IN THE MATTER OF: A.D.C.L. and K.L.
Appellate Case Nos. 2015-CA-19 and 2015-CA-21
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
April 1, 2016
2016-Ohio-1415
WELBAUM, J.
Trial Court Case Nos. 21430015 and 21430016; (Domestic Relations Appeal)
Rendered on the 1st day of April, 2016.
RHONDA K. MCKINNISS, Atty. Reg. No. 0069035, 631 Wagner Avenue, Greenville, Ohio 45331
Attorney for Appellee-Darke County Children Services
JAY A. ADAMS, Atty. Reg. No. 0072135, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Appellant-A.W.
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, 400 Liberty Tower, Dayton, Ohio 45402
Attorney for Appellant-J.L.
WELBAUM, J.
{2} We conclude that the trial court did not err in granting permanent custody to DCCS, as the court‘s findings as to abandonment and the best interests of the children are supported by sufficient evidence to meet the clear and convincing standard that is required in permanent custody cases.
{3} We further conclude that the trial court did not err in connection with Mother‘s desire to surrender her parental rights. The statute urged at the trial court level was
I. Facts and Course of Proceedings
{4} In June 2014, DCCS filed a complaint in the Darke County Juvenile Court, alleging that A.L. was an abused child because Father had shot him in the stomach with a BB gun on June 5, 2014. The complaint further alleged that K.L. was dependent because she lacked adequate personal care due to the faults or habits or her parents, and also lived in a house where a parent had abused a sibling. The complaint did not allege that Father had intentionally shot A.L. According to the complaint, Father was moving the gun, was unaware it was loaded, and the gun discharged. The child was air-lifted to Children‘s Medical Hospital, where the BB was found to be lodged in the pancreas, and could not be removed. At the time of the incident, A.L. was three years old, and K.L. was four years old.
{5} After the complaint was filed, the children were placed with Mother. However, on July 2, 2014, Mother informed DCCS that she and Father had allowed alcohol to cause them to lose their means to support the children, and that they could not provide for the children. The parents asked DCCS to pick up the children, which was done on July 3, 2014. That day, DCCS asked the trial court to grant the agency temporary custody ex parte, and the court agreed.
{6} After a hearing, at which the parents consented to temporary custody, DCCS was granted temporary custody and an adjudication hearing was set for September 2014. In September 2014, DCCS filed a case plan outlining goals, including visitation once a
{7} Ultimately, the adjudication hearing was held on October 2, 2014, at which time Father appeared and admitted the allegations in the complaint. A.L. was found to be an abused child, and K.L. was found dependent. Mother did not appear for the hearing, and services were, therefore, not ordered for her at this time. Father was ordered to undergo a substance abuse assessment and to follow all recommendations; to maintain clean and suitable independent housing, with working utilities; to sign releases; to submit to random drug screens; to remain medication compliant; to complete a mental health assessment and comply with all recommendations; to attend parenting classes; to obtain and maintain a valid driver‘s license; to resolve all legal matters pending in other courts; and to maintain a source of income.
{8} In November 2014, the children were moved out of the county because they could not be maintained in their current foster home. Visitation was changed to once per month, at the paternal grandparents’ home. At the time, it was noted there were no transportation obstacles, and that the foster parents and the grandparents would provide transportation.
{9} In December 2014, Mother voluntarily agreed to complete case plan services. She was given requirements similar to Father‘s, including obtaining a psychological assessment, a substance abuse assessment, an anger management assessment, and a parenting skills assessment, as well as following all recommendations
{10} The last time either parent visited the children was in January 2015. Mother, thereafter, did not stay in contact with the DCCS caseworker, nor did she schedule any visits or ask about the children. Father was permitted to have visits, but he did not follow up with setting them up.
{11} In late January 2015, Father tested positive for Benzodiazepines. He was also unsuccessful with his case plan. Although he completed a substance abuse assessment and attended a few groups, he did not complete the requirements. He also did not undergo a mental health assessment and was not compliant with his medication. Moreover, although Father had housing, it was extremely filthy and lacked heat and running water. The caseworker discussed the housing issues with Father numerous times, and he agreed the house was not suitable for children. The caseworker was last in Father‘s house in April 2015, and the conditions remained the same. She attempted to visit after that time, but Father was not home.
