In re D.K. , 2009 Ohio 5438 ( 2009 )

[Cite as In re D.K., 2009-Ohio-5438.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
IN THE MATTER OF:
D. K., CASE NO. 1-09-16
ADJUDICATED DEPENDENT,
NEGLECTED and ABUSED CHILD, OPINION
[KIM KNIEF, APPELLANT].
Appeal from Allen County Common Pleas Court,
Juvenile Division
Trial Court No. 2007 JG 24060
Judgment Affirmed
Date of Decision: October 13, 2009
APPEARANCES:
Michael J. Short for Appellant
Christina Steffan for Appellee, Allen Co. C.S.B.
F. Stephen Chamberlain for Appellee Kuba
Mark A. Van Dyne, Guardian Ad Litem
Case No. 1-09-16
PRESTON, P.J.
{¶1} Defendant-appellant, Kim Knief (hereinafter “Knief”), appeals the
judgment of the Allen County Court of Common Pleas, Juvenile Division,
awarding the plaintiff-appellee, Allen County Children Services Board
(hereinafter “ACCSB”), permanent custody of her child, (hereinafter “D.K.”). For
the reasons that follow, we affirm.
{¶2} In 2002, ACCSB filed complaints alleging that five of Knief’s
children, including D.K., were dependant, neglected, or abused. Ultimately, all
five children were found to be dependant, neglected, or abused. Four of the
children were eventually placed in the permanent custody of the ACCSB;
however, D.K. was placed in the legal custody of his father, Keith Kuba
(hereinafter “Kuba”) in July 2005.
{¶3} In August 2007, ACCSB began an investigation against Kuba, which
stemmed from allegations that his home was unsanitary and had no running water.
Eventually, on September 18, 2007, ACCSB removed D.K. from his father’s
custody and assumed temporary custody of D.K.
{¶4} Knief filed a motion for legal custody of D.K. on March 31, 2008,
and ACCSB filed a motion for permanent custody of D.K. on September 22, 2008.
Hearings on these motions were simultaneously held on January 7 and January 23,
2009. Subsequently, on March 4, 2009, the trial court issued its judgment entry
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denying Knief’s motion for legal custody and granting ACCSB’s motion for
permanent custody.
{¶5} Knief now appeals and raises two assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN FINDING THE PRIOR
INVOLUNTARY TERMINATION OF PARENTAL RIGHTS
WARRANTED TERMINATION OF THE MOTHER’S
PARENTAL RIGHTS IN THIS CASE.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN FINDING THAT THERE
WAS CLEAR AND CONVINCING EVIDENCE THAT THE
CHILD WAS ABANDONED.
{¶6} Prior to addressing her assignments of error, we must first discuss
the nature of this appeal. We note that 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, citing Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct.
1208, 31 L.Ed.2d 551; Meyer v. Nebraska (1923), 262 U.S. 390, 399, 43 S.Ct.
625, 67 L.Ed. 1042. A parent who is a suitable person has a “paramount” right to
the custody of their child. Id., citing In re Perales (1977), 52 Ohio St.2d 89, 97,
369 N.E.2d 1047; Clark v. Bayer (1877), 32 Ohio St. 299. As a result, “[p]arents
have a ‘fundamental liberty interest’ in the care, custody, and management of their
children,” and when the State seeks permanent custody of the child, it must act in
accordance with the due process guarantees provided in the U.S. and Ohio
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Constitutions. In re Shaeffer Children (1993), 85 Ohio App.3d 683, 689-90, 621
N.E.2d 426, citing Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599.
{¶7} When considering a motion for permanent custody, the Ohio
Revised Code sets out a two-prong test that a trial court must follow in its
evaluation. In re Franklin, 3d Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, ¶12.
A trial court may grant permanent custody of a child to the agency if it determines,
by clear and convincing evidence, that (1) one of the four factors listed in R.C.
2151.414(B)(1)(a)-(d) applies, and (2) that it is in the “best interest of the child.”
R.C. 2151.414(B)(1).
{¶8} In order to award permanent custody to an agency, the trial court
must find one of the four factors listed in R.C. 2151.414(B)(1) exists; these
include:
(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 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.
(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
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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.
{¶9} Here, the trial court relied on R.C. 2151.414(B)(1)(a), that the child
was not abandoned or has not been in the temporary custody of an agency for
twelve or more months, but that the child could not be placed with either parent
within a reasonable time. (Mar. 4, 2009 JE at 3-5). To determine whether a child
cannot be placed with either parent within a reasonable time or should not be
placed with either parent, in pertinent part, R.C. 2151.414(E) provides:
[T]he court shall consider all relevant evidence. If the court
determines, by clear and convincing evidence, at a hearing held
pursuant to division (A) of this section or for the purposes of
division (A)(4) of section 2151.535 of the Revised Code that one
or more of the following exist as to each of the child’s parents,
the court shall enter a finding that the child cannot be placed
with either parent within a reasonable time or should not be
placed with either parent:
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the
child;
***
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated
pursuant to this section or section 2151.353 or 2151.415 of the
Revised Code with respect to a sibling of the child.
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{¶10} Finally, to determine whether transferring permanent custody to the
agency is in the ‘best interests of the child,’ R.C. 2151.414(D) provides a non-
exclusive list of factors for the trial court to consider:
(1) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers 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, 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;
(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;
(5) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶11} A trial court must find that clear and convincing evidence exists as
to each of the above two prongs when it grants permanent custody to the agency.
In re Smith, 3d Dist. No. 9-04-35, 2005-Ohio-149, ¶36. Clear and convincing
evidence is “that measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.” In re Smith, 2005-Ohio-149, at ¶36, quoting Cross v. Ledford
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(1954), 161 Ohio St. 469, 477, 120 N.E.2d 118 (citations omitted). Upon review,
“when ‘the degree of proof required to sustain an issue must be clear and
convincing, 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.’” In re Smith, 2005-Ohio-149, at ¶36, quoting Cross, 161 Ohio St. at 477
(citations omitted).
Assignment of Error No. I
{¶12} In her first assignment of error, Knief argues that the trial court erred
in finding that the prior involuntary termination of her parental rights with respect
to her other children warranted the termination of her parental rights with respect
to D.K. Knief acknowledges that at the time her case was heard the statute
governing the termination of parental rights did permit the court to enter a finding
that a child could not be placed with either parent within a reasonable time if the
parent had had their parental rights previously terminated. However, Knief claims
that this statutory provision has been recently amended effective April 7, 2009,
and now requires an additional requirement in order to make that finding.
Although, Knief admits that this amendment was not in effect at the time her case
was heard, she still asks this Court to apply the new provision to this case because
the provisions of Chapter 2151 should be liberally construed and the overall goal
of Chapter 2151 is to keep families together.
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{¶13} In addition to Knief’s appellate brief, the guardian ad litem
(hereinafter “GAL”) for D.K., submitted a brief in support of Knief’s position that
the trial court erred in terminating her parental rights. With respect to her first
assignment of error, the GAL claims that the recent amendment is not new law,
but rather a codification of the law as it already existed; and thus, the trial court
erred by solely relying on the events in Knief’s past to justify its finding to
terminate her parental rights with D.K. The GAL cites the proposition that “a
prior adjudication of permanent custody does not result in a de facto determination
of parental rights. To do so would amount to a violation of a parent’s basic rights
to raise their children.” In re Shaffer (2000), 167 Ohio App.3d 141, 146-47, 854
N.E.2d 508. Thus, he contends that case law has always recognized a requirement
that the elements of permanent custody be demonstrated to exist at the time of the
filing of the motion for permanent custody.
{¶14} In determining whether an amended statute should apply to pending
cases, the Ohio Supreme Court has stated:
The issue of whether a statute may constitutionally be applied
retrospectively does not arise unless there has been a prior
determination that the General Assembly specified that the
statute so apply. Upon its face, R.C. 1.48 establishes a threshold
analysis which must be utilized prior to inquiry under Section
28, Article II of the Ohio Constitution.
Van Fosse v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489,
paragraph one of the syllabus. R.C. 1.48 provides that a statute is to be applied in
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a prospective manner unless expressly made retroactive. “If the statute does not
clearly indicate retroactive application, the statute may only apply to cases arising
subsequent to its enactment.” Nichols v. Villarreal (1996), 113 Ohio App.3d 343,
348-49, 680 N.E.2d 1259.
{¶15} Here, the particular statutory section at issue is R.C.
2151.414(E)(11), which is one factor that can be considered for both the
determination of whether the child can be placed with either parent within a
reasonable period of time, and the determination of the best interest of the child.
The original section stated:
(E) In determining at a hearing held pursuant to division (A) of
this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code whether a child cannot be placed
with either parent within a reasonable period of time or should
not be placed with the parents, the court shall consider all
relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A)
of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code that one or more of the following
exist as to each of the child’s parents, the court shall enter a
finding that the child cannot be placed with either parent within
a reasonable time or should not be placed with either parent:
(11) The parent has had parental rights involuntarily terminated
pursuant to this section or section 2151.353 or 2151.415 of the
Revised Code with respect to a sibling of the child.
The amendment to this section was effective April 7, 2009, amended by H.B. 7,
and now reads:
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(11) The parent has had parental rights involuntarily
terminated with respect to a sibling of the child pursuant to this
section or section 2151.353 or 2151.415 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 those
sections, and the parent has failed to provide clear and
convincing evidence to prove that, notwithstanding the prior
termination, the parent can provide a legally secure permanent
placement and adequate care for the health, welfare, and safety of
the child.
(emphasis added).
{¶16} While the amendment added an additional requirement to the finding
that a parent has had their parental rights previously involuntarily terminated, the
plain language of the amended statute does not indicate that the legislature
intended retroactive application. As a result, we find Knief’s arguments meritless
and that the amended version of R.C. 2151.414, which became effective after the
motion for permanent custody was filed, does not apply to the instant matter. In re
Weatherholt (Feb. 4, 2000), 3d Dist. Nos. 13-99-31, 13-99-32, at *2. Thus, we
review Knief’s assignment of error under the statutory provision that was in
existence at the time Knief filed her motion for legal custody and ACCSB filed its
motion for permanent custody, which was the previous version, not the recent
amended provision effective April 7, 2009. A.S. v. D.G., 12th Dist. No. 2006-05-
017, 2007-Ohio-1556, ¶20, citing Snowberger v. Wesley, 9th Dist. No. 22431,
2005-Ohio-3628, ¶13, fn.1; In re Kennedy, 1st Dist. No. C-060758, 2007-Ohio-
548, ¶8.
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{¶17} Besides the retroactive argument, Knief and the GAL argue that the
effect of the older provision leads to the conclusion that the loss of custody of one
child automatically leads to the loss of custody of all children. Essentially, they
claim that we should find that a parent’s prior termination of parental rights must
not de facto cause their parental rights to be terminated in the future. We agree
that a prior termination of parental rights should not result in a de facto
termination of parental rights in the future; however, as we discussed above, a trial
court must find that clear and convincing evidence exists as to two prongs when it
grants permanent custody to the agency. The fact that a parent has lost parental
rights with respect to other children is a factor that applies to both the
determination of whether a child cannot be or should not be placed with either
parent in a reasonable amount of time (R.C. 2151.414(E)(11)), and whether
transferring permanent custody to the agency is in the best interest of the child
(R.C. 2151.414(D)(5)). This Court has already stated that “with regard to the
number of factors required to be found under R.C. 2151.414(E), * * * ‘given the
plain language of the statute, the trial court only needs to find one of the factors
listed in (E) as to each parent before it ‘shall’ render a finding that a child cannot
be placed with either parent.’” In re Robinson, 3d Dist. No. 1-08-24, 2008-Ohio-
5311, ¶18, quoting In re Matthews, 3d Dist. Nos. 9-07-28, 9-07-29, 9-07-34, 2008-
Ohio-276, ¶26 (emphasis in original). While the trial court need only find one of
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the factors listed in (E) exist in order to render a finding that the child cannot or
should not be placed with the parent, this finding does not automatically lead to
the termination of parental rights. The trial court still must determine the “best
interest of the child,” which encompasses all of the factors listed in R.C.
