In re S.D. , 2013 Ohio 5752 ( 2013 )

[Cite as In re S.D., 2013-Ohio-5752.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. W. Scott Gwin, P.J.
S.D. AND C.D., Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
MINOR CHILDREN
Case Nos. 2013CA0081 and
2013CA0082
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division
Case Nos. 2012JCV0066 and
2011JCV0238
JUDGMENT: 2013CA0081 - Affirmed
2013CA0082 - Affirmed
DATE OF JUDGMENT ENTRY: December 23, 2013
APPEARANCES:
For Appellee For Appellant
LISA A. LOUY REGINA M. FRANK
Stark County DJFS Stark County Public Defender
300 Market Avenue North 201 Cleveland Ave S.W., Suite 104
Canton, Ohio 44708 Canton, Ohio 44702
Stark County, Case Nos. 2013CA0081 and 2013CA0082 2
Hoffman, J.
{¶1} In Stark App. No. 2013 CA 0082, Appellant Candice Daniels (“Mother”)
appeals the April 12, 2013 Findings of Fact and Conclusions of Law entered by the
Stark County Court of Common Pleas, Family Court Division, which granted legal
custody of her minor child, C.D., to Michelle Riggins upon motion of Appellee Stark
County Department of Job and Family Services (“SCDJFS”). In Stark App. No. 2013
CA 0081, Mother appeals the same entry as it relates to her minor child, S.D.
STATEMENT OF THE FACTS AND CASE
{¶2} Mother is the biological mother of C.D. (dob 2/14/11) and S.D. (dob
1/12/12). Mother has three older children, who are not in her custody. The biological
fathers of the children are not parties to this appeal.
{¶3} On February 17, 2011, SCDJFS filed a complaint in the Stark County
Court of Common Pleas, Family Court Division, alleging C.D. was a dependent and
neglected child. The complaint was based upon the fact Mother had a history of mental
health concerns as well as a history of psychiatric hospitalizations, dating back to 2004.
Following a shelter care hearing, the trial court placed C.D. in the emergency temporary
custody of SCDJFS. The trial court appointed a guardian ad litem.
{¶4} The trial court conducted an adjudicatory hearing on May 10, 2011, at
which Mother stipulated to a finding of dependency. The trial court found C.D. to be
dependent and ordered he be placed in the temporary custody of SCDJFS. Prior to the
hearing, C.D. had been moved from a foster care placement into the home of Michelle
Riggins, who is somehow related to Mother.
Stark County, Case Nos. 2013CA0081 and 2013CA0082 3
{¶5} The trial court conducted a semi-annual review hearing on August 12,
2011. Mother advised the trial court she was pregnant again. The trial court approved
and adopted Mother’s case plan and maintained the status quo. On December 1, 2011,
the parties agreed temporary custody of C.D. should be granted to Michelle Riggins
with protective supervision through August 17, 2012.
{¶6} Mother gave birth to S.D. on January 12, 2012. The following day,
January 13, 2012, SCDJFS filed a complaint alleging S.D. was a dependent and
neglected child, and requesting an order of protective supervision. Following an
emergency shelter care hearing, the trial court placed S.D. in the emergency temporary
custody of SCDJFS. S.D. was placed in the home of Michelle Riggins with C.D. The
trial court placed Mother in the Intensive Parent Child Intervention Program (IPCI), a
pilot program conducted with Northeast Ohio Behavioral Health.
{¶7} Following a review hearing relative to the IPCI program on July 13, 2012,
the trial court ordered Mother to seek alternative mental health treatment. On July 17,
2012, SCDJFS filed a motion to extend temporary custody with Riggins and extend
protective supervision. The extension was sought because SCDJFS wanted to see
more progress with Mother’s mental health issues.
{¶8} Mother filed a motion for return of legal custody or, in the alternative,
motion for Goodwill home-based services and an extension of custody with respect to
S.D. on December 10, 2012. On the same day, the trial court conducted a second IPCI
review hearing. The trial court scheduled a hearing on Mother’s motion. On December
13, 2012, SCDJFS filed a motion to change legal custody of C.D. and S.D. Mother
subsequently filed a second motion for home-based services.
Stark County, Case Nos. 2013CA0081 and 2013CA0082 4
{¶9} On January 4, 2013, Huey L. Daniels, Jr., and Patricia Daniels, the
children’s maternal grandparents (“Maternal Grandparents”), filed a motion to intervene
and a motion requesting they be given legal custody. Maternal Grandparents
subsequently dismissed their motions. Maternal Grandparents had legal custody of
Mother’s three older children.
