2003 Ohio 5262 | Ohio Ct. App. | 2003
{¶ 3} The trial court also found that, pursuant to R.C.
{¶ 4} Mother timely appealed, citing the following assignments of error: 1) The trial court erred in finding that Athens County Children Services made reasonable efforts prevent (sic) or eliminate the need for removal or to eliminate the continued removal of the child from her dependent children in 1999, in Case No. 99300027. Mother voluntarily gave permanent custody of three of Katelyn's siblings to ACCS. One other sibling remains in a planned permanent living arrangement. As a result of that neglect and dependency finding, Katelyn remained in the temporary custody of ACCS from November 1999 until May 13, 2002, the court returned custody to Mother. Upon Katelyn's reunification with her Mother, ACCS obtained a protective supervision order and continued to monitor Katelyn's well being both at home and at school.
{¶ 5} Katelyn remained in Mother's custody until October 9, 2002, when ACCS filed an ex parte motion for an emergency custody order and removed Katelyn from Mother's home. The next day, ACCS filed a complaint alleging that Katelyn was a neglected and dependent child, and seeking permanent custody of Katelyn pursuant to O.R.C.
{¶ 6} The trial court conducted the adjudication hearing on November 27, December 3 and 4, 2002, and January 13, 2003. During that hearing, the court heard testimony from Katelyn's ACCS caseworkers, Tri-County Mental Health and Counseling, Inc. case manager, guardian ad litem, foster mother, Mother, Father, aunt, daycare providers, teacher, principal, and several teachers aides who work in Katelyn's classroom. The parties do not dispute that Katelyn's Father abandoned her. The hearing testimony revealed that Katelyn is an eleven year old girl who has had serious medical problems in the past, including a congenital heart defect and a stroke. She currently suffers from Asthma.
{¶ 7} In addition to Katelyn's medical problems, she suffers from bi-polar disorder and post-traumatic stress disorder. As a result of these psychological challenges, Katelyn requires a great deal of one-on-one attention from the adults in her life. She is prone to fits of rage that may be triggered by seemingly insignificant aggravations of daily life. During these rages, Katelyn frequently kicks, screams, cusses, throws things, including chairs and desks, knocks things over, slaps, and bites. The testimony revealed that Katelyn's rages are often directed at adults, including, but not limited to, her teacher, other school officials, and her foster mother. When Katelyn goes into these rages it often takes two or more adults to physically restrain her until she calms down. Testimony revealed that a structured environment and rigid schedule are necessary to prevent and/or lessen the severity of Katelyn's rages.
{¶ 8} Upon the completion of the four-day adjudication hearing, the trial court rendered a decision and judgment, including findings of fact and conclusions of law. Based upon the testimony presented in the adjudication hearing, the trial court found that Katelyn was a neglected and dependent child. Accordingly, the trial court held a disposition hearing on February 26, 2003.
{¶ 9} At the disposition hearing, the trial court took judicial notice of the prior proceedings in this matter, and heard testimony from Katelyn's ACCS caseworkers and her guardian ad litem, focusing upon Katelyn's best interests. At the commencement of the disposition hearing, the court and counsel for all parties discussed ACCS's previous motion, wherein it requested that the trial court conduct an in camera interview with Katelyn. At that time, all counsel agreed to stipulate the contents of that interview into evidence. The trial court conducted the in camera interview on March 3, 2003.
{¶ 10} On March 13, 2003, the trial court rendered a decision and judgment entry, wherein, it found by clear and convincing evidence that Katelyn could not be placed with either parent within a reasonable time and should not be placed with either parent. The trial court found that Katelyn was clearly neglected as defined by R.C.
{¶ 12} In order to grant permanent custody in its initial disposition, the trial court must determine that permanent custody is in the best interest of the child pursuant to R.C.
{¶ 13} An award of permanent custody must be supported by clear and convincing evidence. In re Hiatt (1993),
{¶ 14} A reviewing court will not reverse an order terminating parental rights if it finds that, upon reviewing the record, that the record contains sufficient evidence to satisfy the clear and convincing standard. In re Baby Girl Doe,
{¶ 17} In support of her proposition that ACCS did not make reasonable efforts to prevent Katelyn's removal from her home, Mother alleges that there was no genuine emergency justifying ACCS's ex parte removal of Katelyn from her home. We note that the trial court did remove Katelyn from Mother's home pursuant to an emergency custody order. After conducting a hearing on the matter, at which Mother was present and represented by counsel, the magistrate issued an order continuing the ex parte emergency custody order. The magistrate specifically found that "probable cause existed to support the prior issuance of the ex parte emergency custody order," and further found "[t]he evidence presented of probable cause to believe that the child/ren's removal or continued removal from the home and placement or continued placement of the child/ren in shelter care is necessary to prevent immediate or threatened physical or emotional harm is as follows: Testimony by ACCS worker."
{¶ 18} Nowhere in the record does it reflect that Mother filed objections to the magistrate's decision within fourteen (14) days after the filing of that decision, as required by Juv.R. 40(E)(3)(b). That rule specifically provides that: "A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule." The waiver provision of Juv.R. 40(E)(3)(b) "embodies the long-recognized principle that the failure to draw the trial court's attention to possible error, by objection or otherwise, when the error could have been corrected, results in a waiver of the issue for purposes of appeal." Inre Etter (1998),
{¶ 19} As additional support for her argument that ACCS failed to make reasonable efforts to prevent Katelyn's removal from her home, Mother recites a litany of services she claims ACCS should have provided before removing Katelyn from her home. We note the evidence presented at trial clearly demonstrates that ACCS provided substantial services to Mother both prior and subsequent to her reunification with Katelyn. ACCS worked with Mother for over two years in its efforts to reunite her with her daughter, and actually reunited Mother with her daughter in May 2002.
{¶ 20} Testimony revealed that ACCS provided mental health counseling for Katelyn through Tri-County Mental Health and Counseling, Inc. Although Katelyn only attended four of her bi-weekly sessions after she returned to her Mother's care, on two of those occasions her ACCS caseworker provided Katelyn's transportation. The record also contains evidence that ACCS provided a counseling referral for Mother. However, the semi-annual review of the case plan notes that Mother discontinued her counseling sessions because her attorney reported the sessions were not required by the case plan, and Mother stated that "counseling was not beneficial for her."
{¶ 21} Rinda Gould, Katelyn's case manager at Tri-County Mental Health, testified that she provided parenting education, behavior modification, nutritional and housekeeping assistance and education to Mother. In addition to the oversight provided by the Tri-County Mental Health case manager, the family had an ACCS case worker who provided case management and planning who had face-to-face contact with Mother eighteen times between May 2002, and September 27, 2002. ACCS also provided Mother with assistance in completing the paperwork and obtaining medical evaluations necessary to apply for Katelyn's Social Security benefits.
{¶ 22} Based upon the foregoing, the trial court could reasonably conclude that ACCS made sufficient reasonable efforts to prevent Katelyn's removal from Mother's home pursuant to R.C.
{¶ 24} However, as we noted in Ward, supra, when an agency's effort to obtain custody are based upon an allegation that a child cannot be placed with either parent within a reasonable time due to the fact that the parents have failed to remedy the conditions that originally caused the child's removal, the agency has a duty to exercise reasonable efforts to reunify the parent and child after the child's removal. R.C.
{¶ 25} Thus, to the extent that ACCS predicated its complaint for permanent custody upon R.C.
Because the trial court found the existence of several other criteria enumerated in R.C.
{¶ 26} Based upon the foregoing, we find that the trial court reasonably concluded that ACCS did exercise reasonable efforts to prevent Katelyn's removal from Mother's home. We also find that because the trial court predicated its finding that Katelyn could not be returned to either parent within a reasonable time upon several of the factors enumerated in R.C.
{¶ 28} R.C.
{¶ 29} Katelyn's counselor, Cynthia Mitchell, testified that once Katelyn returned to her Mother's care, she attended approximately four of her bi-weekly counseling sessions, the first two sessions with Jill Dorfman, her ACCS caseworker, and the last two with Mother. However, after her July 24, 2002 session, Katelyn did not attend any counseling sessions until October 10th, when she was, once again, in ACCS's care. Ms. Mitchell testified that while Katelyn was in foster care, she made great strides in her counseling sessions, learning to verbalize her feelings instead of flying into a rage.
{¶ 30} Ms. Mitchell further testified that once Katelyn returned to Mother's home, her progress deteriorated. She was much less verbal. She would not answer the counselor's questions, and would sit in the chair and cover her head with her coat. During her last session while in Mother's custody, the counselor reports Katelyn wore a pull-up and smelled of urine. Ms. Mitchell testified that since Katelyn returned to foster care, she has not missed a scheduled session, and is, once again, more verbal. While in Mother's custody, testimony and evidence revealed Katelyn's behavior was so out of control that her daycare center informed Mother that it could no longer provide for Katelyn's care. Employees of the daycare center testified that they feared for the safety of the younger children in the building when Katelyn flew into her rages.
{¶ 31} Testimony further revealed that Katelyn's rages occur regardless of where she is living, although they did not occur as frequently, nor were they as severe when Katelyn resided with her foster family. Mother testified that Katelyn does not have any rages when in her care. However, other testimony revealed that the dosage of Katelyn's medications was increased on two separate occasions while she was in Mother's custody. Katelyn's rages, while living with Mother, were so severe that Katelyn's teacher and principal testified they were considering alternative placement for her. They also testified that Katelyn's behavior moderated after she returned to her foster family, such that they were no longer considering alternative placement.
{¶ 32} In addition to Katelyn's behavioral problems, testimony revealed that the condition of Mother's home was cluttered and unsanitary. Groceries remained on the kitchen floor for days, as did a smashed barbeque sauce packet from a fast food restaurant. Katelyn's Tri-County Mental Health case manager testified that she once observed a used cat litter scoop on the kitchen table just inches away from Katelyn's plate of food. When the case manager mentioned it to Mother, Mother stated that it was not used. When the case manager stated to Mother that there were cat liter crystals on the scoop, Mother said nothing, and cleaned it up. There was also testimony that Mother's home was cluttered, with piles of stuff on the furniture and on the floors such that visitors, and the inhabitants had to step over things to walk through the house. There was cat litter on the floor of the bathroom, and, on one occasion, a used pull-up diaper was left on a desk in Katelyn's bedroom.
{¶ 33} Testimony at the adjudication hearing also revealed that Katelyn had numerous hygiene issues while in Mother's care. Katelyn had a history of bed wetting every night. While in ACCS custody, Katelyn wore pull-ups to bed every night and washed every morning so that she would not smell of urine. Mother testified that Katie stopped wetting the bed in late June 2002, and ceased to wear pull-ups. However, testimony of numerous other witnesses demonstrated that Katelyn often smelled strongly of urine while in her Mother's care. There was testimony that the smell in Mother's home, be it due to cat litter odor, Katelyn's urine, or a clogged toilet was strong enough at times to gag visitors. In addition to the hygiene problems associated with Katelyn's bedwetting, there was testimony that, while in Mother's custody, Katelyn went to school unbathed, smelling of urine, and wearing the same dirty clothes every day.
{¶ 34} Katelyn's foster mother testified that Katelyn was so filthy when ACCS removed her from her Mother's care on October 10, 2002, that she took her straight to the bathroom and gave her a bath. Her hair was very greasy and dirty, and the ponytail holders in her hair were filthy. The foster mother further testified that Katelyn's underwear were so dirty that the crotch was black. Katelyn's clothing was so tight that she could hardly button it, and the shoes she wore to her foster home were four sizes too small.
{¶ 35} Additionally, Katelyn suffered from gingivitis so severe that it caused her gums to bleed when she brushed her teeth. While this condition was under control in foster care, Katelyn's teeth were not brushed properly or regularly when she returned to Mother's home. As a result her gums were, once again, painful and bled each time she brushed her teeth.
{¶ 36} There was a great deal of testimony regarding Katelyn's need for structure and routine in her life. In fact, upon Katelyn's return to Mother's custody in May 2002, Mother received a written schedule for Katelyn's daily routine. While in Mother's custody, the routine had to be adjusted to accommodate Mother's work schedule, as Mother had to report to work well before Katelyn's scheduled wake time. However, there was testimony that Katelyn's bedtime was not adjusted accordingly, and was even later than that specified on the schedule due, at least in part, to Katelyn's participation in a softball league. The testimony regarding the significant reduction in Katelyn's sleep was further supported by testimony from Katelyn's teacher, who testified that Katelyn was often tired, and irritable when she was living with her Mother, and that it interfered with her ability to learn.
{¶ 37} During the trial court's in camera interview with Katelyn, the court asked Katelyn what she ate most of the time when she was with Mother. Katelyn replied that she ate ramen noodles and bologna with Mother. She also stated that she ate nice dinners at her aunt Portia's because there was no food for her to eat at her mom's. Later, when the Court asked Katelyn if she felt sad when she was with her Mother, she responded, that she only felt bad when school was going bad because Mother locked her in her bedroom and she did not get to eat.
{¶ 38} Based upon the foregoing, there was ample competent, credible evidence in the record to support the trial court's conclusion that Katelyn was a neglected and dependent child. Accordingly, we overrule Mother's second assignment of error.
{¶ 40} In its decision, the trial court stated that it had examined the factors outlined in R.C.
{¶ 41} R.C.
{¶ 42} Although it is not artfully drafted, the true thrust of Mother's third assignment of error appears to be that the trial court erred in concluding that R.C.
{¶ 43} The parties do not dispute that Katelyn's Father has abandoned her. Thus, the trial court properly concluded that R.C.
{¶ 44} R.C.
{¶ 45} The testimony at hearing regarding Katelyn's filthy and poorly fitting clothing is some competent, credible evidence that Mother is unwilling to provide clothing for Katelyn. Katelyn's own testimony during the in camera interview also demonstrates that Mother is unwilling to provide adequate food for her. Testimony clearly demonstrates that Mother failed to provide appropriate care for Katelyn's psychological needs, in that she repeatedly neglected to take Katelyn to her counseling appointments from July 24, 2002 until ACCS removed Katelyn from her home on October 9, 2002. Further, the testimony of Katelyn's counselor and teacher regarding Katelyn's regression during the time that she lived with her Mother constitutes some competent, credible evidence that Mother's failure to take Katelyn to her counseling sessions was detrimental to the child's well being. Therefore the trial court could reasonably conclude that Mother, "for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect," as delineated in R.C.
{¶ 46} Mother cites In re William S. (1996),
{¶ 47} There is also ample evidence in the record to support the trial court's conclusion that Mother has neglected Katelyn and the seriousness, nature, or likelihood of recurrence makes Katelyn's placement with Mother a threat to the child's safety. Thus, the requirement of R.C.
{¶ 48} As we previously discussed with regard to Mother's first assignment of error, the trial court's finding that R.C.
{¶ 49} Pursuant to the plain language of the statute, "one or more" of the criteria must exist as to each parent in order for the trial court to make a finding that the child cannot or should not be placed with either parent. We have found that there is some competent, credible evidence in the record to support the trial court's findings that the criteria enumerated in R.C.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Evans, P.J. and Abele, J.: Concur in Judgment and Opinion.