In re I.M. , 2013 Ohio 5549 ( 2013 )

[Cite as In re I.M., 2013-Ohio-5549.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: I.M., :
Minor Child. : Nos. 13AP-468
13AP-470
: and 13AP-476
(C.P.C. No. 09JU-10009)
:
(REGULAR CALENDAR)
:
D E C I S I O N
Rendered on December 17, 2013
Rosemary Foster; Dominic Campbell; and Tara James, pro
se-appellants.
Thomas Taneff and Kate O. Vidovich, for appellees.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
TYACK, J.
{¶ 1} Rosemary Foster, Dominic D. Campbell and Tara James are appealing from
the ruling of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch which granted custody of I.M., age four, to the foster parents who had
cared for I.M. almost her whole life. Six errors are presented for our consideration:
[I.] The Appellant Rosemary Foster received ineffective
assistance of counsel.
[II.] The trial court did error in relying upon the testimony of
Dr. David Tennenbaum.
[III.] The trial court award of custody to Appellees Daryl and
Karen Miller was against the Manifest Weight of Evidence.
[IV.] The trial court did error in finding the relationship and
bond between I.M. and Rosemary Foster is that of a friendly
child to friendly adult.
Nos. 13AP-468, 13AP-470 & 13AP-476 2
[V.] The trial court did error in finding Rosemary Foster was
ordered to do a psychological examination by Dr.
Tennenbaum.
[VI.] The Trial court did error in not addressing the residual
rights of the parents D.C. and P.M.
(Sic passim.)
{¶ 2} I.M. was born July 6, 2009 to a drug-addicted mother. The mother tested
positive for cocaine and marijuana at the time of I.M.'s birth. I.M. herself tested positive
for marijuana. In less than three weeks, a temporary order of custody was granted to
Franklin County Children Services ("FCCS"). The child has been in the custody of FCCS
ever since.
{¶ 3} Before the child had reached her first birthday, FCCS had filed for
permanent custody for the first time. That motion and a subsequent motion for
permanent custody were withdrawn when the foster parents caring for the child filed a
motion requesting legal custody of the child.
{¶ 4} When the child was one and one-half years old, genetic testing showed that
I.M. was the biological child of Dominic Campbell. Dominic Campbell was incarcerated at
Belmont Correctional Institution as of the date the brief on his behalf was filed.
{¶ 5} Campbell's mother filed a motion requesting legal custody of I.M. His
paternal great aunt also filed such a motion.
{¶ 6} The trial court granted legal custody of I.M. to the foster parents who had
been caring for the child for over three years.
{¶ 7} Dominic Campbell's family has a long history with the criminal justice
system and the mental health system. Dominic himself is part way through a nine year
sentence of incarceration as a result of a conviction for aggravated robbery. He cannot
function as the parent of a four year old any time in the foreseeable future.
{¶ 8} Rosemary Foster, Dominic's mother, presides over a chaotic household. An
adult child lives with her who suffers a wide range of mental health issues, including
Bipolar Disorder. I.M., who has emerged from cocaine addiction caused by her mother,
cannot be cared for properly in such a chaotic environment.
Nos. 13AP-468, 13AP-470 & 13AP-476 3
{¶ 9} Tara James had no history with I.M. before filing to request legal custody.
James has her own mental health issues. Her household also does not provide the desired
stability for I.M.
{¶ 10} The first assignment of error asserts basically that Rosemary Foster did not
get custody of I.M. because Rosemary's attorney did not do a good enough job
representing her. The record before us provides no support for this allegation.
{¶ 11} The trial court awarded custody of I.M. to her foster parents pursuant to
R.C. 2151.353(A)(3), which states:
If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of
disposition:
(3) Award legal custody of the child to either parent or to any
other person who, prior to the dispositional hearing, files a
motion requesting legal custody of the child or is identified as
a proposed legal custodian in a complaint or motion filed
prior to the dispositional hearing by any party to the
proceedings.
{¶ 12} "In making custody determination[s], the juvenile court must consider the
best interest of the child." In the Matter of A.V., 10th Dist. No. 05AP-789, 2006-Ohio-
3149, ¶ 12, citing In re Rowe at ¶ 8; In the Matter of Bradford, 10th Dist. No. 01AP-1151,
2002-Ohio-4013, ¶ 29. The trial court considered I.M.'s best interest in applying the
criteria set forth in R.C. 3109.04(F)(1) and (2). The trial court did not abuse its discretion
in applying this criteria to the facts of this case. Thus, we find no error.
{¶ 13} The first assignment of error is overruled.
{¶ 14} The second assignment of error attacks the testimony of the psychologist
who testified at length about the mental health issues and diagnoses in the extended
family of Dominic Campbell. The testimony was highly damaging to the family's attempt
to gain custody of the child. The testimony was highly damaging because of the facts
upon which the psychologist's testimony relied. The trial court did not err in considering
the testimony or in relying on it when deciding that the foster family who has cared for
I.M. for over three years provided a better home for the child. The best interests of the
child are best protected by the stability their home provides, especially given the extensive
bonding the child has with the foster parents.
Nos. 13AP-468, 13AP-470 & 13AP-476 4
{¶ 15} The second assignment of error is overruled.
{¶ 16} The third assignment of error argues that the evidence presented in the trial
court did not support the trial court's ruling. As even the brief recap of the evidence set
forth above clearly indicates, the trial court made the ruling by which was supported by
the evidence.
{¶ 17} The third assignment of error is overruled.
{¶ 18} I.M. is clearly bonded to the family which has raised her for over three
years. Rosemary Foster does not have the same attachment to the child. Whether the
relationship is friendly adult to friendly child or not is not the determinative issue. The
trial court awarded custody to a stable family with adults to whom I.M. is firmly bonded.
{¶ 19} The fourth assignment of error is overruled.
{¶ 20} Whether Rosemary Foster was or was not ordered to undergo a
psychological examination is not a significant issue. The court's award of legal custody
was not based upon the presence or absence of such an order. This issue does not
constitute reversible error.
{¶ 21} The fifth assignment of error is overruled.
{¶ 22} The court order before us is not a grant of permanent custody. It did not
extinguish the rights of the biological father and mother. The trial court addressed the
issues before it, namely legal custody. Other rights are part of the statutes and case law in
Ohio and were not directly affected.
{¶ 23} The sixth assignment of error is overruled.
{¶ 24} All six assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch, is affirmed.
Judgment affirmed.
DORRIAN and McCORMAC, JJ., concur.
McCORMAC, J., retired, formerly of the Tenth Appellate
District, assigned to active duty under the authority of Ohio
Constitution, Article IV, Section 6(C).