{¶10} The trial court conducted a hearing on SCDJFS’ motion to change legal
custody as well as all remaining motions on April 10, 2013.
{¶11} Crystal Brown, the on-going family service worker assigned to the case,
testified SCDJFS was initially concerned with Mother’s untreated mental health issues
as well as the fact Mother’s other three children had been placed in the legal custody of
Maternal Grandparents. Pursuant to her case plan, Mother was required to complete a
parenting evaluation at Northeast Ohio Behavioral Health and follow all
recommendations; complete a drug and alcohol assessment at Quest; undergo a
psychiatric evaluation; and obtain stable housing and employment. Based upon the
results of the parenting evaluation, it was recommended Mother participate in Goodwill
Parenting, the Substance Abusing Mentally Ill Clients (“SAMI”) program, and the IPCI
program.
{¶12} Brown discussed Mother’s mental health issues. Brown indicated Mother
has a history of untreated mental health dating back to 1997. Although Mother had
been hospitalized numerous times, had undergone mental health evaluations, been
diagnosed, and placed on treatment plans, Mother denied any mental health concerns.
Brown acknowledged Mother was receiving some treatment, but could not confirm
whether such was appropriate. Brown personally witnessed behavior by Mother which
Stark County, Case Nos. 2013CA0081 and 2013CA0082 5
she considered to be indicative of continued mental health issues. Brown gave
examples of Mother becoming very emotional, very erratic, and very loud during
visitation when any worker gave her instruction or direction regarding her treatment of
the children. Mother became emotionally reactive and the workers were unable to calm
her. Mother experienced periods of stability, but subsequently she would become
erratic and explosive. Brown expressed concerns about Mother’s ability to control her
emotions when she was parenting with no supervision. Mother’s visits remained
supervised and on site at the agency throughout the pendency of the matter.
{¶13} Brown also expressed concerns about Mother’s ability to adjust her
parenting as the children’s needs - physical, emotional, and educational - changed.
Brown added at no point during the case did any of the service providers feel Mother
was ready to have unsupervised visitation. The underlying concern from all service
providers was Mother’s denial of any mental health issues. Maternal Grandmother had
never seen the children. Maternal Grandfather had visited the children less than half a
dozen times.
{¶14} Dr. Aimee Thomas, a licensed psychologist with Northeast Ohio
Behavioral Health, testified she conducted an evaluation of Mother on May 17, 2011.
Mother completed a personality inventory. Mother’s responses suggested she has
significant psychological maladjustment, which relates to risk taking behavior, impulsive
behaviors, irresponsible behaviors, and problems with alcohol abuse or dependence.
Thomas indicated these behaviors raised concerns about Mother’s lifestyle choices.
The results of the MMPI-2, Minnesota Multiphasic Personality Inventory, revealed
Mother has many features of anti-social personality disorder. Mother refused to sign
Stark County, Case Nos. 2013CA0081 and 2013CA0082 6
release of information forms which prevented Thomas from obtaining information
relative to her mental health history.
{¶15} During her evaluations with Thomas, Mother admitted to a history of
involvement in violent relationships. Mother did not have a stable source of income,
relying on friends, selling personal belongings, or collecting cans as a means of
financial support. Mother admitted to a problem with alcohol. Mother related stories to
Thomas which suggested Mother was experiencing some paranoia and some
delusional thinking. Thomas described Mother as emotionally reactive, overreacting to
benign situations as she misinterpreted what was occurring. Thomas questioned
Mother’s ability to maintain self-control and not become abusive when dealing with the
children. Thomas diagnosed Mother with anti-social personality disorder, and offered
provisional diagnoses of schizophrenia paranoia type, psychotic disorder not otherwise
specified, and paranoid personality disorder.
{¶16} Susan Deibel, a counselor with Northeast Ohio Behavior Health, testified
she facilitates the IPCI program. The primary goal of the program is to teach the parent
the developmental and educational steps in a child’s life, and how to provide a nurturing
environment in which a child could thrive. Deibel noted it was clear to her Mother had
some mental health issues. Deibel stated Mother’s mental health issues impacted her
ability to benefit from the program. Deibel acknowledged how well Mother participated
and interacted with the children. However, she added the appropriateness of Mother’s
interaction did not override her concern regarding Mother’s mental health. Deibel
expressed concerns for the safety of the children if Mother was unsupervised.
