In re Z.D. , 2012 Ohio 3658 ( 2012 )

[Cite as In re Z.D., 2012-Ohio-3658.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P. J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
Z.D. Case No. 12 CA 29
DEPENDENT CHILD OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of
Common Pleas, Juvenile Division,
Case No. 10 DEP 181
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 14, 2012
APPEARANCES:
For Appellant Father For Appellee
JOHN C. O'DONNELL EDITH A. GILLILAND
13 Park Avenue West RICHLAND CTY. CHILDREN SERVICES
Mansfield, Ohio 44902 731 Scholl Road
Mansfield, Ohio 44907
For CASA
RANDALL E. FRY
20 West Newlon Place
Mansfield, Ohio 44902
Richland County, Case No. 12 CA 29 2
Wise, J.
{¶1} Appellant Christopher Brown appeals the decision of the Court of
Common Pleas, Richland County, which granted permanent custody of his daughter to
Appellee Richland County Children Services (“RCCS”). The relevant facts leading to
this appeal are as follows.
{¶2} The child at the center of this case is Z.D., born to Nicole Davis and
Christopher Brown in December 2009. At birth, Z.D. tested positive for THC in her
system. Nicole voluntarily placed Z.D. with relatives upon the baby’s release from the
hospital, and, in May 2010, voluntarily placed her with a cousin, Ashanti Ginn. The child
has been in the immediate care of Ms. Ginn since that time. Ginn is thirty-one years old,
holds a master’s degree, and is employed as a social worker with the Salvation Army.
She has also obtained her “foster-to-adopt” certification. See Tr. at 75, 165, 227.
{¶3} On July 30, 2010, RCCS filed a complaint in the trial court alleging that
Z.D. was a dependent and/or abused child. Following an adjudicatory hearing, the trial
court found Z.D. to be dependent and awarded temporary custody of the child to
Ashanti Ginn, with protective supervision granted to RCCS.
{¶4} On June 17, 2011, RCCS filed a dispositional motion asking that legal
custody be awarded to Ms. Ginn. However, on July 25, 2011, the CASA/Guardian Ad
Litem, Sharon Pace, filed a dispositional motion seeking permanent custody to RCCS,
even though the agency maintained its position before the trial court that legal custody
should be awarded to Ginn.1 See, e.g., Tr. at 274-275.
1
The prosecution of a GAL-initiated permanent custody motion contrary to a children
services agency’s dispositional plan is, in this Court’s memory, an unusual procedural
scenario. However, the Ohio Supreme Court, in In re C.T., 119 Ohio St.3d 494, 2008–
Richland County, Case No. 12 CA 29 3
{¶5} An evidentiary hearing on the permanent custody motion was conducted
on December 2, 2011. On December 29, 2011, the magistrate issued a decision
awarding permanent custody of Z.D. to RCCS, which will presumably lead to a future
adoption by Ashanti Ginn. Each parent thereafter filed objections to the decision, which
the trial court denied on March 30, 2012.
{¶6} Appellant Brown filed a notice of appeal on April 11, 2012. He herein
raises the following three Assignments of Error:
{¶7} “I. [THE] TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
FAILING TO GRANT [A] CONTINUANCE OF THE PERMANENT CUSTODY
HEARING.
{¶8} “II. [THE] TRIAL COURT’S CONCLUSION THAT PERMANENT
CUSTODY WAS WARRANTED IS NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE.
{¶9} “III. [THE] TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
FAILING TO GRANT THE MOTION OF CHILDREN SERVICES FOR LEGAL
CUSTODY [TO ASHANTI GINN].”
Ohio–4570, syllabus, held that “[a] guardian ad litem has authority under R.C.
2151.281(I) and 2151.415(F) to file and prosecute a motion to terminate parental rights
and award permanent custody in a child welfare case.” We note that in a concurring
opinion in In re: A.T., Wayne App.No. 11CA0024, 2011-Ohio-5222, ¶ 37, Judge Carr of
the Ninth District Court of Appeals stated she was “troubled by a procedure that allows
a party to attempt to compel CSB to assume permanent custody of a child.” In the case
sub judice, we likewise express some concern that in this scenario, under the present
law in Ohio, RCCS has effectively been forced to advocate on appeal in support of a
permanent custody disposition it did not originally seek.
Richland County, Case No. 12 CA 29 4
I.
{¶10} In his First Assignment of Error, appellant contends the trial court
committed reversible error in denying his motion to continue the permanent custody
hearing. We disagree.
{¶11} A litigant does not have a right to unreasonably delay a trial. See Hartt v.
Munobe (1993), 67 Ohio St.3d 3, 9, 1993–Ohio–177. The grant or denial of a
continuance is a matter entrusted to the broad, sound discretion of the trial court.
Polaris Ventures IV, Ltd. v. Silverman, Delaware App.No.2005 CAE 11 0080, 2006–
Ohio–4138, ¶ 14, citing State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078. In
order to find an abuse of discretion, we must find the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶12} In determining whether a trial court abused its discretion in denying a
motion for a continuance, an appellate court should consider the following factors: (1)
the length of the delay requested; (2) whether other continuances have been requested
and received; (3) the inconveniences to witnesses, opposing counsel and the court; (4)
whether there is a legitimate reason for the continuance; (5) whether the defendant
contributed to the circumstances giving rise to the need for the continuance; and other
relevant factors, depending on the unique facts of each case. In re P.T., Stark App.No.
2011CA00200, 2012-Ohio-1287, ¶ 17, citing Unger at 67–68, 423 N.E.2d 1078; State v.
Holmes (1987), 36 Ohio App.3d 44, 47–48, 521 N.E.2d 479.
{¶13} In support of his claim, appellant notes that he is incarcerated for an
unspecified “extended period of time” and that the mother, Nicole Davis, allegedly did
Richland County, Case No. 12 CA 29 5
not attend the permanent custody hearing because of a death in her family. Appellant’s
Brief at 4. According to Ms. Ginn’s testimony, appellant is serving an eighteen-to-life
sentence for murder. Tr. at 166. Appellant provides no further details regarding either of
these stated reasons for the parents’ non-attendance, although the record indicates that
appellant and Nicole each had trial counsel present. Clearly, “ *** lengthy delays were
not within the intent of the legislature when it shortened the permanent custody time
frames [under R.C. 2151.414].” In re: K.G., Wayne App.Nos. 03CA0066, 03CA0067,
03CA0068, 2004-Ohio-1421, ¶ 23. Upon review of the record in light of the guidelines
set forth in Unger, supra, we find no abuse of discretion in the trial court’s denial of
appellant’s request to continue the permanent custody hearing.
{¶14} Appellant’s First Assignment of Error is overruled.
II.
{¶15} In his Second Assignment of Error, appellant maintains the grant of
permanent custody to RCCS was not supported by the evidence. We disagree.
{¶16} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App.No. CA–5758.
Accordingly, judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d
279, 376 N.E.2d 578. Furthermore, it is well-established that the trial court is in the best
position to determine the credibility of witnesses. See, e.g., In re Brown, Summit
Richland County, Case No. 12 CA 29 6
App.No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St .2d
230, 227 N.E.2d 212.
{¶17} R.C. 2151.414(B)(1) reads as follows: “Except as provided in division
(B)(2) of this section, the court may grant permanent custody of a child to a movant if
the court determines at the hearing held pursuant to division (A) of this section, by clear
and convincing evidence, that it is in the best interest of the child to grant permanent
custody of the child to the agency that filed the motion for permanent custody and that
any of the following apply:
{¶18} “(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-month period,
* * * and the child cannot be placed with either of the child's parents within a reasonable
time or should not be placed with the child's parents.
{¶19} “(b) The child is abandoned.
{¶20} “(c) The child is orphaned, and there are no relatives of the child who are
able to take permanent custody.
{¶21} “(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or more months
of a consecutive twenty-two month period * * *.”
{¶22} In determining whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents (see R.C.
2151.414(B)(1)(a), supra), a trial court is to consider the existence of one or more
factors under R.C. 2151.414(E), including whether or not “[f]ollowing the placement of
Richland County, Case No. 12 CA 29 7
the child outside the child's home and notwithstanding reasonable case planning and
diligent efforts by the agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be placed outside
the child's home. In determining whether the parents have substantially remedied those
conditions, the court shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and material resources that
were made available to the parents for the purpose of changing parental conduct to
allow them to resume and maintain parental duties.” See R.C. 2151.414(E)(1).
{¶23} At the permanent custody hearing on December 2, 2011, the caseworker,
Jennifer Hissom, testified that she did not have concerns about Nicole continuing a
relationship with Z.D. Tr. at 65. However, Hissom noted that Nicole had maintained no
contact with the child since December 2010, nearly a full year prior to the hearing. Id.
Hissom explained that Nicole “ *** stated that she um just feels that she knows that
Ashanti [Ginn] is doing a very good job and, well, yes, that she doesn’t want to interfere
with anything.” Tr. at 66-67. Thus, while RCCS did not have some of the serious
concerns about the mother’s habits and parenting abilities as are often seen in
permanent custody cases, in this instance the trial court determined that Nicole had
abandoned Z.D. (see R.C. 2151.414(E)(10)) and that appellant had been incarcerated
throughout the duration of the case and would remain incarcerated for eighteen more
years (see R.C. 2151.414(E)(12)). See Magistrate’s Decision at 4.
{¶24} Upon review, we hold the trial court did not err in determining that Z.D.
could not be placed with appellant or Nicole within a reasonable time or should not be
Richland County, Case No. 12 CA 29 8
placed with appellant or Nicole. See R.C. 2151.414(B)(1)(a). Furthermore, the trial court
could have properly relied on the factor of abandonment under R.C. 2151.414(B)(1)(b),
based on the evidence presented. See R.C. 2151.011(C) (setting forth a ninety-day rule
for the definition of abandonment in this context).
{¶25} In regard to the best interest issue, we first note it is well-established that
“[t]he discretion which the juvenile court enjoys in determining whether an order of
permanent custody is in the best interest of a child should be accorded the utmost
respect, given the nature of the proceeding and the impact the court's determination will
have on the lives of the parties concerned.” In re Mauzy Children (Nov. 13, 2000), Stark
App.No. 2000CA00244, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642
N.E.2d 424.
{¶26} In determining the best interest of a child for purposes of permanent
custody disposition, the trial court is required to consider the factors contained in R.C.
2151.414(D). These factors are as follows:
{¶27} “(1) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster care givers and out-of-home providers, and any other
person who may significantly affect the child;
{¶28} “(2) The wishes of the child, as expressed directly by the child or through
the child's guardian ad litem, with due regard for the maturity of the child;
{¶29} “(3) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies or private
child placing agencies for twelve or more months of a consecutive twenty-two month
period * * *;
Richland County, Case No. 12 CA 29 9
{¶30} “(4) The child's need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of permanent custody
to the agency;
{¶31} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”
{¶32} Again, while the caseworker, Ms. Hissom, took the position that Nicole
could maintain a relationship with Z.D. (Tr. at 67), the guardian ad litem, Sharon Pace,
essentially opined against merely granting legal custody to Ms. Ginn over concerns that,
in addition to appellant’s long-term incarceration, Nicole’s ongoing instability would be
an issue without permanent custody to the agency. Pace testified that “the mother has
had every opportunity to visit this child and be a parent to it, to her, and she has not
done that.” Tr. at 224. Pace felt that Nicole had thus “effectively abandoned” Z.D. Id.Thus, as the trial court recognized, Z.D. has no familiarity or relationship with appellant
or Nicole for purposes of R.C. 2151.414(D)(1). Pace observed that Z.D. had bonded
with Ginn and that she was thriving in that environment. Tr. at 226. Pace further stated
that with a permanent custody order, Z.D. “will have a permanent mother, not one that is
gonna [sic] bounce in and out of her life ***.” Id.{¶33} “ *** [A] juvenile court's disposition of legal custody to a relative is different
from permanent custody to a children services agency because, among other things, it
does not terminate parental rights but instead leaves intact residual parental rights,
privileges, and responsibilities.” In re: N.P., Summit App.No. 21707, 2004-Ohio-110, ¶
23 (additional citations and internal quotations omitted). In the case sub judice, upon
review of the record and the findings and conclusions therein, we conclude the trial
Richland County, Case No. 12 CA 29 10
court's judgment granting permanent custody of Z.D. to the agency and terminating
appellant’s and Nicole’s residual parental rights was made in the consideration of the
child's best interest and did not constitute an error or an abuse of discretion under the
circumstances presented.
{¶34} Appellant's Second Assignment of Error is overruled.
III.
{¶35} In his Third Assignment of Error, appellant contends the trial court’s denial
of the request by RCCS to grant legal custody of Z.D. to Ashanti Ginn was not
supported by the evidence. We disagree.
{¶36} R.C. 2151.353(A) states in pertinent part: “If a child is adjudicated an
abused, neglected, or dependent child, the court may make any of the following orders
of disposition:
{¶37} “ * * *
{¶38} “(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. * * *.”
{¶39} A juvenile court's standard of review in legal custody proceedings is by the
preponderance of the evidence. In re Nice (2001), 141 Ohio App.3d 445, 455. Some
Ohio courts have recognized that “the statutory best interest test designed for the
permanent custody situation [see R.C. 2151.414(D), supra] may provide some
‘guidance’ for trial courts making legal custody decisions.” See In re A.F., Summit
Richland County, Case No. 12 CA 29 11
App.No. 24317, 2009–Ohio–333, ¶ 7, citing In re T.A., Summit App.No. 22954, 2006–
Ohio–4468, ¶ 17.
{¶40} Furthermore, because custody issues are some of the most difficult and
agonizing decisions a trial judge must make, he or she must have wide latitude in
considering all the evidence and such a decision must not be reversed absent an abuse
of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159,
citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. The Ohio Supreme
Court has also explained: “A reviewing court should not reverse a decision simply
because it holds a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law is a legitimate
ground for reversal, but a difference of opinion on credibility of witnesses and evidence
is not.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273.
Likewise, “[e]very reasonable presumption must be made in favor of the judgment and
the findings [of the juvenile court]. * * * If the evidence is susceptible to more than one
construction, we must give it that interpretation which is consistent with the verdict and
judgment, and most favorable to sustaining the [juvenile] court's verdict and judgment.”
In re: MB, Summit App.No. 21812, 2004–Ohio–2666, ¶ 6, citing Karches v. Cincinnati
(1988), 38 Ohio St.3d 12, 526 N.E.2d 1350. It is well established that the fact finder is
free to believe all, part, or none of the testimony of each witness. State v. Caldwell
(1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096.
{¶41} In the case sub judice, as per our analysis in the above redress of
appellant’s Second Assignment of Error, we hold the trial court’s denial of the agency’s
Richland County, Case No. 12 CA 29 12
motion for legal custody of Z.D. to Ashanti Ginn in lieu of permanent custody to the
agency was not erroneous or an abuse of discretion.
{¶42} Appellant’s Third Assignment of Error is overruled.
{¶43} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Richland County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0731
Richland County, Case No. 12 CA 29 13
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
:
Z.D. : JUDGMENT ENTRY
:
:
DEPENDENT CHILD : Case No. 12 CA 29
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Richland County, Ohio, is
affirmed.
Costs assessed to appellant.
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JUDGES