In re C.S.
Case No. 15CA18
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
RELEASED: 11/20/2015
2015-Ohio-4883
Hoover, P.J.
Adjudicated neglected abused dependent children.
James A. Wallace, Athens, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, OH, for appellee Athens County Children Services.
Hoover, P.J.
{¶ 1} Appellant, M.S., appeals the trial court‘s judgment that awarded appellee, Athens County Children Services (ACCS), permanent custody of her two biological children, four-year old C.S. and eighteen-month old I.H. For the reasons that follow, we affirm the trial court‘s judgment.
I. FACTS
{¶ 2} On January 16, 2014, law enforcement officers discovered heroin inside the home appellant and I.H.‘s father, J.H., shared. Both appellant and J.H. were arrested and charged with felony drug offenses. ACCS obtained emergency custody of the two children.
{¶ 4} ACCS developed a case plan that required appellant (1) to become a law-abiding citizen and to specifically refrain from “the drug trade,” (2) to no longer use illicit substances, (3) to follow all rules of parole and incarceration, (4) to attend substance abuse counseling and submit to random drug screens, and (5) to obtain and maintain housing upon her release from incarceration.
{¶ 5} On October 29, 2014, ACCS filed a motion to modify the disposition to permanent custody. ACCS alleged that the children cannot be placed with either parent within a reasonable time or should not be placed with either parent. ACCS argued that C.S.‘s father has abandoned her. ACCS claimed that I.H.‘s father received a six-year prison sentence and thus will be unavailable to care for the child for at least six years. ACCS noted that appellant has “had limited ability to engage in services to address the substance abuse and parenting issues or to address the needs of the children,” but further asserted that appellant “has been unwilling to take advantage of the programs offered by the penal system.” ACCS asserted that appellant indicated that she does not need substance abuse treatment. ACCS further claimed that appellant informed her caseworker that her substance abuse issues are J.H.‘s “fault.” ACCS contended that appellant “has refused to acknowledge and work on her issues to the extent possible while incarcerated.” ACCS alleged that appellant “has not attempted to engage in the programming available to her” and that appellant “refuses to acknowledge her
{¶ 6} On January 12, 2015, ACCS filed a semi annual administrative review. In it, ACCS asserted that appellant “sheds all responsibility for her involvement and drug use and has not seen the benefits of a rehabilitation course and has not yet registered for one.” ACCS further charged that appellant “has not taken any responsibility for her drug use or for the unintended consequences of her actions.”
{¶ 7} On February 17 and 19, 2015, the trial court held a hearing to consider ACCS‘s permanent custody motion. Jessica Pennington testified that I.H. received services through Help Me Grow. Pennington explained that she met with appellant on a few occasions and had phone conferences with her. Pennington stated that appellant “followed all of our recommendations” and displayed an ability and willingness to work with Pennington, even though appellant remained incarcerated.
{¶ 8} ACCS family services caseworker Christopher Imm testified that appellant informed him that she would like the children returned to her care upon her release from prison. Imm stated that appellant enrolled in a substance abuse program during the week before the permanent custody hearing.
{¶ 9} ACCS caseworker Rob Goeller testified that he discussed substance abuse treatment with appellant, but appellant stated that she did not plan to engage in substance abuse treatment. Goeller stated that appellant indicated that she did not have a substance abuse problem. Goeller explained that he took the children to visit appellant in prison, but ACCS eventually discontinued the visits because it stressed the children.
{¶ 11} The children‘s guardian ad litem testified that awarding ACCS permanent custody would be in the children‘s best interests. She stated that she learned that appellant expressed a desire to be reunified with the children upon her release from prison in February 2016, but stated, “speaking realistically in the time it would take her to be released and establishing housing, establish income, uh, based on her statements today there‘s not a solidified plan for her to do that.” The guardian ad litem continued: “The children they deserve permanency and they deserve stability now, and I don‘t think that they should have to languish in the temporary situation that they‘re currently in for another year to year and a half by the time [appellant] is released and could establish herself.”
{¶ 12} On April 8, 2015, the trial court granted ACCS permanent custody of the two children. The court found that
These parents have been in jail or prison for most of the time this Court case has been open (over one year). [J.H.] readily admits that he will be of no help to his child and chose to return to prison before the hearing on this motion was finished. To this day, [appellant] continues to accept little responsibility for this situation, choosing instead to blame [J.H.] only. This she claims even though the drug activities were occurring in the home with the children present. Clearly the parents’ incarcerations have impeded many standard efforts at reunification, but even so, [appellant] continues to be resistant to treatment and counseling within the prison system. The children should not be made to wait on the off chance that mother eventually straightens out her life.
II. ASSIGNMENT OF ERROR
{¶ 13} Appellant raises one assignment of error.
THE TRIAL COURT‘S FINDING THAT THE CHILDREN CANNOT BE PLACED WITH EITHER PARENT WITHIN A REASONABLE TIME OR SHOULD NOT BE PLACED WITH EITHER PARENT WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
III. ANALYSIS
{¶ 14} In her sole assignment of error, appellant asserts that the record does not contain clear and convincing evidence to support the trial court‘s finding that the children cannot be placed with her within a reasonable time or should not be placed with her.
A. STANDARD OF REVIEW
{¶ 15} A reviewing court generally will not disturb a trial court‘s permanent custody decision unless the decision is against the manifest weight of the evidence. In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 53 (4th Dist.).
” Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’ ”
{¶ 16} When an appellate court reviews whether a trial court‘s permanent custody decision is against the manifest weight of the evidence, the court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.‘” Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶¶ 23-24.
{¶ 18} Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, ” ‘clearly lost its way and created such a manifest miscarriage of justice that the
{¶ 19} Furthermore, when reviewing evidence under the manifest weight of the evidence standard, an appellate court generally must defer to the fact-finder‘s credibility determinations. As the Eastley court explained:
” ‘[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * * If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’ ”
Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 21, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
{¶ 20} Within her assignment of error, appellant argues that the standard of review we traditionally have applied in permanent custody cases is too deferential. Appellant asserts that the standard of review we have applied reads:
We will not reverse a judgment of the trial court in a permanent custody case when some competent, credible evidence supports the trial court‘s findings. In re Marano, 4th Dist. No. 04CA30, 2004-Ohio-6826, ¶ 12. “We give the trial court‘s final determination ‘the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concern.‘” Id., quoting In re Alfrey, 2nd Dist. No. 01CA0083, 2003-Ohio-608, ¶ 102.
{¶ 21} Appellant argues that the standard of review set forth in M.S. is wrong because it fails to recognize the “clear and convincing evidence” burden of proof. Appellant contends that when the burden of proof at trial is clear and convincing, then a reviewing court must find more than “some competent and credible evidence” to affirm the judgment. Appellant asserts that in a permanent custody case, where the burden of proof is clear and convincing, a reviewing court must examine the record to determine whether clear and convincing indeed exists to support the trial court‘s judgment.
{¶ 22} We believe that we have already refined the M.S. standard. E.g., In re N.S.N., 4th Dist. Washington Nos. 15CA6, 15CA7, 15CA8, 15CA9, 2015-Ohio-2486, ¶¶ 24-28; In re B.C.-1, 4th Dist. Athens Nos. 14CA43, 14CA48, 2015-Ohio-2720, ¶¶ 34-36. We stated that the manifest-weight-of-the-evidence standard applies and that the ultimate question is “whether the juvenile court‘s findings * * * were supported by clear and convincing evidence.” See K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, at ¶ 43. We note that appellant premises her argument upon decisions that pre-date our decision in In re R.M., supra. In R.M., we clarified the standard of review that applies
B. PERMANENT CUSTODY PRINCIPLES
{¶ 23} A parent has a “fundamental liberty interest” in the care, custody, and management of his or her child and an “essential” and “basic civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶¶ 8-9. A parent‘s rights, however, are not absolute. In re D.A. at ¶ 11. Rather, ” it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974). Thus, the state may terminate parental rights when a child‘s best interest demands such termination. In re D.A. at ¶ 11.
{¶ 24} Before a court may award a children services agency permanent custody of a child,
(A) To provide for the care, protection, and mental and physical development of 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; (B) To provide judicial procedures through which Chapters 2151. and 2152. of the Revised Code are executed and enforced, and in which the parties are assured of a fair hearing, and their constitutional and other legal rights are recognized and enforced.
C. PERMANENT CUSTODY FRAMEWORK
{¶ 25}
(a) The child is not abandoned or orphaned, 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, 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 if, 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, 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.(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(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, 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.(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{¶ 26} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
D.
(1) Following the placement of the child outside the child‘s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when
able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child; ***
(12) The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available to care for the child for at least eighteen months after the filing of the motion for permanent custody or the dispositional hearing.
{¶ 28} A trial court may base its decision that a child cannot be placed with either parent within a reasonable time or should not be placed with either parent upon the existence of any one of the
{¶ 29} Before we consider appellant‘s arguments regarding the
{¶ 30} We have applied this rule to
{¶ 31} We conclude that this same analysis applies to
{¶ 32} Furthermore, in the absence of findings of fact and conclusions of law, we generally must presume that the trial court applied the law correctly and must affirm if some evidence in the record supports its judgment. Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007-Ohio-2019, ¶ 10, citing Allstate Fin. Corp. v. Westfield Serv. Mgt. Co., 62 Ohio App.3d 657, 577 N.E.2d 383 (12th Dist.1989); accord Yocum v. Means, 2nd Dist. Darke No. 1576, 2002-Ohio-3803 ¶ 7 (“The lack of findings obviously circumscribes our review * * *.“). As the court explained in Pettet v. Pettet, 55 Ohio App.3d 128, 130, 562 N.E.2d 929 (5th Dist.1988):
[W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would have enjoyed had he made his request. Thus, if from an examination of the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate
conclusions of fact which are consistent with [its] judgment the appellate court is bound to affirm on the weight and sufficiency of the evidence. The message should be clear: If a party wishes to challenge the * * * judgment as being against the manifest weight of the evidence he had best secure separate findings of fact and conclusions of law. Otherwise his already “uphill” burden of demonstrating error becomes an almost insurmountable “mountain.”
{¶ 33} In the case at bar, the trial court did set forth some facts regarding the
{¶ 34} Appellant first asserts that the evidence fails to support the trial court‘s
{¶ 35} According to the complaint, the children were removed from appellant‘s home upon appellant‘s arrest for drug-related charges. ACCS developed a case plan that required appellant to obtain substance abuse treatment. ACCS presented evidence that from the time the children were removed from the home through the week before the
{¶ 36} With respect to the trial court‘s
child * * * by * * * showing an unwillingness to provide an adequate permanent home for the child[.]” Appellant has not argued that the evidence fails to support a finding that her actions displayed an unwillingness to provide an adequate permanent home for the child. Thus, even if we agree with appellant that the evidence fails to show that she demonstrated a lack of commitment toward the children by failing to regularly support, visit, or communicate with the children when able, appellant does not challenge the alternative finding permissible under the statute.
{¶ 38} Although we sympathize with appellant‘s plight, the trial court apparently did not believe that appellant had a willingness to address her substance abuse problem and thus displayed an unwillingness to provide the children with an adequate permanent home. The trial court could have determined that appellant‘s repeated refusal to engage in a substance abuse program while incarcerated and her denial of responsibility for her criminal actions foreshadowed a future unwillingness to provide the children with an adequate permanent home, i.e., one free from illegal drug activity. As we have recognized time and again, a trial court is not required to experiment with a child‘s welfare in order to permit a parent to prove his or her suitability:
” ’ * * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * [parent] an opportunity to prove her suitability. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child‘s present condition
and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * The law does not require the court to experiment with the child‘s welfare to see if he will suffer great detriment or harm.’ ”
In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-5595 ¶ 42, quoting In re Bishop, 36 Ohio App.3d 123, 126, 521 N.E.2d 838 (5th Dist.1987), quoting In re East, 32 Ohio Misc. 65, 69, 288 N.E.2d 343 (1972).
{¶ 39} Appellant expects that upon her release from prison in February 2016, she will be able to care properly for her children. Obviously, however, appellant will need to demonstrate that she is free of substance abuse issues and will need to obtain adequate housing before the children can be placed with her. The trial court was not required to keep the children in limbo or to experiment with their welfare in order to see whether appellant would refrain from illegal drug activity so that she could adequately provide for the children upon her release from prison. We note that at the time of the permanent custody hearing, appellant had approximately one year in prison remaining. After her release, appellant presumably would need several months to prove that she will remain drug-free so that she can adequately care for the children. We cannot fault the trial court for deciding not to experiment with the children‘s welfare by continuing them in appellee‘s temporary custody indefinitely when appellant has already demonstrated an unwillingness to address her substance abuse issues. The trial court could have determined that the possibility that appellant would remain drug-free upon her release was too remote, given her past actions. Therefore, we do not believe that the trial court was required to continue the children in the temporary custody of ACCS indefinitely in
{¶ 40} Appellant next contends that the evidence does not support the trial court‘s
{¶ 41} We observe that courts have not uniformly determined whether the eighteen-month period specified in
{¶ 42} Accordingly, based upon the foregoing reasons, we overrule appellant‘s sole assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
Harsha, J., concurring:
{¶ 43} As the principle opinion notes, we have recently refined our standard of review in permanent custody cases to reflect the heightened burden of proof at the trial court level and the pronouncements in Eastley, supra, about a manifest weight of the evidence review. Thus, we have construed the “some evidence” edict in this context to mean “enough to satisfy the clear and convincing standard in the mind of a reasonable
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds that reasonable grounds for this appeal exist.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
McFarland, A.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment and Opinion with Opinion.
For the Court
By: ____________________________
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.