In re D.G.
Rendered on May 27, 2010
Robert J. McClaren, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
FRENCH, J.
{¶1} Appellant, Franklin County Children Services (“FCCS“), appeals the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, denying FCCS‘s motion for permanent custody of D.G., a minor child. For the following reasons, we affirm.
{¶2} On June 18, 2004, FCCS filed a complaint for temporary custody of D.G., a six-year-old girl, alleging that D.G. was an abused, neglected, and dependent child. The comрlaint alleged that D.G. was the victim of sexual abuse while living with her aunt. The complaint also alleged, in part, that: D.G.‘s mother (“mother“) and father have a history of domestic violence; mother admitted to drinking and smoking marijuana;
{¶3} On May 17, 2006, FCCS moved for permanent custody of D.G. and mother‘s three other children: J.G., a son born in 2003; P.S., a daughter bоrn in 2004; and C.T., a daughter born in 2006.1 See In the Matter of D.G. (Mar. 5, 2009), 10th Dist. No. 08AP-667. In June and July 2008, the trial court held a hearing regarding permanent custody of the children, each of whom had previously been found to be dependent children and had been placed in the temporary custody of FCCS. Prior to the hearing, D.G. and J.G. were placed in the same foster home, and P.S. and C.T. were placed together in a different foster home. On July 31, 2008, the trial court issued a Permanent Custody Judgment Entry, granting FCCS‘s motions for permanent custody of J.G., P.S., аnd C.T. The trial court denied FCCS‘s motion for permanent custody of D.G. and ordered that the wardship over D.G. be terminated and that D.G. be returned to her mother‘s custody. The trial court stayed its July 31, 2008 order pending appeal.
{¶5} On remand, the trial court heard arguments from counsel and, on November 16, 2009, issued a judgment entry, again denying FCCS‘s motion for permanent custody of D.G., but also vacating that portion of its July 31, 2008 judgment entry ordering that D.G. be returned to mother.
{¶6} In its November 16, 2009 judgment entry, the trial court noted that both mother and the guardian ad litem (“GAL“) desired that D.G. and J.G. be placed together. Mother stated that she wanted the siblings placed together even if her rights must be terminated to accomplish that result. Nevertheless, the court concluded that FCCS failed to meet its burden of proving by clear and convincing evidence that a grant of permanent custody to FCCS was in D.G.‘s best interest. The court stressed that its
{¶7} FCCS appealed and raises the following assignments of error:
ASSIGNMENT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED BY FAILING TO MAKE ANY
ASSIGNMENT OF ERROR NUMBER TWO
THE TRIAL COURT ERRED BY FAILING TO ISSUE THE LEGALLY REQUIRED FINDINGS DEMONSTRATING THAT THE COURT CONSIDERED ALL OF THE BEST INTERESTS FACTORS OF
ASSIGNMENT OF ERROR NUMBER THREE
FCCS PROVED BY CLEAR AND CONVINCING EVIDENCE THAT PERMANENT CUSTODY IS IN THE BEST INTER[E]STS OF THE CHILD. THE TRIAL COURT‘S JUDGMENT DENYING THE MOTION FOR PERMANENT CUSTODY IS NOT SUPPORTED BY COMPETENT AND CREDIBLE EVIDENCE. THEREFORE, THE DECISION OF THE TRIAL COURT DENYING FCCS[‘S] MOTION FOR PERMANENT CUSTODY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶8} In considering the trial court‘s decision whether to grant permanent custody to FCCS, this court must determine from the record whether the trial court had sufficient evidence before it. ” ‘[E]very reаsonable presumption must be made in favor of the judgment and the findings of facts [of the trial court].’ ” In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, at ¶59, quoting Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19. Further, ” ‘if the evidence is susceptible of more than one construction, we
{¶9} It is also “well recognized that the right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re Murray (1990), 52 Ohio St.3d 155, 157. “Permanent termination of parental rights has been described as ‘the family law equivalent of the death penalty in a criminal case.’ ” In re Hayes at 48, quoting In re Smith (1991), 77 Ohio App.3d 1, 16. Accordingly, parents must receive every procedural and substantive protеction the law permits. Id. “Because an award of permanent custody is the most drastic disposition available under the law, it is an alternative of last resort and is only justified when it is necessary for the welfare of the children.” In re Swisher, 10th Dist. No. 02AP-1408, 2003-Ohio-5446, at ¶26, citing In re Cunningham (1979), 59 Ohio St.2d 100, 105.
{¶10} A court must make two determinations in order to grant permanent custody to FCCS. First, the court must determine whether one of the following four factors, set forth in
(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 * * * 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 * * *.
Secondly, if one of the four factors in
{¶11} When a child has been in the temporary custody of FCCS for 12 or more months in a consecutive 22-month period, the court need not find that the child cannot or should not be placed with either parent within a reasonable time. In re Williams, 10th Dist. No. 02AP-924, 2002-Ohio-7205, ¶46. Thus, when considering an award of permanent custody, pursuant to
{¶13} In its July 31, 2008 judgment entry, the trial court expressly found that D.G. had been in temporary FCCS custody for 12 or more months of a consecutive 22-month period, a fact that is supported by the record and has never been disputed. In this court‘s previous opinion, we approved the trial court‘s finding that D.G. hаd been in temporary FCCS custody for the requisite time, stating that, “because the time requirements under
{¶15}
(1) 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;
(2) 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;
(3) The custodial history of the child, including whether the child has beеn 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;
(4) 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;
(5) whether any of the fаctors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
The factors stated in
{¶16} A court need not specifically enumerate each best-interest factor in its decision and entry, but it must state sufficient findings on the record to make it clear to the parties that the decision is supported by the facts. In re Brooks at ¶22, citing In re Strong, 10th Dist. No. 01AP-1418, 2002-Ohio-2247, and In re Heyman (Aug. 13, 1996), 10th Dist. No. 96APF02-194. Thus, the court must analyze the best-interest factors and state findings to indicate that it conducted the required analysis. In re Brooks at ¶23.
{¶17} FCCS has the burden of proving D.G.‘s best interest by clear and convincing evidence. See In re T.V., 10th Dist. No. 04AP-1159, 2005-Ohio-4280, ¶50. “Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 104. The clear and convincing standard is more than a mere preponderance of the evidence, but does not rise to the level of certainty required by the criminal standard of beyond a reasonаble doubt. Id. Here, the trial court determined that FCCS did not prove by clear and convincing evidence that permanent custody is in D.G.‘s best interest.
{¶19} The first factor the court was required to consider is D.G.‘s interaction and interrelationship with her parents, siblings, other relatives, and foster caregivers. In its July 31, 2008 judgment entry, the court found that D.G. is “very bonded” with her mother and is “bonded” with her foster parents, siblings, and other relatives. On remand, the court found that D.G. is “very bonded” to her mother, foster parents, and
{¶20} The court specifically, albeit briefly, addressed the relationship between D.G. and J.G., in compliance with this court‘s remand order. The court first found that D.G. is “very bonded” to J.G., “although he exasperates her.” Subsequently, however, the trial court noted D.G.‘s testimony that J.G. dislikes and frustrates her, stating that the testimony suggests that the siblings are “not bonded.” Nevertheless, the court acknowledged the arguments of “Counsel, the Guardian Ad Litem, and the mother, * * * [that D.G. and J.G.] should be placed together” and referred to the goal of keeping D.G. and J.G. together in its discussion regarding the possibility of a PPLA.
{¶21} FCCS argues that the first statutory factor, regarding D.G.‘s interactions and interrelationships with others, weighs in favor of an award of permanent custody. The record contains undisputed, competent, credible evidence of both D.G.‘s loving relationship with her foster family and D.G.‘s bond with her mother and other family members, including J.G. The trial court emphasized that D.G. is very bonded with her mother, whom she wants to always be able to see, and also noted D.G.‘s testimony that she would like to live with her paternal grandmother if she “were to go home and [mother] couldn‘t have [her].” (June 2008 Tr. 31.) The trial court would not have been
{¶22} The trial court‘s judgment entries also reveal the court‘s consideration of the second required best-interest factor, D.G.‘s wishes. In its November 16, 2009 judgment entry, the court simply alluded to D.G.‘s “wish not to lose her relationship with her mother,” whereas, in the July 31, 2008 judgment entry, the court specifically identified this factor and repeatedly stated D.G.‘s wish to live with her mother, or at least “to always be able to see her mother.” The GAL also testified that D.G. had expressed a desire to live with her mother. In her in-camera testimony, D.G. indiсated that, although she feels safe in her foster home, loves her foster family, and wants her foster family to be her “forever family” if the judge determined that she could not live with her mother, she also wanted the ability to continue seeing her mother. (June 2008 Tr. 23-24.) D.G. acknowledged that the ultimate choice of her custody was up to the judge, but she was adamant that she wants continuing relationships with both her mother and her foster family. Because consideration of a child‘s wishеs requires due regard for the child‘s maturity, the trial court described D.G. as confident, capable, and mature beyond her years, based on her in-camera interview with the trial judge and counsel.
{¶24} The third factor the trial court is required to consider is the child‘s custodial history, including whether the child has been in temporary agency custody for more than 12 months in a consecutive 22-month period. As with the previous factors, FCCS argues that D.G.‘s custodial history weighs in favor of permanent custody. The trial court noted in its July 31, 2008 judgment entry that D.G. had been in FCCS custody since June 22, 2004, but had, prior to that date, been in her mother‘s custody since birth. Elsewhere in its judgment entry, the court found that D.G. had been in FCCS custody for more than 12 months of a consecutive 22-month period. Nevertheless, the
{¶25} The fourth best-interest factor in
{¶26} The fifth and final factor to be considered is whether any of the factors set forth in
{¶27} Reading the trial court‘s July 31, 2008 and November 16, 2009 judgment entries together, we conclude that the court considered and applied the required factors listed in
{¶28} Having overruled each of FCCS‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
TYACK, P.J., and BRYANT, J., concur.