2003 Ohio 6854 | Ohio Ct. App. | 2003
{¶ 2} This is a consolidated appeal of two cases heard in separate trials. In case No. 82258, the court granted permanent custody of B.H.'s older child, C.H., to CCDCFS, and in case No. 82852, the court granted permanent custody of B.H.'s twins, R.H. and T.H., to CCDCFS. The following evidence was presented at the two trials:
{¶ 3} Although B.H. had been in agency custody since she was ten years old, she was in her mother's custody at the time she became pregnant with C.H. and was returned to agency custody shortly thereafter. B.H. gave birth to C.H. in August 1998, at age fifteen. C.H. was taken into agency custody in November 1998, but remained with B.H. while in agency custody at Marycrest.1
{¶ 4} In July 1999, B.H. and C.H. moved to an independent living program. However, after one month in that setting, CCDCFS moved C.H. to a foster home because B.H.'s caseworker questioned B.H.'s judgment and decision-making regarding C.H.'s safety.
{¶ 5} In September 2000, C.H. and B.H. were reunified after a previous motion for permanent custody had been denied and B.H. was granted legal custody. However, because B.H. herself remained in County custody until she reached age eighteen in September 2001, the County placed her with C.H. in the same foster home.
{¶ 6} CCDCFS developed a case plan to assist B.H. in remedying the risks which prevented her reunification with C.H. The plan included parenting education, provision of basic needs, counseling, treatment for mental illness, anger management, and employment.
{¶ 7} The foster parents tried to help B.H. achieve the goals of her case plan. They attempted to teach her how to manage a budget, assisted her in finding a job and obtaining her GED. B.H. obtained employment as a nurse assistant and the foster parents transported her to and from work. They also provided transportation to her GED and parenting classes.
{¶ 8} However, B.H.'s placement in the foster home lasted only six weeks because she had several disagreements with the foster parents. Following an argument over budgeting, she did not come home from work for eleven hours after her shift ended. As a result of that incident, the County obtained emergency custody of C.H., who remained in the foster home until CCDCFS moved for permanent custody in April 2002.
{¶ 9} While B.H. was attempting to meet the goals of the case plan, she gave birth to twins, R.H. and T.H. ("the twins") in March 2001. They were taken into agency custody at birth and were placed in foster care with another family. The twins were born five weeks premature, were medically fragile, suffered from low birth weight, and had specific needs requiring medication. The twins remained with their foster family until June 2001, at which time they were reunified with B.H.
{¶ 10} The twins' foster family maintained contact with B.H. and the twins throughout the eleven months of reunification. They also provided assistance to her and the children in an effort to support her reunification attempt. During that time, B.H. often left the twins with them for days or weeks, stating that she needed time for herself away from the children. They also babysat for C.H. on occasion and provided food, clothing, diapers, and other necessities for the twins. The twins were again taken into agency custody in May 2002.
{¶ 11} CCDCFS continued to work with B.H. on the previously developed case plan aimed at remedying the risks which prevented reunification with her children. As part of the case plan, B.H. was referred to five parenting programs but attended only two. However, her caseworker testified at trial that B.H. failed to demonstrate any benefit from the programs she completed. The caseworker also testified that B.H. continued to demonstrate poor judgment and decision-making in parenting the twins.
{¶ 12} As part of the case plan, B.H. was referred to Dr. Melody Deogracias, who conducted a psychiatric evaluation and diagnosed B.H. with major depressive disorder recurrent with psychotic features. Dr. Deogracias recommended medication and counseling. Although Dr. Deogracias prescribed Prozac, B.H. failed to take her medication and failed to keep her appointments. B.H. was also referred for a psychological evaluation with Dr. Frank Ezzo of the Juvenile Court Clinic. Dr. Ezzo testified that B.H. suffers from severe depression with psychotic features, for which she was prescribed medication. She failed to take her medication and failed to attend counseling sessions as recommended. Dr. Ezzo stated that as a result of her mental illness, B.H. is unable to provide appropriate parenting to her children.
{¶ 13} Dr. Ezzo also conducted interviews with C.H. and her foster family. Dr. Ezzo testified that C.H.'s primary bond is with her foster family. He described C.H.'s attachment to her foster family as a secure, healthy attachment which forms the basis for her development of interpersonal relationships throughout her life. He also described C.H.'s attachment to B.H. as an insecure, ambivalent attachment. Dr. Ezzo stated that removing C.H. from her foster family and placing her with B.H. would be damaging to C.H. and would compromise the child's ability to grow up to be a successful adult. Finally, Dr. Ezzo recommended an order of permanent custody for C.H.
