In re A.S.
Lead Opinion
{¶ 1} Appellants, Amy S., Sheila S., and the child, A.S., appeal the decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of a minor child to appellee, Butler County Department of Job & Family Services (“BCDJFS”).
{¶ 2} Amy is A.S.’s biological mother, and Sheila is A.S.’s maternal grandmother. A.S.’s biological father is also Amy’s biological father, and the father is not a party to this appeal. A.S. was born as a result of an incestuous relationship between Amy and her father. On November 9, 2005, BCDJFS filed a complaint alleging A.S. to be dependent. In this complaint, BCDJFS alleges that it has had a lengthy history with this family dating back to 1990 over concerns of domestic violence and physical and sexual abuse, and that several of A.S.’s siblings have
{¶ 3} On February 8, 2006, the juvenile court adjudicated A.S. dependent. The court granted Amy and Sheila supervised visitation with A.S. at this time.
{¶ 4} On February 22, 2006, Sheila filed a motion requesting an emergency shelter care hearing, alleging that A.S. should be removed from Tabitha’s home because there was a risk of immediate harm to A.S. After a hearing on March 29, 2006, the juvenile court terminated the order of temporary custody to Tabitha and placed A.S. in the temporary custody of BCDJFS.
{¶ 5} On May 24, 2006, the juvenile court held a dispositional hearing. Amy failed to appear for the hearing, and Sheila attended the hearing and requested temporary custody of A.S. The juvenile court denied Sheila’s request but permitted her to continue supervised visitation with A.S.
{¶ 6} On January 16, 2007, the juvenile court held a review hearing and ordered that Sheila could transport A.S. to the home of Amanda Miller, who is A.S.’s maternal aunt, in Kentucky for unsupervised visitations. However, on August 8, 2007, BCDJFS moved to change the visitation arrangements between Sheila and A.S. after A.S. reported being hurt by his mother, grandmother, siblings, and other relatives on multiple occasions. On that date, the juvenile court held an ex parte hearing and rescinded its previous order permitting unsupervised visitations between Sheila and A.S., and granted Sheila supervised visitations with A.S.
{¶ 7} On August 22, 2007, BCDJFS moved to suspend visitation between Sheila and A.S., and on September 20, 2007 a juvenile court magistrate granted the motion. Sheila objected to the juvenile court magistrate’s decision, and on November 28, 2007, the juvenile court sustained her objection in part. At that time, the juvenile court ordered that A.S. be moved to a different foster placement and that both Amy and Sheila could resume supervised visitations with A.S.
{¶ 8} On November 29, 2007, BCDJFS moved for permanent custody, stating that A.S. cannot be placed with either parent within a reasonable time and should not be placed with either parent, that neither parent can provide adequate parental care for A.S., and that granting permanent custody of A.S. to BCDJFS is in the child’s best interest. On April 8, 2008, Amy moved for legal custody of A.S.
{¶ 10} On January 12, 2009, the magistrate issued a decision granting BGDJFS’s motion for permanent custody. Both Amy and Sheila objected to the magistrate’s decision, and on February 9, 2009, the juvenile court overruled all objections and adopted the magistrate’s findings and orders.
{¶ 11} Amy, Sheila, and A.S., through his attorney, separately appeal the juvenile court’s decision. In their appeals, Amy raises one assignment of error, Sheila raises three assignments of error, and A.S. raises one assignment of error. Amy’s sole assignment of error, Sheila’s second and third assignments of error, and A.S.’s assignment of error will be discussed together.
{¶ 12} Amy’s Assignment of Error:
{¶ 13} “The trial court erred to the prejudice of appellant by granting the agency’s motion for permanent custody.”
{¶ 14} Sheila’s Assignment of Error No. 2:
{¶ 15} “The court erred as a matter of fact and law and abused its discretion when it found terminating the parental rights of the mother and not reunifying with appellant to be in the child’s best interest because such was not the only means of obtaining a legally secure permanent placement for the child, such was not supported by clear and convincing evidence and/or [sic] because permanent custody was not in the child’s best interest.”
{¶ 16} Sheila’s Assignment of Error No. 3:
{¶ 17} “The court’s decision and order of permanent custody was against the manifest weight of the evidence, there was insufficient evidence to support the trial court’s findings and the evidence presented failed to meet the requisite clear and convincing standard.”
{¶ 18} A.S.’s Assignment of Error:
{¶ 19} “The juvenile court erred as a matter of law and abused its discretion when it found that terminating mother’s parental rights was in the child’s best interest.”
