IN RE: D.G.
APPEAL NOS. C-200359, C-200371
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 17, 2021
2021-Ohio-429
BERGERON, Judge.
TRIAL NO. F18-117X
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 17, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, Jennifer Weigel, and Gretta Herberth, Assistant Prosecuting Attorneys, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Roxanna Mehdi, Assistant Public Defender, for Guardian ad Litem for D.G.,
Treleven and Klingensmith Law LLC, Celia Klug Weingartner, for Guardian ad Litem for Appellant Mother,
Christopher Kapsal, for Appellant Mother.
{1} In this parental termination case, we must evaluate the weight and sufficiency of the evidence underlying the trial court‘s grant of permanent custody to the Hamilton County Department of Job and Family Services (“HCJFS“), as well as the applicability of
I.
{2} This case arose out of an incident in January 2018, when Mother placed a 911 call that escalated into her involuntary hospitalization for psychiatric care. On the same day as Mother‘s hospitalization, HCJFS secured an ex parte emergency placement order for D.G. (Mother‘s only child), acting with haste because D.G.‘s school had already alerted it to potential concerns with Mother. Mother remained in psychiatric care for approximately two weeks, receiving a diagnosis of “unspecified psychosis.”
{3} A few months later, D.G. was adjudicated dependent. Between adjudication and disposition, the magistrate convened a series of six hearings, entertaining testimony from ten witnesses. Mother‘s reunification plan, forged at the beginning of these hearings, called for individual therapy for Mother, medication management, family therapy, visitation, and maintenance of stable housing and income.
{4} Mother‘s mental health, however, overshadowed everything else at the hearings. In addition to her diagnosis at the hospital of “unspecified psychosis,” Mother was evaluated through the Family Access to Integrated Recovery (“FAIR“)
{5} Although Mother completed a substantial amount of therapy during disposition, she resisted the contention that she had any mental health problems, concluding that therapy was superfluous but for the court‘s insistence that she complete it. Mother portrayed D.G.‘s removal as a result of “false allegations” against her and suspected that her diagnosis had been fabricated for insurance purposes. She declined to take medication for mental health management at any point during the relevant time period.
{6} In 2019, the magistrate approved D.G.‘s move from foster care in Cincinnati to live with his maternal grandparents in South Carolina—with whom Mother has a very strained relationship. Nevertheless, Mother continued to visit D.G. in South Carolina for six hours every other weekend. By January 2020, HCJFS filed a motion to modify temporary custody to permanent custody, which the magistrate granted. Mother and Mother‘s Guardian ad Litem (“GAL“) timely
II.
{7} In her first assignment of error, Mother challenges the juvenile court‘s award of permanent custody on sufficiency and manifest-weight grounds. Mother‘s GAL joins in the manifest-weight challenge, but not the sufficiency challenge. For ease of reading, we will address Mother‘s sufficiency challenge first.
{8} When reviewing a grant of permanent custody, we conduct an independent review to consider whether sufficient evidence supported the clear-and-convincing standard. In re J.W., 1st Dist. Hamilton No. C-190189, 2019-Ohio-2730, ¶ 13 (“Reviewing a juvenile court‘s grant of a motion for permanent custody requires us to independently find that the decision is supported by clear and convincing evidence.“), citing In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46. We will accept the trial court‘s factual determinations if they are underpinned by “some competent and credible evidence.” In re W.W. at ¶ 46. Nonetheless, “whether the evidence is sufficient to sustain the judgment is a question of law,” which we review de novo. In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 15, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 11.
{9} Following an adjudication of dependency,
{10} The parties agree that
{11} Appellate review of the best interest determination in this case is greatly enhanced by the trial court‘s careful delineation of its reasoning for each of the
{12} Mother‘s insistence that D.G.‘s wishes were “unclear” at the close of disposition runs headlong into the trial court‘s summary of the relevant
{13} Mother‘s objections to the trial court‘s
{14} Finally, the heart of the trial court‘s best interest determination—and of Mother‘s sufficiency challenge—was its conclusion that
{15} Unfortunately for Mother, the record simply does not substantiate her claims. Only one brief letter from the Central Clinic attests to a doctor‘s belief that
{16} In contrast, competent and credible evidence supported the trial court‘s factual finding that Mother continued to suffer from paranoid delusions throughout disposition. We need not look much further than Mother‘s own testimony to see examples of this. Mother repeatedly testified that unknown individuals were making film “parodies” of her and D.G. and posting them to social media. She blamed her hospitalization on an incident where her sister “vandalized” her car in South Carolina, despite the fact that this incident occurred more than a year before her 911 calls. Alternatively, she attributed her January 911 call to the fact that D.G. and a friend were “teasing” her, and she needed police intervention to make them stop. Mother‘s mass emails to D.G.‘s school—a sampling of which can be found in state‘s exhibits 1-4—attest to her enduring belief that she is being followed, framed, hacked, and “played with” for the entertainment of others. Even if one might quibble with Mother‘s technical diagnosis, her symptoms of paranoia and delusional thinking are wholly consistent across testimony, medical records, and other exhibits. These symptoms clearly impair her ability to care for D.G., and substantiate D.G.‘s legitimate concerns about her behavior.
{17} All parties agree that
{18} Next, Mother and Mother‘s GAL challenge the juvenile court‘s decision as against the manifest weight of the evidence. “In reviewing a challenge to the weight of the evidence, we review the record to determine whether the trial court lost its way and created such a manifest miscarriage of justice in resolving conflicts in the evidence that its judgment must be reversed.” In re P/W Children, 1st Dist. Hamilton No. C-200103, 2020-Ohio-3513, ¶ 27; In re Z.W., 1st Dist. Hamilton No. C-200061, 2020-Ohio-3100, ¶ 7.
{19} As the trial court recognized, Mother “substantially engaged in many of the case plan services” and is “clearly bonded” with D.G. Mother‘s deep love for D.G. and sincere desire to reunite her family is evident in every facet of this record. However, Mother continually refused to acknowledge that she suffers from any kind of mental instability, and treated her mental health problems only to the extent that these proceedings forced her to attend therapy. Given the extensive evidence of Mother‘s delusional behavior and the demonstrated impact of that behavior on Mother‘s ability to provide a stable and secure environment for D.G., we cannot say that the trial court‘s decision to award permanent custody constituted a “manifest miscarriage of justice.” We therefore overrule Mother‘s sole assignment of error—and Mother‘s GAL‘s second assignment of error—in full.
III.
{20} In an additional assignment of error, Mother‘s GAL contends that the trial court‘s failure to complete disposition of this case within 90 days mandated a dismissal without prejudice under the Ohio Supreme Court‘s decision in In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245, ¶ 23. Neither Mother nor her
{21}
If the juvenile court fails to conduct a dispositional hearing within 90 days of the filing of the complaint, it “shall dismiss the complaint without prejudice,” either upon a motion filed by one of the parties or the guardian ad litem or upon the court‘s “own motion.” By requiring dismissal after the expiration of 90 days, the General Assembly leaves no doubt that it intended to impose a mandatory deadline.
In re K.M. at ¶ 23. Mother‘s GAL seizes upon this language to challenge the trial court‘s proceeding with disposition beyond the 90 day timeline. HCJFS and D.G.‘s GAL, however, present two counterarguments: first, they dispute that In re K.M. should be applied retroactively; and, second, they maintain that when all parties make an explicit waiver of the 90 day deadline, In re K.M. does not apply. We will address each argument in turn.
{22} “[T]he general rule is that an Ohio court decision applies retrospectively unless a party has contract rights or vested rights under the prior decision.” DiCenzo v. A-Best Prods. Co., Inc., 120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, ¶ 25. An Ohio court has discretion to apply its decision
{23} The Ohio Supreme Court failed to include any discussion of prospective-only application in In re K.M., so we should presume that the decision applies retroactively. Moreover, the idea that a statute can use the word “shall” to impose a mandatory deadline on proceedings does not strike us as a “new principle of law.” The only “inequitable result” that In re K.M. can yield is the result explicitly endorsed by the decision: requiring dismissal without prejudice when a court (even benignly) exceeds the 90 day deadline. Therefore, we have no trouble concluding that In re K.M. applies retroactively—and could be applied in this case.
{24} Next, we turn to a novel issue in the First District: whether In re K.M. allows the parties to explicitly waive the 90 day deadline in
{25} One Ohio appellate district has already addressed the issue of express waiver of the 90 day
{26} We find Matter of K.M. to be persuasive—especially when coupled with further examination of the Supreme Court‘s reasoning in In re K.M.. The In re K.M. Court reached its conclusion that
{27} But while this reasoning supports a conclusion against implicit waiver, it fails to illuminate the context of explicit waiver. Unlike implicit waiver, an explicit waiver involves affirmative action by all parties—independent of the trial court, on the record, and before the 90 days expire—to waive the
{28} In fact, we are convinced that the danger in this case runs the opposite direction, and that serious due process problems could arise from denying parents the ability to expressly waive the 90 day deadline. Time and again, we have equated parental termination cases to “the family-law equivalent of the death penalty in a criminal case,” and emphasized that it is ” ‘critical that the rights of a parent who faces the permanent termination of parental rights are appropriately protected.’ ” In re S.G., 1st Dist. Hamilton No. C-200261, 2020-Ohio-5244, at ¶ 20, quoting In re R.K., 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, ¶ 1. We have also acknowledged that “[d]ismissal of a parental-termination case without prejudice is
{29} A parent who explicitly waives the 90 day
{30} Parallels to a criminal defendant‘s speedy trial right underscore the importance of—and statutory support for—allowing explicit waiver in this context.
{31} So too here. The 90 day deadline in
{32} In this case, Mother expressly waived the 90 day
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.