In re A.S. ( 2012 )

[Cite as In re A.S., 2012-Ohio-3197.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
IN THE MATTER OF:
A.S. CASE NO. 1-12-01
ADJUDICATED DEPENDENT CHILD,
OPINION
[JENNIFER ALEXANDER -
APPELLANT].
IN THE MATTER OF:
M.M. CASE NO. 1-12-02
ADJUDICATED DEPENDENT CHILD,
OPINION
[JENNIFER ALEXANDER -
APPELLANT].
Appeals from Allen County Common Pleas Court
Juvenile Division
Trial Court Nos. 2010JG27309 and 2010JG27310
Judgments Affirmed
Date of Decision: July 16, 2012
Case Nos. 1-12-01 and 1-12-032
APPEARANCES:
Sarah N. Newland for Appellant/Mother
Mariah M. Cunningham for Appellee, Allen Co. Children’s Services
Keith Schierloh for Appellee/Father
Marie A. Von der Embse for Appellees/Minor Children
SHAW, P.J.
{¶1} Mother-appellant Jennifer Alexander (“Jennifer”) appeals the
December 20, 2011 judgment of the Allen County Court of Common Pleas,
Juvenile Division, awarding permanent custody of her two minor children, A.S.
and M.M., to the Allen County Children’s Services Board (hereinafter “ACCSB”
or “the agency”).
{¶2} The facts relevant to this appeal are as follows. Jennifer is the mother
of A.S., born August, 2008, and M.M., born October, 2009. David Thompson was
determined to be the father of the two children.
{¶3} On January 17, 2010 an incident occurred wherein M.M., not yet three
months old, was in a baby swing crying. Jennifer kicked the baby swing holding
M.M., nearly toppling the swing, and Jennifer threatened to shake M.M.
Jennifer’s sister Stacy attempted to intervene to protect M.M. and when Stacy did
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Case Nos. 1-12-01 and 1-12-032
intervene, Jennifer assaulted Stacy and threatened to kill her. Jennifer’s other
child A.S., who was one year old, was present at the time of the incident. As a
result of the incident, the police were called and Jennifer was arrested for domestic
violence.
{¶4} Following the incident, on January 29, 2010, Allen County Children
Services Board filed two complaints. The first complaint alleged that A.S. was a
dependent child and the second complaint alleged that M.M. was a dependent and
neglected child. (Doc. 2, 2).1
{¶5} On February 2, 2010, in order to protect the best interests of the
children, Marie Von der Embse was appointed as Guardian Ad Litem (“GAL”) for
the two children. (Doc. 7, 8).
{¶6} On February 3, 2010, a “shelter care” hearing was held. Despite being
notified of the hearing, Jennifer did not attend. From the testimony presented at
the hearing the magistrate found that Jennifer refused to cooperate with the
ACCSB caseworker and at times would not even talk to her. (Docs. 13, 15).
Further, the magistrate found that Jennifer refused to approve a safety plan
proposed by the agency and that Jennifer missed a meeting at the agency. (Id.)
On February 4, 2010, pursuant to the magistrate’s order, both A.S. and M.M. were
placed in the shelter care of ACCSB. (Id.) A.S. and M.M. were subsequently
1
The first document number in the series cited here and afterward throughout this opinion corresponds to
the case file pertaining to A.S. and the second document number corresponds to the case file pertaining to
M.M.
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Case Nos. 1-12-01 and 1-12-032
placed in the foster home of Danielle Kohler (“Kohler”), where the children have
since remained.
{¶7} On February 26, 2010, a case plan was filed. (Doc. 18, 22). As part
of the case plan Jennifer was required to complete a mental health assessment and
follow recommendations, complete agency approved parenting classes, complete
random urine screens, provide for the children’s basic needs, complete an
assessment for anger management services, have no unsupervised contact with her
daughters, have no further incidents of domestic violence, and work with Help Me
Grow services. (Id.)
{¶8} On March 10, 2010 a hearing was held on the agency’s complaints to
determine whether A.S. was dependent and to determine whether M.M. was
dependent and neglected. Despite being notified of the hearing, Jennifer did not
attend. At the hearing, testimony was provided by investigative caseworker
Sharon Fenton of ACCSB and Officer Trent Kunkleman who was the responding
officer for the domestic violence incident wherein Jennifer kicked the baby swing
holding M.M.
{¶9} On March 12, 2010, the magistrate’s decisions were issued finding
both A.S. and M.M. dependent pursuant to R.C. 2151.04. (Docs. 23, 24) M.M.
was not found neglected. (Id.)
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Case Nos. 1-12-01 and 1-12-032
{¶10} On April 16, 2010, the trial court adopted the findings of fact and
conclusions of law contained in the magistrate’s decisions finding that A.S. and
M.M. were dependent children. (Docs. 27, 31). Further, the trial court found that
there was reasonable cause for issuance of the shelter care order previously filed,
and that reasonable efforts had been made by ACCSB to “eliminate continued
removal of the minor child[ren] from the home.” (Id.)
{¶11} On April 26, 2010 the trial court adopted the findings of the
magistrate placing the children in the temporary custody of ACCSB and the
February 26, 2010 case plan was made the order of the court. (Docs. 38, 30).
{¶12} On December 28, 2010, ACCSB filed motions to extend temporary
custody of A.S. and M.M. (Docs. 30, 34). On March 14, 2011, a hearing was held
on the motion to extend temporary custody. On March 16, 2011, the magistrate
issued a decision extending temporary custody. (Docs. 40, 45). In that decision,
the magistrate found that Jennifer was released from incarceration in Marysville in
October of 2010, that Jennifer had failed to take all required random urine screens,
and that Jennifer was not visiting the children consistently. (Id.) Therefore
temporary custody was extended “because the mother was incarcerated and needs
additional time to complete case plan services.” (Id.) On May 25, 2011, the
magistrate’s decision was adopted by the trial court, extending temporary custody
for an additional six month period. (Docs. 41, 47).
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Case Nos. 1-12-01 and 1-12-032
{¶13} On June 22, 2011, ACCSB filed motions requesting permanent
custody for A.S. and M.M. (Docs. 43, 49).
{¶14} On November 29, 2011, Jennifer filed motions for legal custody of
A.S. and M.M. On December 6, 2011, Jennifer filed amended motions for legal
custody, requesting legal custody or, in the alternative, temporary custody of A.S.
and M.M.
{¶15} On December 1, 2011, the GAL filed a report and recommendation
regarding A.S. and M.M., recommending that ACCSB be granted permanent
custody of both of the children. (Docs. 76, 76).
{¶16} On December 7, 2011, the hearing on ACCSB’s permanent custody
motion and Jennifer’s custody motions was held. At the hearing ACCSB first
called Judy Lester, a SAFY Behavioral Services therapist. Lester testified that
A.S. has a “sensory integration disorder” which causes abnormal melt downs and
that A.S. “has difficulties with sensory information coming into her brain.” (Tr. at
6). Lester testified that A.S. would need special care and because of this, Lester
testified, A.S. needs an adult to be well regulated. (Tr. at 10, 14).
{¶17} Next, Danielle Kohler, the foster mother, testified that she had been a
licensed foster parent for 6 years, that she had taken care of A.S. and M.M. for
roughly 22 months, and that she desired to adopt the two children. (Tr. at 30, 54-
55). Kohler testified to the difficulties in dealing with A.S.’s sensory disorder,
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Case Nos. 1-12-01 and 1-12-032
stating that A.S. has to see multiple doctors and that A.S. needs a structured
environment. (Tr. at 33-35). Kohler testified that she carries a binder with her at
all times to help her deal with A.S.’s disorder. (Tr. at 33). Kohler further testified
to a typical day involving A.S., which includes listening therapy, and brushing
therapy2, and on some days, trips to the occupational therapist in Toledo. (Tr. at
38-40). Kohler testified that she had talked about these things with Jennifer and
had showed Jennifer the “brushing” technique, but Kohler said she was “not sure
that [Jennifer] understood.” (Tr. at 43). Kohler further testified that she sees
similar problems to A.S. developing in M.M., though M.M. has not been
diagnosed with a sensory disorder. (Tr. at 44-45).
{¶18} Kohler testified that A.S. and M.M. were integrated into her home
and that they were effectively “siblings” with the other children. (Tr. at 52).
Finally, Kohler testified to one incident where Jennifer cancelled an agency visit
and Jennifer said to Kohler via text message that “she couldn’t do it anymore.”
(Tr. at 47).
{¶19} Amber Martin, the caseworker from ACCSB, testified at the hearing
that although Jennifer had complied with some parts of the case plan, she had not
fulfilled it. Martin testified that Jennifer was required to complete a mental health
assessment and comply with any recommendations from that assessment. (Tr. at
2
According to Kohler, brushing therapy is done on A.S. every two hours and encompasses using a
“surgical brush” to “brush her arms, legs, her back in the specific order, and specific way. And then you do
joint compressions on her hips, knees, ankles, shoulders, elbows and wrists.” (Tr. at 36).
