May 01, 2014

Children’s Wishes Must be Weighed When Deciding Best Interests

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re H.M., 2014 WL 856394 (Ohio Ct. App.). 

Trial court did not adequately consider children’s wishes at permanent custody hearing when determining their best interests. Neither the children nor their GAL testified about the children’s wishes at the permanent custody hearing, and the trial court made no finding that the children were too immature to express their wishes. The GAL’s report also lacked any mention of the children’s wishes or why they could not be determined.

Parents entered into a voluntary case plan with a child welfare agency after the agency received a referral regarding the care and well-being of their two children. A few months later, the mother abused one of the children leading to voluntary placements of each child with relatives. The agency then filed a dependency petition and a guardian ad litem (GAL) was appointed for the children.

When the mother, who had been pregnant during the agency’s involvement, gave birth, the agency filled a petition alleging the infant was dependent based on unsafe and unsanitary conditions of the home. The trial court appointed the same GAL for the infant as the two older children and set a hearing on the agency’s motion that coincided with a hearing already set for the older two children. At that hearing, the oldest child was placed in the temporary custody of a relative, and the middle child and infant were placed in the temporary custody of the agency.

The trial court found the children were dependent by clear and convincing evidence after the parents stipulated that the children were dependent. At the dispositional hearing, the GAL submitted a report stating he had reviewed the case plan terms and found them to be in the children’s best interests, not reunification. The trial court continued the children’s temporary custody arrangements. 

The agency later moved for permanent custody of the three children. The GAL submitted a report stating the home remained unsuitable for children, visits had not gone well, and the parents’ recent separation did not support reunification since neither parent showed an ability to parent alone. 

At the permanent custody hearing, the GAL testified that permanent custody was in the children’s best interests “based on the documents and information that have been provided.”  On cross-examination, the GAL said he based his report solely on the caseworker’s report and statements, and statements from others involved with the family. He also admitted to never observing the parents interacting with their children.

After testimony by several professionals and caregivers involved with the family, the trial court found permanent custody with the agency was in the children’s best interests and issued an order. The mother appealed. 

The Court of Appeals of Ohio reversed. Among her claims, the mother argued the trial court failed to adequately consider the children’s wishes when determining their best interests. 

Ohio statute requires courts to consider the child’s wishes when determining best interests. These wishes must be expressed directly by the child or through the child’s GAL. There must be clear and convincing evidence on the record that the child’s best interests were investigated to support a finding that the trial considered the child’s wishes.

In this case, the children did not testify at the permanent custody hearing about their wishes.  The GAL also did not testify about the children’s wishes. The GAL’s report did not mention the children’s wishes or why they could not be determined, despite other evidence that the children may have been mature enough to express their wishes. 

The trial court also made no finding that the children were too immature to express their wishes. This was especially troubling regarding the oldest child, who had the cognitive capacity to understand the result of the hearing yet was never asked about her wishes.

The appellate court concluded the trial court had not adequately considered the children’s wishes as required by statute. The court emphasized the need for trial courts and GALs to diligently investigate the children’s wishes in permanent custody hearings. The absence of any evidence on the record that the GAL or trial court investigated the children’s wishes in this case required reversal and remand for further proceedings.