{12} The caseworker had sporadic contact with Mother between December 2014 and June 22, 2015. Mother did not complete the requirements on her case plan, and tested positive for marijuana in April 2015. In June 2015, neither parent attended the semi-annual case review.
{13} On June 8, 2015, DCCS filed a motion in the trial court, asking the court to award the agency permanent custody of the children, based on the parents’ failure to visit or maintain contact with the children for more than 90 days. In July 2015, the Guardian
{14} On July 30, 2015, the trial court held a permanent custody hearing. The testimony at the hearing was as outlined above. In addition, the foster father testified that when the children came into his care, they could not communicate and were similar to infants. After being in the care of the foster parents, the children had almost caught up to their age groups. The testimony also indicated that no relatives of the children were willing to accept custody.
{15} According to the evidence, in addition to the problems caused by the gunshot wound, A.L. had Duchenne muscular dystrophy and had no growth hormones. He also had a kidney problem, which was corrected shortly before the custody hearing. At the hearing, Father admitted that when he had visited his children, he rarely interacted with them. He also told the caseworker prior to the hearing that he did not want the children to come back into his custody. In addition, his parental rights had previously been terminated with respect to another child. In that case, he did not appear at the final hearing.
{16} Although Father claimed at the hearing that a number of the problems with his house had been rectified since April 2015, he stated that he never let the caseworker know. He also said that he had not seen the children because he had been involved in performing community service for common pleas court and doing recovery for his probation officer. Father stated that he had mental issues and could not do two things
{17} At the beginning of the permanent custody hearing, Mother‘s attorney indicated that Mother would like to voluntarily surrender her rights to the children. However, DCCS would not agree, and the court took the matter under advisement. During her testimony, Mother stated that she was seven to eight months pregnant (not with Father‘s child).
{18} After hearing the evidence, the trial court concluded that the parents had abandoned the children and that a grant of permanent custody to DCCS was in the children‘s best interests. The court further concluded that the statute which permitted voluntary surrender (
II. Clear and Convincing Evidence of Abandonment
{19} Father‘s First Assignment of Error states that:
The Trial Court‘s Decision Awarding Permanent Custody on the Ground that Mr. L.*** Had Abandoned His Children Was Not Supported by Clear and Convincing Evidence.
{20} Under this assignment of error, Father contends that
{21} As pertinent here,
* * * [T]he 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:
* * *
(b) The child is abandoned.
{22} Regarding abandonment,
For the purposes of this chapter, a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days.
{23} Some courts have indicated that ”
{25} The applicable standard of proof in permanent custody cases is clear and convincing evidence, which has been defined as “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), syllabus. “An appellate court will not reverse a trial court‘s determination concerning parental rights and child custody unless the determination is not supported by sufficient evidence to meet the clear and convincing standard of proof.” In re Rishforth, 2d Dist. Montgomery No. 20915, 2005-Ohio-5007, ¶ 11, quoting In re Dylan C., 121 Ohio App.3d 115, 121, 699 N.E.2d 107 (6th Dist. 1997).
{26} In the case before us, neither Mother nor Father rebutted the presumption by giving any reasonable explanation for their failure to visit or contact their children. Mother stated that she did not see the children because she did not have her own home and had limited transportation. However, the visitation was not scheduled in Mother‘s home, and Mother made absolutely no attempt to request transportation assistance from DCCS.
{27} Father‘s “explanation” for his failure to visit or contact his children is that he
{28} Under the circumstances, there was sufficient evidence to meet the clear and convincing standard in connection with the finding that Father had abandoned his children. We also stress that we defer to trial courts on credibility issues, because they are in the best position to see witnesses and judge their credibility. See M.J. at ¶ 35, and In re J.D., 2d Dist. Montgomery No. 26588, 2015-Ohio-4114, ¶ 56.
{29} Accordingly, Father‘s First Assignment of Error is without merit and is overruled.
