In re S.K. ( 2019 )

[Cite as In re S.K., 2019-Ohio-2516.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: S.K., T.K., D.T., M.T., : Hon. W. Scott Gwin, P.J.
J.T., and R.T. : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin J.
:
DEPENDENT CHILDREN :
: Case Nos. 18CA89,18CA90,
18CA91,18CA92, 18CA93, 18CA94
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court
of Common Pleas, Juvenile Division, Case
Nos. 2017-DEP-00081, 2017-DEP-00082,
2017-DEP-00083, 2017-DEP-00084,
2017-DEP-00085, and 2017-DEP-00086
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 24, 2019
APPEARANCES:
For: Richland County Children’s Services For: Mother-Appellant
731 Scholl Road DARIN AVERY
Mansfield, OH 44907 105 Sturges Avenue
Mansfield, OH 44903
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 2
Gwin, P.J.
{¶1} Appellant-mother, B.S., appeals the decisions of the Richland County Court
of Common Pleas, Juvenile Court Division entered on August 31, 2018, that issued
dispositional orders pertaining to her children D.T1., M.T.2, R.T.3, J.T.4 S.K. 5and T.K6.
under R.C.2151.353(A). Appellee the Richland County Children Services Board
[“RCCSB”] did not file a brief in this case.
Facts and Procedural History
{¶2} Appellee RCCSB did not file a brief in this matter. Pursuant to App.R. 18(C),
in determining the appeal, we may accept Appellant’s statement of the facts and issues
as correct, and reverse the judgment if Appellant’s brief reasonably appears to sustain
such action. See State v. S.K., 5th Dist. Richland No. 18CA89, 2018-Ohio-3332; State v.
S.H., 5th Dist. Guernsey No. 10CA000023, 2010-Ohio-5741, ¶17; State v. McLeod, 5th
Dist. Knox No. 2011-CA-22, 2012-Ohio-1797, ¶2. Therefore, we presume the validity of
Appellant’s statement of facts and issues.
{¶3} RCCSB filed complaints on May 4, 2017, alleging D.T. and his sibling, M.T.,
to be abused and dependent children, and their other siblings, R.T., J.T., S.K., and T.K.,
to be dependent children due to concerns of physical abuse by mother's paramour
stemming from an incident on January 17, 2017.
{¶4} Following that incident, mother had agreed to a voluntary safety plan placing
her children with her sister, the grandmother of two of the children, and a friend. On or
1 In re D.T., 5th Dist. Richland No. 18CA91.
2 In re M.T., 5th Dist. Richland No. 18CA92.
3 In re R.T., 5th Dist. Richland No. 18CA94.
4 In re J.T., 5th Dist. Richland No. 18CA93.
5 In re S.K., 5th Dist. Richland No. 18CA89.
6 In re T.K., 5th Dist. Richland No. 18CA90.
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 3
about May 12, 2017, mother gathered her children from those voluntary placements and
moved to Kentucky with the father of four of the children.
{¶5} On May 18, 2017, the trial court issued an ex parte order placing the children
in the temporary custody of RCCSB in response to a motion alleging that mother had fled.
On May 19, 2017, the trial court held a hearing at which it heard no evidence and on May
22, 2017, issued an order continuing the previous order of temporary custody to RCCSB.
On May 20, 2017, representatives of RCCSB went to Kentucky seeking the children, and
Appellant voluntarily surrendered the children to them. Appellant was served with the
complaint on May 20, 2017, by residential service at her home in Mansfield, Ohio.
{¶6} On July 21, 2017, the magistrate heard testimony from Detective David
Scheurer of the Mansfield City Police Department; S. K., maternal aunt; N. H., family
friend and temporary caregiver; and Y. G. of Encompass Counseling Services.
{¶7} On August 29, 2017, and October 6, 2017, Appellant moved for dismissal
for failure to follow the time requirements of R.C. 2151.35(B).
{¶8} On August 31, 2017, the magistrate heard testimony from T. G., counselor
at Malabar Middle School; and B.P., A.H., and K.K., RCCSB caseworkers.
{¶9} On October 12, 2017, the magistrate heard testimony from Appellant, called
to testify by her counsel.
{¶10} On August 31, 2017, the magistrate, with the consent of all parties, admitted
into evidence RCCSB Exhibits A-1 through A-15 and B-1 through B-8, each being
photographs of the minor child and siblings. On October 12, 2017, with the consent of all
parties, the magistrate admitted into evidence RCCSB Exhibit C, being medical records
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 4
regarding Appellant from Urgent Care dated January 2, 2017. After the presentation of
evidence, the magistrate heard closing arguments from the parties.
{¶11} The Richland County Court of Common Pleas, Juvenile Division, in its
October 25, 2017, entry, overruled Appellant's motions to dismiss and found all six
children dependent and M.T. and D.T. abused.
{¶12} Appellant timely objected to the magistrate’s decisions regarding
dependency, abuse, and mother's motion to dismiss. The trial court overruled Appellant's
objections by entry dated March 16, 2018.
{¶13} In the meantime, the magistrate in the case at bar, conducted hearings on
disposition on November 8, 2017, January 12, 2018 and March 22, 2018. The magistrate
issued a decision on April 9, 2018 addressing disposition. The trial court approved and
adopted the decision the same day.
{¶14} Appellant filed a notice of appeal to this Court on April 11, 2018. Upon
review, this Court overruled Appellant’s five assignments of error. See, State v. S.K., 5th
Dist. Richland No. 18CA89, 2018-Ohio-3332. The Ohio Supreme Court accepted the
cases as a jurisdictional appeal on December 12, 2018. See, In re S.K., 154 Ohio St.3d
1443, 2018-Ohio-4962, 113 N.E.3d 55. It appears that briefing is complete in the Ohio
Supreme Court.
{¶15} However, on April 19, 2018, Appellant filed objections under Juv.R. 40 to
the magistrate’s April 9, 2018 decision that had been approved and adopted by the trial
court. The trial court overruled the objections and issued a Dispositional Order on August
31, 2018.
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 5
{¶16} On October 1, 2018, Appellant filed a notice of appeal from the trial court’s
August 31, 2018 decision.
Assignments of Error
{¶17} Mother raises three assignments of error,
{¶18} “I. THE COURT'S FAILURE TO RETURN THE CHILDREN HOME WITH A
PSO WAS CONTRARY TO THE BEST INTERESTS OF THE CHILDREN.
{¶19} “II. RCCS DID NOT MAKE REASONABLE EFFORTS TO REUNIFY THE
CHILDREN WITH THEIR MOTHER.
{¶20} “III. THE TRIAL COURT ERRED IN FINDING THAT RCCS DID MAKE
REASONABLE EFFORTS TO REUNIFY THE CHILDREN WITH THEIR MOTHER.
STANDARD OF APPELLATE REVIEW.
{¶21} Importantly, the award of temporary custody is “not as drastic a remedy as
permanent custody.” In re L.D., 10th Dist. No. 12AP–985, 2013–Ohio–3214, ¶ 7. See also In re
N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9. This is because the award of temporary
custody does not divest parents of their residual parental rights, privileges, and responsibilities. In
re C.R. at ¶ 17. Therefore, since the granting of temporary custody does not divest a parent of his
or her fundamental parental rights, the parent can petition the court for a custody modification in the
future. In re L.D. at ¶ 7.
{¶22} “A trial court has broad discretion in proceedings involving the care and custody of
children.” In re Mullen, 129 Ohio St.3d 417, 2011–Ohio–3361, ¶ 14. We review the award of legal
custody for an abuse of discretion. In re L.D. at ¶ 8; In re Gales, 10th Dist. No. 03AP–445, 2003–
Ohio–6309, ¶ 13; In re N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9, citing In re Nice, 141
Ohio App.3d 445, 455 (7th Dist.). Abuse of discretion connotes more than an error of law or
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 6
judgment; rather, it implies that the trial court’s decision was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶23} Unlike in a permanent custody proceeding where a juvenile court’s standard of
review is by clear and convincing evidence, the standard of review in legal custody proceedings is
a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos. 2013CA0081, 2013CA0082,
2013-Ohio-5752, ¶ 32; In re A.C., 12th Dist. No. CA2006–12–105, 2007–Ohio–3350 at ¶ 14; In re
Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001).
I.
{¶24} In her First Assignment of Error, Mother in one paragraph argues, “The
caseworker testified that mother was "doing everything I need her to be doing.” Tr. 79.13,
However, despite her putting "anything in the case plan that somebody feels that would
be beneficial for mom [,}" she did not "feel comfortable [with reunification.]” Tr. 84.11-22,
65.24. She could neither provide a set of circumstances that would alleviate her
reluctance, nor could she even say that such a set of circumstances existed. Tr. 82.17,
.84.2-10. She similarly avoided any commitment with regard to her concerns about
mother's history. Tr. 65.1.” Appellant’s Brief at 8.