2151.414(D).
{¶18} Furthermore, while we agree with the GAL that the case law is clear
that there must be sufficient evidence as to each of the elements in order to
terminate a parent’s rights with their child, case law is also clear that the trial court
need only find one of the factors in (E) as to each parent before it must render a
finding that a child cannot be placed with either parent within a reasonable period
of time. In re Robinson, 2008-Ohio-5311, at ¶18 (emphasis added). Here, the
particular statutory provision in effect did not require anything but a prior
termination of parental rights before the trial court was required to enter a finding
that D.K. could not be placed with Knief within a reasonable period of time.
{¶19} Finally, not only does the application of the statute itself not result in
a de facto termination of parental rights based on a parent’s prior involuntarily
terminated parental rights, here the trial court did not just rely on the fact that
Knief had had her parental rights previously terminated with respect to her four
other children; rather, it also found under R.C. 2151.414(E)(4) that Knief had
demonstrated a lack of commitment towards the child by failing to regularly
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support, visit, or communicate with the child when able to do so. Specifically, in
its judgment entry, the trial court stated:
The Court further finds under division (E)(4) that the mother has
demonstrated a lack of commitment toward the child by failing to
regularly support, visit or communicate with the child when able
to do so, particularly during that two-year period of time from
August of 2005 to August of 2007. She acknowledges that she had
an order of visitation with the child during those years, but that
she did not exercise the visitation. She attributes this to the fact
that she was “running around and drinking and all.” She also
testified and provided supporting evidence to establish that she
has been through counseling and gained insight into the poor
decisions she made in the past. The evidence does establish that
she has over the past year demonstrated more of a commitment
to assuming her parental responsibilities, but it is equally clear
that in the years prior to that, she demonstrated an unwillingness
to provide an adequate, permanent home for [D.K.] by
continuing her relationships with inappropriate persons and by
leaving the State and re-establishing herself elsewhere with an
individual she now acknowledges to have been inappropriate for
both herself and the child.
(Mar. 4, 2009 JE at 5). We note that Knief does not dispute the trial court’s
findings with respect to (E)(4), which alone would have been sufficient to find that
the child could not or should not be placed with either parent within a reasonable
period of time. In re Robinson, 2008-Ohio-5311, at ¶18, citing In re Matthews,
2008-Ohio-276, at ¶26. Moreover, in its “best interest of the child” determination,
the trial court went through each of the enumerated division (D) factors.
Additionally, the trial court noted that there was also evidence to support an
(E)(11) finding: that the parent had abandoned the child. Thus, the fact that Knief
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had previously had her parental rights terminated with respect to her other children
did not automatically lead to the termination of her parental rights with respect to
D.K.
{¶20} Finally, Knief and the GAL both mention in their briefs the great
lengths Knief has gone through in an effort to gain legal custody over D.K., and
they both claim that the record shows that now she can provide a stable residence
for D.K. and can properly care for him. However, neither party disputes the fact
that there was sufficient evidence to support the trial court’s findings that D.K.
could not be placed with Knief within a reasonable period of time because, under
R.C. 2151.414(E)(11), Knief had previously had her parental rights terminated
with respect to her four other children. Not only did the parties stipulate to the
removal of her other four children at the hearing, but the State admitted into
evidence the journal entries that had ultimately terminated Knief’s parental rights
with respect to her other four children. (Jan. 23, 2009 Tr. at 14-15); (State’s Ex.
E-H). Therefore, the trial court did not err in rendering its finding because there
was sufficient evidence that D.K. could not be placed with Knief within a
reasonable amount of time since she had had her parental rights involuntarily
terminated with respect to four other children.
{¶21} Overall, we find Knief and the GAL’s arguments meritless because:
(1) the amended statutory provision does not apply retroactively to Knief’s case,
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(2) under the terms of the statute, the trial court was required to make a finding
under R.C. 2151.414(B)(1) & (E) based solely on the prior involuntary termination
of her parental rights, (3) there was sufficient evidence to support the trial court’s
finding that D.K. could not be placed with Knief within a reasonable amount of
time, and (4) the trial court did not solely rely on the prior involuntary termination
of Knief’s parental rights in its decision to terminate her parental rights with
respect to D.K.
{¶22} Knief’s first assignment of error is, therefore, overruled.
Assignment of Error No. II
{¶23} In her second assignment of error, Knief and the GAL argue that the
trial court erred in finding that she had abandoned D.K. They claim that there was
evidence presented that she attempted to visit D.K. from August 2005 until August
2007, which rebutted the presumption under R.C. 2151.011(C) that she had the
intent to relinquish all claims to D.K.
{¶24} With respect to reviewing a trial court’s decision to terminate a
person’s parental rights, this Court has previously stated:
The decision of a trier of fact relating to a motion for permanent
custody of children will not be overturned, so long as the record
contains competent credible evidence from which the trial court
could have formed a firm belief or conviction that the essential
statutory elements have been established. In the Matter of
Lawson/Reid Children (April 18, 1997), Clark App. No. 96-CA-
0010. Furthermore, it must be noted that this Court must defer
to “the trial court’s findings of fact and rely on its ability to
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evaluate the credibility of the witnesses.” State v. Anderson
(1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034.
In re Franklin, 2006-Ohio-4841, at ¶21. Thus, we must determine whether the
record contains competent, credible evidence from which the trial court could have
formed a firm belief or conviction that the essential statutory elements were met.
While we do not believe that there was sufficient evidence to support a finding for
the exact amount of time the trial court stated, we do find that the trial court’s
general finding of abandonment was supported by sufficient evidence.
{¶25} Abandonment, prescribed under R.C. 2151.414(E)(10), is a factor
that can be considered for both prongs of the termination of parental rights test: the
determination of under R.C. 2151.414(B)(1); and the determination of the child’s
best interest. Abandonment has been defined as “any conduct on the part of the
parent which evinces a settled purpose to forego all parental duties and relinquish
all parental claims to the child.” In re Masters (1956), 165 Ohio St. 503, 505-06,
137 N.E.2d 752. In addition, R.C. 2151.011(C) states that “[f]or the purposes of
this chapter, a child shall be presumed abandoned when the parents of the child
have failed to visit or maintain contact with the child for more than ninety days,
regardless of whether the parents resume contact with the child after that period of
ninety days.” This statute creates a presumption of abandonment, which can then
be rebutted by the parent. In re Cravens, 3d Dist. No. 4-03-48, 2004-Ohio-2356,
¶23.
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{¶26} Regarding the issue of abandonment, Knief testified as follows:
Q. You ended up moving with him to Indiana. Is that correct?
A. Yes.
Q. And from approximately January to April, 2005, you had
no contact with the kids because you were living with him in
Indiana?
A. Yes, because of reasons that they had told me that I had lost
all contact with the kids. I wasn’t going to be allowed to be
around them, so I was just trying to start a new life.
Q. Ma’am, you need to answer the questions I’m asking. It’s
true that you left from January to April, 2005. Is that correct?
A. Yes.
Q. During that time you were still entitled to visitation. Is that
correct?
A. No. They had told me that everything was over with.
Q. When you came back in April, did you not visit with your
children?
A. I had my last final visit. They said they had set it up.
Q. Was it the last final visit in August, 2005?
A. It took them awhile to get the last visit set up with the foster
parents and everything else.
Q. So as far as…your testimony is that you were not allowed to
have any visitations from January to April, 2005?
A. That’s what I was told.
Q. Who told you that?
A. When I called up there at the services.
Q. Who did you speak with?
A. I could not remember. I mean that’s three years ago.
Q. Isn’t it true that you had visits with him [D.K.] in April and
then left again in May until August, 2005?
A. Like I said, I don’t remember. It’s been three years,
ma’am.
Q. Now once you lost permanent custody of the other kids, you
still had rights to visitation with [D.K.]. Is that correct?
A. Yes.
Q. And you didn’t regularly visit with [D.K.] until the agency
got involved this time. Is that correct?
A. Yes, because I wasn’t allowed.
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***
Q. And you stated that you went a year without seeing [D.K.]
between Keith getting permanent custody and us getting…I’m
sorry. Keith getting legal custody and us getting involved. Do
you blame Keith for that?
A. Yes.
Q. But you didn’t do anything to try to get your visits back,
did you?
A. I tried communicating with Kim. She even tried to sneak
him over to the…
Q. Hang on. I know who Kim is. I just want to make sure
everybody else does. Who is Kim?
A. It’s his girlfriend…Keith’s girlfriend.
Q. Okay. Go ahead?
A. She tried to sneak him like over by the Save-A-Lot or
something where I was living, and we would meet up; but that
was all because she said he refused, and I found out…[D.K.]
even told me this. He even turned around and told me, “Mom, I
wasn’t allowed to.”
Q. But you didn’t try to get any attorney, did you?
A. I tried and they couldn’t…I couldn’t find no attorney
because I couldn’t afford nothing.
***
Q. Back when Mr. Kuba had legal custody of [D.K.], I believe
you testified that you had court ordered visitation at that time?
A. Yes.
Q. So there was an order that you were supposed to have
specific visitation?
A. I think it was supposed to be set up through Grampy’s
House.
Q. Were you exercising that visitation?
A. I was wanting to go up there, but he just never brought him
up there. Grampy’s House had noted a lot of times where I
would try to get up there, but [D.K.] never showed up because
he never brought him up there.
Q. So you were attempting to exercise your visitation?
A. Yes.
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(Jan. 23, 2009 Tr. at 21-22, 32, 47).
{¶27} In addition to Knief’s testimony, Lakenya Johnson, the caseworker
who had supervised the initial visits between Knief and D.K. from May 2007 until
June 2008, testified at the hearing. (Jan. 23, 2009 Tr. at 58). Johnson testified that
she had witnessed a few of the visitations between D.K. and Knief, and as a result
of her observations, she had concerns regarding Knief’s parenting skills. (Id. at
66). Johnson said that even though Knief had not seen D.K. for about a year
before the visits started, she believed that Knief allowed D.K. to do whatever he
wanted to do and that she should have disciplined him when he needed it. (Id.).
{¶28} Moreover, Brent Bunke, the caseworker on D.K.’s prior case from
September 2004 until D.K.’s placement with Kuba in August 2005, also testified
to two extended periods of time when Knief had been absent from D.K.’s life.
(Jan. 23, 2009 Tr. at 109-13). In particular, Bunke stated that despite having
visitation rights, Knief failed to attend any of her visits with D.K. from January
2005 to March 2005, and from April 2005 to August 2005, because she had moved
to Indiana with Jeff Mills, her boyfriend at that time. (Id. at 110-12). In fact,
Bunke testified that Knief had approached him about her plans before she moved
to Indiana:
Q. In January of 2005, did Kim have a plan on moving?
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A. She did. She came to me and expressed she was thinking
about moving to Indiana. Jeff had found some work over there,
and she also thought she could get some work in there.
Q. Did you have any conversation about how that would affect
her case or her kids?
