In re A.D.C.L.

[Cite as In re A.D.C.L., 2016-Ohio-1415.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
IN THE MATTER OF: A.D.C.L. and :
K.L. :
: Appellate Case Nos. 2015-CA-19 and
: 2015-CA-21
:
: Trial Court Case Nos. 21430015 and
: 21430016
:
: (Domestic Relations Appeal)
:
...........
OPINION
Rendered on the 1st day of April, 2016.
...........
RHONDA K. MCKINNISS, Atty. Reg. No. 0069035, 631 Wagner Avenue, Greenville, Ohio
45331
Attorney for Appellee-Darke County Children Services
JAY A. ADAMS, Atty. Reg. No. 0072135, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Appellant-A.W.
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, 400 Liberty
Tower, Dayton, Ohio 45402
Attorney for Appellant-J.L.
.............
WELBAUM, J.
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{¶ 1} In these consolidated appeals, the biological mother, A.W., and the biological
father, J.L., appeal from the termination of parental rights to their minor children, A.D.C.L.
and K.L., and the grant of permanent custody to Darke County Children Services
(“DCCS”). 1 Father presents two assignments of error: (1) that the decision that he
abandoned his children is not supported by clear and convincing evidence; and (2) that
the grant of permanent custody is not supported by clear and convincing evidence.
Mother argues that the trial court erred in refusing to let her surrender her parental rights.
{¶ 2} We conclude that the trial court did not err in granting permanent custody to
DCCS, as the court’s findings as to abandonment and the best interests of the children
are supported by sufficient evidence to meet the clear and convincing standard that is
required in permanent custody cases.
{¶ 3} We further conclude that the trial court did not err in connection with Mother’s
desire to surrender her parental rights. The statute urged at the trial court level was R.C.
5103.15, which applies to private transfers of custody, not neglect and dependency
proceedings, which are adversarial and are governed by different statutes. Mother also
did not have the ability to surrender custody under R.C. 5103.15, because DCCS had
already been granted custody. The trial court, therefore, properly proceeded in
compliance with the requirements in R.C. 2151.414. In addition, even if Mother had
made an admission (which she did not), the trial court was not required to accept or
discredit it; such an admission would have been but one more article of testimonial
1 For convenience, we will refer to the parents as “Father” and “Mother.” We will also
shorten A.D.C.L.’s initials to “A.L.”
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evidence for the court to consider in resolving the best-interest question. Accordingly,
the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} In June 2014, DCCS filed a complaint in the Darke County Juvenile Court,
alleging that A.L. was an abused child because Father had shot him in the stomach with
a BB gun on June 5, 2014. The complaint further alleged that K.L. was dependent
because she lacked adequate personal care due to the faults or habits or her parents,
and also lived in a house where a parent had abused a sibling. The complaint did not
allege that Father had intentionally shot A.L. According to the complaint, Father was
moving the gun, was unaware it was loaded, and the gun discharged. The child was
air-lifted to Children’s Medical Hospital, where the BB was found to be lodged in the
pancreas, and could not be removed. At the time of the incident, A.L. was three years
old, and K.L. was four years old.
{¶ 5} After the complaint was filed, the children were placed with Mother.
However, on July 2, 2014, Mother informed DCCS that she and Father had allowed
alcohol to cause them to lose their means to support the children, and that they could not
provide for the children. The parents asked DCCS to pick up the children, which was
done on July 3, 2014. That day, DCCS asked the trial court to grant the agency
temporary custody ex parte, and the court agreed.
{¶ 6} After a hearing, at which the parents consented to temporary custody, DCCS
was granted temporary custody and an adjudication hearing was set for September 2014.
In September 2014, DCCS filed a case plan outlining goals, including visitation once a
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week at the agency for two hours. The visitation was to be supervised, due to the
parents’ limited parenting abilities and the volatile relationship of the parents with each
other. The case plan noted that the parents had a history of mental health issues, of not
complying with their medication, and of domestic violence with each other.
