In re L.D. , 2012 Ohio 1810 ( 2012 )

[Cite as In re L.D., 2012-Ohio-1810.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
IN THE MATTER OF: : W. Scott Gwin, P.J.
: John W. Wise, J.
L.D. : Julie A. Edwards, J.
:
: Case No. 2012CA00006
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas, Family
Court Division, Case No.
2009JCV01027
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 23, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JERRY A. COLEMAN VERNON M. INFANTINO
Stark County Job and Schnars, Baca & Infantino, LLC
Family Services 610 Market Avenue, North
221 Third Street, S.E. Canton, Ohio 44702
Canton, Ohio 44702
[Cite as In re L.D., 2012-Ohio-1810.]
Edwards, J.
{¶1} Appellant, Crystal Dickson, appeals from the December 14, 2011,
Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,
terminating her parental rights and granting permanent custody of L.D. to Stark County
Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the biological mother of L.D. (DOB 8/4/09). She is not married
to L.D.’s father. On August 7, 2009, Stark County Department of Job and Family
Services (SCDJFS) filed a complaint alleging that L.D. was a dependant and/or
neglected child. The agency requested that the child be placed in the temporary custody
of her maternal aunt with protective supervision by the agency.
{¶3} On September 2, 2009, after appellant and L.D.’s father stipulated to a
finding of dependency, L.D. was found to be a dependent child and she was placed in
the temporary custody of a relative with protective supervision by SCDJFS. On October
13, 2009, L.D. was placed in the temporary custody of SCDJFS.
{¶4} Thereafter, on June 28, 2011, SCDJFS filed a motion requesting
permanent custody of L.D. A hearing on such motion commenced on November 14,
2011. The following testimony was adduced at the hearing.
{¶5} Wanda Pounds, the ongoing social worker with SCDJFS, testified that she
had been involved with the family since August of 2009. She testified that the agency
had had previous involvement with the family and that custody of appellant’s two other
children from a different father had been granted to a relative after appellant agreed to
such placement. Pounds testified that at the time of L.D.’s birth, appellant was not
Stark County App. Case No. 2012CA00006 3
raising her other children and that the agency believed that appellant had not addressed
any of the agency’s concerns about her. According to Pounds, the agency was
concerned about appellant’s cognitive abilities as well as domestic violence issues she
had with the father of her other children. At the time of L.D.’s birth, appellant was still
involved with such person.
{¶6} Pounds testified that L.D. had been placed in the custody of appellant’s
sister, but that in October of 2009, the sister had been arrested for domestic violence
and custody of L.D. was transferred to the agency. L.D. had been in continuous custody
of the agency since October 13, 2009, and was still residing in the same foster home as
she was placed in at such time.
{¶7} According to Pounds, the agency developed a case plan for appellant.
The plan required both appellant and L.D.’s father to complete a parenting
psychological evaluation at Northeast Ohio Behavioral Health and get drug
assessments at Quest. Appellant completed the Quest assessment. Pound’s testified
that the parents completed the parenting evaluations and that, with respect to
appellant’s evaluation, there were no recommendations for further services. The
following is an excerpt from Pounds’ testimony:
{¶8} “Q. Okay. Now, you indicated mom. I just want to be sure. Mom did not
have any recommendations then on her parenting evaluation. Is that correct?
{¶9} “A. No, she did not.
{¶10} “Q. And as such, was mother, was it, were any other services offered to
mother at that point?
Stark County App. Case No. 2012CA00006 4
{¶11} “A. Um…I connected her with BBR [Bureau of Vocational Rehabilitation]
Um…just because I, I didn’t know what else to do. I know that um…they did an
assessment but I don’t think anything ever came of that for services for her. Um…but
she has been approved for social security benefits.
{¶12} “Q. Based upon her cognitive limitations?
{¶13} “A. Yes.
{¶14} “Q. Has mother told you, verbalized to you, if she is interested in regaining
custody of this child?
{¶15} “A. Um…at the beginning of the case, she had said that she was
comfortable with her daughter being with her sister. And at that point, she was fine with
everything staying the way it was, so that she could see her daughter.
{¶16} “Q. Is the sister in the same foster home?
{¶17} “A. No, ‘her’ sister, who had custody.
{¶18} “Q. Oh…I’m sorry. I’m sorry.
{¶19} “A. At the beginning.
{¶20} “Q. Alright. So, she was comfortable with her sis, mom’s sister, the aunt,
keeping custody of the child?
{¶21} “A. Right.
{¶22} “Q. When the child was placed into the Agency’s custody, did mother
(inaudible) an opinion as to whether she was desiring of, of return of custody at that
point?
