[Cite as In re R.L. , 2014-Ohio-3955.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

IN THE MATTER OF: : C.A. CASE NOS. 2013-CA-46 R.L., A.L. and A.L. : and 2013-CA-50

: T.C. NOS. N43082 and S43380

: (Juvenile appeal from Common Pleas Court)

:

:

. . . . . . . . . . O P I N I O N

Rendered on the 12th day of September , 2014.

. . . . . . . . . . STEPHEN K. HALLER, Atty. Reg. No. 0009172, by BRITTANY M. HENSLEY, Atty. Reg. No. 0086269, Greene County Prosecuting Attorn ey’s Office, 61 Green e Street, Xenia, Ohio 45385 Attorney for Appellee, Green e County Children Services JAMES S. ARMSTRONG, Atty. Reg. #0020638, 131 North Ludlow Street, Suite 386, Talbott Tower, Dayton, Ohio 45402 Attorney for Appellant, Father JAY ADAMS, Atty. Reg. No. 0072135, 36 N. Detr oit Street, Suite 102, Xenia, Ohio 45385 Attorney for Appellant, Mother. . . . . . . . . . FROELICH, P.J. {¶ 1} Father and Mother appeal from judgments of the Greene County Court of Common Pleas, Juvenile Division, wh ich granted permanent custody of their children, R.L., A.L.1, and A.L.2, to Greene C ounty Children Services (“GCCS”). For the following reasons, the judgments of the trial court will be affirmed. {¶ 2} In May 2011, GCCS filed a complaint alleging that Mother and Father’s two sons, R.L. (born March 2, 2000) and A.L.1 ( born November 20, 2007), were neglected and dependent children; they were placed in the temporary custody of GCCS. The complaint alleged that the children exhibited poor hygiene, that their medical a ilments went untreated,

and that R.L.’s attendance at school was poor. In July 2011, R.L. and A.L.1 were adjudicated abused, neglected, and dependent. That same m onth, Mother and Father were each convicted of Illegal Manufacture of Dr ugs and Illegal Assemb ly or Possession of Chemicals for the Manufacture of Drugs, related to the operation of a methamphetamine lab in their family residence. Mother was also convicted of Possession of Controlled Substances. Mother was sentenced to a four-year prison term, and Father was sentenced to a five-year prison term. While incarcerated, Mother gave birth to the parties’ third child, a daughter, A.L.2 (born September 10, 2011). A. L.2 was immediately placed in the temporary custody of GCCS and was adjudi cated dependent on January 12, 2012. {¶ 3} In January 2012, GCCS filed a motion for permanent custody of the children, which was granted. Mother and Father appealed. Noting that the trial court’s judgment did not discuss any of the statut ory factors related to the children’s best interest and that the

two older children were bonded and would be separated for adoption, which those children3 did not want, we concluded that the trial court had abused its discretion in determining that awarding permanent custody to GCCS was in their best interest. In re R.L., A.L., and A.L. , 2d Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 23. We reversed and remanded for further proceedings. Id. at ¶ 49. {¶ 4} In January 2013, GCCS filed another motion for permanent custody of the children. The parents remained incarcerated at that time and had sought placement of the

children with friends or relativ es. The court conducted an in- camera interview with R.L. in April 2013 and a hearing on GCCS’s motion in July 2013. {¶ 5} In its August 1, 2013 judgment entry, the trial court concl uded that granting permanent custody was in the children’s best interest, that they had been in the temporary custody of GCCS for 12 or more months of the previous 22-month period, and that the children could not be placed with their parents within a reasonable peri od of time. The trial

court also found that GCCS had investigated more than 15 possible placements recommended by the parents, but that none was appropriate a nd/or the individuals involved

either were uninterested in b ecoming involved or had been unr esponsive to GCCS’s contacts. The court noted that the foster family with which R.L. and A.L.1 lived was willing to keep them indefinitely, which would satisfy the boys’ desire to stay together, but the family was not interested in adoption. A.L.2, who had never lived with or closely bonded with her brothers, had been placed in a di fferent foster home, and that fo ster family was interested in adopting her. The children did not meet th e requirements for a planned permanent living arrangement, and temporary custody could not be extended. The guardian ad litem recommended that permanent custody be granted to GCCS so that the children could remain4 with their foster families. The trial court granted permanent custody of the three children to

GCCS. {¶ 6} Father and Mother appeal from the trial court’s Augu st 2013 judgments, which granted permanent custody of the three children to GCCS. Th e parents have filed separate briefs. Father raises four assignments of error. He argues that the trial court abused its discretion in concluding that the be st interest of the children was served by an award of permanent custody; he asserts that temporary custody should have been extended. He also contends that R.L.’s attorney was improperly excluded from the court’s in camera interview with the child and that he (Fathe r) was denied due process. (Case No. 2013 CA 46.) Mother raises two assignme nts of error, in which she cont ends that the tr ial court failed to properly weigh the best inte rest factors set forth in R.C. 2151.414(E) and that its decision was against the manifest weight of the ev idence. (Case No. 2013 CA 50.) Due to the similarity of these arguments, we will address them together. {¶ 7} R.C. 2151.414(B)(1) establishes a two-pa rt test for courts to apply when determining whether to grant a motion for permanent custody to a public services agency. The statute requires the court to find, by clear and convincing evidence, that: (1) granting permanent custody of the child to the agency is in the best interest of the child; and (2) either the child (a) cannot be placed with either pare nt within a reasonable period of time or should not be placed with either parent if any one of the factors in R.C. 2151.414(E) is present; (b) is abandoned; (c) is orphaned and no relatives are able to take pe rmanent custody of the child; or (d) has been in the temporary custody of one or more public or private children services agencies for twelve or more months of a consecutive twenty-two month period. R.C.5 2151.414(B)(1); In re S.J. , 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing In

re K.M. , 8th Dist. Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8. {¶ 8} In this case, there is no dispute that the children had been in the custody of

GCCS for 12 or more months of a cons ecutive 22-month period when GCCS’s second motion for permanent custody was filed. R.L. and A.L.1 had been in GCCS’s custody for 27 months at the time of the court’s judgment, and A.L.2 had been in its custody for 23 months. Father’s brief points out that, by virtue of th e trial court’s original order granting permanent custody to GCCS, and our subseque nt reversal of that order on appeal, the children arguably spent part of the time included in the trial court’s calculations in GCCS’s permanent custody, rather than its temporary custody. Under the facts of this case, however, we find this distinction to be of little, if any, significance. Whether in GCCS’s temporary or permanent custody, the children were indisputably in th e type of legal limbo contemplated by R.C. 2151.414(B)(1) for twelve or more months of a consecutive 22-month period preceding the trial court’s judgment. The children remained with their foster families, rather than with their parents, during the pare nts’ previous appeal. {¶ 9} Mother argues in her brief that the court failed to adequately consider the potential of her early release from prison, po ssibly as early as August 2014, and that it therefore erred in concluding that the children could not be placed with her within a reasonable period of time. {¶ 10} Pursuant to R.C. 2051.414(B)(1), the tr ial court was requi red to determine whether a grant of permanent custody was in the best interest of the children and one of the other listed conditions; having found that the ch ildren had been in the temporary custody of6 GCCS for 12 or more months of a consecutiv e 22-month period, the court was not required

also to consider whether the children could be placed with either parent within a reasonable period of time (although the court did so in this case). The court’s finding that the children had been in the temporary custody of GCSS fo r the requisite time, coupled with its finding that the grant of permanent custody was in the children’s best interest, as discussed below, was a sufficient basis for its grant of permanent custody. {¶ 11} Moreover, we addressed Mother’s argument about the likelihood of reunification within a reasonable time in the previous appeal, noting that certified copies of the judgment entries of conviction from the pa rents’ criminal cases had been offered into evidence. We stated: “A review of the documents clearly indicates that four years of Mother’s sentence is mandatory pursuant to R. C. 2929.13(F) and that five years of Father’s sentence is likewise mandatory. Thus, any argument that either party might obtain an earlier judicial release is without merit.” In re R.L., A.L., and A.L. , 2d Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 11. {¶ 12} With respect to the best interest of a child, R.C. 2151.414(D) directs the trial court to consider all relevant factors, including but not limited to: (1) the interaction and interrelationship of the child with the child’s parents, relatives, foster parents and any other person who may significantly affect the child; (2) the wishes of the child; (3) the custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or pr ivate child placing agencies for 12 or more

months of a consecutive 22-month period; (4) the child’s need fo r a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent7 custody to the agency; and (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are applicable. R.C. 2151.414(D); In re S.J. at ¶ 15. The factors set forth in R.C. 2151.414(E)(7) through (11) include the parents’ c onvictions of specific crimes, the parents’ repeated withholding of food or medical treatment without jus tification, placing the child at

risk of harm two or more time s due to drug or alcohol abus e and rejecting treatment under a case plan, and abandoning the child. {¶ 13} With respect to these factors, the tria l court found that all three children were bonded with their foster families and that they had “not retained a significant or positive relationship with their parents due to the parents’ incarceration.” The record indicated that, although the foster parents of R.L. and A.L.1 we re not interested in a doption, they were very open to a long-term or indefinite placement; A.L .2’s foster family was in terested in adopting

her. The court observed that the children had been “in a state of fl ux without a permanent solution for more than two (2) years” and that they had no interaction with extended family

members. R.L. and A.L.1 had also had min imal interaction and ha d little bond with A.L.2, with whom they had never lived. It was very important to R.L. and A.L.1 that they stay together, and their foster care arrangement provi ded this option. The tr ial court found that, if the children were placed for adop tion separately, R.L. was old enough to refuse to consent, 1 which the court found “could easily ” happen if A.L.1 were not included. More than fifteen potential placements recommended by the parents were investigated by GCCS, but none was appropriate and/or w illing to take the children; some of these recommendations involved

1 Pursuant to R.C. 3107.06(E), a minor over the age of twelve must consent to his or her adoption, unless the court, finding that it is in the best interest of the mino r, determines that the minor’s consent is not required.8 relatives living in other countries who had never met the children. {¶ 14} The guardian ad litem’s report indicated that both parents have extensive criminal histories beyond the offenses for whic h they were imprisoned at the time of the hearing, and R.L. had been abandoned at birth and lived in foster care for the first year of his life. Mother and Father operated a methamphetamine lab in their home, where the children “lived amongst this illegal activity and we re exposed to an extremely hazardous environment.” The guardian ad litem described a complete lack of parental supervision and care, constant exposure to strangers in their home, and a lack of st ructure and boundaries. The guardian ad litem also expressed her belief that the “seeds of ethnic, racial, and law enforcement prejudices were delib erately and proudly sown” by Father into R.L. and A.L.1. Based on the guardian ad litem’s report and recommendation, the court concluded that the children were “in desperate need emotiona lly for a permanent and secure placement.” {¶ 15} This conclusion gained further support from the testimony of GCCS caseworkers at the hearing. These witnesses testified that R.L. and A.L.1 had made great progress in their social, emotional, and intellectual development since being placed in their foster home. R.L. was doing well in school , and numerous disruptiv e behaviors that had been present in the early months of his placem ent with the foster family had significantly diminished or disappeared. During this time, the boys had also developed close relationships with their foster parents and foster siblings. Th e boys, particularly R.L., came to appreciate the structure and values provided in the foster home, as compared with his parents’ home. A.L.2 was on track developmen tally and well-adjusted to her foster home. {¶ 16} During an in camera interview with the judge, R.L. indicated his view that he9 and his siblings were paying fo r his parents’ mistakes, that he was glad his parents were getting help in prison, and that he wanted to stay with his foster family (and with A.L.1) if he could not have his parents back. The guardian ad litem stated in her report that A.L.1 “just wants to be wherever R.L. is,” and that A. L.2 is too young to communicate her wishes. {¶ 17} Based on the evidence presented a bout the older children’s lives and developmental progress in foster care, their chaotic lives with their parents, the realistic possibility of long-term placements of all thr ee children with their foster families, and the parents’ prioritization of drug manufacture and use over the needs and safety of their children, the trial court reasonabl y concluded, by clear and convinc ing evidence, that the best interest of the children was served by granting permanent custody to GCCS. {¶ 18} Both parents also assert that the trial court’s conclusion that the children could not be placed with family members or frie nds was against the manifest weight of the evidence. They base this argument on their views that GCCS did not sufficiently investigate alternate placements, where “the consequences are so final and important.” We addressed this argument in their prior appeal: A review of the record demonstrates that the agency caseworkers made many attempts to find an alternate placement for the children. The agency sent letters regarding the matter to six individuals and couples for whom they did not have a telephone numbers. Th e letters not only asked whether the

addressees were interested in taking the children, but also inquired as to whether they knew of anyone else willing to do so. Of those six, none of the

letters were returned a nd only one person contacted the agency. That person10 stated they she and her husband were a fraid to get involved. She would not

leave her contact informati on and never had any more contact with the agency. The agency also was supplied te lephone numbers for another six individuals and/or couples. Five of t hose did not want to take the children. One person was left a voice message, but never contacted the agency. The agency also did home studies on two separate family friends whose names were supplied by Mother and Father. However, those persons were not able to pass the home studies. There is also evidence that the agency caseworkers attempted to locate possible relatives usin g computer and file searches. * * *

In re R.L. , A.L., and A.L. , 2d Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 43-44. {¶ 19} After the previous appeal and re mand, the parents suggested an additional possible placement for the children, the Troyer family, who lived in Holmes County and was, according to the parents, considering taking the children. GCCS investigated this possible placement, but the caseworker tes tified that “the facility that the family was with was not licensed and that, if I remember correctly, I want to say ther e was an illegal organization.”

The caseworker did not elabor ate on this characterization or on other details of the investigation, but she testified that GCCS concluded that the Troyers were “not a viable option for placement.” Father’s motion for placement of the children with the Troyers also acknowledged that the family “wasn’t properly licensed.” {¶ 20} The trial court concluded that GCCS “could only place the children in valid, licensed placements or placements approved by [GCCS] after a complete home study as11 required by the State”; placement with the Troyers did not satisfy either of these requirements. The record supports the court’ s conclusion that the Troyers were not an appropriate placement for the children. Moreover, it is clear that Father’s desire for placement with the Troyers was focused on ensuring the parents’ ability to regain custody of the children upon Mother’s and Father’s release from prison. However, as discussed below, continued temporary custody of the children was not an option. {¶ 21} The trial court conclude d that GCCS had made reasonable efforts to find alternate placements for the children, and we agreed with this conclusion in our prior Opinion. In re R.L., A.L., and A.L. at ¶ 48. These efforts were unsuccessful. Subsequently, GCCS investigated an additional placement suggested by the parents, the Troyers; GCCS found that this placement was not viable, and the tr ial court reasonably

credited this conclusion. There is no basis to conclude that GCCS di d not make a reasonable effort in this regard. {¶ 22} Father argues that the trial court s hould have continued te mporary custody of the children, rather than granting permanent custody to GCCS. However, the language of R.C. 2151.353 and R.C. 2151.415 limits temporary cu stody of children in the care of a children services agency to a period of two year s; a trial court does not have the authority to extend temporary custody beyond this period. In re M.O. , 2d Dist. Montgomery No. 25965, 2014-Ohio-3060, ¶ 13-14, citing In re D.J. , 2d Dist. Montgomery No. 21666, 2006-Ohio-6304, ¶ 13. {¶ 23} Mother contends that the children’s disinterest in visiting their parents in prison was insignificant and shoul d not have been relied on by the court, because it was not12 clear that the children were aware of any option to visit their parents. With respect to this issue, the court found: “The ch ildren have not retained a sign ificant or positive relationship with their parents due to the parent’s incarcera tion and none of the child ren have requested to visit their parents.” This findi ng is not referenced in the c ourt’s discussion of the children’s best interest, and it does not appear to have been given significant weight in the trial court’s decision. The burdensome logistics of taking three children from two foster families to visit parents at two prisons in other parts of the State is apparent, assuming such visits are even allowed; the parents bore the responsibility for these circumstances. The trial court reasonably observed the effect of this circ umstance on the children’s relationships with Mother and Father, and it did not abuse its disc retion in giving some consideration to the

effect of this situation on the relationships involved. {¶ 24} Father contends that the trial court erroneously “prohibited [R.L.’s] attorney from attending” R.L.’s in camera interview with the judge; only R.L., the judge, and the guardian ad litem were present. R.L.’s atto rney requested that the court conduct the in camera interview; the record does not indicate that R.L.’s attorney sought to participate in the interview or objected to the court’s failure to include him. Father’s argument attempts to assert a right on behalf of a nother party, R.L., which he is not entitled to do. Moreover, Father has not asserted that he (Father) was pr ejudiced by R.L.’s counsel’s failure to attend

the interview. {¶ 25} R.C. 2151.352 provides for a child’s right to counsel in juvenile proceedings and states that “[c]ounsel must be provided for a child not repr esented by the child’s parent, guardian, or custodian.” R.L. was represen ted by counsel throughout the proceedings.13 R.L.’s attorney could have reasonably conc luded that his attendance at the in camera interview was not necessary and/or would not benefit hi s client. R.C. 2151.352 did not compel his attendance. (The trial court permitted the parties to submit questions to the court prior to the hearing, but it is not apparent from the record whether any of them did so.) R.C. 3109.04(B)(2)(c), upon which Father re lies, does not apply to juve nile court proceedings but, like R.C. 2151.352, it does not require the presence of the child’s attorney at an in camera interview. Moreover, none of the parties objected to the trial court’s c onducting the in camera interview without R.L.’s attorney. Father has not demonstrated that his rights were infringed by the court’s or R.L.’s counsel ’s handling of R.L.’s in camera interview. 2

2 On March 6, 2014, Father filed a motion with this court for leave to review the transcript of the in camera interview with R.L., which was filed with this court under seal. In a Decision and Entry filed on April 1, 2014, we overruled this motion, but we stated that the motion, as well as GCCS’s memorandum in opposition, would “be considered again” when a panel of judges was assigned to the appeal. Upon more detailed review of the record, we agree with the trial court’s observation that the guardian ad litem’s statement of R.L.’s views on custody, to which Father has had access during these proceedings, accurately characterizes R.L.’s wishes as revealed in the transcript. As such, there is no reason to reconsider our denial of Father’s motion or to permit him to review the transcript of the in camera interview with R.L. {¶ 26} Father also argues that his due proce ss rights were violated by 1) GCCS’s failure to provide him with visitation with his children after our reversal of the trial court’s previous judgment granting permanent custody to GCCS; 2) GCCS’s determination “from the beginning of the case” to seek permanent custody; and 3) GCCS’s pursuit of permanent custody as an additional “punishment” for the parents’ criminal acts. {¶ 27} Even if GCCS focused on perman ent custody or another permanent placement of the children from the beginning of the case, as Father alleges, we cannot14 conclude that such focus was inappropriate or prejudicial. Father’s and Mother’s lengthy prison sentences made it clear to the agency early in the case that the parents would be unable to meaningfully participate in the children’ s upbringing and care for many years and that reunification within a reasonable time would likely not be possible. {¶ 28} Father has cited no authority for th e proposition that GCCS was required to

facilitate visitation dur ing his incarceration, nor has he a ddressed the tria l court’s implicit

conclusion that such visitation was not in the ch ildren’s best interests. Such a requirement would have placed a substantial burden on the agency, considering the distance at which the parents were incarcerated – at two different locations – and the placement of the children with two different foster families. Moreover, despite our reversal of the trial court’s prior judgment (because it had not discussed the stat utory factors related to the children’s best interest), the court’s conclusion that resuming visitation with the parents while the court considered GCCS’s second motion for permanen t custody was not in the children’s best

interest was reasonable. {¶ 29} We agree with Father that loss of pe rmanent custody of one’s children is not an automatic consequence (or punishment) for a criminal violation, regardless of the sentence imposed. However, on this record, Father’s and Mother’s criminal activity adversely affected the children, and the trial court reasonably concluded that the children’s best interest was served by granting permanent custody to GCCS and by the permanency afforded by their foster families. Although these consequences – for the children and the parents – resulted in part from the parents’ criminal activity, they were not an additional “punishment” for that activity.15 {¶ 30} Father’s argument that his due process rights were violated is without merit. {¶ 31} Finally, Mother notes the trial court’ s observation that the older boy, R.L., could refuse to consent to an adoption that di d not involve A.L.1, if he and A.L.1 were placed for adoption separately. She a sserts that “this internal possi ble inconsistency should not be allowed to stand.” She appears to suggest that R.L. might not be made aware of his option to oppose his adoption, and this might contribute to or perpetuate his separation from A.L.1. Although there may be some uncer tainty in R.L.’s and A.L.1’s futures, it is clear from the record that their foster family has indicated its willingness to keep both of the boys indefinitely. The trial court seems to have been making the point that continued placement in the foster home together was more likely to ensure that the boys remain together than any attempt at adoption, and it recognized that R. L. could withhold his consent from any adoption that did not involve both boys. Mother’s ar gument does not suggest how the denial of permanent custody to GCCS would lessen any uncertainty in the boys’ futures or increase the chances that the boys would remain together. Moreover, because there does not seem to be any intention on the part of GCCS or the fost er family to place R.L. and A.L.1 for adoption, Mother’s argument about how such a hypotheti cal adoption would unfold is speculative, at

best. {¶ 32} The trial court reasonably concluded that the best interest of the children would be served by granting permanent custody of the children to GCCS and that at least one of the statutory criteria – that the children had been in the temporary custody of GCCS for 12 of a consecutive 22-month period – had been satisfied. {¶ 33} Mother’s and Father’s assi gnments of error are overruled.16 {¶ 34} The judgments of the trial court will be affirmed.

. . . . . . . . . . FAIN, J. and HALL, J., concur. Copies mailed to: Stephen K. Haller Brittany M. Hensley James S. Armstrong Jay Adams Alan Collins Vicki Perkins Hon. L. Reisinger (sitting by assignment)