163 Ohio App. 3d 647 | Ohio Ct. App. | 2005
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *649 {¶ 1} Appellant, Summit County Children Services Board ("CSB"), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that denied its motion for permanent custody of the minor child of appellee, Rose S., and ordered that the child be placed in a planned permanent living arrangement ("PPLA"). This court affirms.
{¶ 2} Rose S. is the natural mother of A.S., born May 11, 2000. On June 13, 2003, Rose called the police asking for assistance because she was in fear for her *650 safety. When the police arrived, they discovered that Rose's fears were not based on reality and that she had armed herself with concealed weapons that included a loaded handgun, a penknife, and a box cutter. Rose was arrested, and A.S. was taken into CSB custody pursuant to Juv.R. 6. Several months later, additional criminal charges against Rose arose, and during the prosecution of the new charges, Rose was found incompetent to stand trial. After her competency was restored through mental-health treatment, she was found not guilty by reason of insanity.
{¶ 3} Rose, who had been an employed and productive adult for many years, and who had no known history of mental-health problems, had apparently had a mental breakdown at some point during the young life of A.S. Rose entered a psychiatric hospital for treatment. She was diagnosed with psychotic disorder, not otherwise specified, and her treatment included counseling and antipsychotic medication.
{¶ 4} A.S. was adjudicated a dependent child and was placed in the temporary custody of CSB. Temporary custody was extended for one six-month period. Prior to the expiration of that six-month extension, CSB moved for permanent custody of A.S. Following a hearing on the motion, the trial court denied CSB's motion for permanent custody and ordered that A.S. be placed in a planned permanent living arrangement.1 CSB appeals and raises two assignments of error that will be addressed in reverse order because CSB's second assigned error is potentially dispositive.
{¶ 5} CSB contends that the trial court erred in denying its motion for permanent custody because that determination was contrary to the weight of the evidence. When reviewing the weight of the evidence, this court applies the same test in civil cases as it does in criminal cases. Tewarson v. Simon (2001),
{¶ 6} Before a juvenile court can terminate parental rights and award permanent custody of a child to an agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary custody of the agency for at least 12 months of the prior 22 months, or that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, based on an analysis under R.C.
{¶ 7} When determining whether a grant of permanent custody is in the child's best interest, the juvenile court must consider the following factors:
(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;
(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;
(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; [and]
(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. R.C.
2151.414 (D)(1) through (4).2
{¶ 8} "Although the trial court is not precluded from considering other relevant factors, the statute explicitly requires the court to consider all of the enumerated factors." See In re Smith (Jan. 2, 2002), 9th Dist. No. 20711,
{¶ 9} The best-interest prong of the permanent-custody test requires the agency to prove by clear and convincing evidence that permanent custody is in the best interest of the child. Clear and convincing evidence is that which will *652
produce in the trier of fact "`a firm belief or conviction as to the facts sought to be established.'" In re Adoption of Holcomb
(1985),
{¶ 10} A review of the record reveals that CSB failed to present clear and convincing evidence that permanent custody was in the best interest of A.S. No one disputed that Rose had a mental illness that required ongoing treatment and that she was not able to care for A.S. and would not be able to do so anytime in the near future. Despite that fact, A.S. remained bonded to Rose, and their visitation has "always been very positive," according to the caseworker.
{¶ 11} The foster mother testified that Rose undoubtedly loves A.S. and that A.S. loves Rose. She further testified that A.S. loves to visit with Rose and was always excited about the visits and that Rose always engaged in age-appropriate activities with A.S. The guardian ad litem also testified that he had no doubt that there was a bond between Rose and A.S. and that the interaction that he had observed between Rose and A.S. was always appropriate.
{¶ 12} A.S. had lived with the same foster family since August 2003. She was very comfortable in that home and had become integrated into the family. The caseworker testified that the home was appropriate and that the interaction between A.S. and the foster family was good.
{¶ 13} A.S. expressed her wishes to both her therapist and her foster mother. A.S. told them both that she liked living with the foster family and that she wanted to stay there. She told the foster mother, however, that she also wanted to continue visiting Rose. A.S. had also told her therapist that she enjoyed visits with Rose.
{¶ 14} The guardian ad litem opined that permanent custody was in the best interest of A.S. because there was too much uncertainty for her in foster care and she needed a permanent placement. The guardian ad litem elaborated that it was his understanding that permanent custody was the only permanent placement available to the court because the court could not place A.S. in a PPLA if CSB had not requested such a placement.
