In re A.L. , 2012 Ohio 483 ( 2012 )

[Cite as In re A.L., 2012-Ohio-483.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P. J.
Hon. Sheila G. Farmer, J.
A.L. and Hon. John W. Wise, J.
J.L. Case No. 11 CA 25
DEPENDENT/NEGLECTED CHILDREN OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 09 JC
609
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 8, 2012
APPEARANCES:
For Appellee For Appellant
AMBER D. WOOTTON RONALD C. COUCH
ASSISTANT PROSECUTOR 121 West 8th Street
139 West 8th Street, P. O. Box 640 Cambridge, Ohio 43725
Cambridge, Ohio 43725
Guernsey County, Case No. 11 CA 25 2
Wise, J.
{¶1} Appellant-Father Terry Kaczur appeals the decision of the Guernsey
County Court of Common Pleas, Juvenile Division, which granted permanent custody
of the minor children A.L. and J.L. to Appellee Guernsey County Children Services
Board (“GCCSB”). The relevant facts leading to this appeal are as follows.
{¶2} Appellant is the father of one of the two children at issue in this matter,
A.L., born in 1996. The other child J.L., was born in 2002.1 The children’s mother is
Debra Lucas, who has filed a separate appeal.
{¶3} On October 28, 2009, GCCSB filed a complaint in the Guernsey County
Court of Common Pleas, Juvenile Division, alleging A.L and J.L. to be dependent,
and/or neglected. GCCSB filed the complaint based on concerns about Debra’s mental
health issues and Debra not providing proper health care concerning A.L. Both children
were placed in temporary agency care via an ex parte order.
{¶4} The matter proceeded to an adjudicatory hearing on December 17, 2009.
The trial court thereafter issued a judgment entry finding A.L. to be neglected and J.L.
to be dependent.
{¶5} In the meantime, Appellant Kaczur and his mother, Carolyn Wigger, each
filed a motion for custody of both children.
{¶6} On September 15, 2010, GCCSB filed a motion for permanent custody of
A.L. and J.L.. Evidentiary hearings were conducted on the permanent custody motion
on January 13, March 28, and July 15, 2011.
1
As of the date of the judgment entry under appeal, J.L.’s paternity had not been
established. Appellee GCCSB does not appear to challenge appellant’s standing to
appeal as to both children.
Guernsey County, Case No. 11 CA 25 3
{¶7} After hearing the evidence, the trial court issued a judgment entry on
August 3, 2011, granting permanent custody of A.L. and J.L. to the agency.
{¶8} On August 17, 2011, appellant filed a notice of appeal. He herein raises
the following three Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED IN FINDING THAT THE CHILDREN
COULD NOT BE PLACED WITH THE MOTHER IN A REASONABLE AMOUNT OF
TIME PURSUANT TO O.R.C. SEC. 2151.414(B)(2).
{¶10} “II. THE TRIAL COURT ERRED IN FINDING THAT PERMANENT
CUSTODY WAS IN THE BEST INTERESTS OF THE CHILDREN UNDER O.R.C.
SEC. 2151.414(D).
{¶11} “III. THE TRIAL COURT ERRED IN FINDING THAT IT SHOULD NOT
PLACE THE CHILDREN WITH CAROLYN WIGGER[,] THE PATERNAL
GRANDMOTHER OF A.L.
I.
{¶12} In his First Assignment of Error, appellant contends the trial court erred in
granting permanent custody of A.L. and J.L. to the agency. We disagree.
{¶13} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there
is relevant, competent and credible evidence upon which the fact finder could base his
or her judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App.No. CA-5758.
Accordingly, judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d
Guernsey County, Case No. 11 CA 25 4
279, 376 N.E.2d 578. Furthermore, it is well-established that the trial court is in the
best position to determine the credibility of witnesses. See, e.g., In re Brown, Summit
App.No. 21004, 2002-Ohio-3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St.2d
230, 227 N.E.2d 212. In the case sub judice, the trial court relied on R.C.
2151.414(B)(2), which states as follows:
{¶14} “With respect to a motion made pursuant to division (D)(2) of section
2151.413 of the Revised Code, the court shall grant permanent custody of the child to
the movant if the court determines in accordance with division (E) of this section that
the child cannot be placed with one of the child's parents within a reasonable time or
should not be placed with either parent and determines in accordance with division (D)
of this section that permanent custody is in the child's best interest.”2
{¶15} In determining whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, a trial court is to
consider the existence of one or more factors under R.C. 2151.414(E), including
whether or not “[f]ollowing 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
2
Appellant has not herein specifically challenged the trial court's utilization of R.C.
2151.414(B)(2), which has a narrower application than R.C. 2151.414(B)(1)(a). See In
re A.U., Montgomery App. No. 22264, 2008–Ohio–186, ¶ 17. We decline to examine
this issue sua sponte.
Guernsey County, Case No. 11 CA 25 5
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.” See R.C. 2151.414(E)(1).
{¶16} At the outset, we note that Appellant-Father, who is on sex offender
probation in Florida, does not herein argue for custody to himself. He was not part of
the case plan; his procedural stance in this appeal is challenging permanent custody
per se and/or advocating that his mother, Carolyn Wigger, should be named custodian,
as further analyzed in the third assigned error, infra.
{¶17} The record in the case sub judice reveals that A.L. has Hodgkin’s
Lymphoma and thus has specific medical needs. The mother, Debra Lucas, was
evaluated by Gary Wolfgang, Ph.D., and found to be “floridly psychotic,” diagnosed
with paranoid schizophrenia. Dr. Wolfgang expressed concerns over mother’s ability to
properly care for the children. According to the case worker, Johnna Denbow, mother
was compliant with most aspects of her case plan, but there have been questions as to
mother’s consistency in taking her psychotropic medication. Appellant nonetheless
maintains that mother was “completely compliant” with the case plan (Appellant’s Brief
at 10); however, even where a parent has participated in his or her case plan and
completed most or all of the plan requirements, a trial court may still properly determine
that such parent has not substantially remedied the problems leading to agency
involvement. See, e.g., In re Pendziwiatr/Hannah Children, Tuscarawas App.No. 2007
AP 03 0025, 2007-Ohio-3802, ¶ 27.
Guernsey County, Case No. 11 CA 25 6
{¶18} Upon review, we find the trial court did not commit reversible error, as
urged by appellant, in determining that A.L. and J.L. could not or should not be placed
with the mother, Debra Lucas, within a reasonable time under R.C. 2151.414(B)(2).
{¶19} Accordingly, appellant's First Assignment of Error is overruled.
II.
{¶20} In his Second Assignment of Error, appellant contends the trial court erred
and abused its discretion in finding the children's best interests would be served by
granting permanent custody to the agency. We disagree.
{¶21} It is well-established that “[t]he 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.” In re
Mauzy Children (Nov. 13, 2000), Stark App.No. 2000CA00244, quoting In re Awkal
(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.
{¶22} In determining the best interest of a child for purposes of permanent
custody disposition, the trial court is required to consider the factors contained in R.C.
2151.414(D). These factors are as follows:
{¶23} “(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;
{¶24} “(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;
Guernsey County, Case No. 11 CA 25 7
{¶25} “(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 * * *;
{¶26} “(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;
{¶27} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”
{¶28} The record indicates that although A.L. and J.L. love their mother and
have looked forward to visits, A.L. has stated that she does not wish to return to living
with her mother. Both children were described as adjusting well to foster care.
Appellant, who lives out-of-state, has seen the children only once in the last decade,
although he has kept up with telephone contact and birthday gifts. The children were
“ambivalent” about maintaining contact with appellant. Furthermore, appellant is not
under any child support order. The guardian ad litem and CASA advocate have both
strongly recommended permanent custody and the need for a stable environment.
{¶29} Upon review, we find the trial court did not err in determining the best
interests of the children would be best served by granting permanent custody to
GCCSB.
{¶30} Appellant's Second Assignment of Error is overruled.
Guernsey County, Case No. 11 CA 25 8
III.
{¶31} In his Third Assignment of Error, appellant contends the trial court erred in
denying his mother, Carolyn Wigger’s, motion for custody of both children. We
disagree.
{¶32} One of the dispositional alternatives available to a juvenile court in certain
cases is relative custody. See R.C. 2151.415(F) and R.C. 2151.415(A)(3). However,
the Ohio Supreme Court has determined that the duty of a court in determining the
best interest of a child does not include a finding that no suitable relative is available for
placement. See In re Schaefer (2006), 111 Ohio St.3d 498.
{¶33} In the case sub judice, Carolyn Wigger, the paternal grandmother of A.L.
and purported paternal grandmother of J.L., lives in Florida and has had limited contact
with the children. Evidence was presented to the trial court that interstate home studies
have twice resulted in negative recommendations, in part because of multiple
instances of lack of cooperation with appointments and failure to provide needed
information by Ms. Wigger.
{¶34} Under the facts and circumstances presented in the case sub judice, we
hold the trial court did not err or abuse its discretion in declining to award custody to
Ms. Wigger in lieu of permanent custody.
Guernsey County, Case No. 11 CA 25 9
{¶35} Appellant's Third Assignment of Error is overruled.
{¶36} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0130
Guernsey County, Case No. 11 CA 25 10
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
A.L. and : JUDGMENT ENTRY
:
J.L. :
:
DEPENDENT/NEGLECTED CHILDREN : Case No. 11 CA 25
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is
affirmed.
Costs assessed to appellant.
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JUDGES