Stark County, Case Nos. 2013CA0081 and 2013CA0082 7
{¶17} Dwaine Hemphill, the guardian ad litem for the children, explained
Maternal Grandparents had filed for legal custody of Mother’s second and third child
after Mother suffered from a major psychotic break. Maternal Grandparents had legal
custody over Mother’s oldest child due to a similar situation. Maternal Grandparents
reported to Hemphill Mother has had chronic, long term mental illness. Mother had
periods of stability, but those periods were punctuated by psychotic breaks. Hemphill
had concerns regarding Mother’s refusal to provide information regarding her mental
health history and hospitalizations. When Hemphill was finally able to obtain Mother’s
records, he questioned her, but she claimed the records were false. With regard to
Maternal Grandparents, Hemphill noted they did not want anything to do with the
children until recently. Maternal Grandparents are strangers to the children. Hemphill
believes they are motivated by their dislike for Michelle Riggins. Hemphill
recommended a change of legal custody, noting it was in the children’s best interest.
He added the children are thriving in Riggins’ care, and it is a loving and bonded home
situation.
{¶18} Maternal Grandparents testified on Mother’s behalf. Both admitted they
did not initially want placement, explaining they felt they could not handle the children
for a variety of reasons: the children being babies, Maternal Grandmother’s work
schedule, Maternal Grandfather’s inability to handle the infants, and the busyness of
their lives with the three older siblings. They acknowledged they had had little contact
with the children since their births.
{¶19} Via Findings of Fact and Conclusions of Law, the trial court granted legal
custody of C.D. and S.D. to Michelle Riggins.
Stark County, Case Nos. 2013CA0081 and 2013CA0082 8
{¶20} It is from this judgment entry Mother filed her Notices of Appeal.
{¶21} In Stark App. No. 2013 CA 0081, Mother assigns the following as error:
{¶22} “I. THE TRIAL COURT ERRED IN GRANTING THE CHANGE OF LEGAL
CUSTODY FILED BY SCDJFS.”
{¶23} “II. THE TRIAL COURT ERRED BY DENYING MOTHER’S CHANGE OF
LEGAL CUSTODY MOTION.”
{¶24} “III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION FOR A FIRST SIX-MONTH EXTENSION.”
{¶25} In Stark App. No. 2013 CA 0082, Mother raises the following assignments
of error:
{¶26} “I. THE TRIAL COURT ERRED IN GRANTING THE CHANGE OF LEGAL
CUSTODY FILED BY SCDJFS.
{¶27} “II. THE TRIAL COURT ERRED BY DENYING MOTHER’S CHANGE OF
LEGAL CUSTODY MOTION.”
Stark App. No. 2013 CA 0081
I, II
Stark App. No. 2013 CA 0082
I, II
{¶28} Because Mother’s first and second assignments of error in both cases are
related and identical, we shall address them together. In her first assignments of error,
Mother argues the trial court erred in granting a change of legal custody. Mother
submits she and her children share loving parent-child bonds and the trial court erred in
Stark County, Case Nos. 2013CA0081 and 2013CA0082 9
severing those relationships. In her second assignments of error, Mother contends the
trial court erred in denying her motion for change of legal custody.
{¶29} We note legal custody does not divest parents of residual parental rights,
privileges, and responsibilities. In re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843
N.E.2d 1188 at ¶ 17. Accordingly, Mother may petition the trial court in the future for a
modification of custody. Id.{¶30} R.C. 2151.353(A) provides, in pertinent part:
If a child is adjudicated an abused, neglected, or dependent child,
the court may make any of the following orders of disposition:
***
Award legal custody of the child to either parent or to any other
person who, prior to the dispositional hearing, files a motion requesting
legal custody of the child or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any party to
the proceedings.
{¶31} A trial court “must have wide latitude in considering all the evidence” and a
custody decision will not be reversed absent an abuse of discretion. Davis v. Flickinger,
77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller, 37 Ohio St.3d 71, 74,
523 N.E.2d 846 (1988). 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 finder of fact could base its judgment.
Cross Truck Equip. Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 1982 WL
2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent, credible
Stark County, Case Nos. 2013CA0081 and 2013CA0082 10
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), syllabus.
{¶32} 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 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).
{¶33} 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.
{¶34} 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;
Stark County, Case Nos. 2013CA0081 and 2013CA0082 11
(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;
(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.
{¶35} As set forth in our statement of the facts and case, Mother’s mental health
issues and her denial of the same remained a major concern to all service providers.
Mother visited with the children on a weekly basis. Crystal Brown, the ongoing
caseworker, detailed incidents during visitation when Mother became very emotional,
very erratic, and very loud when any worker gave her instruction or direction regarding
her treatment of the children. Mother would become emotionally reactive and the
workers were unable to calm her. Brown expressed concerns about Mother’s ability to
control her emotions when she was parenting with no supervision. Mother’s visits
remained supervised and on site at the agency throughout the pendency of the matter.
{¶36} A true picture of Mother’s mental health history was never discovered as
Mother refused to sign release of information forms. The results of testing indicated
Stark County, Case Nos. 2013CA0081 and 2013CA0082 12
Mother had significant maladjustment, engaged in risk taking behaviors, was impulsive
and irresponsible, had problems with alcohol dependence, and made poor lifestyle
choices. Dr. Thomas diagnosed Mother with anti-social personality disorder as well as
provisional diagnoses of schizophrenia paranoia type, psychotic disorder not otherwise
specified, and paranoid personality disorder. Dr. Thomas explained Mother was likely to
subject herself and the children to violent or high risk situations.
{¶37} The testimony also revealed the children were thriving in their placement.
They were loved and were bonded with Michelle Riggins. Based upon the foregoing
and the entire record in this matter, we find the trial court’s decision is supported by a
preponderance of the evidence, and a change of legal custody was in the best interest
of the children.
{¶38} With respect to Mother’s second assignments of error, we find the trial
court did not abuse its discretion in denying Mother’s motion for a change of legal
custody to Maternal Grandparents. When Maternal Grandparents were initially
approached about caring for C.D. and then subsequently S.D., they refused to accept
placement. They themselves expressed concerns regarding their ability to care for two
infants in addition to Mother’s three older children. Also, Maternal Grandparents would
not acknowledge the severity of Mother’s mental health issues. Further, Maternal
Grandparents repeatedly violated the trial court’s prior orders with regard to Mother’s
three older children. They allowed Mother to take the children for unsupervised,
overnight visits although such were not permitted.
{¶39} Mother’s first and second assignments of error are overruled.
Stark County, Case Nos. 2013CA0081 and 2013CA0082 13
Stark App. No. 2013 CA 0081
III
{¶40} In her third assignment of error, Mother asserts the trial court abused its
discretion in denying her request for an extension of temporary custody. Mother
contends she was diligently working on her case plan and had completed many of the
goals and could continue to progress towards reunification within the six-month time
period. We disagree.
{¶41} A trial court's decision to grant or deny an extension of temporary custody
is a discretionary one. See, R.C. 2151.415(D)(1) and (2). Pursuant to R.C.
2151.415(D)(1), a trial court can extend temporary custody for six months only if it finds,
by clear and convincing evidence, (1) that such an extension is in the best interests of
the child, (2) that there has been significant progress on the case plan, and (3) that
there is reasonable cause to believe that the child will be reunified with a parent or
otherwise permanently placed within the period of extension. See, In re McNab, 5th
Dist. Nos.2007 AP 11 0074, 2007 AP 11 0075, 2008–Ohio–1638.
{¶42} Mother’s assertion an extension of time would allow her to make
continued progress on the case plan is belied by Mother’s refusal to acknowledge her
mental health issues. Until she does so, the services she does engage in are not truly
effective.
{¶43} We find the evidence before the trial court supports the conclusion an
extension of temporary custody was not in the children’s best interests, but, rather, their
interests were best served by award of legal custody to Michelle Riggins.
{¶44} Mother’s third assignment of error is overruled.
Stark County, Case Nos. 2013CA0081 and 2013CA0082 14
{¶45} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
Stark County, Case Nos. 2013CA0081 and 2013CA0082 15
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
S.D., :
:
MINOR CHILD :
:
:
: JUDGMENT ENTRY
:
: Case No. 2013CA0081
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Family Court Division, is affirmed. Costs assessed to
Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
C.D., :
:
MINOR CHILD :
:
:
: JUDGMENT ENTRY
:
: Case No. 2013CA0082
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Family Court Division, is affirmed. Costs assessed to
Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY