615 N.E.2d 1120 | Ohio Ct. App. | 1992
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *871 Appellants, Danny and Jeannie Brofford, appeal the judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, awarding permanent custody of their minor children, Peggy, Danny and Robbie, to Franklin County Children Services ("FCCS").
In 1987, the trial court found Danny and Robbie to be dependent children. Later that year, the court found Peggy to be an abused child, as defined by R.C.
In December 1990, the FCCS filed for permanent custody of all three children pursuant to R.C.
"Assignment of Error No. I
"The trial court erred in ruling that a motion for permanent custody is a dispositional proceeding where the Rules of Evidence do not apply.
"A. Ohio Juvenile Rule 2(1) specifically provides that a motion for permanent custody is an adjudicatory hearing not a dispositional hearing.
"B. Given the nature of the private interest involved in a permanent custody proceeding, constitutional due process of law mandates that procedural safeguards, such as the Rules of Evidence, apply to such proceedings.
"Assignment of Error No. II
"The trial court erred in permitting hearsay testimony concerning statements made by the minor children as to alleged sexual abuse under the standards set forth in State v. Boston
(1989),
"Assignment of Error No. III
"The ruling of the trial court granting the motion for permanent custody is against the manifest weight of the evidence."
In their first assignment of error, appellants assert that the trial court erred in conducting the permanent commitment hearing as dispositional rather than adjudicatory. We agree. *873
Juv.R. 2(1) defines "adjudicatory hearings" to include hearings to determine if temporary custody should be converted to permanent custody. Although R.C.
There is only one limit on the Ohio Supreme Court's rule-making authority under Section
The requirement of Juv.R. 2(1) that a proceeding under R.C.
Although Juv.R. 29(F)(2) has been read to require bifurcation (see Baxter,
For the foregoing reasons, the permanent commitment hearing under R.C.
Appellants allege in their second assignment of error that the trial court erred in permitting hearsay testimony concerning statements made by the children to the caseworker and psychologist regarding sexual abuse.
As noted earlier, hearsay is inadmissible in an adjudicatory proceeding, ordinarily to the same extent that it is inadmissible in other adversary proceedings. The legislature, however, created an exception for hearsay statements of a child in "cases regarding abused, neglected or dependent children" in R.C.
Both the psychologist and caseworker testified as to specific statements made by each of the three children regarding sexual and other abusive acts of the parents. This testimony included allegations by Peggy and Danny that their father performed sexual acts upon them and that sexual activity between the parents was performed in the presence of Danny and Robbie. Testimony also included statements by Danny and Robbie alleging that their father urinated on each of their stomachs, in the sink and in the dog's mouth. Robbie had also commented to a psychologist that he observed sexual activity between his mother and their dog.
The above testimony was given consideration in arriving at the decision to grant permanent custody. This court acknowledges the care the referee and the trial court took in admitting hearsay testimony despite the fact that this proceeding was conducted as dispositional. Proceedings under R.C.
It is noted at the outset that Evid.R. 807 came into effect July 1, 1991, after completion of this proceeding. Thus, it was not considered by the trial court, although it may be applicable on remand if all of its requirements are fulfilled. It is further noted that Evid.R. 803(4) is not applicable because the childrens' statements were not made to medical personnel and, therefore, were not made for purposes of medical treatment or diagnosis. State v. Eastham (1988),
In Boston,
There being no hearsay exception applicable at the time of the hearing, the children's out-of-court statements could only have been admitted upon satisfaction of the requirements set forth in R.C.
"In cases regarding abused, neglected, or dependent children, the court may admit any statement of a child that the court determines to be excluded by the hearsay rule if the proponent of the statement informs the adverse party of his intention to offer the statement and of the particulars of the statement, including the name of the declarant, sufficiently in advance of the hearing to provide the party with a fair opportunity to prepare to challenge, respond to, or defend against the statement, and the court determines all of the following:
"(1) The statement has circumstantial guarantees of trustworthiness;
"(2) The statement is offered as evidence of a material fact;
"(3) The statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts;
"(4) The general purposes of the evidence rules and the interests of justice will best be served by the admission of the statement into evidence."
There is no showing in the record that the trial court considered the factors set forth in R.C.
Appellants' second assignment of error is sustained.
In their third assignment of error, appellants allege that the grant of permanent custody was against the manifest weight of the evidence.
In determining whether it is against the manifest weight of the evidence, the reviewing court is guided by the presumption that the findings of the trial court were correct. Seasons CoalCo. v. Cleveland (1984),
The court may grant permanent custody under R.C.
"In determining the best interest of a child * * * the court shall consider all relevant factors, including, but not limited to, the following:
"(1) The reasonable probability of the child being adopted, whether an adoptive placement would positively benefit the child, and whether a grant of permanent custody would facilitate an adoption;
"(2) The interaction and interrelationship of the child with his parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child;
"(3) The wishes of the child, as expressed directly by the child or through his guardian ad litem, with due regard for the maturity of the child;
"(4) The custodial history of the child;
"(5) 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."
In determining whether a child cannot be placed with either parent within a reasonable period of time or should not be, R.C.
A review of the record reveals that sufficient evidence was presented to support a finding that permanent commitment is in the best interest of all of the children. The caseworker's testimony supports a finding of adoptability for each child. There is also evidence that the interaction and interrelationships between each child and the parents and relatives were not healthy. It has already been established that an uncle had beaten Peggy. Dr. Blubaugh performed individual psychological examinations on each of the children and testified that the results were consistent with those of children who were sexually abused. The tests administered were widely accepted in the psychological community. The children's wishes were expressed in letters to the judge, stating *878 that they did not wish to come home. The children's wishes and interrelationships with their parents were apparent from their reaction to questioning by the psychologist. The doctor noted how the children became uncomfortable and withdrawn, sometimes curling up into a fetal position when asked about their parents. The children have been in the custody of FCCS for approximately four years. Both psychologist and caseworker testified that all three children are in need of a legally secure permanent placement.
The record also supports the finding that the children cannot be placed with either parent within a reasonable time and that they should not be. The parents failed to complete counseling, which was a requirement in the case plan. Noncompliance with the case plan is a ground for termination of parental rights. See Inre Holbert (Mar. 6, 1984), Franklin App. No. 83AP-704, unreported, 1984 WL 4660; In re Butcher (Apr. 10, 1991), Athens App. No. 1470, unreported, 1991 WL 62145; In re SpurlockChildren (Jan. 27, 1992), Butler App. No. CA90-01-013, unreported, 1992 WL 12778. Furthermore, the children manifested significant behavior problems, including sexual acting out, which the psychologist stated was indicative of abused children. Additionally, the hearsay statements of the children, while inadmissible as presented, may be considered in determining manifest weight since, on remand, the testimony may be properly presented.
There was sufficient evidence to support all of the essential elements required by R.C.
Appellants' first and second assignments of error are sustained, and appellants' third assignment of error is overruled. The judgments of the trial court are reversed and the causes are remanded to the trial court for further procedure consistent with this opinion.
Judgments reversedand causes remanded.
TYACK and DESHLER, JJ., concur. *879