III. Whether Permanent Custody Is in the Children‘s Best Interests
{30} Father‘s Second Assignment of Error states that:
The Trial Court Erred in Awarding Permanent Custody Because There Was Not Clear and Convincing Evidence that Granting Permanent Custody Was in the Best Interest of the Child.
{32} As was noted,
{33} The trial court stated that it had considered all the factors in
{34} Furthermore, Father‘s contentions are not supported by the record. Although Father testified that he loved his children, there was scant evidence of a bond.
{35} The children were also very young, and there is no indication in the record that they reacted positively or were happy to see their parents during visitation; to the contrary, they were instead described as being very bonded with their foster parents and were, in the words of the caseworker, “always excited to see [the foster parents], be around them, play with them.” October 30, 2015 Transcript of Proceedings, p. 24.
{36} Moreover, while the children had been in DCCS‘s custody for 13 months, Father failed to see the children during at least 10 of those months. Consequently, the length of time in custody is an insignificant point; more important is the fact that for most of the 13 months, Father made no attempt to visit or contact the children.
{37} Finally, Father did not substantially comply with his case plan. As an initial matter, he failed to secure clean and suitable housing. During the last visit of the caseworker in April 2015, Father‘s home was filthy and lacked running water and heat. Although Father claims that he subsequently cleaned up the house and had utilities, he never let the caseworker know, and never asked her to return to his home to see his progress. Furthermore, the trial court was not required to believe Father. As was noted, matters of credibility and the weight to be given witness testimony are primarily the province of the trier of fact. Id. at ¶ 22.
{39} Our review of the record indicates that the trial court‘s decision was supported by ample evidence to meet the clear and convincing standard of proof. Rishforth at ¶ 11. Accordingly, Father‘s Second Assignment of Error is overruled.
IV. Request to Surrender Parental Rights
{40} Mother‘s sole assignment of error states that:
The Trial Court Erred in Not Allowing Mother to Surrender Her Parental Rights to the Minor Children to Darke County Children Services.
{41} Under this assignment of error, Mother contends that the trial court abused its discretion by failing to let her voluntarily surrender her rights to the children. Mother states that there is no case law on this point, but argues as a matter of public policy that a children services agency should not be permitted to force parents into situations where they are subject to a “reasonable efforts bypass” in the future simply because of past indiscretions.
{42} The statute upon which the parties relied in the trial court is
(B)(1) Subject to * * * juvenile court approval, the parents, guardian, or other persons having custody of a child may enter into an agreement with a public children services agency or private child placing agency
surrendering the child into the permanent custody of the agency. An agency that enters into such an agreement may take and care for the child or place the child in a family home. A private child placing agency or public children services agency that seeks permanent custody of a child pursuant to division (B)(1) of this section shall file a request with the juvenile court of the county in which the child has a residence or legal settlement for approval of the agency‘s permanent surrender agreement with the parents, guardian, or other persons having custody of the child. Not later than fourteen business days after the request is filed, the juvenile court shall determine whether the permanent surrender agreement is in the best interest of the child. The court may approve the permanent surrender agreement if it determines that the agreement is in the best interest of the child and, in the case of an agreement between a parent and an agency, the requirements of section 5103.151 of the Revised Code are met. The agency requesting the approval of the permanent surrender agreement shall file a case plan, prepared pursuant to section 2151.412 of the Revised Code, with the court at the same time that it files its request for the approval of the permanent surrender agreement.
* * *
(C) The agreements provided for in this section shall be in writing, on forms prescribed and furnished by the department, and may contain any proper and legal stipulations for proper care of the child, and may authorize
the public children services agency or private child placing agency when such agreements are for permanent care and custody to appear in any proceeding for the legal adoption of the child, and consent to the child‘s adoption, as provided in section 3107.06 of the Revised Code. * * *
{43}
{44} The Supreme Court of Ohio has indicated that a permanent surrender consent proceeding under
{45} “An agreement by a child‘s parents or legal guardian to surrender a child to the permanent custody of a certified association or institution described in
{46} Courts have also stressed that “[b]y the explicit terms of
{47} In light of the preceding discussion,
{48} We note that in Ross, counsel for the agency told the court prior to the final
{49} We concluded that the ” ‘agreement’ * * * proffered to the court through [mother‘s] testimony was insufficient to permit its approval by the court as a basis for voluntary surrender pursuant to
However, the court approved no agreement. Rather, the court proceeded to determine the matter before it, which was CSB‘s
R.C. 2151.413 motion for permanent custody. That matter was entirely distinct from any voluntary surrender. In re Miller (1980), 61 Ohio St.2d 184, 399 N.E.2d 1262. The court followed the procedures for the motion before it that are set out inR.C. 2151.414 .
Ross at *3.
{50} As in Ross, the trial court in the case before us proceeded to hear and decide the motion for custody by following the procedures set forth in
{51} In Ross, the mother also argued that the trial court should have complied with the requirements of
{52} In the case before us, the discussion with the trial court consisted of statements of counsel, not testimony from Mother. See July 30, 2015 Transcript of Proceedings, pp. 5-6. After the trial court indicated that it would take the issue under advisement, the court proceeded with the hearing, allowing Mother to cross-examine witnesses and to fully present her case. Mother also chose to testify, and in her testimony, she never admitted that the agency had a right to permanent custody or that it was in her children‘s best interests for the agency to be granted custody. Id. at pp. 52-62. Accordingly, as in Ross, we conclude that Mother did not make an admission.
{53} In Ross, we could also have rejected the mother‘s argument because her alleged admission was not made at an adjudicatory hearing to which
{54} In Lakes, we compared the adjudicatory phase, where trial courts are required by
{55} In this regard, we further noted in Lakes that:
In a neglect case, the juvenile court may proceed to find neglect at the adjudication stage upon the admission of the parent charged. No other evidence is required, even when the standard is clear and convincing evidence. In re Schmidt (1986), 25 Ohio St.3d 331, 25 OBR 386, 496 N.E.2d 952. At the dispositional stage, however, other evidence is surely required to determine whether a particular placement is in the child‘s best interest. * * * The parent‘s “admission” that placement with another person is in the child‘s best interest thus lacks the conclusive effect of an admission of neglect at the adjudicatory phase.
Lacking the effect of a plea to a charge, a parent‘s admission in a dispositional hearing that his or her child‘s best interest would be served by permanent placement elsewhere than with the parent is not a matter that requires protections similar to those in
Juv.R. 29(D) . The admission is but one more article of testimonial evidence for the court to consider in resolving the best-interest question. The court is entitled to credit the admission or discredit it, on the merits.
(Citation omitted.) Lakes, 149 Ohio App.3d 128, 2002-Ohio-3917, 776 N.E.2d 510, at ¶ 70-71.
{56} Thus, in the case before us, even if Mother had made an admission, the trial court was not required to accept her assertion, and could have disregarded it on the merits. In Lakes, we additionally focused on the fact that the trial court had conducted a full evidentiary hearing, where other evidence was presented. Id. at ¶ 72. Consistent with Lakes, a full hearing occurred in this case, and the evidence was more than sufficient to indicate that permanent custody should be granted to DCCS. Again, we stress that the trial court did not accept Mother‘s attempted surrender of her parental rights.
{57} We further observe that, as with Father, there was sufficient evidence to support the trial court‘s decision that Mother had abandoned the children and that an award of permanent custody to DCCS was in the children‘s best interests. Mother‘s conduct was quite similar to that of Father, except that she had even less contact with the agency and did virtually nothing to accomplish the case plan requirements. Accordingly, Mother‘s sole assignment of error is without merit and is overruled.
V. Conclusion
{58} Father‘s First and Second Assignments of Error, and Mother‘s sole assignment of error having been overruled, the judgment of the trial court is affirmed.
WELBAUM, J.
FROELICH, J. and HALL, J., concur.
Copies mailed to:
Rhonda K. McKinniss
Jay A. Adams
Lucas W. Wilder
Matthew Joseph
Hon. Jason R. Aslinger