In re S.A. ( 2011 )

[Cite as In re S.A., 2011-Ohio-2508.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
S.A., J.R., AND B.R. Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
Case No. 2011AP010003
OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscawaras County Court
of Common Pleas, Juvenile Division,
Case No. JN-09-00324
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 20, 2011
APPEARANCES:
For Appellee - TCJFS For Appellants
DAVID HAVERFIELD TYRESHA BROWN-O'NEAL
389 E. 16th Street, SW 323 West Lakeside Avenue
New Philadelphia, Ohio 44663 420 Lakeside Place
Cleveland, Ohio 44113
Guardian Ad Litem for Children
KAREN DUMMERMUTH
349 East High Avenue
P.O. Box 494
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2011AP010003 2
Hoffman, P.J.
{¶1} Appellants Brandy Smith and Joseph Reese, Sr. (“Mother”, “Father”,
respectively; “Parents”, collectively) appeal the December 14, 2010 Judgment Entry
entered by the Tuscarawas County Court of Common Pleas, Juvenile Division, which
terminated their parental rights with respect to their three minor children, and granted
permanent custody of the children to Appellee Tuscarawas County Job and Family
Services (“TCJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Mother is the biological mother of S.A. (DOB 10/2/05), J.R. (DOB 3/11/08),
and B.R. (DOB 4/29/09). Tommy Adams is the father of S.A.1 Father is the biological
father of J.R. and the legal father of B.R. The biological father of B.R. is unknown.
Shortly after the birth of B.R., Mother voluntarily placed the infant into the temporary
custody of TCJFS. Mother’s stated reason for the voluntary placement was her inability
to care for the newborn. Subsequently, Mother revealed she was in fear of Father and
his reaction when he learned he was not B.R.’s biological father. TCJFS offered to
assist Mother in moving to a domestic violence shelter with all three of the children.
After Mother refused, S.A. and J.R. were placed in the temporary custody of the TCJFS.
{¶3} Thereafter, TCJFS filed a Complaint alleging the children to be neglected
and dependent. Initially, Father did not appear or participate in the proceedings. At the
time, domestic violence charges were pending against Father in the New Philadelphia
Municipal Court, which limited the contact between Father and Mother. Parents
reunited after the protection order was lifted in January, 2010. Parents participated in
1
Adams is not a party to this appeal.
Tuscarawas County, Case No. 2011AP010003 3
and substantially completed all portions of their court-ordered case plan. The court
gradually increased visitation, moving to unsupervised and overnight visits. The
children were returned to Parents on June 11, 2010.
{¶4} Parents had moved to a residence in Cleveland, Ohio, shortly before the
children’s return. TCJFS approved the residence, and maintained an order of protective
supervision to monitor the placement. A TCJFS case manager visited the home on July
13, 2010, and found nothing out of the ordinary. On or about July 19, 2010, TCFJS
received information B.R. had been admitted to Metro Health Medical Center in
Cleveland. Parents’ explanation the child had fallen down a set of stairs was
inconsistent with his injuries. TCJFS obtained emergency custody of all three children
on July 20, 2010. The children were placed together in a foster home. Neither Mother
nor Father had contact with the children following the second removal. Parents did,
however, regularly speak with case workers to check on the children. TCJFS filed a
motion for permanent custody on August 17, 2010. The agency received a request to
evaluate Lisa Pearl, the children’s maternal grandmother, for placement. Mother had
previously informed case workers Pearl had a significant history of drug and criminal
activity and was not an appropriate placement for the children. After TCJFS filed its
motion for permanent custody, Mother claimed she had fabricated the information about
Pearl because she did not want TCJFS to pursue placement with her mother.
Placement with Pearl was not recommended following the home study.
{¶5} The trial court conducted a hearing on TCJFS’s motion for permanent
custody on December 2, 2011.
Tuscarawas County, Case No. 2011AP010003 4
{¶6} At the hearing, Elizabeth Benedetto testified she has been the ongoing
case manager for the family since September 24, 2009. Benedetto explained Mother
contacted TCJFS indicating she did not have the services or the supplies she needed to
care for her newborn son, B.R. During the conversation, Mother revealed she was
concerned for the child’s safety as Father was not the baby’s biological father. Mother
also advised TCJFS Father was domestically violent. Mother had tested positively for
marijuana when she gave birth to B.R.
{¶7} Mother’s case plan required she maintain safe and stable housing,
establish a source of income in order to meet the basic needs of the children, participate
in a parent education program, complete a substance abuse assessment and follow any
recommendations, complete a psychological evaluation and participate in a domestic
violence awareness group. Based upon the psychological evaluation, individual and
marriage counseling were added to the case plan. Father’s case plan required him to
maintain safe and stable housing, establish a means of income for the basic needs of
the children, attend a parent education group, complete a substance abuse
assessment, a psychological evaluation, and an anger assessment. Based upon the
psychological evaluation, individual and marriage counseling was added to Father’s
case plan. Benedetto stated Parents had substantially completed the case plan.
