IN THE MATTER OF SHCHIGELSKI, Unpublished Decision (10-20-2000)

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 99-G-2241

Attorney(S)

R. ROBERT UMHOLTZ, GEAUGA COUNTY PUBLIC DEFENDER, PAUL J. MOONEY, ASSISTANT PUBLIC DEFENDER, 137 Main Street, Chardon, OH 44024 (For Defendant-Appellant). DAVID P. JOYCE, GEAUGA COUNTY PROSECUTOR, BRIAN M. RICHTER, ASSISTANT PROSECUTOR, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Plaintiff-Appellee). SHARON R. HAYNES, CASA (COURT APPOINTED SPECIAL ADVOCATE) 219 Main Street, Chardon, OH 44024.

Judges

O'NEILL, J., DISSENTING OPINION

See more information ...

Smart Summary

Please sign up to generate summary.

IN THE MATTER OF: ANDREW SHCHIGELSKI, ALLEGED NEGLECTED AND DEPENDENT CHILD.

OPINION

NADER, J.

Appellant, Tanya Shchigelski, appeals from the Geauga County Court of Common Pleas, Juvenile Division, judgment entered on July 14, 1999, granting the Geauga County Department of Human Services ("DHS") motion for permanent custody of the dependent child, Andrew Shchigelski. Appellant's parental rights were terminated. The following facts are relevant to a determination of this appeal.

On December 26, 1997, appellee, the Geauga County Department of Human Services, filed a complaint pursuant to R.C. 2151.03(A) and R.C. 2151.04(B) and (C) alleging that Andrew Shchigelski was a neglected and a dependent child. The complaint arose out of a domestic violence situation. On December 29, 1997, after an emergency hearing, temporary custody was granted to DHS pending the adjudicatory hearing. On February 19, 1998, the complaint was amended and appellant entered a plea of true to a complaint of dependency. The matter proceeded immediately to disposition. The court placed the child in the temporary custody of DHS for placement in foster care. A case plan was filed. The trial court made an additional order that should the parents, who were separated, decide to reconcile, that they participate in joint counseling "and not reunite until the counselor has so recommended."

At both the semi-annual and annual review hearings, the temporary custody of the child was continued. On February 16, 1999, the DHS filed a motion for permanent custody. The permanent custody hearing was conducted on June 23, 24, and July 2, 1999. In total, the DHS presented twenty witnesses in support of its motion for permanent custody.

Andrew was born on February 10, 1997, to Tanya and Sergio Shchigelski. In December of 1998, a pediatric neurologist, Dr. Levinsohn, conducted an examination of Andrew when he was twenty-three months old. The doctor indicated there was a very distinct possibility that Andrew had "autistic spectrum disorder" or "pervasive developmental disorder." The doctor indicated that because he did not perform observations over a long term (six months), he could not provide a definitive and compelling diagnosis. However, he testified that "irrespective of the ultimate diagnosis" raising a child with Andrew's type of clinical profile requires a tremendous amount of energy, cooperation, enthusiasm, and "a great deal of bonding."

With respect to Mr. Shchigelski, the DHS presented the testimony of Dr. Kaplur, a clinical psychologist, Dr. Vyroubal, M.D., and Julie Beckerman, a drug and alcohol counselor. Mr. Shchigelski was diagnosed as having a bipolar disorder, depression, borderline mental retardation, dysthemic disorder, and alcohol and cannabis dependence. Ms. Beckerman testified that she intended to recommend to Mr. Shchigelski that he participate in an intensive outpatient treatment program and attend three Alcoholics Anonymous meetings per week, however, Mr. Shchigelski did not return for his next appointment. Mr. Shchigelski had indicated to Ms. Beckerman that he did not need counseling or Alcoholics Anonymous.

With respect to appellant, the testimony established that appellant loved Andrew and wanted to raise him. She also made an effort to comply with portions of the case plan. She attended forty counseling sessions and regularly went to her visitation sessions. However, a number of problems persisted.

Appellant lived at the Hyde Park Apartments in Chardon, Ohio, until September or October of 1998, when her lease was terminated. The resident manager testified that the lease was terminated due to excessive disturbances caused by appellant and her husband. Mr. Shchigelski lived in, stayed at, or visited the apartment throughout the course of the year. The two frequently engaged in fighting and screaming and other behavior that constituted a nuisance to the neighbors. A Chardon police officer testified that the police had been called to the apartment twenty-four times in the last four years.

