In re Jones Children , 2014 Ohio 906 ( 2014 )

[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