2004 Ohio 3628 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 3} The evidence at the permanent custody hearing established that Mother has been addicted to painkillers for most of her children's lives. While living with Mother, Krystal often served as Jack Randall's caregiver because Mother was in a drug induced stupor and Father was in prison. Krystal testified that after going into foster care she stopped using illegal drugs and alcohol, stopped smoking, stopped missing school, stopped stealing, stopped being sexually promiscuous, and started earning A's and B's instead of D's and F's. Krystal testified at the hearing that she does not wish to return to her parents, even though she realizes that the same family may not adopt her and Jack Randall.
{¶ 4} At the time of the hearing, Mother had no housing of her own and no employment or income. She admitted that she was living with a convicted sex offender. Father testified that his plan upon his release from prison was to move into the home of his married girlfriend, but at the same time attempt to reunite with Mother.2 Father testified that he began receiving SSI disability income in 1998 due to an undisclosed mental health condition, but has not received benefits while in prison. He requires psychotropic medications. He testified that he has no knowledge of, nor any desire to know, his diagnosis or prognosis. He testified that he plans to begin collecting SSI disability benefits again upon his release from prison, but admitted he had taken no steps to apply for them at the time of the hearing. Finally, he testified that he has a "stealing problem" that he believes he can control when he is released from prison this time.
{¶ 5} In addition to taking testimony from Father, Mother, and Krystal, the trial court heard testimony from the guardian ad litem, several counselors and social workers who have been involved with the family, the foster parents of Krystal and Jack Randall, and Father's mother and girlfriend. Based upon the testimony presented, the trial court found that the children had been in ACCS's custody for more than twelve months of a consecutive twenty-two month period, that ACCS had made reasonable efforts to return the children home, and that granting permanent custody to ACCS was in the children's best interest.
{¶ 6} Father appeals, asserting the following assignments of error: "I. A legally secure placement for the children can be achieved without granting permanent custody to [ACCS]: It was not reasonable to deny Father an opportunity to parent his children. II. [ACCS] failed to consider or implement reasonable alternatives to permanent custody. Thus its efforts to prevent the continued removal of the children were not reasonable."
{¶ 8} R.C.
{¶ 9} A permanent custody determination made pursuant to R.C.
{¶ 10} We will not substitute our own judgment for that of a trial court applying a "clear and convincing evidence" standard where some competent and credible evidence supports the trial court's factual findings. Schiebel; C.E. Morris Co. v. FoleyConstr. Co. (1978),
{¶ 11} Here, Father does not dispute that Krystal and Jack Randall were in the temporary custody of ACCS for twelve or more months of a twenty-two month period. However, he argues that a legally secure placement for the children could be achieved without granting permanent custody to ACCS. In particular, he argues that he could demonstrate his ability to adequately parent his children if given more time, because he has been released from prison since the hearing and no longer intends to reunite with Mother.
{¶ 12} The trial court found that Father, for all practical purposes, abandoned Krystal and Jack Randall through his voluntary criminal acts that led to lengthy prison sentences. Father argues that he is not likely to return to prison now because, for the first time in the children's lives, he is not merely out of prison on some type of community control, but rather has served all his sentences in their entirety. However, the evidence shows that Father, with the assistance of Mother's young adult son from a prior relationship, committed the offenses of breaking and entering, theft and tampering with evidence in 2002. Thus, the evidence does not show that the presence of one or both children in Father's life has deterred him from committing crimes in the past, and gives no indication that the children would deter him in the future.
{¶ 13} Additionally, the trial court found that Father had no reasonable plan to obtain employment or housing to provide for the children. Father contends that he is establishing a new home without Mother, and that all of Mother's problems will no longer encumber his ability to parent the children. However, regardless of Father's intentions with respect to Mother, Father's testimony shows that Father last worked for a few weeks in 1988. He began receiving SSI in 1998 due to a mental health disability, and he believes, but has taken no steps to assure, that he will start receiving SSI again when he is released from prison. He requires psychotropic medications, but claims to have no knowledge of or interest in knowing his diagnosis. He testified that his housing plan upon release from prison was to move in with a married female friend with whom he has maintained an on-again/off-again romantic relationship, while simultaneously attempting to reunite with Mother.
{¶ 14} As ACCS notes in its brief, a child does not first have to be put into a particular environment before the court can determine that the environment is unhealthy or unsafe. In reBishop (1987),
{¶ 15} Here, competent, credible evidence in the record supports the trial court's finding that a legally secure placement cannot be achieved without granting permanent custody to ACCS. In particular, the record contains competent, credible evidence that Father cannot adequately parent his children. Father's demonstrated propensity to commit crimes, combined with his lack of an adequate plan for income or housing upon his release from prison, support the trial court's finding that Father will continue to face a serious challenge maintaining his own life upon his release from prison, regardless of whether he reunites with Mother. Since the record contains competent, credible evidence supporting the trial court's finding that Father cannot provide a legally secure placement for the children, we overrule Father's first assignment of error.
{¶ 17} Pursuant to R.C.
{¶ 18} The trial court found that ACCS made reasonable efforts to prevent the removal of the children from the home and to eliminate their continued removal from the home. Specifically, ACCS provided family based services, housing relocation, transportation, financial aid, counseling, and visitation. The court noted that despite ACCS's efforts, neither parent has employment or housing or any reasonable plan to obtain either. Additionally, with respect to Father, the trial court found that Father effectively abandoned the children.
{¶ 19} We find that the record contains some competent, credible evidence supporting the trial court's finding that ACCS made reasonable efforts to prevent the children's continued removal from the home. While the record does not contain evidence that ACCS considered placing the children with their paternal grandmother, it does show that the grandmother had no contact with either child during the entire time Father was in prison. In addition to Father, she has another son who is in prison and a daughter who is a prostitute. Neither she nor Father ever filed a motion with the court in which they sought placement of the children with her. Finally, she testified that Krystal is better off in foster care. Thus, the fact that the record does not contain evidence that the ACCS considered the grandmother as a placement alternative does not contradict the trial court's finding that ACCS made reasonable efforts to prevent the continued removal of the children from their home.
{¶ 20} Father next suggests that ACCS did not make reasonable efforts based on its refusal to force Krystal to attend visitation with Mother. Father argues that Krystal's expressed desire to be adopted may have been different if Krystal had been forced to attend visitation. We find no merit to these arguments. First, Mother does not appeal the trial court's determination that her parental rights should be terminated. Father does not articulate how visitation with Mother would have affected Krystal's feelings about him or helped him demonstrate his ability to be a parent to Krystal. Moreover, the record reflects that Krystal did attend visitation with Mother at least through the time she testified at the permanent custody hearing and expressed her desire to be adopted. Krystal testified that Mother was high on pills during her visit in the week before the permanent custody hearing began.
{¶ 21} Finally, the record does not support Father's allegation that ACCS thwarted his reunification efforts by requiring that Krystal's counselor approve visitation with Father. Father does not make any citations to the record to support his allegation that ACCS required counselor approval for Krystal's visits, and ACCS denies that it ever instituted such a requirement. The trial court ordered that Father's visits with Krystal be subject to her wishes. Given Krystal's age and the fact that Father was in prison during most of her life, Krystal's choice to not visit Father on some occasions is not surprising.
{¶ 22} As we noted above, the test for determining whether the public agency satisfied its statutory duty is not whether the agency could have done more, but rather whether the agency made reasonable efforts to reunify the family. Myers, supra. Here, Father abandoned the children. Additionally, ACCS made reasonable efforts to return the children to their home by providing numerous services. As the trial court found, "[t]hese efforts did not prevent or eliminate the need for removal because the faults and habits of the parents are too substantial." Accordingly, we overrule Father's second assignment of error.
Judgment affirmed.
Concurrence Opinion
{¶ 24} I concur in judgment and opinion but wish to make explicit my position that the commission, conviction and imprisonment for criminal conduct does not always amount to abandonment per se. A finding of abandonment depends upon the facts of each case. In this instance, I agree that it was justified.
Harsha, J.: Concurs in Judgment and Opinion with Opinion.
Abele, J.: Concurs in Judgment and Opinion.
