In re D.A.
Decided: March 16, 2012
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Karin L. Coble, for appellant.
Jill E. Wolff, for appellee Lucas County Children Services.
Ann M. Baronas and Charles S. Rowell, Jr., for appellee guardians ad litem.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, C.P., is a father who appeals an August 5, 2011 judgment of the Juvenile Division of the Lucas County Court of Common Pleas that awarded permanent custody of his minor daughter, D.A., and minor son, A.A., to Lucas County Children
{¶ 2} Mother was arrested in Toledo on February 2, 2010, on criminal charges brought against her in Monroe County, Michigan. At the time of arrest, mother and the children resided together in a homeless shelter in Toledo. On the following day, LCCS applied to the trial court for an ex parte order with respect to child custody. A trial court magistrate granted the request and ordered that LCCS take shelter care custody of the children provided that LCCS filed a complaint concerning the children and secured a shelter care hearing on custody within 72 hours.
{¶ 3} On February 4, 2010, LCCS filed a complaint in dependency, neglect, and abuse concerning D.A. and A.A. A trial court magistrate conducted a shelter care hearing on that date. Father attended. The magistrate awarded interim temporary custody of D.A. and A.A. to LCCS and scheduled a further hearing for March 31, 2010.
{¶ 4} At a hearing on March 31, 2010, mother and father, both represented by counsel, consented to an adjudicatory finding of dependency and neglect with respect to D.A. and A.A. The court magistrate issued a decision on that date and found by clear and convincing evidence that D.A. and A.A. were dependent and neglected children. The magistrate also found that it was in the best interests of the children to award temporary custody to LCCS. The magistrate awarded temporary custody of D.A. and A.A. to
{¶ 5} LCCS provided plan services for both mother and father. Father submitted to court ordered genetic testing to establish parentage. Test results confirmed that father is the biological father of D.A. and A.A.
{¶ 6} LCCS filed a motion for permanent custody of D.A. and A.A. on November 30, 2010. The trial court conducted a hearing on the motion on June 20 and 27, 2011 and July 6, 2011. Father appeals the trial court‘s judgment filed on August 5, 2011, granting the motion and awarding permanent custody of D.A. and A.A. to LCCS.
{¶ 7} Father asserts two assignments of error on appeal:
Assignment of Error One: The judgment terminating Father‘s parental rights is unsupported by clear and convincing evidence such that the essential statutory elements have not been met.
Assignment of Error Two: The grant of permanent custody to LCCS was against the children‘s best interest.
{¶ 8} A parent‘s right to raise his or her children is a fundamental right. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. The interest in the care, custody, and control of one‘s children is “one of the oldest of the fundamental liberty interests recognized in American law.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 39, citing Troxel, 530 U.S. at 65. As a termination of parental rights to raise one‘s children strikes at the core of the parent-child relationship, parents “must be afforded every procedural and substantive protection the law allows.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).
{¶ 9}
(A) If a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition:
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(4) Commit the child to the permanent custody of a public children services agency or private child placing agency, if the court determines in accordance with division (E) of section 2151.414 of the Revised Code that the child cannot be placed with one of the child‘s parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D)(1) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child. If the court grants permanent custody under this division, the court, upon the request of any party, shall file a written opinion setting forth its findings of fact and conclusions of law in relation to the proceeding.
{¶ 10} In the August 5, 2011 judgment, the trial court granted the motion of LCCS for permanent custody of the children. The court found pursuant to
{¶ 11} Under Assignment of Error No. 1, father argues that a finding of parental unsuitability under
Mother
{¶ 12} The case plan services provided mother included diagnostic assessment, psychological evaluation, and domestic violence victim services. Nancy Bain of Central Access diagnosed mother, in a March 1, 2010 assessment, to be bipolar with borderline personality disorder to be ruled out. Ms. Bain referred mother to Unison Behavioral Health Group for treatment. Ramona Bethany, a clinical therapist at Unison, treated mother for depression and anxiety.
{¶ 13} Mother also initiated treatment with another clinical therapist, Nancy Bowman, of Lutheran Social Services of Northwest Ohio. Ms. Bowman saw mother in
{¶ 14} Expert testimony at trial indicated that additional mental health treatment for mother is particularly warranted and mother needed very long-term mental health treatment. No party disputes that the severity of mother‘s mental illness made her unable to provide an adequate home for the children at the time of the hearing and for a period of more than one year after the hearing. It is also not disputed that a return of child custody to mother is not in the best interests of the children.
