2005 Ohio 3141 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On September 12, 1997, G.B. was born to Michelle W. and Lester B.1 The two were living together in Lester B.'s home, but were not married. FCCS first became involved with G.B. when it filed a dependency complaint in January 1999 based on allegations that Michelle W. and Lester B. gave G.B. an alcoholic beverage in a bottle. G.B. was found to be a dependent child and initially removed from Lester B.'s home. As a result, FCCS prepared a case plan to facilitate the reunification of G.B. with Lester B. The case plan required Lester B. to undergo drug, alcohol, and mental health counseling, psychological and sexual assessments, and to provide for G.B.'s basic needs. Although G.B. was later returned to Lester B.'s home, FCCS again took temporary custody of G.B. in 2000 when Lester B. was assessed as being at the low end of the high risk scale to sexually re-offend and failed to complete portions of his case plan. G.B. has not returned to Lester B.'s home since that time.
{¶ 3} G.B. is currently almost eight years old and has spent a majority of those years in a number of different foster homes. She suffers from a number of psychological and behavioral conditions, including depression. She has intense concerns with control, safety, taking instruction, and attachment. She acts out these concerns sexually, with activities ranging from masturbation to inappropriate sexual activity with other children. She undergoes weekly counseling appointments and takes medications to calm her behaviors. She also has a slight learning disability that impairs her motor skills.
{¶ 4} On April 13, 2001, FCCS moved, pursuant to R.C.
{¶ 5} FCCS appeals, assigning the following errors:
Assignment of error number one
The decision of the trial court denying fccs motion for permanent custody was against the manifest weight of the evidence. Based on the state of the evidence, this court should grant the motion for permanent custody.
Assignment of error number two
The court erred by finding that appellee Lester B. Had completed his case plan. Lester B. and Michelle W. Failed to complete the case Plan. The court erred by failing to make a finding that the children cannot or should not be placed with the parents as per R.C.
Assignment of error number three
The trial court erred in denying the motion for permanent custody filed by franklin county children services in that the trial court failed to state that the court considered the recommendation of the guardian ad litem and failed to consider that other children of the parents were placed for adoption.
Assignment of error number four
The trial court erred in failing to find that permanent custody is in the best interest of G.B. Thus, said finding that permanent custody in not in the best interest of G.B. is against the manifest weight of the evidence.
Assignment of error Number Five
The court committed plain error by admitting evidence and testimony of the Polygraph Examiner. Children services was prejudiced by the admission of the testimony of the polygraph examiner and the judgment of the trial court should be reversed.
{¶ 6} For ease of analysis, we will address FCCS' fifth assignment of error first. Therein, FCCS contends the trial court committed plain error by admitting the results of Lester B's polygraph examination. We disagree.
{¶ 7} In 1984, Lester B. pled no contest to a charge of sexually abusing his son. During these proceedings, Lester B. steadfastly denied anything improper occurred and claimed that his wife fabricated the charge. He testified that he only pled no contest based on advice from his counsel. Due to his conviction, FCCS required Lester B. to undergo a sex offender assessment and take part in any recommended sex offender counseling. Lester B. took a sex offender assessment but refused to take part in sex offender counseling because he denied having committed a sexual offense. To allay his concerns, FCCS found a counseling program for him to attend for people who denied their participation in sexual offenses. Lester B. completed the counseling portions of that program. He refused, however, to complete the program's final requirement of a polygraph examination. The examination results would aid the program in determining whether or not Lester B. needed to undergo further sex offender counseling.
{¶ 8} With the hearing date for FCCS' motion for permanent custody nearing, Lester B. took a polygraph examination concerning the 1984 conviction. The examination was not done, however, in conjunction with Lester B.'s participation in his sex offender counseling. The examination was independently conducted by Wesley Bailey, a licensed polygraph examiner who administers polygraph examinations for state agencies in Ohio, including the sex offender program in which Lester B. was enrolled. Bailey testified that he followed the same polygraph examination procedures for Lester B. as he would have done had he given him the polygraph examination through sex offender counseling. The results of the polygraph examination indicated that Lester B. was truthful in his denial of having done anything sexual with his son. Bailey testified that the accuracy of polygraph examinations range from 75-80 percent to as high as 98 percent. The trial court relied on the results of the polygraph examination in its custody analysis and concluded that Lester B. substantially completed the sex offender counseling required in his case plan.
{¶ 9} In Ohio, the results of polygraph examinations are not admissible unless both parties stipulate that an accused will take a polygraph examination and that the results will be admissible. State v.Jamison (1990),
{¶ 10} In the case at bar, any error associated with the admission of the polygraph examination results did not affect the basic fairness, integrity, or public reputation of the judicial process itself. It is undisputed that FCCS required Lester B. to undergo a sex offender assessment and to take part in a sex offender counseling program. FCCS found a counseling program for people who denied committing a sexual offense. Completion of that program required the participant to submit to a polygraph examination.
