In re Jones Children , 2014 Ohio 906 ( 2014 )


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  • [Cite as In re Jones Children, 
    2014-Ohio-906
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    IN THE MATTER OF:                                   JUDGES:
    Hon. William B. Hoffman, P.J.
    JONES CHILDREN                                      Hon. Patricia A. Delaney, J.
    Hon. Craig R. Baldwin, J.
    Case No. 2013CA00177
    OPINION
    CHARACTER OF PROCEEDING:                         Appeal from the Stark County Court of
    Common Pleas, Juvenile Division Case No.
    2012JCV00400
    JUDGMENT:                                        Affirmed
    DATE OF JUDGMENT ENTRY:                          March 10, 2014
    APPEARANCES:
    For Appellant                                    For Appellee
    KELLY S. MURRAY                                  LISA A. LOUY
    116 Cleveland Avenue NW, Suite 810               Legal Counsel Stark County DJFS
    Canton, Ohio 44702                               300 Market Avenue North
    Canton, Ohio 44702
    Stark County, Case No. 2013CA00177                                                      2
    Hoffman, P.J.
    {¶1}   Appellant Amber Jones (“Mother”) appeals the August 5, 2013 Judgment
    Entry entered by the Stark County Court of Common Pleas, Juvenile Division, which
    overruled her objections to the magistrate’s May 15, 2013 decision, and approved and
    adopted said decision as order of the court. Appellee is Stark County Job and Family
    Services (“SCJFS”).
    STATEMENT OF THE FACTS AND CASE
    {¶2}   Mother is the biological mother of A.J. (dob 3/17/01), M.J. (dob 4/15/04),
    and J.J. (dob 11/14/06).        Robert Jones is the biological father of A.J. and M.J.1
    Frederick Moore is the biological father of J.J. SCJFS first became involved with the
    family on a non-court basis due to concerns after Mother was arrested on drug-related
    charges, and Jones could not be located. Family members cared for the three children.
    SCJFS implemented a safety plan. Mother and Jones visited the children, however, the
    visits typically became volatile. Further, Mother and Jones would remove the children
    from their voluntary placements. During SCJFS’s investigation, additional concerns of
    domestic violence and substance abuse arose.
    {¶3}   On April 18, 2012, SCJFS filed a complaint alleging the three children
    were neglected and dependent. The trial court placed the children in the temporary
    custody of SCJFS following an emergency shelter care hearing. In addition, the trial
    court reaffirmed the pre-adjudicatory orders for Mother to complete a parenting
    evaluation, a drug and alcohol assessment, follow all recommendations, and submit to
    1
    Jones has not filed an appeal in this matter.
    Stark County, Case No. 2013CA00177                                                     3
    urine screens. The trial court ordered all visitation between Mother and the children be
    supervised by SCJFS.
    {¶4}   At the adjudicatory hearing on May 16, 2012, Mother stipulated to a
    finding of dependency after SCJFS amended the complaint to remove the allegations of
    neglect. Mother also agreed to the trial court’s awarding temporary custody of the
    children to SCJFS, and approval and adoption of the case plan. The trial court found
    SCJFS had made reasonable efforts to prevent the need for continued removal of the
    children from the home.
    {¶5}   Because service had not been perfected on Jones and Moore, the trial
    court continued the hearing relative to them until June 15, 2012.         Neither father
    appeared at the June 15, 2012 hearing. The trial court heard testimony and found the
    children to be dependent. The trial court reaffirmed the dispositional orders issued May
    16, 2012, as to the fathers. Moore subsequently filed a motion for transfer of venue to
    Trumbull County on July 9, 2012, which the trial court denied.
    {¶6}   Following a review hearing on October 16, 2012, the trial court continued
    the status quo. Moore filed a motion for custody of J.J. on March 7, 2013. The trial
    court conducted a review hearing on March 13, 2013, and continued the status quo. On
    March 15, 2013, SCJFS filed a motion for change of legal custody of J.J. to Moore, and
    a motion for change of legal custody of A.J. and M.J. to Michelle Willock, maternal great
    aunt. Mother filed a motion requesting an extension of temporary custody to allow her
    additional time to complete her case plan services on April 16, 2013. SCJFS filed a
    motion to show cause against Mother on April 24, 2013.
