my concurring opinion on the initial appeal, “[b]ecause the
minor children went [through these proceedings] without legal representation, they did
not receive due process in this juvenile, permanent custody proceeding. See, e.g., In re
Gault, 387 U.S. 1, * * * (1967).” In re N.P. & E.M., supra, at ¶37. They still have not.
{¶36} I respectfully dissent.
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