In re D.V.

[Cite as In re D.V., 

.]




                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO



 IN RE: D.V. AND J.A.                    :            APPEAL NO. C-220423
                                                       TRIAL NO. F17-2227z
                                         :

                                         :                 O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 21, 2022




Christopher P. Kapsal for Appellant Mother,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and
Family Services,

Kimberly V. Thomas, Guardian Ad Litem for the minor children.
                 OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.

       {¶1}   Appellant mother appeals from the decision of the Hamilton County

Juvenile Court granting permanent custody of her two children, D.V. and J.A., to the

Hamilton County Department of Job and Family Services (“HCJFS”) after a previous

remand from this court. We find no merit in her three assignments of error, and we

affirm the juvenile court’s judgment.

       {¶2}   The juvenile court originally granted permanent custody of the two

children to HCJFS on October 28, 2021. Both mother and D.V.’s father appealed that

decision. In In re D.V., 1st Dist. Hamilton Nos. C-210580 and C-210624, 2022-Ohio-

1024, we affirmed the juvenile court’s decision as to D.V.’s father. But we reversed it

in part as to the termination of mother’s parental rights. We held that the juvenile

court had failed to consider the children’s wishes as required by R.C.

2151.414(D)(1)(b). Consequently, we remanded the cause to the juvenile court to

consider that factor. We declined to address mother’s remaining assignments of error.

       {¶3}   On remand, mother filed a motion for an in camera interview with both

children. She also asked the court to determine if the appointment of an attorney for

one or both children would be appropriate under In re Williams, 

,

, 

.

       {¶4}   The guardian ad litem (“GAL”) filed an “Updated PC Report” for J.A.,

who was then nine years old. She stated that when she had spoken with J.A. on April

13, 2022, he did not mention his wishes regarding placement, but he brought up

having a sibling visit. On April 26, 2022, she had a subsequent discussion with J.A.

and his foster mother. His foster mother stated that “he had only started talking about

‘missing’ his mother in the last few weeks.” J.A. confirmed that he had started to miss

his mother and wished that he could speak with her on the phone. He later indicated

that he wanted to live with his mother. When the GAL asked him why he had “changed

his mind from what he had previously indicated,” he stated that he did not think that


                                              2
                  OHIO FIRST DISTRICT COURT OF APPEALS



his mother was still involved with D.V.’s father. He said he would feel safe with his

mother if she was no longer with D.V.’s father. J.A. stated that he missed his brother

every day and that made him sad. He was happy to have sibling visits. Finally, he had

stated that he would be “okay” speaking with the judge in camera.

       {¶5}   The court held a brief hearing. It indicated that it had reviewed the

GAL’s updated report for J.A. The court then asked if D.V. was too young to express

his wishes, and the GAL said that he was. When the court asked if anyone had anything

to add, none of the parties said that they did. The court took the matter under

advisement and said that it would issue a decision as to whether to interview J.A. in

camera and whether it should appoint an In re Williams attorney.

       {¶6}   In its subsequent entry, the juvenile court stated that it was adopting

“the same Findings of Fact in all regards other than the Children’s wishes.” It

discussed the GAL’s updated report. It found, “After considering [J.A.’s] wishes, the

Court determines that the best interests of the children are served by a grant of

permanent custody of the children to HCJFS,” due to mother’s “lack of protective

capacity for her children.” The court adopted the magistrate’s previous decision and

granted HCJFS’s motion for permanent custody. This appeal followed.

       {¶7}   In her first assignment of error, mother contends that the juvenile court

erred in granting permanent custody to HCJFS when it failed to conduct an in camera

interview with J.A. and to appoint him independent counsel. She argues that because

J.A. had indicated that his wishes conflicted with the GAL’s recommendation of

permanent custody, the court should have at a minimum, conducted an in camera

interview to determine the need for independent counsel. This assignment of error is

not well taken.

       {¶8}   Under R.C. 2151.414(D)(1)(b), when determining the child’s best

interest, the juvenile court must consider “[t]he wishes of the child, as expressed

directly by the child or through the child’s guardian ad litem, with due regard for the


                                              3
                   OHIO FIRST DISTRICT COURT OF APPEALS



maturity of the child.” In the previous appeal, we noted that the juvenile court had

stated, “[T]he wishes of the children were not expressed to the court.” We held that

that statement showed the court had failed to consider the children’s wishes, which

was reversible error. In re D.V., 1st Dist. Hamilton Nos. C-210580 and C-210624,

. We stated that the record “must reflect some investigation

into the child’s wishes. ‘A trial court ordinarily errs if it completely fails to address a

child’s wishes.’ ” Id. at ¶ 21, quoting In re S.M., 4th Dist. Highland No. 14CA4, 2014-

Ohio-2961, ¶ 32.

       {¶9}    In In re Williams, the Ohio Supreme Court held that a child who is the

subject of a juvenile court proceeding to terminate parental rights is a party to the

proceeding and is entitled to independent counsel in certain circumstances. In re

Williams, 

, 

, 

, at syllabus. Those

circumstances occur when the child’s wishes conflict with the GAL’s recommendation.

In re D.D., 1st Dist. Hamilton No. C-190387, 

; In re Walling, 1st

Dist. Hamilton No. C-050646, 

. When those circumstances arise,

the trial court should conduct an in camera interview with the child, giving due

consideration to the child’s maturity level, to determine whether independent counsel

is needed. In re D.D. at ¶ 10; In re Walling at ¶ 24.

