[Cite as In re B.E.S.,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

IN THE MATTER OF: B.E.S., H.K.S., and : OPINION B.L.S. :

: CASE NO. 2013-T-0098

Appeal from the Trumbull County Court of Common Pleas, Juvenile Division, Case No. 2006 JP 0728.

Judgment: Affirmed.

Rhonda L. Granitto Santha, 6401 State Route 534, Farmington, OH 44491 (For Appellant, Russell L. Swegan).

Susan Porter Collins, Trumbull County Children Services Board, 2282 Reeves Road, N.E., Warren, OH 44483 (For Appellee, Trumbull County Children Services Board).

Terry A. Swauger, 1129 Niles-Cortland Road, S.E., Warren, OH 44484 (Guardian ad litem for B.E.S. and B.L.S.).

Emily Clark, P.O. Box 1024, Warren, OH 44482 (Guardian ad litem for H.K.S.).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Russell Swegan, natural father of minor children B.E.S., H.K.S.,

and B.L.S., appeals from the judgment entry of the Trumbull County Court of Common

Pleas, Juvenile Division, terminating his parental rights. We affirm.

{¶2} The children, B.E.S., born February 16, 2003; H.K.S., born February 8,

2004; and B.L.S., born January 6, 2006, lived with their parents, appellant and April

Lucas, until appellant was sent to prison in September 2009. The children were adjudicated dependent, neglected, or abused at various times in two counties before

their case was transferred to the Trumbull County Children Service Board (“TCCSB”).

{¶3} In July 2007, the Ashtabula County Juvenile Court found B.L.S. to be

neglected, but did not remove him. When appellant was released from prison, in March

2010, he did not return to live with the children and their biological mother. In June

2010, the Ashtabula County Juvenile Court found each of the three children to be

dependent and placed them into the care of their maternal aunt who resided in Summit

County. The placement was effective July 2010.

{¶4} On August 25, 2010, the Summit County Juvenile Court issued

emergency orders of temporary custody to the Summit County Children Service Board

due to allegations that the children were acting out in a sexual manner. The record

indicates the children had engaged, amongst each other and with their cousins, in

inappropriate sexual activities. In November 2010, the Summit County Juvenile Court

found all children dependent; the court further found that the children were exhibiting

behavior consistent with sexual abuse; and further found H.K.S. abused. That court

then placed the children into foster care and, because the parents had become

residents of Trumbull County, referred the matter to the Trumbull County Juvenile Court.

{¶5} On January 28, 2011, the Trumbull County Juvenile Court accepted the

transfer and the children were placed into the temporary custody of TCCSB. The

children have remained in foster care since their removal from their aunt’s custody, in

August 2010. Given her particular emotional and behavioral problems, H.K.S. lives with

a separate foster family from the foster family with which B.E.S. and B.L.S. reside.

{¶6} The temporary custody orders came before the court for two, six-month

extensions. On July 6, 2011, the trial court granted the first six-month extension; the

2 court noted there were no compelling reasons for the TCCSB not to pursue permanent

custody. And, on January 12, 2012, the trial court granted a second six-month

extension. The court again noted that there were no compelling reasons for TCCSB not

to pursue permanent custody. TCCSB subsequently requested the temporary orders

be modified to Planned Permanent Living Arrangements (“PPLA”) near the expiration of

the second six-month period.

{¶7} On November 21, 2012, TCCSB filed a motion to terminate the natural

parents’ parental rights of the three children. The natural mother of the children, April

Lucas, voluntarily surrendered her parental rights after the motion was filed. A hearing

was held before the magistrate on December 6 and 7, 2012.

{¶8} At the hearing, testimony demonstrated appellant could neither read nor

spell. He was unemployed and received approximately $720 per month in social

security and disability income. He additionally received $200 in food stamps per month.

He paid $550 per month in rent and other monthly expenses totaled $150.

{¶9} When the case was transferred to Trumbull County, TCCSB established a

case plan for appellant that included completing a drug and alcohol assessment; a

psychological assessment; and completing parenting classes. Appellant had a drug

and alcohol assessment and attended counseling for marijuana. He was recommended

to attend Alcoholics Anonymous, which he did, but eventually stopped. Appellant

entered and completed a parenting program designated “Weathering the Storm.” After

his participation, however, his caseworker concluded he made minimal improvement in

his ability to relate with and understand the children’s special needs. Appellant was

then referred to an intensive parenting program to assess his parenting skills. Becky

3 Crookston, a therapist for Northeast Ohio Behavioral Health, worked with appellant in

the intensive parenting program.