    Stark County, Case No. 2013CA00177                                                      4
    {¶7}   The magistrate conducted a hearing on May 15, 2013.             The following
    evidence was adduced at the hearing.
    {¶8}   SCJFS employee Zina Biehl testified she began working with the family on
    a non-court basis in February, 2012. The children were placed with relatives at that
    time. Mother agreed all contact with the children would be supervised. SCJFS filed the
    instant action in April, 2012, due to Mother’s continued volatility during visits with the
    children and Mother removing the children from their respective placements without
    permission. Additionally, SCJFS had concerns about the family history of domestic
    violence, Mother’s mental health, and Mother’s drug use and abuse.
    {¶9}   Mother’s case plan required her to undergo a parenting evaluation and
    follow all recommendations, which included a psychiatric consultation, and complete an
    assessment at Quest. Mother participated in mental health counseling at Trillium until
    March, 2013. Service providers and Mother’s previous counselor advised Biehl Mother
    had attended her scheduled appointments, but had made no progress. Mother did not
    follow through with the recommended psychiatric consultation until December, 2012.
    Mother began group therapy at Quest in late June, 2012, however, in August, 2012, her
    case was closed as the result of her failure to attend.      Mother was reassessed in
    October, 2012, and began individual counseling, but the therapist felt Quest could not
    provide her with services until Mother addressed her mental health issues.
    {¶10} Biehl testified she believed it was in the best interest of the children to
    award legal custody of J.J. to Moore, and award legal custody of A.J. and M.J. to
    Willock because of the children’s need for permanency and stability.
    Stark County, Case No. 2013CA00177                                                      5
    {¶11} Via Decision filed May 17, 2013, the magistrate awarded legal custody of
    J.J. to Moore, awarded legal custody of A.J. and M.J. to Willock, and ordered all
    visitation between Mother and children be supervised and at an SCJFS facility. The
    magistrate also found Mother guilty of contempt and sentenced her to 30 days in jail.
    The sentence was suspended on the condition Mother comply with all visitation orders.
    {¶12} Mother filed timely objections to the magistrate’s decision. The trial court
    heard oral arguments relative to the objections on August 5, 2013. Via Judgment Entry
    filed August 5, 2013, the trial court sustained Mother’s objection as it related to the
    magistrate’s finding of contempt, but overruled the remaining objections.
    {¶13} It is from this judgment entry Mother appeals, assigning as error:
    {¶14} “I. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING THE
    MAGISTRATE’S DECISION AND ORDERS IN REGARDS TO FINDING THAT THE
    COURT DID NOT ABUSE ITS DESCRETION [SIC] BY ALLOWING THE CASE
    WORKER AND GUARDIAN AD LITEM TO TESTIFY ABOUT THE OUT OF COURT
    STATEMENTS OF THE CHILDREN.
    {¶15} “II. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING THE
    MAGISTRATE’S DECISION AND ORDERS IN REGARDS TO FINDING THAT
    MOTHER WAS ARRESTED FOR DRUG RELATED CHARGES IN DECEMBER OF
    2012.
    {¶16} “III. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING THE
    MAGISTRATE’S DECISION AND ORDERS IN REGARDS TO FINDING THAT
    GRANTING MOTHER’S MOTION TO EXTEND TEMPORARY CUSTODY WAS IN THE
    BEST INTEREST OF THE CHILDREN.
    Stark County, Case No. 2013CA00177                                                   6
    {¶17} “VI [SIC]. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING
    THE MAGISTRATE’S DECISION AND ORDERS IN REGARDS TO FINDING THAT
    REASONABLE EFFORTS WERE MADE TO RETURN THE CHILDREN TO THEIR
    HOME WITH MOTHER.”
    I
    {¶18} In her first assignment of error, Mother contends the trial court erred in
    approving and adopting the magistrate’s decisions and orders with regard to the finding
    there was no abuse of discretion in allowing the case worker and guardian ad litem to
    testify about out-of-court statements made by the children.
    {¶19} During SCJFS’s case-in-chief, counsel for SCJFS asked caseworker Zina
    Biehl, “Have the children acknowledged to you any knowledge of the volatility that you
    mentioned between [Mother and Jones]?” Transcript of May 15, 2013 Magistrate’s
    Hearing at 19. . Biehl answered, “Mainly [A.J.]. She’s the oldest, she acknowledges the
    struggle between her and her parents, she acknowledges * * *seeing lighter fluid thrown
    at her mother.” 
    Id.
     The trial court overruled Mother’s objection to the question.
    {¶20} Assuming, arguendo, the statement was inadmissible hearsay, we find
    any error in the admission of the statement was harmless. The erroneous admission of
    hearsay evidence is harmless if additional information, separate and apart from the
    erroneously admitted evidence, has been offered to prove that which the challenged
    evidence was offered to prove. In re Reeves, 9th Dist. Nos. 19650, 19669, 19672,
    19673, 19674, 19705, 19706, 19707, 
    2000 WL 727532
     (June 7, 2000).
    Stark County, Case No. 2013CA00177                                                         7
    {¶21} There was ample testimony throughout the hearing which established the
    volatility of the relationship between Mother and Jones as well as numerous incidents of
    domestic violence. Mother acknowledged the charges of domestic violence against her.
    {¶22} With regard to Mother’s assignment of error as it relates to the guardian
    ad litem, we note there is no transcript of such in the record due to equipment failure.
    {¶23} When portions of the transcript necessary for resolution of assigned errors
    are omitted from the record, the reviewing court has nothing to pass upon and thus, as
    to those assigned errors, the court has no choice but to presume the validity of the
    lower court's proceedings, and affirm. Knapp v. Edwards Lab ., 
    61 Ohio St.2d 197
    , 
    400 N.E.2d 384
     (1980). If a partial record does not conclusively support the trial court's
    decision, it is presumed that the omitted portion provides the necessary support.
    Wozniak v. Wozniak, 
    90 Ohio App.3d 400
    , 409, 629 N.E.2d at 506 (1993); In re
    Adoption of Foster, 
    22 Ohio App.3d 129
    , 131, 
    489 N.E.2d 1070
    , 1072-1073 (1985).
    {¶24} Although Mother had notice of the equipment failure, she failed to provide
    this Court with an App. R. 9(C) statement. App. R. 9(C)(1) provides:
    If no recording of the proceedings was made, if a transcript is
    unavailable, or if a recording was made but is no longer available for
    transcription, the appellant may prepare a statement of the evidence or
    proceedings from the best available means, including the appellant's
    recollection. The statement shall be served on the appellee no later than
    twenty days prior to the time for transmission of the record pursuant to
    App. R. 10 and the appellee may serve on the appellant objections or
    propose amendments to the statement within ten days after service of the
    Stark County, Case No. 2013CA00177                                                     8
    appellant's statement; these time periods may be extended by the court of
    appeals for good cause. The statement and any objections or proposed
    amendments shall be forthwith submitted to the trial court for settlement
    and approval. * * *
    {¶25} Because Mother has failed to provide this Court with a 9(C) statement, we
    must presume the regularity of the proceedings below and affirm. It is the duty of the
    appellant to ensure the record, or whatever portions thereof are necessary for the
    determination of the appeal, are filed with the court in which he seeks review. Rose
    Chevrolet, Inc. v. Adams (1988), 
    36 Ohio St.3d 17
    , 19, 
    520 N.E.2d 564
    . See also: State
    v. Render (1975), 
    43 Ohio St.2d 17
    , 
    330 N.E.2d 690
    ; State v. Bell (1992), 
    78 Ohio App.3d 781
    , 
    605 N.E.2d 1335
    .
    {¶26} Mother’s first assignment of error is overruled.
    II
    {¶27} In her second assignment of error, Mother maintains the trial court erred in
    approving and adopting the magistrate’s decision and orders with respect to the finding
    Mother was arrested on drug related charges in December, 2012.
    {¶28} Mother’s brief does not include an argument in support of this assignment
    of error.
    {¶29} App.R. 16(A) provides, in relevant part:
    The appellant shall include in its brief, under the headings and in
    the order indicated, all of the following:
    ***
    Stark County, Case No. 2013CA00177                                                       9
    (7) An argument containing the contentions of the appellant with
    respect to each assignment of error presented for review and the reasons
    in support of the contentions, with citations to the authorities, statutes, and
    parts of the record on which appellant relies. The argument may be
    preceded by a summary.
    {¶30} Pursuant to App.R. 12(A)(2), we summarily overrule Mother’s second
    assignment of error, which she fails to support with an argument in her brief.
    {¶31} Mother’s second assignment of error is overruled.
    III
    {¶32} In her third assignment of error, Mother asserts the trial court erred in
    approving and adopting the magistrate’s decision with respect to the finding granting
    Mother’s motion to extend temporary custody was not in the best interest of the
    children.
    {¶33} 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). 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 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. In re C.F., 5th Dist. No.
    2013-CA-00182, 
    2013-Ohio-1415
     at para. 37.
    Stark County, Case No. 2013CA00177                                                   10
    {¶34} The children’s therapist, Suonna Cole, testified the children expressed
    disappointment and confusion about the length of the process. Cole also testified the
    children were doing great in their placements and they reported positive things to her.
    Biehl testified regarding Mother’s minimal compliance with her case plan. Mother had
    been terminated from drug treatment. Further, Mother stopped counseling after the
    agency with which she dealt was merged with another, even though she was provided
    with the phone numbers for other agencies which could assist her. Mother
    acknowledged these failures as well.     Mother refused to acknowledge the issue of
    domestic violence in her home was detrimental to the children. Mother provided no
    explanation as to how she would be ready for reunification if given a six month
    extension.
    {¶35} Based upon the foregoing, we find the trial court did not abuse its
    discretion in denying Mother’s request for an extension.
    {¶36} Mother’s third assignment of error is overruled.
    IV
    {¶37} In her final assignment of error, Mother submits the trial court erred in
    approving and adopting the magistrate’s decision with respect to the finding SCJFS
    made reasonable efforts to return the children to her home.
    {¶38} Pursuant to R.C. 2151.419, the agency that removed the child from the
    home must have made reasonable efforts to prevent the removal of the child from the
    child's home, eliminate the continued removal of the child from the home, or make it
    possible for the child to return home safely. The statute assigns the burden of proof to
    the agency to demonstrate it has made reasonable efforts. The statute provides in
    Stark County, Case No. 2013CA00177                                                    11
    determining whether reasonable efforts were made, the child's health and safety is
    paramount.
    {¶39} Various sections of the Revised Code provide that an agency has a duty
    to make reasonable efforts to preserve or reunify the family unit. For example, R.C.
    2151.412 requires the agency to prepare and maintain a case plan; R.C. 2151.414
    requires an agency to make reasonable case planning and diligent efforts to assist
    parents to remedy the problems that caused removal of the child. In Re C.F., 
    113 Ohio St.3d 73
    , 2007–Ohio–1104, 
    862 N.E.2d 816
     at ¶ 29. However, the Revised Code does
    not expressly define what constitutes reasonable efforts. 
    Id.
    {¶40} This Court has found where the evidence establishes that the agency
    provided services designed to alleviate the problem that led to the child's removal, made
    diligent efforts to assist the parents in remedying the problem, and attempted to
    transition the child back into the family home, the agency has proven reasonable efforts.
    In re K.R., Stark App. No.2009 CA 00061, 2009–Ohio–4350.
    {¶41} SCJFS began working with the family on a non-court basis in February,
    2012.    The children were voluntarily placed with a relative and a safety plan was
    implemented.     Due to continued concerns, SCJFS requested court involvement.
    Thereafter, a case plan was implemented. However, Mother only minimally complied
    with the services and recommendations. Mother refused to acknowledge her need for,
    and failed to take advantage of, the services and treatment offered.
    {¶42} Based upon the foregoing, we find SCJFS made reasonable efforts to
    reunite the family.
    {¶43} Mother’s fourth assignment of error is overruled.
    Stark County, Case No. 2013CA00177                                        12
    {¶44} The judgment of the Stark County Court of Common Pleas, Juvenile
    Division, is affirmed.
    By: Hoffman, P.J.
    Delaney, J. and
    Baldwin, J. concur
    

Document Info

Docket Number: 2013CA00177

Citation Numbers: 2014 Ohio 906

Judges: Hoffman

Filed Date: 3/10/2014

Precedential Status: Precedential

Modified Date: 10/30/2014