2006 Ohio 6793 | Ohio Ct. App. | 2006
OPINION {¶ 1} Appellant-mother Misty McDonald appeals the August 1, 2006 Judgment Entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, which terminated her parental rights, responsibilities and obligations with respect to her three sons, Joseph, Taylor, and Sean Turner, and granted permanent custody of the boys to appellee Tuscarawas Job Family Services("TCJFS").
{¶ 3} Prior to the involvement of TCJFS the appellant had an extensive history with children's service agencies in several Ohio counties, as well as in West Virginia. (T. at 85; 141). TCJFS became involved with the family upon receiving reports that appellant was homeless and unable to adequately provide for her children. (T. at 85). There were concerns regarding appellant's lack of housing, her ability to adequately provide for her children, and concerns regarding medical and educational neglect of the children. The children were removed and placed into foster care on April 26, 2005. (T. at 79).
{¶ 4} A case plan was adopted for the benefit of the parents. The case plan for appellant required her to complete parent education classes, a psychological evaluation, follow all recommendations for treatment, and to provide adequate housing and income for the family. (T. at 81).
{¶ 5} The fathers of the children, who are the subject of this appeal, remained inappropriate for consideration of reunification throughout the pendency of this case. (T. at 70-75; 90-97).
{¶ 6} A formal hearing was held on the agency's request for permanent custody of Joseph, Taylor, and Sean Turner on July 27, 2006. Prior to this hearing, appellant and Richard Searcy, father of a fourth child, Michael Turner, both agreed to grant legal custody of the child to the child's paternal grandmother, Beulah Searcy. The hearing then went forward regarding the remaining children.
{¶ 7} Kristina Masten, the ongoing case worker from TCJFS testified regarding the custodial history of the children, indicating that they had been in the custody of the agency since April 26, 2005. (T. at 78) Additionally, Ms. Masten testified extensively about the specialized needs of the children. (T. at 102-105) She further testified regarding the inability to maintain the children in the same home. (T. at 105) Ms. Masten further testified regarding the willingness of the current foster parents of the children to adopt them and provide a permanent, stable home. (T. at 104; 105).
{¶ 8} Testimony was elicited at the permanent custody hearing indicating that while appellant had completed the parent education training, she failed to adequately apply the lessons learned in the class. She had numerous opportunities to display her cognition of those lessons during visitation and repeatedly failed to do so. (T. at 33-34; 82). In fact, visits between the appellant and her children remained chaotic and never improved over the course of the case. (T. at 40). This remained true even after appellant had been taking anti-anxiety medication for some time. (T. at 41). Appellant could not bring herself to demonstrate lessons that she had been taught regarding discipline during her visits because she did not want to hurt her children's feelings. (T. at 207-208). Appellant had been informed several times that success in the case at least partially depends on her ability to apply the lessons she had been taught. (T. at 214-215).
{¶ 9} Appellant initially complied with the requirement that she obtain a psychological evaluation; however there was a significant delay in following through with the recommendations of such evaluation. (T. at 82-84). Moreover, the results of that evaluation as addressed by the testimony of Dr. Misra indicate that due to appellant's significant long term and/or permanent deficits, that she would need round the clock assistance to be able to parent the children. (T. at 12; 29).
{¶ 10} Appellant is renting part of a two bedroom home in Massillon, Ohio. (T. at 188). Appellant's Case Manager in Stark County, Ohio, Shameen Ahmad, confirmed that the home was appropriate for appellant and her kids and that it was clean and nicely decorated. (T. at 171).
{¶ 11} Appellant also testified that she has obtained a source of income to help meet her children's needs. (T. at 190). Appellant applied for and is now receiving monthly social security benefits in the amount of $603.00 per month for her anxiety disability. (T. at 191). Appellant has also applied for food stamps and would receive additional social security disability income for each child. (T. at 191-192).
{¶ 12} In accordance with her Case Plan, appellant testified she completed the required parenting classes. (T. at 194-195). Appellant's sister, Christina Hartline, and appellant's boyfriend, Mark Weisgarber, testifed that appellant is able to take care of her children by planning meals, cooking, cleaning, properly disciplining and otherwise meet the needs of her children.(T. at 152-153; 231-233). Witnesses for the TCJFS, however, testified that appellant was not able to properly discipline the children during her weekly visitations and that the visits were often chaotic and out of control. (T. at 45; 82). Appellant had weekly visitations in a small room at the agency with all four of her children at one time for approximately an hour and half each visit. (T. at 50-51).
{¶ 13} Appellant testified that it was very difficult to control four or five small children who had not seen her for a week and who were all competing for her attention. (T. at 196). The Case Manager confirmed during her testimony that very often all of the kids were clamoring for appellant's attention when she was trying to have one-on-one time with one child. (T. at 131). Appellant testified that she knows how to discipline her kids but found it hard to act as the disciplinarian when she only saw her children once a week. (T. at 207-208).
{¶ 14} Appellant's payee and boyfriend, Mark Weisgarber, testified that he would be able to provide assistance to appellant in the form of transportation, money, food and help with the kids if needed. (T. at 232). Likewise, appellant's sister, Christina Hartline, testified that she would be able to provide the same type of assistance to appellant when her kids were returned to her. (T. at 157-158).
{¶ 15} Upon issuing findings of fact, the trial court found that the children could not and should not be placed with any of the parties within a reasonable time and that it was in their best interest to be placed into the permanent custody of Job Family Services. (Judgment Entry, August 1, 2006).
{¶ 16} It is from this judgment entry appellant-mother appeals, raising the following assignments of error:
{¶ 17} "I. THE TRIAL COURT ERRED BY NOT FULLY DISCUSSING AND MAKING AN INDEPENDENT DETERMINATION OF THE RELEVANT CRITERIA IN OHIO REVISED CODE SECTIONS
{¶ 18} "II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO JOB AND FAMILY SERVICES ABSENT CLEAR AND CONVINCING EVIDENCE THAT SUCH AN AWARD WAS IN THE BEST INTERESTS OF THE CHILDREN.
{¶ 19} "III. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT STRIKING THE TESTIMONY OF THE CASE MANAGER THAT WAS PRESENT DURING THE TESTIMONY OF THE OTHER WITNESSES DESPITE THE COURT'S ORDER FOR A SEPARATION OF WITNESSES."
{¶ 21} In her first assignment of error, appellant maintains that the trial court failed to discuss each of the factors set forth under the best interest test pursuant to R.C.
{¶ 22} We are not fact finders; we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758, unreported. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction (1978),
{¶ 23} R.C.
{¶ 24} Following the hearing, R.C.
{¶ 25} Therefore, R.C.
{¶ 26} If the child is not abandoned or orphaned, then the focus turns to whether the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. Under R.C.
{¶ 27} R.C.
{¶ 28} "(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section
{¶ 29} "(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 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."
{¶ 30} "* * *
{¶ 31} "(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."
{¶ 32} Pursuant to R.C.
{¶ 33} Assuming the trial court ascertains that one of the four circumstances listed in R.C.
{¶ 34} Appellant correctly asserts that the Eleventh District Court of Appeals has read the language R.C.
{¶ 35} In the case at bar, the trial court could not consider the wishes of the children due to their ages. The custodial history of the children indicates that appellant and the children have been involved with children service agencies in several Ohio counties and in West Virginia. (T. at 85; 141). In some instances intervention was avoided because appellant and the children would move from the jurisdiction. (Id. at 144-145).
{¶ 36} The children suffered from developmental delays ranging from bed wetting, severe temper tantrums, and aggression to difficulty walking and speaking. (Id. at 138-139). The youngest child, Sean, needed physical therapy to overcome his delays. (Id.). The seven year old, Joseph, was unable to recite the ABC's or count above thirty. (Id. at 139). Services had been provided to appellant as far back as 1999, however, appellant was not able to implement the services that were provided. (Id.). Further, appellant transferred legal custody of a fourth child, Michael Turner, to his paternal grandmother. (T. at 1-4).
{¶ 37} Dr. Misra testified that even with treatment appellant is not likely to improve to the point where she could have adequate skills to take care of the children. (T. at 17).
{¶ 38} While evidence was adduced that mother has made progress toward the completion of her case plan services, evidence was also presented that she has made little, if any, progress with dealing with their own mental health issues, missed visitations due to other commitments, and failed to take any responsibility for the children's removal from their home. The trial court found that, regardless of appellant's substantial compliance with her case plan, she was still not able to be a successful parent to any of her three children.
{¶ 39} Based on the foregoing, we find that the trial court's findings that the children could not or should not be placed with appellant-mother within a reasonable time and that the grant of permanent custody was in the children's best interest were not against the manifest weight and sufficiency of the evidence. There was competent, credible evidence supporting the trial court's decision granting permanent custody of the children to TCDJFS.
{¶ 40} Appellant's first and second assignments of error are overruled.
{¶ 42} Evid. R. 615 states: "(A) Except as provided in division (B) of this rule, at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. An order directing the "exclusion" or "separation" of witnesses or the like, in general terms without specification of other or additional limitations, is effective only to require the exclusion of witnesses from the hearing during the testimony of other witnesses.
{¶ 43} "(B) This rule does not authorize exclusion of any of the following persons from the hearing:
{¶ 44} "(1) a party who is a natural person;
{¶ 45} "(2) an officer or employee of a party that is not a natural person designated as its representative by its attorney;
{¶ 46} "(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause;
{¶ 47} "(4) in a criminal proceeding, a victim of the charged offense to the extent that the victim's presence is authorized by statute enacted by the General Assembly. "As used in this rule, "victim" has the same meaning as in the provisions of the Ohio Constitution providing rights for victims of crimes."
{¶ 48} The exclusion of witnesses from the courtroom is within the sound discretion of the trial judge, and the exercise of that discretion will not be disturbed absent clear abuse. E. g., DeRosier v. UnitedStates (8th Cir. 1969),
{¶ 49} In the case at bar, the case manager is an officer or employee of the TCDJFS and, albeit belatedly, was designated as its representative by its attorney. (T. at 127-128).
{¶ 50} No abuse of discretion existed here for it is well settled that the prosecution is permitted to have a representative of the agency that is actually prosecuting the accused present in court to advise counsel for the government, even though that person also testifies as a witness.United States v. Martin (6th Cir. 1990), 920 F.3d 393;United States v. Wells (6th Cir. 1971),
{¶ 51} Appellant's third assignment of error is overruled.
{¶ 52} The judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division is affirmed.
Gwin, P.J., Hoffman, J., and Farmer, J., concur