       {¶10} On remand, the juvenile court conducted an investigation into the

children’s wishes. The GAL had recommended that the court grant permanent

custody of the children to HCJFS. The court determined that D.V. was too young to

express his wishes, and all the parties agreed. J.A. never expressed a consistent desire

to live with his mother. He had recently stated that he missed his mother and would

feel safe living with her if she was no longer with D.V.’s father. Thus, his desire to live

with his mother was conditioned on whether mother was still involved with D.V.’s

father. Mother has continued to maintain her relationship with D.V.’s father despite

repeated incidents of domestic violence, and she has failed to protect her children.


                                                4
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} Because J.A’.s wishes were not in conflict with the GAL’s

recommendation, the juvenile court did not err in failing to appoint independent

counsel for J.A. See In re D.D. at ¶ 12-13; In re A.J.O., 1st Dist. Hamilton No. C-

180680, 

; In re Graham, 

, 2006-Ohio-

3170, 

. Further, it did not abuse its discretion in failing to

conduct an in camera interview. The trial court has discretion to accept the testimony

of the GAL about the child’s wishes rather than hearing a direct expression of those

wishes made by the child. In re C.F., 

, 

, 

, ¶ 56. Consequently, we overrule mother’s first assignment of error.

       {¶12} In her second assignment of error, mother contends that the juvenile

court erred in finding that permanent custody was in the children’s best interest when

the wishes of D.V., the younger child, were not considered. This assignment of error

is not well taken.

       {¶13} At the time of the hearing, D.V. was four years old. Although in her

motion, mother had asked that D.V. be included in the in camera interview, she did

not object to the court’s determination that D.V. was too young to express his wishes.

The court specifically asked all the parties if they had something to add, and mother’s

counsel said, “No.” Consequently, she forfeited all but plain error. See State v. Rogers,

, 

, 

. Further, there was no

evidence to refute the court’s statement that D.V. was too young to express his wishes

or that D.V. had ever expressed that he wished to live with his mother contrary to the

GAL’s recommendation.

       {¶14}    The juvenile court properly considers the GAL’s recommendation as

part of the R.C. 2151.414(D)(1)(b) analysis where the children are too young to express

their wishes. In re B/K Children, 1st Dist. Hamilton No. C-190681, 

. When a child lacks the maturity to express his or her wishes and nothing else

otherwise indicates that the child’s wishes conflict with the guardian ad litem, an


                                               5
                   OHIO FIRST DISTRICT COURT OF APPEALS



attorney need not be appointed to represent the child. In re Qu.W., 11th Dist.

Ashtabula No. 2015-A-0016, 

, ¶ 61; In re L.W., 9th Dist. Summit Nos.

26861 and 26871, 

. Further, when a child is unable to express a

position for an attorney to advocate for a particular course of action, any error in not

appointing an attorney would be harmless since the GAL is already advocating what is

in the child’s best interest. In re T.J., 2d Dist. Montgomery No. 23032, 2009-Ohio-

1290, ¶ 10.     Consequently, the trial court properly considered D.V.’s wishes as

conveyed by the GAL, and we overrule mother’s second assignment of error.

        {¶15} In her third assignment of error, mother contends that the juvenile

court erred in finding that granting permanent custody of the children to HCJFS was

in their best interest. She argues that the court’s judgment was not supported by

sufficient evidence and that it was against the manifest weight of the evidence. This

assignment of error is not well taken.

        {¶16} R.C. 2151.414(B) provides that the juvenile court may grant permanent

custody of a child to a public children services agency if it finds by clear and convincing

evidence that (1) permanent custody is in the child’s best interest and (2) one of the

conditions in R.C. 2151.414(B)(1)(a) through (e) applies. The record shows by clear

and convincing evidence that the children had been in the custody of HCJFS for more

than 12 months of a consecutive 22-month period. Therefore, the condition in R.C.

2151.414(B)(1)(d) was met. See In re J.R., 1st Dist. Hamilton No. C-190342, 2019-

Ohio-3500. ¶ 26-29; In re J.G.S., 1st Dist. Hamilton Nos. C-180611 and C-180619,

. We need not determine whether any of the other conditions

apply. See In re B/K Children, 1st Dist. Hamilton No. C-190681, 

; In re J.R. at ¶ 29.

        {¶17} The only issue remaining was whether granting permanent custody of

the children to HCJFS was in their best interest. See In re J.G.S. at ¶ 38. The record

shows that once the trial court had considered the children’s wishes, it had considered


                                                6
                  OHIO FIRST DISTRICT COURT OF APPEALS



all the relevant factors. See In re M., R., & H. Children, 1st Dist. Hamilton No. C-

170008, 

, ¶ 23 and 25.

       {¶18} Clear and convincing evidence supported the trial court’s determination

that granting permanent custody was in the children’s best interest. Therefore, the

evidence was sufficient to support an award of custody to HCJFS. See In re D.V., 1st

Dist. Hamilton Nos. C-210580 and C-210624, 

; In re

J.G.S. at ¶ 40; In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-

3247, ¶ 15.

       {¶19} Further, after reviewing the record we cannot hold that the trial court

lost its way and created such a manifest miscarriage of justice that we must reverse the

judgment and order a new trial. Therefore, the judgment was not against the manifest

weight of the evidence. See Eastley v. Volkman, 

, 

,

, ¶ 12; In re D.V. at ¶ 32. We overrule mother’s third assignment of

error and affirm the trial court’s judgment.

                                                                   Judgment affirmed.



ZAYAS, P.J., and CROUSE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                               7