In re C.B.

[Cite as In re C.B., 2012-Ohio-2691.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
IN THE MATTER OF:
C.B., CASE NO. 13-12-06
NEGLECTED/DEPENDENT CHILD.
[LATOYA BROWN - APPELLANT] OPINION
[JAMES CARSWELL - APPELLANT]
IN THE MATTER OF:
J.C., CASE NO. 13-12-07
NEGLECTED/DEPENDENT CHILD.
[LATOYA BROWN - APPELLANT] OPINION
[JAMES CARSWELL - APPELLANT]
Appeals from Seneca County Common Pleas Court
Juvenile Division
Trial Court Nos. 20850071 and 20850072
Judgments Affirmed
Date of Decision: June 18, 2012
Case No. 13-12-06 and 13-12-07
APPEARANCES:
Scott B. Johnson for Appellant, James Carswell
Shane M. Leuthold for Appellant, Latoya Brown
Tiffany F. Hoyt for Appellee, Seneca Co. Dept.
of Job & Family Services
SHAW, P.J.
{¶1} Mother-appellant, Latoya Brown (“Latoya”), and father-appellant,
James Carswell (“James”), appeal the January 6, 2012 judgment of the Seneca
County Court of Common Pleas, Juvenile Division, granting permanent custody of
their children, C.B and J.C., to appellee, the Seneca County Department of Job and
Family Services (the “Agency”), and terminating their parental rights.
{¶2} On August 21, 2008, the Agency filed a complaint alleging C.B. (born
in August of 2006) and J.C. (born in October of 2007) to be neglected and
dependent children. The complaint was filed based upon information received by
the Agency that the children had witnessed an episode of domestic violence
between Latoya and a male companion in a motel room in Monroe, Michigan.
Latoya was reportedly under the influence of drugs at the time. The police were
called to the scene and Latoya was arrested and placed in jail as a result of the
-2-
Case No. 13-12-06 and 13-12-07
incident.1 The same day the Agency also filed an ex parte motion for temporary
custody, requesting the children be placed in the temporary custody of their
maternal grandmother and under the protective supervision of the Agency, which
was subsequently granted by the trial court.
{¶3} On October 27, 2008, a shelter care hearing was held. The evidence
adduced at this hearing revealed that James was the putative father of C.B. and
J.C., and that genetic testing was completed in Lucas County finding James to be
C.B.’s biological father. However, there was no indication that James submitted
to genetic testing with regard to J.C. It was later confirmed through genetic testing
that James is also J.C.’s biological father.
{¶4} On October 3, 2008, the Agency filed a case plan, which addressed
Latoya’s and James’ history of domestic violence and substance abuse, and
attempted to remedy the issues prompting the Agency’s removal of the children,
which included Latoya’s and James’ inability to provide their children with stable
housing. Both Latoya and James were required to submit to substance abuse
assessments, to attend classes on domestic violence, substance abuse and
parenting, and to provide stable and appropriate housing for the children. In an
amendment to the case plan, Latoya was prohibited from visiting the children at
the home of their maternal grandmother and was required to set up visitation
1
The record indicates that Latoya later pled guilty to an “assaulting/resisting and obstructing a police
officer” charge, a felony under Michigan law.
-3-
Case No. 13-12-06 and 13-12-07
through the Agency. James was permitted to have unsupervised visitation with the
children upon the successful completion of a home study.
{¶5} On November 19, 2008, the adjudication hearing was held. Latoya
did not attend the hearing because she was in jail at the time. James was also not
present at the hearing, or at any of the prior hearings, despite being properly
served with notice of the proceedings. Based on the evidence elicited at the
hearing, the magistrate adjudicated the children neglected and dependent. The
findings and recommendations of the magistrate were journalized in her January
22, 2009 decision, which was subsequently adopted and approved by the trial
court.
{¶6} On March 10, 2009, the Agency filed a motion for ex parte orders
requesting the children be removed from their placement in their maternal
grandmother’s home due to concerns that their maternal grandmother was abusing
drugs. The information came about after the children’s maternal grandmother was
involved in a single car accident. The police found drugs in the car and the
children’s maternal grandmother tested positive for cocaine on a drug screen. As a
result, the Agency took temporary custody of the children, whom were then placed
in foster care. The goal of the case plan continued to be reunification of the
children with their parents. Latoya’s visitation with the children was to be
-4-
Case No. 13-12-06 and 13-12-07
facilitated through Patchworks House, a neutral off-site location, under the highest
level of supervision.
{¶7} On May 21, 2009, the case plan was amended to require Latoya to be
at Patchworks House thirty minutes prior to her visits with the children and to
suspend her visitation if she missed two or more visits. This change was made due
to the fact that during the prior five visits, Latoya was forty-five minutes late to
one, and missed the other four. The Agency also noted that Latoya had failed to
comply with any of the objectives listed in the case plan. At this point in time,
James had been recently released from jail on a felony non-support charge. While
in jail, James completed parenting classes and some domestic violence classes.
The Agency reserved filing a motion for permanent custody based in part on
James reporting his interest in gaining custody of C.B. and J.C. However, James
was now also required to have his visitation with the children be facilitated
through Patchworks House under the highest level of supervision.
{¶8} On September 14, 2009, the magistrate entered a decision continuing
the children’s temporary custody with the Agency in foster care placement.