A number of witnesses testified for the DHS with respect to appellant's general fitness as a parent. Dr. Hill, the medical director of Ravenwood, testified that appellant had been diagnosed as bipolar and required medication, which was provided. Appellant's therapist at Ravenwood, Jodi Abbey-Hines, worked with appellant from February 1998 until June of 1999. Appellant met with her forty times. The objectives of the therapy were to work on anger management, impulse control, relationship skills, and to cope with the removal of Andrew. Ms. Abbey-Hines testified that appellant made some progress initially, but, appellant's attitude changed for the worse, and, as of April, 1999, appellant had not made significant progress. Ms. Abbey-Hines indicated appellant's prognosis was fair to poor due to appellant's continued resistance to working on her issues.

Appellant's DHS caseworker, Stacey Wilder, testified that, as of June 1999, appellant was only working on three of five of the case plan's objectives and that there was no significant progress. Ms. Wilder's biggest concern, which was expressed to appellant on multiple occasions, was appellant's continued relationship with Mr. Shchigelski. The unhealthy nature of this relationship caused the removal in the first place. While appellant was working on some of her case plan objectives, Mr. Shchigelski was not doing anything whatsoever. Thus, the conditions justifying the removal persisted. Both appellant and Mr. Shchigelski testified that they had been living together during the six months prior to the hearing. Both appellant and Mr. Shchigelski failed to make their child support payments for Andrew, appellant paying $77.11 out of $2,286.98 due, Mr. Shchigelski paying $460.92 out of $2,556.15 due.

The court appointed a CASA volunteer, Sharon Haynes, as the child's Guardian Ad Litem, on December 26, 1997. Ms. Haynes testified that appellant initially kept in touch with her, but in the eight months prior to the hearing, she had not been contacted by appellant and did not know how to get in touch with appellant. Her impression from her meetings with appellant was that, while appellant wanted Andrew back, she wanted to do things her way, and was resistant to DHS, as opposed to being cooperative.

On July 14, 1999, the trial court entered judgment granting DHS's motion for permanent custody. From this judgment, appellant timely filed notice of appeal, assigning the following errors:

"[1]. The trial court erred to the prejudice of the appellant in finding that the Geauga County Department of Human Services had made a good faith effort to implement the reunification plan.

"[2]. The trial court's finding that the minor child could not be placed with appellant within a reasonable length of time was against the manifest weight of the evidence.

"[3]. The trial court erred in its determination that permanent custody is in the best interest of the minor child."

In her first assignment of error, appellant contends the trial court erred in finding that DHS made a good faith effort to implement the reunification plan. In fact, the trial court did not make such a finding, rather, it found that DHS applied reasonable case planning and diligent efforts in an attempt to remedy the problems that initially caused the child to be removed. While a requirement of a good faith effort has been implied from the applicable statutes, technically, the applicable standard requires the DHS to exercise reasonable case planning and to make diligent efforts to remedy the problems that initially caused the removal of the child from the home. R.C. 2151.414(E)(1); In re Marshall (July 12, 1996), Geauga App. No. 95-G-1934, unreported.

We note that Sergio Shchigelski is not a party to this appeal. Although the juvenile court's decision divested him of all parental rights, Sergio did not appeal from judgment below.

The requirement that the agency make a good faith effort to implement a reunification plan was set forth in In re Weaver (1992), 79 Ohio App.3d 59, 63, 606 N.E.2d 1011. This court has previously addressed arguments presented on that basis. See In re Bacorn (Dec. 20, 1996), Portage App. No. 96-P-0015, unreported; In re Shaw (August 19, 1994), Trumbull App. No. 93-T-4865, unreported. However, in fact, the legislature eliminated the "good faith" requirement from R.C. 2151.414 with an amendment effective January 1, 1989. In re Jessica V. (Jan. 22, 1999), Lucas App. No. L-98-1016, unreported. In In re Jessica V., the Sixth Appellate District stated that the Weaver court simply applied the good faith standard without evaluating the statute, and consequently, was not technically correct. Id. The Sixth Appellate District further noted that the Twelfth Appellate District subsequently "`overruled its holding in Weaver, finding that pursuant to the statute, the appropriate inquiry is whether the agency made reasonable efforts to implement its reunification plan.'" (Citation omitted.) Thus, while a good faith effort may be inherent in the statute, the technically accurate inquiry, which the trial court did make in the matter sub judice, is whether the agency employed reasonable case planning and diligent efforts. The trial court found that it did. This finding is supported by the record.

Appellant was provided with a caseworker from DHS who reviewed the objectives and progress of the case plan with appellant on a monthly basis. Appellant was provided with a medical doctor who diagnosed her mental condition and prescribed medication. Appellant was provided with a therapist who worked with her on her emotional/psychological issues, scheduling fifty-four meetings from the inception of the case plan until the permanent custody hearing. Appellant was provided with a parenting aid who worked with her during her visitation periods with Andrew. Appellant was provided with a caseworker from the Metzenbaum Center who worked with her during visitations with Andrew at DHS on how to work with a developmentally disabled child. Appellant was provided with a caseworker from Ravenwood who assisted her with other issues. Appellant was assisted in maintaining her medication and her Medicaid and food stamp eligibility. She was also provided with subsidized housing. Appellant was repeatedly advised that her husband's basic default on his case plan and her continued relationship with him, under those circumstances, was very damaging to her case.

Appellant does not argue that the case plan was unreasonable. The record supports the trial court's finding that DHS made diligent efforts to remedy the problems that initially caused the child to be placed outside the home. Appellant's first assignment of error is without merit.

In appellant's second assignment of error, she contends the trial court's finding that the child could not be placed with appellant within a reasonable amount of time was against the manifest weight of the evidence. In the present case, the court had the authority to grant permanent custody of the child to DHS if the court determined, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody to DHS and that the child, not being abandoned or orphaned, cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents. R.C. 2151.414(B); In re Jacobs (Aug. 25, 2000), Geauga App. No. 99-G-2231, unreported. In addressing the question of whether the child can be placed with either of its parents within a reasonable amount of time under R.C. 2151.414(E), the court must consider all relevant evidence before making this determination. The juvenile court is required to enter such a finding if it determines, by clear and convincing evidence, that one or more of the conditions enumerated in R.C. 2151.414(E)(1) through (12) exist with respect to each of the child's parents. Id. Clear and convincing evidence is more than a mere preponderance of the evidence. Instead, it is evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613. Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus. An appellate court will not reverse a juvenile court's termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence. In the Matter of Taylor (June 11, 1999), Ashtabula App. No. 97-A-0046, unreported.

R.C. 2151.414(E) states in pertinent part:

"* * * If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section * * * that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:

"(1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.

"* * *

"(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;

"* * *

"(11) The parent has had parental rights involuntarily terminated pursuant to section 2151.353 [2151.35.3], 2151.414 [2151.41.4], or 2151.415 [2151.41.5] of the Revised Code with respect to a sibling of the child."

"`The issue is not whether the parent has substantially complied with the case plan, but whether the parent has substantially remedied the conditions that caused the child's removal.'" (Emphasis sic.) In re Marshall, supra, quoting In re McKenzie (Oct. 18, 1995), Wayne App. No. 95CA0015, unreported. In the present case the court found the parents had failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home, thus establishing R.C. 2151.414(E)(1). In particular, this was established clearly and convincingly by Mr. Shchigelski's basic default on his case plan, the failure of the two to obtain joint counseling, and their continued cohabitation under those circumstances. We cannot say the court erred in reaching this conclusion. This finding is sufficient to sustain the court's judgment but, additionally, factors (4) and (11) are also established by the record. While appellant did in fact demonstrate most of the forms of commitment enumerated in (E)(4), she did fail to pay her child support obligations. Mr. Shchigelski, on the other hand, demonstrated no commitment towards the child until the motion for permanent custody was filed and, then, only minimally. Factor (11) cannot be disputed, as a previous child of the parents was removed by permanent custody proceedings. Appellant's second assignment of error is without merit.

In appellant's third assignment of error, she contends that the trial court erred in determining that granting permanent custody to DHS was in the best interest of the child. In In re Marshall, supra, this court discussed the standard of review for the "best interest of the child" determination in a permanent custody proceeding.

"The discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. Moreover, the knowledge the juvenile court gains at the adjudicatory hearing through viewing the witnesses and observing their demeanor, gestures and voice inflections and using these observations in weighing the credibility of the proffered testimony cannot be conveyed to a reviewing court by a printed record. See Seasons Coal Co. v. Cleveland (1984) 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Hence, this reviewing court will not overturn a permanent custody order unless the trial court has acted in a manner that is arbitrary, unreasonable or capricious. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 * * * (defining `abuse of discretion.')."

The statutory criteria for determining the best interest of a child in a permanent custody hearing are set forth in R.C. 2151.414(D), which states in pertinent part:

"D) In determining the best interest of a child at a hearing held pursuant to division (A) of this section * * * the court shall consider all relevant factors, including, but not limited to, the following:

"(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child;

"(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity 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 private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999;

"(4) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;

"(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child."

The record in this case provided the court with ample evidence going to each of these factors. In its judgment entry, although not necessarily directly, the court discussed each of these factors with the exception of (D)(2). In this case, the child was too young to express his own wishes. However, the record indicates that the guardian ad litem's expert expressed the opinion that the child's best interest would be served by granting permanent custody to DHS. The trial court evaluated the interaction and interrelationship of the child with both appellant and Mr. Shchigelski. The trial court considered the custodial history of the child. The trial court considered the child's need for legally secure permanent placement.

We cannot say the trial court abused its discretion in reaching its conclusion that the child's best interests would be served by granting permanent custody to DHS. Appellant's third assignment of error is without merit.

The judgment of the trial court is affirmed.

____________________________ JUDGE ROBERT A. NADER

CHRISTLEY, P.J., concurs, O'NEILL, J., dissents with dissenting opinion.

O'NEILL, J., DISSENTING OPINION

While I agree with the majority's careful analysis of the facts in this troubling case, I must dissent in the outcome for I believe the procedure utilized by the trial court overlooked a fundamental safeguard. There was no attorney appointed as the guardian ad litem for this child and, therefore, I cannot conclude that the child's best interests were properly presented to the trial court. It is impermissible, in my mind, to conduct a court hearing to adjudicate a fundamental right of a child, and to have that child unrepresented by counsel at that same hearing.

When the State of Ohio, by official governmental action, seeks to permanently terminate a parent-child relationship, two highly significant private interests are at stake, and they must be strictly protected. "The first is the best interest of the child whose custody is at issue. The second is the parent's interest in the care, custody and management of the child." In re Shaeffer Children (1993), 85 Ohio App.3d 683, 690. The United States Supreme Court has definitively found that the child's interest in remaining with his natural family is a mirror image of the parent's interest in maintaining the natural family unit. The right of the parents to raise their child has been defined as a "natural right," subject to the protections of due process. See Meyer v. Nebraska (1923), 262 U.S. 390. Likewise, a child could be said to have a natural right to remain with his natural family, and that interest is fundamental and compelling.

Conversely, in all permanent custody cases, the family situation has devolved to such a state that the question is raised whether the child's interests would be better served by separating the child from his family. At that juncture, the child's interest in a reasonably healthy home environment is considered to be paramount and superior to other competing interests, including the fundamental and compelling interest of maintaining the natural family unit. In both cases, whether the child is ultimately to remain with the family or be separated, the private interests of the child which are affected by the official action are fundamental and compelling.

When determining whether the process granted by the state is constitutionally adequate, the United States Supreme Court has set forth three distinct factors which must be considered. Mathews v. Eldridge (1976), 424 U.S. 319, 334-335. First, we must consider the nature of the private interest affected by the official action. Second, we must consider the risk of an erroneous deprivation of that private interest through the procedures utilized, and the probable value, if any, of additional or substitute procedural safeguards. Third, we must consider the government's interest, including the fiscal and administrative burdens that the additional or substitute procedural requirements would involve. Id.

Turning to the second prong of the Mathews analysis, we must consider the risk of an erroneous deprivation of a private interest through the procedures utilized, and the probable value, if any, of additional or substitute procedural safeguards. I recognize that the current procedures, including the appointment of a CASA volunteer to serve as a guardian ad litem, are entirely designed to protect the best interest of the subject child. I do not question the good faith of any of the principals involved. However, by design and nature, child custody proceedings are adversarial. There are competing fundamental interests involved. This case exemplifies the potential for the erroneous deprivation of those private interests. The parties reached opposite conclusions based upon the same set of facts. Both cannot be right. Thus, we must recognize that the possibility and potential for error exists, in spite of the extensive procedures.

I note that the trial court itself, in reaching its determination, is considering the best interest of the child. In that sense, an argument could be made that a child already has a form of substantial representation. However, in the context of evaluating whether the Due Process Clause guaranteed a child the right to counsel in a juvenile delinquency proceeding, the United States Supreme Court did a thorough evaluation of the history and development of juvenile law in this country to that point in time. See In re Gault (1967), 387 U.S. 1, at 12-31. Prior to that decision, the position of a child in juvenile delinquency proceeding was in some ways analogous to that of an unrepresented child in a current permanent custody proceeding. The rationale offered in favor of not providing juveniles with counsel was that the state was proceeding parens patriae, essentially, the equivalent of in loco parentis.

The historical argument of not providing the juvenile with counsel was that the courts were acting in the best interests of the child. Without repeating the entire analysis, the court concluded in Gault, supra, that, although motivated by the highest impulses, the results of the system were unsatisfactory. Id., at 17-18. In a relevant summary of the cumulative results of proceedings wherein juveniles were unrepresented, the court stated: "[f]ailure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise." Id., at 19-20. The United States Supreme Court concluded that juveniles did have a right to counsel in juvenile delinquency proceedings. It is, therefore, apparent that when a child is not represented by counsel in a permanent custody proceeding, there is a palpable risk of the erroneous deprivation of a child's fundamental and compelling interests. There is no substitute for a lawyer when a compelling and fundamental right is being altered by state action.

R.C. 2151.281(B)(1) states "[t]he court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged abused or neglected child and in any proceeding held pursuant to section 2151.414 [2151.41.4] of the Revised Code. * * *." In relevant part, subsection (D) states "[t]he court shall require the guardian ad litem to faithfully discharge the guardian ad litem's duties * * *. "These duties are primarily defined in subsection (I), which states:

"The guardian ad litem for an alleged or adjudicated abused, neglected, or dependent child 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.

"The guardian ad litem shall be given notice of all hearings, administrative reviews, and other proceedings in the same manner as notice is given to parties to the action." (Emphasis added.)

However, the statute, which requires a guardian ad litem to act as an attorney when necessary, does not require that all guardian ad litems be attorneys. Subsection (H) states:

" If the guardian ad litem for an alleged or adjudicated, abused, neglected, or dependent child is an attorney admitted to the practice of law in this state, the guardian ad litem also may serve as counsel to the ward. If a person is serving as guardian ad litem and counsel for a child and either that person or the court finds that a conflict may exist between the person's roles as guardian ad litem and as counsel, the court shall relieve the person of duties as guardian ad litem and appoint someone else as guardian ad litem for the child. If the court appoints a person who is not an attorney admitted to the practice of law in this state to be guardian ad litem, the court also may appoint an attorney admitted to the practice of law in this state to serve as counsel for the guardian ad litem." (Emphasis added.)

The value of the added protection of requiring the appointment of counsel is the assurance that a child's constitutionally guaranteed rights to due process are protected. I applaud the work and efforts of the CASA programs in providing that voice. However, the statute itself clearly recognizes that a child requires a representative who is competent to file motions and court papers in the best interest of the child. In a municipal court action where neighbors are disputing issues as routine as money owed, the Supreme Court Rules for the Government of the Bar prohibit non-lawyers from the practice of law. Gov. Bar R. VII. How, therefore, can we countenance the practice of law by non-lawyers in proceedings where a child's very future is at stake? The necessity of requiring a child in a permanent custody proceeding be provided with counsel is evident, given the fundamental and compelling interest at stake.

It might be argued that requiring a child subject to a permanent custody proceeding be provided with counsel conflicts with the legislature's determination within R.C. 2151.281 that the child's representative in the proceeding need not necessarily be an attorney. When a child is the subject of any proceeding that affects a fundamental private interest of the child, the child must be provided with counsel. Within the context of R.C. 2151.281, a trial court has the option of assigning an attorney or a non-attorney as the guardian ad litem. If the trial court assigns a non-attorney as the guardian ad litem in a permanent custody case, as was done here, I would find that it is an abuse of discretion not to appoint an attorney to serve as counsel for the guardian ad litem. It is unreasonable, as a matter of law, for a child to be unrepresented in the most important court proceeding of their life.

In conclusion, I would find that in the present case, because the child was not represented in the proceeding by counsel, the process granted by the state was constitutionally inadequate. The State of Ohio and the parents were all well represented by counsel. The child's rights are entitled to no less.

_________________________________ JUDGE WILLIAM M. O'NEILL

IN THE MATTER OF: ANDREW SHCHIGELSKI, ALLEGED NEGLECTED AND DEPENDENT CHILD.

Comments