{¶ 15} There is little detail in the record regarding A.S.'s custodial history. She had lived with Rose for the first three years of her life and there had been no prior involvement with CSB. According to Rose's psychiatrist, the first symptoms of Rose's mental illness did not appear until she was 38 years old. Prior to that time, Rose had been a productive adult and had been employed for many years as a hospital worker. A.S. was removed from Rose's home when the police and CSB became aware of Rose's irrational behavior. *653
{¶ 16} At the time of the hearing, A.S. had been living in foster care for more than 12 of the past 22 months. CSB emphasized that, during that time, Rose had made little progress toward the goals of her case plan. It was undisputed, however, that Rose had spent much of the time in Summit County jail and then in a psychiatric hospital and that she had limited ability to comply with her case plan requirements at either facility. Rose had been focusing on treating her mental illness, which was the primary problem that prevented her from caring for A.S. According to her treating psychiatrist, other than an initial reluctance to take antipsychotic drugs, Rose had been compliant with her psychiatric treatment and the symptoms of her mental illness had diminished significantly.
{¶ 17} Since beginning psychiatric treatment, which included counseling and antipsychotic medication, Rose had made significant progress with her treatment. Her treating psychiatrist opined that, if Rose's steady progress continued, she would probably be released to a group home in about two or three months. After her release to a group home, it probably would be several more months before Rose could live independently.
{¶ 18} Rose was unable to provide a permanent placement for A.S. at the time of the hearing or anytime in the near future. CSB had attempted to place A.S. with a relative, but all of the relatives who had initially expressed a willingness to take A.S. into their homes had later indicated that they were not able to do so.
{¶ 19} The foster family who was caring for A.S. had expressed a desire to care for her on a long-term basis and would like to adopt her. In the opinion of CSB and other CSB witnesses, adoption was the best option for A.S., as it would give her permanency in her life. Because adoption would be possible only if Rose's parental rights were terminated, CSB advocated terminating Rose's parental rights.
{¶ 20} Although CSB apparently believed that permanent custody was the best way to achieve a legally secure permanent placement for A.S., the trial court disagreed that such a disposition was in the best interest of A.S. As the trial court emphasized, if it granted CSB permanent custody, it would have no authority to dictate who would adopt A.S. or what the terms of the adoption would be. Although the foster mother had indicated that she would like to adopt A.S. and that she would continue to facilitate visitation between A.S. and Rose, the trial court would have no ability to control whether such a result would be achieved.
{¶ 21} CSB witnesses repeatedly emphasized that permanent custody was necessary because A.S. needed permanency in her life, overlooking the possibility of other permanent placements that would be less drastic, such as legal custody to a nonparent or a PPLA. In this case, it was not disputed that there were no relatives or friends available to take legal custody of A.S. On the other hand, *654 evidence was introduced regarding a PPLA placement for A.S. The caseworker testified that a PPLA is a permanent placement of the child in a foster home until she graduates from high school, but that CSB had not requested a PPLA in this case because A.S. is young.
{¶ 22} The trial court explored the alternative of placing A.S. in a PPLA. In this case, it would achieve the result that everyone was advocating: a permanent placement with the current foster family. Moreover, in its best-interest analysis, the trial court was statutorily required to consider whether a legally secure permanent placement could be achieved "without a grant of permanent custody to the agency." (Emphasis added.) R.C.
{¶ 23} The trial court reasonably concluded that there was a less drastic permanent placement that would ensure that A.S. stayed with the foster family and also that she would continue to have visits with Rose, provided that visitation continued to be appropriate. The foster mother testified that she was willing to consider a PPLA placement with A.S. rather than adoption. Rose, who recognized that she was mentally ill and unable to care for A.S., testified that she got along with the foster mother and that she would like A.S. to be placed in a PPLA.
{¶ 24} Given the evidence before the trial court on each of the mandatory best-interest factors, the trial court did not lose its way in concluding that permanent custody was not in the best interest of A.S. The second assignment of error is overruled.
{¶ 25} CSB contends that the trial court lacked authority to place A.S. in a PPLA. CSB bases its argument exclusively on the language of R.C.
{¶ 26} The provision pertaining to placing the child in a PPLA explicitly provides that the court may place the child in a PPLA "if a public children services agency or private child placing agency requests the court to place the child in a planned permanent living arrangement" and if the court finds, by clear *655
and convincing evidence, that a planned permanent living arrangement is in the best interest of the child and that one of three statutory criteria set forth in R.C.
{¶ 27} CSB's sole challenge is that the trial court lacked authority to place A.S. in a PPLA because CSB had not requested such a disposition. CSB does not otherwise dispute the propriety of a PPLA in this case. CSB does not raise a due-process challenge, nor does it dispute that, had the trial court acted with statutory authority to consider placing the child in a PPLA, the evidence supported the trial court's finding that this situation otherwise met the requirements for a PPLA. See R.C.
{¶ 28} This court recently rejected this same argument by CSB in In re A.B., 9th Dist. No. 22659,
{¶ 29} Although the language of R.C.
{¶ 30} Reading R.C.
{¶ 31} CSB's argument does not address the broad authority granted to the trial court in R.C.
{¶ 32} R.C.
The court, on its own motion or the motion of the agency or person with legal custody of the child, the child's guardian ad litem, or any other party to the action, may conduct a hearing with notice to all parties to determine whether *656 any order issued pursuant to this section should be modified or terminated or whether any other dispositional order set forth in divisions (A)(1) to (5) of this section should be issued. After the hearing and consideration of all the evidence presented, the court, in accordance with the best interest of the child, may modify or terminate any order issued pursuant to this section or issue any dispositional order set forth in divisions (A)(1) to (5) of this section. In rendering a decision under this division, the court shall comply with section
2151.42 [case-plan requirements] of the Revised Code.
{¶ 33} Following a hearing on a motion or motions filed by the agency or another person, or upon its own motion, the court has the discretion, "in accordance with the best interest of the child," to grant one of those specific dispositional requestsor to issue any of the dispositional orders set forth "in divisions (A)(1) to (5) of this section." R.C.
(1) An order that the child be returned home and [to] the custody of the child's parents, guardian, or custodian without any restrictions;
(2) An order for protective supervision;
(3) An order that the child be placed in the legal custody of a relative or other interested individual;
(4) An order permanently terminating the parental rights of the child's parents; [or]
(5) An order that the child be placed in a planned permanent living arrangement * * *.
{¶ 34} R.C.
{¶ 35} Given the apparent conflict between the language of R.C.
{¶ 36} R.C.
{¶ 37} Thus, R.C.
{¶ 38} The explicit terms of R.C.
{¶ 39} Prior to the expiration of a temporary-custody order, R.C.
{¶ 40} Pursuant to R.C.
{¶ 41} As quoted above, R.C.
{¶ 42} Consequently, pursuant to R.C.
{¶ 43} Other appellate districts that have held that the juvenile court has authority to consider the dispositional option of a PPLA even when the agency has not requested it, particularly when the agency has filed a motion for permanent custody. See, e.g., In re Moody (June 28, 2001), 4th Dist. Nos. 01CA11 and 01CA14,
{¶ 44} When the trial court considers a motion to change a prior order of temporary custody that has expired or is about to expire, R.C.
{¶ 45} The juvenile court cannot have its hands tied by the parties but must have the option of selecting a middle ground, when appropriate. To hold otherwise would defeat the plain language of R.C.
{¶ 46} In this case, CSB had filed a motion for permanent custody and, following a hearing, the trial court determined that permanent custody was not in the best interest of A.S. Through the disposition of CSB's second assignment of *659
error, this court concluded that the trial court's decision to deny CSB's motion for permanent custody was not against the weight of the evidence. The trial court necessarily chose another dispositional order for A.S. The trial court reasonably concluded that it was not appropriate to return the child to Rose or to grant another six-month extension of temporary custody, because Rose would still be unable to care for A.S. at the end of six months and A.S. was in need of a permanent placement. The trial court acted within its explicit authority under R.C.
Judgment affirmed.
CARR, J., concurs.
WHITMORE, P.J., dissents.
Dissenting Opinion
{¶ 47} I respectfully dissent from the decision of the majority for the same reasons that I articulated in In re A.B.,
9th Dist. No. 22659,
{¶ 48} Because the trial court's improper consideration of a PPLA placement clearly tainted its ruling on CSB's motion for permanent custody, I would remand the matter for a new hearing on that motion.