[Cite as In re A.M.1, 2010-Ohio-5837.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
IN THE MATTER OF: :
A.M.1,
G.M., : Case Nos. 10CA21 10CA27
B.M., 10CA22 10CA28
K.M., AND : 10CA23 10CA29
A.M.2, 10CA24 10CA30
: 10CA25 10CA31
ADJUDICATED DEPENDENT 10CA26
CHILDREN. :
DECISION AND JUDGMENT ENTRY
:
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT Frank A. Lavelle, 8 North Court Street, MARY
HALL: 2nd Floor, P.O. Box 661, Athens, Ohio
45701
COUNSEL FOR APPELLANT William R. Biddlestone, 8 North Court
GEORGE MAFFIN: Street, 3rd Floor, Athens Ohio 45701
COUNSEL FOR APPELLEE: C. David Warren, Athens County Prosecuting
Attorney, and George Reitmeier, Athens County
Assistant Prosecuting Attorney, 1 South Court Street,
Athens, Ohio 45701
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-22-10
ABELE, J.
1
{¶ 1} These are consolidated appeals from Athens County Common Pleas
1
Case numbers 10CA21, 10CA22, 10CA23, 10CA24, and 10CA25 represent
the father’s appeal regarding A.M.1, G.M., B.M., K.M., and A.M.2, respectively. He
filed one brief to address all five case numbers. Case number 10CA26 is the mother’s
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
Court, Juvenile Division, judgments that awarded Athens County Children Services
(ACCS) permanent custody of four children: (1) A.M.1, born July 16, 1997; (2) B.M.,
born August 2, 1994; (3) K.M., born May 23, 1996, and (4) A.M.2, born November 24,
1998. The trial court denied ACCS’s request for permanent custody of a fifth child,
G.M., born November 27, 1992.
{¶ 2} Appellant Mary Hall, the children’s natural mother, raises the following
assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“TERMINATION OF PARENTAL RIGHTS WAS AGAINST
THE EXPRESS WISHES OF THE CHILDREN, AND WAS
NOT IN THEIR BEST INTERESTS.”
SECOND ASSIGNMENT OF ERROR:
“THE COURT BELOW FAILED TO SPECIFICALLY
DETERMINE THAT GRANTING PERMANENT CUSTODY
TO ACCS AND TERMINATING ALL PARENTAL RIGHTS,
WAS THE ONLY WAY TO ACHIEVE A LEGALLY SECURE
PLACEMENT FOR THE CHILDREN.”
{¶ 3} George Maffin, the children’s natural father, raises the following
assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S DECISION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
notice of appeal that lists all five of the children’s trial court case numbers. Case
numbers 10CA27, 10CA28, 10CA29, 10CA30, and 10CA31 represent the mother’s
appeal with respect to A.M.1, G.M., B.M., K.M., and A.M.2, respectively. The mother,
like the father, has filed one appellate brief to address all six case numbers.
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
“THE TRIAL COURT’S DECISION VIOLATES THE EQUAL
PROTECTION CLAUSES OF BOTH THE STATE AND
FEDERAL CONSTITUTIONS, AS WELL AS SUBSTANTIVE
DUE PROCESS CONSIDERATIONS.”
{¶ 4} A.M.1 has cerebral palsy. Appellants apparently experienced difficulty
providing or obtaining proper care for this child. On November 28, 2006, ACCS
sought, and the trial court granted, ex parte emergency custody of A.M.1. On
November 29, 2006, ACCS filed a complaint and alleged A.M.1 to be a neglected and
dependent child. The complaint alleged that: (1) A.M.1 has severe cerebral palsy and
is not receiving proper treatment; (2) the family is being evicted from the home; and (3)
A.M.1’s social security benefits provide the family’s only income. ACCS also filed
complaints that alleged the remaining children are neglected and dependent due to the
family’s lack of appropriate housing and income.
{¶ 5} On December 27, 2006, the parties agreed to admit dependency at the
adjudication hearing. On January 2, 2007, the trial court adjudicated the children
dependent, dismissed the neglect allegations and placed all five children in ACCS’s
protective custody. The court further directed that A.M.1 remain in the care and control
of Andrea Decker, the father’s sister, until further review.
{¶ 6} On April 22, 2008, ACCS filed a motion to modify the disposition from
protective supervision to temporary custody. ACCS alleged that: (1) the parents had
been evicted twice in the past six months; (2) the children had extensive school
absences; (3) A.M.1 had not been receiving necessary therapy; and (4) A.M.1 had not
been properly fitted for a wheelchair. On August 28, 2008, the court denied ACCS’s
motion for temporary custody.
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
{¶ 7} On October 21, 2008, the trial court granted ACCS ex parte emergency
custody. On October 22, 2008, ACCS filed a motion for temporary custody. On that
same date, the court held an emergency shelter care hearing. Andrea Decker, the
father’s sister, testified that the family has been living in her home. Decker stated that
a few days before the hearing, she heard the mother yelling at A.M.1 and “telling her to
shut the fuck up and stop crying.” She heard a “hitting” noise and heard A.M.1 stating
“ow, ow, ow.” During this incident, the mother stated to another child, B.M., “that she
fuckin’ hated her and that she was a stupid bitch. I can’t fuckin’ stand you. I hate
you.” She also observed the mother hit A.M.2 in the face with the back of her hand.
The court subsequently continued its order placing the children in ACCS’s temporary
custody. On December 10, 2009, ACCS filed a motion for permanent custody of the
children.
{¶ 8} On February 10, 2010, the guardian ad litem (GAL) filed his report and
stated that the children appear to be “thriving in foster care.” All the children expressed
a desire to be placed together, whether at home or in some other placement. K.M.
stated that she would not want to be returned to her mother’s custody. The GAL noted
that “[n]one of the children seems to view the prospect of [p]ermanent [c]ustody as
something terrible in and of itself, just so long as they are able to see each other.” The
GAL stated that the parents have not “done well in working to complete the [c]ase
[p]lan.” The father was incarcerated for several months and while incarcerated, the
mother attended very few visits with her children. Also, neither parent has a steady
income source. In fact, the father actually wrote letters to some of the children and
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
asked them for money. The parents have been evicted from their home and presently
reside with Amanda Decker in a three-bedroom mobile home. Neither parent has
completed mental health or substance abuse treatment. The mother tested positive for
Oxycodone in August of 2009, skipped a November 2009 drug screening, and in early
2010, admitted to the case worker that she had recently taken drugs. In July 2009, the
mother was charged with obstructing official business and two counts of endangering
children for driving under the influence with two children present in the vehicle. The
mother missed her court hearing regarding these charges and was not allowed to visit
the children while the warrant remained outstanding. Although the mother promised
the case worker that she would take care of the warrant “right away,” she did not.
Since the mother lost her job at Foodland, she has been either unable or unwilling to
find other employment.
{¶ 9} The GAL further reported that the father described himself as an
alcoholic. The “[t]he most pressing concern * * * is the apparent inability or
unwillingness of the parents to take seriously their parenting responsibilities by working
with ACCS and other agencies to complete the [c]ase [p]lan.” The GAL opined that
although the parents “do appear to care for their children at some level, [they] have not
done enough to provide their children with a safe, healthy, and nurturing environment.”
The GAL further stated that the parents do not “appear to have any plans to do so in
the future,” but instead make “vague promises about looking into possibilities of
employment.” The GAL stated: “These parents do not have housing of their own, they
do not have any reliable source of income, they do not have clear plans to obtain either
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
housing or employment, and they have manifested a cavalier attitude towards providing
for their children and managing their own psychological and substance abuse
problems.” The GAL thus recommended that the court award ACCS permanent
custody of the children.
{¶ 10} On February 17, March 10, and March 15, 2010, the trial court held
permanent custody hearings. SEPTA Correctional Facility Program Manager Scott
Weaver testified that the father entered the program on May 8, 2009 due to his
fifth-degree felony drug possession conviction. Weaver stated that the father did not
successfully complete the SEPTA program because he violated the terms of one of his
furloughs. SEPTA then returned him to the common pleas court for sentencing.
{¶ 11} Linda Donohue, foster parent to A.M.1 and B.M., testified that she
believes A.M.1 has “progressed quite a bit.” Donohue explained that when A.M.1 first
arrived in her home, she did not know the alphabet. Now, however, A.M.1 knows the
alphabet. Donohue also stated that sometimes the parents did not appear for
scheduled visitations, and the children would be angry.
{¶ 12} ACCS caseworker June Safranek stated that ACCS has been
intermittently involved with the family since 2001. Safranek does not believe that the
parents have “made a serious commitment to regain custody of their children,” and that
permanent custody would serve the children’s best interests because:
“[the mother has] not been able to support herself let alone the
children. She did not cooperate with the Department of Jobs and Family
Services to even work off her hours so that she, so that she could
continue getting welfare benefits because if you haven’t had them for a
period of time and you’re not sanctioned you can get them up to three
years. But she would get herself in a position where she would not, uh,
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
she would not attend work or [the father] would not attend work and they
would become sanctioned. They would not ask for help saying that they
didn’t want, they wanted to be independent. They didn’t want to ask for
help.”
{¶ 13} ACCS Family Services Supervisor Jennifer Hosek testified that the
agency has had thirty-two referrals regarding the family and opted to request
permanent custody because “years upon years [passed and the parents failed to]
address the same concerns[:] housing, basic needs, school attendance, medical
condition of [A.M.1].” Hosek stated that ACCS “had offered numerous case plans to
address these issues and [the parents] had failed continuously.” She further explained
that the mother attended only five out of a possible forty-four visits between July 2009
and December 10, 2009. Hosek believes that permanent custody is in the children’s
best interests “[s]o that they can have the stability that they have had since they have
been in care and that they can continue to attend school on a regular basis and that
they can get all of their needs met.” She explained that ACCS considered options
other than permanent custody, but they did not want to place the children in “long-term
foster care [be]cause we don’t want to shut the door for any of the children to be placed
together as a sibling group.” Hosek further stated that ACCS considered relative
placement, but the relatives “stated that they will take one child but they can’t take all.
Some of them say they are burned out and they don’t want involved any longer, and our
goal is for them to be placed together and to remain together.”
{¶ 14} Scott Carson, the guardian ad litem, testified that all of the children
expressed a desire to be reunited with their parents. He explained, however, his belief
that permanent custody is in the children’s best interests:
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
“* * * [A]lthough the interactions with the parents seem to be fine,
and I do think that the parents are very caring towards the children in their
own way and that the children feel a fondness for the parents, * * * I’m
sort of overwhelmed by the history of the case * * * . The homelessness,
the lack of permanent or * * * very long term employment, * * * the sort of
hand to mouth existence that they’ve been living and I contrast that with
the way the children are flourishing now in their foster placements, and it
just seems to me that in the long-term interest of the children to have a
kind of security for a healthy environment, good role models, better
boundaries to their living and choice making, and better role models for
their choice making it does seem to me that in the long-term it would be
better for them to be put into permanent custody as a sibling unit.”
{¶ 15} On May 12, 2010, the trial court granted ACCS permanent custody of
A.M.1, B.M, K.M., and A.M.2. The court, however, denied ACCS’s motion that
requested permanent custody of G.M. Instead, the court ordered that G.M. remain in
ACCS’s temporary custody.
{¶ 16} With respect to the children’s best interests, the court stated:
“As noted earlier in this decision, there is a strong surface loyalty in
this family. The children profess love for their parents, and the observed
visits with all family members demonstrate that relationship. The oldest
child, G.M. * * * is viewed as a big brother by all and would support almost
any arrangement that would reunite the family. He is already seventeen
years old and has the intelligence to complete high school and hopefully
the motivation. The three girls (ages fifteen, thirteen, and twelve) are
close and appropriate, and the youngest boy A.M.2 (age eleven) has been
loved and cared for by his older siblings.
A.M.1 has cerbral [sic] palsy and spends the bulk of her day in a
wheelchair. Her parents and siblings have been her care providers. At
school she is provided an aide. Her intellectual function is also minimal,
and she simply believes she will be ‘taken care of’ her whole life.
All the children are thriving in the various foster care settings where
they find themselves.”
{¶ 17} With respect to the children’s wishes, the court observed:
“The children consistently report a desire to live with their parents.
Absent that possibility, they would like to be placed together as a sibling
group. If that is not possible, the girls would like to be placed together.
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
The guardian ad litem’s report and the statements of the children’s
counsel have informed the Court of their desires.”
{¶ 18} Regarding the third best interest factor, the children’s custodial history, the
court stated:
“All five children have been in the continuous temporary custody of
ACCS, living in foster care for more than twelve of the latest twenty-two
months prior to the filing of this motion for permanent custody. The
parents have moved frequently throughout the history of this case and
often need to live with family members to have shelter. Currently, the
parents are living with one of [the father]’s sisters. Even without the
children in their custody they have proved unable to acquire and maintain
minimally acceptable housing. Neither parent has maintained regular
employment.”
{¶ 19} The court next considered the children’s need for a legally secure
permanent placement and whether it can be achieved without granting permanent
custody to ACCS:
“Every child would benefit from a legally secure placement, and
that appears particularly advisable for the four youngest children.
Regardless of the love, or at least loyalty, that is expressed reciprocally in
this family, these parents have not resolved any of the issues required to
allow the return of their children. Much time and social service effort has
been made available without a positive outcome.
The oldest child does not wish to be considered for adoption and
will likely always maintain a child-parent relationship with [his parents].
The four youngest may succeed in adoption and deserve the chance to
be children, finishing their years of minority in an actual home with a
responsible family structure.”
{¶ 20} The court found the R.C. 2151.414(E)(7)-(11) factors inapplicable.
{¶ 21} The trial court concluded that R.C. 2151.414(B)(1)(d) applied in that the
children had been in ACCS’s temporary custody for twelve of twenty-two consecutive
months. The court noted that it adjudicated the children dependent on December 27,
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
2007, that ACCS filed its permanent custody motion on December 10, 2009, and that
the children have been in continuous foster care since October 2008. The court thus
awarded ACCS permanent custody of the four children and terminated appellants’
parental rights.
{¶ 22} These appeals followed.
I
{¶ 23} Before we review the merits of appellants’ assignments of error, we first
address a jurisdictional issue. Both appellants seek to appeal the trial court’s judgment
relating to G.M. The trial court, however, did not grant ACCS’s request for permanent
custody of G.M. A trial court’s decision to deny a permanent custody request and
continuing a temporary custody order does not constitute a final appealable order.
See In re Adams 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, syllabus (“A trial
court order denying the motion of a children-services agency to modify temporary
custody to permanent custody and continuing temporary custody is not a final,
appealable order under R.C. 2505.02(B)(1) or (2).”). Therefore, we dismiss the
appeals involving G.M.–case numbers 10CA22 and 10CA28.
II
{¶ 24} Appellants’ four assignments of error generally center upon the trial
court’s decision to grant permanent custody. Therefore, some basic principles that
govern appellants’ assignments of error and, to this extent, we have combined them.
A
STANDARD OF REVIEW
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
{¶ 25} Generally, an appellate court will not reverse a trial court’s permanent
custody decision if some competent and credible evidence supports the judgment. In
re Perry, Vinton App. Nos. 06CA648 and 06CA649, 2006-Ohio-6128, at ¶40, citing
State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. Thus, our review of a
trial court’s permanent custody decision is deferential. See In re Hilyard, Vinton App.
Nos. 05CA600, 05CA601, 05CA602, 05CA603, 05CA604, 05CA606, 05CA607,
05CA608, 05CA609, 2006-Ohio-1965, at ¶17. Moreover, “an appellate court should
not substitute its judgment for that of the trial court when there exists competent and
credible evidence supporting the findings of fact and conclusion of law.” Schiebel, 55
Ohio St.3d at 74. Issues relating to the credibility of witnesses and the weight to be
given the evidence are primarily for the trier of fact. As the court explained in Seasons
Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273: “The underlying
rationale of giving deference to the findings of the trial court rests with the knowledge
that the trial judge is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.” Moreover, deferring to the trial court on matters of credibility
is “crucial in a child custody case, where there may be much evident in the parties’
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger
(1997), 77 Ohio St.3d 415, 419, 674 N.E.2d 1159; see, also, In re Christian, Athens
App. No. 04CA10, 2004-Ohio-3146.
B
STANDARD FOR GRANTING PERMANENT CUSTODY
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
{¶ 26} A trial court may not grant a permanent custody motion absent clear and
convincing evidence to support the judgment. The Ohio Supreme Court has defined
“clear and convincing evidence” as:
“The measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance,
but not to the extent of such certainty as required beyond a reasonable
doubt as in criminal cases. It does not mean clear and unequivocal.”
In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23; see, also,
Schiebel, 55 Ohio St.3d at 74. In reviewing whether a trial court based its decision
upon clear and convincing evidence, “a reviewing court will examine the record to
determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof.” Schiebel, 55 Ohio St.3d at 74.
C
PERMANENT CUSTODY PRINCIPLES
{¶ 27} A parent has a “fundamental liberty interest” in the care, custody, and
management of his or her child and an “essential” and “basic civil right” to raise his or
her children. Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71
L.Ed.2d 599; In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169; see, also,
In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829. A parent’s rights,
however, are not absolute. See D.A. at ¶11. Rather, “‘it is plain that the natural rights
of a parent * * * are always subject to the ultimate welfare of the child, which is the
polestar or controlling principle to be observed.’” In re Cunningham (1979), 59 Ohio
St.2d 100, 106, 391 N.E.2d 1034 (quoting In re R.J.C. (Fla.App.1974), 300 So.2d 54,
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
58). Thus, the state may terminate parental rights when a child’s best interest
demands such termination. D.A. at ¶11.
{¶ 28} Before a court may award a children services agency permanent custody
of a child, R.C. 2151.414(A)(1) requires the court to hold a hearing. The primary
purpose of the hearing is to allow the court to determine whether the child’s best
interests would be served by permanently terminating the parental relationship and by
awarding permanent custody to the agency. See R.C. 2151.414(A)(1). Additionally,
when considering whether to grant a children services agency permanent custody, a
trial court should consider the underlying principles of R.C. Chapter 2151:
(A) To provide for the care, protection, and mental and physical
development of children * * *;
***
(B) To achieve the foregoing purpose[ ], whenever possible, in a
family environment, separating the child from its parents only when
necessary for his welfare or in the interests of public safety.
D
PERMANENT CUSTODY FRAMEWORK
{¶ 29} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody of a
child to a children services agency if the court determines, by clear and convincing
evidence, that the child’s best interest would be served by the award of permanent
custody and that:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child’s
parents within a reasonable time or should not be placed with the child’s
parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child
who are able to take permanent custody.
(d) 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, or 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 and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
{¶ 30} Thus, before a trial court may award a children services agency
permanent custody, it must find: (1) that one of the circumstances described in R.C.
2151.414(B)(1) applies; and (2) that awarding the children services agency permanent
custody would further the child’s best interests.
{¶ 31} Pursuant to the plain language of R.C. 2151.414(B)(1)(d), when a child
has been in a children services agency’s temporary custody for twelve or more months
of a consecutive twenty-two month period, a trial court need not find that the child
cannot or should not be placed with either parent within a reasonable time. See, e.g.,
In re T.F., Pickaway App. No. 07CA34, 2008-Ohio-1238, at ¶23; In re Williams, Franklin
App. No. 02AP-924, 2002-Ohio-7205; In re Dyal (Aug. 9, 2001), Hocking App. No.
01CA11. Consequently, when considering a R.C. 2151.414(B)(1)(d) permanent
custody motion, the only other consideration becomes the child’s best interests. A trial
court need not conduct an R.C. 2151.414(B)(1)(a) analysis of whether the child cannot
or should not be placed with either parent within a reasonable time. Dyal; see, also, In
ATHENS, 10CA21, 10CA22, 10CA23, 10CA24, 10CA25, 10CA26,
10CA27, 10CA28, 10CA29, 10CA30, 10CA31
re Berkley, Pickaway App. Nos. 04CA12, 04CA13, and 04CA14, 2004-Ohio-4797, at
¶61.
{¶ 32} In interpreting R.C. 2151.414(B)(1), the Ohio Supreme Court held that the
child must have been in the custody of the agency for at least twelve of the previous
twenty-two months before the agency files a permanent custody motion in order for the
trial court to grant permanent custody based on R.C. 2151.414(B)(1)(d) grounds. In re
C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, at ¶¶ 26. “In other
words, the time that passes between the filing of a motion for permanent custody and
the permanent-custody hearing does not count toward the 12-month period set forth in
R.C. 2151.414(B)(1)(d).” Id.
E
BEST INTERESTS
{¶ 33} R.C. 2151.414(D) requires a trial court to consider specific factors to
determine whether a child’s best interests will be served by granting a children services
agency permanent custody. The factors include: (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; (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
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
agency; and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.2
III
2
R.C. 2151.414(E)(7) to (11) provide as follows:
(7) The parent has been convicted of or pleaded guilty to one of the following:
(a) An offense under section 2903.01, 2903.02, or 2903.03 of the Revised Code
or under an existing or former law of this state, any other state, or the United States that
is substantially equivalent to an offense described in those sections and the victim of
the offense was a sibling of the child or the victim was another child who lived in the
parent’s household at the time of the offense;
(b) An offense under section 2903.11, 2903.12, or 2903.13 of the Revised Code
or under an existing or former law of this state, any other state, or the United States that
is substantially equivalent to an offense described in those sections and the victim of
the offense is the child, a sibling of the child, or another child who lived in the parent's
household at the time of the offense;
(c) An offense under division (B)(2) of section 2919.22 of the Revised Code or
under an existing or former law of this state, any other state, or the United States that is
substantially equivalent to the offense described in that section and the child, a sibling
of the child, or another child who lived in the parent’s household at the time of the
offense is the victim of the offense;
(d) An offense under section 2907.02, 2907.03, 2907.04, 2907.05, or 2907.06 of
the Revised Code or under an existing or former law of this state, any other state, or the
United States that is substantially equivalent to an offense described in those sections
and the victim of the offense is the child, a sibling of the child, or another child who lived
in the parent's household at the time of the offense;
(e) A conspiracy or attempt to commit, or complicity in committing, an offense
described in division (E)(7)(a) or (d) of this section.
(8) The parent has repeatedly withheld medical treatment or food from the child
when the parent has the means to provide the treatment or food, and, in the case of
withheld medical treatment, the parent withheld it for a purpose other than to treat the
physical or mental illness or defect of the child by spiritual means through prayer alone
in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times
due to alcohol or drug abuse and has rejected treatment two or more times or refused
to participate in further treatment two or more times after a case plan issued pursuant to
section 2151.412 [2151.41.2] of the Revised Code requiring treatment of the parent
was journalized as part of a dispositional order issued with respect to the child or an
order was issued by any other court requiring treatment of the parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated pursuant to this
section or section 2151.353 [2151.35.3] or 2151.415 [2151.41.5] of the Revised Code
with respect to a sibling of the child.
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{¶ 34} In the case at bar, both appellants argue in their first assignments of error
that competent and credible evidence does not support the trial court’s finding that
3
permanent custody serves the children’s best interests. We disagree.
{¶ 35} In the case sub judice, the trial court’s judgment sets forth a thorough best
interest analysis. The court examined each of the R.C. 2151.414(D) factors and we
are unable to conclude that the court abused its discretion when it evaluated the best
interest factors. The court rationally could have determined that despite the children’s
desire to be reunited with their parents, permanent custody ultimately would be in their
best interests.
{¶ 36} Regarding the first best interest factor, the children’s interactions and
interrelationships, the evidence presented at the permanent custody hearing
demonstrates that the children appear to share a bond with their parents and with each
other. The ACCS caseworker testified that the parents appeared to have appropriate
interaction with the children. The father’s sister, however, recounted an incident when
she heard the mother using vulgar language when yelling at her children and heard a
commotion that she interpreted to mean that the mother was striking a child's head with
a hairbrush. No other negative interactions are apparent. Little evidence was
presented regarding the children’s present environments and interactions with their
respective foster homes, beyond general testimony that they are thriving, are receiving
appropriate care, and are attending school on a consistent basis.
3
Because neither appellant raises an argument regarding the trial court’s R.C.
2151.414(B)(1)(d) finding, we do not address it.
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
{¶ 37} With respect to the second best interest factor, the children’s wishes, the
trial court observed that the children have expressed a consistent desire to be reunified
with their parents. We recognize, however, that the guardian ad litem recommended
that the court award ACCS permanent custody.
{¶ 38} Regarding the third best interest factor, the children’s custodial history, the
evidence shows that except for the period beginning October 21, 2008, the children had
been in their parents’ physical custody. Thus, the children have not been in ACCS’s
temporary custody for a majority of their lives. Rather, the children have lived with their
parents for the majority of their lives. ACCS may have had involvement in the family’s
life for a significant time period, but that appears partly due to the family’s request for
assistance in providing care to their disabled child, A.M.1. We further note, however,
that when the parents had physical custody of the children, they moved frequently and
had great difficulty obtaining stable housing.
{¶ 39} With respect to the fourth best interest factor, the children’s need for a
legally secure permanent placement, the evidence shows that the children need a
legally secure permanent placement. The parents do not have stable housing or
sustainable income and, according to the testimony, have shown no sincere motivation
to obtain either. The parents presently do not have a legally secure permanent
placement for the children and have not demonstrated a likelihood that they will at any
time in the future. Thus, the children’s need for a legally secure permanent placement
is obvious. Moreover, the record does not contain any evidence that the children can
obtain a legally secure permanent placement without granting ACCS permanent
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
custody. As we stated, the evidence ACCS presented shows that parents have failed
to demonstrate that they are willing to provide a legally secure permanent placement for
the children. ACCS has worked with the family for at least four years, during which
time the ACCS caseworkers found that appellants put forth no sincere efforts to obtain
stable housing or employment. Appellants may have made half-hearted attempts to
find stable housing or employment, but these half-hearted efforts fall short of the
commitment necessary to demonstrate a willingness to provide a legally secure
permanent placement for their children. ACCS caseworkers stated that they
considered other options, such as long-term foster care or relative placement, but found
neither to be a suitable option. Thus, the evidence shows that the children need a
legally secure permanent placement that cannot be achieved unless ACCS receives
permanent custody.
{¶ 40} Upon consideration of the totality of the factors, and recalling that the trial
court’s judgment may rest upon witness demeanor and other matters that do not
translate to the written record, we are unable to find that the trial court abused its
discretion when it weighed these factors and determined that permanent custody would
be in the children’s best interests. Even if we were to weigh the factors differently, the
abuse-of-discretion standard of review does not permit us to substitute our judgment for
the trial court’s. We recognize that the termination of parental rights is one of the most
difficult decisions that courts encounter. Moreover, the decision may rest upon
nuances that we are unable to discern when reviewing the written record. Thus,
appellate courts must largely defer to a trial court’s judgment. In the case at bar, we
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
find nothing in the record to suggest that deferring to the trial court would be in error.
{¶ 41} Furthermore, to the extent that the mother argues that the trial court was
obligated to follow the children’s wishes, we disagree. A child’s wish is but one of
several factors that a court must consider when conducting a best interest analysis. A
court has discretion to determine the weight to afford to each factor, and need not
elevate the child’s wish over any other factor. See, generally, In re Yates, Geauga
App. No. 2008-G-2836, 2008-Ohio-6775, at ¶39.
{¶ 42} We additionally observe that although not an express factor under the
best interest analysis, the evidence presented at the hearing demonstrates the parents’
persistent lack of motivation to obtain gainful employment and to establish stable
housing. ACCS has worked with the parents for at least four years, but the parents
have not demonstrated a commitment to obtaining the necessary employment or
housing to appropriately provide for the children. ACCS suspected that the parents
have substance abuse problems, which the father’s subsequent incarceration for drug
possession confirmed. In July 2009, the mother was arrested for driving while under
the influence and child endangering. Both parents failed to comply with all of ACCS’s
drug screen requests. At one point, the father admitted that he would test positive for
drugs, and the mother tore up the drug screen form. Moreover, the mother failed to
complete the case plan requirement to undergo counseling at Tri-County Mental Health
and Counseling. Despite ACCS’s repeated attempts to obtain appellants’ compliance
with the case plan requirements to obtain a source of income other than A.M.1's SSI
payments and to obtain independent, stable housing, appellants have sadly
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
demonstrated a lack of commitment or an unwillingness to do so. We recognize that
the current state of the economy may make it difficult for an adult to obtain gainful
employment. In the case sub judice, however, other factors appear to be the main
culprit for appellants’ inability to find gainful employment. Sadly, the record amply
demonstrates the appellants' lack of commitment to obtain gainful employment.
Moreover, ACCS has provided appellants with more than sufficient time to obtain
employment and stable housing for the children, yet they have demonstrated an
unwillingness to do so. Their actions have not demonstrated that they are committed
to providing the basic necessities for their children, let alone the special needs of A.M.1.
Although appellants may have made half-hearted attempts to find employment,
housing, or to obtain education necessary for gainful employment, they have
demonstrated an unwillingness to commit to any of these things. Appellants may have
found themselves in an unfortunate situation, but ACCS has provided substantial efforts
and resources to assist this family, all to no avail.
{¶ 43} Moreover, we observe that at the November 10, 2008 review hearing, the
trial court warned appellants that they may lose custody of their children if they could
not demonstrate motivation to obtain housing or employment. The court commented:
“One of the most frustrating parts with [the parents] has been the
fact that they’re quite capable of being employed and quite capable of
holding down some kind of a job that will bring some kind of income into
that household besides [A.M.1's] check. And now with the kids removed
and safely in good hands I would think that they could do it in a big way
and they could actually establish independent housing that they’re
capable of hanging onto for some period of time. Absent that it is going
to be very hard for me to dream up some idea that makes sense for this
family to try to go back together as a unit regardless of whether, you
know, [the father] is or isn’t out in the shed smoking pot and regardless of
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
whether or not [the mother] is using the right tone of voice when she, you
know, disciplines or parents the kids. They’re really showing me no
meaningful effort toward what would be a very critical part establishing
stability.”
Thus, at least one year before ACCS filed the permanent custody motion, the parents
knew or should have known that the trial court expected them to find stable housing
and employment so as to be able to properly provide for their children. Had appellants
been sincere, they would have taken the court’s comment to heart and demonstrated
their commitment to obtain stable housing and employment. Moreover, the ACCS
caseworkers stated that they did not believe that appellants were sincerely motivated to
improve their condition.
{¶ 44} Accordingly, based upon the foregoing reasons, we overrule the mother’s
and the father’s first assignments of error.
IV
{¶ 45} In her second assignment of error, the mother asserts that the trial court
erred by failing “to specifically determine that granting permanent custody to ACCS and
terminating all parental rights, was the only way to achieve a legally secure placement
for the children.”
{¶ 46} We note, however, that the Ohio Supreme Court has explicitly rejected the
mother’s argument. In In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857
N.E.2d 532, at ¶64, the court held that a trial court does not have a duty to find that
terminating parental rights is the “only way” to provide the children with a legally secure
placement. The court explained:
“[The court has no duty to] determine by clear and convincing
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
evidence that ‘termination of appellant’s parental rights was not only a
necessary option, but also the only option.’ Nor did that duty include the
requirement that the juvenile court find by clear and convincing evidence
that no suitable relative was available for placement. The statute
requires a weighing of all the relevant factors, and the trial court did that in
this case. R.C. 2151.414 requires the court to find the best option for the
child once a determination has been made pursuant to R.C.
2151.414(B)(1)(a) through (d). The statute does not make the availability
of a placement that would not require a termination of parental rights an
all-controlling factor. The statute does not even require the court to
weigh that factor more heavily than other factors.”
Id. Based upon this rationale, we reject the mother’s argument that the trial court erred
by failing to determine that granting ACCS permanent custody is the “only way” to
achieve a legally secure placement for the children.
{¶ 47} Furthermore, to the extent the mother argues that the trial court should
have considered other relative placement options, we have previously held that a court
need not consider relative placement before awarding a children services agency
permanent custody. See In re Keaton, Ross App. Nos. 04CA2785 and 04CA2788,
2004-Ohio-6210, at ¶61. We stated:
“[T]he statute does not require a juvenile court to consider relative
placement before granting the motion for permanent custody. See In re
Dyal (Aug. 9, 2001), Hocking App. No. 01CA11; In the Matter of Knight
(Mar. 22, 2000), Lorain App. Nos. 98CA7258 and 98CA7266. In other
words, a juvenile court need not find, by clear and convincing evidence,
that a relative is an unsuitable placement option prior to granting the
permanent custody request. Id. Relatives seeking the placement of the
child are not afforded the same presumptive rights that a natural parent
receives as a matter of law, and the willingness of a relative to care for the
child does not alter the statutory factors to be considered in granting
permanent custody. See Dyal; In re Jefferson (Oct. 25, 2000), Summit
App. Nos. 20092 and 20110; In re Davis (Oct. 12, 2000), Cuyahoga App.
No. 77124. Rather, a juvenile court is vested with discretion to determine
what placement option is in the child’s best interest. See Dyal; Patterson;
Benavides. The child’s best interests are served by the child being
placed in a permanent situation that fosters growth, stability, and security.
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d
1055. Therefore, courts are not required to favor a relative if, after
considering all the factors, it is in the child’s best interest for the agency to
be granted permanent custody. See In re Dyal, Hocking App No.
01CA11, 2001-Ohio-2383; see, also, In re Lewis, Athens App. No.
01CA20, 2001-Ohio-2618; In re Wilkenson (Oct 12, 2001), Hamilton App.
No. C-010402, C-010408; In re Knight (March 22, 2000), Lorain App. Nos.
98CA72589, 98CA726698.”
Id. For similar reasons, we reject the mother’s argument that the trial court should
have considered the availability of a relative placement before it awarded ACCS
permanent custody.
{¶ 48} Accordingly, based upon the foregoing reasons, we overrule the mother’s
second assignment of error.
V
{¶ 49} In his second assignment of error, the father asserts that the trial court’s
decision violates the equal protection clauses of the United States and Ohio
Constitutions and substantive due process considerations. In essence, the father
contends that the trial court unconstitutionally based its decision to award ACCS
permanent custody upon his poverty. The father asserts that a trial court may not
award custody to a children services agency based upon a parent’s “abject poverty.”
{¶ 50} We considered a similar argument in In re Pettiford, Ross App. No.
06CA2883, 2006-Ohio-3647 and stated:
“The evidence shows that the mother’s failure to obtain suitable
housing for her children, not her poverty, was part of the reason for the
court’s decision. There is a difference between being homeless because
of lack of funds and being homeless because of lack of motivation. In the
instant case, the evidence suggests a lack of motivation, which helps
demonstrate an unwillingness or lack of commitment to providing an
adequate home for her children. See, generally, In re Lewis, Athens App.
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
No. 03CA12, 2003-Ohio-5262.”
Id. at ¶56.
{¶ 51} The same rationale applies in the case at bar. Here, the trial court’s
decision does not place undue emphasis on the parents’ poverty in and of itself as a
reason to terminate their parental rights. Rather, the court notes that the parents have
failed to demonstrate a commitment to improve their financial picture so as to provide
stable housing and income for their children’s basic necessities. The trial court’s
decision does not imply that the parents’ poverty is the only, or even the primary reason
to justify the permanent custody award. Instead, the court looked to the children’s best
interests, which we discussed above. Thus, contrary to the father’s suggestion, we
believe that the trial court did not rely solely upon his "economic status." Rather, many
factors entered into the court’s decision. See, generally, In re R.C., Wyandot App.
Nos. 16-9-11, 16-9-12, and 16-9-13, 2010-Ohio-3800, at ¶28 (noting that
“insurmountable poverty” alone may not justify permanent termination of parental rights,
but when the parent demonstrates a “lack of desire, enthusiasm and motivation” to
improve the parent’s financial picture, then permanent termination is justified); In re
Shifflet, Athens App. No. 06CA13, 2006-Ohio-3576, at ¶40 (observing that court did not
rely solely upon parent’s poverty but considered all relevant factors and also noted
parent’s lack of commitment to child); In re Link, Athens App. Nos. 05CA23, 05CA24,
and 05CA25, 2006-Ohio-529. As the court explained in In re K., Cuyahoga App. No.
83410, 2004-Ohio-4629, at ¶40:
“Poverty in and of itself is not a crime. Nor is it a basis for
permanently removing children from their parents. When an
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
impoverished parent’s actions, however, result in parental neglect, our
society would be remiss if it did not intervene for the sake of the child’s
welfare. Appellant had more than two years to remedy the situation in
which she found herself. Her children should not be penalized because
she did not do so.”
{¶ 52} In the case sub judice, the parents had approximately four years to obtain
suitable housing and sustainable income. However, they both demonstrated a lack of
commitment to obtain either. Thus, this is not a situation in which a court is penalizing
parents solely due to their impoverished condition.
{¶ 53} Accordingly, based upon the foregoing reasons, we hereby overrule the
father’s second assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of
appellants costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, P.J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY:
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10CA27, 10CA28, 10CA29, 10CA30, 10CA31
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.