In re C.F.
Lead Opinion
{¶ 1} This matter comes to us on review of an order by the Eighth District Court of Appeals certifying a conflict. We determined that a conflict exists and ordered that the parties brief the following issues:
{¶ 2} 1. “Whether a reasonable efforts determination is required in motions for permanent custody filed pursuant to
{¶ 3} 2. “Whether a trial court abuses its discretion by denying a request for an in camera interview in a permanent custody determination when there is nothing in the record to indicate that having the children testify would have been detrimental to them or that they did not desire to testify.”
{¶ 4} In response to the first question, we hold that, except for some narrowly defined statutory exceptions, the state must make reasonable efforts to reunify the family before terminating parental rights. If the agency has not already proven reasonable efforts, it must do so at the hearing on a motion for permanent custody. However, the specific requirement to make reasonable efforts that is set forth in
{¶ 5} We answer no in response to the second question.
{¶ 6} Applying these principles to this case, we reverse the judgment of the court of appeals.
Facts and Procedural History
{¶ 7} Deborah Ness and appellee, Wayne Foster, are the biological parents of C.F. (born March 3,1994) and S.F. (born July 10, 1996). On October 7, 2002, the appellant, Cuyahoga County Department of Children and Family Services (“CCDCFS”), filed a complaint alleging that C.F. and S.F. were neglected children. The complaint alleged that the mother had a history with both CCDCFS and Nevada Family Service authorities of domestic violence and alcohol abuse and that she had fled authorities in Nevada with her children and returned to Ohio. The complaint also alleged that the mother’s alcohol abuse impaired her
{¶ 8} On October 9, 2002, a magistrate ordered the children committed to the emergency care and custody of CCDCFS. The magistrate concluded that the agency had probable cause to remove the children from the home pursuant to
{¶ 9} The agency prepared and filed a case plan to reunify the children with both parents. The plan included finding stable housing, counseling to prevent domestic violence, and teaching parenting skills. The magistrate excused the father from participating in the counseling because of his health.
{¶ 10} On January 15, 2003, the court adjudged the children to be neglected and committed them to the temporary custody of CCDCFS. Both parents attended the adjudication hearing.
{¶ 11} Beginning in March 2003, the agency began to plan to reunify the children with their father. He appeared at a court hearing and represented that the mother had previously given the court inaccurate information about him. As a result, on April 21, 2003, the court approved an amended case plan to focus on reunification with the father. The court noted that the mother had failed to comply with the case plan. The court ordered that the father was not to allow the mother to participate in the children’s visits with their father.
{¶ 12} The agency began to accelerate the father’s visitation with the children and arranged for him to become more involved with the children’s schedules and with the foster parents with the goal of reunification by June 21, 2003. In June 2003, a domestic-violence incident allegedly occurred between the parents in the presence of the children. This caused the agency to interrupt reunification efforts with Foster. Instead, the agency offered alcohol and drug assessment and treatment to him. However, Foster was soon incarcerated for domestic violence and was not in touch with the agency for several months.
{¶ 13} On October 2, 2003, CCDCFS filed a motion pursuant to
{¶ 14} The agency conducted a semiannual case review on December 1, 2003, and filed an amended case plan with the court on January 20, 2004. The sobriety of both parents was a concern of the agency. The report from the review documented Foster’s lapse in June and his participation in Alcoholics Anonymous meetings in October and November 2003. The report also reflected that Foster had obtained permanent housing. The report documented the mother’s completion of parenting classes and her failure to get treated for substance abuse.
{¶ 15} In August 2004, the court conducted a hearing on the motion to modify temporary custody to permanent custody. The mother voluntarily relinquished her parental rights and consented to permanent custody to CCDCFS. The court acknowledged that the parents were now divorced. The case proceeded as to the father’s parental rights.
{¶ 16} Following the hearing, the trial court concluded that the agency had proven by clear and convincing evidence that permanent custody was in the children’s best interest and that the children could not and should not be placed with either parent within a reasonable time. The court ordered permanent custody of C.F. and S.F. to CCDCFS.
{¶ 17} Foster appealed the decision to the Eighth District Court of Appeals. The appellate court concluded that the trial court had abused its discretion in concluding that CCDCFS had used reasonable efforts to reunify the children with their father and in not allowing the children to testify. The appellate court reversed the grant of permanent custody and remanded the cause to the trial court.
{¶ 18} The court of appeals also certified a conflict as to the first issue between its decision and In re Stevens (July 16, 1993), Montgomery App. No. 13523,
{¶ 19} As to the second issue, the appellate court certified the following cases as being in conflict with its decision: In re Beresh Children, Stark App. No. 2003CA00089,
Issue One
{¶ 20} “Whether a reasonable efforts determination is required in motions for permanent custody filed pursuant to R.C. 2151418. ”
{¶ 21} Because of the broad scope of this question and because it does not directly address the more narrow conflict presented in the conflict cases, we must qualify our answer. Based on the constitutional implications of terminating parental rights and the importance of requiring reasonable reunification efforts that pervades federal and Ohio law, we hold that, except for a few narrowly defined exceptions, the state must have made reasonable efforts to reunify the family prior to the termination of parental rights. The question that we must also address, however, is whether, pursuant to
A. Motion for Permanent Custody pursuant to R.C. 2151413
{¶ 22} A public or private child-placement agency may file a motion under
{¶ 23} The court must notify the parties of the motion and must hold a hearing.
{¶ 24} “(a) The child is not abandoned or orphaned or has not 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 the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents.
{¶ 25} “(b) The child is abandoned.
{¶ 26} “(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(¶ 27} “(d) 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.”
B. Reasonable Efforts to Preserve and Reunify Existing Families
{¶ 28} The right to parent one’s children is a fundamental right. Troxel v. Granville (2000),
{¶ 29} No one section of the Revised Code addresses the concept of reasonable efforts. Overall, Ohio’s child-welfare laws are designed to care for and protect children, “whenever possible, in a family environment, separating the child from the child’s parents only when necessary for the child’s welfare or in the interests of public safety.”
{¶ 30} Ohio’s Department of Job and Family Services has promulgated regulations that describe reasonable efforts in great detail.
{¶ 31} “(a) Prevent the removal of the child from the child’s home;
{¶ 32} “(b) Eliminate the continued removal of the child from the child’s home;
{¶ 33} “(c) Make it possible for the child to return home.”
{¶ 34} Under certain circumstances, the law dispenses with the duty to make reasonable efforts to reunify the family. Under
{¶ 35} Federal law similarly directs states to make reasonable efforts to preserve and reunify families except under certain enumerated circumstances. See Section 671(a)(15), Title 42, U.S.Code.
C. Conflict Cases
{¶ 36} The issue presented in the conflict cases is whether the trial court must make an
{¶ 37} “(A)(1) Except as provided in division (A)(2) of this section, at any hearing held pursuant to section 2151.28, division (E) of
{¶ 38} Some appellate courts have held that the agency must satisfy the
{¶ 39} A further complication here is that the Eighth District Court of Appeals has itself issued an opinion that conflicts with the case sub judice on this issue. See In re Z.Y., Cuyahoga App. No. 86293,
{¶ 40} In the instant case, Foster made the same argument to a different panel, which reached the opposite result. Thus, Z.Y. is in conflict with the appellate opinion in this case. We have held that our “procedure for certified conflicts does not apply to conflicts within an appellate district, Section 3(B)(4), Article IV, Ohio Constitution, and such conflicts should be resolved through en banc proceedings.” In re J.J.,
{¶ 41} While these cases present conflicting views on the applicability of
{¶ 42} This does not mean that the agency is relieved of the duty to make reasonable efforts. At various stages of the child-custody proceeding, the agency may be required under other statutes to prove that it has made reasonable efforts toward family reunification. To the extent that the trial court relies on
{¶ 43} Therefore, we hold that
{¶ 44} When Wayne Foster appealed the termination of his parental rights to the Eighth District Court of Appeals, he alleged that because CCDCFS had failed to make reasonable efforts to reunify his children with him, the court should not have granted permanent custody to CCDCFS. The appellate court agreed. The court concluded that there had been no case plan in effect for Foster when CCDCFS was trying to reunify the children with him.
{¶ 45} However, the record reflects that the trial court made reasonable-efforts findings when the Foster children were committed to the emergency custody of the agency and when they were adjudicated neglected and committed to the temporary custody of the agency. The court again made reasonable-efforts findings in April 2003 when it amended the case plan to accelerate reunification with Foster. On September 30, 2003, the court again concluded that the agency had made reasonable efforts despite the mother’s failure to comply, the father’s continued drinking, and the incidents of domestic violence.
{¶ 47} Jeff Konkoly, the social worker on the case, testified that the agency referred Foster for substance-abuse assessment, parenting classes, and assistance for domestic violence in late 2003 and early 2004. Mr. Konkoly testified that, although the agency was seeking permanent custody at the time, reunification of the family is always possible.
{¶ 48} The trial court decided that there was clear and convincing evidence that “[fjollowing the placement of the children outside of the home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the children to be placed outside the home, the parents have failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside the home.
{¶ 49} In addition, the trial court made two additional findings under
{¶ 50} We find that any one of these factors would have been sufficient grounds for the trial court to determine that the Foster children could not be placed with either parent within a reasonable time. The court only needed to find that one factor applied to support its holding.
Issue Two
{¶ 51} ‘Whether a trial court abuses its discretion by denying a request for an in camera interview in a permanent custody determination when there is
{¶ 52}
{¶ 53} Foster had requested that the court conduct an in camera interview of his children. The trial court denied his request and instead relied on the testimony of the guardian ad litem, Mr. Hartman. The court of appeals concluded that the trial court had abused its discretion by not giving the children the opportunity to express their desires directly.
{¶ 54} This holding is contrary to the conflict cases in which courts in the 5th, 9th, and 11th districts ruled that a trial court does not abuse its discretion when it considers the guardian ad litem’s testimony regarding the wishes of the children rather than the wishes as expressed directly by the children. These courts reasoned that
{¶ 55} We agree with the conflict cases. The statute unambiguously gives the trial court the choice of considering the child’s wishes directly from the child or through the guardian ad litem. Therefore, our answer to the second certified-conflict question is no. When determining the wishes of the child, a court is required by
{¶ 56} The trial court has discretion to accept the testimony of the guardian ad litem on the child’s wishes rather than hearing a direct expression of those wishes
{¶ 57} In a best-interests analysis under
{¶ 58} We find that the trial court satisfied its statutory duty under
{¶ 59} For the foregoing reasons, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court.
Judgment reversed.
Notes
. A law-enforcement officer or authorized officer of the court may take a child into custody if there are reasonable grounds to believe that the child is in immediate danger and that removal is necessary to prevent immediate or threatened physical or emotional harm, or reasonable grounds to believe that a parent has abused or neglected another child in the household and that the child is in danger of immediate or threatened physical or emotional harm.
. Subsection (A)(2) identifies a number of situations in which the agency need not make reasonable efforts to keep the child in the home or to return the child to the home.
Dissenting Opinion
dissenting.
{¶ 60} I dissent from both of the majority’s holdings. First, before awarding permanent custody to a children services agency pursuant to
I
{¶ 61} As the majority recognizes, “[t]he right to parent one’s children is a fundamental right.” ¶ 28, citing Troxel v. Granville (2000),
{¶ 62} The General Assembly has recognized the primacy of the right of parents to raise their children, stating that R.C. Chapter 2151 “shall be liberally interpreted and construed so as to effectuate the following purposes:
{¶ 63} “(A) To provide for the care, protection, and mental and physical development of children subject to Chapter 2151. of the Revised Code, whenever possible, in a family environment, separating the child from the child’s parents only when necessary for the child’s welfare or in the interests of public safety.”
{¶ 64} For the most part, R.C. Chapter 2151 does require a children services agency to make reasonable efforts to maintain the relationship between parents and their children. In instances where a court’s orders are temporary or where the normal process is truncated,
{¶ 65} That requirement of reasonable efforts embedded in
{¶ 66} Still, the majority trudges forward as if there were a conflict, setting out to determine whether the reasonable-efforts requirement of
{¶ 67} Further, in regard to
{¶ 68} Neither of those
{¶ 69} The majority opinion thus allows a piecemeal application of a reasonable-efforts standard, requiring between-the-lines reading of individual statutes to determine where the requirement applies and where it does not. That method provides neither an efficient nor a sure way to protect the rights of parents and the safety of children.
{¶ 70} This court can guarantee that the fundamental right of parents is not terminated without due process by requiring courts to find by clear and convincing evidence that the state has made reasonable efforts to reunite parent and child or that such efforts would have been futile. No, that determination is not required by statute in all cases. But the fundamental right of parents to raise their children is not the creation of statute. Parents must rely on courts to
{¶ 71} “The reasonable efforts requirement contained in
{¶ 72} “ * * *
{¶ 73} “ * * *
{¶ 74} This court, too, should impose a requirement that in all permanent-custody hearings the trial court should prepare written findings of fact establishing that the children services agency made reasonable efforts at reunification or that such efforts would have been futile. That requirement would protect a parent’s fundamental right to raise his or her child with due regard to the safety of the child.
II
{¶ 75} This court should also take the lead in requiring trial courts to hear direct testimony from children in permanent-custody cases whenever possible. The children in this case, eight and ten years of age, were old enough to express their own desires. The majority opinion blesses the all-too-common practice in custody proceedings of shielding children from judges. Or perhaps it is the judges who are being shielded from the children. Testimony from children can
{¶ 76} Accordingly, I respectfully dissent.