IN THE MATTER OF: BABY BOY W., ALLEGED DEPENDENT CHILD, [AMBER W. - APPELLANT].
CASE NO. 5-10-39
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
May 16, 2011
2011-Ohio-2337
Judgment Affirmed
APPEARANCES:
Charles R. Hall, Jr. for Appellant
Mark C. Miller and Benjamin E. Hall for Appellee
PRESTON, J.
{¶1} Mother-appellant, Amber W. (hereinafter “Amber“), appeals the Hancock County Court of Common Pleas’ decision awarding permanent custody of her child, Baby Boy W., to the Hancock County Department of Job and Family Services: Children‘s Protective Services Unit (hereinafter “CPSU“). For the reasons that follow, we affirm.
{¶2} On June 29, 2010, the trial court issued an ex parte order awarding CPSU emergency temporary custody of Amber‘s son, Baby Boy W. (Doc. No. 1). On June 30, 2010, CPSU filed a complaint alleging Baby Boy W. was a dependent child as defined in
{¶3} At the July 8, 2010 shelter care hearing, the trial court concluded that probable cause existed for the filing of the ex parte order, and that the continued residence in the child‘s own home would be contrary to the child‘s best interest. The trial court ordered that the child be placed in CPSU‘s emergency temporary custody. (Doc. No. 9). The trial court also concluded that reasonable efforts to prevent the removal of the child were unnecessary since Amber had her parental rights involuntarily and permanently terminated with respect to her other two children. (Id.).
{¶4} On September 9, 2010, an adjudication hearing was held, and the trial court found that the child was a dependent child as defined in
{¶5} On September 14, 2010, CPSU filed a motion for a determination that reasonable efforts were unnecessary pursuant to
{¶6} On September 21, 2010, CPSU filed a motion for permanent custody pursuant to
{¶7} On October 28, 2010, a hearing was held to review the permanency plan wherein the parties stipulated that CPSU had attempted to achieve permanency for the child by filing a motion for permanent custody. (Doc. No. 33).
{¶8} On November 15-16, 2010, the trial court held a hearing on CPSU‘s motion for permanent custody and, thereafter, took the matter under advisement. (Doc. No. 38). On November 22, 2010, the trial court granted CPSU‘s motion for permanent custody thereby terminating Amber‘s parental rights to Baby Boy W. (Doc. No. 39).
{¶9} On December 17, 2010, Amber filed a notice of appeal. (Doc. No. 42). Amber now appeals raising three assignments of error for our review. We elect to address Amber‘s third assignment of error out of the order presented in her brief.
ASSIGNMENT OF ERROR NO. I
THE COURT SHOULD FIND THAT THE JUDGMENT ENTRY APPEALED FROM IN THE HANCOCK COUNTY JUVENILE COURT ON NOVEMBER 22, 2010 IS NOT A FINAL APPEALABLE ORDER.
{¶10} In her first assignment of error, Amber argues that this Court lacks jurisdiction for lack of a final appealable order since the trial court failed to hold a dispositional hearing.
{¶11} The record indicates that Amber filed a motion to dismiss the case with this Court for lack of a final appealable order on February 7, 2011. On February 24, 2011, however, we denied the motion finding that the judgment entry terminating Amber‘s parental rights and awarding CPSU permanent custody of Baby Boy W. was a final appealable order under
{¶12} Amber‘s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT‘S DECISION TO TERMINATE THE APPELLANT‘S PARENTAL RIGHTS AND GRANT PERMANENT CUSTODY TO THE DEPARTMENT VIOLATED THE APPELLANT‘S DUE PROCESS RIGHTS.
{¶13} In her third assignment of error, Amber argues that the trial court violated her procedural due process rights by failing to hold a separate dispositional hearing.
{¶14} When a trial court proceeds on an original neglect, dependency, or abuse complaint under
{¶15} The record in this case demonstrates that the trial court held a dispositional hearing on November 15-16, 2010, though not specifically labeled as such by the trial court or the parties herein. Since Amber had her parental rights terminated with respect to two of Baby Boy W.‘s siblings, the trial court determined that the agency was not required to make reasonable efforts pursuant
{¶16} Amber‘s third assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE JUVENILE COURT ERRED AND ABUSED ITS DISCRETION AS THE FINDINGS MADE BY THE COURT TO SUPPORT ITS GRANT OF PERMANENT CUSTODY TO HCJFS ARE NOT CONSISTENT WITH THE STANDARD OF CLEAR AND CONVINCING EVIDENCE, AND THE TRIAL COURT‘S GRANT OF PERMANENT CUSTODY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶17} In her second assignment of error, Amber argues that CPSU failed to clearly and convincingly demonstrate the required findings under
{¶18} “It is well recognized that the right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680, citing In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551. Therefore, “a parent‘s right to the custody of his or her child has been deemed ‘paramount.‘” Hayes, 79 Ohio St.3d at 48, citing In re Perales (1977), 52 Ohio St.2d 89, 97, 369 N.E.2d 1047. Because parents have a fundamental liberty interest in the custody of their own children, this important legal right is “protected by law and, thus, comes within the purview of a ‘substantial right[.]‘” In re Murray, 52 Ohio St.3d at 157. Therefore, parents “‘must be afforded every procedural and substantive protection the law allows.‘” Hayes, 79 Ohio St.3d at 48, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.
{¶19}
{¶20} The trial court‘s findings must be supported by clear and convincing evidence and will not be overturned as against the manifest weight of the evidence if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established.
{¶21} At the beginning of the dispositional hearing, Amber stipulated, in pertinent part, that she had her parental rights permanently and involuntarily terminated as to two of Baby Boy W.‘s siblings. (Nov. 15-16, 2010 Tr. at 10-12). Judgment entries reflecting that fact were also admitted by stipulation. (CPSU Exs. 5-6). Thereafter, Robin Brown, a mental health/substance abuse counselor at Century Health, testified that Amber was a former Century Health client in 2003, and, in 2007, she diagnosed Amber with major depression, recurrent and moderate rule-out delusional disorder. (Nov. 15-16, 2010 Tr. at 15-18). Brown testified that delusional disorder is “a form of mental illness where someone believes that
{¶22} On cross-examination, Brown testified that Amber tested negative for illegal substances on August 9, 2010 and at least two other times, and that substance abuse has never been a concern in Amber‘s case. (Id. at 30-31). Brown testified that Kring‘s August 12th diagnosis that Amber suffered from anxiety and intermittent explosive disorder was changed on August 26th to a diagnosis of anxiety. (Id. at 31-32). Brown testified that their records did not indicate whether Amber was taking medication for her anxiety. (Id. at 32-33). Brown testified that Amber had a history of attention deficit disorder but no current diagnosis of such. (Id. at 37). On re-direct, Brown testified that the diagnosis of record was made by the psychiatrist in 2008, who diagnosed Amber with major depression, recurrent, moderate with attention deficit disorder, post-traumatic stress disorder, and anxiety. (Id. at 39-40). Brown testified that Amber had been prescribed Lamictal, a mood stabilizer, Straterra for attention deficit disorder, and later those medications were changed to Depakote, a mood stabilizer, and Zoloft for depression. (Id. at 41). Brown testified that Amber stopped taking these medications in 2008. (Id. at 42). Brown testified that Amber was unable to
{¶23} Rebecca Schumaker, a former parent educator and current case worker at CPSU, testified that she was involved with Amber regarding her care of three of her children. (Id. at 44-45, 49). Schumaker testified that she began working with Amber and her daughter in May 2002 when Amber was fourteen or fifteen (14 or 15) years old. (Id. at 49-50). Schumaker testified that she worked with Amber on parent/child interaction, feeding, holding, and interacting with the baby, and they were monitoring the child‘s development. (Id. at 50). Schumaker testified that Amber contacted the agency again for services when she was pregnant with her second child in June 2006. (Id. at 51). Schumaker testified that there were concerns with Amber‘s care for her daughter, who was four years old and escaping from the home. (Id.). Schumaker testified that she was concerned about Amber‘s daughter escaping from the home because it was not an isolated incident, and Amber had not taken any action to stop it from re-occurring. (Id. at 52-53). Schumaker testified that Amber‘s home was “very cluttered,” “piled with boxes of items,” and “very chaotic” with Amber‘s mother, Kathy Welly, living there and bringing her boyfriend in and out of the home. (Id. at 54). Schumaker further testified that she had some concerns with Welly, because Amber had reported that Welly was an alcoholic and that they would engage in fist fights.
{¶24} Schumaker testified that “[t]here was always so much drama that it was very difficult to look into the issue of parent education” with Amber. (Id. at 56). Schumaker testified that Amber was concerned with sex offenders possibly living in her apartment complex; nevertheless, Amber allowed her daughter to spend a month with Randy Hernandez, a family member she thought was a sex offender, and Alex Hernandez, a family member she thought had abused her children. (Id. at 56-57). Schumaker testified that Amber told her that someone was getting into her apartment through her attic, but the apartment management explained that that could not be possible because of fire walls in the attic between each apartment. (Id. at 57-58). Schumaker testified that Amber made an allegation that the apartment maintenance man was watching her because he wanted to have sex with her, when he was actually involved in ministry. (Id. at 59). Schumaker testified that Amber had several heated disagreements with the apartment complex‘s management about them allowing the maintenance man into her apartment when he just wanted to have sex with her. (Id. at 59). Schumaker
{¶25} On cross-examination, Schumaker testified that CPSU became involved in the case shortly after she began, and that her relationship with Amber began to deteriorate shortly after CPSU became involved. (Id. at 72). Schumaker testified that she would not be aware of any progress that Amber has made since October 2007. (Id. at 73). Schumaker testified that she was not certain whether Harold W. was watching the children when the police picked up the children at the home, but that she had concerns with all of Amber‘s uncles, who were either sex offenders or had prior criminal convictions. (Id. at 73-75). On re-direct, Schumaker testified that Harold W. was in the home after Amber was made aware of the fact that he was a registered sex offender, though he was not there with the children. (Id. at 78).
{¶26} Megan Lauck, a caseworker with HCJFS, testified that she was Baby Boy W.‘s case worker since July 2010. (Id. at 81-83). Lauck testified that Amber thought the father of the child was “Dallas,” a guy she previously attended high school with and had sex with during a party in Findlay, though she did not know Dallas‘s last name or his whereabouts. (Id. at 84-85). Lauck testified that Amber wanted her half-brother, Eric Welly, to be listed as the child‘s father, which Lauck thought would be confusing to the child. (Id. at 85-86). Lauck testified that Baby
{¶27} Lauck testified that the case plan‘s fourth objective was visitation with the child. (Id. at 109). Lauck testified that she was concerned with Amber placing the child‘s pacifier in her mouth before placing it in the child‘s mouth, because she could transfer cold and flu germs to the child. (Id. at 111). Lauck
{¶28} Lauck further testified that Amber requested that her father, her sister, her brother, and Sarah Miller be allowed to have visitation with Baby Boy W., but that they informed Amber that the visits were for her to bond with the child. (Id. at 132). Lauck testified that Harmony House eventually allowed Amber to bring one person, and she chose her brother, Eric Welly. (Id. at 133). Lauck testified that, on October 4th, Amber reported that the child had a large broken blood vessel in his eye; however, Lauck checked the child and observed no such injury. (Id. at 136-37). Lauck testified that Amber was not able to provide an adequate permanent home for the child. (Id. at 138). Lauck testified that Amber has not accepted responsibility for the removal of her two other children; rather, Amber blamed her daughter and everyone involved. (Id. at 139). Lauck testified that Baby Boy W. “seems to be content” with Amber, but that Baby Boy W. is “very bonded” to his foster parents. (Id. at 140). Lauck further testified that Baby Boy W. is “always a very happy baby when [he] goes [to the foster care home], smiling. He seems very happy and content. Healthy.” (Id. at 140-41). Lauck
{¶29} On cross-examination, Lauck testified that she repeatedly asked Amber to sign the paperwork so Baby Boy W. would get medical treatment, but Amber refused because “she didn‘t want him to receive services.” (Id. at 166). Lauck testified that she would have talked with her supervisor or the prosecutor to change the case plan from seeking permanent custody had she witnessed changes in Amber‘s ability to parent since the previous termination of parental rights, but she did not witness Amber improve. (Id. at 173).
{¶30} Matt Stombaugh testified that he is a case manager at Open Arms Domestic Violence and Rape Crisis Services, which operates/manages the
{¶31} On cross-examination, Stombaugh testified that Amber arrived to visitation several times before the foster parents had arrived with the child. (Id. at 222-23). Stombaugh testified that Amber was four minutes late at most. (Id. at 224). Stombaugh testified that Amber correctly noticed that the child‘s bottle was dirty on two occasions, when a small piece of food or lettuce was stuck inside the bottle. (Id. at 235-36). Stombaugh testified that Amber did not want to feed the formula to the child because she expressed concern about a recall on the formula; however, Stombaugh testified that he informed Amber that the recall was not for the formula the foster parents were using. (Id. at 237). Stombaugh testified that Amber attended twenty-nine (29) of thirty-two (32) possible visitations, and that Amber cancelled two visitations, while the foster parents cancelled one. (Id. at 238). Stombaugh testified that they do not teach the parents how to interact with their children, though they may suggest different ideas. (Id. at 240-41). On re-direct, Stombaugh testified that Amber placed the child‘s pacifier into her mouth and then into the child‘s mouth approximately twenty-two (22) times prior to the September 17th visitation, and she was reminded once thereafter not to do so. (Id. at 244-45).
{¶33} On cross-examination, Miller testified that she started the parenting support group, called Mothers Offering Mothers Support (MOMS), in January 2010 as a new group. (Id. at 271). Miller testified that Amber attended a total of
{¶34} Amber testified that she resides alone in a three-bedroom, bath and a half, in Findlay, Ohio. (Id. at 299-300). Amber testified that her daughter‘s room is still set up, because she still has rights to her. (Id. at 300). Amber testified that she learned she was pregnant October 31st, and that in January or February they discovered Baby Boy W.‘s weight was low. (Id. at 302-03). Amber testified that he also tested positive for Down syndrome at that time, so she met with Miller to arrange transportation to the Maternal Fetal Hospital in Toledo, where she had weekly appointments. (Id. at 303). Amber testified that she began attending the MOMS class in February once a month, and that she did twelve (12) parenting class sessions during 2008 to 2009 through FRC. (Id. at 304). Amber testified that she learned about nutrition and massage at the MOMS classes, and that she attended six or seven (6 or 7) of these classes. (Id. at 305). Amber testified that Baby Boy W. was diagnosed with Down syndrome, had a low weight, and was born “5-6, 18 inches.” (Id. at 306-07). Amber testified that CPSU took the baby shortly after delivery; that the nurse told her that CPSU believed she was on drugs;
{¶35} On cross-examination, Amber testified that, before she delivered the child, she did not think that CPSU would be involved. (Id. at 327-28). Amber testified that she did not know the father‘s whereabouts, but that she “seen him in passing” from Findlay High School where she graduated from in 2005. (Id. at 328-29). Amber testified that she wanted her brother to be on the child‘s birth certificate because he had been there for the child, and that she was going to tell Baby Boy W. that her brother was his uncle. (Id. at 329). Amber testified that she did not see any relationship between her wanting her brother on the birth certificate and her parenting skills. (Id. at 330). Amber testified that her brother, Eric, would be a good role model for the child even though Eric was recently released from prison. (Id. at 332). Amber testified that she has had three prior cases with CPSU, and that she worked with CPSU on the case plans, though she did not finish parenting classes. (Id. at 333, 336). Amber testified that she “had no clue” why Schumaker would testify that she told her that her son was casting spells. (Id. at 340). Amber testified that it was not her fault her other children were taken away but because “JFS likes to lie a lot and they thought they were running the Court.” (Id. at 344). Amber testified that she collects SSI payments for a developmental handicap. (Id. at 345). Amber acknowledged that she testified
{¶36} Don Schmidt, a CASA representative, testified that he had been involved with Amber‘s first case in 2005 to 2006. (Id. at 380-81). Schmidt testified that he recommended that CPSU be granted permanent custody of Baby Boy W., so that the child could be adopted. (Id. at 382). Schmidt testified, on cross-examination, that he did not have any contact with Amber regarding Baby Boy W. since Amber “fired him.” (Id. at 383). Schmidt testified that he was confident in his recommendation despite not having done an independent evaluation. (Id. at 384).
{¶37} After reviewing the evidence presented, the trial court concluded that the State had clearly and convincingly demonstrated that the child cannot be placed with Amber. (Nov. 22, 2010 JE, Doc. No. 39). We agree. Amber
{¶38} Next, the trial court determined that it was in the child‘s best interest to award CPSU permanent custody. (Id.). The trial court stated that it had considered the factors set forth in
(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;
(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;
(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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(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.
(Id.). Pursuant to
{¶39} The trial court‘s findings herein were supported by competent, credible evidence by which it could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights had been established.
{¶41} Amber‘s second assignment of error is, therefore, overruled.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
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