[Cite as In re J.W.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

IN THE MATTER OF: J.W. and S.W. : : : Appellate Case Nos. 2013-CA-113 and : : 2013-CA-114 : : Trial Court Case No. 2012-915 and : : 2012-916 :

(Appeal from Common Pleas Court- (Domestic Relations) ...........

OPINION

Rendered on the 27th day of June, 2014.

...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Family and Children Services, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Appellee-Clark County Family and Children Services

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200, Urbana, Ohio 43078 Attorney for Appellant-J.S.

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 131 North Ludlow Street, Suite 1210, Dayton, Ohio 45402 Attorney for Appellant-S.W., Sr. 2

.............

WELBAUM, J.

{¶ 1} In this case, J.S. and S.W., Sr. appeal from the termination of their parental

rights regarding their two minor children, J.W. and S.W., who were ages eight and 10,

respectively, when the parental rights were terminated. The parents have each filed briefs, and

have listed separate assignments of error. However, both parents contend that the trial court

erred in finding that it was in the children’s best interests for permanent custody to be granted to

Appellee, Clark County Family and Children Services (CCFCS), and that the trial court erred in

failing to appoint counsel for the children. In addition, J.S. contends that the trial court

unconstitutionally penalized the parents for their poverty, and that the court erred in finding that

it had jurisdiction or legal authority to grant permanent custody to CCFCS.

{¶ 2} We conclude that the trial court did not err in awarding permanent custody to

CCFCS. The trial court carefully considered all appropriate factors, and its decision is supported

by clear and convincing evidence in the record. The trial court also did not err in failing to

appoint counsel for the minor children. Counsel need only be appointed in certain

circumstances, and counsel is not required where, as here, references to a desire to reunify are a

child's only occasional expression of a wish to be with a parent.

{¶ 3} We further conclude that the trial court did not unconstitutionally penalize the

parents for their poverty. Instead, the parents chose to spend their money staying in hotels rather

than for housing for the children. The parents also failed to comply with even the most minimal

requirements of their case plan. Finally, the trial court based its findings on R.C. 3

2151.414(B)(1)(a), not on R.C. 2151.414(B)(1)(d), as J.S. contends, and there is no need to

consider arguments as to legal authority under the latter subsection of the statute.

{¶ 4} Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 5} In July 2012, CCFCS filed a complaint in the Clark County Common Pleas

Court, Domestic Division, Juvenile Section, requesting that it be granted temporary custody of

J.W. and S.W., who were then ages 7 and 9, respectively. The complaint alleged that the family

was living in a basement that was totally inappropriate, being very wet, dirty, unsafe, with poor

lighting, trash, and piles of miscellaneous items throughout the area. The children were found to

be very dirty, and there were concerns about food supplies. According to the complaint, J.S. had

been arrested for child endangerment in 2003, 2009, and 2010, and had been found guilty of the

charges from 2009 and 2010. CCFCS also had previous involvement with the family in 2003,

and from 2006-2010.

{¶ 6} In addition, the complaint detailed the children’s absences from school and

suspensions. Both children had special needs at the time of removal from their home. Both

children had mental issues, including ADHD and episodic disorder, were on IEPs at school, and

were on medication. While under their parents’ care, they had missed significant amounts of

time in school.

{¶ 7} On July 27, 2012, the parents appeared in court and admitted that the children

were dependent. They agreed that the maternal grandmother, T.C., should have temporary

custody for six months. [Cite as In re J.W.,

.] {¶ 8} The case plan for the family indicated that the family had a history of instability

regarding housing, and the children had been removed before for lack of running water,

electricity, or heat. Specifically, in 2007, CCFCS became involved with the family based on an

abuse referral. Although the abuse was unsubstantiated, the family was homeless. J.S. was also

reportedly using drugs, and the children were placed with T.C., on a safety plan. That particular

case plan was open from June 2007 to January 2009. After the parents obtained housing, the

plan was closed. However, the parents were evicted shortly after the plan was closed.

{¶ 9} In September 2009, the police removed the children from the home, based on a

lack of electricity and running water. The children were again placed with T.C. J.S. was charged

with two counts of child endangering and was convicted of one. Subsequently, in July 2010,

CCFCS had a referral that the family was living in a hotel, and that J.S. was jaywalking with

J.W. on Main Street, walking too close to cars. J.S. was again charged with and convicted of

one count of child endangering. CCFCS gave the family funds to pay the rent for a trailer, but

the family was evicted one month later for non-payment of rent. Then, in 2012, there was the

latest referral, regarding living in the basement, which was wet and unsanitary. In addition, the

family was using a bucket as their only toilet.

{¶ 10} In order to be reunited safely with the children, the parents were required to

obtain housing and provide proof of income. They also needed to have drug and alcohol

assessments and follow through with any recommendations, and to have mental health

assessments and follow through with any recommendations. These requirements were initially

made in June 2012, shortly after the children were removed. Both parents agreed to the

recommendations, and understood what was required. The parents were also given referrals to

address the agency’s concerns. [Cite as In re J.W.,

.] {¶ 11} The parents did obtain housing in October 2012, but an eviction action was filed

on December 31, 2012, due to non-payment of rent. This was consistent with the parents’ history

of obtaining housing for a brief period and then being evicted.

{¶ 12} In January 2013, CCFCS filed a motion with the court, requesting that it be

awarded temporary custody. T.C. had requested that the children be removed from her home

due to their behaviors, particularly those of S.W., who had serious behavior issues. There were

also concerns of drug abuse regarding the parents, who had both tested positive for opiates at a

custody hearing on January 15, 2013. Drug concerns about J.S. had also been present

throughout her history with CCFCS. In 2007, J.S. had been recommended for Women’s

Recover, a residential facility, but did not complete treatment. J.S. had also previously been at

Talbott Hall, a detoxification facility.

{¶ 13} The trial court granted temporary custody to CCFCS, and the children were

placed together in a foster home. However, S.W. was moved to a different foster home three

months later, due to his violence against J.W. and the foster mother. After being placed in a

new foster home in Xenia, Ohio. S.W. did well there.

{¶ 14} In August 2013, CCFCS filed a complaint and motion asking the court to

modify the temporary custody to permanent custody to CCFCS. The request was based on a

number of items, including the parents’ failure to remedy the problems causing placement of the

children outside the home. A guardian ad litem (GAL) that had been appointed filed a report

indicating that the parents had not been able to provide for any of the needs of their children, had

not participated in the case plan, and had not accomplished any of the goals of the case plan.

The GAL strongly recommended that the court grant the request for permanent custody.

{¶ 15} The GAL filed another report in October 2013, again recommending that the 6

court grant CCFCS’s request for permanent custody. The GAL noted that he had interviewed

the children, and that they strongly wished to be reunited as a family. However, the GAL also

expressed the belief that, based on the children’s counseling diagnosis, disabilities, and learning

disabilities, the children did not understand the long-term consequences of their desire to reunify.

In particular, S.W. had learning disabilities and was in the low to low average for his age group.

S.W. had been in four school systems in the past few years, and needed stability to be successful

at learning. The parents had no place to live, nor did they have furniture or appliances. Their

work was sporadic and both parents were very thin, looking as if they did not eat regular meals.

The GAL concluded that while the parents loved their children, they were not able to provide for

themselves or their children, and the parents’ circumstances were not likely to change in the near

future. The GAL also filed a further comment on November 4, 2013. In this report, the GAL

observed that a final custody hearing had been scheduled for Friday, October 24, 2013. All

relevant persons appeared at the hearing, other than the parents, who reported by cell phone that

they were en route to Columbus, Ohio, for emergency medical treatment because the father,

S.W., Sr., was throwing up blood. However, the parents then claimed they had run out of cell

phone minutes and could only use text messages. The GAL indicated the report was untrue, and

that the father had gotten T.C. to take him to the emergency room in Springfield, Ohio. The

GAL criticized the parents for using poor judgment with respect to failing to use the limited cell

phone minutes to call the emergency squad, and for possibly attempting to delay the trial, which

showed a lack of respect for their children, who needed stabilization.

{¶ 16} According to the record, S.W., Sr. was able to attend a Saturday visitation with

the children, after not being able to attend court the day before. The parents had a schedule of 7

weekly visitation at a visitation center, on Saturdays from 9:00 to 11:00 a.m. They had been

generally consistent with visitation, and the supervisor in charge of the visitations indicated that

the parents and children had a close bond and interacted appropriately with each other.

However, from the time that visitations were initially scheduled, the parents never asked CCFCS

for increased visitation until October 2013, shortly before the final custody hearing. At that

point, CCFCS refused, since the agency had already filed for permanent custody.

{¶ 17} The second hearing on the permanent custody motion was scheduled for

November 4, 2013. At 9:25 a.m., the trial court indicated on the record that the trial was

supposed to begin at 9:00 a.m., and the parents had not yet arrived. The father’s attorney stated

that the parents were presently in Beavercreek, Ohio, waiting for a bus that was supposed to

come at 9:30 a.m. and arrive in Springfield, Ohio, (the location of the trial), at 10:15 a.m. The

court noted that the bus was leaving a half-hour after trial was supposed to begin, and the

attorney explained that this was the first bus the parents could find after allegedly realizing that

their ride to court was not coming. The court then began the trial. Ultimately, J.S. showed up

at about 11:30 p.m., but the children’s father never appeared. J.S. had no explanation as to why

he did not appear, other than that he was supposed to be getting a ride.

{¶ 18} At trial, the State presented evidence from two CCFCS caseworkers who

detailed the deplorable conditions in which the children had been found and the utter failure of

the parents to comply with the case plan requirements. The only thing that the parents had

accomplished in more than a year was to attend most of the weekly two-hour visitations with

their children. The parents did belatedly go for mental health evaluations in October 2013,

around two weeks before the initial permanent custody hearing. However, they stated in their 8

assessment that they were only at the mental health facility because they wanted to reunify with

their children. They also both declined any treatment.

{¶ 19} Both caseworkers indicated that the best interests of the children would be

served by placing permanent custody with CCFCS. The children were adoptable, and J.W.’s

foster parent was interested in adopting him. The caseworkers acknowledged that the children

loved their parents, but stressed that the parents could not meet the children’s needs; in fact, the

parents could not even meet their own needs. Denise Bell, the original caseworker, stated that

she had pleaded with the parents to complete the case plan requirements, and they would not.

The parents kept telling her that they had appointments scheduled, and when she checked with

the particular facility, the parents had not gone to the appointments. In addition, the parents

would tell her that S.W., Sr. was working when he was not. Bell attributed it to the parents’

drug use and the fact that they just wanted to continue to use drugs. For years, the family’s

situation had been one of instability, and the parents had never demonstrated that they could

provide for their own needs, let alone those of the children.

{¶ 20} J.S. testified at the hearing. She stated that she and S.W., Sr. did not have a

current address. J.S. claimed that they had just found a house, but it would be two weeks before

they could move in. However, she brought no proof to court to show that they had obtained

housing. J.S. also brought no proof of income, other than a few receipts showing minimal

amounts earned in what appears to be: January 2013 ($330 total for J.S. and S.W., Sr.); August

21, 2013 ($800 for S.W., Sr.); and September 3 and 4, 2013 ($495 for S.W., Sr.). See Joint Ex.

B. There were three other undated documents that list work done or anticipated to be done on

two other houses, two of which list amounts totaling $2,350.

J.S. indicated that she and 9

S.W., Sr. had been working for a contractor since April 2013, and had traveled around working

on houses while staying in motels. The night before the hearing, they had stayed in a hotel in

Beavercreek, Ohio, that had cost $60 per night. When they were not traveling, they stayed in the

Executive hotel in Springfield, Ohio, which cost $40 per night.

{¶ 21} Some of J.S.’s testimony was contradicted by evidence in the record. For

example, she claimed that she and S.W., Sr. had two appointments at Wellspring in April 2013,

but when they went, identification was needed. WellSpring apparently gave them a week to try

and find identification, but they were not able to do so in time. However, the records from

WellSpring indicate that both parents had appointments scheduled for April 3, 2013, and April

10, 2013. The parents cancelled the first appointment, and did not show or call to cancel the

second appointment.

{¶ 22} In another example. J.S. testified that the rent at the apartment they did obtain in

October 2012 was about $600 per month, when the records at CCFCS indicate that the rent was

$375 per month. Still another example of a lack of credibility is the fact that J.S. reported on her

mental health evaluation that she had no drug or alcohol usage and no addictive behaviors. See

State’s Ex. C. In contrast, J.S. admitted during her testimony that she does have an alcohol and

drug use history, and had received treatment in 2004 for OxyContin (opiates).

{¶ 23} After hearing the testimony, the trial court granted CCFCS’s motion for

permanent custody. The court concluded that the children could not be placed with either parent

within a reasonable time or should not be placed with either parent because the parents had failed

to remedy the problems that had caused their removal, and had demonstrated a lack of

commitment and dedication to the children by regularly failing to support them. The court 10

additionally concluded that it was in the best interests of the children for permanent custody to be

given to CCFCS. Both parents appeal from the decision terminating their parental rights.

II. Did the Trial Court Err in Granting Permanent Custody to CCFCS?

{¶ 24} Because the parents’ separate briefs raise some of the same issues, we will

consider these assignments of error together. For convenience, we will also consider the

assignments of error out of order. J.S.’s Second Assignment of Error states that:

The Trial Court Erred in Finding that It Was in the Best Interests of the

Children that They Be Permanently Taken Away from Their Parents in that Such

Finding Was Against the Manifest Weight of the Evidence.

{¶ 25} Similarly, S.W., Sr.’s First Assignment of Error states as follows:

The Trial Court Committed Reversible Error in Granting Permanent

Custody to Family and Children’s Services of Clark County, as the Agency Failed

to Prove by Clear and Convincing Evidence that Permanent Custody was in the

Best Interest of the Children.

{¶ 26} In arguing that the court’s decision is against the manifest weight of the

evidence, or was not supported by clear and convincing evidence, the parents both focus on two

factors under R.C. 2151.414(D)(1) – (a) that the court should consider the interactions between

the child’s parents, siblings, and relatives before making a permanent custody decision; and (b)

that the court should consider the children’s wishes. The parents argue that these factors

strongly weigh in their favor.

{¶ 27} “The United States Supreme Court has recognized that parents’ interest in the 11

care, custody, and control of their children ‘is perhaps the oldest of the fundamental liberty

interests recognized’ by the court.” In re L.C., 2d Dist. Clark No. 2010 CA 90,

, quoting Troxel v. Granville,

,

,

(2000). “ * * * [P]arents who are ‘suitable’ persons have a ‘paramount’ right to the

custody of their minor children unless they forfeit that right by contract, abandonment, or by

becoming totally unable to care for and support those children.” (Citation omitted.) In re

Perales,

,

(1977).

{¶ 28} Nonetheless, juvenile courts have broad discretion in choosing alternatives for

the disposition of abused, neglected, or dependent children. In re L.C., at ¶ 13, citing R.C.

2151.353(A) and Juv.R. 29(D). “ ‘In choosing among the alternatives, the best interest of the

child is the court's primary consideration. Furthermore, in making its dispositional order, the

court must consider which situation will best promote the “care, protection, and mental and

physical development” of the child with the understanding that the court should separate a child

from his family environment “only when necessary for the child's welfare or in the interests of

public safety.” R.C. 2151.01(A).’ ”

quoting In re C.W., 3d Dist. Wyandot No. 16-09-26,

.

{¶ 29} In this regard:

R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The

statute requires the court to find, by clear and convincing evidence, that (1)

granting permanent custody of the child to the agency is in the best interest of the

child and (2) either the child (a) cannot be placed with either parent within a 12

reasonable period of time or should not be placed with either parent if any one of

the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and

no relatives are able to take permanent custody of the child; or (d) has been in the

temporary custody of one or more public or private children services agencies for

twelve or more months of a consecutive twenty-two month period.

In re K.M., 8th Dist. Cuyahoga No. 98545,

, citing R.C. 2151.414(B)(1).

{¶ 30} The court’s findings “must be supported by clear and convincing evidence,” and

“the children services agency has the burden of proof.” (Citations omitted.) In re L.C., 2d Dist.

Clark No. 2010 CA 90,

.

{¶ 31} Under R.C. 2151.414(D), the trial court must “consider all relevant factors when

determining the best interest of the child, including but not limited to: (1) the interaction and

interrelationship of the child with the child's parents, relatives, foster parents and any other

person who may significantly affect the child; (2) the wishes of the child; (3) the custodial history

of the child, including whether the child has been in the temporary custody of one or more public

children services agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period; (4) the child's need for a legally secure permanent

placement and whether that type of placement can be achieved without a grant of permanent

custody to the agency; and (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are

applicable.” In re S.J., 2d Dist. Montgomery No. 25550,

.

{¶ 32} Our review of the trial court’s decision is for abuse of discretion. In re E.C., 2d

Dist. Montgomery No. 25944,

(Citation omitted.) “An abuse of

discretion implies that the trial court's decision was unreasonable, arbitrary, or unconscionable.” 13

(Citations omitted.)

We have also said that “[a] reviewing court will not overturn a

court's grant of permanent custody to the state as being contrary to the manifest weight of the

evidence ‘if the record contains competent, credible evidence by which the court could have

formed a firm belief or conviction that the essential statutory elements * * * have been

established.’ ” In re R.L., 2d Dist. Greene Nos. 2012CA32, 2012CA33,

,

quoting In re A.U., 2d Dist. Montgomery No. 22287,

. In addition, “[n]ot

every statutory condition must be met before a determination regarding best interest may be

made. * * * And no one statutory factor is more important than any other.” (Citations omitted.)

In re R.L., at ¶ 18, citing In re Schaefer,

,

,

.

{¶ 33} After examining the entire record, including the exhibits, we cannot say that the

trial court’s decision was unreasonable, arbitrary, or unconscionable. The trial court’s decision

was also supported by competent, credible, clear, and convincing evidence.

{¶ 34} As was noted above, the parents were unwilling, for approximately sixteen

months, to make any effort that would allow them to reunify with their children, other than

visiting the children for a few hours once a week. By J.S.’s own admission, she was not

employed at all between July 2012 and April 2013, and was employed only sporadically after

that. Likewise, S.W. Sr.’s employment was somewhat sporadic. Yet, during all these months,

the parents failed to appear for a single mental health appointment except one scheduled on the

eve of trial, in which they indicated that they had no problems other than being required to have

an assessment for reunification purposes, and further indicated that they did not desire treatment.

They also failed to take minimal steps to secure drug and alcohol evaluations or to obtain 14

housing.

{¶ 35} In addition, the children were living in deplorable conditions before they were

removed, and the instability had continued for many years. Both children had special needs that

were not being met – they had many absences from school while in the parents’ care and were

significantly delayed in academic skills. S.W., in particular, had severe behavior issues. After

removal, both children were doing well in their foster care environments, and had improved

substantially in their progress and attendance at school. While the children may have at one

point expressed a natural wish to reunite with their parents, the record demonstrates that this

would be very detrimental to their welfare. The GAL additionally expressed the opinion that the

children were not capable of understanding the long-term consequences of their desire to reunify

as a family, due to their counseling diagnosis, disabilities, and learning disabilities. This

opinion is also supported by the record. The trial court was not required to place emphasis on

the children’s wishes or the relationships among the family, to the exclusion of all other factors.

{¶ 36} Accordingly, the trial court did not err in concluding that permanent custody to

the agency was in the children’s best interests. The court carefully considered all factors, and its

decision is supported by clear and convincing evidence in the record. J.S.’s Second Assignment

of Error and S.W., Sr.’s First Assignment of Error are without merit and are overruled.

III. Did the Trial Court Err in Failing to Appoint an Attorney for the Children?

{¶ 37} J.S.’s Fourth Assignment of Error and S.W., Sr.’s Second Assignment of Error

state that:

The Trial Court Erred in Failing to Appoint Counsel for the Children. 15

{¶ 38} Under this assignment of error, the parents contend that the trial court should

have appointed counsel for the children because the GAL’s recommendation was inconsistent

with their wishes. In this regard, the parents rely on In re Williams,

,

,

. In Williams, the Supreme Court of Ohio held that in certain

circumstances, children who are the subject of parental termination proceedings are entitled to

counsel.

at syllabus. In response, CCFCS cites cases indicating that Williams does not

apply unless the record demonstrates that a child has repeatedly and consistently expressed an

affirmative desire to return to a parent’s home. See, e.g., In re B.W., 9th Dist. Medina No.

12CA0016-M,

.

{¶ 39} In Williams, the Supreme Court of Ohio considered the interplay of R.C.

2151.352, Juv.R. 4(A), and Juv.R 2(Y), and concluded that counsel must be appointed for a child

in certain circumstances. The circumstances in Williams included that “[the child] had

repeatedly maintained he wished to remain with [his mother]. His behavior regressed and

became more aggressive upon his removal in October of 2001. During supervised visitation,

[the child] often did not want to let [his mother] out of his sight.” In re Williams, 11th Dist.

Geauga Nos. 2002-G-2454, 2002-G-2459,

, ¶ 9 (Wililams I).

{¶ 40} The court of appeals noted in Williams I that every party in juvenile court is

entitled to be represented by counsel, but “the court is only required to appoint counsel to

represent the child’s interests if there is an allegation of abuse.” Id. at ¶ 19. The court of

appeals further observed that:

If a juvenile court determines that a child is entitled to legal representation

in addition to a guardian ad litem, the court can appoint an attorney to serve in the 16

dual capacity of appointed counsel and guardian ad litem. A dual appointment is

permitted if there is no conflict between the roles. The separate appointment of

counsel is necessary if there is a direct conflict between the recommendation of

the guardian ad litem and the expressed wishes of the child. This is because the

role of a guardian ad litem is different than that of an attorney. The role of the

guardian ad litem is to investigate the child's situation and then ask the court to do

what is in the child's best interest, while the role of an attorney is to zealously

represent his client's wishes within the bounds of the law. If there is a conflict

between these roles, the guardian ad litem may not be the child's attorney.

Id.

{¶ 41} In concluding that an attorney should have been appointed for the child, the

court of appeals commented in Williams I that the child had “consistently expressed a desire to

be reunited with [his mother]. Once, [the child] told his therapist he would move his house into

the woods and live with [his mother] there if told he could not live with his mother.” Id. at ¶ 20.

The court of appeals also rejected the idea that appointment of counsel had been waived because

no request for appointment of counsel had been made below. Id. at ¶ 21. Although the court

recognized that other appellate courts had found waiver in similar situations, the court stated that:

We are reluctant to find waiver in a case where a child consistently has

expressed a wish to be with a parent. Courts have stated that a child's interests are

not represented by his or her parents, even when the parents and child all want

reunification. To find waiver would deny that child his or her right to counsel

because another party did not raise the issue. 17

This is not to say that every child should be given counsel or that waiver is

not appropriate in certain cases. There is a question in this case as to whether

six-year old [M.] has the maturity to understand the proceedings. Arguably, most

children of tender years will want to be returned to their parents. A juvenile court

need only consider a child's wishes regarding a motion for permanent custody

after giving due regard to the child's maturity. R.C. 2151.414(D)(2). Similarly,

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.

Courts must consider each case on the facts presented as no bright-line

rule can be imposed regarding what age a child would be considered mature for

the purposes of the appointment of legal counsel. Children and circumstances

differ to a large degree such that the court must base its determination of whether

or not legal counsel should be appointed on its consideration of the child at issue

and not whether a certain age must be attained before the right to counsel attaches.

Indeed, in most cases, a child of tender years will probably lack the

maturity to understand the situation and consequences involved in a permanent

custody case. We are not requiring that legal counsel be appointed every time a

child states a desire to remain with a parent. However, when a child consistently

expresses a desire to be with a parent, then a juvenile court should investigate,

giving due regard to the child's maturity and understanding of the proceedings, 18

and make a ruling about whether an attorney should be appointed to represent the

child's interest and expressed wishes.

Williams, 11th Dist. Geauga Nos. 2002-G–2454, 2002-G-2459,

, at ¶ 23-26.

{¶ 42} Based on the above discussion, the court of appeals reversed and remanded the

case. On remand, the trial court appointed an attorney for the child, but the attorney’s role was

limited to filing a response to the permanent custody motion “stating the position of the child

with respect to permanent custody.” In re Williams, 11th Dist. Geauga Nos. 2003G-2498,

2003-G-2499,

, ¶ 8 (Williams II). Furthermore, while the juvenile court had

originally scheduled a re-hearing on the motion for permanent custody, the court issued a

decision concluding that appointment of an attorney was not necessary. The court then reinstated

its prior decisions as to permanent custody without holding a hearing. Id. at ¶ 9.

{¶ 43} On further appeal, the court of appeals reversed again, concluding that this

cursory process did not protect the child’s rights. Id. at ¶ 18. The Supreme Court of Ohio

subsequently certified a conflict in Williams II on the issue of “[w]hether children who are the

subject of a motion to terminate parental rights are ‘parties’ to that proceeding for the purposes of

Juv.R. 4(A) and R.C. 2151.352, requiring the appointment of counsel.” In re Williams,

,

,

(Table). The conflict case was In re Alfrey, 2d

Dist. Clark No. 01CA0083,

. As was noted, the Supreme Court of Ohio

ultimately concluded that under R.C. 2151.352 and the Ohio Juvenile Rules, children were

“parties” to the proceeding and would be entitled to counsel under certain circumstances.

Williams,

,

,

, syllabus. However, the court

did not specifically detail what circumstances would give rise to the need to appoint counsel. 19

{¶ 44} Courts applying Williams have noted that “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.” (Emphasis sic.) In re B.S., 5th Dist.

Tuscarawas No. 11AP100041,

, citing Williams I, 11th Dist. Geauga Nos.

2002-G-2454, 2002-G-2459,

, at ¶ 24. For example, in the case of In re B.S., a

letter from the child’s counselor indicated that the child was “grieving the loss of Father

‘especially’, and wanted to go home.” Id. at ¶ 34. At the time, the child was five years old.

Id. at ¶ 35. The Fifth District Court of Appeals also stressed that “[t]he Williams Court

emphasized the child expressed his wish for reunification ‘often,’ ‘consistently,’ and

‘repeatedly.’ ” Id. at ¶ 33, quoting Williams I at ¶ 17, 20, and 9.

{¶ 45} In rejecting the need for appointment of a separate attorney, the Fifth District

Court of Appeals observed that “the counselor's general expression of the girl's emotions does

not equate to the child's ability to make a knowing choice to remain with one parent. The

counselor also noted B.S. was open to being loved by another mother and father.” Id. at ¶ 36.

{¶ 46} In the case before us, the GAL indicated that he had interviewed J.W. and S.W.,

and that “[t]hey wish as strongly as it is possible for them to wish that they could be reunited as a

family.” Doc.# 62, p. 1. The rest of the record does not reveal any comments from J.W.

regarding a wish to be reunited. With respect to S.W., the notes for his counseling records

contain a few references to S.W.’s sadness that he would not be reunited with his parents.

State’s Exhibit K, notes for 7/8/2013, 8/26/13, and 10/2/2013.

{¶ 47} However, these were only occasional references to the state of S.W.’s emotions,

and do not rise to the level of demonstrating that “the child has repeatedly and consistently 20

expressed the affirmative desire to return to the parent's home.” In re B.W., 9th Dist. Medina

No. 12CA0016-M,

. Moreover, in contrast to the child in Williams,

S.W. and J.W. did not regress in behavior after their removal from the home. S.W. had some

behavior issues initially, but these were no different from the issues he had while living with his

parents. Furthermore, S.W.’s behavior improved significantly after he was placed in a second

foster home. We recognize that this is a close issue, and if some of the facts had been different,

the trial court may have erred by failing to appoint an attorney for the children.

{¶ 48} In view of the above discussion, we conclude that the trial court did not err in

failing to appoint counsel for the children. We also note that some courts have held that a parent

waives the right to challenge the lack of appointment of counsel for a child by not raising the

matter in the trial court. See, e.g., In re N.G., 9th Dist. Lorain No. 12CA010143,

. The rationale is that parents should not be permitted to impose

belated challenges in order to delay custody proceedings, which are expedited in order to prevent

children from languishing in the foster care system. Id. at ¶ 17. We do not rely on the doctrine,

but note that authority does exist for application of waiver. If we were required to apply the

waiver doctrine, we would find no plain error that would warrant reversal.

{¶ 49} Based on the preceding discussion, J.S.’s Fourth Assignment of Error and S.W.,

Sr.’s Second Assignment of Error are overruled.

IV. Were the Parents Penalized Due to Poverty?

{¶ 50} J.S.’ s Third Assignment of Error states that:

The Trial Court Erred in Finding that the Parents Lost Their Constitutional 21

Right to Custody of Their Children.

{¶ 51} Under this assignment of error, J.S. contends that she was unconstitutionally

deprived of custody of her children because she is destitute. According to J.S., poverty is often

mistaken for neglect. As an example of her poverty being an inhibiting factor, J.S. points to the

fact that on the day of the hearing, she had only $10.00 in her pocket and expended $9.50 on a

bus to get to the hearing.

{¶ 52} We have already stressed that a parent’s interest in the care, custody, and control

of children is a fundamental liberty interest. In re L.C., 2d Dist. Clark No. 2010 CA 90,

, quoting Troxel,

,

,

.

However, poverty is not the reason that J.S. and S.W., Sr. were deprived of their parental rights.

Their parental rights were terminated because they made no effort, for a period of 16 months, to

comply with the most simple requirements of their case plan. If the parents were truly

concerned about their children’s welfare, they would have attempted to comply. Furthermore,

the parents had sufficient income to live in hotels, expending several hundred dollars a month, by

J.S.’s own account, when that money could have been used to obtain housing for the children.1

The night before the hearing, the parents spent $60 on a hotel room – and chose to stay in

Beavercreek, Ohio, rather than in Springfield, where they would have been more easily able to

travel to the important hearing that would determine the fate of their children. This is not a

matter of poverty; it is a matter of poor judgment and inattention to the needs of the children.

{¶ 53} Based on the preceding discussion, J.S.’s Third Assignment of Error is

1 At the rate of $40 per night cited by J.S., about $1,200 would have been expended each month for hotels. J.S. indicated that when they could afford to pay weekly, the rate was $150. Even at that rate, $600 would have been expended on hotels. 22

overruled.

V. Did the Trial Court Err in Finding Legal Authority to Grant Custody?

{¶ 54} J.S.’s First Assignment of Error states that:

The Trial Court Erred in Finding it Had Jurisdiction or Legal Authority to

Grant Permanent Custody of the Children to the Clark County Department of

Family and Children Services.

{¶ 55} Under this assignment of error, J.S. contends that the trial court lacked

jurisdiction or legal authority to grant permanent custody to CCFCS because the children had not

been in the custody of one or more public children services agencies for 12 or more months of

the preceding 22 months, as required by R.C. 2151.414(B)(1)(d). J.S. bases her argument on the

fact that the CCFCS only received temporary shelter care custody on January 15, 2013, and

temporary custody on February 8, 2013. In her reply brief, J.S. concedes that CCFCS properly

stated alternate grounds for custody in its complaint, based on R.C. 2151.414(B)(1)(a).

{¶ 56} We note that the trial court did not rely on R.C. 2151.414(B)(1)(d) in its

decision. Instead, the court concluded that the children could not be placed with the parents

within a reasonable period of time or should not be returned to the parents. Doc.# 68, Judgment

Entry, p. 5. This was consistent with R.C. 2151.414)(B)(1)(a), which states that:

Except as provided in division (B)(2) of this section, the court may grant

permanent custody of a child to a movant if the court determines at the hearing

held pursuant to division (A) of this section, by clear and convincing evidence,

that it is in the best interest of the child to grant permanent custody of the child to 23

the agency that filed the motion for permanent custody and that any of the

following apply:

(a) The child is not abandoned or orphaned, has not been in the temporary

custody of one or more public children services agencies or private child placing

agencies for twelve or more months of a consecutive twenty-two-month period, or

has not been in the temporary custody of one or more public children services

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period if, as described in division (D)(1) of section

2151.413 of the Revised Code, the child was previously in the temporary custody

of an equivalent agency in another state, and the child cannot be placed with either

of the child's parents within a reasonable time or should not be placed with the

child's parents.

{¶ 57} Because this ground was raised in the complaint for custody, and was relied on

by the trial court, any issues relating to R.C. 2151.414(B)(1)(d) are irrelevant. Accordingly,

J.S.’s First Assignment of Error is overruled.

VI. Conclusion

{¶ 58} All of J.S.’s and S.W. Sr.’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

.............

HALL, J., concurs. 24

FAIN, J., dissenting.

{¶ 59} Although I agree with Judge Welbaum’s opinion for this court in all other

respects, I would find some merit to the mother’s fourth assignment of error and the father’s

second assignment of error, both of which concern the trial court’s failure to have assigned

counsel for the children.

{¶ 60} In In re Williams,

,

,

, ¶ 29,

the Supreme Court of Ohio held that: “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 that portion of the Supreme Court’s opinion addressed to

the issue on appeal, the Court provided no guidance concerning what “certain circumstances”

will trigger the child’s right to independent counsel, beyond its recognition that courts of appeals

have “recognized that courts should make a determination, 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.” Id., ¶ 17.

{¶ 61} The Supreme Court did cite, in the portion of its opinion dealing with the

procedural history of the case, at ¶ 6, the following passage in the opinion of the Eleventh

District Court of Appeals in the first appeal in that case: “[W]hen a child consistently expresses a

desire to be with a parent, then a juvenile court should investigate, giving due regard to the

child’s maturity and understanding of the proceedings, and make a ruling about whether an

attorney should be appointed to represent the child’s interest and expressed wishes.” In re

Williams, 11th Dist. Geauga Nos. 2002-G-2454 and 2002-G-2459,

, ¶ 26.

{¶ 62} The only place in that opinion where the court of appeals refers specifically to the 25

child’s expression of his desire to be with his mother is at ¶ 20: “In the instant case, [the child]

consistently expressed a desire to be reunited with appellant. Once, [the child] told his therapist

he would move his house into the woods and live with [his mother] there if he could not live

with his mother. That same therapist stated [the child] would be happier with [his mother].”

Later, at ¶ 22, the court of appeals cited with approval the holding of the Eighth District Court of

Appeals in In re Clark,

,

,

, “that children

were entitled to legal representation in a case where one of the children expressed a strong desire

to be returned to his mother at the dispositional hearing.” (Quotation is from In re Williams.)

{¶ 63} I conclude that it is the strength of the child’s expressed wish and its unequivocal

character that, combined with the age of the child, informs the decision whether there are “certain

circumstances” requiring the appointment of independent counsel for the child. The frequency

with which the child’s wish is expressed may be a factor in determining the strength of the wish,

but I do not regard the multiplicity of a child’s expressions of a wish to be reunited with a parent

as an independent requirement for the appointment of counsel. After all, the child cannot “make

a record” of multiple expressions of the child’s desire.

{¶ 64} In the case before us, the guardian ad litem, who had interviewed the children,

said that “[t]hey wish as strongly as it is possible for them to wish that they could be reunited as a

family.” The older child was almost eleven at the time of the hearing; the younger child was

eight. They were not incapable of having meaningful desires concerning their own placement.

{¶ 65} In my view, the trial court should at least have conducted some further inquiry to

determine whether independent legal representation of the children was warranted. To that

extent, I would sustain the respective assignments of error of the mother and father pertaining to 26

this issue, reverse the permanent custody award, and remand this matter to the trial court for

further proceedings.

Copies mailed to:

Ryan Saunders Darrell L. Heckman Jeffrey T. Gramza Hon. Joseph N. Monnin