In re Mosley Children , 2015 Ohio 5109 ( 2015 )

[Cite as In re Mosley Children, 2015-Ohio-5109.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
MOSLEY CHILDREN Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
Case Nos. 2015 AP 07 0037,
2015 AP 0038, 2015 AP 0039,
2015 AP 0040, 2015 AP 0041
OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Juvenile Division, Case
Nos. 14 JN 00073, 14 JN 00074, and
15 JN 00035
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2015
APPEARANCES:
For Appellee For Appellant – Kody Mosley
Tuscarawas County Job/Family Services
JEFFREY M. KIGGANS ADAM WILGUS
389 16th Street, SW 401 Tuscarawas St. W. - Suite 200
New Philadelphia, Ohio 44663 Canton, Ohio 44702
For Mother – Holly Feister Guardian ad Litem
JACOB WILL GERRIT DENHEIJER
116 Cleveland Ave. N. Suite 808 222 West Main St.
Canton, Ohio 44702 Ravenna, Ohio 44266
For Mother – Michelle Broad For - Z.B.
JOHN GARTRELL SHARON BUCKLEY-MIRHAIDARI
153 N. Broadway 152 N. Broadway, Suite 200
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 2
2015 AP 0040, 2015 AP 0041
Hoffman, P.J.
{¶1} In Tuscarawas App. No. 2015 AP 07 0037, Appellant Kody Mosley
(“Father”) appeals the June 22, 2015 judgment entry entered by the Tuscarawas County
Court of Common Pleas, which terminated his parental rights, privileges and
responsibilities with respect to two of his minor children, Z.B. and Ka.M., and granted
permanent custody of the children to Appellee Tuscarawas County Job and Family
Services (“TCJFS”). In Tuscarawas App. No. 2015 AP 07 0038, Appellant Holly Feister
(“Mother”) appeals the same June 22, 2015 judgment entry, which terminated her
parental rights, privileges and responsibilities with respect to one of her minor children,
Ka.M., and granted permanent custody of the child to TCJFS. In Tuscarawas App. No.
2015 AP 07 0039, Mother appeals the same entry with respect to her minor child, Ke.F.
In Tuscarawas App. No. 2015 AP 07 0040, Father appeals another June 22, 2015
judgment entry also entered by the Tuscarawas County Court of Common Pleas, which
terminated his parental rights, privileges and responsibilities with respect to his infant
child, Ko.M., and granted permanent custody of the child to TCJFS. In Tuscarawas App.
No. 2015 AP 07 0041, Mother appeals the same June 22, 2015 judgment entry, which
terminated her parental rights, privileges and responsibilities with respect to her infant
child, Ko.M., and granted permanent custody of the child to TCJFS.
STATEMENT OF THE FACTS AND CASE
{¶2} Father is the biological father of Z.B. (dob 3/24/2009), Ka.M. (dob 8/5/2013),
Ko.M. (dob 2/13/2015). The biological mother of Z.B. is Michelle Broad, nka Michelle
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 3
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Kennedy.1 Mother is the biological mother of K.F., Ka.M., and Ko.M. The biological
father of K.F. is Anthony Hockenberry.2
{¶3} On March 4, 2014, while Z.B. was with Michelle Broad, TCJFS social worker
Kari Abel visited the home and found Z.B. heavily bruised. Nearly every area of the child’s
body was bruised, including behind his ear. The child was seen at Akron Children’s
Hospital that same day. The initial report from the hospital indicated Z.B.’s injuries were
consistent with abuse. At the time, Z.B., Ka.M., and K.F. resided with Father and Mother.
The trial court conducted a shelter care hearing on March 5, 2015, and ordered Z.B.,
Ka.M., and K.F. into the temporary custody of TCJFS. The trial court appointed Attorney
Gerrit denHeijer as guardian ad litem for the children, and Attorney Sharon Buckley as
counsel for Z.B.
{¶4} TCJFS filed a complaint on March 6, 2014, alleging Z.B. was an abused
child, and Ka.M. was a neglected and dependent child. TCJFS filed a second complaint
the same day, alleging K.F. was a neglected and dependent child. After the parties
stipulated, the trial court adjudicated Z.B. abused, and Ka.M. and K.F. dependent on April
9, 2014. The trial court continued temporary custody with TCJFS.
{¶5} On January 30, 2015, TCJFS filed a motion for permanent custody of Z.B.,
Ka.M., and K.F. The trial court scheduled a hearing for April 23, 2015.
{¶6} Mother gave birth to Ko.M. on February 12, 2015. The newborn was
immediately placed in the temporary custody of TCJFS. The trial court appointed
Attorney Gerrit denHeijer as guardian ad litem for Ko.M. On February 17, 2015, TCJFS
1 Broad is not a party to these appeals.
2 Hockenberry is not a party to these appeals.
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 4
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filed a complaint, alleging Ko.M. was a dependent child. At an adjudicatory hearing on
April 10, 2015, Mother and Father stipulated Ko.M. was dependent, and the trial court so
found. TCJFS requested the initial disposition for Ko.M. be permanent custody. Mother
and Father both requested six month extensions of temporary custody relative to all the
children.