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Case Nos. 1-12-01 and 1-12-032
71). Martin testified that Jennifer completed the assessment and it was
recommended that Jennifer undertake Moral Recognition Therapy, which Jennifer
completed. However, Martin expressed concerns that after going through the
class, Jennifer was arrested for, and convicted of, theft from her employer Little
Caesars.
{¶20} Martin testified that Jennifer completed some of the urine screens she
was required to take, though Jennifer only took 8 of the 21 screens, passing those
that she took. (Tr. at 73). Martin testified that for the majority of the tests Jennifer
failed to take, Jennifer gave no reasons why she did not take them, but when
Jennifer did give reasons she said that she had “lost the mail, the piece of paper.
She didn’t have transportation and forgot.” (Tr. at 75).
{¶21} Martin further testified that during the pendency of these proceedings
Jennifer was incarcerated twice, the first time being from February 2010 until
October 2010, and the second time being from October 2011 until November of
2011.3 (Tr. at 76).
{¶22} Martin then testified that there were concerns with Jennifer being
able to provide for the basic needs of the children. (Tr. at 78). These concerns
included the fact that Jennifer had not maintained a residence, moving nine times
3
Martin testified that she believed the first incarceration was due to a parole violation based on the
domestic violence incident. Cross examination by Jennifer’s attorney seems to imply that Jennifer was
convicted of Persistent Disorderly Conduct out of the earlier incident of domestic violence. According to
Martin, the second period of incarceration resulted from Jennifer’s theft from Little Caesars.
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Case Nos. 1-12-01 and 1-12-032
throughout these proceedings.4 Martin testified that shortly before the final
hearing, Jennifer had taken Martin to an apartment Jennifer claimed she would be
renting, but the apartment was empty and no lease had been signed up to the time
of the hearing. (Tr. at 83). Martin also testified that Jennifer’s current boyfriend
and the father to her unborn child, Todd Wilson, was planning to live with her at
the new residence. (Tr. at 145). Martin testified that the agency had received
reports of domestic violence between Todd Wilson and Jennifer. (Id.)
{¶23} Martin testified that Jennifer did not show the ability to meet her own
financial needs as she had only been employed for about three weeks at Little
Caesars since April of 2010. Martin also testified that Jennifer exercised her
supervised visitation times inconsistently in “spurts.” (Tr. at 89). According to
Martin, Jennifer was late or missed twenty-six visits with the children in a fourteen
month period. (Id. at 90). Martin testified that Jennifer’s reasons for missing or
being late included, “[s]lept in, sick has been several times, one time she was
having her taxes done, a train one time made her late.” (Tr. at 90). Martin
testified that after a period of weeks where Jennifer missed visitation, A.S. was
hesitant to go back and she “saw an increase of behaviors [of A.S.] into visitation,
pulling out hair, biting, acting out after visits.” (Tr. at 91).
4
Some of these moves were back and forth to various correctional institutions and back and forth to her
father’s home. Martin testified that in one apartment that Jennifer resided in, her electric was turned off for
failure to pay the bill. (Tr. at 85).
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Case Nos. 1-12-01 and 1-12-032
{¶24} In conclusion, Martin testified that she did not believe A.S. or M.M.
could be placed with Jennifer within a reasonable time, stating “[a]t this time,
[Jennifer] still does not have a home, a lease, income is still unknown, there is not
a regular income. There is still some inconsistency with visitation and [A.S.]’s
needs level has increased * * *[.]” (Tr. at 103). ACCSB then rested its case.
{¶25} Jennifer then testified at the hearing, arguing that she should get legal
custody of A.S. and M.M., or in the alternative, temporary custody of the two
children. Jennifer testified that she had verbally agreed to rent an apartment but
had not signed a lease yet. (Tr. at 148). Jennifer also testified that she was
attempting to get financial assistance through the State. (Tr. at 150). Jennifer
testified that she was pregnant by her boyfriend Todd and looking for a job. (Tr.
at 172). Jennifer also testified that her boyfriend Todd had been convicted of two
counts of Drug Trafficking, and Jennifer testified she was aware that Todd had
been convicted of two counts of domestic violence. (Tr. at 174).
{¶26} After Jennifer testified, David Thompson, the father of the two
children testified. Thompson testified he had only seen A.S. once and had never
seen M.M. According to the GAL report, Thompson had 10 kids and did not want
to, or have the means to, take custody of the two children.
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Case Nos. 1-12-01 and 1-12-032
{¶27} Following Thompson’s testimony, the GAL made a statement in
closing arguing for permanent custody to be awarded to ACCSB. After closing
arguments, the case was submitted for the court’s decision.
{¶28} On December 20, 2011, two judgment entries were filed awarding
permanent custody to ACCSB for both A.S. and M.M. The court found in
separate judgment entries for each child that each child could not be placed with
either parent within a reasonable period of time and that the children had been in
the temporary custody of ACCSB for twelve or more months of a consecutive
twenty-two month period. (Docs. 81, 79). The court found that the children were
in need of legally secure permanent placement and that they had been fully
integrated into the Kohler foster home. (Id.) The court found upon consideration
of the factors enumerated in R.C. 2141.414 that an award of permanent custody to
ACCSB was in the children’s best interests. (Id.)
{¶29} It is from the December 21, 2011 judgment entries that Jennifer
appeals, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN FINDING THAT THE
MINOR CHILDREN COULD NOT BE RETURNED TO
MOTHER WITHIN A REASONABLE TIME PURSUANT TO
R.C. 2151.414(E).
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN FINDING THAT IT WAS IN
THE CHILDREN’S BEST INTEREST TO TERMINATE THE
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Case Nos. 1-12-01 and 1-12-032
MOTHER’S PARENTAL RIGHTS AND PLACE THE
CHILDREN IN THE PERMANENT CUSTODY OF THE
ALLEN COUNTY CHILDREN SERVICES BOARD.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED IN FINDING THE MINOR
CHILDREN DEPENDENT AS DEFINED IN R.C. 2151.04(B)
AS THIS WAS NOT ALLEGED IN THE COMPLAINT FILED
BY THE ALLEN COUNTY CHILDREN SERVICES BOARD.
First Assignment of Error
{¶30} In Jennifer’s first assignment of error, she argues that the trial court
erred in finding that the children could not be returned to Jennifer within a
reasonable time. Specifically Jennifer claims, inter alia, that she was in the
process of acquiring an apartment and securing funds to support A.S. and M.M.
{¶31} As an initial matter, we note that “[i]t is well recognized that the
right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3d
Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, ¶ 9, citing In re Hayes, 79 Ohio
St.3d 46, 48 (1997). The Supreme Court of Ohio has held that a parent “must be
afforded every procedural and substantive protection the law allows.” In re Hayes,
supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist. 1991) Thus, it is with
these constructs in mind that we proceed to determine whether the trial court erred
in granting permanent custody of the children to the agency.
{¶32} Section 2151.414(B)(1) of the Revised Code provides, inter alia, that
a trial court
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Case Nos. 1-12-01 and 1-12-032
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this
section, by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody of the child to
the agency that filed the motion for permanent custody and that
any of the following apply:
(a) The child is not abandoned or orphaned, has not been in
the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, * * * and the
child cannot be placed with either of the child's parents within a
reasonable time or should not be placed with the child's parents.
(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.
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-two-
month period, or 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 and * * * the child was previously in
the temporary custody of an equivalent agency in another state.
R.C. 2151.414(B)(1)(a-d).
{¶33} The Supreme Court of Ohio has held that “[c]lear and convincing
evidence is that measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Further, “[i]t is
intermediate; being more than a mere preponderance, but not to the extent of such
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Case Nos. 1-12-01 and 1-12-032
certainty as is required beyond a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.” Id., citing Merrick v. Ditzler, 91 Ohio St. 256(1915). In addition, when “the degree of proof required to sustain an issue must
be clear and convincing, 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.” Cross, supra (citations omitted); see, also, In re Adoption of
Holcomb, 18 Ohio St.3d 361, 368 (1985).
{¶34} At the outset, we note that Jennifer does not dispute the finding of
the trial court that the children have been in the agency’s temporary custody in
excess of the required twelve or more months in a consecutive twenty-two-month
period, which would satisfy R.C. 2151.414(B)(1)(d).5 Pursuant to the plain
language of R.C. 2151.414(B)(1)(d), when a child has been in an agency’s
temporary custody for twelve or more months of a consecutive twenty-two month
period, a trial court need not find that the child cannot or should not be placed with
either parent within a reasonable time. See R.C. 2151.414(B)(1)(d). Therefore,
the court was not required to go into a “reasonable time” analysis as alleged in
Jennifer’s appeal as R.C. 2951.414(B)(1)(d) was satisfied.
{¶35} However, the court made the additional finding that the children
could not be placed with either parent within a reasonable time or should not be
5
Jennifer’s brief, in the “Statement of Facts” specifically reads “[t]he minor children resided with the same
foster family for approximately twenty-two months.” (Appt. Br. at 3).
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Case Nos. 1-12-01 and 1-12-032
placed with either parent. R.C. 2151.414(B)(1)(a). The assignment of error raised
is related to this additional finding by the trial court, therefore, in the interest of
justice we will address the argument made regarding the adequacy of that specific
finding.
{¶36} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a)
that the children cannot be placed with either parent within a reasonable time or
should not be placed with either parent, the Revised Code states:
(E) In determining at a hearing held pursuant to division (A) of
this section * * * whether a child cannot be placed with either
parent within a reasonable period of time or should not be
placed with the parents, the court shall consider all relevant
evidence. If the court determines, by clear and convincing
evidence, at a hearing held pursuant to division (A) of this
section * * * that one or more of the following exist as to each of
the child's parents, the court shall enter a finding that the child
cannot be placed with either parent within a reasonable time or
should not be placed with either parent:
(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 parents to remedy the
problems that initially caused the child to be placed outside the
home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the
parents have substantially remedied those conditions, the court
shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and
material resources that were made available to the parents for
the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
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Case Nos. 1-12-01 and 1-12-032
(4) The 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;
***
(10) The parent has abandoned the child.
***
(14) The 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.
(Emphasis Added.) R.C. 2151.414(E)(1, 4, 10, 14).
{¶37} In addressing the factors in R.C. 2151.414(E), the trial court held the
following in both judgment entries related to A.S. and M.M.:
[T]he child cannot be placed with either parent within a
reasonable period of time and should not be placed with the
parents. Further, the court finds that 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 parents to remedy the problems that initially caused
the child to be placed outside the home, both parents failed
continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child’s
home (O.R.C. 2151.414(E)(1)). Further, the mother and father
have both demonstrated a lack of commitment toward the child
by failing to regularly support, visit, or communicate with the
child when able to do so and by their other actions showing an
unwillingness to provide an adequate, permanent home for the
child (O.R.C. 2151.414(E)(4)). Further, the father has
abandoned the child. (O.R.C. 2151.414(E)(10). Both the mother
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Case Nos. 1-12-01 and 1-12-032
and the father have been unwilling to provide food, clothing,
shelter and other basic necessities for the child. (O.R.C.
2151.414(E)(14)).
(Doc. No. 81, 79).
{¶38} Jennifer challenges these findings of the trial court, arguing that she
had complied with parts of the case plan by taking recommended classes and
taking some drug screens. Jennifer also argues that she had applied for assistance
from Job and Family Services and would be receiving $435.00 a month in cash
assistance and $200.00 a month in food stamps. Further, Jennifer argues she was
in the process of getting an apartment.
{¶39} While it is true that Jennifer did follow through with some of the case
plan, the evidence would support the trial court’s finding that she had not
“substantially” remedied the problems that led to the children’s removal. The only
job Jennifer had during the pendency of these matters was a three-week stint at
Little Caesars from which she was apparently fired after stealing from the store.
Moreover, Jennifer’s arguments regarding the apartment and the cash assistance
are completely speculative. Jennifer had ample time prior to the final hearing to
get a job and/or cash assistance and secure a place to live. However, Jennifer was
only in the process of doing these things with no proof at the hearing that she
would be getting cash assistance to provide for the kids or that she had signed a
lease for the apartment.
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{¶40} Furthermore, Jennifer planned on moving in with the father of her
unborn child, Todd Wilson, who had two prior domestic violence convictions and
had also been convicted of drug trafficking. Finally, Jennifer only took 8 of 21
drug screens, and was late to or missed entirely, 26 visits with her children.
Throughout the time since A.S. and M.M. had been taken from Jennifer, Jennifer
had been in and out of incarceration and she did not attend many of the hearings in
this case despite being notified.
{¶41} Although Jennifer claims that the children could be returned to her
within a reasonable time, she has produced no concrete evidence of her ability to
support the children, relying instead on speculative money and claims that
Jennifer’s father and/or boyfriend would assist her. Based on the record, we find
that there was clear and convincing evidence to support the finding of the trial
court. Accordingly, Jennifer’s first assignment of error is overruled.
Second Assignment of Error
{¶42} In Jennifer’s second assignment of error, she argues that the trial
court erred in finding that it was in the children’s best interests that permanent
custody was awarded to ACCSB. Specifically, Jennifer argues that the trial
court’s finding that the children would be returning to a “virtual stranger” if they
were returned to their mother was improper.
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Case Nos. 1-12-01 and 1-12-032
{¶43} When determining whether granting permanent custody to the
agency is in the best interest of the child, the court must consider all of the
relevant factors listed in R.C. 2151.414(D)(1), including:
(a) 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;
(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;
(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 * * * for twelve or more months of a
consecutive twenty-two month period * * *;
(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶44} After considering the factors in R.C. 2151.414(D), the trial court
found that “an award of permanent custody to the Allen County Children Services
Board [was] in the child[ren]’s best interest. (Docs. 81, 79).
{¶45} In regards to factor (a), at the final hearing, testimony presented
established that Jennifer was late to or missed 26 appointments with her children.
(Tr. at 90). Testimony also established that the inconsistency furthered difficulties
with A.S.’s behaviors and disorder. (Tr. at 11, 91). Evidence was presented at the
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Case Nos. 1-12-01 and 1-12-032
hearing that A.S. and M.M. were fully integrated into the foster caregivers’ family,
in which both children had resided together for the majority of their lives. (Tr. at
52-54, 105-106). Testimony established that the children had been with the foster
family for 22 months, the majority of the children’s lives.
{¶46} In regards to factor (b), the children’s wishes were expressed through
the GAL. The GAL visited with the children and spoke to several family
members. Based on her investigation, the GAL determined that the best interests
of A.S. and M.M. would be served by granting permanent custody to ACCSB.
{¶47} In regards to factor (c), as stated above, A.S. and M.M. had been in
ACCSB’s custody for more than twelve months of a twenty-two month
consecutive period at the time ACCSB filed the motions requesting permanent
custody.
{¶48} In regards to factor (d), Jennifer had been in and out of jail, had
moved nine times, had no job, had no income, had no place of residence and was
preparing to move in with a man with a substantial criminal record. Jennifer did
not provide any documentation that could support her ability to provide for the
children. On the contrary, the children’s foster mother, Danielle Kohler, had
expressed interest in adopting both A.S. and M.M.
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{¶49} In regards to factor (e), none of those factors are applicable to this
situation.6
{¶50} Based on the foregoing we find that there was clear and convincing
evidence to support the decision made by the trial court that it was in the
children’s best interest for permanent custody to be awarded to ACCSB.
Accordingly Jennifer’s second assignment of error is overruled.
Third Assignment of Error
{¶51} In Jennifer’s third assignment of error, she argues that the trial court
erred in finding the minor children dependent in the original adjudicatory hearing
pursuant to R.C. 2151.04(B) when, she claims, such an allegation was not
contained in the complaint. Specifically Jennifer argues that the complaints
claimed that A.S. and M.M. were dependent pursuant to R.C. 2151.04(C) rather
than R.C. 2151.04(B) as they were found by the magistrate and the trial court. We
find that Jennifer’s argument is barred by the doctrine of res judicata.
{¶52} The doctrine of res judicata has two aspects: claim preclusion and
issue preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-
331. As to the claim preclusion aspect, this doctrine provides that an existing,
final judgment between the parties to litigation bars all claims which were litigated
or could have been litigated in that lawsuit from being relitigated in a later action.
6
Factor (e)(10) would be relevant to the father as the court found the father had abandoned the children.
However, this appeal pertains to the mother’s rights, so we decline to address this issue.
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Case Nos. 1-12-01 and 1-12-032
Grava, supra, at 381. This doctrine has been held to apply to appellate
proceedings in both criminal and civil cases.
{¶53} In the present case, when A.S. and M.M. were adjudicated as
dependent children by the magistrate, no objection was made to the magistrate’s
decision. The magistrate’s decision was later adopted by the trial court, and the
specific findings of dependency related to each child were made the order of the
court. No appeal was ever taken from that judgment. The parties then proceeded
to the permanent custody hearing. The appeal in this case is taken from the
December 20, 2011 judgment entry awarding permanent custody to ACCSB.
Under the doctrine of res judicata, Jennifer cannot now claim the magistrate’s
finding of dependency in the original adjudicatory hearing, and the trial court’s
adoption of it, as error on appeal. See In re S.J., 9th Dist. No. 23199, 2006-Ohio-
6381 ¶¶ 14-17. Accordingly, Jennifer’s third assignment of error is overruled.
{¶54} For the foregoing reasons Jennifer’s assignments of error are
overruled and the judgments of the Allen County Court of Common Pleas,
Juvenile Division, are affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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