{¶10} Ms. Crookston testified she met with appellant twice individually and once

with the children present. At their first meeting, appellant was asked to fill out basic

intake paperwork, with which he had great difficulty. Appellant was non-responsive to

many questions Ms. Crookston asked and would frequently stare at her with a blank

gaze. According to Ms. Crookston, appellant appeared confused throughout the

session and she had concerns that he was not able to cognitively process the advice

she was providing to assist him in parenting the children.

{¶11} Prior to the second meeting, Ms. Crookston spoke with the children’s

foster parents, who elaborated on each child’s particular problems and needs. In

general, each of the three children had specific, special needs due to the abuse and

neglect they had suffered. They require constant, around-the-clock supervision. They

act out sexually, particularly H.K.S., and engage in “tantruming,” and defiant behavior.

The record indicates they require custodians with special parenting skills to ensure they

feel safe and secure. And, given their particular emotional and behavioral problems, the

children require on-going counseling. Specifically, H.K.S. goes once a week with a

specialized trauma therapist and has an in-home therapist once a week. H.K.S. also

sees a physician twice a month for medication needs. B.E.S. also sees a counselor

once a week and B.L.S. sees a counselor once a month. Both B.E.S. and B.L.S. visit a

physician once a month for their relative medications.

{¶12} During her second session with appellant, Ms. Crookston focused upon

the essentials of parenting, particularly providing for the children’s basic as well as their

special needs. Appellant stated that he had cameras he could use to monitor the

4 children when they are out of his immediate sight. When confronted about transporting

the children for their therapy appointments, appellant, who has no driver’s license,

indicated, in a non-specific fashion, that he could call people for assistance. Ms.

Crookston also inquired into how appellant expected to provide financially for the

children. Appellant stated he would utilize government assistance because he would

receive more food stamps if he had custody of the children.

{¶13} During the third session, Ms. Crookston met first with the children

collectively. The children talked over one another and were anxious to communicate

their past episodes of abuse and trauma-related events. The children expressed

significant concerns for their security and safety. B.E.S., the eldest of the children, was

ultimately able to calm his siblings so they could speak in turn. B.E.S. related a story to

Ms. Crookston pertaining to appellant that caused each child distress. According to

B.E.S., at some point before he went to prison, appellant installed a door with an

outside lock on the entryway to the sibling’s room. B.E.S. stated the door was regularly

locked after the children went to bed and not unlocked until morning. Because of this,

B.E.S. explained the children could not get out of the room to use the bathroom and,

under emergency circumstances, had to relieve themselves on the floor. In the morning,

B.E.S. claimed, the children had to clean the mess without appellant’s assistance. The

children expressed concern that, were they returned to appellant’s custody, similar

things would happen. Ms. Crookston recommended the children express their concerns

to appellant and emphasize their need for appellant to provide a comfortable, secure,

and safe home environment.

{¶14} When appellant was brought in with the children, they expressed their

concerns and, according to Ms. Crookston, he merely stared at them. The children

5 explained they did not want their door locked at night. Appellant, however, became

defensive and deflected their concerns, advising them their mother locked the door, not

him.

{¶15} Although Ms. Crookston attempted to educate appellant on validating the

children’s needs and concerns, appellant appeared confused. And, throughout the

remainder of the session, appellant appeared unable to appreciate the children’s

anxieties. He further evinced an inability to cognitively understand the severity of the

trauma the children had experienced. Ms. Crookston ultimately decided further

sessions with appellant would be unproductive. From her perspective, appellant

required significant assistance to maintain his own basic needs. And, given her

observations during the three sessions, Ms. Crookston did not feel appellant was

capable of truly appreciating the children’s emotional needs, let alone affording them the

attention and support they require.

{¶16} According to appellant’s TCCSB caseworker, Calliope Devengencie,

appellant was following his case plan at the time the motion for permanent custody was

filed. Moreover, appellant expressed interest in learning how to appropriately deal with

them. Ms. Devengencie’s main concern, however, was the lack of progress appellant

had made in appreciating the severity of the children’s behavioral and emotional issues

and, by implication, his inability to understand what would be required of him, both

pragmatically and emotionally, to meet their needs. She underscored that appellant’s

lack of stable transportation made it doubtful he could realistically get the children to

their various counseling and medical appointments. Moreover, despite his genuine love

for the children, Ms. Devengencie opined appellant’s cognitive deficits and limited

6 means render him incapable of parenting children with the special needs these children

exhibit.

{¶17} Appellant, while testifying on cross-examination, conceded he did not think

he could handle custody of all three children. And, while he is aware his children have

emotional and behavioral issues, he did not appreciate their extent or his role in

assisting them in coping with their anxieties. Appellant finally acknowledged he might

not be equipped, personally, to “handle” custody of his children in light of their special

needs.

{¶18} Attorney Terry Swauger, the guardian ad litem (“GAL”) for B.E.S. and

B.L.S., recommended that permanent custody be granted to TCCSB. Atty. Swauger

noted the children require significant attention, care, and need to attend their counseling

appointments. He expressed doubts that appellant would be sufficiently committed to

attending to the children’s needs. Atty. Swauger underscored that appellant did not

attend a pre-scheduled appointment for the GAL to observe him interacting with the

children. Moreover, Atty. Swauger pointed out that appellant had been recently charged

with a felony which, while only a charge and not a conviction, indicated to the GAL

appellant had not made progress in changing his lifestyle since he was released from

prison. According to the GAL, these points provided a strong basis for the conclusion

that appellant is functionally unable to successfully care for B.E.S. and B.L.S., given

their particular emotional and therapeutic needs. Finally, Mr. Swauger emphasized that

the children are strongly bonded to their foster family and B.E.S. specifically requested

that he and his sister be adopted because “we’re safe there.”

{¶19} Attorney Emily Clark was the GAL for H.K.S. Atty. Clark emphasized how

the sexual abuse from which H.K.S. suffered rendered her extremely over sexualized

7 which, in the GAL’s view, could create safety concerns when H.K.S. is around other

children. H.K.S. indicated she would be distressed not to have her father and siblings in

her life; her behavioral problems, however, make the latter impossible in the

foreseeable future. Atty. Clark stated she attempted to meet with appellant twice, but

he cancelled each appointment. The GAL, consequently, did not have an opportunity to

interact with appellant. Atty. Clark opined that, in addition to her therapeutic needs,

H.K.S. requires stability in her life. Given appellant’s lifestyle and ostensible lack of

commitment, however, the GAL did not believe appellant could provide H.K.S. with a

stable home life. Atty. Clark therefore recommended that permanent custody of H.K.S.

be granted to TCCSB.

{¶20} On January 31, 2013, the magistrate issued his decision granting

permanent custody to TCCSB. The magistrate found the children had been in

temporary custody of a public services agency for 22 consecutive months. The

magistrate further found, that, despite reasonable efforts to address the problems

causing their separation from appellant, they cannot be reunified. The court

determined, given the children’s specific needs and appellant’s relative difficulty in

appreciating these needs, that appellant was unsuitable or unfit to be given custody.

Finally, after considering the best interest factors, the court concluded the children’s

best interests would be served by terminating appellant’s parental rights and granting

TCCSB permanent custody. The trial court subsequently overruled appellant’s

objections and, on August 29, 2013, entered judgment adopting the magistrate’s

decision.

{¶21} Appellant now appeals and assigns two errors for this court’s review.

8 {¶22} A parent has a basic civil right to raise his or her child. See e.g. In re

M.J., 11th Dist. Ashtabula No. 2011-A-0007,

, ¶16. This right, however,

is not absolute. A parent’s right to raise his or her child is subordinate to the child’s best

interest. Miller v. Miller,

(1988). Indeed, “a court shall not

consider the effect the granting of permanent custody to the agency would have upon

any parent of the child.” R.C. 2151.414(C).

{¶23} With this in mind, R.C. 2151.414 provides the two-prong analysis a court

must follow in permanent custody proceedings. Pursuant to R.C. 2151.414(B)(1), a trial

court may grant permanent custody if the court determines, by clear and convincing

evidence, that it is in the best interest of the child to grant permanent custody to the

agency and that any of the following apply:

{¶24} (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.

{¶25} (b) The child is abandoned.

9 {¶26} (c) The child is orphaned, and there are no relatives of the child

who are able to take permanent custody.

{¶27} (d) 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 or 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 and, 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.

{¶28} Appellant does not dispute the applicability of subsection (d) in this case

and the record reflects that the children have been in the temporary custody of TCCSB

for at least 12 months of a consecutive 22-month period.

{¶29} After concluding one of the four factors in R.C. 2151.414(B)(1)(a)-(d)

applies, the trial court must decide, by clear and convincing evidence, whether the

award of permanent custody to an agency is in the child’s best interest based upon a

non-exclusive list of relevant factors which are set forth in R.C. 2151.414(D):

{¶30} (a) The interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster caregivers and out-of-home

providers, and any other person who may significantly affect the

child;

10 {¶31} (b) The 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;

{¶32} (c) 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 or 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 and, 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;

{¶33} (d) 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;

{¶34} (e) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

{¶35} “Clear and convincing evidence is more than a mere preponderance of the

evidence; it is evidence sufficient to produce in the mind of the trier of fact a firm belief

or conviction as to the facts sought to be established.” In re Aiken, 11th Dist. Lake No.

2005-L-094,

. Upon appellate review of cases involving the

termination of parental rights, the civil manifest weight of the evidence standard is

applied: “if the trial court’s grant of permanent custody to the county is supported by

11 some competent, credible evidence, we must affirm the court’s decision.” In re J.H.,

11th Dist. Lake No. 2012-L-126,

. Finally, an appellate court

reviews a trial court’s adoption of a magistrate’s decision for an abuse of discretion. In

re Simkins, 11th Dist. Trumbull No. 2002-T-0173,

, ¶10. With the

foregoing standards in mind, we shall proceed to address appellant’s challenges.

{¶36} Appellant’s first assignment of error provides:

{¶37} “The trial court abused its discretion by giving all the weight of evidence to

a therapist’s one-time, short interaction between Appellant and his children to conclude,

pursuant to R.C. 2151.414(D), that Permanent Custody is in the best interest of these

children.”

{¶38} Appellant contends the magistrate erred in giving too much weight to the

testimony of intensive-parenting-program therapist Becky Crookston. Moreover,

appellant contends the magistrate’s findings and conclusions are inconsistent with the

evidence presented at the hearing. We do not agree.

{¶39} In his decision, after entering the “12 in 22” finding, the magistrate

proceeded to make findings pursuant to R.C. 2151.414(E)(1). R.C. 2151.414(E)(1)

provides, in relevant part:

{¶40} (E) In determining at a hearing held pursuant to division (A) of this

section * * * whether a child cannot be placed with either parent

within a reasonable period of time or should not be placed with the

parents, the court shall consider all relevant evidence. If the court

determines, by clear and convincing evidence, at a hearing held

pursuant to division (A) of this section or * * * that one or more of

the following exist as to each of the child’s parents, the court shall

12 enter a finding that the child cannot be placed with either parent

within a reasonable time or should not be placed with either parent:

{¶41} (1) Following the placement of the child outside the child’s home

and notwithstanding reasonable case planning and diligent efforts

by the agency to assist the parents to remedy the problems that

initially caused the child to be placed outside the home, the parent

has failed continuously and repeatedly to substantially remedy the

conditions causing the child to be placed outside the child’s home.

In determining whether the parents have substantially remedied

those conditions, the court shall consider parental utilization of

medical, psychiatric, psychological, and other social and

rehabilitative services and material resources that were made

available to the parents for the purpose of changing parental

conduct to allow them to resume and maintain parental duties.

{¶42} The magistrate acknowledged that it was unnecessary to make findings

pursuant to subsection (E) and the only remaining issue was whether termination of

appellant’s rights would be in the children’s best interest; the magistrate nevertheless

considered the foregoing provision “because it illuminates why the children cannot be

returned to Father today.”

{¶43} To support his conclusion that, despite reasonable efforts to address the

problems causing the removal, the children cannot be returned to appellant, the

magistrate underscored the children’s severe emotional and behavioral issues. In

particular, the court observed that H.K.S., who was seven years old at the time of the

hearing, is the most damaged in terms of sexually acting out and inappropriately

13 touching others. The child requires two-on-one supervision at all times, and cannot, by

virtue of her behavior, be placed in the same home with her siblings. And, while B.E.S.

and B.L.S. can be in the same home, B.E.S. cannot have physical contact with others

because he becomes overly stimulated. The magistrate further found that, given the

cognitive deficiencies appellant exhibits as well as his inability to help the children cope

with their anxieties, he is unable to parent the children “in the state they are found.”

{¶44} The magistrate’s findings and conclusions find support in the specific

testimony of Ms. Crookston and her experiences treating appellant over the course of

three separate sessions. They also are supported by the testimony of appellant’s case

worker, the GAL testimony and reports, and even appellant’s own testimony.

Accordingly, even though the magistrate relied on various details about appellant’s

inability to effectively parent the children taken from Ms. Crookston’s testimony, this

does not render the findings against the weight of the evidence. To the contrary, the

manifest weight of the evidence was consistent with Ms. Crookston’s testimony.

{¶45} Prior to being sent to the intensive parenting program administered by Ms.

Crookston, appellant completed the “Weathering the Storm” parenting course. From the

commencement through its completion, however, appellant made only “minimal

improvements” in his parenting ability. Further, although appellant only had three

sessions with Ms. Crookston, these interactions were sufficient for her to formulate an

opinion that appellant needed more than intensive parent–child interaction therapy. In

her view, appellant’s cognitive deficits and lack of any significant support system

indicated he would need more extensive assistance to maintain his own basic needs, let

alone the needs, both practical and emotional, of the three children.

14 {¶46} Ms. Crookston underscored appellant’s inability to validate the children’s

emotions and properly interact with them. Appellant’s deficiencies in this area,

however, were only part of her justification for terminating therapy. The overall tenor of

her testimony and letter to TCCSB demonstrate that Ms. Crookston, in her professional

estimation, believed, no matter how many sessions she had, appellant would not likely

improve; and, even if he made some strides in his parenting skills, he would not have

the means to realistically provide the children with the attention and stability necessary

for their upbringing. The record is simply devoid of any evidence that appellant was

making meaningful progress in his ability to parent the subject children. And, at the

termination hearing, appellant expressly acknowledged these points. When questioned

about whether he would have the requisite abilities to care for the children in light of

their special needs, he responded in the negative. The weight of the evidence is

consistent with Ms. Crookston’s testimony and the magistrate did not err in relying on

the evidence to which she attested in arriving at its decision.

{¶47} Appellant asserts, however, the record demonstrates he was progressing

in his case plan and, as a result, takes issue with the trial court’s conclusion that he was

unable to complete his case plan and would be unable to do so within a reasonable time

despite TCSSB’s reasonable efforts to assist him. We do not agree.

{¶48} Appellant’s caseworker, Calliope Devengencie, provided testimony on

how TCCSB assisted appellant in meeting his case plan goals. Ms. Devengencie

acknowledged that appellant had made an effort to meet his case plan goals. He

completed a drug and alcohol screen, completed anger management, and completed a

psychological assessment. Pursuant to the psychological assessment, however,

appellant had a poor understanding of child development and lacked empathy for

15 children. Given these problems, Ms. Devengencie stated TCCSB enrolled him in the

“Weathering the Storm” parenting class and later paid for his visits with Ms. Crookston.

The record reflects, however, appellant made little to no real progress in his ability to

appreciate or relate with the children. And, concerned about his ability to meet his own

basic needs, TCCSB, per Ms. Crookston’s recommendation, suggested appellant

contact Trumbull County Developmental Disabilities Board for further assistance. Ms.

Devengencie testified that she would have helped appellant with this had he expressed

an interest; he, however, did not follow up with the suggestion.

{¶49} Although appellant was adhering to his case plan, the record does not

indicate he was making progress in the areas TCCSB found most crucial; namely, his

ability to appreciate and validate the emotional and therapeutic needs of the children, as

well as his ability to practically understand the resources it would take to effectively care

for the children. In fact, from the inception of TCCSB’s involvement in the case,

appellant’s skills in these areas seemed to remain in stasis. This is not, however, a

function of TCCSB’s lassitude. To the contrary, TCCSB made reasonable efforts to

assist appellant in improving his parenting skills and abilities to connect effectively with

the children. To wit, TCCSB recommended, sought out, and paid for parenting classes

and intensive parental interaction classes. Although the intensive parental interaction

therapy was terminated after three sessions, it was ended at the recommendation of

appellant’s therapist. And the evidence submitted at the hearing indicates this decision

was based upon Ms. Crookston’s professional opinion that appellant was not making

progress in a way that would suggest the therapy sessions would be of any benefit even

if they continued.

16 {¶50} Moreover, even when the foregoing programs did not work out, TCCSB

urged appellant to contact the Trumbull County Developmental Disabilities Board for

further assistance. Something appellant’s caseworker testified she was willing to assist

him with if he decided to pursue it. Ultimately, however, he apparently passed on this

option. Viewed as a whole, the evidence demonstrates TCCSB made reasonable

efforts to assist appellant in reunifying with his children; in the end, however, the

magistrate concluded this possibility could not happen in a reasonable time. We hold

this conclusion is consistent with the weight of the evidence.

{¶51} Overall, the record demonstrates appellant, given his intellectual and

emotional limitations, was unable to make sufficient progress during the course of the

case that would realistically indicate the children, each with their own personal

emotional and behavioral issues, could be returned to him within a reasonable time.

TCCSB provided appellant with reasonable opportunities to understand proper

parenting skills and enhance his parental abilities but, as of the date of the hearing,

appellant had shown, at best, minimal improvement. Moreover, the evidence

demonstrated that appellant does not have a job, is living on government assistance,

and does not have a driver’s license or a specific identified means of consistent

transportation. In light of the surrounding circumstances, appellant even testified he

knew he may not be equipped to care for the children, given their special needs. With

these facts in mind, we hold the magistrate did not err in concluding that, despite

reasonable efforts to address the issues keeping appellant and the children from being

reunified, reunification is not a viable option. We therefore hold the trial court did not

abuse its discretion in adopting the magistrate’s decision in this regard.

{¶52} Appellant’s first assignment of error is without merit.

17 {¶53} Appellant’s second assignment of error states:

{¶54} “The trial court ignored the best interest mandate of R.C. 2151.414(D)(1)

subsection (d) requiring a determination that a legally secure placement can/cannot be

achieved without the grant of Permanent Custody; the same court ordered PPLA 6

months earlier, same facts, in the children’s best interests.”

{¶55} Under this assignment of error, appellant appears to assert the

circumstances that lead to the children being placed into a PPLA approximately six

months prior to the entry of judgment terminating appellant’s parental rights were

essentially the same as those leading to the court’s decision to terminate appellant’s

parental rights. According to appellant, however, the children are still in custodial

“limbo.” Thus, in appellant’s view, “the only thing this permanent custody ruling did was

sever these children’s biological identity.” We do not agree.

{¶56} Preliminarily, the permanent custody judgment did nothing to affect the

children’s biological identity; rather, it functioned to terminate appellant’s rights as a

caregiver to the children. The judgment was neither premised upon appellant’s

deviation or disregard of his case plan nor was it based upon appellant’s lack of interest

in the children. Rather, it was premised upon appellant’s inability to provide proper and

stable care for children with specialized needs; i.e., it was based upon the children’s

best interests. That the circumstances had not changed since the children were placed

into the PPLA, arguably provides a stronger foundation for the trial court’s judgment

regarding the children’s need for a legally secure, permanent placement.

{¶57} A PPLA is “an order of a juvenile court pursuant to which both of the

following apply: (a) The court gives legal custody of a child to a public children services

agency * * * without the termination of parental rights[;] (b) The order permits the agency

18 to make an appropriate placement of the child and to enter into a written agreement with

a foster care provider or with another person or agency with whom the child is placed.”

R.C. 2151.011(B)(39). “Temporary Custody” is defined as the “legal custody of a child

who is removed from the child’s home, which custody may be terminated at any time at

the discretion of the court * * *.” R.C. 2151.011(B)(52). Whether a child is in a PPLA or

in an agency’s temporary custody, the supervising authority for the child is an agency.

In effect, neither custodial status, whether a PPLA or temporary custody, prohibits an

agency from seeking permanent custody of a child under R.C. 2151.413. In re J.I., 12th

Dist. Preble No. CA2005-05-008,

.

{¶58} The record demonstrates the children require a safe and stable home life;

one in which they are able to address their emotional and behavioral problems, through

consistent supervision and therapeutic interaction. The magistrate concluded that the

children could not be reunified with appellant within a reasonable time, despite

reasonable efforts, because appellant was unfit. This finding was premised upon

appellant’s cognitive deficits, his inability to effectively relate with the children, and

practical considerations, such as the likelihood that he would be unable to provide for

the children’s basic needs, which include an intensive counseling and therapeutic

regimen. We held under appellant’s first assignment of error that this conclusion was

consistent with the weight of the evidence. Further, the children were in the temporary

custody of a state agency for three years from the inception of the case through the final

order of termination. A significant period of time when, as here, the children require a

stable, permanent living arrangement. Viewing these points together, we hold that the

magistrate’s decision that granting permanent custody to TCCSB is not against the

19 weight of the evidence. By implication, we therefore conclude that the trial court did not

abuse its discretion in adopting the magistrate’s decision.

{¶59} Appellant’s second assignment of error is without merit.

{¶60} For the reasons discussed in this opinion, the judgment of the Trumbull

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

TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

_______________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶61} Finding merit in the second assignment of error, I would reverse and

remand.

{¶62} “[T]he termination of parental rights is ‘(* * *) the family law equivalent of

the death penalty (* * *).’ In re Phillips, 11th Dist. No. 2005-A-0020,

, citing In re Hoffman,

,

, * * *. See, also, In

re Murray (1990),

, * * * (parents have a ‘fundamental liberty

interest’ in the care, custody, and management of their children, and an ‘essential’ and

‘basic civil right’ to raise them). Accordingly, when the state initiates a permanent

custody proceeding, parents must be provided with fundamentally fair procedures in

accordance with the due process provisions of the Fourteenth Amendment to the United

States Constitution, and Section 16, Article I of the Ohio Constitution. In re Sheffey,

,

, * * *. This includes effective assistance of

counsel. State ex rel. Heller v. Miller (1980),

, * * *, paragraph two of the

20 syllabus; In re Ridenour, 11th Dist. Nos. 2004-L-168, and 2004-L-169, and 2004-L-170,

; In re Brewster (Mar. 25, 1994), 11th Dist. No. 91-P-2365,

, at 3, citing Jones v. Lucas Cty. Children Services Bd. (1988),

, * * *.” (Parallel citations omitted.) In re Roque, 11th Dist. Trumbull

No. 2005-T-0138,

.

{¶63} The test for effective assistance of counsel in termination of parental rights

proceedings is the same as in criminal proceedings. In re C.R., V.R., 6th Dist. Lucas

No. L-13-1110,

, ¶21, citing In re Heston,

(1st Dist. 1998). “Therefore, in order to prevail on a claim of ineffective assistance of

counsel, appellant must show that counsel’s performance fell below an objective

standard of reasonableness and that prejudice arose from such performance. State v.

Reynolds,

, * * * (1998), citing Strickland v. Washington,

, * * * (1984).”

{¶64} In this case, in camera interviews with the three children were initially

conducted by the trial court’s magistrate December 26, 2012. B.E.S. indicated he no

longer wished to see appellant. H.K.S. and B.L.S. strongly expressed their desire to

continue a relationship with him. At this time, all three children had one guardian ad

litem. At hearing, this guardian ad litem did not testify regarding the wishes of H.K.S.

and B.L.S., though their desire to continue seeing appellant conflicted with his best

interest analysis, which was in favor of terminating appellant’s parental rights.

{¶65} Thereafter, two new guardians ad litem were appointed for the children –

one for B.E.S. and B.L.S., and one for H.K.S. July 25, 2013, the trial court itself

conducted an in camera interview of the first two children. B.E.S. continued to express

no particular interest in seeing appellant; B.L.S. remained adamant she did wish to

21 continue their relationship. The new guardian ad litem for these children failed to testify

regarding their wishes at hearing, even though he advocated terminating appellant’s

parental rights, contrary to the wishes of B.L.S.

{¶66} July 29, 2013, the trial court conducted a second in camera interview with

H.K.S., in the presence of her new guardian. H.K.S. continued to express a strong

desire to see appellant. At hearing, the new guardian ad litem did testify regarding the

wishes of H.K.S., even though it conflicted with her best interest analysis, which, again,

supported termination of appellant’s parental rights.

{¶67} At oral argument before this court, it was revealed that appellant’s counsel

had never read the in camera interviews prior to hearing in the trial court.

{¶68} I respectfully believe that failure by counsel for a parent to familiarize

himself or herself with the contents of in camera interviews of children in a termination

of parental rights case meets the first prong of the Strickland test: it falls below an

objective standard of reasonableness. Further, I would hold that such a failure meets

the second prong of the Strickland test as a matter of law: it is necessarily prejudicial,

since it means counsel for the parent whose fundamental rights are at risk is not

properly prepared to present to the trial court the wishes of the child, a vital part of the

best interest analysis in these cases. R.C. 2151.414(D)(1)(b).

{¶69} Further, I believe the rights of H.K.S. and B.L.S. were violated in this case,

through failure to appoint them separate counsel. The Supreme Court of Ohio has held

that R.C. 2151.352, and Juv.R. 4(A) and 2(Y) mandate appointment of counsel for

children under certain circumstances in termination of parental rights cases, since they

are parties to the case. In re Williams,

,

, syllabus.

Sup.R. 48(D)(8) requires that guardians ad litem request appointment of counsel for

22 children when the guardian knows his or her interpretation of a child’s best interest

conflicts with that of the child. In this case, the guardians knew their interpretation of

best interest conflicted with those of H.K.S. and B.L.S., as did the trial court. Ohio case

law establishes that in such situations, the trial court should appoint separate counsel.

See, e.g., Walton v. Walton, 6th Dist. Wood No. WD-06-066,

(interpreting Civ.R. 75(B)(2)).

{¶70} I would also find the failure to appoint counsel for H.K.S. and B.L.S.

violated their constitutional rights to due process.

{¶71} “The Fourteenth Amendment to the United States Constitution

provides that state governments may not ‘deprive any person of life, liberty, or

property, without due process of law.’ The Ohio Constitution guarantees ‘due

course of law,’ which is virtually the same as the Due Process Clause of the

Fourteenth Amendment. In re Hua (1980),

, * * *; see Section

16, Article I of the Ohio Constitution. ‘(Procedural) (d)ue process of law involves the

essential rights of notice, hearing and the opportunity to be heard before a

competent tribunal.’ Bakaitis v. Bakaitis (May 23, 1983), Montgomery App. No.

7997,

, citing State v. Edwards (1952),

, * * *, cert. denied

, * * *. Essentially, ‘(a)mple opportunity must be

afforded the parties in appropriate cases to defend, enforce or protect their rights

through presentation of their own evidence, confrontation and cross-examination of

adverse witnesses, and oral argument.’ Bakaitis v. Bakaitis (May 23, 1983),

Montgomery App. No. 7997,

, citing [State ex rel.

Wright v.] Morrison, [

(1947)]; Goldberg v. Kelly (1970),

254, * * *.” (Parallel citations omitted.) Price v. Nixon, 2d Dist. Clark No. 2010-CA-

058,

.

{¶72} “Juv.R. 1(B) provides that the Juvenile Rules ‘shall be liberally

interpreted and construed so as to effectuate (* * *) the just determination of every

juvenile court proceeding by ensuring the parties a fair hearing and the recognition

and enforcement of their constitutional and other legal rights.’ Once we accept the

premise that the subject child is a party whose due process rights are entitled to

protection, peripheral practical considerations fade in importance.”

.

{¶73} Neither the Fourteenth Amendment to the U.S. Constitution, nor

Article I, Section 16 of the Ohio Constitution differentiates between the due process

rights of persons above, or below, the age of majority. A termination of parental

rights proceedings necessarily involves some of the most precious rights of minors,

and is a process to which the full protections of due process should apply. I

respectfully believe it was incumbent on the trial court to appoint counsel for H.K.S.

and B.L.S. to protect their due process rights in this case, given their consistently

expressed wishes to maintain contact with their father.

{¶74} I respectfully dissent.

24