[Cite as In re T.B. , 2020-Ohio-4040.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: T.B. A.B. C.A. Nos. 29560 29564

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 17-09-742 DN 17-09-743

DECISION AND JOURNAL ENTRY Dated: August 12, 2020

CARR, Judge. {¶1} Appellants Mother and Father appeal the judgment of the Summit County Court of Common Pleas that terminated their parental rights and placed t he children T.B. and A.B. in the permanent custody of Summit County Children Services Board (“CS B” or “the agency”). This

Court affirms.

I. {¶2} Mother and Father are the biological parents of T.B. (d.o.b. 7/ 26/13) and A.B. (d.o.b. 4/16/17). Shortly after A.B. was born, Mother, Father, and the children moved in with the children’s maternal grandparents against the wishes of the gran dparents. Mother and Father did not have jobs and refused to contribute financially to the hous ehold, where Mother’s two older children also lived in the legal custody of the grandparents. CSB investigated the home situation based on a referral. Thereafter, the agency filed a complaint alleging that T.B. and A.B. were2

abused (endangered), neglected, and dependent children. Concer ns alleged in the complaints included intimate partner violence between Mother and Father, d omestic violence by Father towards the children, suspected drug use by both parents, and M other’s and Father’s lack of financial and housing stability. The grandparents were leasing the home on a month-to-month basis and they planned to leave that residence. T.B. and A.B. were removed pursuant to an emergency order of temporary custody. {¶3} Mother and Father later both waived their rights to hearings on the issues of adjudication and disposition. Aft er the parents stipulated to the allegations in the complaints, the juvenile court adjudicated T.B. and A.B. dependent children. C SB withdrew its allegations of abuse and neglect. The parties agreed to an initial dispositio n placing the children in the temporary custody of the agency. Mother and Father were permitted two ho urs of supervised visitation each

week. {¶4} The juvenile court adopted CSB’s case plan as the order of the court. Mother’s first objective was to obtain a mental health assessment and follow a ll recommendations. In addition, Mother and Father both had objectives to (1) obtain substance a buse assessments, engage in counseling if recomme nded, and submit to drug screens; (2) obta in and maintain clean, safe, stable, and independent housing with w orking utilities; (3) and obtain employment or public assistance to demonstrate the ability to meet the children’s basic needs. {¶5} At the first review hearing, evidence showed that Mother was on a wait-list for housing, that she had been referred for mental health services, and that her visits with the children were going well. Father was employed but lacked housing. Beca use Father had tested positive for drugs, he was ordered to submit to a second substance abuse assessment. He failed to respond3

to that requirement. Father had only visited with the children twice since their removal. The juvenile court mainta ined the children in the temporary custody of the agency. {¶6} At the second review hearing, Father’s attorney requested permi ssion to withdraw based on his inability to have any contact with Father despite the attorney’s repeated efforts. The trial court granted the request. The evidence at the hearing s howed that Father was refusing to submit to drug screens or obtain the ordered substance abuse as sessment. He had not attended any

visits with the children for m onths. Mother’s whereabouts were unknown and she had missed her last two scheduled visits with the children. The juvenile cour t maintained the children in the temporary custody of CSB. {¶7} Two months later, Mother filed a motion for a six-month extensi on of temporary custody to allow her additional time to work on her case plan o bjectives. CSB filed a motion for permanent custody. The guardian ad litem notified the trial co urt regarding a conflict between his recommendation for permanent custody and T.B.’s desire to live with Mother and Father together. Another guardian ad litem was a ppointed to represent the best i nterest of the children, and the prior guardian ad litem assumed the role as the attorney for the chil dren. {¶8} The final dispositional hearing was heard over the course of tw o days on April 29, 2019, and August 1, 2019. The guardian ad litem did not attend the first day of the hearing due to illness and, therefore, did not hear the testimony of ten of th e agency’s witnesses. On the second day of the hearing, the CSB caseworker testified briefly and th e guardian ad litem gave his report. At the conclusion of the hearing, the visiting judge directed t he parties to file closing briefs and proposed findings of fact and conclusions of law. Only CSB com plied and filed proposed findings

of fact and conclusions of law. T he juvenile court issued a ju dgment in which it wrote that it had had “the opportunity to fully c onsider the record including the pleadings, evidence and the GAL’s4

report * * *.” The trial court then approved and adopted the a gency’s proposed findings of fact

and conclusions of law “as its own in this case.” 1 “Based upon same,” the j uvenile court granted CSB’s motion for permanent custody and terminated Mother’s and Father’s parental rights. Mother and Father each filed notices of appeal. Mother raises two assignments of error for this Court’s consideration, while Fat her raises three assignments of error. This Court consolidates some assignments of error where they implicate identical issues

. II.

MOTHER’S ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR AND VIOLATED MOTHER’S RIGHTS TO DUE PROCESS WHEN IT GRANTED PERMANENT CUSTODY ON GROUNDS NOT ALLEGED IN CHILDREN SERVICES’ MOTION FOR PERMANENT CUSTODY.

FATHER’S ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR AND VIOLATED FATHER’S RIGHTS TO DUE PROCESS WHEN IT GRANTED PERMANENT CUSTODY ON GROUNDS NOT ALLEGED IN CHILDREN SERVICES’ MOTION FOR PERMANENT CUSTODY. {¶9} Mother and Father argue that the juvenile court committed rever sible error by basing its award of permanent custody on grounds not alleged in CSB’s motion for permanent custody. This Court disagrees.

1 As the trial court is ultimately responsible for issuing an ap propriate judgment entry, ordering the parties to independently submit findings of fact a nd conclusions of law from which the trial court will choose in re ndering its judgment is not th e preferred method. Because any proposed findings of fact and conclusions of law may be factual ly inaccurate and/or legally deficient, this Court cautions t he trial court against merely a dopting such proposals. Nevertheless, in this case, Mother and Father had the opportunity to submit t heir own findings of fact and conclusions of law for the juve nile court’s consideration. The fact that they failed to do so did not prohibit the juvenile court’s a doption of CSB’s proposed findin gs of fact and conclusions of law as its own.5

{¶10} Before a juvenile court may termin ate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and co nvincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 2 2-month period; the child or another child of the same parent has b een adjudicated abused, neglected , or dependent three times; or that the child cannot be placed with either parent, based on an anal ysis under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re

William S. , 75 Ohio St.3d 95, 98-99 (1996). Clear and convincing evidenc e is that which will “produce in the mind of the trier of facts a firm belief or con viction as to the facts sought to be established.” (Internal quotations omitted.) In re Adoption of Holcomb , 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph t hree of the syllabus. {¶11} It is well-settled that the fiv e R.C. 2151.414(B)(1) first-pron g factors are alternative findings, and CSB need only prove one of those grounds. In re J.B. , 9th Dist. Summit Nos. 28752 and 28753, 2018-Ohio-244, ¶ 9, citing In re A.W. , 9th Dist. Lorain No. 17CA011123, 2017-Ohio7786, ¶ 17, and In re E.M. , 9th Dist. Wayne No. 15CA0033, 2015-Ohio-5316, ¶ 12. Where th e juvenile court finds that the agency has proven by clear and co nvincing evidence one of the firstprong grounds alleged in its moti on for permanent custody, the parents cannot establish prejudice based on any erroneous alternativ e first-prong findings by the juvenile court. In re U.D. , 9th Dist. Summit No. 29195, 2019-Ohio-512, ¶ 9. As long as clear and con vincing evidence adduced at the hearing supports the juvenile cour t’s finding regarding an alle ged first-prong factor, an erroneous alternative finding is harmless error. In re J.B. at ¶ 9, citing In re T.K. , 9th Dist. Summit No. 28720, 2017-Ohio-9135, ¶ 10.6

{¶12} In this case, CSB alleged as its sole first-prong grounds that the children cannot or should not be returned to the parents within a reasonable time pursuant to R.C. 2151.414(B)(1)(a). Although the juvenile court found that Mother and Father had ab andoned the children, which would satisfy the grounds enunciated in R.C. 2151.414(B)(1)(b), it also found that CSB had proved its asserted allegations under R.C. 2151.414(B)(1)(a). As a th orough review of the record supports the juvenile court’s finding that T.B. and A.B. cannot or shoul d not be placed with either parent, the erroneous alternative first-prong finding was harmless. Mo ther’s and Father’s first assignments of error are overruled.

MOTHER’S ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED MOTHER’S PARENTAL RIGHTS AS THE [JUDGMENT] WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

FATHER’S ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED FATHER’S PARENTAL RIGHTS AS THE [JUDGMENT] WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶13} Although Mother’s and Father’s second assignments of error purp ort to challenge the sufficiency and weight of the evidence underlying the award of permanent custody, both parents’ arguments challenge t he lack of citation to any allege d R.C. 2151.414(D) and (E) factors. Specifically, Mother and Father argue that the judgment must be reversed based on the juvenile court’s “fail[ure] to list or fi nd any of the ‘E’ factors under R.C. 2151.414(E), or any of the best interest findings under R.C. 2151.414( D)(1)[.]” This Court dis agrees.7

{¶14} A review of the findings of fact and conclusions of law adopted by the juvenile

court indicates that those findi ngs and conclusions were made, in part, pursuant to R.C. 2151.414. As R.C. 2151.414(B)(1) requires that the juvenile court base al l findings and conclusions in support of permanent custody on clear and convincing evidence, this Court recognizes that the lower court did so pursuant to its stated compliance with the s tatute. Moreover, the express findings of fact address the subs tance of the statutory factors addressing the best interest of the children, as well as why the children cannot or should not be r eturned to their parents. Although the juvenile court did not incl ude any citations to the relevan t subsections of R.C. 2151.414(D) and (E) when enunciating its findings, Mother and Father cite n o authority for such a requirement.

This Court has never held that a juvenile court’s first- and se cond-prong permanent custody findings must be accompanied by citation to the relevant subsec tions. Nor does the statute require as much. Because it is clear from the text of the judgment tha t the juvenile court made the necessary substantive findings of fact and conclusions of law, Mother’s and Father’s arguments

are not well taken. {¶15} Although Mother and Father make no substantive arguments challe nging the weight of the evidence, this Cour t considers that issue in the interest of justice. {¶16} When determining whether a permanent custody judgment is agains t the manifest weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolvin g conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manife st miscarriage of justice that the [judgment] must be reversed and a new [hearing] ordered.” (Int ernal citations omitted.) In re T.K. at ¶ 7. When weighing the evidence, this Court “must always be mindful of the presumption in

favor of the finder of fact.” Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21.8

{¶17} In support of its first-prong allegation, CSB alleged in its mo tion for permanent custody that (1) despite reasonable case planning and diligent efforts by the agency, Mother and Father continuously and repeatedly failed to substantially reme dy the conditions that caused the children’s placements outside the home pursuant to R.C. 2151.41 4(E)(1); (2) Mother and Father demonstrated a lack of commitment toward the children by failin g to regularly support, visit, or

communicate with the childre n, when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the children pursuant to R.C. 2151.414(E)(4); and (3) Mother and Father were unwilling for any reason to provide food , clothing, shelte r, or other basic necessities for the children pursuant to R.C. 2151.414(E)(14). {¶18} The clear and convincing evidence adduced at the permanent cust ody hearing supported the juvenile court’s fi ndings that CSB had proved by clear and convincing evidence the alleged first-prong grounds. CSB removed the children, who we re adjudicated de pendent, based on concerns regarding Mother’s m ental health, both parents’ sub stance abuse issues, and Mother’s and Father’s lack of housing and i nability to provide for the b asic needs of the children. {¶19} The agency made referrals for various assessments for the paren ts. Although

Mother submitted to mental health and substance abuse assessmen ts, she did not follow up with the recommended counseling. She w as terminated for noncomplian ce with services at Summit Psychological Associates. She was later scheduled for an intak e assessment at Coleman Behavioral, but she failed to a ppear for that. Mother never su bmitted to any requested drug screens, but she did allow the caseworker to swab her three tim es. In each case, Mother tested positive for amphetamines and methamphetamines. Once, she addi tionally tested positive for oxycodone.9

{¶20} Father submitted to a drug and a lcohol assessment, but he faile d to disclose that he had overdosed on opiates seven months earlier. Because he was not forthcoming during his assessment, CSB modified the case plan to require that Father s ubmit to a second assessment. Father failed to comply with t hat requirement. Although he too was required to submit to random drug screens, Father only submitted to two swabs by the casewor ker. Both times, he tested positive for amphetamines and methamphetamines. {¶21} Both parents remained transient throughout the case. Often, CS B was unable to locate either. Although Mother w ent to the Battered Women’s Sh elter upon CSB’s referral, Mother was quickly asked to vacate the premises when drug parap hernalia was found in her quarters. Father sometimes st ayed with acquaintances, but none of those homes were suitable for

the children. On other occasions when Father’s whereabouts wer e known, he was in jail on pending domestic violence or drug related charges. {¶22} Although Mother was employed early in the case at a fast food r estaurant, she did not maintain that, or any other, employment. Father claimed to work some jobs under the table, but he could not verify any stable employment. {¶23} Mother and Father only visited sporadically with the children t hroughout the case. Because the parents had suffered a significant breakdown in the ir relationship, they were allotted separate visitation times. Mother last visited with the childr en four months prior to the second day of the permanent custody hearing. Father last visited with the children approximately nine months

earlier. {¶24} CSB established by clear and c onvincing evidence that, despite the agency’s reasonable and diligent efforts, Mother and Father failed conti nuously and repeatedly to substantially remedy the conditi ons that caused the removal of T.B. and A.B. from the home. See10

