Lead Opinion
{¶ 3} On January 5, 2006, a dependency action was filed in the Ross County Court of Common Pleas, Juvenile Division. Appellant was represented by counsel at her arraignment hearing held on January 9, 2006, wherein she entered a plea of admission to the allegations of dependency. Thereafter, the matter came on for disposition on April 25, 20062, at which time the child was adjudicated a dependent child and was ordered to remain in the temporary custody of RCJFS, pending a review hearing. At a review hearing held on October 24, 2006, temporary custody was extended.
{¶ 4} Caseworker Teresa Babb testified that during the time that the child was in the temporary custody of RCJFS, Appellant visited only sporadically from January 2006 until October 2006. Beginning in October of 2006, Appellant's visits with the child stopped for a period exceeding ninety days and did not resume until January 30, 2007, four days after a motion for permanent custody was filed with the court. Babb also testified that Appellant's sister regularly visited with the child for a short period of time; however, when Appellant stopped having contact with the child, *4 RCJFS informed the sister that a motion for permanent custody was likely to be filed. As a result, Appellant's sister stopped visiting.
{¶ 5} On January 26, 2007, the State filed a motion for permanent custody. This motion was based on (1) Appellant's failure to visit with the child since August 17, 2006 and failure to have any contact with the agency since October 2006; (2) Appellant's failure to complete any part of her case plan3; and (3) Danny Long's failure to have any contact whatsoever with the child. On January 30, 2007, just four days after the motion for permanent custody was filed, a review hearing was held. Appellant attended the hearing and then visited with the child on that day. Soon after, Appellant provided the agency with a new address, where she claimed to have been residing for two months prior to the filing of the motion.
{¶ 6} The motion for permanent custody came on for hearing over a two day period, on April 30, 2007 and May 18, 2007. The guardian ad litem submitted a report at the April 30, 2007 hearing, but requested permission to hear the presentation of the evidence before making his final recommendation as to placement. After hearing two days of testimony, the *5 court ordered that the parties submit written briefs in support of their respective positions.
{¶ 7} Appellant filed her written argument to the court on June 8, 2007, contending that she had made progress towards the case plan and reunification. Specifically, Appellant asserted that she had obtained suitable housing with friends, had a job caring for her friend's children in exchange for payment, room and board, had completed parenting classes, and had an appointment scheduled with a new psychiatrist. Appellant also asserted that she had maintained regular contact with the child since the filing of the motion for permanent custody and claimed that lack of transportation was the reason for her failure to visit with the child from October 2006 to January 2007.
{¶ 8} The State filed its written argument to the court on June 14, 2007, asserting that it had proven by clear and convincing evidence that a grant of permanent custody was in the best interests of the child and that the child had been in the custody of the agency for more than twelve of the last twenty-two consecutive months. The State argued that Appellant had failed to complete any part of her case plan at the time of the filing of the motion for permanent custody and that even at the time of the hearings, had failed to follow-up with her psychiatrist as required. Specifically, the State argued *6 that Appellant had had ten different residences since the time the child had been placed in the care of the agency, that Appellant had stopped treating with her psychiatrist, had gone off of her medication, had gone for a period exceeding ninety days without contacting the child and that the child's father had abandoned him. The State further argued that the child could not be and should not be placed with either parent within a reasonable amount of time despite the reasonable efforts of the agency, that the parents had demonstrated a lack of commitment to the child, had abandoned the child, that the child had been in the custody of the agency for over twelve of the last twenty-two consecutive months and that a grant of permanent custody was in the best interest of the child.
{¶ 9} On July 24, 2007, the magistrate's order was filed, granting the State's motion for permanent custody and terminating all parental rights and responsibilities of Appellant, as well as Danny Long. Appellant subsequently filed a motion for findings of fact and conclusions of law as well as objections to the magistrate's order. Upon the filing of the findings of fact and conclusions of law on October 29, 2007, Appellant re-filed her objections to the magistrate's decision on November 5, 2007; however, the trial court issued its entry adopting the magistrate's decision on November 15, 2007. A notice of appeal was filed on November 29, 2007; however, this *7 Court determined, by entry dated January 18, 2008, that because the trial court's entry did not separately state the judgment and relief granted to the parties, that it was not a final, appealable order and that the appeal must be dismissed.
{¶ 10} The trial court issued a corrected entry on January 29, 2008, and a second notice of appeal was filed on February 26, 2008, assigning the following errors for our review.
{¶ 11} "I. MOTHER-APPELLANT'S ADMISSION OF DEPENDENCY WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE.
{¶ 12} II. MOTHER-APPELLANT WAS DENIED DUE PROCESS BY THE FAILURE OF RCCS TO MAKE REASONABLE REUNIFICATION EFFORTS.
{¶ 13} III. THE TRIAL COURT ERRED IN FINDING THAT RCCS MADE REASONABLE REUNIFICATION EFFORTS, TO INCLUDE INVESTIGATING POTENTIALLY SUITABLE RELATIVE PLACEMENTS.
{¶ 14} IV. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY IN THE ABSENCE OF EVIDENCE OF RECORD EITHER OF THE CHILD'S WISHES CONCERNING PLACEMENT, OR EVIDENCE THAT THE CHILD WAS INCAPABLE OF EXPRESSING A PREFERENCE.
{¶ 15} V. THE JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." *8
{¶ 17} At the outset, we note it is well established that a parent's right to raise a child is an essential and basic civil right. In reHayes (1997),
{¶ 18} RC.
{¶ 19} We note that clear and convincing evidence must exist to support a permanent custody award. The Supreme Court of Ohio has defined "clear and convincing evidence" as follows: "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." In re Estate ofHaynes (1986),
{¶ 20} Moreover, "an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusion of law." Id. Issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact. As the court explained in Seasons Coal Co. v. Cleveland (1984),
The Supreme Court of Ohio has held that:
"An adjudication by a juvenile court that a child is `neglected' or `dependent' as defined in R.C. Chapter
2151 followed by a disposition awarding temporary custody to a public children services agency pursuant to R.C.2151.353 (A)(2) constitutes a `final order' within the meaning of R.C.2505.02 and is appealable to the court of appeals pursuant to R.C.2501.02 ." In re Murray (1990),, 52 Ohio St.3d 155 , syllabus. 556 N.E.2d 1169
As set forth above, Appellant admitted that her child was a dependent child and agreed to continued temporary custody at her arraignment hearing held on January 9, 2006. The child was subsequently adjudicated a dependent child as to Appellant when the matter came on for disposition on April 25, 2006, at which time temporary custody was again ordered to be continued. Thus, the juvenile court's April 25, 2006, entry adjudicating the child dependent and ordering temporary custody to remain with RCJFS was a final, appealable order. In the Matter ofC.G., Preble App. Nos. CA2007 030005 and 006,
{¶ 22} A notice of appeal in a civil case must be filed within 30 days of the date of the entry of the judgment or order appealed from. App. R. 4. Appellant never appealed the dependency adjudication which continued *12 permanent custody of the child with RCJFS. Thus, she cannot now, on appeal of a subsequent grant of permanent custody, raise errors which occurred at the earlier hearing. In the Matter of C.G. at ¶ 12. Because Appellant did not timely appeal the lower court's April 25, 2006, entry, this Court is without jurisdiction to consider her first assignment of error and it is, therefore, overruled.
{¶ 23} However, we nevertheless wish to briefly address the juvenile court's procedure with respect to Juv. R. 29(D). Juv. R. 29 sets forth the procedure that a trial court must follow upon accepting a plea of admission to the allegations of a complaint at an adjudicatory hearing. Juv. R. 29(D) specifically provides that a court:
"shall not accept an admission without addressing the party personally and determining both of the following: (1) The party is making the admission voluntarily with understanding of the nature of the allegations and the consequences of the admission; (2) The party understands that by entering an admission the party is waiving the right to challenge the witnesses and evidence against the party, to remain silent, and to introduce evidence at the adjudicatory hearing."
As explained by the court in In the Matter of C.G., supra, in order to comply with Juv. R. 29(D), the court must perform an on-the-record exchange with the party to determine whether his or her admission is knowing, intelligent and voluntary. Substantial compliance, rather than strict compliance, with the rule is required. In the Matter of C.G. at ¶ 14. *13
{¶ 24} A review of the transcript from the adjudicatory hearing reveals that although the juvenile court did engage in an on-the-record colloquy with Appellant, it failed to advise her, in accordance with Juv. R. 29(D)(2), that "by entering an admission [she] is waiving the right to challenge the witnesses and evidence against [her], to remain silent, and to introduce evidence at the adjudicatory hearing." Thus, substantial compliance with the rule was not accomplished. Nonetheless, because Appellant did not timely appeal these deficiencies, she has waived the argument for purposes of appeal. Accordingly, we are without jurisdiction to consider her argument and we must, therefore, overrule her first assignment of error.
{¶ 25} In her second assignment of error, Appellant contends that she was denied due process by the failure of RCJFS to make reasonable reunification efforts. Specifically, Appellant contends that "reasonable reunification efforts include investigating potentially suitable relative placements." In support of her argument, Appellant relies on a recent holding by the Supreme Court of Ohio in In re C.F.,
{¶ 26} We initially address the issue of whether or not RCCS had a duty to make reasonable reunification efforts in a permanent custody case. The Supreme Court of Ohio has held that "except for some narrowly defined statutory exceptions, the state must make reasonable efforts to reunify the family before terminating parental rights. If the agency has not already proven reasonable efforts, it must do so on a motion for permanent custody. However, the specific requirement to make reasonable efforts that is set forth in R.C.2151.419(A)(1) does not apply in an R.C.
{¶ 27} Appellant claims that "the sister of appellant was known to RCJFS, yet the agency took no action to investigate this potential relative placement. Appellant further claims that "appellant's sister sought out RCCS, but was summarily and arbitrarily rebuffed by a caseworker who had already made up her mind that the child's best interests required permanent custody." A review of the record reveals that Appellant's sister contacted RCJFS and actually visited with the child weekly for a short period of time. However, during the time Appellant's sister was visiting with the child, Appellant's visitation with the child was sporadic and then completely stopped for a period exceeding ninety days. Based upon these facts, *15 caseworker Teresa Babb testified that "our agency did not feel that it is in Brandon's best interest just to be placed in the legal custody, that we needed to terminate parental rights." In trying to explain her decision, Babb also testified that she explained to Appellant's sister that the agency "was not in favor of just allowing or asking the Court to place B.D. in her legal custody [because they] thought it would be better to try to terminate parental rights because [they] were not having contact with Brittany." Once this was explained to Appellant's sister, she stopped visiting with the child.
{¶ 28} In light of this testimony, we believe that RCJFS made satisfactory reunification efforts with respect to an attempted relative placement. The trial court found that no relative placement was available for the child, that the child needs and deserves a legally secure permanent placement, the child is adoptable and has the potential for secure permanent placement, and the child is unlikely to ever have a secure permanent placement without permanent custody being granted to the agency. In light of the foregoing testimony by Babb regarding relative placement, combined with the evidence in the record that the child had been in the temporary custody of RCJFS for 12 or more months of a consecutive 22 month period, that the child's father had abandoned him and that the child's mother had gone more than 90 days without contacting him, which also constitutes *16 abandonment4, we believe that the trial court could properly conclude that RCJFS had made reasonable efforts in trying to investigate relative placement.
{¶ 29} Thus, we conclude that the record contains competent, credible evidence that RCJFS made reasonable efforts to reunify this family, specifically by attempting to secure relative placement prior to the filing of a motion for permanent custody. Further, we have previously held that "a juvenile court need not find, by clear and convincing evidence, that a relative is an unsuitable placement option prior to granting the permanent custody request. In the Matter of Keaton, Ross App. No. 04CA2785 and 2788,
{¶ 30} Appellant, in her third assignment of error, contends that the trial court erred in finding that RCJFS made reasonable reunification efforts, to include investigating potentially suitable relative placements. Appellant essentially incorporates by reference her arguments contained in her second assignment of error, but takes it a step further by now claiming the trial court had a duty to consider the possibility of relative placement, but that it did not *17
do so. Appellant contends that the record reveals that RCJFS made no effort in obtaining a suitable relative placement and that the court erred in finding that no relative placement was available, relying on R.C.
{¶ 31} We have already concluded that the record contains competent, credible evidence that RCJFS made reasonable efforts to reunify this family, specifically by attempting to secure relative placement prior to the filing of a motion for permanent custody. A trial court's discretion with respect to child custody issues should generally be accorded the utmost respect, especially in view of the nature of the proceeding and the impact the court's determination will have on the parties' lives. See, e.g. Davis v. Flickinger (1997),
{¶ 32} In her fourth assignment of error, Appellant contends that the trial court erred in granting permanent custody in the absence of evidence of record either of the child's wishes concerning placement, or evidence that the child was incapable of expressing a preference. Appellant supports her argument by arguing that the guardian ad litem report contained no reference to the child's wishes. Appellant further argues that the child may well have been able to express his wishes regarding placement, relying on In re J. W., Franklin App. Nos. 06AP-864, 06AP-1062 and 06AP-875,
{¶ 33} In In re J. W., the court noted that the guardian ad litem report failed to discuss the child's maturity or ability to express himself, the child's *19 wishes as to placement or the guardian's recommendation as to placement. Further, the trial court simply found that "[t]he wishes of the child are not expressed and not inconsistent with the position of the Guardian Ad Litem (GAL). The maturity of the child is age 4." Based upon this record, the J.W. court reasoned that the trial court's statement did not address the child's wishes or whether he was capable of expressing those wishes.
{¶ 34} The case presently before this Court is factually distinguishable from J. W. in that in the present case, the guardian ad litem, in his final report, clearly determined that a grant of permanent custody was in the best interests of the child. Further, the record reflects that the child had just turned three years old at the time of the hearing on the motion for permanent custody. Based upon this information, the trial court specifically made a finding that "B.D. is too young to express his wishes with respect to this case." We find that although the child did not express his wishes, the guardian ad litem clearly recommended that the motion for permanent custody be granted. Further, trial court's finding that the child was too young to express his wishes complied with R.C.
{¶ 35} In her fifth and final assignment of error Appellant contends that the judgment was against the manifest weight of the evidence. In her fifth assignment of error, Appellant essentially claims that the trial court's determination that a grant of permanent custody was in the best interest of the child was against the manifest weight of the evidence. In support of her claim, Appellant argues that "R.C.
{¶ 36} RC.
{¶ 37} Under the second part of the R.C.
{¶ 38} First, and contrary to Appellant's contention, it is important to note that "[p]ursuant to the plain language of R.C.
{¶ 39} With respect to the first factor, the trial court noted that the child's interaction with his mother has been inconsistent and unreliable, that Appellant had gone more than ninety days without visiting the child at least once during the pendency of the case, that the child has no siblings and that his father has had no interaction with him. With respect to the second factor, the court noted that the child was too young to express his wishes. With respect to the third factor the trial court found that the child has been in foster care the majority of his life, approximately 19 of his first 24 months and also that he had been in the custody of RCJFS for twelve or more months of the consecutive twenty-two month period ending on or after March 18, 1999. With respect to the fourth factor, the trial court found that the child needs and deserves a legally secure permanent placement, is adoptable and is unlikely to ever have a secure permanent placement without permanent custody being granted to the agency. With respect to the fifth factor, whether or not any of the factors listed in R.C.
{¶ 40} As such, in reaching its decision that permanent custody was in the best interest of the child, the trial court considered each of the statutory best interest factors contained in R.C.
{¶ 41} Accordingly, we affirm the decision of the trial court.
JUDGMENT AFFIRMED.
Notes
Dissenting Opinion
{¶ 42} I dissent on the First Assignment of Error because I believe the appeal was timely under App. R. 4(B)(5). See, In Re Kidd,
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.
Kline, J.: Concurs in Judgment and Opinion as to Assignment of Error V and Concurs in Judgment Only as to Assignments of Error I, II, III, and IV.
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