In re W.A.

[Cite as In re W.A., 2013-Ohio-3444.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
W.A., JR. Case No. CT2013-0002
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
21130114
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 1, 2013
APPEARANCES:
For Appellant For Appellee
JOHN D. WEAVER MARIA N. KALIS
542 South Drexel Avenue ASSISTANT PROSECUTOR
Bexley, Ohio 43209 27 North Fifth Street, Post Office Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2013-0002 2
Wise, J.
{¶1} Appellant-Mother Kirsten Miller appeals the decision of the Court of
Common Pleas, Muskingum County, Juvenile Division, which granted legal custody of
her son, W.A., to a non-relative in a dependency/neglect action initiated by Appellee
Muskingum County Children Services (“MCCS”). The relevant facts leading to this
appeal are as follows.
{¶2} On July 11, 2011, Appellee MCCS took emergency custody of W.A., born
in 2009, and filed with the trial court a complaint alleging that W.A. was a neglected or
dependent child as defined in R.C. 2151.03(A)(2) and R.C. 2151.04(C). The concerns
at that time included appellant’s history of leaving W.A. with inappropriate caregivers,
including an alleged father of the child who was then homeless and had been staying
at a crack house, and that the child was dirty and had lice.1 W.A. was placed in shelter
care under the temporary custody of the agency following a shelter care hearing on
July 11, 2011.
{¶3} W.A. was placed in foster care following his removal by MCCS. On August
11, 2011, following a home study by the agency, W.A. was moved from a temporary
foster placement to a foster placement with Amanda Brunton, who is not related to the
child. Following a hearing on September 29, 2011, W.A. was adjudicated to be a
neglected and dependent child. The trial court held a dispositional hearing on the same
day, and W.A. was placed in the temporary custody of Amanda Brunton with protective
supervision granted to the Agency.
1
The record indicates that there is an alleged father, William A., living in a rehab facility
in Florida. In addition, service was made by publication on an unknown alleged father.
See Tr. at 3, 18.
Muskingum County, Case No. CT2013-0002 3
{¶4} On June 18, 2012, the agency filed a motion to modify temporary custody
to legal custody to Ms. Brunton, and a motion to terminate protective supervision. The
trial court held a hearing for both motions on September 11, 2012 and issued a
judgment entry on December 3, 2012 terminating protective supervision of the agency
and awarding legal custody of the child to Ms. Brunton.
{¶5} On, January 2, 2013, appellant filed a notice of appeal. She herein raises
the following three Assignments of Error:
{¶6} “I. THE TRIAL COURT ERRED IN AWARDING LEGAL CUSTODY TO A
NON-PARENT WHO FAILED TO SIGN A STATEMENT OF UNDERSTANDING AS
REQUIRED UNDER R.C. 2151.353(A)(3).
{¶7} “II. THE TRIAL COURT'S DECISION AWARDING LEGAL CUSTODY TO
AMANDA BRUNTON WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶8} “III. APPELLANT WAS PREJUDICED BY THE INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.”
I.
{¶9} In her First Assignment of Error, appellant contends the trial court
committed reversible error by awarding legal custody of W.A. to Amanda Brunton, a
non-relative, without a signed statement of understanding as set forth in R.C.
2151.353(A)(3). We disagree.
{¶10} In Ohio, the statutorily permissible dispositional alternatives in a
dependency, neglect, or abuse case are enumerated in R.C. 2151.353(A). See, e.g., In
re S.Y. , Tuscarawas App.No. 2011AP04 0018, 2011-Ohio-4621, ¶ 31. In particular,
R.C. 2151.353(A)(3) provides: “If a child is adjudicated an abused, neglected, or
Muskingum County, Case No. CT2013-0002 4
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. A person identified in a complaint or motion
filed by a party to the proceedings as a proposed legal custodian shall be awarded
legal custody of the child only if the person identified signs a statement of
understanding for legal custody that contains at least the following provisions:
{¶11} “(a) That it is the intent of the person to become the legal custodian of the
child and the person is able to assume legal responsibility for the care and supervision
of the child;
{¶12} “(b) That the person understands that legal custody of the child in question
is intended to be permanent in nature and that the person will be responsible as the
custodian for the child until the child reaches the age of majority. Responsibility as
custodian for the child shall continue beyond the age of majority if, at the time the child
reaches the age of majority, the child is pursuing a diploma granted by the board of
education or other governing authority, successful completion of the curriculum of any
high school, successful completion of an individualized education program developed
for the student by any high school, or an age and schooling certificate. ***.
{¶13} “(c) That the parents of the child have residual parental rights, privileges,
and responsibilities, including, but not limited to, the privilege of reasonable visitation,
consent to adoption, the privilege to determine the child's religious affiliation, and the
responsibility for support;
Muskingum County, Case No. CT2013-0002 5
{¶14} “(d) That the person understands that the person must be present in court
for the dispositional hearing in order to affirm the person's intention to become legal
custodian, to affirm that the person understands the effect of the custodianship before
the court, and to answer any questions that the court or any parties to the case may
have.”
{¶15} In the case sub judice, there is no indication in the record that Amanda
Brunton, who was identified as the proposed legal custodian in the agency’s motion for
disposition, ever signed a statement of understanding under R.C. 2151.353(A)(3).
However, it is undisputed that appellant and her trial counsel never objected on such
grounds or brought the issue to the attention of the trial court. By failing to raise a
timely objection regarding the requirements of R.C. 2151.353(A)(3), a parent forfeits all
but plain error. See In re A.V.O., Lorain App.Nos. 11CA010115, 11CA010116,
11CA010117, 11CA010118, 2012-Ohio-4092, ¶ 8. See, also, In re Bouska,
Tuscarawas App.No. 2007AP090063, 2008-Ohio-3277, ¶ 35, (holding that where the
mother had “failed to object to the lack of the proposed legal custodians at the
dispositional hearing” under R.C. 2151.353(A)(3), mother had waived all but plain
error). However, the doctrine of plain error is limited to exceptionally rare cases in
which the error, left unobjected to at the trial court, rises to the level of “challenging the
legitimacy of the underlying judicial process itself.” See Goldfuss v. Davidson (1997),
79 Ohio St.3d 116, 122, 679 N.E.2d 1099.
{¶16} The transcript of the dispositional hearing of September 11, 2012, before
us reveals that Ms. Brunton obtained an approved home study by MCCS
approximately in August 2011, following which the agency placed W.A. with her. See
Muskingum County, Case No. CT2013-0002 6
testimony of social worker Cathy Loucks, Tr. at 5-7. The guardian ad litem further
recommended that legal custody be awarded to Ms. Brunton. See GAL Report,
September 10, 2012. We surmise that the legislative purpose of the signed statement
of understanding under R.C. 2151.353(A) is to help insure that prospective legal
custodians are apprised of the significant responsibilities they will undertake. Appellant
does not direct us to anything in the present record to suggest Ms. Brunton was not
aware of such responsibilities. Under these circumstances, we do not find the
existence of plain error regarding the lack of the signed statement by the child’s legal
custodian.
{¶17} Appellant’s First Assignment of Error is overruled.
II.
{¶18} In her Second Assignment of Error, appellant contends the trial court’s
granting of legal custody to Amanda Brunton was against the manifest weight of the
evidence. We disagree.
{¶19} Because custody issues are some of the most difficult and agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence and such a decision must not be reversed absent an abuse of discretion.
Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v.
Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. The Ohio Supreme Court has also
explained: “A reviewing court should not reverse a decision simply because it holds a
different opinion concerning the credibility of the witnesses and evidence submitted
before the trial court. A finding of an error in law is a legitimate ground for reversal, but
a difference of opinion on credibility of witnesses and evidence is not.” Seasons Coal
Muskingum County, Case No. CT2013-0002 7
Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273. Likewise, “[e]very
reasonable presumption must be made in favor of the judgment and the findings [of the
juvenile court]. * * * If the evidence is susceptible to more than one construction, we
must give it that interpretation which is consistent with the verdict and judgment, and
most favorable to sustaining the [juvenile] court's verdict and judgment.” In re: MB,
Summit App.No. 21812, 2004–Ohio–2666, citing Karches v. Cincinnati (1988), 38 Ohio
St.3d 12, 526 N.E.2d 1350. It is well established that the trial court, as the fact finder, is
free to believe all, part, or none of the testimony of each witness. State v. Caldwell
(1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096. In contrast, 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
fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark
App.No. CA–5758. In manifest weight analyses, a reviewing court must determine
whether the finder of fact, in resolving conflicts in the evidence, clearly lost his way and
created such a manifest miscarriage of justice that the judgment must be reversed and
a new trial ordered. See Hunter v. Green, Coshocton App.No. 12–CA–2, 2012–Ohio–
5801, ¶ 25, citing Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012–
Ohio–2179.
{¶20} We reiterate that this case did not result in a grant of permanent custody
to the agency and a full termination of parental rights. Despite the differences between
a disposition of permanent custody and a disposition of legal custody, some Ohio
courts have recognized that “the statutory best interest test designed for the permanent
custody situation may provide some ‘guidance’ for trial courts making legal custody
Muskingum County, Case No. CT2013-0002 8
decisions.” In re A.F., Summit App.No. 24317, 2009–Ohio–333, ¶ 7, citing In re T.A.,
Summit App.No. 22954, 2006–Ohio–4468, ¶ 17.
{¶21} As well summarized in the briefs, during the hearing on the agency's
dispositional motion on September 11, 2012, MCCS presented testimony from two
witnesses: Cathy Loucks, the agency case worker for W.A. and Sara Joseph, the
agency family stability worker for appellant. It appears that MCCS intended to call
Amanda Brunton and possibly other persons as rebuttal witnesses, but the trial court
indicated that the allotted time for the hearing had been exhausted. See Tr. at 120.
{¶22} According to Loucks, the first goal in Appellant's case plan was that she
needed to maintain her health following kidney-related issues that required
hospitalization; however, appellant has satisfied this goal and has not been
hospitalized since September 8, 2011. At the hearing, Loucks opined that appellant
had no medical issues that would prevent her for caring for the child. See Tr. at 7-8.
However, when appellant later took the stand, she asserted that she had disabilities in
the form of “kidney problems, depressant [sic] and bipolar.” Tr. at 80.
{¶23} The next goal of the case plan was that appellant would work on parenting
and housing issues with a family stability worker. ld. Loucks testified that appellant had
stayed in approximately twelve locations since W.A.'s removal. Tr. at 8-14. These
included a homeless shelter for women, some locations where appellant had spent
"two or three days," and the homes of family members where appellant stayed. Tr. at
10-11. Loucks also testified that appellant had found more stable housing in "May or
June of [2012]" and was added to a lease for that location in July 2012. Tr. at 11.
Muskingum County, Case No. CT2013-0002 9
Loucks testified that appellant's present apartment was "appropriate and safe for a
child." Tr. at 14.
{¶24} The next requirement of the case plan was that appellant would obtain
mental health counseling. Tr. at 19. This was due to appellant’s issues of stability and
an earlier self-report of depression. ld. Appellant completed a mental health
assessment in July 2012. Tr. at 20. The recommendation from that assessment was
that appellant should continue to receive counseling, which Loucks testified appellant
was doing, albeit with a different counselor. ld. Loucks also noted that while appellant
has been consistently visiting with W.A. since April 2012, she had missed thirty visits in
the year 2012.
{¶25} Loucks also testified regarding appellant's income and employment. Tr. at
18. Appellant has been relying on her husband Eric's social security (SSI) income,
although she was purportedly applying for her own benefits. Tr. at 19. Sara Joseph
also testified regarding appellant's financial situation. Joseph agreed that if they stayed
on a budget, the household income of appellant and her husband was "adequate to
care for a child." Tr. at 43. Joseph also testified that appellant began taking parenting
classes on May 29, 2012, and that she completed those classes prior to the hearing.
Tr. at 38-39. Joseph also offered testimony regarding an incident between appellant
and her husband. Tr. at 44-45. Appellant's husband was charged in that incident with
domestic violence, which was later reduced to disorderly conduct. Appellant testified
that she did not mean to report that her husband had punched her. Tr. 94-96.
{¶26} Joseph nonetheless testified that appellant’s present husband, Eric, is a
"good support person for her" and that he is “encouraging." Tr. at 43-44. Loucks
Muskingum County, Case No. CT2013-0002 10
testified that appellant's husband had completed an anger management assessment
and that he was not required to complete any follow-up. Tr. at 34. Neither Loucks nor
Joseph testified that appellant's husband should not be around W.A., nor did they
testify that his presence would not be in W.A.'s best interests.
{¶27} Appellant has two other children in addition to W.A. Custody of appellant's
other son was granted to a grandmother by the Muskingum County Domestic Relations
Court. Tr. at 25. Appellant's daughter is in the temporary custody of the agency. Tr. at
26. Loucks nonetheless opined that reunification would require at least ''three to four
months," assuming appellant continued doing the things she had been doing. Tr. at 27.
{¶28} We cannot deny that appellant did reach a number of her case plan
objectives; however, appellant’s accomplishments generally had only recently begun
prior to the hearing of September 11, 2012. Furthermore, as noted previously, the
guardian ad litem issued a report before the hearing recommending legal custody to
Ms. Brunton. Upon review of the record and the testimony and reports therein, we
reach the conclusion that the trial court's grant of legal custody of W.A. to Ms. Brunton
was supported by the evidence presented, was made in the consideration of the child's
best interests, and did not constitute error or an abuse of discretion.
{¶29} Accordingly, appellant’s Second Assignment of Error is overruled.
III.
{¶30} In his Third Assignment of Error, appellant maintains she was deprived of
the effective assistance of trial counsel.
{¶31} This Court has recognized “ineffective assistance” claims in permanent
custody appeals. See, e.g., In re Utt Children, Stark App.No. 2003CA00196, 2003-
Muskingum County, Case No. CT2013-0002 11
Ohio-4576. However, we have not expanded the doctrine of ineffective assistance of
counsel beyond criminal cases and those involving permanent custody. See In re
Logwood, Guernsey App.No. 2004-CA-38, 2005-Ohio-3639, ¶ 26.
{¶32} The present case did not result in an order of permanent custody to
MCCS as defined under R.C. 2151.011(B)(32). We therefore will not further address
appellant’s Third Assignment of Error.
{¶33} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Juvenile Division, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. CRAIG R. BALDWIN
JWW/d 0715
Muskingum County, Case No. CT2013-0002 12
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGMENT ENTRY
:
:
W.A., JR. : Case No. CT2013-0002
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Muskingum County, Ohio, is
affirmed.
Costs assessed to appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON W. SCOTT GWIN
___________________________________
HON. CRAIG R. BALDWIN