[Cite as In re A.R., 2011-Ohio-6571.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: : Hon. W. Scott Gwin, P.J.
A.R. (D.O.B. 10-21-97) : Hon. Sheila G. Farmer, J.
Z.R. (D.O.B. 7-15-06) : Hon. John W. Wise, J.
:
:
: Case No. 2011-CA-00196
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2009-JCV-01483
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 19, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LISA A. LOUY MELODY L. BRIAND
Stark County Job & Family Services Public Defender's Office
221 Third Street. S.E. 200 Tuscarawas Street W., Ste. 200
Canton, OH 44702 Canton, OH 44702
[Cite as In re A.R., 2011-Ohio-6571.]
Gwin, P.J.
{1} Appellant T.R., the biological mother of A.R., age 14 and Z.R., age 5,
appeals a judgment of the Court of Common Pleas, Juvenile Division, of Stark County,
Ohio, which terminated appellant’s parental rights and granted permanent custody of
the two children to Stark County Job & Family Services (SCJFS). Appellant assigns two
errors to the trial court:
{2} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH MOTHER-APPELLANT
WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
{3} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTEREST OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{4} On November 24, 2009, SCJFS filed its initial complaint seeking
temporary custody of the two children, alleging they were dependent, neglected, and/or
abused. At the shelter care hearing, the court placed the children in the emergency
temporary custody of relatives with protective supervision by SCJFS. On January 28,
2010, the court found the children to be dependent and continued its temporary orders.
The court approved and adopted the case plan SCJFS had devised to reunite the
family.
{5} On September 28, 2010, the court granted SCJFS temporary custody of
the children and they were placed in a foster home. On April 20, 2011, SCJFS filed the
Stark County, Case No. 2011-CA-00196 3
motion for permanent custody of the children. On August 9, 2011, the Juvenile Court
issued its judgment entry terminating appellant’s parental rights and responsibilities and
granting permanent custody of the two children to SCJFS.
{6} The right to raise one’s child is an essential and basic civil right. In Re:
Murray (1990), 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169, quoting Stanley v. Illinois
(1972), 405 U.S. 645. A parent has a fundamental interest in the care, custody and
management of her child. Santosky v. Kramer (1982), 455 U.S. 745. The permanent
termination of a parent’s rights has often been called the family law equivalent of the
death penalty, and as such, courts must afford every procedural and substantial
protection the law allows to the parents. In Re: Smith (1991), 77 Ohio App. 3d 1, 16.
The controlling principle to be observed, however, is the ultimate welfare of the child. In
Re: Cunningham (1979), 59 Ohio St. 2d 100, 106, 391 N.E. 2d 1034.
{7} A trial court’s decision to grant permanent custody of a child to a public
children’s services agency must be supported by clear and convincing evidence. Our
Supreme Court has defined clear and convincing evidence as proof that produces in the
mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118.
{8} Both of appellant’s assignments of error allege the court’s decision is not
supported by the manifest weight and sufficiency of the evidence. Our standard of
reviewing the decision of a trial court in a permanent custody matter is to review the
entire record and determine whether there is sufficient competent and credible evidence
to support the judgment rendered by the trial court. Seasons Coal Company v.
Cleveland (1984), 10 Ohio St. 3d 77, 80, 461 N.E. 2d 1273. Trickey v. Trickey (1952),
Stark County, Case No. 2011-CA-00196 4
158 Ohio St. 9, 13, 106 N.E. 2d 772. The trial court must resolve disputed issues of fact
and weigh the testimony and credibility of the witnesses. Bechtol v. Bechtol (1990), 49
Ohio St. 3d 21, 23, 550 N.E. 2d 178. We defer to the trial court’s discretion because the
trial court had the opportunity to observe the witnesses and parties in weighing the
credibility of the proffered testimony in a way a reviewing court cannot. Thus, our
standard of review is the abuse of discretion standard. The Supreme Court has
frequently defined the term abuse of discretion as demonstrating the trial court’s attitude
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St. 3d 217, 219, 450 N.E. 2d 1140.