Stark County App. Case No. 2012CA00006 5
{¶23} “A. Um…no, she never really spoke of it, although she did stipulate at the
um…previous permanent custody hearing. But um…in her psych eval., she had said
that she didn’t want full time care.
{¶24} “Q. What did she, what did she want? If you know.
{¶25} “A. Just to be able to see her daughter.” Transcript of November 14, 2011
hearing at 17-18.
{¶26} Pounds testified that appellant had been visiting L.D. regularly and that
L.D. was very comfortable with appellant. She further testified that she felt that she had
assisted the family with trying to complete the case plan services and that appellant had
not fully completed the same.
{¶27} On cross-examination, Pounds testified that no court case was filed with
respect to appellant’s two other children, but that appellant had agreed to have such
children placed with a relative. Pounds testified that appellant completed her
assessment at Quest and Northeast Ohio Behavioral Health and that she made her own
appointments and arranged her own transportation to the appointments. She testified
that she referred appellant to the Bureau of Vocational Rehabilitation and that appellant
did not qualify for any of the programs. Pounds testified that appellant lived by herself
and that she was receiving social security. She further testified that appellant and L.D.
were bonded. When asked if she ever on her own recommended services, Pounds
indicated that she sometimes did but, she did not do so in this case.
{¶28} On redirect, Pounds testified that she could not in good conscience reunify
L.D. with either parent. She testified that when placement of L.D. with appellant’s sister
did not work out, appellant told Amy Thomas at her parenting evaluation that she just
Stark County App. Case No. 2012CA00006 6
wanted to visit L.D. and that appellant had never told her that she had changed her
mind and wanted to be a full time mother to L.D. Pounds testified that appellant had
never asked for services or for more visitation and that appellant visited with L.D. twice
a month for two hours at a time. Pounds testified that L.D. had never been in either of
her parent’s homes and that she would have a big adjustment if she was placed with
her parents.
{¶29} Amy Thomas, a psychology assistant at Northeast Ohio Behavioral
Health, testified that appellant had participated in a parenting evaluation with her in
October of 2009, and that appellant had significant problems with her cognitive ability.
Thomas testified that appellant had a verbal IQ of 62, a non-verbal IQ of 70 and that her
full scale IQ was 61. According to Thomas, appellant was functioning at the level of a
nine year old in terms of verbal skills and a 71/2 year old in terms of non-verbal skills.
According to Thomas, appellant would need a great deal of assistance in raising a child
because she needed someone with her to “supervise her judgment in reasoning. To
assist her with maintaining basic life activities…” Transcript of November 14, 2011
hearing at 36. Thomas testified that appellant would need assistance every day all day
long.
{¶30} When she was asked why she made no recommendations for
reunification, Thomas testified as follows:
{¶31} “A. You know, at the time I met with [CRYSTAL DICKSON], she was very
ambivalent about the idea of working a case plan towards regaining the child. So, she
was really questioning whether or not she wanted to complete the case plan. She didn’t
know whether or not she wanted to maintain custody of this child. Um…she recognized
Stark County App. Case No. 2012CA00006 7
it was very difficult to raise a child which would be an accurate assessment. Um…in
addition, at the time [Crystal Dickson] had reconciled with the father of two older
children. Um…who she had lost custody of. The, the children were placed in the
permanent custody of their paternal grandmother. Um…this individual, according to
[Crystal Dickson] has continued to drink alcohol excessively. He has a criminal history.
There were clear concerns that this is her live in partner and yet this person would not
be able to provide her the support that she needed to parent this baby effectively or
appropriately. So, at the time I met with her, not only were the concerns with the IQ but
the lack of appropriate support system enabling her to raise a baby in a safe and
competent manner. When there’s concerns with attachment and bond, there’s going to
be concerns with her commitment and follow through towards appropriately parenting
the child, as well.” Transcript of November 14, 2011 hearing at 37-38.
{¶32} Thomas further testified that she diagnosed appellant with dependent
personality disorder, and that appellant’s relationship with her current paramour was
dysfunctional and that there had been domestic violence.
{¶33} On cross-examination, Thomas testified that she initially saw appellant in
April of 2008 and that, at such time, she had recommended Goodwill Home Based Help
Me Grow and individual counseling. She admitted that she indicated in a 2008 report
that appellant was likely to cooperate with services provided by Community Health. The
following testimony was adduced when she was asked what had changed her mind
about appellant in the past 18 months:
{¶34} “A. Um…the difference is in terms of her attachment and motivation to,
towards completing a case plan. Again, the ambivalence was critical to me, towards
Stark County App. Case No. 2012CA00006 8
commitment. In addition to that, she previously was given this case plan but was
unable to regain custody of two previous children. So, despite um...working towards
regaining custody of those children, she could not do it. So, that really reflects concerns
with her ability based on her IQ and support system, um…in order to successfully
parent two other children.” Transcript of November 14, 2011 hearing at 43.
{¶35} Thomas testified that appellant still wanted to maintain visits with her
daughter and that her concerns that appellant would have problems learning things
were the same that she had in 2008. Thomas testified that she was not aware that
appellant had her own housing and was receiving Social Security.
{¶36} At the hearing, appellant testified that she lived in an apartment and was
currently on social security. She testified that her mother, who was her payee, helped
her pay her bills and that she wanted custody of L.D. and loved her. Appellant testified
that she would do whatever SCDJFS asked her to do to obtain custody.
{¶37} On cross-examination, appellant testified that she had changed her mind
about having custody of L.D. after her sister lost custody of L.D., but that she did not tell
anyone that she wanted custody rather than just visitation. Appellant also testified that
she would need help raising L.D. Appellant further testified that she was living with her
boyfriend. After she was referred to the Bureau of Vocational Rehabilitation, appellant
called them once and, after they did not answer their phone, gave up on the bureau.
Appellant testified that her daughter seemed happy and was doing well in foster care.
When asked what she would do if she got L.D. that day, appellant testified that she
would get a bigger house and take care of her. She testified that she required a lot of
assistance from her mother.
Stark County App. Case No. 2012CA00006 9
{¶38} The best interest hearing was held on December 14, 2011. At the hearing,
Pounds testified that L.D., who had been in the agency’s continuous temporary custody
since October 13, 2009, did not have any developmental, medical, behavioral or special
education needs. She testified that L.D. had been in the same foster care since October
13, 2009 and was bonded with her foster family. Pounds testified that the foster family
wanted to adopt L.D. and that the agency had investigated all possible family members,
but that none was suitable. Pounds testified that appellant’s visits with L.D. went well
and that there was a bond between L.D. and her biological parents. When asked why
she thought that permanent custody would be in L.D.’s best interest, Pounds testified as
follows:
{¶39} “A. Um…although there is a bond with these parents, the parents have
continual bad choice, make continual bad choices. Um…mom is cognitively limited.
Um…she has expressed that she didn’t want her daughter, she was fine with her being
with her sister. But now she’s saying she wants her home. Um…there were no
services offered on her psychological evaluation. Um…we’ve tried, in her past cases
and it’s not made enough of a difference. Um…during this case, there’s been two
incidences of domestic violence involving her as the victim.
{¶40} “Q. Who mom?
{¶41} “A. Yes.” Transcript of December 14, 2011 hearing at 8.
{¶42} On cross-examination, Pounds was questioned about L.D.’s grandmother
who had custody of appellant’s two other children. She testified that the grandmother
had no income, had multiple liens against her and also that she had two adult sons
living with her who had multiple felonies. Pounds testified that appellant and her
Stark County App. Case No. 2012CA00006 10
daughter were bonded and that while appellant completed services, it was “not to the
standard that would allow her to keep her other two kids.” Transcript of December 14,
2011 hearing at 11. Pounds admitted that appellant completed her psychological
parenting evaluation, had housing and had an income.
{¶43} Pursuant to a Judgment Entry filed on December 14, 2011, the trial court
terminated appellant’s parental rights and granted permanent custody of L.D. to
SCDJFS. On the same date, the trial court filed Findings of Fact and Conclusions of
Law.
{¶44} Appellant now appeals from the trial court’s December 14, 2011 Judgment
Entry, raising the following assignments of error on appeal:
{¶45} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.
{¶46} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
I, II
{¶47} Appellant's two assignments of error are related and shall be addressed
together. In her first assignment of error, appellant argues that the trial court's finding
that L.D. could not and should not be placed with appellant within a reasonable time
was against the manifest weight and sufficiency of the evidence. In her second
Stark County App. Case No. 2012CA00006 11
assignment of error, appellant argues that the trial court erred in finding that permanent
custody to SCDJFS was in L.D.’s best interest. Appellant argues that this finding was
against the manifest weight and sufficiency of the evidence. We disagree.
{¶48} “Permanent Custody” is defined as “[a] legal status that vests in a public
children services agency or private child placing agency, all parental rights, duties and
obligations, including the right to consent to adoption, and divests the natural parents or
adoptive parents of all parental rights, privileges, and obligations, including all residual
rights and obligations.” R.C. 2151 .011.
{¶49} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined
“clear and convincing evidence” as “[t]he measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954); In re: Adoption of
Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
{¶50} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to determine whether
the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.”
State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990). See also, C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial
court's judgment is “supported by some competent, credible evidence going to all the
Stark County App. Case No. 2012CA00006 12
essential elements of the case,” a reviewing court may not reverse that judgment.
Schiebel, 55 Ohio St.3d at 74.
{¶51} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the
findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses
and the weight to be given the evidence are primarily for the trier of fact. As the court
explained in Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273(1984):
{¶52} “The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.”
{¶53} Moreover, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties' demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d
415, 419, 1997-Ohio-260, 674 N.E.2d 1159.
{¶54} Pursuant to 2152.414(B)(1), the court may grant permanent custody of a
child to the movant if the court determines “that it is in the best interest of the child to
grant permanent custody to the agency that filed the motion for permanent custody and
that any of the following apply:
{¶55} “(a) The child is not abandoned or orphaned or 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
Stark County App. Case No. 2012CA00006 13
on or after March 18, 1999, and the child cannot be placed with either of the child's
parents within a reasonable period of time or should not be placed with the child's
parents.* * *
{¶56} “(d) The child has been in the temporary custody of one or more public
children service agencies or private child placing agencies for twelve or more months of
a consecutive twenty-two month period…”
{¶57} Revised Code 2151.414(E) sets forth the factors a trial court must
consider in determining whether a child cannot or should not be placed with a parent
within a reasonable time. If the court finds, by clear and convincing evidence, the
existence of any one of the following factors, “the court shall enter a finding that the
child cannot be placed with [the] parent within a reasonable time or should not be
placed with [the] parent”:
{¶58} “(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency to assist
the parent to remedy the problem that initially caused the child to be placed outside the
home, the parents have 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.* * *
{¶59} “(16) Any other factors the court considers relevant.”
Stark County App. Case No. 2012CA00006 14
{¶60} A trial court may base its decision that a child cannot or should not be
placed with a parent within a reasonable time upon the existence of any one of the R.C.
2151.414(E) factors. The existence of one factor alone will support a finding that the
child cannot be placed with the parent within a reasonable time. See In re: William S.,
75 Ohio St.3d 95, 1996-Ohio-182, 661 N.E.2d 738.
{¶61} Pursuant to R.C. 2151.414(D), in determining the best interest of a child,
the court shall consider all relevant factors, including but not limited to the following:
{¶62} “(a) 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;
{¶63} “(b) 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;
{¶64} “(c) 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…;
{¶65} “(d) 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;* * * ”
{¶66} In the case sub judice, the trial court made findings pursuant to R.C.
2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d). As findings under R.C.
2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are alternative findings, each is
independently sufficient to use as a basis to grant the motion for permanent custody. In
Stark County App. Case No. 2012CA00006 15
re Langford Children, 5th Dist. No. 2004CA00349, 2005–Ohio–2304, ¶17; In re Dalton,
5th Dist. No. 2007 AP 0041, 2007–Ohio–5805, ¶ 88. Appellant has not challenged the
trial court's finding that L.D. has been in the agency's custody for 12 or more months in
a consecutive 22 month period. R.C. 2151.414(B)(1)(d). The record established that
L.D. had been in the agency’s continuous custody from October 13, 2009, until the date
of the hearing on December 14, 2011. This finding alone, in conjunction with a best
interest finding, is sufficient to support the grant of permanent custody. See In re N.D.,
5th Dist. No. 2010CA00334, 2011-Ohio-685.
{¶67} In addition, the evidence supported the trial court's conclusion that L.D.
could not and should not be placed with appellant within a reasonable period of time.
R.C. 2151.141(B)(1)(a). The evidence established that appellant, who had serious
cognitive limitations, was diagnosed with dependent personality disorder and requires
assistance with basic daily activities. Moreover, there was testimony that appellant told
Amy Thomas that she only wanted occasional visitation with L.D. Furthermore, there
was evidence that appellant was in a dysfunctional relationship that had involved
domestic violence.
{¶68} With respect to L.D.’s best interest, there was testimony that she was
doing well in foster care and was bonded with her foster family, which also included two
other children. L.D. had been in the same foster family since October of 2009 and there
was testimony that the foster family wished to adopt her. The Guardian Ad Litem, in a
report filed on August 25, 2010, indicated that she thought that it was in L.D.’s best
interest for permanent custody to be granted. The Guardian Ad Litem noted that L.D.
was very adoptable and was bonded with her foster family, who loved her.
Stark County App. Case No. 2012CA00006 16
{¶69} Based on the foregoing, we find that the trial court did not err in finding
that it was in L.D.s best interest for permanent custody to be granted to SCDJFS.
{¶70} Appellant’s two assignments of error are, therefore, overruled.
{¶71} Accordingly, the judgment of the Stark County Court of Common Pleas,
Family Court Division, is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0404
[Cite as In re L.D., 2012-Ohio-1810.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
L.D. :
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2012CA00006
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Family Court Division, is
affirmed. Costs assessed to appellant.
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JUDGES