Father
{¶ 15} At the time of mother‘s arrest for charges in Monroe County, Michigan, father had outstanding warrants for his arrest in the state of California and had falsified his identity for six years. During that period, father and mother moved state to state. Father lived under his brother‘s name. At the time of mother‘s arrest, father held Ohio state identification identifying him as his brother.
{¶ 16} At the hearing on the motion to award permanent custody of the children to LCCS, father testified that he was convicted of a sex offense involving a child in the state of California. Under the terms of his sentence he was required to register as a sex offender in the state and to attend a one-year sex offender treatment program. Father
{¶ 17} The requirements for registration and treatment were included in the conditions of his probation for the sex offense. Father admits that he left the state of California while on probation without notice or permission. Criminal records from the state of California were admitted in evidence in the trial court and disclose that in 1997 a California court revoked father‘s probation in the case and issued a bench warrant for father‘s arrest.
{¶ 18} Father testified that at the time of mother‘s arrest he learned that there was also another outstanding warrant for his arrest in California. That warrant concerned a different criminal charge. Lori Segura testified that she is an investigator for LCCS, assigned to this case, and that her investigation disclosed that the second warrant arose from a 2001 charge in California of sexual battery, a felony.
{¶ 19} The case plan for father included father undergoing a diagnostic assessment and psychological evaluation and successfully completing a sex offender treatment program. Father was also to follow any and all recommendations arising from his evaluations and treatment.
{¶ 20} Father completed an assessment by Lloyd Letterman in March 2010. Julie Miller, the LCCS continuing caseworker assigned to this case, testified that she spoke with father on several occasions and gave him names and phone numbers to contact to secure sex offender treatment. Ms. Miller also testified that father stated throughout the
{¶ 21} At the hearing on the motion to award permanent custody to LCCS, father testified that he lacked funds for treatment and that he had been unemployed until securing employment three months before the hearing. Even after securing employment father made no effort to secure sex offender treatment. Father also hid the fact of his employment from the LCCS caseworker and the guardians ad litem. Father first disclosed in these proceedings that he had secured employment at the hearing on June 20, 2011.
{¶ 22} Father testified at the hearing that for the prior three months, he had earned $1,500 per month. He also testified that he did not believe he needed sex offender treatment and that he intentionally stopped cooperating with the LCCS caseworker once the agency filed its motion for permanent custody. The motion was filed on November 30, 2010.
{¶ 23} In its decision the trial court found that father was not a credible witness. The court described his testimony as “inconsistent and unbelievable.”
R.C. 2151.414(E)(1)
{¶ 24} Father argues that LCCS failed to prove by clear and convincing evidence that the facts in this case come within the circumstances set forth in
(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.
{¶ 25} LCCS has contended that father failed continuously and repeatedly to substantially remedy a condition that caused D.A. and A.A. to be placed outside the home in that he failed to attend sex offender treatment. Father argues first that the failure to attend sex offender treatment was not a condition that caused a loss of custody of the children, within the meaning of
{¶ 26} The record demonstrates that at the time the children were originally removed, both mother and father had outstanding felony warrants against them for their arrest. In the dependency and neglect complaint, LCCS asserted that father was living
{¶ 27} Father next contends that a showing under
{¶ 28} Appellees argue that LCCS was not required to pay for sex offender treatment and further that sex offender treatment was reasonably available to father in the community at a cost set on a sliding scale depending on the ability to pay. LCCS cites the testimony of caseworker Miller in support of the contention that sex offender treatment was available in the community on a sliding scale based upon the ability to pay.
{¶ 29} We have reviewed the record, including the testimony of caseworker Miller. Our review of the record, however, discloses that the caseworker did not testify
{¶ 30}
{¶ 31} Sex offender treatment was a service specifically delineated in the case plan. In our view, reasonable case planning and diligent efforts by LCCS under
R.C. 2151.414(E)(2)
{¶ 32}
R.C. 2151.414(E)(4)
{¶ 33}
(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.
{¶ 34} The trial court found “that father is a sexual offender and has not completed a sexual offender‘s program in order to reduce the risk to his children.” The court referred to the California conviction and failure of father to complete sex offender
{¶ 35} Under father‘s case plan, father was to attend a sex offender treatment program and to follow all recommendations of the program. LCCS made referrals to places where father could secure the treatment.
{¶ 36} Father acknowledges that a parent‘s unwillingness to utilize services provided him may demonstrate a basis for a finding under
{¶ 37} LCCS argues that father‘s own testimony demonstrates that he failed to register, start, or complete sex offender treatment in the three months after father gained employment. Father also hid the fact of his employment from the LCCS caseworker and the guardians ad litem. Father also testified that he does not believe he needs sex offender treatment. Father also admitted that he intentionally failed to cooperate with LCCS once it filed a motion for permanent custody in November 2010.
{¶ 38} The trial court specifically found that father‘s testimony at the disposition hearing was “inconsistent and unbelievable.” In our view, there is competent, credible
{¶ 39} Under these circumstances, we conclude that the trial court‘s determination that father‘s actions in failing to secure sex offender treatment demonstrated an unwillingness to provide an adequate permanent home for D.A. and A.A. within the meaning of
R.C. 2151.414(E)(14)
{¶ 40} The
(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
{¶ 41} Father argues that a finding under
{¶ 42} The trial court found that father “is a sexual offender and has not completed a sexual offender‘s program in order to reduce the risk to his children.” The court noted that the sexual offense conviction involved a minor and that father had not completed treatment or registered as a sex offender. The court also considered that there is also a more recent charge for a sex offense pending against father in California.
{¶ 43} LCCS argues that father‘s failure under
{¶ 44} We recognize that the Ohio Supreme Court has not held that sex offender status alone constitutes a basis for restricting or terminating parental rights. In re K.H., supra, at ¶ 52. However, a parent must protect his or her child from risks of sexual abuse. Id. at ¶ 47, 56; In re B.K., 6th Dist. No. L-10-1053, 2010-Ohio-3329, ¶ 70;
{¶ 45} We agree that the trial court‘s finding in this case under
{¶ 46} In our view, the finding that father was unwilling to secure sex offender treatment and that the failure constituted an unwillingness to protect the children from risk of sexual abuse within the meaning of
{¶ 47} We find father‘s Assignment of Error No. 1 is not well-taken.
{¶ 48} Once a trial court makes a finding under
{¶ 49}
(D)(1) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the
Revised Code, the court shall consider all relevant factors, including, but not limited to, the following: (a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether 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;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 50} Father argues that the trial court failed to consider whether placement of the children could be achieved without granting permanent custody to LCCS. Father argues that placement with LCCS would have been unnecessary had the agency paid for sex offender treatment. In making this argument father also disputes any finding under
{¶ 51} Both LCCS and the guardians ad litem for the children disagree. We agree with the guardians ad litem that at the time of trial father remained a fugitive from justice in California on a sexual battery charge, a felony. He continued to be an unregistered and untreated child sex offender. He also remained uncooperative with the LCCS caseworker and guardians ad litem by withholding information as to where he lived and his employment. Father admittedly refused to cooperate after LCCS filed its motion for permanent custody.
{¶ 52} The trial court considered the best interests of the children under
{¶ 54} A.A. underwent individual counseling with Kris Buffington at A Renewed Med. With counseling, A.A. is able to start a conversation on his own. He no longer speaks Pokeman. He knows how to socially interact with others. The LCCS caseworker described A.A. as having made tremendous progress.
{¶ 55} D.A. was age 11 when first placed with LCCS. She was provided special services, including individual counseling with Mr. Buffington. The LCCS caseworker described D.A. as being sad and crying at the time of placement with LCCS and that she is now described as outgoing and happy. She is a good student and a member of the Junior National Honor Society.
{¶ 56} Both guardians ad litem for the children testified that they conducted their own investigations and have concluded that an award of permanent custody of the children to LCCS is in their best interests. Both testified as to the children‘s wishes. D.A. was noncommittal and did not want to say anything against or in favor of either parent. She was content in the present placement with foster parents. Ms. Baronas testified that both children are particularly bonded to their present placement. The present foster parents have expressed an interest in adopting the children.
{¶ 58} We conclude that the trial court‘s determination that an award of permanent custody is in the best interests of D.A. and A.A. is supported by clear and convincing evidence in the record. Accordingly, we find father‘s Assignment of Error No. 2 is not well-taken.
{¶ 59} We conclude that father has not been denied a fair trial. We affirm the judgment of the Juvenile Division of the Lucas County Court of Common Pleas. Father is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Stephen A. Yarbrough, J. CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.