A. We did on numerous occasions.
Q. Okay. What was her response to that?
A. I just explained to her if she is in Indiana, it’s going to be
hard to have visits with her children since they’re here in a
foster home through the agency. She explained they understood
that. She wasn’t terribly happy about it, but just had made the
choice that she felt, at that time, it was better for her to get on
her feet, get a life started and went ahead and moved.
Q. At any point, did the agency stop visitations with [D.K.] or
any of her kids?
A. The visitations continued after Kim left. There was a point
in time where we stopped having Keith send [D.K.] to the agency
because there were no relatives…no parents for [D.K.] to visit
with because Kim wasn’t showing up for the visits because she
had moved to Indiana.
(Id. at 109-10). Bunke further testified that Knief still retained her regular
visitation rights with D.K. pursuant to a court order when Kuba was given legal
custody, although Bunke had no knowledge as to whether she exercised her
visitations rights because the agency was no longer involved. (Id. at 112-13).
{¶29} Based on the above evidence, in its judgment entry, the trial court
made the following finding of abandonment:
Division (D)(5) also directs the Court in its determination
regarding best interests to consider those factors set forth in
Revised Code Section 2151.414(E)(7) to (11). Of those, two have
application to the mother. First, as noted above, she has had
parental rights involuntarily terminated with respect to four
siblings of the child (Revised Code Section 2151.414(E)(11)).
Additionally, the Court finds under Revised Code Section
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2151.414(E)(10) that the mother has abandoned the child.
Revised Code Section 2151.011(C) provides as follows:
For the purposes of this chapter, a child shall be presumed
abandoned when the parents of the child have failed to visit or
maintain contact with the child for more than ninety days,
regardless of whether the parents resume contact with the child
after that period of ninety days.
Again, the mother acknowledges that she failed to visit or
maintain contact with the child for a period of two years from
August, 2005 until August, 2007, well beyond the ninety days
contemplated in the statute.
(Mar. 4, 2009 JE at 7).
{¶30} Knief and the GAL claim that there was little testimony regarding
the issue of abandonment. While we do not believe there was sufficient evidence
to support the finding that Knief had abandoned D.K. for over two years, it is clear
to this Court that there were several periods of time in which Knief had failed to
have contact with D.K. for at least the statutorily required ninety days, which
would have created a presumption of abandonment. Knief admitted that during
the two-year period of time she had court ordered visitation rights with D.K. In
addition, Bunke and Knief’s testimony both demonstrate that at least between
January 2005 to March 2005, and from April 2005 to August 2005, Knief failed to
attend any of her visitations with D.K. because she had moved to Indiana to “get a
life started.” We believe this testimony was sufficient to raise the presumption
that Knief had abandoned her child.
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{¶31} If a presumption of abandonment was raised, Knief then argues that
she presented enough evidence to rebut the presumption. There was testimony
from Knief that during the period of alleged abandonment, even though she had
visitation rights with D.K., she thought that she was not allowed to visit. In
addition, once Kuba received legal custody of D.K., Knief testified that she had
attempted to exercise her visitation rights and even had Kuba’s girlfriend try to
sneak D.K. over to another location so Knief could visit him.
{¶32} 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, thus we must give deference to the trial
court’s findings of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77,
80, 461 N.E.2d 1273. Based on this deference, we do not believe there is evidence
that would have rebutted the presumption that Knief had abandoned D.K. First of
all, Knief failed to provide any evidence with respect to the two periods of time in
2005 when she moved to Indiana. Even though Knief testified that she believed
she was not allowed to visit, her caseworker at the time stated that he had talked
with her a number of times about how her move to Indiana would effect her
visitations with her children. He even said that she was aware of the
consequences, yet she still chose to move because “it was better for her to get on
her feet, get a life started.” In addition, besides trying to have Kuba’s girlfriend
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sneak D.K. over to a secret location, there is no evidence in the record that Knief
took any kind of affirmative action to enforce her legal right to visitations with
D.K., even after Kuba was given legal custody of D.K.
{¶33} Knief and the GAL also argue that since returning to the child’s life,
she has been regularly attending visitation with D.K., and that she has never
missed any of the visits. However, R.C. 2151.011(C) clearly indicates that it is
immaterial whether the parent resumes contact with the child after the period of
abandonment. In re D.P., 10th Dist. No. 06AP-780, 2007-Ohio-1703, ¶7, citing In
re Cravens, 2004-Ohio-2356, at ¶23 (no rebuttal of presumption of abandonment
when father visited daughter after period of abandonment). Thus, even though
Knief eventually demonstrated her commitment to D.K. by regularly attending her
recent schedule of visitation and accomplishing her case plan’s goals, under the
terms of the statute her subsequent actions do not rebut the presumption that she
had abandoned D.K.
{¶34} We also note that while Knief disputes the particular finding of
abandonment, she does not dispute any of the other findings that the trial court
made in its judgment entry. In addition to the abandonment finding, and with
respect to the overall determination of the child’s best interest, the trial court
stated:
The Court having found as to both parents that, by definition,
the child cannot be placed with either parent within a reasonable
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period of time or should not be placed with either parent, the
Court must then turn to whether or not an award of permanent
custody is in the child’s best interest. For that determination,
the Court must look to Revised Code Section 2151.414(D).
Under that section, the Court is to consider “all relevant factors”
including five specifically delineated factors. As to sub-section
(1) of that division, * * * [t]he interaction and interrelationship
of the child with the mother has been extremely limited since
2005 and non-existent from August of 2005 until August of 2007.
The child has had no interaction or interrelationship with any of
his siblings or other relatives since August of 2005. The evidence
establishes that [D.K.] has a very positive interaction and
interrelationship with his foster caregivers and other children in
their home (Revised Code Section 2151.414(D)(1). The
Guardian Ad Litem reports in his Report and Recommendation
that [D.K.] “loves his mother and sincerely desires to reside with
her.” (Revised Code Section 2151.414(D)(2)). With respect to
the child’s custodial history, the record indicates that he resided
with his mother from his birth in 2001 until his removal in 2003,
was then in foster care until placement with the father in August
of 2005, was with the father until August of 2007, and again in
foster case since removal at that time. He has therefore not been
in custody of the mother for nearly five years (Revised Code
Section 2151.414(D)(3)), and had no contact with her for two of
those five years. Given that history, [D.K.] is in critical need of a
legally secure permanent placement and the Court concludes
that such placement cannot be achieved without a grant of
permanent custody to the agency (Revised Code Section
2151.414(D)(4)).
***
The mother’s more recent interest in her child and changes in
her life are commendable. She does appear to have taken steps
to break from her former unstable lifestyle. The current agency
caseworker observed nothing in the mother’s home to suggest
that the child would presently be at risk there. However, the
issue before the Court is not whether the mother has made
commendable changes in her life. Once one of the factors listed
in Revised Code Section 2151.414(E) is established, the question
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is strictly that of that which is in the child’s best interest. Based
on those factors set forth in Revised Code Section 2151.414, the
Court concludes that [D.K.’s] best interests will be served by a
grant of permanent custody to the Allen County Children
Services Board and termination of parental rights.
(Mar. 4, 2009 JE at 6-8). Knief does not dispute any of the additional findings
made by the trial court. Therefore, even if the trial court’s finding under R.C.
2151.414(E)(10) was in error, we believe that the other findings were certainly
sufficient to support the trial court’s permanent custody decision. In re J.E., 9th
Dist. No. 23865, 2008-Ohio-412, ¶15 (finding that even if the trial court’s finding
under R.C. 2151.414(E)(2) was in error, the undisputed alternate finding under
R.C. 2151.414(E)(11) was sufficient to support the trial court’s permanent custody
decision).
{¶35} Knief’s second assignment of error is, therefore, overruled.
{¶36} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr
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