[Cite as In re D.V. , 2022 - Ohio - 4602.]



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

IN RE: D.V. AND J. A
. :

:

: APPEAL NO

. C

- 2 20 423

TRIAL NO. F17

- 2227 z
O P I N I O N

.

Appeal From: Hamil ton County Juvenile Court Jud g m ent Appealed From Is : Affirmed Date of Judgment Entry on Appeal: December 21, 2022

Christopher P. Ka

psal f or Appellant Mother, Joseph T. Deters , Hamilton County Prosecuting Attorney, and P atsy Bradbury , Assistant Prosecuting Attorney, for Appe llee Hamilton C o u nty Department of Job and Family Services, Ki mberly V. Thomas , Guardian Ad Litem for the minor children

.OHIO FIRST DISTRICT COURT OF APPEALS

2 W INKLER , Judge

. 

### {¶1} Appellant mother appeals from the decision of the Hamilton County Juvenile Court granting permanent custody of he r two children, D .V
. and J.A., to the H amilton County Department of Job a n d Family Services ( “ H CJFS ” ) after a previous remand from this court. We fi nd no merit in her three assignments of error, and we affirm the juvenile court’s judgment. 

### {¶2} The juvenile court originally g ranted permanent custody of the two children to HCJFS o n 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 , w e affirmed the juvenile cour t’s dec ision as t o D.V.’s father. But we reversed it in part as to the te rm ination of mother’s parental rights. We held that t he juvenile court had failed to consider the children’s wishes as required by R.C. 2151.414(D)(1)(b). Consequently, we remanded the ca use to the juvenile court to consider that factor. We declined to ad dress 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 appoi ntment of an atto r ney for one or both children would be appropriate under In re Williams , 101 Ohio St.3d 398, 2004 - Ohio

- 1500 , 805 N.E.2d 1110. 

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

. , who was then nine years old. She stated t hat when she had sp oken with J .A. on April 13, 2022, he did not mention his wishes regarding plac em ent, 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 onl y started tal king about ‘missing’ his mother in the last few weeks.” J.A. confi rm ed that he had started to miss his mother and wi shed that he could speak with her on the phone. He later indicated that he wanted to live with his mother. When the GAL aske d him why he had “changed his mind from what he had previously indicated,” he st at ed that he did not think thatOHIO FIRST DISTRICT COURT OF APPEALS

3 his mother was sti ll 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. sta te d that he m issed his brother every day and that made him sad. He was happy to h ave 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 GA L’s updated report for J.A. The court then asked if D.V. was too young to exp re ss his wishes, and the GAL said that he was. Wh en the court asked if anyone had anything to add, none of the parties said that they did. The court took the matter under adv is ement and s aid 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 Finding s of Fact in all re gards othe r than the Children’s wishes.” It discussed the GAL’s updated repo r t . It found, “After considering [J.A.’s] wishes , the Court determines that the best interest s of the children are served by a grant of permanent custody of t he children to HC JF S,” due to mother’s “lack of protective capacity for her children.” The cou rt a dopted the magistrate’s previous decision and granted H CJFS’s motion for permanent custody. This appeal followed. 

### {¶7} In her first assignment of error, mother contends that the j uvenile court erred in granting permanent custody to HCJFS when it failed to con d u ct 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 recommenda ti on of permanent cust ody, the court should have at a minimum, conducted an in cam e r a interview to determine the need for independent coun sel. This assignment of error is not well taken. 

### {¶8} Under R.C. 2151.414(D)(1)(b), when determining th e child’s best in te rest, the juvenile c ourt must consider “ [t]he wishes of the child, as expressed d i r ectly by the child or through the child’s guardian ad l item, with due regard for theOHIO FIRST DISTRICT COURT OF APPEALS

4 maturity of the child. ” In the previous appeal, we noted that the ju venile court had st ated , “ [T] he wishes of th e children were not expressed to the court.” We held that t h at 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 a nd C

- 210624,
2022 - Oh io

- 1024, at ¶ 21. We st ated that the record “must reflect some investigation into t h e 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. Hi ghland No. 14CA4, 20 14 - Ohio

- 2961, ¶ 32. 

### {¶9} In In re Wil liams , the Ohio Supreme Court held that a child who i s the subject of a juvenile court proceeding to terminate parent al rights is a party to the proceeding and is entitled to independent counsel in certai n circumstances. In re Williams , 101 Ohio St.3d 398 , 2004 - Ohio

- 1500, 805 N.E.2d 1110, at syllabus. Thos e circums t ances occur when the child’s wishes conflict with the GAL’s recommendation. In re D.D. , 1st Dist. Hamilton No. C

- 190387, 2019 - Ohio

- 4492, ¶ 1 0; I n r e W a l l i n g , 1s t Dist. Ham ilton No. C

- 050646, 2006

- Ohio

- 810, ¶ 24. 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 inde pendent counsel i s n eeded. In re D.D. at ¶ 10; In re Walling at ¶ 24. 

### {¶10} On remand, the juvenile court cond ucted an i nvestigation 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 yo ung to express his wishes, and all the parties agreed. J.A. never express ed a cons i stent desire to live with his mot her. He had recently stated that he missed his mother and would feel safe living with her if she was no lon ger with D.V.’s f ath er. Thus, his desire to live with his mother was condition ed on whether mother wa s still i n volved with D.V.’s father. Mothe r has continued to maintain her relationship with D.V.’s father despite repeated incidents of domestic violence , and she has fai led to prot ect her children.OHIO FIRST DISTRICT COURT OF APPEALS

5 

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

recom m endation, 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

18 068 0, 20 1 9 - Ohio

- 975, ¶ 33

- 34; In re Graham , 167 Ohio App.3d 284, 2006

- Ohio

317 0, 854 N.E.2d 11 2 6, ¶ 33

- 39. Further, it did not abuse its discretion in failing to conduct an in camera interview. T he trial court has discretion to accept th e testimony of th e G AL about the child’s wishes rather than hearing a direct expression of those wis h es made by the c hild. In re C.F. , 113 O hio St.3d 73, 2007

- Ohio

- 1104, 862 N.E.2d 816, ¶ 56 . Consequently, we overrule mother’s first assignment of erro r. 

### {¶12} In her second ass ign ment of error, mother contends that the juv enile court erred in finding that per m anent custody was in the children’s best interest when the wishes of D.V., the younger child , were not considered. Thi s assignment of error is not well ta ken. 

### {¶13} At the time of the hearing, D.V. was four years old. Altho ugh in her motion , mother had asked that D.V. be incl u ded in the in camera interview , she did not object to the court’s determination that D.V. was too young t o express his wishes. The court specifically aske d a ll the parties if they had something to add, a nd mother’s counsel said, “ N o .” Cons e quently, she for feited all but plain error. See State v. Rogers , 1 43 Ohio St.3d 385, 2015

- Ohio

- 2459, 38 N.E.3d 860, ¶ 20

- 21. Further , t here was no evi dence to refute t he court’s statement that D.V. was too young to express his wishes or that D.V. had ever expressed that he w i shed to live with his mother contrary to the GAL’s recommendation. 

### {¶14} The juvenile court properly consid ers the GAL’s recommendatio n as part o f the R.C . 2151.414(D)(1)(b) analysis where the children are too young to express their wishes. In re B/K Childre n , 1s t Dist. Hamilton No. C

- 190681, 2020

- Ohio

- 1095, ¶ 45. When a child lacks the maturity to express his or her wishes and nothing else

o therwise i ndi cates that the child’s wishes conflict with the guardian ad litem, anOHIO FIRST DISTRICT COURT OF APPEALS

6 attorney need not be appointed to repres e nt t he child. In re Qu.W ., 11th Dist. Ashtabula No. 2015

- A

- 0016, 2015

- Ohio

- 2202, ¶ 61; In re L.W. , 9t h Dist. Summit Nos. 26 8 6 1 and 26871, 2 0 13 - Ohio

- 5556, ¶ 20. Further, w h en a child is unable to express a position for an attorney to advocate for a part i cular course of action, any error in not appointing an attorney would be harmless since the GAL is already advoc ating what is in the child’s b est inte rest. In re T.J., 2d Dist. Montgomery No. 23032, 2009

- Ohio

1290, ¶ 10. Cons equently, the t rial court pr o perly considered D.V

. ’ s wishes a s conveyed by the G

AL, and we overrule mo ther ’ s second assig nment of error

. 

### {¶15} In her third assi gnment of error, moth er cont ends that the juvenile court erred in finding that gr anting permanent custo dy of the children to HCJFS was in their best interes t . She argues that the court’s judgment was not supported by sufficient evidence and that i t was ag ainst the manifes t we ight of the evidence. This assi gnment of error is not well taken. 

### {¶16} R.C. 2151.414(B) provides that the juve nile court may grant permane n t custody of a child to a public children services agency if it finds by clear and convinci ng evide nce that (1) perm anen t 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 show s by clear and convincing evidence that the children had been in the custody of HCJFS for m o re than 12 months of a co nsec utive 22

- month period. Therefore, the condition in R.C. 2151.414(B)(1)(d) was met. See In re J.R

. , 1st Di st. Hamilton No. C

- 190342, 2 0 19 - Ohio

- 3500. ¶ 26

- 29; In re J.G.S. , 1st Dist. Hamilton Nos. C

- 180611 and C

- 180619, 2019 - Ohio

- 802, ¶ 34

- 37. We need not determine whether any of the other co nditions apply. See In re B/K Children , 1st Dist. Hamilton No. C

- 190 681, 2020

- Ohio

- 1095, at ¶ 31 , fn. 2 ; In re J.R. at ¶ 29. 

### {¶17} The only issue remaining was whether granting permanent custody of the childr en to HCJFS was in their best interest. See In re J.G.S. at ¶ 38. The record shows that once the trial court had co nsidered the children’s wishes, it ha d consideredOHIO FIRST DISTRICT COURT OF APPEALS

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

170008, 2017 - Oh io

- 1 431, ¶ 23 and 2 5 . 

### {¶18} Clear and convincing evidence supported the trial court’s determination that granting permanent custody was in the chil d ren’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

- 2 10624, 2022

- Ohio

- 1024, at ¶ 26

- 27; In re J.G.S. at ¶ 40; In re A.B. , 1st Dist. Hamilton Nos. C

- 1 50307 and C

- 150310, 2015 - Ohio

3247, ¶ 15. 

### {¶19} Further, after reviewing the record we cannot hold th at th e trial cour t lo st its way and created such a manifest misca rriage of justice that we must reverse the judgment a nd order a new trial. Therefore, the judg m ent was not against the manifest weight of the evidence. See Eastley v. Volkman , 132 Ohio St.3 d 328 , 2012 - Ohio

- 2179 , 972 N.E.2d 517, ¶ 12; In re D.V. at ¶ 32
. W e overrule mother’s third assignment of error and a ffirm the trial court’s judgment. Judgment affirmed.

Z AYAS , P.J., and C ROUSE , J . , concur . Please n ote: The court has recorded its own ent ry on the date of the release of this opinion

.