{¶ 14} Other witnesses corroborated Dr. Ezzo's testimony. B.H.'s caseworker testified that C.H. refers to her foster parents as "mommy and daddy," and considers their biological daughter to be her sister. B.H.'s caseworker also stated that C.H. often became hysterical at the prospect of leaving her foster home to visit with B.H., and indicated that she did not want to visit with B.H.
{¶ 15} C.H.'s guardian ad litem noted in her report that "[C.H.] and [the foster sister] are strongly attached to each other." She further noted:
"[C.H.] has a strong and nurturing relationship with her fosterparents. She has spent the majority of her life in their care even when incustody of her mother. She is well integrated into their home and dailylife. C.H. has an incredibly strong bond with her younger foster sister ** *. They have been together since [the foster sister] was born. While inher foster home, C.H. has frequently visited with her twin sisters, whoare also in foster care. The foster families have included each other inall major celebrations and have arranged for the girls to visit onregular occasions. On the other hand, I have no evidence of any similarbond between [C.H.] and her biological mother."
{¶ 16} C.H.'s guardian ad litem recommended that an order of permanent custody would serve C.H.'s best interests. She also claimed that C.H. "has stated unequivocally that she wishes to remain with her foster family."
{¶ 17} At the conclusion of the first trial, C.H. had been in agency custody for over three years. Based on the evidence presented at trial and the recommendation of the guardian ad litem, the court awarded permanent custody of C.H. to CCDCFS.
{¶ 18} In the second trial, there was evidence that B.H. often placed her own interests before those of the twins. The foster mother testified that B.H. spent money to have her tongue pierced and got a tattoo while the twins did not have suitable car seats and had to share a crib. She also claimed that B.H. sent money to her boyfriend/the twins' father, while he was in jail, even though she often had no baby food for the twins.
{¶ 19} During the eleven months B.H. had custody of the twins, the foster family provided not only baby food, but also diapers, wipes, over-the-counter medications, and prescriptions. They often drove B.H. and the twins to school and to medical appointments. They also did B.H.'s laundry because neither she nor the twins had any clean clothes. When they made surprise visits to B.H.'s home, they often found it dirty and disorganized.
{¶ 20} The foster family cared for the twins overnight on three out of every four weekends. One weekend, they cared for the twins overnight when they were sick. In the morning, they called B.H. to tell her that the twins needed immediate medical attention. B.H., who had legal custody of the twins, initially refused to go to the hospital with them until the foster parents eventually persuaded her to come with them. The twins were ultimately diagnosed with pneumonia.
{¶ 21} The twins had experienced other respiratory problems. B.H. continued to smoke in their presence, even though she knew that such behavior directly aggravated their medical condition. The twins' guardian ad litem noted that the twins' "medical problems are often exacerbated while the twins are in [B.H.'s] care because she smokes and does not maintain a smoke free home."
{¶ 22} Several witnesses compared the relationship between the twins and their foster family with B.H.'s relationship with the twins. B.H.'s caseworker testified that, while the twins knew B.H. and interacted well with her, they were not strongly bonded to her. She further explained that the twins were more bonded with their foster mother, with whom the twins interacted as mother and daughters.
{¶ 23} Dr. Ezzo testified that, from his brief observation, he concluded the twins were attached to their foster parents, but that the twins were also attached to B.H. However, Dr. Ezzo also stated that the first three months of a child's life are the most important time in forming attachments and bonds with the child's primary caregiver. The twins spent their first three months of life with the foster family. Although the twins were in B.H.'s legal custody for eleven months, the twins continued to have consistent visits with the foster family which lasted days at a time until they were again placed with the foster family in May 2002. Dr. Ezzo testified that disruption of a child's attachments with its current caregivers would not be in the child's best interest, but would be psychologically detrimental to the child.
{¶ 24} The twins' guardian ad litem noted in her report that the twins "are integrated into their foster family" and that "a strong bond existed between the foster family and the twins." She further noted:
"The twins were placed with this foster family within days of theirbirth in March 2001. They remained with the foster family until June 2001when they were reunified with the mother. The [foster family] continuedto watch the twins for days or weeks at a time until they were againremoved from [B.H.] on or about May 16, 2002. After removal, the twinswere again placed with the [foster family] where they currently remain."
{¶ 25} The twins' guardian ad litem also noted that B.H. acknowledged that her bonding with the twins had been inhibited by their time in CCDCFS custody. The twins' father also acknowledged a lack of bonding between himself and the twins. The guardian ad litem recommended a continuation of temporary custody for six months and counseling for mother and the children to improve their bond.
{¶ 26} At the conclusion of the second trial in November 2002, and notwithstanding the recommendation of the guardian ad litem, the court awarded permanent custody of the twins to CCDCFS.
{¶ 27} B.H. appeals the decisions from both trials in this consolidated appeal.
{¶ 29} An appellate court must adhere to "every reasonable presumption in favor of the lower court's judgment and finding of facts."In re Brodbeck (1994),
{¶ 30} R.C.
{¶ 31} In deciding whether to permanently divest parents of their custody rights, R.C.
{¶ 32} As relates to this appeal, R.C.
{¶ 33} R.C.
"(1) The interaction and interrelationship of the child with thechild's parents, siblings, relatives, foster caregivers and out-of-homeproviders, and any other person who may significantly affect the child; (2) The wishes of the child, as expressed directly by the child orthrough the child's guardian ad litem, with due regard for the maturityof the child; (3) The custodial history of the child, including whether the child hasbeen in the temporary custody of one or more public children servicesagencies or private child placing agencies for twelve or more months of aconsecutive twenty-two month period ending on or after March 18, 1999; (4) The child's need for a legally secure permanent placement andwhether * * * [it] can be achieved without a grant of permanent custodyto the agency; (5) Whether any of the factors in divisions (E)(7) to (11) of thissection apply in relation to the parents and child."
{¶ 34} R.C.
{¶ 35} After considering the factors of R.C.
{¶ 36} R.C.
{¶ 37} Further, C.H. referred to her foster parents as "mommy and daddy" and considered their biological daughter to be her sister. B.H.'s caseworker testified that when she observed B.H. and C.H. together, she noticed that B.H. did not interact with C.H. very much. She also testified that C.H. often became hysterical at the prospect of leaving her foster home to visit with B.H. and expressly stated that she did not want to visit her.
{¶ 38} C.H.'s guardian ad litem noted in her report that C.H. has a strong bond with her foster parents. Her report stated, in pertinent part:
"[C.H.] has a strong and nurturing relationship with her fosterparents. She has spent the majority of her life in their care even when inthe custody of her mother. She is well integrated into their home anddaily life. [C.H.] has an incredibly strong bond with her younger fostersister * * *. They have been together since [the foster sister] wasborn. * * * On the other hand, I have no evidence of any similar bondbetween [C.H.] and her biological mother."
{¶ 39} Based on this evidence, we conclude that the trial court did not abuse its discretion in finding that C.H.'s strong bond with her foster family and lack of similar bond with her mother weighed in favor of permanent custody.
{¶ 40} R.C.
{¶ 41} R.C.
{¶ 42} R.C.
{¶ 43} Further, as part of the case plan, B.H. was referred to Dr. Melody Deogracias, who conducted a psychiatric evaluation and diagnosed B.H. with major depressive disorder with recurrent psychotic features. Dr. Deogracias prescribed medication and recommended counseling for B.H. However, B.H. failed to take her medication and failed to keep her appointments. Although B.H. claimed she did not need the medication, Dr. Deogracias testified that failure to take the medication would cause the depression to recur and to become more difficult to treat.
{¶ 44} Dr. Frank Ezzo stated that, as a result of her mental illness, B.H. is unable to provide appropriate parenting to her children. He testified that C.H.'s primary bond is with her foster family with whom C.H. has a secure, healthy attachment. He also described C.H.'s attachment to B.H. as an insecure, ambivalent attachment. Dr. Ezzo stated that removing C.H. from her foster family and placing her with B.H. would be damaging to C.H. and would compromise her ability to grow up to be a successful adult. Finally, Dr. Ezzo recommended permanent custody for C.H.
{¶ 45} C.H.'s guardian ad litem also opined that B.H. lacks "the emotional or mental skills necessary to adequate[ly] parent her own children."
{¶ 46} C.H.'s foster parents, with whom she had resided for over three years and who she regarded as family, would like to adopt C.H. and provide her a permanent home if permanent custody were granted. This evidence supports the trial court's conclusion that C.H.'s need for a legally secure permanent placement cannot be satisfied by B.H. within a reasonable time.
{¶ 47} R.C.
{¶ 48} Accordingly, the sole assignment of error presented in case No. 82258 is overruled.
{¶ 50} Reviewing the trial court's application of the two-prong test required by R.C.
{¶ 51} In finding, pursuant to R.C.
"(E) In determining at a hearing held pursuant to division (a) of thissection or for the purposes of division (A)(4) of section
{¶ 52} The trial regarding the twins' custody presented much of the same evidence presented in C.H.'s case. As in the previous trial, evidence was presented that a case plan was developed for the purpose of assisting B.H. in remedying the risks to the twins. She was referred to five separate parenting programs and attended two but failed to show any benefit from the programs.
{¶ 53} B.H.'s caseworker testified that B.H. demonstrated poor judgment in parenting the twins. For example, B.H. allowed C.H. and the twins to watch television unsupervised in one room while she engaged in sexual activity with her boyfriend in another room. The caseworker also stated that B.H. smoked in front of the twins, including the time they had RSV, a potentially serious respiratory virus, even though she knew her smoking aggravated their medical condition.
{¶ 54} The twins' foster mother testified that B.H. had her tongue pierced, got a tattoo, and sent money to her boyfriend in jail even though the twins did not have suitable car seats, shared a crib, and often had no diapers, wipes, medications, or baby food. The foster mother also stated that during a surprise visit, she found the twins covered with dirt and B.H.'s home in disarray with small objects on the floor which posed a choking hazard to the twins.
{¶ 55} Evidence was also presented that B.H. was referred to Dr. Deogracias, who diagnosed her with major depressive disorder recurrent with psychotic features and that B.H. failed to take her prescribed medication. There was additional evidence that B.H. missed a total of eight scheduled appointments with Dr. Deogracias, and that her case was closed due to her failure to appear for appointments. Because B.H. refused to avail herself of necessary services or to comply with medication recommendations designed to address her mental illness, the trial court properly found that she failed to remedy the risks which led to the twins' removal.
{¶ 56} The record also supports a finding, pursuant to R.C.
{¶ 57} The evidence in the record also supports a finding, pursuant to R.C.
{¶ 58} Based on the trial court's findings pursuant to R.C.
{¶ 59} As previously stated, when the court makes a determination regarding the best interests of the child pursuant to R.C.
{¶ 60} The trial court's finding, pursuant to R.C.
{¶ 61} The twins' guardian ad litem stated in her report that the twins "are integrated into their foster family," and that "a strong bond existed between the foster family and the twins." Further, the guardian ad litem stated in her report:
"The twins were placed with this foster family within days of theirbirth in March 2001. They remained with the foster family until June 2001when they were reunified with their mother. The [foster family] continuedto watch the twins for days or weeks at a time until they were againremoved from [B.H] on or about May 16, 2002. After removal, the twinswere again placed with the [foster family] where they currently remain."
{¶ 62} The guardian ad litem also noted in her report that the twins had "a strong and nurturing relationship with their foster family" and that B.H. "acknowledges that [her] bond with the twins has been inhibited by their time in CCDCFS custody."
{¶ 63} Based on this evidence, we find the trial court's determination, pursuant to R.C.
{¶ 64} R.C.
{¶ 65} However, the guardian ad litem's rationale for extending temporary custody was contradicted by the testimony of Dr. Ezzo, who stated that the first three months of a child's life is the most important time for developing attachments with a primary caregiver. As previously stated, Dr. Ezzo testified that disruption of a child's attachment to its current caregivers would not be in the child's best interest, but would be psychologically detrimental to the child.
{¶ 66} Moreover, during cross-examination, the twins' guardian ad litem admitted she had very little contact with B.H.'s caseworker and could not remember such basic issues as visitation, interaction between B.H. and the twins, case plan requirements, and compliance. Therefore, we find the trial court's decision to follow Dr. Ezzo's recommendation and to disregard the guardian ad litem's recommendation was not an abuse of discretion.
{¶ 67} R.C.
{¶ 68} Finally, the court's finding, pursuant to R.C.
{¶ 69} Accordingly, the first assignment of error in case No. 82852 is overruled.
{¶ 71} An adjudication of dependency is a final appealable order. See In re Murray (1990),
{¶ 72} Nevertheless, rather than filing an appeal at that time, B.H. waited until after the court had granted permanent custody of the twins to CCDCFS. An appeal now is timely as to any issues regarding the disposition of the motions for permanent custody. However, this assignment of error alleges error in conducting an adjudicatory hearing which took place three months before the trial on permanent custody. B.H.'s failure to file a timely appeal precludes consideration of this issue. Ackerman, supra, at 16.
{¶ 73} Accordingly, the second assignment of error is overruled.
{¶ 74} The judgments are affirmed.
Judgments affirmed.
Kenneth A. Rocco, A.J., and Michael J. Corrigan, J., concur.
It is ordered that appellee recover of appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Juvenile Court Division of the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