{¶7} The guardian ad litem filed his reports on April 30, 2015. The guardian
recommended permanent custody of the children be granted to TCJFS.
{¶8} The final hearing commenced on April 23, 2015, and concluded on June 3,
2015. The following evidence was adduced at the hearing.
{¶9} Jaime Grunder, the ongoing case manager, testified regarding how TCJFS
began its involvement with the family. Grunder detailed Parents’ case plans. Both
Parents’ case plans required they undergo psychological assessments and follow all
recommendations, and complete parenting classes. Father was also required to complete
an anger management assessment. Father’s case plan was subsequently amended to
include the Voyager Program, a long term cognitive behavioral treatment program which
runs approximately 52 weeks.
{¶10} Grunder testified neither Mother nor Father have remedied the concerns
which led to the agency’s involvement. Parents had failed to take any responsibility for
what had happened to Z.B., choosing to blame Broad for the boy’s injuries. Z.B. told
Grunder he wished to remain in his foster home because he feels safe, is being taken
care of, and no one is hurting him. Grunder witnessed Z.B.’s fear of Parents. Z.B. and
KoM. are in the same foster home, and the family wishes to adopt both children. K.F.
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and Ka.M. are together in a different foster home, and that family wishes to adopt those
children.
{¶11} Brandi Ankrom, a counselor with Personal and Family Counseling Services,
has been counseling Z.B. since June, 2014. Ankrom stated when she discusses Mother
and Father, Z.B. immediately becomes agitated, throwing toys, running around, and
speaking faster and in a high-pitched tone. Ankrom explained the changes in Z.B.’s
behavior indicate he has a lot of anxiety and stress about Parents. Z.B. revealed Father
and Mother hit him with closed fists and locked him in the basement. In addition, Z.B.
disclosed emotional abuse, including name calling. Z.B. fears Parents and does not want
to return to their home.
{¶12} Barbara Schwartz, a clinical therapist at Chrysalis Counseling Center,
testified she conducted psychological assessments of Mother and Father. With respect
to Mother, Schwartz stated the results of her psychological testing were invalid. Mother
responded in a way Schwartz described as “wish fulfillment”, the way in which Mother
wished her life was, not reality. Mother did not express any concerns about Father’s two
domestic violence convictions, indicating the incidents did not have anything to do with
Parents’ relationship. Mother told Schwartz Father was an ideal dad and she had no
concerns for the children’s safety. Mother denied Father had any role in the abuse of
Z.B. Mother noted Father was blamed for everything that happened, which she stated
was unfair. Schwartz described Mother as being somewhat anxious, and having feelings
of inadequacy, but also having some narcissistic personality traits. Mother had a
tendency to over-react emotionally. Mother was extremely guarded.
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 6
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{¶13} With respect to Father, Schwartz testified Father accepted little to no
responsibility for his previous acts of domestic violence. Father told Schwartz Broad hurt
Z.B. and blamed him and Mother. Father’s relationship with Broad was an antagonistic
one, which Schwartz stated would not be beneficial to Z.B. Schwartz determined the
results of Father’s psychological testing were invalid as his responses were strongly
influenced by his desire to present his current situation and his parenting skills in an
unrealistic positive light. Father exhibited narcissistic personality traits and schizoid
personality features. Schwartz’s primary concern was Father’s anger and impulse control
issues, which remained even after Father had completed a treatment program at
Melymbrosia in 2013.
{¶14} Dr. Steven Dean also conducted psychological assessments of Mother and
Father. With respect to Mother, Dr. Dean stated the results of Mother’s psychological
testing were invalid as Mother portrayed herself in an overly positive light. Mother had no
appreciation of the severity of Father’s past behavior. Dr. Dean expressed concerns
Mother would try to protect Father or cover for him, including taking the blame. Dr. Dean
recalled a physical altercation between Father and Broad in Mother’s presence. When
the police arrived, Mother informed them she had hit Broad, not Father.
{¶15} With respect to Father, Dr. Dean testified he had evaluated Father and had
seen him for individual counseling several years earlier after Father was convicted of
domestic violence. During the current evaluation, Father minimized the seriousness of
his actions which resulted in the prior domestic violence convictions, and accepted no
responsibility for what had occurred. Although Father denied physically abusing Mother,
Dr. Dean sensed the relationship between Parents was verbally abusive. Dr. Dean did
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 7
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not find Father to be honest in his answers. Father attempted to present himself in an
overly favorable light. Dr. Dean expressed concerns about Father re-engaging in
domestic violence. Dr. Dean recommended long term domestic violence treatment,
including participation in the Voyager Program.
{¶16} Sondra Fronimo, the executive director of the Voyager Program, testified
Father started the batterers’ intervention program in the fall of 2014, but was removed
from the program in February, 2015, because he was not actively participating. Members
of the group voted to allow Father to return to the program. Fronimo began seeing
improvement in Father shortly before the commencement of the permanent custody
hearing. Fronimo noted Father continued to deny abusing Z.B.
{¶17} Via Judgment Entries filed June 22, 2015, the trial court terminated Mother
and Father’s parental rights, privileges, and responsibilities with respect to Z.B., K.F.,
Ka.M., and Ko.M., and granted permanent custody of the children to TCJFS.
{¶18} It is from these entries Parents appeal.
{¶19} In Tusc. App. Nos. 2015 AP 07 0037 and 0040, Father raises the following
assignment of error:
{¶20} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF
THE EVIDENCE.”
{¶21} In Tusc. App. Nos. 2015 AP 07 0038, 0039, and 0041, Mother assigns the
following as error:
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 8
2015 AP 0040, 2015 AP 0041
{¶22} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF
THE EVIDENCE.
{¶23} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
OR PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶24} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
FATHER
2015 AP 07 0037
2015 AP 07 0040
I
MOTHER
2015 AP 07 0038
2015 AP 07 0039
2015 AP 07 0041
I, II
{¶25} We elect to address all of Parents’ assignments of error together. In his
sole assignments of error in Tusc. App. No. 2015 AP 07 0037 and 0040, Father contends
the trial court’s finding the children could not or should not be placed with him within a
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 9
2015 AP 0040, 2015 AP 0041
reasonable time was against the manifest weight and sufficiency of the evidence. In her
first assignments of error in Tusc. App. Nos. 2015 AP 07 0038, 0039, and 0041, Mother
also argues the trial court’s finding the children could not or should not be placed with her
within a reasonable time was against the manifest weight and sufficiency of the evidence.
In her second assignments of error, Mother maintains the trial court’s finding it was in the
children’s best interest to grant permanent custody TCJFS was against the manifest
weight and sufficiency of the evidence.
{¶26} 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, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). 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., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶27} 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.
{¶28} 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
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 10
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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.
{¶29} 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.
{¶30} 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
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.
{¶31} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 11
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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.
{¶32} As set forth in our statement of the facts and case, supra, we find there was
both sufficient and substantial competent evidence Father and Mother failed to remedy
the problems which initially caused the removal of the children from their home. Parents
continued to deny abusing Z.B. and refused to take any responsibility for what had
happened to the child. The results of Parents’ psychological testing were invalid due to
their lack of honesty. The fact Parents completed the requirements of their case plans
does not necessarily equate to Parents’ complying with or benefiting from those services.
{¶33} With respect to the best interest finding, the evidence revealed all four
children are doing well in their foster homes and the foster families wish to adopt them.
Z.B. continues to react negatively whenever mention of Father or Mother is made.
{¶34} Father further argues the trial court should have granted a six month
extension in which to complete his case plan. Father claims he completed each of his
case plans requirements except for the Voyager Program.
{¶35} A trial court's decision to grant or deny an extension of temporary custody
is a discretionary one. See, R.C. § 2151.415(D)(1) and (2).
{¶36} Pursuant to R.C. § 2151.415(D)(1), a trial court can extend temporary
custody for six months only if it finds, by clear and convincing evidence, (1) that such an
extension is in the best interests of the child, (2) that there has been significant progress
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on the case plan, and (3) that there is reasonable cause to believe that the child will be
reunified with a parent or otherwise permanently placed within the period of extension.
See, In re McNab, 5th Dist. Nos.2007 AP 11 0074, 2007 AP 11 0075, 2008–Ohio–1638.
{¶37} We find Father has failed to demonstrate an abuse of discretion by the trial
court in denying the motion for a six-month extension. Although Father underwent
psychological assessments, both Barbara Schwartz and Dr. Steven Dean testified the
results of the testing were invalid due to Father’s lack of honesty. Sondra Fronimo, the
executive director of the Voyager Program, testified Father was six months behind in
completing the program due to his failure to actively participate. It was only in the weeks
before the permanent custody hearing Fronimo began to see improvements in Father.
Thus, the failure to complete the program in a timely manner was due solely to Father’s
inaction. Fronimo also testified, despite the improvements, Father continued to deny
abusing Z.B. We find the evidence, as set forth more fully above, supports the conclusion
an extension of temporary custody was not in the children's best interests, but, rather,
their interests were best served by the award of legal custody to TCJFS.
{¶38} Father’s sole assignment of error is overruled. Mother’s first and second
assignments of error are overruled.
Tuscarawas County, Case Nos. 2015 AP 07 0037, 2015 AP 0038, 2015 AP 0039, 13
2015 AP 0040, 2015 AP 0041
{¶39} The judgments of the Tuscarawas County Court of Common Pleas, Juvenile
Division, are affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur