In re R.D.J. , 2013 Ohio 1999 ( 2013 )

[Cite as In re R.D.J., 2013-Ohio-1999.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF R.D.J., I.E.J., : JUDGES:
W.AJ., S.J.J. AND A.J., DEPENDENT :
CHILDREN : Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
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: Case No. 12 CAF 07 0046
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:
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: OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Juvenile
Division, Case Nos. 10-12-2836-01-C,
10-12-2837-01-C, 10-12-2838-01-C,
10-12-2839-01-C, 10-12-2921-01-C
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 5, 2013
APPEARANCES:
For Appellant M.H.: For Appellee: Delaware County
Department of Job and Family
Services:
PAMELLA LAMMON KATHRYN L. MUNGER
103 N. Union St. 140 N. Sandusky Street, 3rd Floor
Delaware, OH 43015 Delaware, OH 43015
Baldwin, J.
{¶1} Appellant M.H. appeals a judgment of the Delaware County Common
Pleas Court, Juvenile Division, awarding legal custody of her daughter I.E.J. and her
son A.J. to the foster families with which they resided and legal custody with protective
supervision of W.A.J. and S.J.J. to their natural father. Appellee is the Delaware
County Department of Job and Family Services.
STATEMENT OF FACTS AND CASE
{¶2} Appellant is the natural mother of R.D.J. (dob 12/29/04), I.E.J. (dob
10/12/07), W.A.J. (dob 12/16/08), S.J.J. (dob 10/11/09), and A.J. (dob 12/10/10). A
sixth child, A.J., was born on 2/19/12 and is not a part of the instant case. The natural
father of the children, R.J., has never been married to appellant, but they live together.
{¶3} The family first came to the attention of Franklin County Children’s
Services (FCCS) due to concerns that appellant was not taking medication for bipolar
disorder while caring for R.D.J. She was diagnosed with bipolar disorder, avoidant
personality, anger control issues, and anxiety. R.D.J. remained in the custody of
appellant and his father, with protective supervision. The parents were referred to
parenting classes, counseling and Help Me Grow. Help Me Grow terminated services
due to non-compliance. Protective supervision was terminated on October 2, 2006.
{¶4} The case was reopened in July of 2007. R.D.J. was adjudicated
neglected and dependent and placed in the temporary custody of FCCS. I.E.J. was
born during this time, and she also was placed in the temporary custody of FCCS from
October 12, 2007 through January 14, 2009. When the children were returned in
2009, FCCS retained protective supervision over I.E.J. FCCS’s concerns included
appellant’s arrest for assaulting the father of the children, the father’s arrest for
outstanding traffic warrants, appellant’s history of physical aggression, a pattern of
unexplained bruising, and relationship and anger issues between the parents. During
supervised visits, appellant had difficulty handling the children. She would sit on the
couch and yell at the children and call them inappropriate names. Further, her mental
health issues were not consistently treated.
{¶5} In September and October of 2009, FCCS investigated two incidents of
unexplained bruising to I.E.J. She was placed outside the home from September 21,
2009 through October 19, 2009, while FCCS investigated. She was returned home
and four days later she had a black eye. She was removed for thirty days by
agreement of the parents while FCCS investigated.
{¶6} On December 9, 2009, the court in Franklin County removed all of the
children from the home due to safety concerns. Despite parenting classes, the
parents continued to struggle with parenting the children during visits. R.D.J. was
struck in the face by appellant during an unsupervised visit in December of 2010.
Appellant screamed at the caseworker and pushed the children’s father and R.D.J.
upon learning that future visits would be supervised due to R.D.J. being hit in the face
during the unsupervised visit. When the foster parents arrived to pick up the children,
I.E.J. ran down the street, clutching a doll. Appellant chased her and yelled, “give me
my fucking toy back.” The police were called after appellant grabbed the foster
mother. Michele Reynolds, who was the caseworker during this time, described visits
as very hectic and chaotic with the parents unable to handle the behavior problems of
the children.
{¶7} In January of 2011, the case was certified to Delaware County as the
result of a motion filed by FCCS. The parents moved to Delaware in 2010. The case
plan in Delaware County required appellant to be referred to the Board of
Developmental Disabilities, take parenting classes, complete an anger management
program, participate in individual and couples counseling, and consistently take
medication for her mental illness.
{¶8} Kelsie Clark was assigned as the caseworker on the case from January
10, 2011 to February 7, 2012. She found that sometimes the parents were
cooperative, and sometimes they were defensive. The visits Clark supervised varied
from chaotic with the children hitting each other and the parents yelling excessively, to
more appropriate visits. The children were often physically aggressive toward each
other and threw tantrums during visits. The parents were not always aware of the
children’s violence toward each other during visits. During one visit, R.D.J. pulled
down his pants and told his sister I.E.J. to “suck his peepee.” The parents were
instructed after this incident to keep the children away from each other unless
supervised.
{¶9} Despite continued concerns for the safety of the children during visits,
the children were placed with their parents for an extended home visit in March and
April of 2012. During this time, the director of the day care center the children
attended reported multiple bruises to I.E.J., W.A.J. and S.J.J.
{¶10} Appellee filed a motion seeking permanent custody of the children on
October 3, 2011. The case proceeded to a fifteen day trial in the Delaware County
Common Pleas Court, Juvenile Division, beginning November 16, 2011, and
concluding on May 23, 2012. On April 9, 2012, the guardian ad litem for the children
filed a motion to grant legal custody of the children to the two foster families where
they were placed. During trial, the court dismissed the motion for permanent custody
of R.D.J., as he had been returned to the legal custody of his father.
{¶11} The trial court overruled the motion for permanent custody. The court
granted legal custody of I.E.J. and A.J. to the two separate foster families with which
they had been residing. Legal custody of W.A.J. and S.J.J. was returned to father,
with appellee retaining protective supervision.
{¶12} Both parents appealed. Father dismissed his appeal on April 12, 2013.
{¶13} Appellant assigns two errors on appeal:
{¶14} “I. WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AN
ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE WHEN IT AWARDED LEGAL CUSTODY OF I.E.J. AND A.J. TO TWO
SEPARATE SETS OF FOSTER PARENTS UNDER R.C. 2151.353.”
{¶15} “II. WHETHER THE JUDGMENT OF THE TRIAL COURT KEEPING
THE CASE ON W.A.J AND S.J.J. OPEN AFTER DENYING THE DELAWARE
COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES’ (DCDJFS) MOTION
FOR PERMANENT CUSTODY IS AN ABUSE OF DISCRETION.”
I.
{¶16} In her first assignment of error, appellant incorporates father’s arguments
from his brief in his dismissed appeal concerning the award of legal custody to two
separate foster families, and also argues that the judgment was against the manifest
weight of the evidence.
{¶17} Father argued that the motion for legal custody was not timely, the legal
custodians did not sign a statement of understanding, and the legal custodians were
not present throughout the entire hearing pursuant to R.C. 2151.353(A)(3), which
provides:
{¶18} “(A) If a child is adjudicated an abused, neglected, or dependent child, the
court may make any of the following orders of disposition:
{¶19} “(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. A person identified in a
complaint or motion filed by a party to the proceedings as a proposed legal custodian
shall be awarded legal custody of the child only if the person identified signs a
statement of understanding for legal custody that contains at least the following
provisions:
{¶20} “(a) That it is the intent of the person to become the legal custodian of the
child and the person is able to assume legal responsibility for the care and supervision
of the child;
{¶21} “(b) That the person understands that legal custody of the child in question
is intended to be permanent in nature and that the person will be responsible as the
custodian for the child until the child reaches the age of majority. Responsibility as
custodian for the child shall continue beyond the age of majority if, at the time the child
reaches the age of majority, the child is pursuing a diploma granted by the board of
education or other governing authority, successful completion of the curriculum of any
high school, successful completion of an individualized education program developed
for the student by any high school, or an age and schooling certificate. Responsibility
beyond the age of majority shall terminate when the child ceases to continuously pursue
such an education, completes such an education, or is excused from such an education
under standards adopted by the state board of education, whichever occurs first.
{¶22} “(c) That the parents of the child have residual parental rights, privileges,
and responsibilities, including, but not limited to, the privilege of reasonable visitation,
consent to adoption, the privilege to determine the child's religious affiliation, and the
responsibility for support;
{¶23} “(d) That the person understands that the person must be present in court
for the dispositional hearing in order to affirm the person's intention to become legal
custodian, to affirm that the person understands the effect of the custodianship before
the court, and to answer any questions that the court or any parties to the case may
have.”
{¶24} Appellant agreed to hear the motion for legal custody at the same time
as the permanent custody motion. Tr. 871. Therefore, any error in the timing of the
motion has been waived.
{¶25} Further, appellant failed to object to the failure of the court to require the
foster families to sign a written statement of understanding, and has therefore waived
all but plain error. In re A.V.O., 9th Dist. Nos. 11CA010115, 11CA010116,
11CA010117, 11CA010118, 2012-Ohio-4092, ¶8. In order to prevail under a plain
error analysis, appellant bears the burden of demonstrating that the outcome of the
trial clearly would have been different but for the error. State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978); Notice of plain error “is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage
of justice.” Id. at paragraph three of the syllabus.
{¶26} Appellant has not demonstrated plain error in the court’s failure to
require the two foster families to sign a statement of understanding. Both foster
mothers testified at trial that they were willing to accept legal custody and to allow
visitation with the parents if they received legal custody.
{¶27} Appellant also argues that the foster parents were not present for the
entire dispositional hearing as required by R.C. 2151.353(A)(3)(d). Again, appellant
did not object, and in fact invited any error by moving for a separation of witnesses.
Further, the statute does not require that the legal custodian be present for the entire
hearing. Both foster mothers testified at trial and affirmed their willingness to become
legal custodians and their understanding of what that status means, and they were
subject to questioning by the parties.
{¶28} Finally, appellant argues that the judgment was against the manifest
weight of the evidence because the siblings are now divided.