{¶8} Initially, Parents had supervised visitation with the children. Mother and
Father had separate visits due to the municipal court order arising out of the domestic
violence charge against Father. Mother began supervised visitation in her home in
December, 2009. In February, 2010, Parents began having supervised visits together
in their home. In May, 2010, Parents were given unsupervised visitation of twelve
Tuscarawas County, Case No. 2011AP010003 5
hours/week. The trial court approved overnight visitations. The children were returned
to Parents’ custody on June 11, 2010.
{¶9} Benedetto visited Parents and the children on July 13, 2010. Benedetto
found everything to be “going okay” in the home. However, on July 19, 2010, she
received a phone call advising her B.R. had been taken to the Cleveland Metro Hospital
on July 18, 2010. B.R.’s injuries included trauma to his brain, trauma to his eyes, a
significant injury to his baby toe, and an injury to the inside of his upper lip. Mother
contacted Benedetto and explained B.R. had fallen down the stairs and his injuries were
results of that incident. Medical personnel at Metro Health Medical Center determined a
fall was not the cause of the injuries to B.R. Mother explained B.R.’s toe injury was
possibly from a bug bite and the child “was digging at it”. Mother believed B.R.’s toe
injury worsened as a result of the treatment at the hospital. TCJFS’s protective unit
investigated the former foster parents and concluded B.R.’s injuries did not occur prior
to his return to Parents. As a result, all three children were placed in the temporary
custody of TCJFS. The trial court issued a no contact order on July 21, 2010, which
had not been modified as of the date of the permanent custody hearing.
{¶10} Benedetto stated the three children are placed together in the same foster
home. The children are doing very well in foster care. Benedetto noted S.A. has some
behavioral issues, and the child can become physically and verbally violent. TCJFS is
working on those issues and Benedetto had seen a positive change in the boy since
being placed into foster care. The three boys interact well together and the foster
parents have not reported any aggression by S.A. toward his siblings. The foster
parents are interested in adopting the children.
Tuscarawas County, Case No. 2011AP010003 6
{¶11} Benedetto was given the names of Lisa Pearl, Mother’s mother, and
Suzanne Reese, Father’s mother, as potential relative placement for the children.
Benedetto spoke with Suzanne Reese and advised her she and any other adults in her
home would need to be fingerprinted prior to the home study. Because Reese did not
have any identification, she could not be fingerprinted. Reese did not make any further
attempt to contact Benedetto about a home study.
{¶12} Benedetto met with Lisa Pearl on two occasions. Pearl had visitation with
the children on October 29, 2010, which was the first time in two years she had seen
the boys. The results of Pearl’s fingerprinting revealed multiple prostitution charges with
confinement, several charges of grand larceny/stolen property which were ultimately
dismissed, and a burglary charge. Pearl submitted to a drug screen and tested positive
for opiates. Benedetto noted TCJFS was not recommending placement of any or all of
the children with Pearl based upon a number of concerns. Up until the time TCJFS filed
for permanent custody, Mother and Father expressed their belief Pearl was not an
individual who should be around the children. TCJFS received information Pearl used
crack cocaine, abused prescription drugs, and had abused other grandchildren.
Throughout much of the case, Mother expressed her opinion the children should not be
with Pearl. However, in September, 2010, Mother contacted Benedetto and told the
case worker she had lied about everything she had said about her mother.
{¶13} Benedetto acknowledged Parents had substantially complied with their
case plan, but such should not dictate whether they receive custody of the children as
concerns for the children’s safety still existed. Benedetto recommended the trial court
grant permanent custody to TCJFS.
Tuscarawas County, Case No. 2011AP010003 7
{¶14} Via Judgment Entry filed December 14, 2010, the trial court terminated all
of Parents’ parental rights, and granted permanent custody of the children to TCJFS. It
is from this judgment entry Parents appeal, raising the following assignments of error:
{¶15} “I. THE JUVENILE COURT ERRED IN TERMINATING THE MOTHER’S
PARENTAL RIGHTS WITH RESPECT TO S.A.
{¶16} “II. THE JUVENILE COURT ERRED IN TERMINATING THE MOTHER
AND FATHER’S PARENTAL RIGHTS WITH RESPECT TO J.R., JR.
{¶17} “III. THE JUVENILE COURT ERRED IN TERMINATING THE MOTHER
AND FATHER’S PARENTAL RIGHTS WITH RESPECT TO B.R.
{¶18} “IV. THE JUVENILE COURT ERRED IN FINDING THAT THERE WAS
NO SUITABLE FAMILY PLACEMENT FOR THE CHILDREN.”
{¶19} This case comes to us on the accelerated calendar governed by App.R.
11.1, which states the following in pertinent part:
{¶20} “(E) Determination and judgment on appeal
{¶21} “The appeal will be determined as provided by App. R. 11.1. It shall be
sufficient compliance with App. R. 12(A) for the statement of the reason for the court's
decision as to each error to be in brief and conclusionary form.
{¶22} The decision may be by judgment entry in which case it will not be
published in any form.”
I, II, III
{¶23} Because the first three assignments of error require similar analysis, we
shall address said assignments of error together. In the first assignment of error,
Mother contends the trial court erred in terminating her parental rights with respect to
Tuscarawas County, Case No. 2011AP010003 8
S.A. In the second assignment of error, Parents challenge the trial court’s termination
of their parental rights with respect to J.R. In the third assignment of error, Parents
challenge the trial court’s termination of their parental rights with respect to B.R.
{¶24} 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 v.. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. 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. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.
{¶25} 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.
{¶26} 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
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
Tuscarawas County, Case No. 2011AP010003 9
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.
{¶27} 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.
{¶28} 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.
{¶29} If the child is not abandoned or orphaned, then the focus turns to whether
the child cannot be placed with either parent within a 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
Tuscarawas County, Case No. 2011AP010003 10
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.
{¶30} In the instant action, the trial court found the children could not or should
not be placed with Parents within a reasonable time. We find this determination is not
against the manifest weight of the evidence.
{¶31} Shortly after B.R.’s birth, Mother voluntarily placed the newborn in the
temporary custody of TCJFS. Mother advised TCJFS workers she could not properly
care for the baby. Mother subsequently revealed she feared for the safety of B.R.
because Father was not the baby’s biological father. S.A. and J.R. were removed from
Parents’ home after Father was charged with domestic violence against Mother and
Mother refused to take herself and the children to a domestic violence shelter.
{¶32} Mother and Father substantially completed their case plans, and all three
children were returned to their care. Within five weeks of their return, Mother presented
B.R. at the emergency room. Mother advised medical personnel B.R.’s injuries were the
result of a fall down a flight of stairs. Medical personnel determined the injuries were
inconsistent with a fall. Medical personnel also expressed concern over the fact Parents
did not seek treatment sooner for some of B.R.’s other injuries. Mother blamed the
severity of the child’s toe injury on the treatment he received at the hospital. An
investigation by TCJFS revealed B.R.’s older, healing injuries could not have been
caused prior to the children’s return to Parents’ home. At the hearing, Mother stated the
injuries also could have been caused by S.A. However, Mother never raised concerns
with the case worker about S.A.’s aggressive behavior despite the fact the boy
Tuscarawas County, Case No. 2011AP010003 11
displayed violent behavior before his initial removal from Parents’ care and throughout
his time in TCJFS custody. Parents failed to keep their children safe.
{¶33} With regard to the best interest finding, the record reveals the three
brothers are together in a foster home and are doing well. The foster family is willing to
adopt them.
{¶34} Based upon the foregoing, we find the trial court did not err in terminating
Parents’ parental rights with respect to all three children.
{¶35} Parents’ first, second, and third assignments of error are overruled.
IV
{¶36} In their final assignment of error, Parents assert the trial court erred in
finding there was no appropriate family placement for the children.
{¶37} In In re Schaefer, 111 Ohio St.3d 498, 857 N.E.2d 532, 2006-Ohio-5513,
the Ohio Supreme Court clearly found a trial court's statutory duty in determining
whether it is in the best interest of a child to grant permanent custody to an agency does
not include finding, by clear and convincing evidence, no suitable relative is available for
placement. The statute requires the trial court to weigh all relevant factors. R.C.
2151.414 requires the court to find the best option for the child once a determination
has been made pursuant to R.C. 2151.414(B)(1)(a) through (d). The statute does not
make the availability of a placement which would not require a termination of parental
rights an all-controlling factor nor require the court to weigh that factor more heavily than
other factors. Schaeffer at ¶ 64.
{¶38} Parents argue because Mother testified at the hearing she previously had
lied about Lisa Pearl, her mother and the children’s grandmother, the trial court’s finding
Tuscarawas County, Case No. 2011AP010003 12
no appropriate placement existed is against the manifest weight of the evidence. We
disagree. TCJFS presented evidence which supported Mother’s alleged lies. TCJFS
conducted a home study of Pearl. As part of the home study, Peal submitted to a drug
screen. The screen was positive for morphine and hydromorphone. Pearl has past
convictions for prostitution and arrests related to property crimes. Further, Pearl has had
involvement with a number of children’s service agencies.
{¶39} Based upon the foregoing, the trial court did not err or abuse its discretion
in finding Pearl was not an appropriate placement for the children.
{¶40} Parents’ fourth assignment of error is overruled.
By: Hoffman, P.J.
Wise, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Tuscarawas County, Case No. 2011AP010003 13
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
S.A., J.R., AND B.R. :
:
: JUDGMENT ENTRY
:
:
: Case No. 2011AP010003
For the reasons stated in our accompanying Opinion, the judgment of the
Tuscawaras County Court of Common Pleas, Juvenile Division, is affirmed. Costs to
Appellants.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS