In re E.S.
Susannah M. Meyer, for Appellant Latonie Smith,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Katie Woodside, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services.
Please note: This case has been removed from the accelerated calendar.
FISCHER, Judge.
{¶1} Appellants Laura Stiver (“Mother”) and Latonie Smith (“Father”) appeal a judgment of the Hamilton County Juvenile Court adopting a magistrate’s decision to grant permanent custody of their child, E.S., to the Hamilton County Department of Job and Family Services (“HCJFS”). Mother raises one assignment of error, and Father raises six. For the following reasons, we overrule their assignments of error and affirm the judgment of the trial court.
Mother’s Assignment of Error
{¶2} In her sole assignment of error, Mother argues that the trial court erred by granting permanent custody of E.S. to HCJFS. A court may grant permanent custody of a child to an agency if it determines, by clear and convincing evidence, that (1) doing so is in the best interest of the child, and (2) the child cannot or should not be placed with either of the child’s parents within a reasonable time.1 In addition, absent narrowly defined exceptions, the agency must make “reasonable efforts to reunify the family during the child-custody proceedings prior to the termination of parental rights.”2
{¶3} The trial court made the appropriate findings, but Mother challenges each as either contrary to the manifest weight of the evidence or based upon insufficient evidence. Because this is a civil case, the tests for reviewing the weight and sufficiency of the evidence are essentially the same.3 We will not reverse the trial court’s findings as
{¶4} Mother first argues that that it was contrary to the manifest weight of the evidence to find that granting permanent custody was in the child’s best interest. When considering the best interest of a child, a court must take into account all relevant factors, including (1) the interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers, 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; (3) the custodial history of the child, including whether the child has been in the temporary custody of public or private children services agencies for 12 or more months; and (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.5
{¶5} Having reviewed the record, we are satisfied that the trial court considered each of these factors and that the court based its finding on competent, credible evidence that met the clear-and-convincing standard. The court relied on evidence of (1) the child’s relationships with the child’s parents, grandparents, and foster caregivers, (2) the guardian ad litem’s recommendation to grant permanent
{¶6} Next, Mother argues that there was insufficient evidence for the trial court to find that E.S. could not and should not be placed with Mother within a reasonable time. Such a finding is mandatory when a court determines that one of several statutory factors applies to each parent.6 After considering the evidence, the trial court concluded that three applied to Father and that four applied to Mother.7
{¶7} For instance, there is no dispute that Mother had permanently lost custody of other children. Therefore, under
{¶8} Finally, Mother argues that there was insufficient evidence to find that HCJFS had made reasonable efforts to reunify the family. Mother cites the testimony of an HCJFS caseworker who indicated that the agency had planned to seek permanent custody of E.S. even if Mother fully complied with her case plan. The caseworker expressed concerns regarding Mother’s extensive substance-abuse history and the fact that Mother’s parental rights had been terminated in the past.
{¶9} However, the issue was not whether there was anything more that the agency could have done, but whether the agency’s case planning and efforts were reasonable under the circumstances.9 That HCJFS may have planned to continue seeking permanent custody of E.S. did not render the agency’s efforts per se unreasonable. With competent, credible evidence that was clear and convincing, the
{¶10} Accordingly, Mother’s sole assignment of error is overruled.
Father’s Assignments of Error
{¶11} In his first assignment of error, Father argues that the trial court committed plain error by accepting his admissions without determining whether he understood their consequences. Specifically, he refers to a September 3, 2009, hearing at which he stipulated to several facts alleged in the amended complaint for permanent custody. Father maintains that this violated
{¶12} Under
{¶13} Father complains that the trial court never informed him that it would use his admissions to adjudicate E.S. abused and dependent, and that the consequences of this adjudication would be that HCJFS would obtain permanent custody of E.S. Despite this contention, the court determined that Father had made his admissions voluntarily, and it told Father that it would decide whether to adjudicate E.S. abused and dependent based on those admissions. The court also warned Father that there would be no trial, no witnesses, and no evidence introduced. Therefore, we hold that the trial court substantially complied with
{¶14} In his second assignment of error, Father argues that the trial court abused its discretion by finding that E.S. could not be placed with Father within a reasonable time because HCJFS failed to demonstrate that it had made reasonable efforts to reunify the family. “When there is competent and credible evidence to support the trial court’s decision concerning child custody, that decision will not be overturned absent an abuse of discretion.”14
{¶16} In his third assignment of error, Father argues that the trial court abused its discretion by failing to discuss all the required factors under
{¶17} In his fourth assignment of error, Father argues that it was against the weight and sufficiency of the evidence for the trial court to terminate his parental rights. Specifically, he maintains that there was insufficient evidence in the absence of expert
{¶18} Father cites In re Bowman from the Tenth Appellate District in his brief. However, we find Bowman distinguishable, as that court considered the best interests of a developmentally disabled child, not whether a parent has a chronic mental illness that renders the parent unable to care for his or her child.17 In this case, the trial court relied on evidence that Father had been diagnosed with bipolar and schizo-affective disorders, and that he had only sporadically complied with his mental-health treatment. Therefore, there was competent, credible evidence under the clear-and-convincing standard to show that Father’s mental health was so severely impaired that he could not provide adequate care for E.S. for at least a year.
{¶19} Furthermore, even if we were to accept Father’s argument, the result of this case would not change. As we have stated, the trial court made numerous findings that required it to determine that E.S. could not and should not be placed with Father within a reasonable time. The court also considered many other factors in deciding that permanent custody was in the child’s best interest. These findings were based on competent, credible evidence that also met the clear-and-convincing standard. Therefore, we overrule Father’s fourth assignment of error.
{¶20} In his fifth assignment of error, Father argues that his constitutional rights to a fair trial, due process, and due course of law were violated when the trial
{¶21} This court addressed whether the United States and Ohio constitutions require courts to appoint psychiatric experts to assist indigent parents in permanent-custody proceedings in which a parent’s mental health is at issue in In re Brown.18 There, a mother’s attorney specifically asked the court to appoint an expert to review her psychiatric records, which the state had subpoenaed. The trial court denied the request, and we reversed. However, unlike Brown, Father never asked for an expert to evaluate his mental condition in this case. If a party fails to request an expert at trial, he or she waives that issue on appeal.19 Likewise, in another permanent-custody case, one of our sister districts noted a lack of authority requiring it “to make a sua sponte appointment [of an expert] in the absence of a request by the indigent party or his/her counsel.”20
{¶22} Further, as we have noted in our discussion of Father’s fourth assignment of error, even if we were to accept Father’s argument, the error would have been harmless given the other multiple and independent grounds upon which the trial court found that granting permanent custody to HCJFS was in the best interest of the child, and that E.S. should not and could not have been placed with Father within a reasonable time. Therefore, we overrule Father’s fifth assignment of error.
{¶24} Under
{¶25} Father relies on In re Hoffman in which the Ohio Supreme Court recognized a party’s right to cross-examine guardians ad litem in permanent-custody proceedings when their reports will have a bearing on a court’s decision.24 However,
Judgment affirmed.
HILDEBRANDT, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry this date.