R.C. 2151.414(E)(1). Mother failed to address her mental healt h issues. Neither parent addressed their substance abuse, housing, and financial resources issues. Both Mother and Father also demonstrated a lack of commitment by failing to visit the child ren for significant periods of time during the case. See R.C. 2151.414(E)(4). Under these ci rcumstances, the juvenile court’s finding that the children could not be placed with Mother or Father wit hin a reasonable time or should not be placed with either parent was not against the manifest weigh t of the evidence. {¶25} The juvenile court was next requi red to find that an award of p ermanent custody was in the best interest of T.B. and A.B. When determining the best interest of children pursuant to R.C. 2151.414(D), the juvenile c ourt must consider all relev ant factors, including the custodial history of the children, the interaction and interrelationships of the children, the children’s wishes, the need for permanence in the children’s lives, and whether an y of the factors set forth in R.C. 2151.414(E)(7) to (11) apply to the facts of the case. R.C. 21 51.414(D)(1); In re R.G. , 9th Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11. {¶26} The children were removed from the parents’ home when T.B. was four years old and A.B. was five months old. Since that time, they resided to gether in two foster homes. The current foster parents had placement of the children for approx imately 16 months at the conclusion of the hearing. Because the foster parents are in their sixtie s, they are not willing to adopt the children. Nevertheless, they are willing to maintain the boys in their home until a suitable adoptive

home is found. {¶27} The children share a typical sibling bond. While T.B. finds A. B. to be a “pest” at times, A.B. is very attached to his older brother. The childre n’s infant niece (a child of the boys’ adult sister) also resides in t he foster home. While T.B. is n ot very involved with the infant, A.B.

adores her.11

{¶28} T.B. expressed a desire to live with both Mother and Father. T hat would not be possible given the parents’ strained and occasionally violent r elationship, as well as the fact that they no longer reside together. T.B. is engaged in counseling to address some behavioral issues

which manifest as a result of his diagnosed adjustment disorder . He would become very upset, cry, and act out for several days when Mother and Father failed to appear for scheduled visitations. After visits with Mother, T.B. would often use threatening and aggressive language towards A.B., mimicking comments Mother ha d made to the children. {¶29} After two years in foster care, the children require permanence . Neither parent has remedied the conditions that preci pitated the children’s remova l from the home. Mother and Father are, therefore, unable to provide a safe and stable home for T.B. and A.B. Moreover, by failing to visit with the children for many months prior to the hearing, both Mother and Father

have abandoned the children pursuant to R.C. 2151.414(E)(10). 2 After a thorough investigation, the guardian ad litem opined it is in the children’s best inter est to be placed in the permanent custody of CSB. {¶30} Based on a thorough review of the record, this is not the excep tional case where the finder of fact clearly lost its way and created a manifest misc arriage of justice by terminating Mother’s and Father’s parental rights and granting CSB’s motion for permanent custody. Mother and Father made negligible efforts to participate in various ca se plan services which were designed to help them remedy the conditions underlying the children’s re moval from the home. Both parents maintained limited and sporadic contact with the children, case worker, and guardian ad litem. By the end of the case, neither parent had visited with the childr en for many months. Under these

2 This Court emphasizes that the p arents’ abandonment of the chi ldren is relevant in this case only as to the best interest determination, because CSB fa iled to allege abandonment as a first-prong ground for permanent custody.12

circumstances, the juvenile court’ s judgment awarding permanent custody to CSB was not against the manifest weight of the evi dence. Mother’s and Father’s sec ond assignments of error are

overruled.

FATHER’S ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED FATHER’S DUE PROCESS RIGHTS BY NOT CONTINUING THE PERMANENT CUSTODY HEARING SUA SPONTE WHEN IT KNEW FATHER WAS NOT PRESENT. {¶31} Father argues that the juvenile court erred by failing to sua s ponte continue the permanent custody hearing in Fat her’s absence. This Court disa grees. {¶32} Father failed to appear during both days of the permanent custo dy hearing on April 29, 2019, and August 1, 2019. In addition, Father was no longe r represented by counsel by the time of the permanent custody hearing. 3 {¶33} Father admits that no motion was m ade to continue the permanent custody hearing in his absence. Therefore, he has forfeited any argument regar ding the lack of a continuance except for a claim of plain error. See Herron v. Herron , 9th Dist. Summit No. 29264, 2019-Ohio-5095, ¶ 5. Father argues plain error arose because holding the perma nent custody hearing in his absence violated his right to due process. {¶34} Parents have a fundamental rig ht to raise their children. In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, citing Troxel v. Granville , 530 U.S. 57, 65 (2000). Accordingly, any

restriction of that f undamental right must comport with due pro cess. In re Hockstock , 98 Ohio St.3d 238, 2002-Ohio-7208, ¶ 16. It is well settled that due p rocess requires notice and the opportunity to be heard. In re Thompkins , 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 13.

3 Mother also failed to appear on either day of the hearing, alt hough she was represented by counsel both days.13

Nevertheless, due process remains “a flexible concept that vari es depending on the importance attached to the interest at stake and the particular circumstan ces under which the deprivation may

occur.” State v. Aalim , 150 Ohio St.3d 489, 2017-Ohio-2956, ¶ 22. {¶35} Although permanent custody affects a fundamental right, parents have no absolute right to be present at the perma nent custody hearing when the j uvenile court considers whether to terminate their parental rights. In re J.S. , 9th Dist. Lorain No. 10CA009908, 2011-Ohio-985, ¶ 17. Moreover, “[p]arental inter ests must be subordinated to th e child’s interest in determining an appropriate disposition of any petition to terminate parental r ights.” In re Cunningham , 59 Ohio St.2d 100, 106 (1979). {¶36} After initially participating in the proceedings for the first two-and-a-half months, Father ceased appearing for hear ings. Father’s attorney reques ted and was permitted to withdraw at a review hearing on June 4, 2018, based on counsel’s inabili ty to contact Father despite counsel’s efforts. The magistrate’s orde r granting counsel’s withdrawal was copied on Father individually. After that time, Father continued to have some contact with the caseworker, submitting to a drug swab in July 2018, and appearing for occasional visits until No vember 2018. {¶37} In cases where a motion to continue a hearing has been made, th e trial court should consider various factors, including: prior requests for and gra nts of continuances; the length of the requested delay; the inconvenience to a ll persons involved, inc luding parties, witnesses, opposing counsel, and the court; whether the requested delay is legitima te or for some dilatory, purposeful, or contrived reason; whether the moving party contributed to th e circumstances giving rise to the request; and any other factors relevant to the unique facts of the case. State v. Unger , 67 Ohio St.2d 65, 67-68 (1981). Judicial ec onomy and the interest of t he children in permanency would necessarily be relevant in custody proceedings. In this case, had the juvenile court considered14

these factors, the record demonstrates that the juvenile court did not commit plain error by not sua sponte granting a continuance of the permanent custody hearing. {¶38} After CSB filed its motion for permanent custody, the agency se rved Father by publication on November 5, 2018, because his address was not kn own at the time. The caseworker was later able to locate Father. Therefore, the agency effecte d personal service of the permanent custody motion on Father on January 23, 2019. Thereafter, the caseworker visited Father during his time in jail between Februar y and March 2019. While Father did not appear for either day of the permanent custody hearing, t he caseworker testified that he verified that Father was not in jail during those times. Accordingly, Father was free to appear and be heard. {¶39} Father was properly served with notice of the permanent custody hearing and

indicated an awareness of the circumstances based on his contin ued, albeit limited and sporadic, contact with the caseworker. The case had been pending for 19 months as of the first day of the hearing, and the children required timely permanence. Opposing counsel and witnesses were present and prepared to go forwa rd. Although the guardian ad l item was absent due to illness, his attorney was present and asserted that he would have an audio r ecording of the first day’s proceedings prepared for the guardian’s review prior to the sec ond day. Despite notice, Father had ceased attending court proceedings after the third month of the case. Given Father’s transience and unknown whereabouts, it was not possible to determine the n ecessary length of any delay in the proceedings. Under these circumstances, this Court conclud es that the juvenile court moreover did not err by failing to sua sponte continue the hearing in Fa ther’s absence. Father’s third assignment of error is overruled.15

III. {¶40} Mother’s and Father’s assignments of error are overruled. The judgment of the Summit County Court of Co mmon Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellants.

DONNA J. CARR FOR THE COURT

CALLAHAN, P. J. HENSAL, J. CONCUR.16

APPEARANCES: NEIL P. AGARWAL, Attorney at Law, for Appellant. RONALD T. GATTS, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTI NO, Assistant Prosecuting Attorney, for Appellee. BEN AYERS, Attorney at Law, for the children. CHRISTINA BOLLMAN, Guardian ad Litem.