{¶29} On appeal, we will not reverse an award of legal custody absent an
abuse of discretion. In re Gales, 10th Dist.. No. 03AP–445, 2003–Ohio–6309; In re
Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (2001). Abuse of discretion connotes
more than an error of law or judgment. Rather, it implies that the trial court's decision
was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). “‘[L]egal custody where parental rights are not
terminated is not as drastic a remedy as permanent custody’.” In re A. W.-G., 12th
Dist. No. CA2003–04–099, 2004–Ohio–2298, at ¶ 7, quoting Nice at 455, 751 N.E.2d
552. Therefore, the trial court's standard of proof in legal custody proceedings is not
clear and convincing evidence, as it is in permanent custody proceedings, but is
merely a preponderance of the evidence. Nice at 455, 751 N .E.2d 552; In re A. W.-G;
In re Law, 5th Dist. No.2003 AP 06 45, 2004–Ohio–117.
{¶30} The trial court’s decision to award legal custody of I.E.J. to her foster
family and separate her from her siblings is not an abuse of discretion or against the
weight of the evidence. She has been out of the parents’ home the majority of her life,
and was placed with the foster family when she was two days old. She views the
foster family as her own and does not want to visit her parents. Appellant has not
formed a bond with I.E.J., speaks negatively to her during visits and is more
aggressive in her handling of I.E.J. She returned home from visits with unexplained
bruising, and there was evidence of violence between the children and evidence that
appellant once pulled her out of the room by her ankles. On another occasion, I.E.J.
vomited on her shirt on the car ride to a visit and appellant did not want her shirt
changed. Appellant told I.E.J. that she was too fat and heavy to hold, and at another
visit told I.E.J. that she’s fat and smells bad. There was abundant evidence from
which the court could conclude that I.E.J. is at best ignored and at worst treated badly
when she is with her parents and her other siblings. The court did not abuse its
discretion in awarding legal custody to the foster family.
{¶31} A.J. has hearing loss. The foster family has purchased a Baha band to
aid in A.J.’s hearing. They have received training on use of the band and daily
maintenance for the band. They further have worked with a hearing specialist and
with the school regarding A.J.’s specialized needs. Because of the band, A.J. is very
sensitive to background noise and it is important that noise be minimized when he is
wearing the band. As noted by the court, “The overwhelming theme throughout the
testimony is that of chaos. The [J/H] home is generally loud. The children run, play
and yell. While this may be normal for children of their ages, it is not conducive to
[A.J’s] specialized needs.” The court did not abuse its discretion in awarding legal
custody of A.J. to the foster family.
{¶32} The first assignment of error is overruled.
II.
{¶33} In her second assignment of error, appellant incorporates the argument
made by father in his brief that the trial court did not have authority to award appellee
protective supervision over W.A.J. and S.J.J. while awarding legal custody to father.
{¶34} Appellant relies on In re C.B., 129 Ohio St. 3d, 231, 2011-Ohio-2899,
951 N.E.2d 398. In that case, the Ohio Supreme Court held that an order which
denies a children services agency's motion to modify temporary custody to permanent
custody, terminates the placement of temporary custody with the agency, and awards
legal custody to a parent is a final, appealable order. Id. at syllabus. Nothing in that
case prohibits a court from awarding legal custody to a parent and at the same time
giving the agency protective supervision over the children.
{¶35} R.C. 2151.353(A) provides in pertinent part:
{¶36} “(A) If a child is adjudicated an abused, neglected, or dependent child,
the court may make any of the following orders of disposition:
{¶37} “(1) Place the child in protective supervision;
{¶38} “(2) Commit the child to the temporary custody of a public children
services agency, a private child placing agency, either parent, a relative residing within
or outside the state, or a probation officer for placement in a certified foster home, or
in any other home approved by the court;
{¶39} “(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.”
{¶40} The statute does not limit a court to only one dispositional alternative,
and the word “any” usually refers to one or more of a specific quantity. In re Pryor, 86
Ohio App. 3d 327, 337, 620 N.E.2d 973 (4th Dist. 1993). While as a practical matter
most instances will involve the use of only one dispositional alternative, there is no
rule of law which restricts the court’s options. Id.{¶41} In the instant case, there is abundant evidence to support the court’s
decision to place the children in protective supervision. The transcript is rife with
testimony that the household is chaotic, the parents at times have great difficulty
controlling the behavior of the children who are violent with each other, and the
children often have unexplained bruising while in the care of the parents. Further,
while the parents, particularly the father, have made progress on the case plan and in
dealing with the children, the court and appellee remain concerned about appellant’s
mental illness as well as R.D.J.’s mental illness and the effect their problems could
have on the household.
{¶42} The second assignment of error is overruled. The judgment of the
Delaware County Common Pleas Court, Juvenile Division, is affirmed.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
rad/CRB
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
IN THE MATTER OF R.D.J., I.E.J., :
W.A.J., S.J.J. AND A.J., :
DEPENDENT CHILDREN : JUDGMENT ENTRY
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: Case No. 12 CAF 07 0046
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For the reasons stated in our accompanying Opinion on file, the judgment of the
Delaware County Court of Common Pleas, Juvenile Division, is affirmed. Costs
assessed to Appellant.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY