In re G.D.

[Cite as In re G.D., 2014-Ohio-3476.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: G.D. C.A. No. 27337
G.D.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN13-01-0083
DN13-01-0084
DECISION AND JOURNAL ENTRY
Dated: August 13, 2014
WHITMORE, Judge.
{¶1} Appellant, James Z. (“Father”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated his parental rights and placed his two
minor children in the permanent custody of Summit County Children Services Board (“CSB”).
Because CSB failed to present clear and convincing evidence to support any of the grounds it
alleged for permanent custody under R.C. 2151.414(E), this Court reverses and remands for a
new hearing.
I
{¶2} Father is the natural father of twins, each with the initials G.D., born January 23,
2013. The twins were removed from their parents’ custody while they remained hospitalized
after birth. The children’s mother is not a party to this appeal.
{¶3} CSB’s complaint in this case alleged that the mother had used drugs throughout
her pregnancy and had failed to obtain proper prenatal care. It further alleged that the parents
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had recently moved from Florida, where they had an “extensive history” with the department of
children and families because Father had sexually abused two of the mother’s older children, one
of whom was alleged to be Father’s natural child.
{¶4} CSB proceeded to focus its case against Father on his alleged criminal conduct in
Florida against a sibling of these children. Throughout the record, however, the details
pertaining to Father’s arrest and criminal prosecution are extremely vague. Notably, most of the
details about Father’s criminal offense are in the form of unsubstantiated allegations by CSB.
This Court necessarily confines its review to the facts and evidence set forth in the record.
{¶5} The record reflects that both parents appeared at the shelter care hearing and
agreed that there was probable cause for the children to remain in the emergency temporary
custody of CSB. They did not stipulate to the truth of any facts alleged in the complaint,
however, nor did the shelter care order set forth specific reasons for continuing the emergency
removal of the children.
{¶6} Prior to the adjudicatory hearing, Father was apparently arrested and incarcerated
because his counsel filed a motion requesting that Father be transported from the Summit County
Jail to the adjudicatory hearing. The matter proceeded to an adjudicatory hearing before a
magistrate, without Father in attendance. After the hearing, the magistrate decided that G.D. and
G.D. were dependent children. That finding was adopted by the trial court and was not
challenged by written objections.
{¶7} The magistrate’s adjudicatory decision stated that the mother stipulated to an
adjudication of dependency. The facts pertaining to Father were merely that he was unable to
care for the children because he had a history of “serious criminal charges” and had been
extradited to Florida “on a charge of sexual battery.”
3
{¶8} After the dispositional hearing, the magistrate decided to place the children in the
temporary custody of CSB and to adopt the case plan except that “Father’s objectives will be
removed * * * [because] he has been extradited to Florida [and] is not expected to return to Ohio
in the near future.” The decision included no additional facts about Father’s criminal
prosecution. The trial court adopted the magistrate’s decision and neither party filed objections.
{¶9} On August 2, 2013, CSB moved for permanent custody of G.D. and G.D.
Because the children had not yet been in its temporary custody for 12 months, CSB alleged that
they could not be returned to their parents’ home or should not be returned to their custody based
on several factors under R.C. 2151.414(E). It alleged grounds pertaining to Father under R.C.
2151.414(E)(1), failure to substantially remedy the conditions that caused the children’s
removal; R.C. 2151.414(E)(4), a lack of commitment to the children; R.C. 2151.414(E)(5),
incarceration for an offense against one of the children or a sibling; R.C. 2151.414(E)(10),
abandonment; R.C. 2151.414(E)11), parental rights involuntarily terminated with respect to a
sibling of the children; and R.C. 2151.414(E)(16), any other factor the court finds relevant.
{¶10} At the permanent custody hearing, CSB attempted to prove that the parents’ rights
had been involuntarily terminated as to a sibling of these children, but it offered only an
uncertified copy of a purported Florida judgment to that effect, which was not admitted into
evidence. Because no other evidence about the prior termination of parental rights was
presented, the trial court did not find that CSB had established that factor. The trial court found
that the children could not or should not be placed with Father based on three alternate factors
under R.C. 2151.414(E): he had failed to substantially remedy the conditions that caused the
children’s removal from the home, he demonstrated a lack of commitment to them, and he was
incarcerated for a criminal offense against a sibling of the children. See R.C. 2151.414(E)(1),
4
(E)(4), and (E)(5). The trial court also found that permanent custody was in the best interests of
G.D. and G.D. Consequently, it terminated parental rights and placed the children in the
permanent custody of CSB. Father appeals and raises one assignment of error.
II
Assignment of Error
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT TERMINATED FATHER’S PARENTAL RIGHTS AS THE
[DECISION] WAS NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶11} Father’s sole assignment of error is that the trial court’s permanent custody
decision was not supported by the evidence presented at the hearing. We agree.
{¶12} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period, or that
the child cannot be placed with either parent within a reasonable time or should not be placed
with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of
permanent custody to the agency is in the best interest of the child, based on an analysis under
R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2). Clear and convincing
evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as
to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368
(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶13} As we have emphasized before, although CSB and the trial court may have known
more facts about this case than what is reflected in the record on appeal, our review is necessarily
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limited to the record. In re T.R., 9th Dist. Summit Nos. 25179 & 25213, 2010-Ohio-2431, ¶ 25.
“The agency has an obligation to establish its case on the record and to demonstrate clearly and
convincingly that ending this family relationship is what is best for * * * these children.” Id.{¶14} Whether Father’s parental rights should be preserved is not the question before us
in this appeal, for Father had no burden to prove anything. Instead, the focus of this appeal is
whether CSB met its burden to prove, by clear and convincing evidence, that termination of
parental rights was warranted. In re A.A., 9th Dist. Summit App. No. 22196, 2004-Ohio-5955, ¶
19. Based on this Court’s review of the record before us, we must conclude that CSB failed to
present even a preponderance of evidence to support the trial court’s findings under R.C.
2151.414(E), much less under its heightened burden of clear and convincing evidence.
{¶15} The trial court found that CSB had established that G.D. and G.D. could not be
returned to either parent within a reasonable time or should not be returned to them based its
factual findings under R.C. 2151.414(E)(1), (E)(4), and (E)(5). Because Father challenges the
trial court’s findings on each alternate factor, we will address each in turn.
R.C. 2151.414(E)(1)
{¶16} To establish the factor set forth in R.C. 2151.414(E)(1), CSB was required to
prove that, after the placement of the children outside the home and “notwithstanding reasonable
case planning and diligent efforts by the agency to assist the parents[,] * * * the parent has failed
continuously and repeatedly to substantially remedy the conditions causing the child[ren] to be
placed outside the[ir] home.” To begin with, although CSB had alleged a few reasons for
removing the children from the home, the reasons for the children’s removal are those set forth
in the adjudicatory decision. See In re Rinaldi, 3d Dist. Allen No. 1-02-74, 2003-Ohio-2562, ¶
37. The only factual findings set forth in the adjudicatory decision to explain why the children
6
were adjudicated dependent and removed from the home were that the mother agreed to the
adjudication and that Father was incarcerated at that time. Although R.C. 2151.28(L) required
that a more detailed factual basis be set forth in the adjudicatory decision, neither parent filed
objections on that basis. See Juv.R. 40(D)(3)(b)(iv). Nevertheless, the decision as adopted by
the trial court does not detail the “conditions” that caused the children’s removal.
{¶17} Moreover, “[p]ursuant to the plain language of R.C. 2151.414(E)(1), a finding
under this section must be premised on ‘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.’” In re D.K., 9th Dist. Summit Nos. 26840 & 26846, 2013-Ohio-3513, ¶ 10.
“Parental utilization of the services provided under the applicable case plan shall be considered
in making this determination.” Id.{¶18} The caseworker testified at the permanent custody hearing that Father had failed
to comply with several requirements of the case plan. Although Father was initially included on
the proposed case plan filed by CSB, and Father had apparently made attempts to comply with
the requirements of that plan, that case plan was never adopted by the trial court. At the time the
trial court adopted the case plan in its initial dispositional order, Father was removed from the
case plan because he was incarcerated.1 Because Father was not included on the case plan and
received no court-ordered reunification services, there was no evidence before the trial court to
support a finding under R.C. 2151.414(E)(1).
1
Because Father has not assigned this as error, we do not reach the issue of whether the
trial court had authority to remove Father from the case plan. See In re S.R., 9th Dist. Summit
No. 27209, 2014-Ohio-2749. Although CSB’s allegations suggest a basis for a reasonable
efforts bypass under R.C. 2151.419(A)(2)(e), no such finding was made by the trial court.
7
R.C. 2151.414(E)(4)
{¶19} R.C. 2151.414(E)(4) required CSB to prove that Father had demonstrated a lack
of commitment by failing to regularly support, visit, or communicate with the children “when
able to do so” or by “other actions showing an unwillingness to provide an adequate permanent
home for the child[ren].” Father does not dispute that, since his incarceration before the
adjudicatory hearing, he has not visited, supported, or communicated with his children. He
correctly argues, however, that his failure to maintain that contact with his children did not
establish a lack of commitment under R.C. 2151.414(E)(4) because CSB failed to prove that he
had the ability to visit, support, or communicate with his children.
{¶20} It is apparent that Father lacked the ability to visit his infant children while he was
incarcerated in Florida. Consequently, CSB had the burden to prove that, despite his
incarceration in Florida, Father had the ability to support or communicate with G.D. and G.D. In
re Sara H., 6th Dist. Lucas No. L-94-116, 1994 WL 700629, *5. CSB presented no evidence
about Father having the ability to send financial support or to communicate with his infant
children from the various jails and prisons where he was apparently incarcerated throughout this
case. The record does demonstrate that Father sent letters to CSB to inquire about his children’s
case.
{¶21} Relying on this Court’s decision in In re T.K., 9th Dist. Summit No. 24006, 2008-
Ohio-1687, ¶ 9-13, CSB suggests that Father demonstrated a lack of commitment to his children
by failing to make efforts to be reunified with them. Unlike the parent in In re T.K., who was
included on the case plan and was incarcerated during only part of the case, Father was
incarcerated throughout the case planning process and was not included in the court-ordered case
plan. Father cannot be faulted for failing to comply with nonexistent case plan requirements.
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Consequently, CSB failed to prove that Father demonstrated a lack of commitment to his
children under R.C. 2151.414(E)(4).
R.C. 2151.414(E)(5)
{¶22} Finally, the trial court found that CSB had proven that Father was incarcerated for
committing an offense against a sibling of the children. R.C. 2151.414(E)(5). Despite the
serious nature of this permanent custody ground and the relative ease with which this fact, if true,
could have been established at the hearing, Father correctly argues that CSB failed to present
evidence to establish this factor. Specifically, although CSB presented brief testimony that
Father was incarcerated in Florida for committing sexual offenses against “two other children,” it
presented no evidence that either of those children was a sibling of G.D. and G.D.
{¶23} CSB’s only witness at the hearing was the ongoing caseworker. Its questioning of
her focused in large part on the fact that the parents initially lied to her about their past
involvement with a children services agency in Florida and about their prior criminal records.
The evidence pertaining to Father’s relevant criminal offense, however, was minimal. The
caseworker testified that Father was arrested on February 26 for “past sexual abuse charges in
Florida against two other children” and that he was extradited to Florida in March and had been
in Florida ever since. She stated later that Father was being prosecuted in Florida for “six counts
of sexual abuse against children.”
{¶24} In response to a question about whether Father and the mother had other children,
the caseworker testified that the parents had told her that the mother had “two other children,”
one of whom was also Father’s child, and that “they were in the custody of other people in
Florida.” She later testified that one of the children was living with a relative and one of them
9
had been adopted. The caseworker never explained why these other children resided outside
their parents’ custody.
{¶25} While the caseworker was testifying about the prior termination of parental rights,
CSB attempted to admit a document that purported to be a Florida court judgment that
terminated the parents’ rights to the two children in Florida. Although that document may have
indicated a reason for the termination (which may or may not have been Father’s alleged
offense(s) against a sibling), the trial court sustained defense counsel’s objection to the
admission of that document because it was not a certified judgment entry. Consequently,
whatever details that may have been included in that judgment were not admitted into evidence
and are not part of the record.
{¶26} CSB does not seem to dispute that it presented no direct evidence that the victims
of Father’s offenses were the siblings of G.D. and G.D. Instead, it suggests that the sibling
relationship of the victims was established circumstantially through the testimony of the
caseworker. CSB asserts that, because the caseworker testified that Father’s offense was against
“two other children” in Florida and, almost immediately afterward, testified that the parents had
“two other children” in Florida who were removed from their custody, it is reasonable to infer
that both references to “two other children” referred to the older siblings of G.D. and G.D.
{¶27} “Inferences to be drawn from circumstantial evidence are unreasonable or
speculative if they are not supported by the surrounding facts in evidence.” State v. Rohr-
George, 9th Dist. Summit No. 23019, 2007-Ohio-1264, ¶ 21. Although it may be possible to
infer that both of the caseworker’s references to “two other children” referred to the older
siblings of G.D. and G.D., we cannot agree that it would be reasonable or logical to draw such
an inference from this evidence. Aside from the temporal proximity of these two testimonial
10
statements, the caseworker said nothing to connect her “other children” references and there
were no other facts in evidence to suggest that she was referring to the same two children. In
fact, it would be more reasonable to infer that, if the caseworker had intended to refer to the same
two “other children,” she would have said so. Consequently, we cannot agree that this evidence
clearly or convincingly demonstrated that the victims of Father’s offenses were siblings of G.D.
and G.D.
{¶28} CSB points to other statements in the record that are of no evidentiary value.
Although there are allegations throughout the record that Father had sexually offended against a
sibling of G.D. and G.D., that his parental rights to that sibling had been involuntarily terminated
for that reason, and that the offenses had led to his arrest, incarceration, and eventual conviction,
those unsubstantiated allegations do not constitute evidence. An “allegation” in the complaint is
nothing more than “a party’s formal statement of a factual matter as being true or provable,
without its having yet been proved.” Black’s Law Dictionary 81 (8th Ed.2004).
{¶29} Similarly, brief factual statements in the report of the guardian ad litem that
Father had sexually offended against a sibling of these children do not constitute evidence of that
fact. The role of the guardian ad litem is to “assist a court in its determination of a child’s best
interest” by providing the court with relevant information and “an informed recommendation”
about the children’s best interest. Sup.R. 48(B) and (D)(13). Although the report of the guardian
ad litem may necessarily include information about what other people told her, reliance upon her
report as establishing those things as fact is improper. See In re O.H., 9th Dist. Summit No.
25761, 2011-Ohio-5632, ¶ 25. “[T]his Court is unaware of any legal authority that permits the
guardian ad litem to offer evidence of ‘facts’ about which she has no first-hand knowledge.”
Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615, ¶ 13; Evid. R. 602.
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{¶30} Because CSB failed to present evidence to support any of the trial court’s
alternate findings under R.C. 2151.414(E), we must reverse and remand for a new hearing.
Because CSB failed to establish the first prong of the permanent custody test, we need not reach
Father’s argument that CSB also failed to present clear and convincing evidence that permanent
custody was in the best interests of his children. Father’s assignment of error is sustained.
III
{¶31} Father’s assignment of error is sustained. The judgment of the trial court is
reversed and remanded for a new hearing.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
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HENSAL, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.