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In re L.S.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 26, 2019

IN RE L.S. A Minor Child [Appeal by L.H., Father]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD17905916

         JUDGMENT: AFFIRMED

          Erin R. Flanagan, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Laura M. Brewster, Assistant Prosecuting Attorney, for appellee.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶ 1} The appellant, L.H., appeals an order from juvenile court terminating parental rights of his son, L.S., and placing L.S. in the permanent custody of Cuyahoga County Department of Children and Family Services ("CCDCFS"). L.H. asks this court to reverse the juvenile court's decision and remand for further proceedings. As required by App.R. 11.1(D), this court has expedited the hearing and disposition of this appeal. We affirm.

         I. Facts and Procedural History

         {¶ 2} L.S. was born in July 2016, and was initially removed from the care of his mother due to her mental health and substance abuse issues. As a result, L.H. was granted legal custody of L.S. in January 2017. L.S. has several medical issues that include a cleft palate and Pierre-Robin sequence. L.S. also requires a gastric feeding tube. During his time with L.H., L.S. was hospitalized twice for non-organic failure to thrive. When L.S. was ten months old, he weighed only 12 pounds. In April 2017, less than three months after L.H. was awarded legal custody, CCDCFS filed a complaint asking the court to grant temporary custody of L.S. to one of L.H.'s relatives, S.H. At an adjudicatory hearing on July 18, 2017, CCDCFS argued that L.H. had difficulty following up with medical and other services necessary to address L.S.'s medical needs. At that hearing, L.S. was committed to the temporary custody of S.H.

         {¶ 3} Three days after L.S. was placed in the temporary custody of S.H., CCDCFS filed a motion requesting an order of emergency custody and an order to modify temporary custody from S.H. to CCDCFS. CCDCFS argues in its motions that L.H. had removed L.S. from S.H.'s care without her permission and then failed to inform S.H. of L.S.'s location. CCDCFS also raised concerns about L.H.'s substance abuse issues, and asked for an assessment. Emergency custody was awarded to CCDCFS on August 11, 2017, and temporary custody was awarded on January 8, 2018.

         {¶ 4} On September 26, 2017, CCDCFS filed an amended case plan where L.H. was expected to follow through with L.S.'s medical appointments, complete a drug and alcohol assessment, a psychological evaluation, and comply with any resulting recommendations. In a motion for a first extension of temporary custody filed on March 16, 2018, CCDCFS noted that L.H. still needed to complete an intensive outpatient alcohol treatment program.

         {¶ 5 } On July 19, 2018, CCDCFS filed a motion to modify temporary custody to permanent custody after amending the case plan to reflect an additional objective of obtaining safe and stable housing. L.H. objected to the requirement that he attend intensive outpatient drug treatment. Participation in intensive outpatient treatment was also recommended as a result of an evaluation conducted by the Juvenile Court's Diagnostic Clinic. L.H. later withdrew his objection, and in an order journalized November 2, 2018, the trial court instructed L.H. to comply with the recommendation of his substance abuse assessment.

         {¶ 6} On January 15, 2019, CCDCFS requested an order from the trial court authorizing L.S. to receive therapeutic treatment through the Help Me Grow organization. Although CCDCFS held temporary custody of L.S., Help Me Grow required L.H.'s approval since he was L.S.'s legal guardian. L.H. refused to approve the therapeutic treatment because he did not believe therapy was necessary. The trial court overruled L.H.'s objection and ordered L.S. to receive the recommended therapy through Help Me Grow.

         {¶ 7} On April 26, 2019, trial was held to determine permanent custody of L.S. in response to CCDCFS's motion. In an order journalized May 14, 2019, the trial court awarded permanent custody to CCDCFS. L.H. appeals this ruling assigning two errors for our review:

I. The trial court erred to appellant's prejudice by relying on the Guardian ad Litem's report and recommendation where the evidence demonstrated that her investigation failed to meet the basic requirements of Local Rule 18 of the juvenile court and Rule 48 of the Rules of Superintendence; and
II. The trial court's award of permanent custody to CCDCFS was not supported by clear and convincing evidence and was against the manifest weight of the evidence.

         II. Guardian ad Litem Report

         A. Whether the Guardian ad Litem's Investigation, Report and Recommendation Substantially Complied with the Applicable Local Juvenile Rules and the Ohio Rules of Superintendence

         {¶ 8} In L.H. first assignment of error, he argues that the trial court erred by relying on the guardian ad litem's report, which failed to meet the requirements of the local rules. It has previously been determined that,

[t]he role of a guardian ad litem in a permanent custody proceeding is to protect the child's interest, to ensure that the child's interests are represented throughout the proceedings and to assist the juvenile court in its determination of what is in the child's best interest. See, e.g., In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14, citing R.C. 2151.281(B) and Sup.R. 48(B)(1). This is accomplished by the guardian ad litem conducting an investigation of the child's situation and then making recommendations to the court as to what the guardian ad litem believes would be in the child's best interest. In re J.C., 4th Dist. Adams No. 07CA833, 2007-Ohio-3781, ¶ 13.

In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 47.

         {¶ 9} R.C. 2151.281, Sup.R. 48, and Juv.Loc.R. 15, 17, and 18 address the role and responsibilities of a guardian ad litem. R.C. 2151.281(I) provides that a guardian ad litem

shall perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child in accordance with rules adopted by the supreme court.
{¶ 10} Sup.R. 48(D) provides, in relevant part:
In order to provide the court with relevant information and an informed recommendation regarding the child's best interest, a guardian ad litem shall perform, at a minimum, the responsibilities stated in this division, unless impracticable or inadvisable to do so.
* * *
(13) A guardian ad litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the court with relevant information and an informed recommendation as to the child's best interest, a guardian ad litem shall, at a minimum, do the following, unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each parent, foster parent, guardian or physical custodian and conduct at least one interview with the child where none of these individuals is present;
(b) Visit the child at his or her residence in accordance with any standards established by the court in which the guardian ad litem is appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and other significant individuals who may have relevant knowledge regarding the issues of the case;
(e) Review pleadings and other relevant court documents in the case in which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative records pertaining to the child and, if appropriate, to the child's family or to other parties in the case;
(g) Interview school personnel, medical and mental health providers, child protective services workers and relevant court personnel and obtain copies of relevant records;
(h) Recommend that the court order psychological evaluations, mental health and/or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; and
(i) Perform any other investigation necessary to make an informed recommendation regarding the best ...

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