In Re A.W., Ca2008-03-032 (8-25-2008)
- Reporters:
- ,
- Before:
- Walsh, Powell
{¶ 1} Appellants, Brian W. and Diana Roberts, appeal the decision of the Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of a minor child to appellee, Clermont County Department of Job and Family Services (“CCDJFS“).
{¶ 2} Brian W. is the biological father of A.W., and the child‘s biological mother is not a party to this appeal. On March 3, 2005, CCDJFS filed a motion alleging A.W. to be neglected after receiving a complaint that the child was found in a crib lying in her own feces and urine. On that day, the juvenile court awarded CCDJFS predispositional temporary custody of the child. On May 5, 2005, the trial court adjudicated the child dependent, and continued its previous temporary custody order. Apparently, CCDJFS developed a case plan to reunify the child with her parents, but the case plan itself is not in the record.
{¶ 3} The juvenile court granted two extensions of temporary custody to CCDJFS on January 12, 2006 and June 6, 2006.
{¶ 4} On November 2, 2006, CCDJFS moved for permanent custody of the child, alleging that granting CCDJFS permanent custody of the child is in her best interest, and that the child has been in the temporary custody of CCDJFS for more than 12 consecutive months prior to the filing of the motion.
{¶ 5} On March 14, 2007, Diana Roberts, who is a friend of Brian W., filed a petition for legal custody of the child.
{¶ 6} After a bifurcated hearing on both CCDJFS‘s motion for permanent custody and Diana‘s petition for legal custody, the juvenile court magistrate granted CCDJFS‘s motion and denied Diana‘s petition. Appellants objected to the magistrate‘s decision, and the juvenile court overruled the objections and affirmed the magistrate‘s decision in its entirety.
{¶ 7} Appellants separately appeal the juvenile court‘s decision, raising the following assignments of error. For the purpose of discussion, we address appellants’ assignments of error together and out of order.
{¶ 8} Appellant Diana Roberts’ Assignment of Error No. 1:
{¶ 9} “THE JUVENILE COURT FAIL [sic] TO ACCORD DIANA ROBERT [sic] DUE PROCESS RIGHTS AND LAWFULLY DETERMINE THE APPROPRIATENESS OF TERMINATION OF PARENTAL RIGHTS WHEN IT RELIED ON A SUBSTANTIAL AMOUNT
{¶ 10} Appellant Brian W.‘s Assignment of Error No. 2:
{¶ 11} “THE TRIAL COURT DECISION TO TERMINATE APPELLANT‘S PARENTAL RIGHTS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶ 12} Initially, we address the first issue presented in Diana‘s first assignment of error, where she argues that the juvenile court impermissibly relied on hearsay testimony in granting CCDJFS‘s motion for permanent custody.
{¶ 13}
{¶ 14} At the hearing, Erica Boller, supervisor of foster care for CCDJFS, testified as to the progress Diana made with the home study she requested through CCDJFS as a part of her attempt to obtain custody of A.W. When asked by CCDJFS‘s counsel whether Diana had completed the home study, Boller stated that she had not. Counsel then asked Boller why the home study is incomplete, and Boller replied that there were several “red flags,” including negative personal and school references. Boller elaborated by saying that she had concerns that Diana lacks insight with regard to the needs of her own biological children, and therefore was concerned with her ability to care for A.W. Diana objected to this explanation, and argued that this is hearsay testimony.
{¶ 15} In response to Diana‘s objection, the juvenile court magistrate stated:
{¶ 16} “Well, number one, if it were hearsay, it [is] admissible at this point in consideration [of] the best interests of the child. Secondly, I don‘t even know if it‘s reached that point. At this point * * * [Boller is] discussing the background for [her] conclusions. You‘re welcome to raise it again. Obviously I‘m attuned to * * * the accuracy of the testimony in terms of the declarant being there. But at this point in the proceeding, hearsay is admitted and obviously in all points I‘m considering the fact that some of the testimony [that] is coming out here * * * [is] without the benefit of cross-examination * * *.”
{¶ 17} It is important to note that this appeal is from a bifurcated hearing on both CCDJFS‘s motion for permanent custody of the child and Diana‘s petition for legal custody of the child. The record reflects that this testimony was provided at the legal custody portion of the hearing. Accordingly, we find the juvenile court properly applied
{¶ 18} Next, both Brian and Diana argue that the juvenile court‘s decision granting permanent custody to CCDJFS is not supported by sufficient clear and convincing evidence.
{¶ 19} 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), 455 U.S. 745, 759, 102 S.Ct. 1388. An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to whether sufficient credible evidence exists to support the juvenile court‘s determination. In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶ 16. A reviewing court will reverse a finding by the juvenile court that the evidence was clear and convincing only if there is a sufficient conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520.
{¶ 20}
{¶ 21} The juvenile court found by clear and convincing evidence, and appellant does not dispute, that A.W. is dependent and had been in the temporary custody of CCDJFS for more than 12 months of a consecutive 22-month period as of the date CCDJFS filed the permanent custody motion. However, appellant does dispute the juvenile court‘s finding that granting permanent custody is in the best interest of the children.
{¶ 22} Accordingly, we must determine whether there was clear and convincing evidence that granting the motion for permanent custody was in the child‘s best interest.
{¶ 23}
{¶ 24} “(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;
{¶ 25} “(2) 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;
{¶ 26} “(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;
{¶ 27} “(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;
{¶ 28} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶ 29} Specifically, appellants challenge the juvenile court‘s finding that the child‘s need for a legally secure permanent placement cannot be achieved without granting permanent custody to CCDJFS. After reviewing the record, we find sufficient, credible evidence supports the juvenile court‘s finding.
{¶ 30} According to the testimony of Brook Lorthioir, a case worker for CCDJFS, Brian‘s case plan required him to obtain and maintain stable housing and employment, complete a psychological evaluation, mental health treatment, and a parenting course. Lorthioir further testified that while Brian completed the psychological evaluation, mental health treatment, and parenting course, he failed to obtain stable housing and employment. Also, Lorthioir stated that Brian has participated very consistently in visitations and that he and the child are bonded. However, Lorthioir recommended to the court that CCDJFS be granted permanent custody of the child because there are problem‘s with Brian‘s insight and decision-making with regard to the child‘s safety, and because Brian failed to obtain stable housing and employment despite having over two years to do so. Lorthioir was also concerned that Brian had been involved in multiple instances of domestic violence.
{¶ 31} As previously discussed, Boller testified at the hearing with regard to Diana‘s
{¶ 32} In finding that legally secure permanent placement of the child cannot be achieved without granting permanent custody to CCDJFS, the juvenile court thoroughly analyzed the evidence and testimony from the permanent custody hearing, and its finding is supported by sufficient clear and convincing evidence. In our role 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, 2008-Ohio-3785.
{¶ 33} Appellants have not challenged the remaining findings of the juvenile court pursuant to
{¶ 34} Appellant Brian W.‘s Assignment of Error No. 1:
{¶ 35} “THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO
{¶ 36} In his first assignment of error, Brian argues that the juvenile court did not have jurisdiction to decide CCDJFS‘s motion for permanent custody, as the juvenile court‘s last extension of temporary custody expired before CCDJFS filed its motion for permanent custody. Appellant maintains that the juvenile court was divested of jurisdiction upon the expiration of the final extension of temporary custody (the “sunset date“) pursuant to
{¶ 37}
{¶ 38} Further,
{¶ 39}
{¶ 40} “Except for cases in which a motion for permanent custody described in [
{¶ 41} “(1) An order that the child be returned home and [sic] the custody of the child‘s parents, guardian, or custodian without any restrictions;
{¶ 42} “(2) An order for protective supervision;
{¶ 43} “(3) An order that the child be placed in the legal custody of a relative or other interested individual;
{¶ 44} “(4) An order permanently terminating the parental rights of the child‘s parents;
{¶ 45} “(5) An order that the child be placed in a planned permanent living arrangement;
{¶ 46} “(6) In accordance with [
{¶ 47} Further,
{¶ 48} “If an agency pursuant to [
{¶ 49} Additionally,
{¶ 50} “Prior to the end of the extension granted pursuant to [
{¶ 51} According to the record, CCDJFS moved to extend temporary custody on January 9, 2006, and the juvenile court granted that motion and extended temporary custody to June 6, 2006. One day before the termination of the first six-month extension of temporary custody, CCDJFS filed a second motion to extend temporary custody. Although CCDJFS requested the second six-month extension, which would have extended temporary custody into December 2006 if granted, the juvenile court only extended temporary custody to October 31, 2006. Two days after the expiration of the second temporary custody extension, on November 2, 2006, CCDJFS moved for permanent custody of the child.
{¶ 52} CCDJFS argues that it was entitled to the entire six-month extension, and that the juvenile court‘s extension of temporary custody to only October 31, 2006 was a clerical error. CCDJFS maintains it was entitled to the full six-month extension. However, as quoted above, upon the filing of a motion for a second extension of temporary custody,
{¶ 53} Nevertheless, the Ohio Supreme Court held, in In re Young Children, 76 Ohio St.3d 632, 637, 1996-Ohio-45, “the passing of the sunset date pursuant to
{¶ 54} The juvenile court found in its decision that appellant has failed to substantially remedy the conditions causing the child to be placed outside the home, and we find that the record supports this conclusion. Accordingly, because the original problems that caused the child to be removed from the home have not been resolved, the juvenile court maintained jurisdiction to enter a dispositional order. Brian‘s first assignment of error is overruled.
{¶ 55} Judgment affirmed.
WALSH, P.J., and POWELL, J., concur.