{¶25} R.C. 2151.011(B)(21) defines “legal custody” as “a legal status that vests in
the custodian the right to have physical care and control of the child and to determine
where and with whom the child shall live, and the right and duty to protect, train, and
discipline the child and to provide the child with food, shelter, education, and medical
care, all subject to any residual parental rights, privileges, and responsibilities...” In
addition, R.C. 2151.011(B)(55) defines “temporary custody” as “legal custody of a child
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 7
who is removed from the child’s home, which custody may be terminated at any time at
the discretion of the court * * *.”
{¶26} In this type of dispositional hearing, the focus is on the best interest of the child. In re
C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188; In re P.S., 5th Dist.
No.2012CA00007, 2012–Ohio–3431. Despite the differences between a disposition of permanent
custody and legal custody, some Ohio courts have recognized “the statutory best interest test
designed for the permanent custody situation may provide some ‘guidance’ for trial courts making
legal custody decisions.” In re A.F., 9th Dist. No. 24317, 2009–Ohio–333 at ¶ 7, citing In re T.A.,
9th Dist. No. 22954, 2006–Ohio–4468 at ¶ 17; In re S.D. 5th Dist. Stark Nos. 2013CA0081,
2013CA0082, 2013-Ohio-5752, ¶ 33 .
{¶27} R.C. 2151.414(D) sets forth factors to be considered in making a determination
regarding the best interest of the child. These factors include, but are not limited to, the
following:
(1) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers, 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, 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 ending on or after March 18, 1999;
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 8
(4) The child’s need for a legally secure placement and whether that type
of placement can be achieved without a grant of permanent custody to the
agency;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
{¶28} In the case at bar, the trial court found,
At disposition, Caseworker Campbell gave testimony expanding on [B.S.]'s
inadequate cooperation in resolving issues of abusive male figures in her home and
their mistreatment of her children. Caseworker Jackson, the current ongoing
caseworker for the family explained that reunification of [B.S.] remained the goal in
this matter; however, insufficient progress has been made to date to allow
reunification. Jackson described a proposed Case Plan which includes continuing
personal and domestic violence counseling for [B.S.]; continuing parental education;
improvements in resource management, housing and parental ability to meet the
child's basic and special needs; counseling for the minor child, including any
developmental and behavioral issues; and appropriate parental visitation.
Caseworker Jackson indicated that [B.S.] now is cooperative, more insightful, and
beginning to make progress on these issues.
{¶29} Caseworker Jackson testified that Mother is only recently beginning to
come to terms with her own past history of abuse. T. at 40. Mother has a history of being
involved with abusive men. Id. Caseworker Jackson further testified that Mother
struggles to acknowledge her part in the behaviors that led to the abuse of two of her
children. T. at 43.
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 9
{¶30} Caseworker Jackson testified that due to an issue with the foster parents,
the boys were being moved. T. at 51-53. New foster parents have been found. The boys
will have to change school districts. T. at 52-53. The boys are not ready to go home
because they have not really addressed the trauma that they have suffered. T. at 54-55.
{¶31} Caseworker Jackson testified that the girls are doing well in the care of the
paternal grandmother. T. at 53-54.
{¶32} Upon thoroughly reviewing the record, we find that there was competent,
credible evidence supporting the trial court’s determination that not returning the children
to the custody of Mother was in the best interest of the children. In light of the trial court’s
broad discretion in custody determinations, the fact that such a determination should be
accorded the utmost respect by a reviewing court, the court had the benefit of the report
of the guardian ad litem, the fact that credibility issues which are critical in custody cases
do not translate into the record, we cannot say that the trial court abused its discretion.
{¶33} Mother’s First Assignment of Error is overruled.
II. & III.
{¶34} In her Second and Third Assignments of Error Mother argues that the record
fails to show that RCCSB made reasonable efforts to reunify the children with their
mother.
{¶35} The Supreme Court of Ohio in In re C.F., 113 Ohio St. 3d 73, 78, 862 N.E.
2d 816, 821(2007) noted,
[N]o one section of the Revised Code addresses the concept of
reasonable efforts. Overall, Ohio's child-welfare laws are designed to care
for and protect children, ‘whenever possible, in a family environment,
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 10
separating the child from the child's parents only when necessary for the
child's welfare or in the interests of public safety.’ R.C. 2151. 01(A). To that
end, various sections of the Revised Code refer to the agency's duty to
make reasonable efforts to preserve or reunify the family unit. For example,
R.C. 2151. 412 requires the agency to prepare and maintain a case plan for
children in temporary custody with the goal ‘to eliminate with all due speed
the need for the out-of-home placement so that the child can safely return
home.’ Under R.C. 2151. 413(D)(3)(b), an agency may not file for
permanent custody under R.C. 2151. 413(D) - the '12 months out of 22 rule'-
‘[i]f reasonable efforts to return the child to the child's home are required
under section 2151. 419’ and the agency has not provided the services
required by the case plan.
{¶36} A “reasonable effort” is “* * * an honest, purposeful effort, free of malice and
the design to defraud or to seek an unconscionable advantage.” In re Weaver, 79 Ohio
App.3d 59, 63, 606 N.E.2d 1011(12th Dist. 1992).
{¶37} “When a trial court is considering whether the agency made reasonable
efforts to prevent the removal, the issue is not whether the agency could have done more,
but whether it did enough to satisfy the reasonableness standard under the statute. In re
Brewer (Feb. 12, 1996), Belmont App. No. 94–B–28. ‘In determining whether reasonable
efforts were made, the child's health and safety shall be paramount.’ R.C. 2151.419(A)
(1).” In re R.P., 5th Dist. Tuscarawas No. 2100AP050024, 2011-Ohio-5378, ¶47.
{¶38} R.C. 2151.419 requires the trial court to determine whether the agency filing
the complaint for custody “has made reasonable efforts * * * to eliminate the continued
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 11
removal of the child from his home, or to make it possible for the child to return home.”
Subsection (B)(1) mandates the trial court to issue written findings of fact setting forth the
reasonable efforts made by the agency, including a brief description of “the relevant
services provided by the agency to the family of the child and why those services did not
prevent the removal of the child from his home or enable the child to return home.”
{¶39} However, even where a trial court has failed to include in its judgment entry,
the findings contemplated by R.C. 2151.419(B)(1) we have found that the ultimate issue
is the reasonableness of the Department’s efforts, and have concluded those efforts may
be determined from the record. In the matter of Kell/Bess Children, 5th Dist. No.
97CA0278, 1998 WL 401767(Mar. 23, 1998); Hunt v. Ickes, 5th Dist. Tuscarawas No.
2014 AP 08 0032, 2015-Ohio-309, ¶19.
{¶40} This court has reviewed the magistrate’s findings of fact and finds the
aforementioned findings of fact were sufficient for the trial court to make an independent
analysis and to apply appropriate law in reaching its judgment as required in Juv.R.
40(E)(4).
{¶41} We believe the record supports a good faith effort on the part of RCCSB.
RCCSB and other agencies have provided Mother with those services required by the
reunification plan.
{¶42} In the case at bar, the record demonstrates that Mother has diligently and
conscientiously complied with the case plan. The agency caseworker testified that Mother
had engaged in her case plan services since the inception of the case plan prior to filing
of any of the complaints in this case. T. at 71. Mother has stable housing with room for
the children. Mother attended every visit with her six children. The caseworker testified
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 12
that mother was "doing everything I need her to be doing." Mother has covered the
information in question T. at 214. Mother had digested that material T. 216; 218. Mother
had demonstrated in a real life situation that she could apply the information to her
present circumstances. T. at 276. However, the record also supports the trial court’s
findings that Mother needs further work to recognize signs of violent relationships prior
to suffering further violence. T. at 63. The trial court noted,
Testimony from [K. F.], [Mother’s] mental health counselor, was
crucial to this Court's decision. [K.F.] testified that [Mother] suffers from
post-traumatic stress disorder, major depressive disorder, and a "rule-out"
diagnosis of anxiety disorder. According to [K.F.], [Mother] suffered from
serious sexual and physical abuse as a child, which left her with a "distorted,
dysfunctional relationship with men," especially with men who she
perceives as being in a position of power. This has led [Mother] to form
relationships with abusive men and to fail to recognize signs of abuse of her
children despite her own experiences. Somehow, [Mother’s] mental health
issues and life experience had blinded her to abuse suffered by her children
despite clear signs of abuse.
While [K.F.] commenced counseling with [Mother] in March or April
of 2017, [K.F.] spent the balance of 2017 "building trust" with [Mother],
making little progress on the issues of domestic violence. Around January
of 2018, [K.F.] testified that "a light went on" and [Mother] began to
understand the danger to her children from the introduction of abusive men
into her household. While commending [Mother] on her recent progress,
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 13
[K.F.] noted that [Mother’s] road to recovery is a long one and that years of
damage cannot be undone in 11 months of counseling. [K.F.] asserted that
[Mother] will have to resolve her own issues and develop coping mechanism
and insight before she can provide adequate protection for her children; and
that [Mother] needs to stay the course over a long road to recovery.
{¶43} We find that the record supports that all parties are working toward the goal
of reunification. We find no evidence of dishonest purpose, conscious wrongdoing, or
breach of duty on the part of RCCSB.
{¶44} Having reviewed the record, we find that RCCSB is making a good faith
effort to reunify Mother and her children. Furthermore, the record contains clear and
convincing evidence to support the court’s determination that the children could not be
placed with Mother at the present time.
{¶45} In the case at bar, the trial court only awarded temporary custody of the
children. The important distinction is that an award of temporary legal custody of a child
does not divest parents of their residual parental rights, privileges, and responsibilities.
See R.C. 2151.011(B)(19) and In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781
N.E.2d 971, ¶ 8, fn. 1. In the future, then, in this case, Mother may petition the court for
a review and a modification of custody. Id. at ¶ 36.
{¶46} Mother’s Second and Third Assignments of Error are overruled.
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 14
{¶47} The judgment of the Richland County Court of Common Pleas, Juvenile
Court Division is affirmed.
By Gwin, P.J., and
Baldwin, J., concurs
Wise, John, J., concurs
in judgment only.
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 15
Wise, J., concurring in judgment only
{¶48} I respectfully concur in judgment only and write separately, as in essence I
find it unnecessary in these six cases to address the merits of appellant’s challenges to
the juvenile court’s dispositional orders, as appellant’s assigned errors should be
overruled based on the doctrine of the law of the case.
{¶49} The law of the case doctrine provides that a decision of a reviewing court in
a case remains the law of the case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels. U.S. Bank v. Detweiler. 5th
Dist. Stark No. 2011 CA00095, 2012–Ohio–73, ¶ 26, citing Nolan v. Nolan (1984), 11
Ohio St.3d 1, 462 N.E.2d 410.
{¶50} As the majority herein notes, appellant filed her notices of appeal in the six
cases on April 11, 2018, challenging in each instance the juvenile court’s March 16, 2018
adjudication of dependency and/or abuse. In our opinions issued in mid-August 2018, we
sua sponte considered the issue of final appealability, as it is well-established that a
dependency adjudication must be accompanied by an order of disposition in order to
constitute a final appealable order. See, e.g., In re K.M., 3rd Dist. Shelby No. 17-11-15,
2011-Ohio-3632, ¶ 22. In that vein, we clearly held: “Therefore, because there is a final
dispositional order in this case, the order is a final appealable order.” See S.K. I, T.K. I,
D.T. I, M.T. I, J.T. I, and R.T. I at ¶ 3.
{¶51} However, it apparently had escaped this Court’s notice that appellant, on
April 19, 2018, had filed Juv.R. 40 objections in each case to the magistrate’s dispositional
decision, which had been issued on April 9, 2018. Those objections were thus pending in
Richland County, Case No. 18CA89,18CA90,18CA91,18CA92,18CA93&18CA94 16
the juvenile court until they were overruled via judgment entries issued on August 31,
2018, about two weeks after our decisions in the six appeals.
{¶52} I find this procedural history creates an incongruence with our conclusions
in S.K. I, T.K. I, D.T. I, M.T. I, J.T. I, and R.T. I that a final dispositional order existed in
each case for purposes of those appeals. Nonetheless, whether a judgment is a final,
appealable order is a question of law. State v. Robinson, 9th Dist. Summit No. 26365,
2012-Ohio-3669, ¶ 7. Thus, our explicit ruling in the August 2018 opinions that a final
appealable order existed was a legal conclusion, but appellant did not thereafter ask us
to reconsider same via a motion under App.R. 26(A). She instead took our decisions and
pursued further appeal thereof to the Ohio Supreme Court.
{¶53} Under the circumstances presented, pursuant to the doctrine of the law of
the case, I find appellant is bound by our rulings under S.K. I, T.K. I, D.T. I, M.T. I, J.T. I,
and R.T. I that disposition and final appealability in this matter were previously established
in April 2018. Appellant therefore should not now be permitted to pursue piecemeal
appellate review of these six dispositional orders, particularly when one considers that
the originating dependency and/or abuse complaints go all the way back to May 2017.
{¶54} Accordingly, I would overrule all three Assignments of Error and affirm the
juvenile court on the aforesaid grounds alone.
________________________________
JUDGE JOHN W. WISE