{¶ 20} Initially, we note that Sheila, who is not a parent of this child, has presented several arguments under her assignments of error. While Sheila was considered as a potential custodian of the child, the juvenile court was not obligated to do so pursuant to her motion for legal custody filed on November 18, 2008. “Any person who seeks an award of legal custody of a child must, in accordance with [
{¶ 21} Before a natural parent’s constitutionally protected liberty interest in the care and custody of his child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. Santosky v. Kramer (1982),
{¶ 22}
{¶ 23} The juvenile court found by clear and convincing evidence, and appellants do not dispute, that A.S. is dependent, has been in the temporary custody of BCDJFS for more than 12 months of a consecutive 22-month period as of the date BCDJFS filed the permanent-custody motion, and that A.S. is legally abandoned. However, appellants dispute the juvenile court’s finding that granting permanent custody of A.S. to BCDJFS is in the child’s best interest.
{¶ 24}
{¶ 25} “(1) 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;
{¶ 27} “(3) 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;
{¶ 28} “(4) 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;
{¶ 29} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶ 30} With respect to
{¶ 31} During the time when visitations with A.S. were unsupervised, the child had contact with siblings and other relatives. However, A.S. reported abuse by these siblings and relatives and expressed that he does not wish to visit them.
{¶ 32} A.S.’s guardian ad litem (“GAL”) reports that A.S. has resided with the same therapeutic foster home for 31 months and that he has expressed a desire to remain in this foster home. The juvenile court found that A.S. is very bonded to his foster mother and that his foster mother will consider adopting him.
{¶ 33} With respect to
{¶ 34} With respect to
{¶ 35} With respect to
{¶ 36} Additionally, the juvenile court expressed concern over Amy’s lack of knowledge as to important areas of A.S.’s life, including his academic performance, emotional adjustment, and daily activities, even after she became involved in this case. Dr. Joseph Lipari, the psychologist who evaluated Amy, stated that as a result of her own childhood abuse, Amy has a greatly diminished capacity to relate to others, and that it would be very difficult for Amy to provide the consistency and stability that a child with special needs requires. Dr. Lipari stated that Amy was not able to effectively interact and communicate with A.S. Dr. Lipari further stated that reunification with A.S. should not even be considered until Amy is willing to undergo long-term therapy. Amy has stated that she does not feel she needs therapy, but has begun counseling as required under the case plan.
{¶ 37} Further, the juvenile court stated it is concerned about Amy’s ability to support A.S. financially. Amy receives public assistance and works sporadically for her landlord, but has no full-time job, has no driver’s license, and has expressed no clear plan as to how she can financially support A.S. in the long term. Also, the juvenile court noted that Amy still owes substantial court costs as a result of a criminal case.
{¶ 39} With respect to
{¶ 40} In addition, the juvenile court considered
{¶ 41} “Following the placement of the child outside his 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 for a period of six months or more to substantially remedy the conditions causing the child to be placed outside his 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.”
{¶ 42} Despite participating in case-plan services and being reunited with two of her own children, the juvenile court found that Sheila has failed continuously and repeatedly to substantially remedy the conditions that led to A.S.’s removal. As discussed above, A.S. was removed from Sheila’s care due to allegations of domestic violence, and she has not demonstrated that she can consistently keep A.S. safe from abuse from family members.
{¶ 43} While Amy began making progress with case-plan services after BCDJFS moved for permanent custody, she is not excused from abandoning A.S. and failing to comply with case-plan services for nearly two years. Based on Dr.
{¶ 44} The juvenile court also found
{¶ 45} With respect to appellants’ argument that the appropriate disposition in this case would have been a planned permanent living arrangement (“PPLA”), we remind appellants that the juvenile court was without authority to place A.S. in a PPLA, as BCDJFS did not file a motion requesting such a disposition. In re A.B.,
{¶ 46} In finding that granting permanent custody of A.S. to BCDJFS is in the child’s best interest, the juvenile court thoroughly analyzed the evidence and testimony from the permanent-custody hearings, and its findings are supported by sufficient clear and convincing evidence. As an appellate court reviewing a decision granting permanent custody, we neither weigh the evidence nor assess the credibility of the witnesses, but instead determine whether there is sufficient clear and convincing evidence to support the juvenile court’s decision. See In re Dunn, Tuscarawas App. No. 2008AP030018,
{¶ 47} Amy’s assignment of error, Sheila’s second and third assignments of error, and A.S.’s assignment of error are overruled.
{¶ 48} Sheila’s Assignment of Error No. 1:
{¶ 49} “The trial court erred, appellant was denied her constitutional due process and confrontational rights, and the outcome was prejudiced when the court admitted and considered improper and/or irrelevant evidence at trial.”
{¶ 51} Initially, we note, as we stated in In re K.E., Butler App. No. CA2007-03-069,
{¶ 52} “The Sixth Amendment provides, in pertinent part, ‘[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.’ (Emphasis added.) The right of cross-examination is one of the primary interests secured by the Confrontation Clause. Douglas v. Alabama (1965),
{¶ 53} The admission or exclusion of evidence is within the broad discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice. In re J.D., Butler App. No. CA2005-09-375,
{¶ 54} Hearsay is defined in the Rules of Evidence as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
{¶ 55} At the permanent-custody trial, BCDJFS moved to admit into evidence Sheila’s certified therapy records from Cumberland River Comprehensive Care Center and a psychological evaluation report of Sheila from 1999. Sheila objected to the admission of these documents, arguing that they are hearsay evidence and that BCDJFS failed to provide a proper foundation for admitting the records. The juvenile court overruled Sheila’s objections and admitted the certified records and psychological report into evidence under an
{¶ 57} We find that the trial court erred in admitting the certified records and 1999 psychological report into evidence pursuant to
{¶ 58} Further, we find that a substantial portion of information contained in the 1999 psychological report is included in a more recent psychological evaluation of Sheila from 2006, which was properly admitted into evidence. An exhibit that is improperly admitted into evidence is not prejudicial where it contains a mere surplus of facts. See State v. Lallathin, Noble App. No. 299,
{¶ 59} Next, Sheila argues that the juvenile court magistrate erred in ordering a stay of the juvenile court’s previous order to change A.S.’s foster living arrangement. Sheila maintains that the magistrate abused its discretion in ordering this stay and in considering any evidence related to A.S.’s foster family.
{¶ 60} On November 28, 2007, the juvenile court sustained in part Sheila’s objections to the juvenile court magistrate’s decision to terminate Sheila’s visitation on August 29, 2007. Specifically, the juvenile court stated, “The child’s foster placement shall be changed. This shall take place in a gradual manner with input from the attorney for the child * * * and the GAL. * * * Amy [S.] is hereby granted supervised visitation as a part of this order. Sheila [S.] is hereby granted supervised visitation as a part of this order.”
{¶ 62} We find that based on these facts and circumstances, the magistrate was authorized to stay the order to change A.S.’s foster placement. As BCDJFS correctly states,
{¶ 63} Moreover,
{¶ 64} Sheila’s first assignment of error is overruled.
{¶ 65} The judgment is affirmed.
Judgment affirmed.
Notes
. We note that when the juvenile court decided this case,
. We note that Sheila's therapy at Cumberland River was part of her case plan. Given that Sheila argues that she complied with case-plan services, it is disingenuous to also argue that she was prejudiced by the admission of her case-plan therapy records.
Concurrence Opinion
concurring.
{¶ 66} Based on the facts of this case, I concur in judgment. However, I find it troublesome that the Ohio Supreme Court’s reading of
{¶ 67} As Justice Pfeifer noted in AS.’s dissenting opinion, a major difference exists between an initial determination that a child is abused, dependent, or neglected and subsequent modifications of initial orders. During the preliminary adjudication phase, children service agencies play an important role and may be in a better position to determine the best placement option for the affected child. However, once the initial orders need modification or termination, the juvenile court is “in the best position to determine whether a permanent placement is in the best interests of the child.” Id. at ¶ 45.
{¶ 68} Nevertheless, because the Ohio Supreme Court’s current reading of
{¶ 69} In addition to usurping the judge’s role in determining the child’s best interests, prohibiting a juvenile court from ordering a PPLA also leaves a children services agency’s decision not to request one unreviewable. Unlike the juvenile court, whose decision is reviewed by higher courts (if not its electorate), agency decisions are not reviewable under the current reading of
{¶ 71} I realize that the parties to the case at bar did not raise this constitutional issue. However, I cannot ignore that the outcome of vesting discretion to implement a PPLA with an agency rather than the juvenile court (whether through neglect or design) is the “tail wagging the dog” and substantially curtails the juvenile court’s ability to fulfill its statutory obligations. Therefore, and until the Ohio Supreme Court reconsiders its interpretation and vests discretion in juvenile courts to order PPLAs, I concur in judgment only.