Latoya was again incarcerated on pending criminal charges and her visitations
with the children had been suspended due to her failing to attend previously
scheduled visits. Latoya also showed no progress in meeting the objectives in the
case plan. The magistrate’s decision indicated that James had been visiting with
-5-
Case No. 13-12-06 and 13-12-07
the children upon his prior release from jail, but was subsequently incarcerated
again due to violating his probation by testing positive for drugs.
{¶9} On November 16, 2009, the Agency filed a motion requesting an order
terminating its temporary custody of the children and placing them in temporary
custody of Leslie Reynolds in a kinship placement. The children’s placement with
Ms. Reynolds was made at James’ request when the Agency notified him of its
intentions to seek permanent custody of the children. At this time, James was
completing a court-ordered correctional based drug treatment program in Lucas
County and Latoya continued to be incarcerated. The children’s temporary
placement with Leslie Reynolds was subsequently approved by the trial court and
the Agency continued to have protective supervision over the placement.
{¶10} On March 10, 2010, an amendment to the case plan was filed
modifying James visitation from unsupervised visits with the children to visits
under the supervision of Leslie Reynolds or an appropriate off-site agency. The
reason for the change in James’ visitation was due to the fact that he took the
children to a hotel to see Latoya, who had been recently released from prison,
where all four of them spent two days together. This was done in violation of the
case plan, which suspended Latoya’s supervised visitation at a neutral off-site
agency with the children due to her non-compliance with the case plan.
-6-
Case No. 13-12-06 and 13-12-07
{¶11} On May 25, 2010, the Agency moved to have the children removed
from Leslie Reynolds’ custody. Ms. Reynolds informed the Agency that she was
no longer interested in having the children placed with her due to concerns over
the relationship between Latoya and James. After a shelter care hearing, the court
approved the children’s removal from Leslie Reynolds’ home and again placed the
children in the temporary custody of the Agency in foster care. Neither James nor
Latoya was present at the hearing due to being incarcerated at the time.
Specifically, Latoya was in jail pending a felony robbery charge and James was in
jail on charges related to drug trafficking. 2
{¶12} On August 2, 2010, James filed a motion for legal custody as a
dispositional alternative requesting the children be placed in the temporary
custody of their “paternal aunt,” Kenisha White. In the meantime, Latoya had
been sentenced to three years in prison for her robbery conviction, with her stated
prison term ending in May 2013, and James was sentenced to an eight-month
prison term for his conviction of trafficking in drugs.
{¶13} On August 27, 2010, the Agency filed a motion requesting
permanent custody of the children and alleging that the children cannot be placed
with either parent in a reasonable amount of time nor should they be returned to
2
Latoya’s robbery charge stemmed from an incident in which she was caught on video entering a gas
station and demanding money from the clerk with her hand in her front pocket making it appear as if she
had a gun. On July 22, 2010, Latoya pled guilty to the charge. On June 11, 2010, James pled guilty to
trafficking in Marijuana.
-7-
Case No. 13-12-06 and 13-12-07
either parent, and that it is in the best interest of the children for permanent
custody to the Agency to be granted. See R.C. 2151.414(B)(1)(a), (E)(15).
{¶14} On October 12, 2010, the magistrate filed a decision permitting the
Agency to arrange supervised visitations between Kenisha White and the children,
and to have a home study completed of Ms. White’s home. This was done in an
effort to explore a possible kinship placement of the children with Ms. White.
{¶15} On December 1, 2010, the Agency dismissed its motion for
permanent custody of the children filed on August 27, 2010 due to scheduling
conflicts with the Guardian ad litem (“GAL”) in the case and the Agency’s
inability to reschedule the permanent custody hearing within the statutory 200-day
timeframe. The same day the Agency refiled its motion for permanent custody.
{¶16} On February 9, 2011, the GAL filed a report, in which she noted that
Kenisha White could offer the children a potentially safe and permanent home, but
expressed her concerns with the placement being suggested at the behest of James
and Latoya instead of on Ms. White’s initiative. On the same day, a hearing was
held regarding the Agency’s motion for permanent custody and James’ motion for
an order placing the children in the temporary custody of Kenisha White. At the
hearing, James’ counsel requested a continuance to allow for additional time to
implement the kinship placement with Kenisha White. The GAL also indicated
that a grant of additional time to explore the kinship placement with Ms. White
-8-
Case No. 13-12-06 and 13-12-07
would be in the children’s best interest. As a result, the court continued the
proceedings on the Agency’s motion for permanent custody to allow the children
to begin to visit with Ms. White so that they could eventually be placed with her.
James was provided with supervised visitation with the children at Patchworks
House. Latoya continued to be incarcerated at this time. The parties agreed at the
hearing that if the transition of placing the children with Kenisha White was not
progressing successfully, the Agency would refile its motion for permanent
custody.
{¶17} On April 29, 2011, the Agency refiled its motion for permanent
custody of the children. Kenisha White was no longer committed to taking
temporary custody of the children. Ms. White missed several scheduled
visitations with the children and informed the ongoing caseworker that she had
concerns about the children being placed in her home. It was later revealed that
Ms. White is not actually related to James, despite the representations made to the
court by the parents that Ms. White was the children’s paternal aunt. During this
time, James had not exercised any of his visitations with the children and had also
refused to take a drug test. Latoya was still incarcerated and was denied judicial
release.
-9-
Case No. 13-12-06 and 13-12-07
{¶18} On June 10, 2011, the GAL filed a second report in the case. This
time the GAL recommended the court grant the Agency’s motion for permanent
custody.
{¶19} On June 14 and 15, 2011, a hearing on the Agency’s motion for
permanent custody and James’ motion for legal custody of Kenisha White as a
dispositional alternative was held before the magistrate. Several witnesses
testified, including the children’s current foster mother, Tawana Craddolph,
Latoya, the GAL, the ongoing caseworker, Jay Rishty, and Kenneth Kreais, a
friend of Latoya’s. James did not appear at the hearing. James’ counsel made an
oral motion to continue the proceedings in light of James’ absence, which was
overruled by the magistrate.
{¶20} On August 9, 2011, the magistrate issued a 31-page decision on the
matter. Based on the evidence adduced at the hearing, the magistrate found that
the children had been in the temporary custody of the Agency in excess of twelve
months of a consecutive twenty-two-month period. See R.C. 2151.414(B)(1)(d).
The magistrate also found that the evidence supported finding that the children
cannot be placed with either parent within a reasonable time or should not be
placed with either parent. See R.C. 2151.414(B)(1)(a).
{¶21} The magistrate found by clear and convincing evidence that the
Agency had used reasonable efforts to reunite the children with the parents but
-10-
Case No. 13-12-06 and 13-12-07
that the parents have failed to substantially comply with the case plans. The
magistrate then concluded that based on the relevant statutory considerations, it
was in the best interest of the children to be in the permanent custody of the
Agency. Thus, the magistrate found by clear and convincing evidence that the
Agency’s motion for permanent custody should be granted, terminating Latoya’s
and James’ parental rights.
{¶22} Both Latoya and James subsequently filed objections to the
magistrate’s decision. On January 6, 2012, the trial court specifically addressed
and overruled each of Latoya’s and James’ objections to the magistrate’s decision.
The trial court found that the statutory and best interest findings of the magistrate
were supported by the evidence in the record and approved the magistrate’s
decision. Thus, the trial court found that the Agency used reasonable efforts to
reunite the children with their parents and granted the Agency’s motion for
permanent custody, terminating Latoya’s and James’ parental rights. James’
motion for an order placing the children with Kenisha White was also dismissed.
{¶23} Latoya and James now appeal the trial court’s decision, asserting the
following assignments of error.
LATOYA’S ASSIGNMENT OF ERROR NO. I
THE COURT’S GRANT OF PERMANENT CUSTODY TO
THE SENECA COUNTY DEPARTMENT OF JOB AND
FAMILY SERVICES WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
-11-
Case No. 13-12-06 and 13-12-07
LATOYA’S ASSIGNMENT OF ERROR NO. II
THE TRIAL [sic] ERRORED [sic] BY NOT GRANTING
APPELLANT/FATHER’S MOTION FOR CONTIUANCE [sic].
LATOYA’S ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED BY ADMITTING AND
RELYING ON THE GUARDIAN AD LITEM REPORTS
THAT CONTAINED UNDERLYING HEARSAY
INFORMATION AND THAT WERE SUBMITTED OUTSIDE
THE REQUIREMENTS OF THE SUPREME COURT
SUPERINTENDENCE RULE 48 AND FOR NOT INSURING
THE GUARDIAN AD LITEM WAS IN COMPLIANCE WITH
THE SUPREME COURT SUPERINTENDENCE RULE 48.
LATOYA’S ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED BY FINDING THAT THE
SENECA COUNTY DEPARTMENT OF JOB’S [sic] AND
FAMILY SERVICES HAD MADE REASONABLE EFFORTS
TO REUNIFY THE FAMILY.
JAMES’ ASSIGNMENT OF ERROR NO. I
THE COURT ERRED IN ADMITTING AND RELYING ON
THE GUARDIAN AD LITEM REPORTS THAT CONTAINED
UNDERLYING HEARSAY INFORMATION, AND THAT
WERE SUBMITTED OUTSIDE THE REQUIREMENTS OF
THE SUPREME COURT SUPERINTENDENCE RULE 48.
JAMES’ ASSIGNMENT OF ERROR NO. II
THE COURT BELOW ERRED IN AFFIRMING THE
MAGISTRATE’S DENIAL OF A CONTINUANCE OF THE
PERMANENT CUSTODY HEARING SO THAT THE
FATHER COULD ATTEND THE HEARING AND PROVIDE
EVIDENCE AND TESTIMONY.
-12-
Case No. 13-12-06 and 13-12-07
JAMES’ ASSIGNMENT OF ERROR NO. III
THE FINDINGS AND CONCLUSIONS OF THE COURT
BELOW WERE NOT SUPPORTED BY THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶24} Because Latoya’s and James’ assignments of error raise the same
issues, we elect to discuss them together. Furthermore, for ease of discussion we
will address the assignments of error out of order.
Latoya’s and James’ Second Assignments of Error
{¶25} In their second assignments of error, both Latoya and James argue
that the trial court erred when it overruled their objections to the magistrate’s
decision denying the oral motion made by James’ counsel to continue the
permanent custody hearing because James was unavailable to attend the hearing.
{¶26} Juvenile Rule 23 provides that “[c]ontinuances shall be granted only
when imperative to secure fair treatment for the parties.” It is well-settled that
“[t]he grant or denial of a continuance is a matter which is entrusted to the broad,
sound discretion of the trial judge. An appellate court must not reverse the denial
of a continuance unless there has been an abuse of discretion.” State v. Unger, 67
Ohio St.2d 65, 67 (1981). An abuse of discretion implies that the court’s attitude
was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
-13-
Case No. 13-12-06 and 13-12-07
{¶27} Nevertheless, the right of due process requires that “a defense
counsel be afforded the reasonable opportunity to prepare his case.” State v.
Sowders, 4 Ohio St.3d 143 (1983). The Supreme Court of Ohio has recognized: “
‘There are no mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied.’ ” Unger at 67 quoting Ungar v.
Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841 (1964). The trial court may consider
factors such as the length of the delay requested, prior requests for continuances,
the inconvenience to the parties, witnesses, counsel, and the court, whether the
movant contributed to the circumstances giving rise to the request for a
continuance, and other relevant factors depending on the facts of the case. State v.
Landrum, 53 Ohio St.3d 107 (1990).
{¶28} The magistrate in her decision stated the following with regard to the
oral motion for a continuance made on James’ behalf by his counsel.
Father, James Carswell, Sr., was not present and did not appear
for either date [of the permanent custody hearing]. He is
represented by counsel. [James’ counsel] informed the court
that Father contacted him on June 13, 2011 at 4:45 p.m. to
inform [his counsel] that he was unable to make it to the hearing
on June 14, 2011 as he was in Atlanta, Georgia. Father then
stated that he was without transportation to make it from
Toledo, Ohio to Tiffin, Ohio for the hearing, even though he had
just told [his counsel] he was out of state. Father further stated
to [his counsel] that he wanted the attorney that he spoke to [a]
-14-
Case No. 13-12-06 and 13-12-07
few weeks ago to represent him in this matter. Finally he told
him that he wanted a new attorney for these matters. [James’
counsel] informed the court that he believed that the other
attorney he spoke to was [J.C.’s attorney] in these matters.
***
Father gave three reasons for not being able to attend the
hearing. The magistrate does not find any of the excuses
reasonable. The first notice of these hearings was personally
served on Father on February 2, 2011. The second notice for
these hearing dates was sent to Father by certified mail on or
about May 2, 2011 and [a] certified return receipt was filed by
the court on May 6, 2011. Father has had more than enough
time to make sure he was not out of state, had arranged and
secured transportation, or seek another attorney to represent
him in these matters.
(Magistrate’s Decision, Aug. 9, 2011, at p. 2).
{¶29} On appeal, neither James nor Latoya dispute the fact that James was
properly served with notice of the permanent custody proceedings and that he had
ample time to secure another attorney if he was dissatisfied with the one appointed
to him. In fact, his own counsel on the record informed the court that he had
called James two weeks prior to the permanent custody hearing to remind him of
the hearings dates.
{¶30} James cites to In re Edward M., 6th Dist. Nos. L-04-1282, L-04-
1304, 2005-Ohio-3354, in support of his position. However, in that case, the
father-appellant did not appear at the permanent custody hearing because he was
suddenly hospitalized. In reversing the decision of the trial court overruling
father-appellant’s motion for a continuance, the Sixth District noted that the
-15-
Case No. 13-12-06 and 13-12-07
father’s absence at the proceedings was through no fault of his own, he had always
appeared for scheduled hearings, never before asked for a continuance and had
attended all scheduled visits with the children except when he was hospitalized.
Here, the record demonstrates that James consistently missed court hearings
requiring his attorney to ask for multiple continuances due to James’ absences, and
that James failed to regularly exercise visitation with his children.
{¶31} Moreover, it is apparent from the record that James was continually
represented by counsel throughout the custody proceedings with the Agency,
despite the fact that James chose to not actively participate in the case. James
never provided the court with a valid excuse for his lack of involvement in such a
crucial court proceeding resulting in the termination of his parental rights.
Accordingly, under the particular facts and circumstances presented in this case,
we conclude that the trial court did not abuse its discretion in overruling the oral
motion made by James’ counsel to continue the permanent custody hearing.
Latoya’s and James’ second assignments of error are overruled.
Latoya’s Third Assignment of Error and James’ First Assignment of Error
{¶32} In these assignments of error, Latoya and James contend that the trial
court erred when it overruled their objections to the magistrate’s decision
challenging the admissibility of the GAL’s report. Latoya and James assert two
reasons in support of their argument that the GAL’s report was inadmissible.
-16-
Case No. 13-12-06 and 13-12-07
First, they argue that the GAL did not comply with the guidelines established in
Sup.R. 48 because she never observed James interact with the children. Second,
they argue that the GAL report contains hearsay. However, neither parent
identifies a specific portion of the report to contain hearsay, but instead simply
makes a general assertion regarding the inadmissibility of the report.
{¶33} Initially, we note that neither Latoya nor James objected to the
admissibility of the GAL’s report at the permanent custody hearing. It is well
established that if a party fails to object at the trial court level, that party waives all
but plain error. “A ‘plain error’ is obvious and prejudicial although neither
objected to nor affirmatively waived which, if permitted, would have a material
adverse affect on the character and public confidence in judicial proceedings.”
Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982). The Ohio Supreme
Court has discussed the application of the plain error doctrine in civil cases,
finding that, “[i]n appeals of civil cases, the plain error doctrine is not favored and
may be applied only in the extremely rare case involving exceptional
circumstances where error, to which no objection was made at the trial court,
seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process
itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, syllabus (1997).
-17-
Case No. 13-12-06 and 13-12-07
{¶34} Here, both Latoya and James were provided with a full and fair
opportunity to cross-examine the GAL regarding her observations and findings at
the permanent custody hearing. The record indicates that the GAL was assigned
to the case in August of 2009 after replacing the original CASA assigned to the
case. At the permanent custody hearing, the GAL testified that during the time she
was on the case, she was unable to observe James interact with the children
because James’ visitation at Patchworks House was done prior to her taking over
the case. However, she explained that she read the reports of her predecessor
regarding James’ visits which indicated that his visits went “wonderfully” and by
all reports he was doing “remarkably well.” (Trans. at 140, 146). The GAL also
testified that she was hoping James “would do what he needed to do to get these
kids.” (Trans. at 140).
{¶35} The record indicates that James was able to get unsupervised
visitation with the children and saw the children on a somewhat regular basis
when they lived with Leslie Reynolds. However, the GAL testified that after the
placement with Ms. Reynolds terminated and the children were returned to foster
care, James failed to exercise visitation with the children partially due in part to
being incarcerated during some of this time, but also due to his own lack of
initiative. Specifically, the GAL noted that James had not seen the children since
-18-
Case No. 13-12-06 and 13-12-07
March of 2010 and had neglected to set-up visitations since last being released
from prison in early 2011.
{¶36} Finally, both the magistrate’s decision and the judgment entry of the
trial court granting permanent custody of the children to the Agency revealed that
the magistrate’s and trial court’s reliance on the GAL’s report was minimal.
Rather, both cited to the evidence presented at the permanent custody hearing in
addition to the extensive record in the case proceedings as the basis for their
determinations.
{¶37} For all these reasons, we find that the magistrate did not commit
plain error when it admitted the GAL’s report into evidence. Likewise, we
conclude that neither Latoya nor James suffered any prejudice as a result of the
magistrate’s and trial court’s limited consideration of the GAL’s report.
Therefore, Latoya’s third and James’ first assignments of error are overruled.
Latoya’s Fourth Assignment of Error
{¶38} In her fourth assignment of error, Latoya contends that the trial court
erred when it determined that the Agency used reasonable efforts to reunify the
children with her.
{¶39} The Revised Code imposes a duty on the part of children services
agencies to make reasonable efforts to reunite parents with their children where
the agency has removed the children from the home. R.C. 2151.419; see, also, In
-19-
Case No. 13-12-06 and 13-12-07
re Brown, 98 Ohio App.3d 337, 344 (1994). Further, the agency bears the burden
of showing that it made reasonable efforts. R.C. 2151.419(A)(1). “Case plans are
the tools that child protective service agencies use to facilitate the reunification of
families who * * * have been temporarily separated.” In re Evans, 3d Dist. No. 1–
01–75, 2001–Ohio–2302. To that end, case plans establish individualized
concerns and goals, along with the steps that the parties and the agency can take to
achieve reunification. Id. Agencies have an affirmative duty to diligently pursue
efforts to achieve the goals in the case plan. Id. “Nevertheless, the issue is not
whether there was anything more that [the agency] could have done, but whether
the [agency’s] case planning and efforts were reasonable and diligent under the
circumstances of this case.” In re Leveck, 3d Dist. Nos. 5–02–52, 5–02–53, 5–02–
54, 2003–Ohio–1269, ¶ 10.
{¶40} On appeal, Latoya points to the fact that she was incarcerated for the
majority of the time the children were in the Agency’s temporary custody and
argues that the Agency failed to ensure she maintained reasonable contact and/or
visitation with C.B. and J.C. In particular, Latoya claims that she was denied
phone contact with C.B. and J.C. when she tried to call the children while they
lived with Tawana Craddolph, the children’s foster mother. Latoya also contends
that the Agency failed to provide sufficient case plan services to her so that she
could meet the objectives in the case plan.
-20-
Case No. 13-12-06 and 13-12-07
{¶41} First, Latoya’s claim that she was denied phone contact and/or
visitation with her children while she was incarcerated is unsubstantiated by the
record. Ms. Craddolph testified that she never denied Latoya phone contact with
the children while they were in her care. Ms. Craddolph further testified that she
only received one call from Latoya asking to speak to the children, at which point
Latoya was able to talk to the children. Other than this one phone call, Ms.
Craddolph explained that she had received calls from the prison but was not home
at the time to accept the calls. Moreover, there is no indication in the record that
Latoya ever petitioned the court to set up visitation with the children at the prison.
However, the record does indicate that when Latoya was intermittently released
from prison during the three years of the Agency’s involvement, she only
sporadically visited the children and frequently would not show for scheduled
visitations, despite the Agency’s efforts to facilitate her visitations.
{¶42} Second, the evidence at the permanent custody hearing revealed that
the Agency made several attempts to assist Latoya with her drug addiction, which
appeared to be a major obstacle in her ability to meet the objectives in the case
plan. Specifically, Jay Rishty, the ongoing caseworker on the case, testified that
the Agency helped get Latoya admitted into a rehabilitation facility, which cost the
Agency $1,500.00. However, Latoya left the facility before completing the
program. Mr. Rishty also arranged for Latoya to live at a homeless shelter, which
-21-
Case No. 13-12-06 and 13-12-07
worked with a counseling center and would help Latoya meet some of the
counseling requirements stated in the case plan. Latoya left the shelter two days
later. In addition, Latoya continued to test positive on drug screens throughout the
three years the Agency had temporary custody of her children.
{¶43} Based on the foregoing, we find that the Agency satisfied its duty to
diligently pursue efforts to achieve the goals in the case plan. The Agency’s case
planning and efforts were reasonable and diligent under the circumstances of this
case. It is evident that Latoya’s failure to actively meet the objectives in the case
plan was through no one’s fault but her own. The record is replete with instances,
in which the Agency attempted to assist Latoya with remedying the issues
preventing her from reunifying with C.B. and J.C., but Latoya chose not to
participate in removing those barriers. Therefore, we find that the magistrate and
the trial court did not err when they determined that the Agency had made
reasonable efforts to prevent the continued removal of the children from Latoya’s
home. Latoya’s fourth assignment of error is overruled.
Latoya’s First Assignment of Error and James’ Third Assignment of Error
{¶44} In these assignments of error, Latoya and James claim that the
findings and conclusions of the magistrate and the trial court granting permanent
custody of C.B. and J.C. to the Agency were not supported by the manifest weight
of the evidence.
-22-
Case No. 13-12-06 and 13-12-07
{¶45} As an initial matter, we note that “[i]t is well recognized that the
right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3d
Dist. Nos. 9–06–12, 9–06–13, 2006–Ohio–4841, ¶ 9, citing In re Hayes, 79 Ohio
St.3d 46, 48 (1997). The Supreme Court of Ohio has held that a parent “must be
afforded every procedural and substantive protection the law allows.” In re
Hayes, supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (1991). Thus, it is with
these constructs in mind that we proceed to determine whether the trial court erred
in granting permanent custody of the children to the Agency.
{¶46} Section 2151.414(B)(1) of the Revised Code provides, inter alia, that
a trial 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:
(a) The child is not abandoned or orphaned, has not 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, * * * and the
child cannot be placed with either of the child’s parents within a
reasonable time or should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the
child who are able to take permanent custody.
-23-
Case No. 13-12-06 and 13-12-07
(d) 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, or 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 and * * * the child was previously in
the temporary custody of an equivalent agency in another state.
R.C. 2151.414(B)(1)(a-d) (emphasis added).
{¶47} The Supreme Court of Ohio has held that “[c]lear and convincing
evidence is that measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Further, “[i]t is
intermediate; being more than a mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.” Id., citing Merrick v. Ditzler, 91 Ohio St. 256(1915). In addition, when “the degree of proof required to sustain an issue must
be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite
degree of proof.” Cross, supra (citations omitted); see, also, In re Adoption of
Holcomb, 18 Ohio St.3d 361, 368 (1985).
{¶48} At the outset, we note that Latoya and James do not dispute the
finding of the magistrate and the trial court that the children have been in the
Agency’s temporary custody in excess of the required twelve or more months in a
-24-
Case No. 13-12-06 and 13-12-07
consecutive twenty-two-month period. See R.C. 2151.414(B)(1)(d). In addition
to the court finding a grant of permanent custody to the Agency is in the children’s
best interest, this finding without more provides the court with the appropriate
grounds to grant the Agency’s motion for permanent custody. However, the
magistrate and the trial court made the additional finding that the children cannot
be placed with either parent within a reasonable time or should not be placed with
either parent. R.C. 2151.414(B)(1)(a). The assignments of error raised are related
to this additional finding by the magistrate and the trial court, therefore, in the
interest of justice we will address the arguments made regarding the adequacy of
this specific finding.
{¶49} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a)
that the children cannot be placed with either parent within a reasonable time or
should not be placed with either parent, the Revised Code states as follows:
(E) In determining at a hearing held pursuant to division (A) of
this section * * * whether a child cannot be placed with either
parent within a reasonable period of time or should not be
placed with the parents, the court shall consider all relevant
evidence. If the court determines, by clear and convincing
evidence, at a hearing held pursuant to division (A) of this
section * * * that one or more of the following exist as to each of
the child’s parents, the court shall enter a finding that the child
cannot be placed with either parent within a reasonable time or
should not be placed with either parent:
(1) Following the placement of the child outside the child’s
home and notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parents to remedy the
-25-
Case No. 13-12-06 and 13-12-07
problems that initially caused the child to be placed outside the
home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the
parents have substantially remedied those conditions, the court
shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and
material resources that were made available to the parents for
the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the
child;
***
(12) The parent is incarcerated at the time of the filing of the
motion for permanent custody or the dispositional hearing of the
child and will not be available to care for the child for at least
eighteen months after the filing of the motion for permanent
custody or the dispositional hearing.
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the
child.
***
(16) Any other factor the court considers relevant.
R.C. 2151.414(E) (emphasis added).
{¶50} On appeal, Latoya and James contend that the evidence at the
permanent custody hearing was insufficient for the magistrate and the trial court to
-26-
Case No. 13-12-06 and 13-12-07
conclude that they have demonstrated a lack of commitment toward their children
by failing to regularly support, visit, or communicate with their children when able
to do so, or by other actions showing an unwillingness to provide an adequate
permanent home for the children. See R.C. 2151.414(E)(4). Notably, neither
Latoya nor James dispute the fact that their repeated incarceration during the
three-year period of the Agency’s involvement prevented them from providing
care for C.B. and J.C. See R.C. 2151.414(E)(13).
{¶51} Specifically with regard to her arguments on appeal, Latoya contends
that the evidence at the permanent custody hearing establishes that, while she has
been incarcerated, she has successfully completed substance abuse programs,
“family responsibility” programs, and participated in an anxiety group that
addresses mental health related issues. Latoya also asserts that the evidence at the
hearing demonstrates she has filed a second motion for judicial release and is
hopeful that it will be granted. Furthermore, Latoya points to the testimony
provided at the hearing by her friend Kenneth Kreais, in which Mr. Kreais
confirmed that Latoya and the children can stay with him at his home upon
Latoya’s release from prison. Latoya claims this evidence proves her commitment
to her children in that she is now actively working toward some of the objectives
in the case plan and that if she is given an additional six months before the trial
-27-
Case No. 13-12-06 and 13-12-07
court ruled on the Agency’s permanent custody motion, then she will hopefully be
released from prison and able to provide the children with stable housing.
{¶52} Despite Latoya’s contentions, there is an overwhelming amount of
evidence in the record to support the findings of the magistrate and the trial court
on this issue. The record demonstrates that Latoya was given ample opportunity
to complete the minimal objectives in the case plan in order to regain custody of
her children, but that she chose not to take the initiative to accomplish these tasks
during the limited intervals of time that she was released from prison.
{¶53} For instance, Latoya consistently failed to exercise visitation with her
children in accordance with the case plan. In fact, Jay Rishty, the ongoing
caseworker in the case, testified that Latoya would either arrive late to visitations
at Patchwork House or not show up at all. Mr. Rishty testified that this was
having a noticeably harmful effect on the children. As a result, the Agency would
not take the children to Patchwork House for Latoya’s visits unless Latoya had
called 24-hours in advance to confirm she would be there. This procedure was
implemented because the disappointment of waiting for Latoya to arrive to the
visitations and then have her not show was becoming too much for the children to
handle. Moreover, Latoya admitted at the permanent custody hearing that her
visitations with the children were sporadic and that she had missed visits. The last
-28-
Case No. 13-12-06 and 13-12-07
time Latoya saw C.B. and J.C. was in March of 2010 when James violated the
case plan and took the children to see Latoya at a hotel in Toledo.
{¶54} At the permanent custody hearing, Latoya also admitted to using
drugs during her intermittent releases from prison. Latoya explained that her drug
use contributed to her not taking seriously the case plan and the Agency’s
involvement with the custody of C.B. and J.C. Latoya testified that it is difficult
for her to stay clean and sober when she is not incarcerated. Latoya further
admitted that it has only been in the last year, during her most recent incarceration,
that she has begun to take steps to meet the objectives in the case plan. Mr. Rishty
confirmed that Latoya loses control of her life when she is not in prison.
Specifically, he testified that during the past three years, a pattern has emerged in
Latoya’s behavior that upon her release from prison she returns to her chronic
drug abuse and unstable housing, which consists of her living in various hotels.
{¶55} Finally, Latoya’s assertion of her impending early release from
prison is purely speculative. The record demonstrates that her stated prison term
expires in May 2013 and there is no indication that Latoya’s motion for judicial
release has been granted. In addition, Kenneth Kreais did testify that Latoya and
the children could stay with him upon Latoya’s release from prison. However,
Mr. Kreais stated that it would only be on a temporary basis, for weeks or maybe
-29-
Case No. 13-12-06 and 13-12-07
months, but that he would not provide a permanent solution to Latoya’s repeated
inability of providing stable housing for the children.
{¶56} As for his part, James argues on appeal that the record demonstrates
that he has made efforts to maintain custody of C.B. and J.C. and has attempted to
meet the objectives of the case plan. In addition, James points to the two kinship
placements he requested the Agency to explore as evidence of his commitment to
his children.
{¶57} At the outset, we note that even though James had arranged for the
children to be placed in the temporary custody of “relatives” under the Agency’s
protective supervision, there was no evidence that either Leslie Reynolds or
Kenisha White were actual blood relatives of James or the children, as James
represented to the court. In fact, it appears from the testimony at the permanent
custody hearing that Ms. Reynolds had a personal relationship with James and was
only willing to take custody of the children if Latoya remained out of the picture.
However, upon Latoya’s previous release from jail in 2010, Ms. Reynolds lost
interest in having custody of the children and the “kinship” placement fell apart.
As for Kenisha White, the record establishes that she never took the initiative to
set up the “kinship” placement and ultimately told the Agency that she was not
interested in having temporary custody of the children. Thus, James’ suggested
-30-
Case No. 13-12-06 and 13-12-07
“kinship” placements did not provide adequate alternatives to the children’s
permanent custody with the Agency.
{¶58} In addition, the testimony at the permanent custody hearing
establishes that James had the potential to be a good father to the children, but that
he lacked initiative and follow through when it came to doing the work to regain
custody of C.B. and J.C. Although not to the same extent as Latoya, James was
intermittently incarcerated during the three years of the Agency’s involvement
with the children. However, unlike Latoya, James had more free time during the
three year period, when he was not incarcerated, to establish consistent visitations
with C.B. and J.C. but chose not to do so. Furthermore, at no point in time during
these proceedings was James able to provide stable housing for the children. He
lived in Toledo with his aunt, who made it clear that she did not want to be
involved with the children’s custody. Moreover, the record is replete with
instances in which James failed to appear at pertinent hearings during this case,
including the permanent custody hearing which was James’ last opportunity to
present evidence demonstrating why the Agency’s motion for permanent custody
should not be granted.
{¶59} Mr. Rishty, the ongoing caseworker, testified that “we have now
been on this case for three years. The parents are in no better position, in fact,
they are in a worse position now to take custody of their children.” (Trans. at
-31-
Case No. 13-12-06 and 13-12-07
166). The record of these proceedings and the evidence elicited at the permanent
custody hearing supports this conclusion. Thus, we find that the determination of
both the magistrate and the trial court that Latoya and James demonstrated a lack
of commitment toward their children by failing to regularly support, visit, or
communicate with their children when able to do so, or by other actions showing
an unwillingness to provide an adequate permanent home for the children was
supported by clear and convincing evidence. Accordingly, we conclude that the
magistrate’s and the trial court’s determinations that the children cannot be placed
with either Latoya or James within a reasonable period of time or should not be
placed with them were not against the manifest weight of the evidence.
{¶60} Although we conclude that the findings of the magistrate and the trial
court regarding R.C. 2151.414(B)(1)(a) were not against the manifest weight of
the evidence, before granting permanent custody of C.B. and J.C. to the Agency,
the magistrate and the trial court also had to find that granting permanent custody
to the Agency was in the children’s best interest. Latoya and James contend that
the magistrate and the trial court erred in finding permanent custody is in the
children’s best interest and that the decisions were against the manifest weight of
the evidence.
{¶61} In order to determine whether granting permanent custody to an
agency is in a child’s best interest, the court must consider all relevant factors,
-32-
Case No. 13-12-06 and 13-12-07
including, but not limited to, five enumerated factors listed in R.C. 2151.414(D).
These factors are:
(1) The interaction and interrelationship of the child with the
child’s parent, siblings, relatives, foster caregivers and out-of
home providers, and any other person who may significantly
affect the child;
(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 * * * for twelve or more months of a
consecutive twenty-two month period * * *;
(4) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency; and
(5) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶62} On appeal, Latoya and James argue that the magistrate and the trial
court overlooked the strong bonds the children have with their half-siblings and
relatives in their determinations that granting permanent custody of the children to
the Agency is in their best interest. See R.C. 2151.414(D)(1).
{¶63} The evidence in the record of the children’s relationships with their
half-siblings and relatives is limited. At the time of the permanent custody hearing
C.B. and J.C. had spent two-thirds of their short lives in the Agency’s temporary
custody. C.B was barely two-years-old when the Agency became involved and
-33-
Case No. 13-12-06 and 13-12-07
J.C. was almost ten-months old. The children had not seen their maternal
grandmother since 2009 and their maternal half-sister had moved to Chicago to
live with her father. Tawana Craddolph, the children’s foster mother and the only
consistent parental figure in their lives, testified that the children had seen their
paternal half-siblings once at a birthday party and that James was unaware that
C.B. and J.C. visited with his other children. Ms. Craddolph also testified that the
children have learned to be reserved about whom they identify as their “family”
and truly only consider each other their “family.”
{¶64} In contrast, there was ample evidence presented at the permanent
custody hearing demonstrating that the lack of permanency in the children’s living
situation and the constant roller coaster of being shuffled from one person’s home
to another, which was done at Latoya’s and James’ requests, were beginning to
have a detrimental effect on them. See R.C. 2151.414(D)(4). Ms. Craddolph
explained that C.B. and J.C. “need some permanency in their [lives]. They don’t
need to keep going to cousins, aunties, whoever and—because when they keep
doing that then they get returned back to the agency, that’s like a fall for them to
say, “Where do I belong?” You know, it’s like a scab being opened constantly to
them, that there’s no healing right now for it so.” (Trans. at 38). Both the ongoing
caseworker and the GAL assigned to the case echoed similar sentiments about the
children’s need for a permanent home. Specifically, the GAL testified that the
-34-
Case No. 13-12-06 and 13-12-07
children have begun to exhibit behavior and attachment issues, and that it has been
recommended that they seek counseling to address these problems. The GAL
explained she believed that once the children were in a “forever home” they would
flourish.
{¶65} Based on the evidence in the record, we conclude that the
determinations of the magistrate and the trial court that it is in the best interest of
the children to grant permanent custody to the Agency were supported by clear
and convincing evidence and were not against the manifest weight of the evidence.
Therefore, Latoya’s first and James’ third assignments of error are overruled.
{¶66} For all these reasons, the judgments of the Seneca County Court of
Common Pleas, Juvenile Division, are affirmed.
Judgments Affirmed
PRESTON and ROGERS, J.J., concur.
/jlr
-35-