IN RE: G.D. G.D.
C.A. No. 27337
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 13, 2014
[Cite as In re G.D., 2014-Ohio-3476.]
STATE OF OHIO COUNTY OF SUMMIT ) )ss: ) APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nоs. DN13-01-0083 DN13-01-0084
WHITMORE, Judge.
{1} Appellant, James Z. (“Father“), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated his parental rights and placed his two minor children in the permanent custody of Summit County Children Services Board (“CSB“). Because CSB failed to present clear and convincing evidence to support any of the grounds it alleged for permanent custоdy under
I
{2} Father is the natural father of twins, each with the initials G.D., born January 23, 2013. The twins were removed from their parents’ custody while they remained hospitalized after birth. The children‘s mother is not a party to this appeal.
{3} CSB‘s complaint in this case alleged that the mother had used drugs throughout her pregnancy and had failed to obtain proper prenatal care. It further аlleged that the parents
{4} CSB proceeded to focus its case against Father on his alleged criminal conduct in Florida аgainst a sibling of these children. Throughout the record, however, the details pertaining to Father‘s arrest and criminal prosecution are extremely vague. Notably, most of the details about Father‘s criminal offense are in the form of unsubstantiated allegations by CSB. This Court necessarily confines its review to the facts and evidence set forth in the record.
{5} The record reflects that both parents appeared at the shelter care hearing and agreed that there was probable cause for the children to remain in the emergency temporary custody of CSB. They did not stipulate to the truth of any facts alleged in the complaint, however, nor did the shelter care order set forth specific reasons for continuing the emergency removal of the children.
{6} Prior to the adjudicatory hearing, Father was apparently arrested and incarcerated because his counsel filed a motion requesting that Father be transported from the Summit County Jail to the adjudicatory hearing. The matter proceeded to an adjudicatory hearing before a magistrate, without Father in attendance. After the hearing, the magistrate decided that G.D. and G.D. were dependent children. That finding was adopted by the trial court and was not challenged by written objections.
{7} The magistrate‘s adjudicatory decision stated that the mother stipulated to an adjudication of dependency. The facts pertaining to Father were merely that he was unable to care for the children because he had a history of “serious criminal charges” and had been extradited to Florida “on a charge of sexual battery.”
{9} On August 2, 2013, CSB moved for permanent custody of G.D. and G.D. Because the children had not yet been in its temporary custody for 12 months, CSB alleged that they could not be returned to their parents’ home or should not be returned to their custody based on several factors under
{10} At the permanent custody hearing, CSB attempted to prove that the parents’ rights had been involuntarily terminated as to a sibling of these children, but it offered only an uncertified copy of a purported Florida judgment to that effect, which was not admitted into evidence. Because no other evidence about thе prior termination of parental rights was presented, the trial court did not find that CSB had established that factor. The trial court found that the children could not or should not be placed with Father based on three alternate factors under
II
Assignment of Error
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED FATHER‘S PARENTAL RIGHTS AS THE [DECISION] WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{11} Father‘s sole assignment of error is that the trial court‘s permanent custody decision was not supported by the evidence presented at the hearing. We agree.
{12} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period, or that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, based on an analysis under
{13} As we have emphasized before, although CSB and the trial court may have known more facts about this case than what is reflected in the record on appeal, our review is necessarily
{14} Whether Father‘s parental rights should be preserved is not the question before us in this appeal, for Father had no burden tо prove anything. Instead, the focus of this appeal is whether CSB met its burden to prove, by clear and convincing evidence, that termination of parental rights was warranted. In re A.A., 9th Dist. Summit App. No. 22196, 2004-Ohio-5955, ¶ 19. Based on this Court‘s review of the record before us, we must conclude that CSB failed to present even a preponderance of evidence to support the trial court‘s findings under
{15} The trial court found that CSB had established that G.D. and G.D. could not be returned to either parent within a reasonable time or should not be returned to them based its factual findings under
R.C. 2151.414(E)(1)
{16} To establish the factor set forth in
{17} Moreover, “[p]ursuant to the plain language of
{18} The caseworker testified at the permanent custody hearing that Father had failed to comply with several requirements of the case plan. Although Father was initially included on the proposed case plan filed by CSB, and Father had apparently made attempts to comply with the requirements of that plan, that case plan was never adopted by the trial court. At the time the trial court adopted thе case plan in its initial dispositional order, Father was removed from the case plan because he was incarcerated.1 Because Father was not included on the case plan and received no court-ordered reunification services, there was no evidence before the trial court to support a finding under
{19}
{20} It is apparent that Father lacked the ability to visit his infant children while he was incarcerated in Florida. Consеquently, CSB had the burden to prove that, despite his incarceration in Florida, Father had the ability to support or communicate with G.D. and G.D. In re Sara H., 6th Dist. Lucas No. L-94-116, 1994 WL 700629, *5. CSB presented no evidence about Father having the ability to send financial support or to communicate with his infant children from the various jails and prisons where he was apparently incarcerated throughout this case. Thе record does demonstrate that Father sent letters to CSB to inquire about his children‘s case.
{21} Relying on this Court‘s decision in In re T.K., 9th Dist. Summit No. 24006, 2008-Ohio-1687, 9-13, CSB suggests that Father demonstrated a lack of commitment to his children by failing to make efforts to be reunified with them. Unlike the parent in In re T.K., who was included on the case plan and was incarcerated during only part of the case, Father was incarcerated throughout the case planning process and was not included in the court-ordered case plan. Father cannot be faulted for failing to comply with nonexistent case plan requirements.
R.C. 2151.414(E)(5)
{22} Finally, the trial court found that CSB had proven that Father was incarcerated for сommitting an offense against a sibling of the children.
{23} CSB‘s only witness at the hearing was the ongoing caseworker. Its questioning of her focused in large part on the fact that the parents initially lied to her about their past involvement with a children services agency in Floridа and about their prior criminal records. The evidence pertaining to Father‘s relevant criminal offense, however, was minimal. The caseworker testified that Father was arrested on February 26 for “past sexual abuse charges in Florida against two other children” and that he was extradited to Florida in March and had been in Florida ever since. She stated later that Father was being prosecuted in Florida for “six counts of sexual abuse against children.”
{24} In response to a question about whether Father and the mother had other children, the caseworker testified that the parents had told her that the mother had “two other children,” one of whom was also Father‘s child, and that “they were in the custody of other people in Florida.” She later testified that one of the children was living with a relative and one of them
{25} While the caseworker was testifying about the prior termination of parental rights, CSB attempted to admit a document that purported to be a Florida court judgment that terminated the parents’ rights to the two children in Florida. Although that document may have indicated a reason for the termination (which may or may not have been Father‘s alleged offense(s) against a sibling), the trial court sustained defense counsel‘s objection to the admission of that document because it was not a certified judgment entry. Consеquently, whatever details that may have been included in that judgment were not admitted into evidence and are not part of the record.
{26} CSB does not seem to dispute that it presented no direct evidence that the victims of Father‘s offenses were the siblings of G.D. and G.D. Instead, it suggests that the sibling relationship of the victims was established circumstantially through the testimony of the caseworker. CSB asserts that, because the caseworker testified that Father‘s offense was against “two other children” in Florida and, almost immediately afterward, testified that the parents had “two other children” in Florida who were removed from their custody, it is reasonable to infer that both references to “two other children” referred to the older siblings of G.D. and G.D.
{27} “Inferеnces to be drawn from circumstantial evidence are unreasonable or speculative if they are not supported by the surrounding facts in evidence.” State v. Rohr-George, 9th Dist. Summit No. 23019, 2007-Ohio-1264, ¶ 21. Although it may be possible to infer that both of the caseworker‘s references to “two other children” referred to the older siblings of G.D. and G.D., we cannot agree that it would be reasonable or logicаl to draw such an inference from this evidence. Aside from the temporal proximity of these two testimonial
{28} CSB points to other statements in the record that are of no evidentiary value. Although there are allegations throughout the rеcord that Father had sexually offended against a sibling of G.D. and G.D., that his parental rights to that sibling had been involuntarily terminated for that reason, and that the offenses had led to his arrest, incarceration, and eventual conviction, those unsubstantiated allegations do not constitute evidence. An “allegation” in the complaint is nothing more than “a party‘s formal statеment of a factual matter as being true or provable, without its having yet been proved.” Black‘s Law Dictionary 81 (8th Ed.2004).
{29} Similarly, brief factual statements in the report of the guardian ad litem that Father had sexually offended against a sibling of these children do not constitute evidence of that fact. The role of the guardian ad litem is to “assist a court in its determination of a child‘s best interest” by providing the court with relevant information and “an informed recommendation” about the children‘s best interest. Sup.R. 48(B) and (D)(13). Although the report of the guardian ad litem may necessarily include information about what other people told her, reliance upon her report as establishing those things as fact is improper. See In re O.H., 9th Dist. Summit No. 25761, 2011-Ohio-5632, ¶ 25. “[T]his Court is unaware of any legаl authority that permits the guardian ad litem to offer evidence of ‘facts’ about which she has no first-hand knowledge.” Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615, ¶ 13; Evid. R. 602.
III
{31} Father‘s assignment of error is sustained. The judgment of the trial court is reversed and remanded for a new hearing.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Commоn Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Cоurt of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.