567 N.E.2d 1042 | Ohio Ct. App. | 1989
This is an appeal by Pam Foust Blevins, the natural mother of Robert Foust, born July 27, 1978, William Foust, born May 2, 1980, and Chad Foust, born April 17, 1982, from a judgment of the Juvenile Division, Court of Common Pleas of Crawford County, entered on September 9, 1987, incorporating the court's decision of August 31, 1987, finding that the appellant "has acted in such a manner that the children are without adequate parental care, as defined by" R.C.
William Foust, the adoptive father of Robert Foust and the natural father of the two younger boys, was also named as a party to the proceedings and the judgment of the trial court found similarly as to him, but he has not appealed therefrom. He had been married to the appellant when each of the children were born, but in 1984 they were divorced, with appellant being granted custody of the children. On April 3, 1987, while these proceedings were pending, appellant married, and now lives with one Eddie Blevins, who was unemployed at the time, and was the father of two children by a former girlfriend, who retains their custody. Blevins is not a party to these proceedings.
On January 16, 1985, the Crawford County Children Services Board (the "board") filed its complaint in the lower court, alleging that the children appear to be dependent children in violation of R.C.
The matter was set for hearing on the complaint to be held on January 24, 1985. Service was had upon appellant but not upon the father of the children, he being in Florida. Nevertheless, the hearing proceeded without the father. In the referee's report and recommendations *150 of that date appear, among other things not here material, the following:
"I * * * have heard the testimony of the witnesses and considered all evidence in this cause heretofore referred to me, and upon consideration thereof I hereby report and find:
"* * *
"(4) Each party against whom allegations were made did make answer to said allegations by admitting same.
"(a) Admission accepted upon determination that same was made after compliance with Juv. R. 29(D).
"(5) Allegations of complaint sustained by the degree of proof required by Juv. R. 29(E)(4).
"Recommendations:
"(1) That child be adjudged dependent child.
"(2) That dispositional hearing proceed forthwith on January 24, 1985.
"(3) That said child pay costs herein and temporary custody continued with Children Services until home passes inspection. Attached initial plan also adopted as part of this Journal Entry."
On February 7, 1985, the court signed the following "Judgment Order" appearing at the bottom of the "Report and Recommendations of Referee":
"Upon consideration of the Referee's Report and Recommendations, together with all matters pertaining thereto, and it being made to appear that none of the parties herein has, within 14 days of the filing thereof, served and filed written objections thereto as provided by Juv. R. 40(D)(2), it is therefore ordered, adjudged and decreed that said Report and Recommendations be, and the same hereby are, confirmed, made a part hereof and adopted as the judgment order herein."
No further court proceedings took place with the exception of various filings and approvals of the reunification plans until July 2, 1986, at which time the board filed its request for a review and further disposition hearing. On August 15, 1986, the court reviewed the matter and ordered that "continued wardship of the child is necessary and should extend until December 30, 1986," with the father to pay support of the children to the Crawford County Bureau of Support by way of wage assignment.
On January 5, 1987, the board filed its motion reciting that the children are still "dependent children" as defined by R.C.
It is from the judgment, so rendered, that the appellant appeals to this court assigning error of the trial court (1) in not admitting evidence of her conduct after the filing of the motion for permanent custody because such evidence is admissible to show the future conduct of a parent, and (2) in that its "decision" is against the manifest weight of the evidence.
Both of these assignments of error involve a determination of what issues were being tried on the merits after the motion for permanent custody was filed. An examination of the juvenile statutes discloses that the hearing was governed by the provisions of R.C.
"(A) Upon the filing of a motion for permanent custody of a child by a county department, board, or certified organization that has temporary custody of the child, the court shall give notice of the filing of the motion and of the hearing, in accordance with section
"(1) If the county department, board, or certified organization has made a good faith effort to implement the initial and comprehensive reunification plans for the child that were approved by the court pursuant to section
"(2) If the parents have acted in such a manner that the child is without adequate parental care, and will continue to act in the near future in such a manner that the child will continue to be a child without adequate parental care. In making this determination, the court shall consider all relevant factors, including but not limited to, the following considerations:
"(a) the extent to which the parents of the child have conformed to the initial and comprehensive plans for the child that were approved by the court pursuant to section
"(b) any existing emotional or mental disorders of the parents and the anticipated duration of the disorders;
"(c) any physical, emotional, or sexual abuse of the child by the parents that occurs between the date that the original complaint alleging abuse was filed and the date of the filing of the motion for permanent custody;
"(d) any existing excessive use of intoxicating liquor or drugs of abuse by the parents;
"(e) any physical, emotional, or mental neglect of the child by the parents that occurs between the date that the original complaint alleging neglect was filed and the date of the filing *152 of the motion for permanent custody.
"(3) If it is in the best interest of the child to permanently terminate parental rights.
"(B) The court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that the child is not abandoned or orphaned and the parents have acted in such a manner that the child is a child without adequate parental care, and will continue to act in the near future in such a manner that the child will continue to be a child without adequate parental care, that the child is abandoned and the parents cannot be located, or that the child is orphaned and there are no relatives of the child who are able to take permanent custody. * * *"
In view of the requirements of this statute as to determination of continued dependency we cannot find that the determination by the court on February 7, 1985, of dependency was conclusive against the appellant in the determination of permanent custody. See, also, Elmer v. Lucas Cty. Children Serv. Bd. (1987),
It is apparent from the trial court's decision that it properly recognized that R.C.
Although the Supreme Court held in In re Baby Girl Baxter
(1985),
In In re Lucas (1985),
In a subsequent decision, In re Hattery (Aug. 28, 1986), Marion App. Nos. 9-85-11 and 9-85-12, unreported, we had occasion to, and did, distinguish both Lucas and Vickers, as they applied to requiring bifurcated hearings under the provisions of R.C.
Although we have discussed the matter of bifurcation, we have done so merely in further explanation of the mix of the issue under R.C.
"* * * Thus, the exact same type of factors considered in an original dependency adjudicatory hearing are considered during a hearing on the motion under R.C.
It will be noted that R.C.
As in all cases, all "relevant evidence" as defined by Evid. R. 401 is generally admissible. Evid. R. 402 and 403.
R.C.
In determining the issue raised by the first assignment of error as to the exclusion of appellant's evidence pertaining to facts and circumstances occurring after the filing of the motion for permanent custody and up to the time of trial, the exact wording of the second issue, and the same wording appearing in subsection (B) of the statute, are crucially important, i.e., "the parents have acted in such a manner that the child is a child without adequate parental care, and will continue to act inthe near future in such a manner that the child will continue to be a child without adequate parental care." (Emphasis added.) This determination has at least four facets, the first two being the present status and predictable future status of the child, and the latter two being the action of the parents in creating the child's present status, and their predictable action in creating the child's future status. Equally, the issue of best interest of the child looks far beyond the date of the filing of the complaint. The appellant's conduct from that date to the time of trial would be, if it had probative value, admissible on that issue. Obviously none of these factual questions as to present and future can be determined on evidence alone of facts and circumstances which existed on January 16, 1985, and without relevant evidence of facts and circumstances existing up to and including the time of trial, which in this case did not end until approximately five months after the motion was filed. The importance to both sides of the controversy is highlighted by the appreciation which one must have that the status and relationships of children and parents may rapidly change whether such change is influenced by the action of the parents or by other factors.
We conclude, therefore, that the trial court committed error prejudicial to the appellant, requiring reversal, in limiting her evidence to that which existed on or prior to January 15, 1987, the date when the motion for permanent custody was filed. Indeed, the appellant's proffer of evidence of her conduct after that date showed the existence of later evidence of probative value available on the ultimate issue before the court.
In that the trial court erroneously limited the evidence on the issue before it, the second assignment of error, relating to whether its judgment was manifestly against the weight of the evidence actually received becomes wholly hypothetical and moot, and for that reason alone we find the same without merit.
Accordingly, the judgment of the trial court is reversed and vacated and the cause is remanded thereto for new trial related to current circumstances and determinations of the matters set forth in R.C.
Judgment reversed and cause remanded.
MILLER, P.J., and EVANS, J., concur.
J. THOMAS GUERNSEY, J., retired, of the Third Appellate District, was assigned to active duty pursuant to Section