In re D.T. , 2014 Ohio 2495 ( 2014 )

[Cite as In re D.T., 2014-Ohio-2495.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
D.T., Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
MINOR CHILD
Case No. 2013CA00252
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2013JCV00731
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 9, 2014
APPEARANCES:
For Appellee For Appellant
JAMES B. PHILLIPS EMILY R. TRETTEL
Stark County Job and Family Services Stark County Public Defender
221 Third Street, S.E. 201 Cleveland Abe SW, Suite 104
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case No. 2013CA00252 2
Hoffman, P.J.
{¶1} Appellant Gino Threats (“Father”) appeals the November 27, 2013
Judgment Entry entered by the Stark County Court of Common Pleas, Juvenile Division,
which overruled his objections to the magistrate’s October 10, 2013 decision, and
approved and adopted said decision as order of the court. Appellee is Stark County Job
and Family Services (“SCJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Father is the biological father of D.T. (dob 10/17/03). D.T.’s mother,
Brooke Beutler (“Mother”), is deceased, having overdosed on heroin. On July 26, 2013,
following Mother’s death, SCJFS filed a complaint alleging the child was dependent as
he had been present in the home when Mother overdosed. Father, at the time of the
filing of the complaint, was incarcerated in the Stark County Jail awaiting transport to
state prison after being convicted of domestic violence and intimidation of a witness.
{¶3} The trial court conducted a shelter care hearing on July 29, 2013. Father
was transported from jail for the hearing and stipulated to a finding of probable cause for
the placement of D.T. in the emergency temporary custody of SCJFS.
{¶4} The trial court conducted an adjudicatory hearing on October 8, 2013, and
found D.T. to be dependent. Father was incarcerated in state prison at the time and
was not present for the hearing. Charity Armstead, the assessment worker assigned to
the case, testified SCJFS became involved with the family following Mother’s death as
Father was incarcerated. D.T. was with a family, but they could not continue to care for
him. Neighbors of Mother and D.T., Steve and Agnes Green, ultimately agreed to let
D.T. live with them. Armstead noted Father has a history with SCJFS. Father had
Stark County, Case No. 2013CA00252 3
fathered a number of children, but did not have custody of any of them. He never
complied with his case plans or completed any services in these matters. Father has an
extensive criminal history. He was currently serving a sentence of more than six
months.
{¶5} Following the Armstead’s testimony, the trial court found D.T. dependent,
and immediately proceeded to disposition.
{¶6} Stacy Senff, the on-going case worker assigned to the case, testified D.T.
has been living with Steve and Agnes Green since July/August, 2013, and had know the
couple for several years. Because the Greens were neighbors of Mother and D.T., D.T.
did not have to change his elementary school. The Greens facilitated grief counseling
for D.T. prior to SCJFS involvement. D.T. regularly meets with a school therapist. Senff
commented D.T. is a very nice little boy and is well adjusted because of the Green’s
help. The child has formed an attachment to the couple. D.T. told Senff he wants to
stay with the Greens and is happy with them. The Greens signed a proposed legal
custody statement of understanding which was filed with the trial court on September
19, 2013. The Green’s home is clean and appropriate. Senff opined it was in D.T.’s
best interest to change legal custody to Steve and Agnes Green. Senff had had no
contact whatsoever from any of Father’s relatives.
{¶7} The magistrate issued her decision on October 10, 2013. The magistrate
recommended legal custody of D.T. be granted to Steve and Agnes Green. Father filed
timely objections to the magistrate’s decision, which the trial court overruled via
Judgment Entry filed November 27, 2013, following an oral hearing.
{¶8} It is from this judgment entry Father appeals, raising as error:
Stark County, Case No. 2013CA00252 4
{¶9} "I. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO
CHANGE LEGAL CUSTODY AS SCDJFS FAILED TO ENGAGE IN REASONABLE
EFFORTS TO REUNIFY.
{¶10} "II. THE TRIAL COURT ERRED IN FINDING IT WAS IN D.T.'S BEST
INTEREST TO CHANGE LEGAL CUSTODY TO CUSTODIANS."
I
{¶11} In his first assignment of error, Father contends the trial court erred in
granting SCJFS’s motion for change of legal custody as the agency failed to make
reasonable efforts to reunify.
{¶12} R.C. 2151.419(A)(1) provides:
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 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
Stark County, Case No. 2013CA00252 5
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. (Emphasis added).
{¶13} Pursuant to the above statute, the agency which has removed the child
must have made reasonable efforts to prevent the removal of the child from the child's
home, eliminate the continued removal of the child from the home, or make it possible
for the child to return home safely. See In re Hess, Stark App.Nos.2007CA00262,
2007CA00261, 2008–Ohio–1920, ¶ 46. However, the statute provides an exception to
the reasonable efforts requirement during emergency situations.
{¶14} The trial court found, “The reasonable efforts focused on finding a home
for youth in light of circumstances of Mother’s death and Father’s incarceration, so child
already ‘removed’ from his home. Notwithstanding, Father has a history of violence and
SCJFS would want to see him complete certain services prior to any custody to him
being considered.” October 10, 2013 Decision.
{¶15} Appellant argues the trial court’s statement is counterintuitive as SCJFS
could not have made reasonable efforts as the agency wanted him to participate in
services before it would consider custody. Appellant explains he could not participate in
services due to his incarceration.
{¶16} In considering the reasonableness of SCJFS's efforts to maintain the child
in the home in a case such as this, we must bear in mind that the agency was trying to
Stark County, Case No. 2013CA00252 6
protect D.T. and address the immediate concerns resulting from Mother’s death,
Father’s incarceration, and the inability of the original family caring for him to continue to
do so. SCJFS and the trial court focused on the child. Stacy Senff, the on-going
caseworker, testified Father had a history with the agency, having had his parental
rights terminated with respect to other children. Senff noted Father had never been
compliant with services on previous case plans. She added a parent’s past history is
usually a good indicator of what the person will do in the future.
{¶17} We find the trial court did not err in finding SCJFS made reasonable
efforts in this case.
{¶18} Father’s first assignment of error is overruled.
II
{¶19} In his second assignment of error, Father argues the trial court erred in
finding the change of legal custody was in D.T.’s best interest. We disagree.
{¶20} The statutory scheme regarding an award of legal custody does not
include a specific test or set of criteria, and a trial court must base its decision on the
best interest of the child. In re N.P., 9th Dist. No. 21707, 2004-Ohio-110, at ¶ 23. The
factors listed in R.C. 2151.414 may provide some guidance in determining whether a
grant of legal custody is in the best interest of the children. In re T.A., 9th Dist. No.
22954, 2006-Ohio-4468, at ¶ 17.
{¶21} In In re Fulton, 12th Dist. No. CA2002-09-236, 2003-Ohio-5984, at ¶ 11,
the Twelfth District Court of Appeals addressed a legal custody determination between
parents in a neglect situation. The Fulton Court indicated, when determining the issue of
legal custody, courts should consider the totality of the circumstances, including
Stark County, Case No. 2013CA00252 7
relevant factors of R.C. 3109.04(F). The Fulton Court, however, cautioned there is no
statutory mandate those factors must be expressly considered and balanced together
before fashioning an award of custody. Fulton, 2003-Ohio-5984, at ¶ 11. Accordingly, in
legal custody cases, trial courts should consider all factors relevant to the best interest
of the child.
{¶22} The testimony established D.T. has known the Greens for approximately
seven years. He is comfortable with the couple and expressed a desire to remain with
them. The Greens have been proactive in helping D.T. deal with the emotional trauma
of losing his mother, providing him with grief counseling and on-going therapy. D.T. did
not have to change schools and would remain with his friends. Despite the
circumstances, D.T. was overall doing well and adjusting to life with the Greens.
{¶23} Based upon the foregoing, we find the trial court did not err in finding a
change of legal custody was in D.T.’s best interest.
{¶24} Father’s second assignment of error is overruled.
{¶25} The judgment of the Stark County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Wise, J. concur