{¶ 7} Ultimately, the adjudication hearing was held on October 2, 2014, at which
time Father appeared and admitted the allegations in the complaint. A.L. was found to
be an abused child, and K.L. was found dependent. Mother did not appear for the
hearing, and services were, therefore, not ordered for her at this time. Father was
ordered to undergo a substance abuse assessment and to follow all recommendations;
to maintain clean and suitable independent housing, with working utilities; to sign
releases; to submit to random drug screens; to remain medication compliant; to complete
a mental health assessment and comply with all recommendations; to attend parenting
classes; to obtain and maintain a valid driver’s license; to resolve all legal matters pending
in other courts; and to maintain a source of income.
{¶ 8} In November 2014, the children were moved out of the county because they
could not be maintained in their current foster home. Visitation was changed to once per
month, at the paternal grandparents’ home. At the time, it was noted there were no
transportation obstacles, and that the foster parents and the grandparents would provide
transportation.
{¶ 9} In December 2014, Mother voluntarily agreed to complete case plan
services. She was given requirements similar to Father’s, including obtaining a
psychological assessment, a substance abuse assessment, an anger management
assessment, and a parenting skills assessment, as well as following all recommendations
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from the assessments. Mother was also to obtain and maintain suitable housing, to
receive individual counseling and medication services, to undergo a budgeting skills
program, and to obtain and maintain a source of income.
{¶ 10} The last time either parent visited the children was in January 2015.
Mother, thereafter, did not stay in contact with the DCCS caseworker, nor did she
schedule any visits or ask about the children. Father was permitted to have visits, but
he did not follow up with setting them up.
{¶ 11} In late January 2015, Father tested positive for Benzodiazepines. He was
also unsuccessful with his case plan. Although he completed a substance abuse
assessment and attended a few groups, he did not complete the requirements. He also
did not undergo a mental health assessment and was not compliant with his medication.
Moreover, although Father had housing, it was extremely filthy and lacked heat and
running water. The caseworker discussed the housing issues with Father numerous
times, and he agreed the house was not suitable for children. The caseworker was last
in Father’s house in April 2015, and the conditions remained the same. She attempted
to visit after that time, but Father was not home.
{¶ 12} The caseworker had sporadic contact with Mother between December 2014
and June 22, 2015. Mother did not complete the requirements on her case plan, and
tested positive for marijuana in April 2015. In June 2015, neither parent attended the
semi-annual case review.
{¶ 13} On June 8, 2015, DCCS filed a motion in the trial court, asking the court to
award the agency permanent custody of the children, based on the parents’ failure to visit
or maintain contact with the children for more than 90 days. In July 2015, the Guardian
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ad Litem (“GAL”) filed a report recommending that the court grant permanent custody to
DCCS. The GAL noted that the parents had shown no interest in the children and had
not completed their case plan. The children were doing very well in their foster
placement, and the foster parents were interested in adopting them.
{¶ 14} On July 30, 2015, the trial court held a permanent custody hearing. The
testimony at the hearing was as outlined above. In addition, the foster father testified
that when the children came into his care, they could not communicate and were similar
to infants. After being in the care of the foster parents, the children had almost caught
up to their age groups. The testimony also indicated that no relatives of the children
were willing to accept custody.
{¶ 15} According to the evidence, in addition to the problems caused by the
gunshot wound, A.L. had Duchenne muscular dystrophy and had no growth hormones.
He also had a kidney problem, which was corrected shortly before the custody hearing.
At the hearing, Father admitted that when he had visited his children, he rarely interacted
with them. He also told the caseworker prior to the hearing that he did not want the
children to come back into his custody. In addition, his parental rights had previously
been terminated with respect to another child. In that case, he did not appear at the final
hearing.
{¶ 16} Although Father claimed at the hearing that a number of the problems with
his house had been rectified since April 2015, he stated that he never let the caseworker
know. He also said that he had not seen the children because he had been involved in
performing community service for common pleas court and doing recovery for his
probation officer. Father stated that he had mental issues and could not do two things
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at once. At the time of the hearing, he had recently had five unexcused absences in his
drug and alcohol classes, and had not contacted his probation officer since the prior
month, even though he was supposed to meet with her twice a week. In addition, Father
said he had not set up a mental health assessment because he was overwhelmed.
{¶ 17} At the beginning of the permanent custody hearing, Mother’s attorney
indicated that Mother would like to voluntarily surrender her rights to the children.
However, DCCS would not agree, and the court took the matter under advisement.
During her testimony, Mother stated that she was seven to eight months pregnant (not
with Father’s child).
{¶ 18} After hearing the evidence, the trial court concluded that the parents had
abandoned the children and that a grant of permanent custody to DCCS was in the
children’s best interests. The court further concluded that the statute which permitted
voluntary surrender (R.C. 5103.15) required the agreement of both parties, and the court
could not compel DCCS to agree. Both Mother and Father appealed the trial court’s
decision, and the appeals were consolidated.
II. Clear and Convincing Evidence of Abandonment
{¶ 19} Father’s First Assignment of Error states that:
The Trial Court’s Decision Awarding Permanent Custody on the
Ground that Mr. L.* * * Had Abandoned His Children Was Not Supported by
Clear and Convincing Evidence.
{¶ 20} Under this assignment of error, Father contends that R.C. 2151.011(C)
creates only a presumption of abandonment, and that he rebutted the presumption by
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other factors, including showing that he had cleaned up his trailer, that he was actively
participating in group therapy sessions, that he had remained drug free, and that he held
a bond with his children.
{¶ 21} As pertinent here, R.C. 2151.414(B)(1) states that:
* * * [T]he court 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:
***
(b) The child is abandoned.
{¶ 22} Regarding abandonment, R.C. 2151.011(C) provides that:
For the purposes of this chapter, a child shall be presumed
abandoned when the parents of the child have failed to visit or maintain
contact with the child for more than ninety days, regardless of whether the
parents resume contact with the child after that period of ninety days.
{¶ 23} Some courts have indicated that “R.C. 2151.011(C) does not contain a
requirement of any particular ‘intent’ on behalf of the parent; rather, the provision defines
‘abandonment’ solely in terms of the time between contacts.” In re D.P., 10th Dist.
Franklin No. 06AP-780, 2007-Ohio-1703, ¶ 7. We have held, however, that the
presumption is rebuttable. See, e.g., In re M.J., 2d Dist. Greene No. 2014-CA-32, 2015-
Ohio-127, ¶ 33, citing In re Custody of C.E., 2d Dist. Champaign No. 2005-CA-11, 2005-
Ohio-5913. (Other citations omitted.)
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{¶ 24} In C.E., we found the presumption rebutted where a mother left the state
and avoided contact with her children, in order to prevent her ex-husband, who had
committed domestic violence, from finding her. C.E. at ¶ 15. We also stressed that no
evidence had been presented contradicting the mother’s testimony about why she failed
to contact her children. Id.{¶ 25} The applicable standard of proof in permanent custody cases is clear and
convincing evidence, which has been defined as “that measure or degree of proof which
is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), syllabus.
“ ‘An appellate court will not reverse a trial court's determination concerning parental
rights and child custody unless the determination is not supported by sufficient evidence
to meet the clear and convincing standard of proof.’ ” In re Rishforth, 2d Dist.
Montgomery No. 20915, 2005-Ohio-5007, ¶ 11, quoting In re Dylan C., 121 Ohio App.3d
115, 121, 699 N.E.2d 107 (6th Dist. 1997).
{¶ 26} In the case before us, neither Mother nor Father rebutted the presumption
by giving any reasonable explanation for their failure to visit or contact their children.
Mother stated that she did not see the children because she did not have her own home
and had limited transportation. However, the visitation was not scheduled in Mother’s
home, and Mother made absolutely no attempt to request transportation assistance from
DCCS.
{¶ 27} Father’s “explanation” for his failure to visit or contact his children is that he
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had been involved with community service, in doing recovery for his probation officer, and
in trying to comply with the plan the DCCS had established. However, Father never told
his caseworker that he felt overwhelmed. Even if he had felt overwhelmed, visitation
once a month would not have required much effort on his part. Instead, Father went
more than ten months (from January 17, 2015 to the date of the October 30, 2015
permanent custody hearing) without seeing or even attempting to contact his children.
He also told the caseworker that he did not want the children to come back into his
custody. The remaining matters Father mentions are more pertinent to the best interests
analysis and will be considered during that discussion.
{¶ 28} Under the circumstances, there was sufficient evidence to meet the clear
and convincing standard in connection with the finding that Father had abandoned his
children. We also stress that we defer to trial courts on credibility issues, because they
are in the best position to see witnesses and judge their credibility. See M.J., 2d Dist.
Greene No. 2014-CA-32, 2015-Ohio-127, at ¶ 35, and In re J.D., 2d Dist. Montgomery
No. 26588, 2015-Ohio-4114, ¶ 56.
{¶ 29} Accordingly, Father’s First Assignment of Error is without merit and is
overruled.
III. Whether Permanent Custody Is in the Children’s Best Interests
{¶ 30} Father’s Second Assignment of Error states that:
The Trial Court Erred in Awarding Permanent Custody Because
There Was Not Clear and Convincing Evidence that Granting Permanent
Custody Was in the Best Interest of the Child.
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{¶ 31} Under this assignment of error, Father contends that the record lacks clear
and convincing evidence that a grant of permanent custody was in the children’s best
interest. In this regard, he focuses on his bond with his children and the fact that visits
had gone well; the lack of evidence about the children’s wishes; the fact that the children
had only been in DCCS’s custody for 13 months; and the fact that he was substantially
complying with his case plan.
{¶ 32} As was noted, R.C. 2151.414(B)(1) provides that the trial court may grant
an agency permanent custody if children have been abandoned and the grant of custody
is in the children’s best interest. R.C. 2151.414(D) contains various factors to be
considered in deciding a child's best interest. We have previously held that “while R.C.
2151.414(D) requires the court to ‘consider all relevant factors’ as set forth in this
subsection, it does not require the court to list those factors or conditions it found
applicable before making its determination that the permanent custody is in that child's
best interest.” (Citation omitted.) In re A.J.S., 2d Dist. Miami No. 2007-CA-2, 2007-
Ohio-3433, ¶ 27.
{¶ 33} The trial court stated that it had considered all the factors in R.C.
2151.414(D). In its decision, the court placed particular reliance on the children’s
progress in foster care while they had no contact with the parents; the children’s need for
a legally secure placement, which could be achieved through a grant of custody to the
agency; and the fact that the children had been abandoned. These are all appropriate
factors under R.C. 2151.414(D).
{¶ 34} Furthermore, Father’s contentions are not supported by the record.
Although Father testified that he loved his children, there was scant evidence of a bond.
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The children were very young when they were removed from the home, and by Father’s
own admission, he rarely interacted with them. During the infrequent visitations, the
children played with each other, and Mother and Father primarily watched them play. At
the last visitation in January 2015, Father had just been released from jail. He came to
this visitation in his pajamas, slept, and did not interact with the children.
{¶ 35} The children were also very young, and there is no indication in the record
that they reacted positively or were happy to see their parents during visitation; to the
contrary, they were instead described as being very bonded with their foster parents and
were, in the words of the caseworker, “always excited to see [the foster parents], be
around them, play with them.” October 30, 2015 Transcript of Proceedings, p. 24.
{¶ 36} Moreover, while the children had been in DCCS’s custody for 13 months,
Father failed to see the children during at least 10 of those months. Consequently, the
length of time in custody is an insignificant point; more important is the fact that for most
of the 13 months, Father made no attempt to visit or contact the children.
{¶ 37} Finally, Father did not substantially comply with his case plan. As an initial
matter, he failed to secure clean and suitable housing. During the last visit of the
caseworker in April 2015, Father’s home was filthy and lacked running water and heat.
Although Father claims that he subsequently cleaned up the house and had utilities, he
never let the caseworker know, and never asked her to return to his home to see his
progress. Furthermore, the trial court was not required to believe Father. As was noted,
matters of credibility and the weight to be given witness testimony are primarily the
province of the trier of fact. In re A.J.S., 2d Dist. Miami No. 2007-CA-2, 2007-Ohio-3433,
at ¶ 22.
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{¶ 38} Father also had never scheduled a mental assessment, had made minimal
progress in substance abuse treatment (in the period just prior to the permanent custody
hearing, he had five unexcused absences), and had not visited his children in ten months.
{¶ 39} Our review of the record indicates that the trial court’s decision was
supported by ample evidence to meet the clear and convincing standard of proof.
Rishforth, 2d Dist. Montgomery No. 20915, 2005-Ohio-5007, at ¶ 11. Accordingly,
Father’s Second Assignment of Error is overruled.
IV. Request to Surrender Parental Rights
{¶ 40} Mother’s sole assignment of error states that:
The Trial Court Erred in Not Allowing Mother to Surrender Her
Parental Rights to the Minor Children to Darke County Children Services.
{¶ 41} Under this assignment of error, Mother contends that the trial court abused
its discretion by failing to let her voluntarily surrender her rights to the children. Mother
states that there is no case law on this point, but argues as a matter of public policy that
a children services agency should not be permitted to force parents into situations where
they are subject to a “reasonable efforts bypass” in the future simply because of past
indiscretions.
{¶ 42} The statute upon which the parties relied in the trial court is R.C. 5103.15.
This statute provides, in pertinent part, that:
(B)(1) Subject to * * * juvenile court approval, the parents, guardian,
or other persons having custody of a child may enter into an agreement with
a public children services agency or private child placing agency
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surrendering the child into the permanent custody of the agency. An
agency that enters into such an agreement may take and care for the child
or place the child in a family home.
A private child placing agency or public children services agency that
seeks permanent custody of a child pursuant to division (B)(1) of this section
shall file a request with the juvenile court of the county in which the child
has a residence or legal settlement for approval of the agency's permanent
surrender agreement with the parents, guardian, or other persons having
custody of the child. Not later than fourteen business days after the
request is filed, the juvenile court shall determine whether the permanent
surrender agreement is in the best interest of the child. The court may
approve the permanent surrender agreement if it determines that the
agreement is in the best interest of the child and, in the case of an
agreement between a parent and an agency, the requirements of section
5103.151 of the Revised Code are met. The agency requesting the
approval of the permanent surrender agreement shall file a case plan,
prepared pursuant to section 2151.412 of the Revised Code, with the court
at the same time that it files its request for the approval of the permanent
surrender agreement.
***
(C) The agreements provided for in this section shall be in writing, on
forms prescribed and furnished by the department, and may contain any
proper and legal stipulations for proper care of the child, and may authorize
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the public children services agency or private child placing agency when
such agreements are for permanent care and custody to appear in any
proceeding for the legal adoption of the child, and consent to the child's
adoption, as provided in section 3107.06 of the Revised Code. * * *
{¶ 43} R.C. 5153.16(A)(2) gives public children service agencies the power to
“[e]nter into agreements with the parent, guardian, or other person having legal custody
of any child, * * * with respect to the custody, care, or placement of any child, or with
respect to any matter, in the interests of the child, provided the permanent custody of a
child shall not be transferred by a parent to the public children services agency without
the consent of the juvenile court * * *.”
{¶ 44} The Supreme Court of Ohio has indicated that a permanent surrender
consent proceeding under R.C. 5103.15 is a private transfer of custody that is distinct
from neglect and dependency proceedings, which are adversarial and are governed by
separate statutes. See In re Miller, 61 Ohio St.2d 184, 188-191, 399 N.E.2d 1262(1980); Angle v. Children's Services Div., Holmes Cty. Welfare Dept., 63 Ohio St.2d 227,
230, 407 N.E.2d 524 (1980). Accord Ross v. Prater, 2d Dist. Montgomery No. 16582,
1998 WL 655416, *3 (Sept. 11, 1998).
{¶ 45} “An agreement by a child's parents or legal guardian to surrender a child to
the permanent custody of a certified association or institution described in R.C. 5103.15
constitutes a contract where accepted by such association or institution and when
voluntarily made without fraud or misrepresentation.” Miller at 189. Proceedings under
R.C. 5103.15 are not adversary proceedings, and the juvenile court’s “function in
consenting to a permanent surrender [is] to insure that the surrender is made by the
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parent voluntarily, with full knowledge of the legal import of the relinquishment of parental
rights accomplished thereby; and to insure that the child welfare agency does not enter
into improvident contracts.” Miller at 191.
{¶ 46} Courts have also stressed that “[b]y the explicit terms of R.C. 5103.15(B)(1),
an agreement to voluntarily place a child in the permanent custody of a children services
agency may only be executed by parents ‘having custody of a child[.]’ ” In re A.P., 9th
Dist. Medina No. 13CA0083-M, 2015-Ohio-206, ¶ 20, quoting R.C. 5103.15. The Ninth
District Court of Appeals, therefore, concluded in A.P. that a father could not have
surrendered his parental rights pursuant to this statute because at the time of the alleged
surrender, the children services agency had temporary custody of the child. Id. See
also Adoption Link, Inc. v. Suver, 112 Ohio St.3d 166, 2006-Ohio-6528, 858 N.E.2d 424,
¶ 9 (noting that parents lacked authority to surrender their parental rights to a private
adoption agency under R.C. 5103.15, because the Clark County Department of Job and
Family Services already had temporary custody of their child).
{¶ 47} In light of the preceding discussion, R.C. 5103.15 has no application to this
action, which is an adversarial proceeding brought under statutes pertaining to neglect
and dependency. In addition, Mother did not have custody at the time she mentioned
surrendering her rights pursuant to R.C. 5103.15. We express no opinion whether R.C.
5103.15(B)(1) voluntary surrender may be used in conjunction with, or parallel to, a
neglect or dependency proceeding, but voluntary surrender requires statutory procedure,
an agreement, and parental custody. Thus, the trial court correctly held that it could not
require DCCS to agree to a voluntary surrender under R.C. 5103.15.
{¶ 48} We note that in Ross, counsel for the agency told the court prior to the final
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hearing that the parties had an agreement to consent to permanent custody. Ross, 2d
Dist. Montgomery No. 16582, 1998 WL 655416, at *1. During her testimony, the mother
additionally said that she did not want to contest the agency’s motion. She then left the
hearing. Id. In filing objections to the magistrate’s decision, and on appeal, the mother
contended that the magistrate failed to comply with R.C. 5103.15 and Juv.R. 38(B)
concerning the voluntary surrender, She also argued that the magistrate failed to comply
with Juv.R. 29(D). Id. at *2-3.
{¶ 49} We concluded that the “ ‘agreement’ * * * proffered to the court through
[mother’s] testimony was insufficient to permit its approval by the court as a basis for
voluntary surrender pursuant to R.C. 5103.15.” Id. at *3. We further stated that:
However, the court approved no agreement. Rather, the court proceeded
to determine the matter before it, which was CSB's R.C. 2151.413 motion
for permanent custody. That matter was entirely distinct from any
voluntary surrender. In re Miller (1980), 61 Ohio St.2d 184, 399 N.E.2d
1262. The court followed the procedures for the motion before it that are
set out in R.C. 2151.414.
Ross at *3.
{¶ 50} As in Ross, the trial court in the case before us proceeded to hear and
decide the motion for custody by following the procedures set forth in R.C. 2151.414.
We find no abuse of discretion in the court’s approach, particularly since Mother lacked
the ability to voluntarily surrender the children under R.C. 5103.15.
{¶ 51} In Ross, the mother also argued that the trial court should have complied
with the requirements of Juv.R. 29(D) regarding admissions. We rejected this argument,
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also. We concluded that the mother had not made an admission for purposes of Juv. R.
29(D), because she did not tell the court that it would be in the best interests of the children
for custody to be granted to the agency; instead, she said that she was not contesting the
motion because “ ‘the children had been through too much.’ ” Id. at *4.
{¶ 52} In the case before us, the discussion with the trial court consisted of
statements of counsel, not testimony from Mother. See July 30, 2015 Transcript of
Proceedings, pp. 5-6. After the trial court indicated that it would take the issue under
advisement, the court proceeded with the hearing, allowing Mother to cross-examine
witnesses and to fully present her case. Mother also chose to testify, and in her
testimony, she never admitted that the agency had a right to permanent custody or that it
was in her children’s best interests for the agency to be granted custody. Id. at pp. 52-
62. Accordingly, as in Ross, we conclude that Mother did not make an admission.
{¶ 53} In Ross, we could also have rejected the mother’s argument because her
alleged admission was not made at an adjudicatory hearing to which Juv.R. 29 applies; it
was made at a dispositional hearing. See, e.g., In re Lakes, 149 Ohio App.3d 128, 2002-
Ohio-3917, 776 N.E.2d 510, ¶ 34 (2d Dist.) (noting that “Juv.R. 34, pertaining to
dispositional hearings, does not require the court to engage in a colloquy with a parent in
an R.C. 2151.414 proceeding, which this proceeding was, such as that required by Juv.R
29 at adjudicatory hearings.”)
{¶ 54} In Lakes, we compared the adjudicatory phase, where trial courts are
required by Juv.R. 29(D) to engage in a colloquy, to the acceptance of guilty or no contest
pleas under Crim.R. 11. Id. at ¶ 60-62. We stressed that “[o]nce an allegation is found
to be true in the adjudicatory stage, the case then moves to the dispositional phase, which
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is governed by Juv.R. 34. The issue at that stage is the best interest and welfare of the
child.” Id. at ¶ 63, citing In re Pryor, 86 Ohio App.3d 327, 620 N.E.2d 973 (4th Dist.1993).
Accord In re R.A., 8th Dist. Cuyahoga No. 95589, 2011-Ohio-742, ¶ 12, and In re
Williams, 10th Dist. Franklin No. 03AP-1007, 2004-Ohio-678, ¶ 8 (both holding that Juv.R.
29 does not apply to dispositional hearings in permanent custody cases).
{¶ 55} In this regard, we further noted in Lakes that:
In a neglect case, the juvenile court may proceed to find neglect at
the adjudication stage upon the admission of the parent charged. No other
evidence is required, even when the standard is clear and convincing
evidence. In re Schmidt (1986), 25 Ohio St.3d 331, 25 OBR 386, 496
N.E.2d 952. At the dispositional stage, however, other evidence is surely
required to determine whether a particular placement is in the child's best
interest. * * * The parent's “admission” that placement with another person
is in the child's best interest thus lacks the conclusive effect of an admission
of neglect at the adjudicatory phase.
Lacking the effect of a plea to a charge, a parent's admission in a
dispositional hearing that his or her child's best interest would be served by
permanent placement elsewhere than with the parent is not a matter that
requires protections similar to those in Juv.R. 29(D). The admission is but
one more article of testimonial evidence for the court to consider in resolving
the best-interest question. The court is entitled to credit the admission or
discredit it, on the merits.
(Citation omitted.) Lakes, 149 Ohio App.3d 128, 2002-Ohio-3917, 776 N.E.2d 510, at
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¶ 70-71.
{¶ 56} Thus, in the case before us, even if Mother had made an admission, the
trial court was not required to accept her assertion, and could have disregarded it on the
merits. In Lakes, we additionally focused on the fact that the trial court had conducted a
full evidentiary hearing, where other evidence was presented. Id. at ¶ 72. Consistent
with Lakes, a full hearing occurred in this case, and the evidence was more than sufficient
to indicate that permanent custody should be granted to DCCS. Again, we stress that
the trial court did not accept Mother’s attempted surrender of her parental rights.
{¶ 57} We further observe that, as with Father, there was sufficient evidence to
support the trial court’s decision that Mother had abandoned the children and that an
award of permanent custody to DCCS was in the children’s best interests. Mother’s
conduct was quite similar to that of Father, except that she had even less contact with the
agency and did virtually nothing to accomplish the case plan requirements. Accordingly,
Mother’s sole assignment of error is without merit and is overruled.
V. Conclusion
{¶ 58} Father’s First and Second Assignments of Error, and Mother’s sole
assignment of error having been overruled, the judgment of the trial court is affirmed.
.............
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FROELICH, J. and HALL, J., concur.
Copies mailed to:
Rhonda K. McKinniss
Jay A. Adams
Lucas W. Wilder
Matthew Joseph
Hon. Jason R. Aslinger