In re A.P. , 2011 Ohio 441 ( 2011 )

[Cite as In re A.P., 2011-Ohio-441.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
A.P., H.P., E.U., AND E.G. Hon. William B. Hoffman, P.J.
MINOR CHILDREN Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
Case No. 2010CA00302
OPINION
CHARACTER OF PROCEEDING: Stark County Court of Common Pleas,
Juvenile Division, Case No. 2009JCV01069
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 31, 2011
APPEARANCES:
For Appellee For Appellant
LISA A. LOUY JOHN A. DANKOVICH
Stark County Department Stark County Public Defender
of Job and Family Services 200 West Tuscarawas St., Ste. 200
300 Market Avenue North Canton, Ohio 44702
Canton, Ohio 44702
Stark County, Case No. 2010CA00302 2
Hoffman, P.J.
{¶1} Appellant Amy Patterson (“Mother”) appeals the September 23, 2010
Judgment Entry entered by the Stark County Court of Common Pleas, Juvenile Division,
which granted legal custody of three of her minor children to Violet McMasters. Mother
also appeals the trial court’s September 24, 2010 Judgment Entry and Findings of Fact
and Conclusions of Law, which granted permanent custody of her youngest child to
Appellee Stark County Department of Job and Family Services (“SCJFS”).1
STATEMENT OF THE CASE AND FACTS
{¶2} On August 20, 2009, SCJFS filed a Complaint in the Stark County Court of
Common Pleas, Juvenile Division, alleging Mother’s four children, A.P. (DOB 12/12/03),
H.P. (DOB 2/12/05), E.U. (DOB 3/15/06) and E.G. (DOB 7/22/08) to be neglected
and/or dependent children, and seeking emergency temporary custody of the children.
Following a shelter care hearing on the same day, the trial court committed the children
to the temporary custody of SCJFS.
{¶3} On September 16, SCJFS amended the Complaint, withdrawing the
allegation of neglect. Mother and the fathers of the children stipulated to a finding of
dependency. The trial court found the children dependent, and placed A.P., H.P., and
E.U. in the temporary custody of SCJFS. The trial court placed E.G. with her father
under protective supervision. Subsequently, on October 9, 2009, the parties filed an
agreed Judgment Entry, granting temporary custody of A.P., H.P., and E.U. to Violet
McMasters, a third party placement.
1
The fathers of the children are not parties to this appeal.
Stark County, Case No. 2010CA00302 3
{¶4} SCJFS filed a motion on January 6, 2010, asking the court to temporarily
suspend all of the parents’ visitation based upon the report of the three eldest children’s
counselors. The trial court granted the motion, and temporarily suspended the parents’
visitation. On February 8, 2010, SCJFS filed for emergency post-dispositional
temporary custody of E.G., which the trial court granted. E.G.’s father requested a full
evidentiary hearing on the issue. The parents also asked the trial court to address the
issue of visitation.
{¶5} On March 3, 2010, the trial court heard testimony relative to SCJFS’s
request for temporary custody of E.G. as well as the suspension of visitation. The trial
court found probable cause and awarded temporary custody of E.G. to SCJFS. The
trial court ordered visitation between the parents and children remain suspended. The
trial court scheduled the matter for review on May 6, 2010. At that time, the parents
again requested an evidentiary hearing regarding visitation. Following an evidentiary
hearing on July 1, 2010, the trial court found it was in the children’s best interest to
continue the order of no visitation.
{¶6} On July 13, 2010, SCJFS filed a motion for change of legal custody of
A.P., H.P., and E.U. to McMasters. The trial court scheduled a hearing on the motion
for July 30, 2010. Also on July 13, 2010, SCJFS filed a motion for permanent custody
of E.G. The trial court scheduled the permanent custody hearing for September 14,
2010. SCJFS filed an amended motion for permanent custody on July 21, 2010, and
the trial court rescheduled the hearing for September 22, 2010. The trial court also
rescheduled the hearing on a motion for change of legal custody to September 22,
2010.
Stark County, Case No. 2010CA00302 4
{¶7} At the hearing, the fathers of A.P., H.P., and E.U. stipulated to the change
of legal custody to McMasters.
{¶8} Jennifer Hafner, an ongoing caseworker with SCJFS, testified Mother’s
case plan required her to undergo assessments at Northeast Ohio Behavioral and at
Melymbrosia, attend Goodwill Parenting, and attend counseling. Hafner noted the
testing conducted at Northeast Ohio Behavioral indicated Mother had an IQ of 60, with
the verbal skills of an eleven year old, and the non-verbal skills of a five year old. Dr.
Thomas, the evaluator, had grave concerns about Mother, and recommended she not
regain custody of the children. The evaluator at Melymbrosia recommended SCJFS
move forward in placing the children. The Melymbroisa evaluator also noted continuing
to suspend visitation would be more beneficial for the children if the agency intended to
proceed toward permanent custody. The parenting instructor at Goodwill had grave
concerns regarding Mother’s self-reporting of anger issues as well as Mother’s ability to
independently meet the needs of the children. Goodwill could not recommend
reunification. The counselor at Renew, likewise, could not recommend reunification.
Hafner added Mother completed a drug and alcohol assessment and there were no
concerns.
{¶9} Hafner also detailed how SCJFS initially became involved with the family.
She explained SCJFS attempted to work with the family on a non-court basis as the
result of domestic violence concerns between Mother and E.G.’s father as Mother
appeared unable to protect the children. SCJFS filed the Complaint after an agency
worker visited Mother’s new residence and found the home to be in deplorable
condition. Subsequently, Dr. Cynthia Keck-McNulty of Northeast Ohio Behavioral
Stark County, Case No. 2010CA00302 5
evaluated A.P., H.P., and E.U., and found the children had been victims of sexual abuse
perpetrated upon them by Mother and E.G.’s father. When asked the effect of Mother’s
IQ on the children, Hafner stated SCJFS was concerned about Mother’s ability to make
appropriate choices. She explained Mother repeatedly lived in extremely unsafe homes
and allowed unsafe adults around the children. Hafner concluded Mother was unable to
remedy the conditions which caused the initial removal of the children from her care.
{¶10} Hafner also testified during the best interest phase of the hearing. Hafner
stated E.G. is currently placed in a foster to adopt home, and her foster parents have
expressed a desire to adopt her. E.G. has a strong bond with her foster parents and
refers to them as “Mommy” and “Daddy”. E.G. has minor speech delays, but the issue
is being handled by her foster parents. Hafner believed it was in E.G.’s best interest to
grant permanent custody to SCJFS, and any harm caused by severing the child’s bond
with Mother was outweighed by her need for permanency.
{¶11} Via Judgment Entry filed September 23, 2010, the trial court granted legal
custody of A.P., H.P., and E.U. to Violet McMasters. Via Judgment Entry filed
September 24, 2010, the trial court terminated Mother’s parental rights, privileges, and
responsibilities with respect to E.G., and granted permanent custody of the child to
SCJFS. The trial court issued findings of fact and conclusions of law relative to this
order.
{¶12} It is from these entries Mother appeals, raising the following assignments
of error:
{¶13} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
E.G. CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
Stark County, Case No. 2010CA00302 6
REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE AND IN VIOLATION OF THE AMERICANS WITH
DISABILITIES ACT OF 1990 (42 USC 12101 ET SEQ.); AS WELL AS AGAINST THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE UNITED STATES
CONSTITUTION AND THE INALIENABLE RIGHTS CLAUSE OF THE OHIO
CONSTITUTION.
{¶14} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTEREST OF THE CHILD E.G. WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
{¶15} “III. THE JUDGMENT OF THE TRIAL COURT GRANTING CHANGE OF
LEGAL CUSTODY IN THE BEST INTERESTS OF THE CHILDREN WAS AGAINST
THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶16} This case comes to us on the expedited calendar and shall be considered
in compliance with App.R. 11.1(C).
I
{¶17} In her first assignment of error, Mother contends the trial court’s finding
E.G. could not and should not be placed with her within a reasonable period of time was
against the manifest weight and sufficiency of the evidence. Mother adds such finding
violated the Americans with Disabilities Act as well as her constitutional rights to due
process and equal protection.
{¶18} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
Stark County, Case No. 2010CA00302 7
competent and credible evidence upon which the fact finder could base its judgment.
Cross Truck v.. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. 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 Constr. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.
{¶19} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶20} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, 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; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶21} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
Stark County, Case No. 2010CA00302 8
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶22} If the child is not abandoned or orphaned, then the focus turns to whether
the child cannot be placed with either parent within a reasonable period of time or
should not be placed with the parents. Under R.C. 2151.414(E), the trial court must
consider all relevant evidence before making this determination. The trial court is
required to enter such a finding if it determines, by clear and convincing evidence, that
one or more of the factors enumerated in R .C. 2151.414(E)(1) through (16) exist with
respect to each of the child's parents.
{¶23} As set forth in our Statement of the Facts and Case, supra, Mother
completed the assessments and parenting classes required by her case plan.
However, Mother did not alleviate the problems which caused the initial removal of the
children. All of the service providers expressed deep concerns about Mother’s ability to
parent the children and not one of them could recommend reunification. The service
providers further reported to having grave concerns about Mother’s ability to protect the
children.
{¶24} With regard to Mother’s argument the trial court’s finding violated the
Americans with Disabilities Act, we note Mother did not raise this issue to the trial court.
Accordingly, Mother has waived this right to raise this issue on appeal. See, Juv.R. 40
(E)(3)(d). Likewise, Mother has waived her equal protection and due process
arguments as she failed to raise these arguments before the trial court.
{¶25} Mother’s first assignment of error is overruled.
Stark County, Case No. 2010CA00302 9
II
{¶26} In her second assignment of error, Mother contends the trial court’s finding
it would be in E.G.’s best interest to grant permanent custody to SCJFS was against the
manifest weight and sufficiency of the evidence.
{¶27} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must 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; and (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.
{¶28} Jennifer Hafner testified E.G. was placed in a foster to adopt home and
the family had expressed both verbal and written interest in adopting her. E.G. is very
bonded to her foster parents, and calls them “Mommy” and “Daddy”. E.G.’s visits with
Mother were characterized as “routine” to the child as she did not have any separation
anxiety when leaving Mother at the end of the visit. E.G. has some minor delays in her
speech which are being addressed by the foster parents.
{¶29} The caseworker opined permanent custody would be in the best interest
of E.G. given the safety concerns with Mother. Not one of the service providers could
recommend reunification of Mother with any of the children. Also, E.G.’s guardian ad
litem recommended the trial court grant permanent custody of the child to SCJFS.
Stark County, Case No. 2010CA00302 10
{¶30} Based upon the foregoing, we find the trial court’s finding it was in E.G.’s
best interest to grant permanent custody was not against the manifest weight or based
upon insufficient evidence.
{¶31} Mother’s second assignment of error is overruled.
III
{¶32} In her final assignment of error, Mother contends the trial court’s granting
legal custody of her three eldest children was against the manifest weight and based
upon insufficient evidence.
{¶33} The statutory scheme regarding an award of legal custody does not
include a specific test or set of criteria, and a trial court must base its decision on the
best interest of the child. In re N .P., 9th Dist. No. 21707, 2004-Ohio-110, at ¶ 23. The
factors listed in R.C. 2151.414 may provide some guidance in determining whether a
grant of legal custody is in the best interest of the children. In re T.A., 9th Dist. No.
22954, 2006-Ohio-4468, at ¶ 17.
{¶34} In In re Fulton, 12th Dist. No. CA2002-09-236, 2003-Ohio-5984, at ¶ 11,
the Twelfth District Court of Appeals addressed a legal custody determination between
parents in a neglect situation. The Fulton Court indicated, when determining the issue of
legal custody, courts should consider the totality of the circumstances, including
relevant factors of R.C. 3109.04(F). The Fulton Court, however, cautioned there is no
statutory mandate those factors must be expressly considered and balanced together
before fashioning an award of custody. Fulton, 2003-Ohio-5984, at ¶ 11. Accordingly, in
legal custody cases, trial courts should consider all factors relevant to the best interest
of the child.
Stark County, Case No. 2010CA00302 11
{¶35} As discussed, supra, the testimony presented at the permanent custody
hearing reveals Mother could do little to remedy the conditions which initially led to the
removal of the children from her home. The service providers could not recommend
reunification. All of the service providers expressed concerns about Mother’s ability to
care for and protect the children. The therapist of the three older children testified the
children had been severely traumatized while under Mother’s care. Even the mention of
visits with Mother caused traumatic responses from them. The therapist could not
recommend even having the children visit with Mother, emphasizing their needs for
consistency and stability.
{¶36} Based upon the following, the trial court properly found granting legal
custody of the three older children to McMasters was in their best interest.
{¶37} Mother’s third assignment of error is overruled.
By: Hoffman, P.J.
Wise, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00302 12
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF:
A.P., H.P., E.U., AND E.G.
MINOR CHILDREN :
:
:
:
: JUDGMENT ENTRY
:
:
: Case No. 2010CA00302
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed to
Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS