In re K.C. , 2015 Ohio 3815 ( 2015 )

[Cite as In re K.C., 2015-Ohio-3815.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
IN RE:
K.C. CASE NO. 4-15-05
DEPENDENT CHILD.
OPINION
[MELISSA SCHWINNEN - APPELLANT].
IN RE:
C.C. CASE NO. 4-15-06
DEPENDENT CHILD.
OPINION
[MELISSA SCHWINNEN - APPELLANT].
Appeals from Defiance County Common Pleas Court
Juvenile Division
Trial Court Nos. 31435 and 31436
Judgments Reversed and Cause Remanded
Date of Decision: September 21, 2015
APPEARANCES:
Timothy C. Holtsberry for Appellant
Russell R. Herman for Appellee
Case Nos. 4-15-05, 4-15-06
SHAW, J.
{¶1} Mother-appellant, Melissa Schwinnen (“Melissa”), appeals the March
2, 2015 judgment of the Defiance County Court of Common Pleas, Juvenile
Division, granting the motion for permanent custody filed by plaintiff-appellee,
Defiance County Department of Job and Family Services (the “Agency”), and
terminating her parental rights. Melissa raises the following assignments of error
on appeal.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN ACCEPTING THE
CONSENT OF THE MOTHER VIA AFFIDAVIT AS THAT
CONSENT DID NOT COMPLY WITH JUVENILE RULE
29(D).
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN ACCEPTING THE
CONDITIONAL CONSENT VIA AFFIDAVIT OF THE
MOTHER WHEN ALL CONDITIONS OF THE AFFIDAVIT
WERE NOT MET.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED IN ACCEPTING MOTHER’S
CONSENT VIA AFFIDAVIT IN VIOLATION OF THE
HEARSAY RULE.
ASSIGNMENT OF ERROR NO. IV
APPELLANT WAS DENIED HER CONSTITUTIONAL
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
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{¶2} On June 26, 2013, the Agency filed a complaint alleging Melissa’s
children C.C. (born in 2012) and K.C. (born in 2013) to be dependent children.
The complaint was filed shortly after K.C.’s birth, at which time K.C. tested
positive for cocaine on a toxicology screen. Melissa admitted to the drug use and
further admitted that others in the home where she cared for then one-year-old
C.C. also abused drugs. Based on Melissa’s drug use during pregnancy, the
complaint also alleged K.C. to be an abused child.1 The children were placed in
the temporary custody of the Agency pursuant to an ex parte order issued by the
trial court.
{¶3} On July 3, 2013, the trial court appointed a Guardian Ad Litem
(“GAL”) to the case.
{¶4} On September 5, 2013, Melissa and the children’s father Charles
(“Blake”) C. appeared in open court with counsel.2 Melissa entered a plea of “Not
True” to the dependency and abuse allegations contained in the complaint. Blake
entered a plea of “Not True” to the Agency’s abuse allegation regarding K.C. and
entered a plea of “True” to the dependency allegations regarding both children.
The parties stipulated and agreed that continuing the Agency’s temporary custody
of the children during the pendency of the action was in their best interest.
1
The record indicates that C.C. also tested positive for cocaine at the time of his birth in 2012.
2
Blake’s paternity was later established as the result of court-ordered genetic testing.
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{¶5} On October 7, 2013, the trial court held an adjudication hearing.
Melissa was not present due to her incarceration on drug related offenses.
Nevertheless, her attorney submitted to the trial court a three-page affidavit signed
by Melissa changing her plea from “Not True” and entering a plea of “True” to the
allegation of dependency regarding both C.C. and K.C. The trial court found that
Melissa’s plea was entered knowingly, intelligently and voluntarily. The Agency
moved to dismiss the abuse allegation concerning K.C. Consequently, the trial
court accepted both parents’ pleas and found the children to be dependent. The
trial court further found that continuing the Agency’s temporary custody was in
the children’s best interest and ordered the same. Disposition of the case was
continued for a later date.
{¶6} On May 21, 2014, the Agency filed a motion requesting the trial court
extend its temporary custody of the children for six months. The record indicates
that Melissa was still incarcerated at the time with a release date in the fall of
2015. However, the motion stated that Blake had made some progress in
complying with the case plan and the Agency requested the trial court grant
additional time for Blake to attempt to complete the case plan objectives. After
conducting a hearing, the trial court granted the Agency’s motion to extend its
temporary custody of the children for six months.
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{¶7} On September 3, 2014, the Agency filed a motion for permanent
custody of the children. In support of its motion, the Agency stated that the
children had been in its temporary custody for twelve or more months of the past
consecutive twenty-two month period. The Agency further noted that Melissa was
serving a two-year prison term for drug related offenses and that Blake had made
minimal progress with the case plan. Blake also informed the Agency that he did
not want to continue to work with the Agency toward reunification and that he had
no intention of attending any further hearings in the matter.
{¶8} On October 28, 2014, the trial court conducted a semi-annual review
of the case and continued the Agency’s temporary custody of the children.
{¶9} On January 23, 2015, Melissa filed a motion for legal custody in
which she requested that the trial court grant legal custody of the children to
Blake’s grandmother, Linda Claud, the children’s paternal great-grandmother.
Melissa acknowledged that naming Linda Claud legal custodian of the children
would provide her with residual parental rights, rather than terminating those
rights.3
{¶10} On January 29, 2015, the GAL filed her report in the case
recommending that the trial court grant the Agency’s motion for permanent
custody so that the children may be placed for adoption. In her report, the GAL
3
We note that Linda Claud was never made a party to the case.
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voiced her concerns with Linda Claud being named legal custodian. Specifically,
the GAL noted that Linda was 72-years-old at the time of the hearing and
questioned her ability to care for the two very young children.
{¶11} On February 3, 2015, Melissa filed a three-page affidavit which
stated the following with regard to the Agency’s motion for permanent custody.
Melissa Schwinnen, being first duly cautioned and sworn, states
as follows:
1. I am the mother of [K.C.] and [C.C.].
2. I have received a copy of the State’s Motion for Permanent
Custody filed September 3, 2014.
3. I have reviewed the Motion for Permanent Custody and
understand it. I have had the opportunity to speak with my
attorney, [] by phone with any questions I have regarding the
motion.
4. I understand that if permanent custody of the children is
awarded to the State, my parental rights and responsibilities will
be forever terminated. I understand that I will have no legal
rights to visitation, custody, or any other rights or
responsibilities with respect to the children.
5. I understand that if the State acquires permanent custody
and places the children with Linda Claud, Mrs. Claud has no
legal duty to allow me to visit or communication with the
children, and that I will not have the legal right to demand
visitation or communication with the children if she chooses to
deny such contact.
6. I understand that an alternative to permanent custody is
legal custody to Linda Claud. I understand that if the Court
awards legal custody [to] Linda Claud, my paternal rights and
responsibilities would not be terminated. I understand that my
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attorney has filed a Motion for Legal Custody to place the
children with Linda Claud in order to preserve my parental
rights and responsibilities as an alternative to permanent
custody.
7. I hereby permit my attorney to withdraw the Motion for
Legal Custody to Linda Claud.
8. I hereby consent to the State’s motion for permanent
custody of my children. I give this consent in reliance upon the
State’s representations that it will place the children with Linda
Claud for adoption.
9. I consent to Linda Claud adopting the children.
10. I understand that my voluntary surrender of the children
on the conditions set forth herein cannot be revoked or modified
once granted. I understand that an order will be entered which
will forever terminate my parental rights and responsibilities.
11. I understand that Revised Code Section 2151.414(E)(11)
lists as a factor in determining whether the children cannot be
placed with me within a reasonable time that the “parent has
had parental rights involuntarily terminated with respect to a
sibling of the child…” (emphasis added). I have decided to
voluntarily consent to termination of my parental rights in order
to preserve my rights as to children I give birth to or adopt
hereafter.
12. I believe permanent custody as set forth herein is in the best
interests of my children.
13. I have signed this Affidavit knowingly, willingly, and
intelligently. I was not coerced to sign, have had adequate time
to consider whether signing would be in my best interests, and
have signed of my own free will.
14. I have no medical conditions that would prevent me from
understanding the effect of executing this affidavit. I am not
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under the influence of any medications or other substances that
affect my understanding or comprehension.
15. I have had adequate time to consult with my attorney [],
concerning this Affidavit, and any questions I had have been
answered to my satisfaction.
(Doc. No. 64) (emphasis added).
{¶12} On February 5, 2015, the trial court conducted a hearing on the
Agency’s motion for permanent custody. Melissa was not present at the hearing
due to her incarceration. Melissa’s attorney presented the trial court with the
affidavit expressing Melissa’s consent to the Agency’s motion for permanent
custody. The trial court noted the unusual method of conveying a party’s
voluntary surrender of parental rights by affidavit and further inquired of
Melissa’s attorney to ascertain whether she was knowingly, intelligently, and
voluntarily waiving her right to require the Agency to prove its case against her
and consenting to the termination of her parental rights. Melissa’s attorney
relayed his prior conversations with her to the trial court in the following exchange
at the permanent custody hearing.
Counsel: So I talked to her, it would have been February 3rd on
the telephone. She acknowledged that she had received my
letter, she understood it. She also understood that it would—
because of the statute that’s reflected in the paragraph eleven of
the affidavit, it would be in her interests not to have an
involuntary termination of her parental rights for that reason
and she was willing to voluntarily consent to permanent custody
to the State. She said she’s been in contact with Linda Claud as
well. She understands that permanent custody here is to the
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State and not to Linda Claud. The State will try to place the
children with Linda, but that was a discussion we had over the
telephone and then I talked to the case manager after speaking
with her. The case manager had me email the affidavit to her
and then she emailed it back after Melissa signed it. She
scanned it in and emailed it back and then I filed it.
Trial Court: Well I guess my question then and I can’t, you
know, I can’t ask her directly because she’s not here obviously,
but and maybe you can answer this and maybe you can’t, but
what was her motivation for filing this affidavit? Why didn’t
she just let the proceedings proceed and force the State to
present their evidence and—
Counsel: Sure. I guess paragraph eleven of the affidavit would
be the way to address that. It eliminates—there are many
factors, but it eliminates this one factor as the basis for any
future children she may have because she is only in her mid-
twenties. An involuntary termination can be used as a factor
that the State can use to allege that future children cannot be
placed with her within a reasonable time. So for that reason I
think she believed that voluntary consent was in her interest.
Trial Court: Okay. Alright. So this was something you had
discussed with her. She felt that it might be better to voluntarily
consent given her circumstances of being incarcerated under a
lengthy sentence in a state facility, is that correct?
Counsel: That’s correct.
**
Trial Court: So were you satisfied then from your discussions
with her and your involvement with her that she understands
the absolute permanency of this, that this just cannot be undone
and she can’t come back later on when she eventually gets out of
prison and say, “you know, I’m okay now and I’d like to have
my kids back?”
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Counsel: Absolutely I do, Your Honor. Based on my
discussions with her—when I talked to her on February 3rd, it
was as though she was ready to go with this affidavit the way it’s
written. She said, “absolutely this is the way to go, I read your
letter and I understand it, I understand this is permanent.”
She’s hoping I think the children end up with Linda and she’s
hoping that Linda allows her to interact with the children going
forward, but I think she understands we don’t live in a perfect
world and those things may not happen.
Trial Court: They may not happen at all.
Counsel: That’s correct.
Trial Court: Okay.
Counsel: So I think she knows she’s operating in an imperfect
world at this point. She knows she’s in no position right now
having been incarcerated for basically this whole case. She’s
really in no other position but to consent to permanent custody.
Trial Court: Okay and she says in the affidavit here and I
understand you may have typed it up, but she says she has
knowingly, willingly, and intelligently signed this affidavit.
Counsel: Um-hum.
Trial Court: What brought you to that conclusion to include
that language?
Counsel: Well, based on my interactions with her in person
prior to her incarceration, she is intelligent. She’s actually an
intelligent person. She—in talking with her on February 3rd, it
was clear that she believed that this was best, that she didn’t
feel—she understood that I had a Motion for Legal Custody
pending and that there was an alternative, okay?
Trial Court: Um-hum.
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Counsel: And it wasn’t like you have no choice, you have to sign
this. I told her I can go forward on the Motion for Legal
Custody. If we’re successful on that then your parental rights
would be preserved. That’s an option here. So she understood
there were some options.
Trial Court: I guess that alleviates some of my concern then is
that she didn’t feel that she was trapped in prison and she had
no other alternative available to her but to sign this affidavit. Is
that your opinion?
Counsel: That’s correct, Your Honor.
***
Trial Court: * * * I’m satisfied with—it’s very unusual to not
have the mother here and I understand the circumstances are
that she can’t be here. It’s unusual to have an affidavit appear
in a case like this which you all know, but I guess I do
understand her motivation of wanting to do this in a voluntary
fashion rather than risk there being some kind of involuntary
termination. I understand that so I’m willing to accept that
affidavit and her position and your representations on her
behalf[.]
(Doc. No. 86 at 10-15).
{¶13} Blake was also present at the hearing with counsel and expressed his
intention to voluntarily terminate his parental rights and consent to the Agency’s
motion for permanent custody. The trial court engaged in a lengthy dialogue with
Blake to ensure that he understood the legal consequences of his decision and to
verify that Blake was knowingly, intelligently, and voluntarily consenting to the
termination of his parental rights.
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{¶14} The trial court also heard from Linda Claud and inquired about her
ability to care for two young children. The GAL also spoke at the hearing and
gave her recommendation that the Agency’s permanent custody motion should be
granted and the children be placed for adoption.
{¶15} On March 2, 2015, the trial court issued its judgment entry granting
the Agency’s motion for permanent custody. Based on her attorney’s
representations of his conversations with Melissa regarding the matter, the trial
court accepted her affidavit and found that she “knowingly, intelligently, and
voluntarily consents to the termination of her parental rights with full
understanding and knowledge as to the effect thereof.” (Doc. No. 68 at 2).
Similarly, the trial court also found “[a]fter full inquiry” that Blake “knowingly,
intelligently, and voluntarily” consented to the termination of his parental rights.
(Id. at 2-3). The trial court then made the following findings:
In light of the parents’ consent to the termination of their
parental rights and considering the underlying factors which
support the Agency’s Motion, the Court finds the Agency has
met its burden of proof by clear and convincing evidence that
the children has [sic] been in the custody of the Agency for over
twelve (12) of the past twenty-two (22) month period.
Furthermore, the Court specifically finds that the children
cannot or should not be placed in their parents’ care within a
reasonable period of time because they have failed to follow the
objectives of the case plan, and thus have failed to rectify the
problems that initially caused the children to be removed from
their custody.
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Having considered all of the statutory factors in Ohio Revised
Code Section 2151.414(D)(1) and with particular emphasis on
the opinions of the Guardian Ad Litem as expressed in her
report, the Court finds it is in the best interest of the children
that they be placed in the permanent custody of the Agency so
that they may be made available for adoption. The Court
further finds that the Agency has made reasonable efforts to
prevent the continued removal of the children from [their]
parents’ care. Therefore, the Court finds that the Agency’s
Motion for Permanent Custody of [K.C.] and [C.C.] is well
taken.
(Doc. No. 68 at 2-3).
{¶16} Melissa subsequently filed this appeal, asserting four assignments of
error.
First, Second, and Third Assignments of Error
{¶17} In her first, second, and third assignments of error, Melissa contends
that the trial court erred in accepting her affidavit conveying her consent to the
Agency’s motion for permanent custody and to voluntarily terminate her parental
rights.
{¶18} Initially, we note that a parent has a “ ‘fundamental liberty interest’
in the care, custody, and management of [his or her] child” and “the right to raise
one’s children is an ‘essential’ and ‘basic civil right.’ ” In re Murray, 52 Ohio
St.3d 155, 157 (1990). “In a case where parental rights are permanently
terminated, it is of utmost importance that the parties fully understand their rights
and that any waiver is made with full knowledge of those rights and the
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consequences which will follow.” Elmer v. Lucas Cty. Children Serv. Bd., 36
Ohio App.3d 241, 245, (6th Dist.1987). “[F]undamental due process requires that
when a parent is waiving the fundamental right to care for and have custody of a
child, the trial court must have a meaningful dialogue with that parent to be certain
that the consent is truly voluntary.” In re Terrence, 6th Dist. Lucas No. L-05-
1018, 2005-Ohio-3600, ¶ 89. Thus, the parties to such an action “must be afforded
every procedural and substantive protection the law allows.” In re Hayes, 79 Ohio
St.3d 46, 48 (1997). If a parent expresses uncertainty or misunderstandings about
his or her decision to waive parental rights, the trial court’s acceptance of the
waiver is improper. In re Terrence at ¶ 89.
{¶19} As acknowledged by the trial court, the circumstances of the present
case are somewhat unusual. In addition, this is a case of first impression in this
Court. Melissa was incarcerated at the time of the permanent custody hearing and
was not present. Nevertheless, her trial counsel appeared on her behalf and
presented the trial court with the affidavit dated February 3, 2015 in which Melissa
purported to consent to the Agency’s motion for permanent custody and to the
voluntary termination of her parental rights. The question before us is whether
this affidavit was sufficient to comply with the relevant case authority governing a
parent’s waiver and voluntary termination of parental rights.
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{¶20} Prior to accepting her consent to the termination of her parental
rights, the trial court was required to ascertain whether Melissa fully understood
her rights and that her waiver was made with full knowledge of those rights and
the attendant consequences. We might question whether this determination can
ever properly be made based entirely upon an affidavit and dialogue with counsel
alone. Moreover, we have serious reservations as to the stated motivation for any
waiver of parental rights being based, as it was in this instance, upon the
anticipation that the failure to do so in the current situation might prejudice the
Agency and/or the court toward that parent with regard to the possible removal of
a future child.
{¶21} However, in this instance, it is not necessary to address these
concerns because the wording of this particular affidavit fails to establish that
Melissa truly understood the nature and extent of her waiver. Specifically, the
affidavit contains inconsistent statements regarding Melissa’s understanding of
permanent custody, the effect on her parental rights, and the potential adoption of
the children by Linda Claud. More importantly, the affidavit also explicitly places
a condition on Melissa’s consent in stating that “I give this consent in reliance
upon the State’s representations that it will place the children with Linda Claud for
adoption. * * * I understand that my voluntary surrender of the children on the
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conditions set forth herein cannot be revoked or modified once granted.” (Doc.
No. 64 at ¶¶ 6, 8)
{¶22} While perhaps not as persuasive, it is also noteworthy that Melissa
submitted a letter to the trial court after its grant of the Agency’s motion for
permanent custody stating her confusion regarding the parameters of permanent
custody and her understanding that her consent was conditional upon the “State”
permitting Linda Claud to adopt the children. Clearly, any of these
“misunderstandings” on Melissa’s part could have been addressed by the trial
court prior to accepting her “consent” had the trial court held a “meaningful
dialogue” with Melissa.
{¶23} It is apparent from the record that the trial court tried to satisfy the
“meaningful dialogue” requirement through its discussion with Melissa’s trial
counsel at the permanent custody hearing. However, trial counsel’s narrative of
Melissa’s comprehension regarding the waiver and voluntary termination of her
parental rights does not comport with the language of the affidavit itself. Given
the contingencies and inconsistencies in the affidavit previously discussed, trial
counsel’s reassurances to the trial court at the permanent custody hearing were
simply not an adequate substitute for Melissa’s own acknowledgement on the
record of the ramifications of her decision to enter her consent and voluntary
waiver of parental rights.
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{¶24} We note that the trial court engaged in an extensive discussion with
Blake on the record at the permanent custody hearing regarding the waiver and
voluntary termination of his parental rights, which we believe was a good example
of a “meaningful dialogue” under these circumstances. When comparing the
approach used by the trial court to ascertain the knowing, intelligent, and
voluntary nature of Blake’s decision to enter his consent to the one afforded to
Melissa, the disparity and incongruence between the procedures is palpable.4
{¶25} In sum, the internally inconsistent statements in the affidavit
expressing Melissa’s comprehension as to the nature of permanent custody and the
explicit conditional elements contained in the affidavit seriously undermined the
requisite and crucial demonstration that Melissa’s waiver and voluntary
termination of her parental rights was made with her full knowledge of those
rights and the consequences. Therefore, we conclude that this flawed affidavit
coupled with the lack of a meaningful dialogue between the trial court and Melissa
rendered the trial court’s acceptance of her consent to the voluntary termination of
her parental rights improper.
{¶26} We acknowledge that the trial court also made findings in its
judgment entry which appear to support an involuntary termination of parental
4
The relevant case authority does not specify the underlying mechanics of how this “meaningful dialogue”
is to take place—i.e., whether the exchange must be made in open court with the parent present. Thus, we
see no reason to exclude the possibility of the trial court satisfying this requirement by the use of telephone
or video conference or by other means at the trial court’s disposal.
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rights based on the children being in the custody of the Agency for over twelve of
the twenty-two month period and the trial court’s conclusion that the children
cannot or should not be placed in their parents’ care within a reasonable period of
time. However, the record reveals that the Agency presented no evidence at the
permanent custody hearing to substantiate these findings. In fact, had the Agency
taken the minimal steps to present evidence, subject to cross-examination, of the
duration of the children’s time in the Agency’s temporary custody, the length of
Melissa’s prison sentence, and both parent’s non-compliance with the case plan,
the trial court may have had sufficient grounds to terminate Melissa’s parental
rights without her consent. Unfortunately, the present record fails to establish any
of the evidence necessary to issue a judgment based upon the involuntary
termination of Melissa’s parental rights.
{¶27} Accordingly, we conclude that the trial court committed reversible
error when it granted the Agency’s motions for permanent custody and we sustain
Melissa’s first, second, and third assignments of error.
Fourth Assignment of Error
{¶28} In her fourth assignment of error, Melissa claims her trial counsel
was ineffective for a variety of reasons. However, given our disposition of the
first three assignments of error, the arguments under this assignment of error are
rendered moot and we decline to further address the issues raised therein.
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{¶29} Based on the foregoing, the judgments are reversed and the causes
remanded for further proceedings consistent with this opinion.
Judgments Reversed and
Causes Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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