In re A.L.
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Charles S. Rowell, Jr., for appellant.
Julie C. Taylor, for appellee.
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SINGER, J.
{¶ 1} This is an appeal from a judgment issued by the Lucas County Court of Common Pleas, Juvenile Division, terminating appellant‘s parental rights and granting permanent custody of the minor child, A.L., to appellee. Because we conclude that the trial court‘s findings were not against the manifest weight of the evidence, we affirm.
{¶ 3} On May 19, 2009, the court magistrate held an adjudication hearing. Father was not present. Mother stipulated to the facts alleged in the complaint and findings of dependence and neglect, and the magistrate continued temporary custody to LCCS, pending further investigation. On June 8, 2009, the court adopted the magistrate‘s decision. On June 12, 2009, a maternal aunt filed a motion to intervene and a motion for custody. Service of the complaint was perfected as to father on June 12, 2009. A second adjudicatory hearing was held on July 9, 2009, and father also stipulated to the facts alleged and findings of neglect and dependency. The court adopted the magistrate‘s decision and awarded temporary custody of A.L. to LCCS and the parents were ordered to complete services submitted in the approved case plan. Father was specifically ordered to complete a substance abuse and mental health assessments and attend domestic violence counseling.
{¶ 4} In January 2010, LCCS filed a motion for extension of temporary custody which was granted in April 2010. On July 16, 2010, LCCS filed a motion for permanent custody. The maternal aunt withdrew her motion for custody. The trial court conducted a hearing on the motion on October 15, 2010, and November 4, 2010. At the time of the
{¶ 5} Lloyd Letterman, a licensed social worker and expert in chemical dependency and mental health diagnosis and treatment, testified that he is employed by Rescue, Inc. and contracted through the Lucas County Mental Health Board. He provides diagnostic assessments for LCCS and conducted the assessment for both mother and father. Letterman diagnosed father with bipolar disorder, mostly manic, dependency on marijuana, former dependence on cocaine, and a personality disorder. He recommended treatment at Unison, which provided a dual diagnosis program to deal with both substance abuse and mental health issues and was paid for through the Mental Health Board of Ottawa County.
{¶ 6} The next witness, Marye F. Miller, a licensed clinical counselor with Unison, testified that she was father‘s primary counselor beginning in August 2009. Father attended counseling regularly, missing only for injuries or sickness. Miller said father was a very good client, working on drug and alcohol abuse and mental health issues. After father was evaluated by the clinic psychiatrist, he was prescribed three drugs: one for depression, another as a mood stabilizer, and the third for sleep problems. Father tried to take the medications, but was not very successful because one of the first prescribed drugs made him feel nervous and sick to his stomach. She did not recall, however, him reporting that it gave him thoughts of anger and impulsive acting out.
{¶ 8} Miller initially worked with father on mental health issues and had just begun to work on substance abuse issues when, in March 2010, he was incarcerated for felonious assault charges against his adult sister and mother. Miller said that at the time of his incarceration, father had just begun his individual counseling program and was scheduled to begin intensive outpatient treatment in a group setting. Although father anticipated being released from the Correctional Treatment Facility in December 2010 and put on an ankle monitor, Miller was unsure that Unison would resume treatment with him.
{¶ 9} The next witness, Sylvia Snyder, testified that she was employed at Rescue Incorporated through Central Access, to perform mental health, drug and alcohol assessments. Snyder stated that she did an assessment on mother in August 2010. Mother reported having a substance abuse problem with alcohol, with a pending charge for operation of a motor vehicle while intoxicated. Mother said she had been attending
{¶ 10} Nancy Bain, another substance abuse and mental health assessor at Central Access, testified she had performed an update assessment on mother in January 2010. During the assessment, Bain brought her supervisor into the room because mother was upset and angry with the questions being asked. Bain‘s notes from that day indicated that when asked about her two driving under the influence charges, mother became angry, began yelling, and walked out of the assessment. Efforts to calm mother were unsuccessful. Bain‘s diagnosis was abuse of alcohol with recommendations of education for substance abuse and to follow through with Snyder‘s recommendation regarding the intermittent explosive disorder diagnosis.
{¶ 11} The next witness, Vicky Jones, testified that she is employed by Lutheran Social Services of Northwest Ohio at their community outreach center, Crossroads Human Resource Center (“CHRC“). CHRC provides, among other services, group therapy for domestic violence, anger management for women, a mentor program, batterers program, with individual and family or couples counseling. Jones testified as to mother‘s involvement with services provided by CHRC and information mother disclosed regarding domestic violence incidents with father.
{¶ 13} Beginning in late summer 2009, Jones initially worked with mother alone because no other people had yet joined the two group sessions. Jones established goals for mother for both domestic violence issues and anger management. Initially mother‘s attendance was good, but became sporadic toward the end of the program, when the group‘s size increased from one to seven. While attending the program, mother also showed aggression and became verbally abusive toward a caseworker at a case plan review at LCCS, storming out of the room. On another occasion, mother became angry and confrontational when asked to leave an anger management group program.
{¶ 14} According to Jones, mother struggled with being able to apply what she had learned in order to change her behavior and to break off the abusive relationship with father. Although mother had completed the required 12 weeks of the domestic violence group, LCCS wanted her to continue with an additional four weeks because she had not been able to maintain her separation from father in order to eliminate the potentially unsafe conditions for A.L.
{¶ 16} Rebecca Theis, LCCS caseworker, testified that she was assigned to the case at the end of February 2010, when the previous caseworker left the agency. She confirmed the service providers’ testimony regarding the services that the parents had been required to complete under the current case plan. Theis testified as to her concerns about mother‘s failure to comply with recommended case plan services, failure to submit to requested drug screens, a recent conviction for a DUI committed in 2009, and recent criminal charge related to drug paraphernalia in February 2010.
{¶ 18} The foster mother then testified that A.L. has been in her home for 18 months and that she had adjusted well. Initially, A.L. had a hard time going to sleep at night, experiencing scary nightmares and night terrors with screaming and crying. After a couple months and counseling, the nightmares had subsided and she was better. A.L. continued, however, to ask the foster mother each night, whether she would be left alone in the house and where the foster mother would be. The foster mother stated that she would adopt A.L. if LCCS was granted permanent custody, and was open to contact with birth family members, including mother and father, presuming stability in those relationships and under safe circumstances.
{¶ 19} Mother testified regarding her attendance at anger management and other classes, her criminal history, and her completion of the case plan. Father then testified regarding his conviction for attempted felonious assault and his incarceration at CCNO
{¶ 20} Father said he had tried several prescribed medications, but continued to have side effects from them. He said he had been attending services at Unison, but had been removed from the drug and alcohol rehabilitation group. He then attended one-on-one counseling with Marye Miller. Father was to start domestic violence classes when he was arrested in March 2010 for the assaults. He acknowledged that he had stopped taking his medications and had been drinking alcohol. Father also had been smoking marijuana. He then stated that he believed that stopping the medications that day made him have impulsive, angry thoughts of harming people. Along with the marijuana and consumption of alcohol, he thought he had suffered a black out when he harmed his sister.
{¶ 21} Father said that, since he had been incarcerated at CCNO, he had not taken any more prescription medications and felt normal. He agreed, however, with Lloyd Letterman‘s diagnosis that he is bipolar and has ADHD. He confirmed that in high
{¶ 22} Father stated that he was often incarcerated, but that mother was often physically abusive to him. He described mother as always being angry and that he had been battered by her. Father claimed that he had ended his relationship with mother, because of the domestic violence incidents. He also contended that he had been wrongly labeled as the aggressor, and that mother had actually been the instigator in most of the incidents. Father said that during the incidents between mother and him, A.L. was in another room and did not observe the violent behavior. He asked the court for more time after he is released from incarceration to complete the necessary case plan services so that he could gain custody of his daughter
{¶ 23} Finally, the guardian ad litem, Julie Hoffman, testified regarding her report which recommended permanent custody be granted to LCCS. She was concerned that mother‘s mental health and explosive temper created an unstable placement for A.L. Hoffman said that A.L. misses her mother, father, and aunt, but wants to stay where she is. A.L. seemed well-bonded with the aunt, but fears mother, who was “mad a lot.” Hoffman said that, although father had completed some treatment and programs and was
{¶ 24} The court ruled that sufficient clear and convincing evidence had been presented that it is in A.L.‘s best interest to award permanent custody of A.L. to LCCS. Pursuant to
{¶ 25} The court found that, pursuant to
{¶ 26} The court also found that LCCS made reasonable efforts to reunite the family, provided services designed to remedy the problems causing the child‘s removal from the family home, and to prevent the continued need for removal of the child from her home. These efforts included case plan services for substance abuse treatment, mental health services, domestic violence counseling, and agency casework services and support. Such efforts were unsuccessful in that both parents continued the same violent and inappropriate behavior for a number of years.
{¶ 27} Finally, the court noted it had considered all the factors under
{¶ 28} Father now appeals from that judgment, arguing the following two assignments of error:
{¶ 29} “First Assignment of Error
{¶ 30} “The award of permanent custody is against the manifest weight of the evidence.
{¶ 31} “Second Assignment of Error
{¶ 32} “The court abused its discretion by relying on clear hearsay contained in the report of the guardian ad litem.”
{¶ 33} We will address appellant‘s assignments of error in reverse order. In his second assignment of error, appellant claims that the trial court erred in considering inadmissible hearsay which was contained in the guardian ad litem‘s report.
{¶ 34} A guardian ad litem is an investigator for the court within the meaning of
{¶ 35} Generally, a guardian ad litem‘s report is not considered evidence, but is merely submitted as additional information for the court‘s consideration. Ohio courts have held that a “trial court may consider the report of a court-appointed investigator without the oral testimony of the investigator and despite the hearsay inherent in such a report.” Webb, supra, citing Corrigan v. Corrigan (Dec. 30, 1986), 4th Dist. No. 1300. To protect the parties’ due process rights, however, the trial court must make the guardian
{¶ 36} In the instant case, the guardian ad litem testified at the hearing and was examined by counsel for both parties as well as the court. Therefore, the trial court was permitted to consider the contents of the report irrespective of the hearsay contained within it. Moreover, as the trier of fact, the court is presumed to have disregarded any inadmissible hearsay contained in the report. Accordingly, we find that the trial court did not abuse its discretion in considering the GAL report because the guardian was available for cross-examination by both parties.
{¶ 37} Accordingly, appellant‘s second assignment of error is not well-taken.
II.
{¶ 38} In his first assignment of error, appellant contends that the trial court‘s decision to award permanent custody of A. L. to LCCS was against the manifest weight of the evidence. We disagree.
{¶ 40} A juvenile court may grant permanent custody of a child to a public services agency if the court finds, by clear and convincing evidence, two statutory prongs: (1) the existence of at least one of the four factors enumerated in
{¶ 41} Under the first prong, the four factors under
{¶ 42} “(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.
{¶ 43} “(b) The child is abandoned.
{¶ 44} “(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
{¶ 45} “(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 * * *.”
{¶ 46} We note that the trial court‘s finding under
{¶ 47} In making a finding under
{¶ 48} “(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.
{¶ 49} “(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code; * * *.
{¶ 50} “* * *
{¶ 51} “(13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child.”
{¶ 52} Once a finding is made by the court satisfying one of the factors enumerated in
{¶ 53} “(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
{¶ 54} “(b) 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;
{¶ 55} “(c) The custodial history of the child, including whether 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 ending on or after March 18, 1999;
{¶ 56} “(d) 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;
“(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶ 57} The factors set forth in
{¶ 58} In the present case, evidence was presented that both parents suffer from mental health and substance abuse issues. Although father may have made some efforts to address those concerns, he continued to deny certain problems and, even with continued therapy, would not be ready to parent A.L. within a reasonable time. This case rests squarely on the credibility of the witnesses and father‘s own admission that he has been incarcerated a number of times. A.L., who was almost seven at the time of the disposition hearing, had been in foster placement for the current case for over a third of her young life. Like every child, she is entitled to be secure in a loving, healthy, permanent placement which has been provided by the foster mother. Therefore, we conclude that the trial court‘s findings that father failed to remedy the issues that caused the initial removal, that the child could not be placed with father within a reasonable time or should not be placed with him, and that granting permanent custody of A.L. to LCCS was in the child‘s best interest were not against the manifest weight of the evidence.
{¶ 59} Accordingly, appellant‘s first assignment of error is not well-taken.
{¶ 60} The judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
C.A. No. L-10-1355
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
JUDGE
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.