In re C.A.B. , 2012 Ohio 58 ( 2012 )


Menu:
  • [Cite as In re C.A.B. , 
    2012-Ohio-58
    .]
    COURT OF APPEALS
    MUSKINGUM COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    :     JUDGES:
    :
    IN RE:                                         :     Hon. W. Scott Gwin, P.J.
    :     Hon. William B. Hoffman, J.
    C.A.B.                                         :     Hon. Patricia A. Delaney, J.
    :
    DEPENDENT CHILD                                :     Case No. CT11-0032
    :
    :
    :
    :     OPINION
    CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County Court
    of Common Pleas, Juvenile Division Case
    No. 21130023
    JUDGMENT:                                          AFFIRMED
    DATE OF JUDGMENT ENTRY:                            January 4, 2012
    APPEARANCES:
    For Mother-Appellant:                                For Appellee:
    DOUGLAS E. RIDDELL, JR.                              D. MICHAEL HADDOX
    1441 King Ave., Suite 100                            MUSKINGUM COUNTY
    Columbus, OH 43212                                   PROSECUTOR
    MOLLY L. MARTIN
    27 N. Fifth St.
    P.O. Box 189
    Zanesville, OH 43702-0189
    [Cite as In re C.A.B. , 
    2012-Ohio-58
    .]
    Delaney, J.
    {¶1} Mother-Appellant T.B. appeals the July 11, 2011 decision of the
    Muskingum County Court of Common Pleas, Juvenile Division, to grant permanent
    custody of her child, C.A.B., to Appellee Muskingum County Children Services.
    STATEMENT OF THE FACTS AND CASE
    {¶2} T.B. is the mother of C.A.B., born on February 1, 2011.          Mother is
    married to E.B., C.A.B.’s father and father to two of her other children. Mother was
    incarcerated for welfare fraud at the time of C.A.B.’s birth.       Muskingum County
    Children Services (“MCCS”) filed a Complaint on February 2, 2011 alleging C.A.B.
    was neglected and dependent and requesting a disposition of permanent custody to
    MCCS, or in the alternative, temporary custody to MCCS. The court placed C.A.B. in
    the temporary custody of MCCS on February 3, 2011.            C.A.B. was placed with a
    foster-to-adopt family.
    {¶3} The guardian ad litem (“GAL”) filed her report on April 25, 2011,
    recommending permanent custody of C.A.B. to MCCS.                  An adjudicatory and
    dispositional hearing was held on May 2, 2011. E.B. was served with notice of the
    hearing, but did not appear or have legal representation appear on his behalf. Mother,
    Grandmother, Dr. Wolfgang, Stacey Goddard (on-going caseworker with MCCS), Lori
    Moore (supervisor with MCCS), and the GAL testified at the hearing. The following
    facts were adduced from the hearing.
    {¶4} C.A.B. is Mother’s tenth child from seven different fathers. E.B. is the
    father of three of her children.         The fathers of Mother’s children have all been
    incarcerated at one time. Mother’s three oldest children were permanently removed
    Muskingum County, Case No. CT11-0032                                                   3
    from Mother’s custody due to allegations of sexual abuse and Mother’s inability to
    protect the children. Five children, ranging in ages from eight years old to one year
    old, are currently in the legal custody of Grandmother. One child is deceased, the
    victim of an unresolved homicide.
    {¶5} Mother has been incarcerated twice. After Mother’s most recent release
    from prison, she does not have employment or an independent residence. She states
    that she is no longer in contact with E.B. Mother’s previous relationships and her
    relationship with E.B. have been violent, involving drugs and alcohol. The police have
    been called to Grandmother’s house due to E.B. throwing a beer bottle at the home
    and banging on the door while the children were inside.
    {¶6} Mother    spends    time   with   Grandmother   and   her    five   children.
    Grandmother is 61 years old, unemployed, and receiving Social Security and disability
    benefits.   Grandmother resides in a three-bedroom home with the five children.
    Grandmother does not have a driver’s license and relies on her husband, who lives in
    a different town, to drive her and the children to appointments.        The children in
    Grandmother’s legal custody who attend school are doing well in school. Placement
    with Grandmother of the four older children was against the recommendation of MCCS
    based on a home study of Grandmother’s home. The one-year old child, the fifth
    child, was placed in Grandmother’s legal custody because MCCS and the GAL
    determined it would not be in the child’s best interests to be removed from the
    Grandmother’s home because he had been with Grandmother since birth. The GAL
    could not make the same recommendation of legal custody with Grandmother for
    C.A.B. because C.A.B. has been in the care of MCCS since birth and was not bonded
    Muskingum County, Case No. CT11-0032                                                    4
    with Mother or Grandmother.      The GAL felt six children with Grandmother would not
    be in C.A.B.’s best interests.
    {¶7} While Mother was incarcerated, MCCS brought C.A.B. to Mother in
    prison for visitation. After Mother was released, Mother did not participate in visitation
    because she wanted visitation to occur at Grandmother’s home and MCCS required
    supervised visitation at MCCS facilities.
    {¶8} On June 16, 2011, the magistrate issued his decision that permanent
    custody of C.A.B. should be awarded to MCCS.             Mother filed objections to the
    Magistrate’s Decision on June 30, 2011.
    {¶9} The trial court overruled the objections and approved the Magistrate’s
    Decision on July 11, 2011. It is from this judgment Mother now appeals.
    {¶10} Mother raises three Assignments of Error:
    {¶11} “I. THE TRIAL COURT’S DECISION TERMINATING THE PARENTAL
    RIGHTS OF [T.B.] WAS NOT SUPPORTED BY CLEAR AND CONVINCING
    EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
    TR., P. 190.
    {¶12} “II. THE TRIAL COURT’S DETERMINATION THAT [C.A.B.] COULD
    NOT OR SHOULD NOT BE PLACED WITH HIS MOTHER, [T.B.], WITHIN A
    REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
    OF THE EVIDENCE. TR., P. 190.
    {¶13} “III. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE
    MUSKINGUM COUNTY CHILD SERVICES AGENCY MADE THE REQUISITE
    Muskingum County, Case No. CT11-0032                                                   5
    EFFORTS TO PREVENT REMOVAL OF THE CHILD FROM THE CHILD’S HOME OR
    MAKE IT POSSIBLE FOR THE CHILD TO RETURN SAFELY HOME. TR., PP. 190.”
    I., II.
    {¶14} Mother argues in her first and second Assignments of Error that the
    record does not support the trial court’s decision to terminate Mother’s parental rights.
    We disagree.
    {¶15} As an appellate court, we neither weigh the evidence nor judge the
    credibility of the witnesses.   Our role is to determine whether there is relevant,
    competent and credible evidence upon which the fact finder could base its judgment.
    Cross Truck Equipment Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 
    1982 WL 2911
     (Feb. 10, 1982). 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
    Constr., 
    54 Ohio St.2d 279
    , 
    376 N.E.2d 578
     (1978).
    {¶16} R.C. 2151.414 sets forth the guidelines a trial court must follow when
    deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial
    court schedule a hearing and provide notice upon the filing of a motion for permanent
    custody of a child by a public children services agency or private child placing agency
    that has temporary custody of the child or has placed the child in long-term foster
    care.
    {¶17} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
    grant permanent custody of the child to the public or private agency if the court
    determines, by clear and convincing evidence, it is in the best interest of the child to
    Muskingum County, Case No. CT11-0032                                                    6
    grant permanent custody to the agency, and that any of the following apply: (a) the
    child is not abandoned or orphaned, 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; (b) the child is abandoned; (c) the child is orphaned and there are no relatives
    of the child who are able to take permanent custody; or (d) the child has been in the
    temporary custody of one or more public children services agencies or private child
    placement agencies for twelve or more months of a consecutive twenty-two month
    period ending on or after March 18, 1999.
    {¶18} In determining the best interest of the child at a permanent custody
    hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
    including, but not limited to, the following: (1) the interaction and interrelationship of
    the child with the child's parents, siblings, relatives, foster parents and out-of-home
    providers, and any other person who may significantly affect the child; (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; (3) the custodial history of the child; and
    (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.
    {¶19} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
    court must apply when ruling on a motion for permanent custody. In practice, the trial
    court will usually determine whether one of the four circumstances delineated in R.C.
    2151.414(B)(1)(a) through (d) is present before proceeding to a determination
    regarding the best interest of the child. If the child is not abandoned or orphaned, the
    focus turns to whether the child cannot be placed with either parent within a
    Muskingum County, Case No. CT11-0032                                                    7
    reasonable period of time or should not be placed with the parents.          Under R.C.
    2151.414(E), the trial court must consider all relevant evidence before making this
    determination. The trial court is required to enter such a finding if it determines, by
    clear and convincing evidence, that one or more of the factors enumerated in R .C.
    2151.414(E)(1) through (16) exist with respect to each of the child's parents.
    {¶20} The trial court determined C.A.B. could not be placed with the parents
    within a reasonable time pursuant to R.C. 2151.414(E)(1), (2), (4), (11), (13), and (14).
    R.C. 2151.414(E)(1) requires a finding that “[f]ollowing the placement of 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.” R.C. 2151.414(E)(2) states, “[c]hronic mental illness,
    chronic emotional illness, mental retardation, physical disability, or chemical
    dependency of the parent that is so severe that it makes the parent unable to provide
    an adequate permanent home for the child at the present time and, as anticipated,
    within one year after the court holds the hearing pursuant to division (A) of this section
    or for the purposes of division (A)(4) of section 2151.353 of the Revised Code.” R.C.
    2151.414(E)(4) requires a finding that “[t]he parent has demonstrated a lack of
    commitment toward the child by failing to regularly support, visit, or communicate with
    the child when able to do so, or by other actions showing an unwillingness to provide
    an adequate permanent home for the child.” R.C. 2151.414(E)(11) requires a finding
    that, “[t]he parent has had parental rights involuntarily terminated with respect to a
    Muskingum County, Case No. CT11-0032                                                      8
    sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the
    Revised Code, or under an existing or former law of this state, any other state, or the
    United States that is substantially equivalent to those sections, and the parent has
    failed to provide clear and convincing evidence to prove that, notwithstanding the prior
    termination, the parent can provide a legally secure permanent placement and
    adequate care for the health, welfare, and safety of the child.” R.C. 2151.414(E)(13)
    requires a finding that “[t]he parent is repeatedly incarcerated, and the repeated
    incarceration prevents the parent from providing care for the child.” And finally, R.C.
    2151.414(E)(14) requires a finding that “[t]he parent for any reason is unwilling to
    provide food, clothing, shelter, and other basic necessities for the child or to prevent the
    child from suffering physical, emotional, or sexual abuse or physical, emotional, or
    mental neglect.”
    {¶21} A review of the records supports the trial court’s decision that C.A.B.
    cannot be placed with Mother within a reasonable time. Three children have been
    permanently removed from Mother’s custody and five of her children are in the legal
    custody of Grandmother. One child was killed while in Mother’s care. Mother has
    been incarcerated in prison twice, giving birth to C.A.B. while in prison. Mother is not
    employed and does not have stable housing for C.A.B. While Mother is married to
    Father, but not currently with Father, Mother has a history of violent relationships with
    the fathers of her children.
    {¶22} We next turn to the best interests issue. We have frequently noted,
    “[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
    Muskingum County, Case No. CT11-0032                                                   9
    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, 5th Dist. No.
    2000CA00244, 
    2000 WL 1700073
     (Nov. 13, 2000) citing In re Awkal, 
    85 Ohio App.3d 309
    , 316, 
    642 N.E.2d 424
     (8th Dist. 1994). The trial court determined it was in the best
    interests of C.A.B. to be placed in the permanent custody of MCCS pursuant to R.C.
    2151.414(D). We agree.
    {¶23} Mother is not bonded to C.A.B. She has not participated in visitation
    because she wanted visitation to occur at Grandmother’s home, not at MCCS facilities
    as required by MCCS. Grandmother is not bonded with C.A.B. C.A.B.’s older sibling
    was placed in the legal custody of Grandmother because the GAL stated it was in the
    best interests of the child not to be removed from her care, as he was bonded with
    Grandmother and his siblings. The GAL would not make the same recommendation
    for C.A.B. C.A.B. has been in the care of a foster-to-adopt family since his birth.
    Grandmother is now caring for five children, ages eight years old and under. There is
    clear and convincing evidence to support the trial court’s decision that it is not in the
    best interest of C.A.B. to be placed in the custody of Mother or Grandmother.
    {¶24} Upon a review of the record in light of the pertinent statutory factors, we
    find the record contains clear and convincing evidence to support the trial court’s
    determination. The trial court did not err when it determined C.A.B. could not be
    placed with Mother in a reasonable time and the permanent custody of C.A.B. to
    MCCS was made in consideration of the child’s best interests and was not an abuse of
    discretion.
    {¶25} Mother’s first and second Assignments of Error are overruled.
    Muskingum County, Case No. CT11-0032                                                   10
    III.
    {¶26} Mother argues in her third Assignment of Error that the trial court erred in
    finding MCCS made reasonable efforts to prevent the removal of C.A.B. We disagree.
    {¶27} The trial court noted in its findings of facts that MCCS made reasonable
    efforts under R.C. 2151.419 to prevent the removal of C.A.B. and making it possible
    for the child to return home. Mother argues there is no evidence in the record to
    support the finding that MCCS made reasonable efforts to prevent the removal of
    C.A.B. from the home, to eliminate the continued removal of C.A.B. from the home, or
    to make it possible for C.A.B. to return safely home. A review of the record shows the
    reasonable efforts MCCS underwent to reunify Mother with her other children, but not
    specifically C.A.B.
    {¶28} Under R.C. 2151.419(A)(2)(e), MCCS was not required to make
    reasonable efforts to prevent the removal of C.A.B. from the home or make it possible
    for C.A.B. to return home. The statute states:
    {¶29} “(A)(1) Except as provided in division (A)(2) of this section, at any
    hearing held pursuant to section 2151.28, division (E) of section 2151.31, or section
    2151.314, 2151.33, or 2151.353 of the Revised Code at which the court removes a
    child from the child's home or continues the removal of a child from the child's home,
    the court shall determine whether the public children services agency or private child
    placing agency that filed the complaint in the case, removed the child from home, has
    custody of the child, or will be given custody of the child has made reasonable efforts
    to prevent the removal of the child from the child's home, to eliminate the continued
    removal of the child from the child's home, or to make it possible for the child to return
    Muskingum County, Case No. CT11-0032                                                     11
    safely home. The agency shall have the burden of proving that it has made those
    reasonable efforts. If the agency removed the child from home during an emergency
    in which the child could not safely remain at home and the agency did not have prior
    contact with the child, the court is not prohibited, solely because the agency did not
    make reasonable efforts during the emergency to prevent the removal of the child,
    from determining that the agency made those reasonable efforts.             In determining
    whether reasonable efforts were made, the child's health and safety shall be
    paramount.
    {¶30} “(2) If any of the following apply, the court shall make a determination
    that the agency is not required to make reasonable efforts to prevent the removal of
    the child from the child's home, eliminate the continued removal of the child from the
    child's home, and return the child to the child's home:
    {¶31} “* * *
    {¶32} “(e) The parent from whom the child was removed has had parental
    rights involuntarily terminated with respect to a sibling of the child pursuant to section
    2151.353, 2151.414, or 2151.415 of the Revised Code or under an existing or former
    law of this state, any other state, or the United States that is substantially equivalent to
    those sections.” R.C. 2151.419(A)(1) and (2)(e).
    {¶33} Mother’s parental rights to three of her children, C.A.B.’s siblings, have
    been involuntarily terminated. The trial court’s determination as to reasonable efforts
    is not fatal to this appeal because MCCS was not required to make reasonable efforts
    to reunite her with C.A.B. because Mother had her parental rights involuntarily
    Muskingum County, Case No. CT11-0032                                               12
    terminated with respect to three of her other children.    In re Kinkel, 5th Dist. No.
    2006CA00358, 
    2007-Ohio-2322
    , ¶ 24.
    {¶34} Mother’s third Assignment of Error is overruled.
    {¶35} The judgment of the Muskingum County Court of Common Pleas,
    Juvenile Division is affirmed.
    By: Delaney, J.
    Gwin, P.J. and
    Hoffman, J. concur.
    HON. PATRICIA A. DELANEY
    HON. W. SCOTT GWIN
    HON. WILLIAM B. HOFFMAN
    [Cite as In re C.A.B. , 
    2012-Ohio-58
    .]
    IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    :
    :
    IN RE:                                         :
    :
    C.A.B.                                         :
    :   JUDGMENT ENTRY
    DEPENDENT CHILD                                :
    :
    :
    :   Case No. CT11-0032
    :
    For the reasons stated in our accompanying Opinion on file, the judgment of the
    Muskingum County Court of Common Pleas, Juvenile Division, is affirmed. Costs
    assessed to Appellant.
    HON. PATRICIA A. DELANEY
    HON. W. SCOTT GWIN
    HON. WILLIAM B. HOFFMAN
    

Document Info

Docket Number: CT11-0032

Citation Numbers: 2012 Ohio 58

Judges: Delaney

Filed Date: 1/4/2012

Precedential Status: Precedential

Modified Date: 10/30/2014