I.
{9} In her first assignment of error, appellant argues the trial court erred in
finding the children cannot or should not be placed with her within a reasonable time.
{10} R.C. 2151.414(B)(1) addresses under what circumstances a trial court
may grant permanent custody. This statute provides as follows:
{11} “(B)(1) Except as provided in division (B)(2) of this section, the court may
grant permanent custody of a child to a movant if the court determines at the hearing
held pursuant to division (A) of this section, by clear and convincing evidence, that it is
in the best interest of the child to grant permanent custody of the child to the agency
that filed the motion for permanent custody and that any of the following apply:
{12} “(a) The child is not abandoned or orphaned 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
Stark County, Case No. 2011-CA-00196 5
ending on or after March 18, 1999, 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.
{13} “(b) The child is abandoned.
{14} “(c) The child is orphaned, and there are no relatives of the child who are
able to take permanent custody.
{15} “(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 ending on or after March 18, 1999.”
{16} R.C. 2151.414(D) lists the factors a court should consider in determining
whether a child cannot or should not be placed with a parent within a reasonable time.
The statute states in pertinent part:
{17} “(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.
{18} “(2) Chronic mental illness, chronic emotional illness, mental retardation,
physical disability, or chemical dependency of the parent that is so severe that it makes
Stark County, Case No. 2011-CA-00196 6
the parent unable to provide an adequate permanent home for the child at the present
time and, as anticipated, within one year after the court holds the hearing pursuant to
division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of
the Revised Code;
{19} ***
{20} “(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 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.
{21} ***
{22} “(16) Any other factor the court considers relevant.”
{23} The trial court made ten findings of fact with regard to whether the children
can be or should be placed with appellant within a reasonable time. The court found the
original concerns which necessitated the removal of the children from appellant’s
custody were domestic violence, drug use, housing issues, and mental health issues.
The court found SCJFS prepared a case plan which was adopted by the court on
January 28, 2010. The case plan required appellant to submit to a parenting evaluation
at the Northeast Ohio Behavioral Health, and to follow the recommendations made by
the evaluator. Appellant was to obtain a Quest evaluation and follow recommendations.
Appellant was to secure independent appropriate housing and employment and
complete Goodwill Parenting classes.
Stark County, Case No. 2011-CA-00196 7
{24} The trial court found appellant had completed the parenting assessment at
Northeast Ohio Behavioral Health, but had not followed the recommendations.
Appellant had completed a Quest evaluation but had relapsed and continues to abuse
alcohol and marijuana. The court noted her continued failure to drop positive urines has
resulted in no contact with her children for over a year. The court found appellant was
living with a friend, but had neither housing on her own nor any employment. The court
found appellant attends the Crisis Center in an attempt to address her depression over
the loss of her children.
{25} The court found the concerns which had necessitated removal of the
children from appellant’s custody had not been remedied. The court found appellant has
long term mental and drug issues, and her prognosis is poor. The court found despite
SCJFS’s reasonable efforts to assist her, appellant had failed continuously and
repeatedly to substantially remedy the conditions which were the basis for the children’s
removal from the home.
{26} The court also found the children had been in the custody of SCJFS for
twelve months out of the last twenty-two consecutive months as of the hearing date of
August 9, 2011.
{27} At the outset, we find the trial court was incorrect in finding the children
had been in the custody of the agency for twelve months out of the last twenty-two
consecutive months. The record demonstrates SCJFS received temporary custody of
the children on September 28, 2010, and the agency filed its motion for permanent
custody on April 20, 2011. The Supreme Court has cautioned that when calculating the
length of time children have been in an agency’s custody, the time that passes between
Stark County, Case No. 2011-CA-00196 8
the filing of the motion for permanent custody and the permanent custody hearing does
not count towards the twelve-month period set forth in RC. 2151.414. In Re: C.W., 104
Ohio St. 3d 163, 2004-Ohio-6411, 818 N.E. 2d 1176.
{28} The statute authorizing the court to grant permanent custody is in the
disjunctive. If the child has not been in the temporary custody of the agency for the
prescribed time, then the court may review whether the children cannot and should not
be placed with either of the parents within a reasonable time.
{29} Appellant argues first, appellant was not prosecuted for domestic violence
and the case plan did not address any concerns about it. Regarding housing, appellant
argues the case worker did not thoroughly investigate the arrangement between
appellant and her friend, and in fact, appellant’s housing arrangement with her friend
was stable. Appellant admits continuing to use marijuana but asserts SCJFS did not
refer her for further treatment when she relapsed after completing the Quest Program.
Appellant argues the case worker knew she used marijuana as a coping mechanism for
stress, but the case worker did not attempt to alleviate the stress generated by the
removal of the children. Appellant argues the case worker’s testimony that she had not
complied with counseling was not credible, and appellant did in fact comply and takes
her medication. Finally, appellant urges the trial court relied too much on Dr. Thomas’
testimony that appellant’s prognosis was poor, because Dr. Thomas had not consulted
with appellant’s treatment provider.
{30} It is apparent that the trial court simply did not believe appellant made
sufficient timely efforts to remedy the conditions in her home. We find there is sufficient,
competent and credible evidence in the record from which the court could conclude by
Stark County, Case No. 2011-CA-00196 9
clear and convincing evidence the children could not and should not be placed with her
within a reasonable time.
{31} The first assignment of error is overruled.
II.
{32} In her second assignment of error, appellant argues the trial court erred in
finding the best interest of the minor children would be served by granting permanent
custody to SCJFS.
{33} R.C. 2151.414(D) sets out the factors a court should consider in
determining the best interest of the child. The relevant factors are:
{34} "(1) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster care givers and out-of-home providers, and any other
person who may significantly affect the child;
{35} "(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;
{36} "(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;
{37} "(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;
{38} ***”
Stark County, Case No. 2011-CA-00196 10
{39} The trial court made eleven findings of fact with regard to the best interest
of the children. The court found neither child has any special physical, educational, or
medical issues but the younger child has some behavioral issues. The court found no
relative placement options have been provided. The court found there was minimal
bond between appellant and the older child, but there is a bond with the younger child.
The court found appellant had failed to visit or call about the children because she was
involved in drugs. The court found the children are extremely bonded to one another,
and should remain together for purposes of adoption. The court found the parents of
the children are either unable or unwilling to provide a safe and stable environment for
them, and the guardian ad litem has recommended permanent custody be granted to
SCJFS. The court found the children are in a stable foster home, and the older child
has expressed her desire not to return to her mother. The trial court found it was in the
best interest of the children to grant permanent custody to SCJFS so they could be
adopted. The court found the children deserved the opportunity for a stable life in which
they can thrive and grow and become fully functioning members of society.
{40} Appellant argues because the agency denied her any contact with the
children, the trial court could not have clearly determined whether appellant and the
children interacted in a positive manner. Appellant argues the trial court relied on
information provided to the children’s counselor and the testimony of the case worker
regarding one single visit. There was testimony the younger child expressed a desire to
return home and wanted to be reunited with appellant.
{41} During the pendency of the motion for permanent custody, appellant
moved to extend the temporary custody order so she could continue to work on her
Stark County, Case No. 2011-CA-00196 11
case plan and reunify her family. Appellant asserts reunification with her is in the
children’s best interest, and the trial court erred in finding they should be adopted.
{42} We have reviewed the record, and we find there was sufficient, competent
and credible evidence presented from which the trial court could determine by clear and
convincing evidence it was in the best interest of these children for permanent custody
to be awarded to SCJFS so they could be adopted.
{43} The second assignment of error is overruled.
{44} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, of Stark County, Ohio, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE
WSG:clw 1205
[Cite as In re A.R., 2011-Ohio-6571.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF:
A.R. (D.O.B. 10-21-97)
Z.R. (D.O.B. 7-15-06 ) :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
Defendant-Appellee : CASE NO. 2011-CA-00196
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, is affirmed.
Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE
In re A.R.
Combined Opinion