{¶ 11} Although Lester B. did not submit to a polygraph examination in the context of the counseling program, he did ultimately submit to an independent polygraph examination conducted by Wesley Bailey, a licensed polygraph examiner, who administers polygraph examinations for state agencies in Ohio, including the program in which Lester B. was enrolled. Bailey testified that he followed the same polygraph examination procedures for Lester B. as he would have done had he given him the polygraph examination through the counseling program. The results of the polygraph examination indicated that Lester B. was truthful in his denial of having done anything sexual with his son.
{¶ 12} Given that it was FCCS that required Lester B. to participate in the counseling program which required a polygraph examination, we fail to see how the admission into evidence of the polygraph results negatively affected the basic fairness, integrity or public reputation of the judicial process. Lester B. simply complied, albeit belatedly, with FCCS's request. Therefore, we conclude that any error associated with the introduction into evidence of the polygraph results did not give rise to plain error and appellant's fifth assignment of error is overruled.
{¶ 13} We now turn to FCCS' remaining assignments of error. Preliminarily, we note that a decision to award permanent custody requires the trial court to take a two-step approach. First, a trial court must find whether any of the following apply:
(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 ending on or after March 18, 1999, 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 ending on or after March 18, 1999.
R.C.
{¶ 14} Once the trial court finds that one of the circumstances in R.C.
(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 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 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 factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
R.C.
{¶ 15} In connection with the first step in this analysis, FCCS contends in its second assignment of error that the trial court erred when it failed to find that G.B. cannot be placed with her parents pursuant to R.C.
{¶ 16} FCCS argues in its third assignment of error that the trial court erred by failing to consider in its best interest analysis the guardian ad litem's recommendation and Lester B's. loss of other children to adoption. We disagree.
{¶ 17} The guardian ad litem recommended an award of permanent custody to FCCS. In its discussion of Lester B.'s reluctance to take a polygraph examination, the trial court noted that Lester B. could do nothing to change the mind of the guardian ad litem (presumably that the guardian ad litem was opposed to reunification). Although the trial court did not expressly state in its decision what the guardian ad litem recommended, it was obviously aware of the guardian ad litem's recommendation. A trial court is not required to specifically enumerate each factor under R.C.
{¶ 18} FCCS also contends the trial court erred when it failed to consider that Lester B. had other children placed for adoption, a factor set forth in R.C.
{¶ 19} In its first and fourth assignments of error, FCCS contends that the trial court's best interest finding was against the manifest weight of the evidence. Permanent custody judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. In re Thompson, supra, at ¶ 48. Therefore, we will review the evidence to determine whether competent, credible evidence supports the trial court's best interest finding.
{¶ 20} R.C.
{¶ 21} R.C.
{¶ 22} R.C.
{¶ 23} R.C.
{¶ 24} Finally, R.C.
{¶ 25} After reviewing the factors a trial court must consider in making its best interest determination, we find that the trial court considered all of the necessary factors and that its best interest finding was supported by competent, credible evidence. Accordingly, its judgment dismissing FCCS' motion for permanent custody was not against the manifest weight of the evidence. FCCS' first and fourth assignments of error are overruled.
{¶ 26} Having overruled FCCS' five assignments of error, the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed.
Judgment affirmed.
Brown, P.J., concurs.
Sadler, J. dissents.
Dissenting Opinion
{¶ 27} Because I believe that the trial court's admission of Lester B.'s polygraph examination rose to the level of plain error, and because I feel that appellant is entitled to a ruling on the specific statutory ground upon which it premised its motion, I respectfully dissent.
{¶ 28} Though courts have generally embraced a circumspect attitude toward the invocation of the plain error doctrine in civil cases, I believe that the present case is one in which we should apply the doctrine, just as this court did in the case of In re McLemore, 10th Dist. No. 03AP-714, 2004-Ohio-680. In the McLemore case, this court reversed a judgment granting permanent custody to appellant when the trial court had relied upon erroneously admitted hearsay in concluding that the mother had failed to complete a major aspect of her case plan, and this led the lower court to its ultimate conclusion that an award of permanent custody was in the child's best interest. Because the hearsay testimony was "a significant factor in the trial court's decision,"3 this court concluded that the erroneous admission of the testimony rose to the level of plain error.
{¶ 29} The court in McLemore noted that the trial court's reliance on hearsay was acutely problematic in a case in which such evidence is used to permanently terminate a parent's parental rights. Id. at ¶ 13. In my view, reliance upon inadmissible evidence to erroneously find case plancompliance is just as problematic as is the use of such evidence to find case plan noncompliance. When such an error forms a significant part of the basis for an award of custody to a parent, this error is no less palpable or damaging to the basic integrity of the proceedings than when the court relies on inadmissible evidence to terminate a parent's parental rights.
{¶ 30} The polygraph evidence tainted the result in this case in two troubling ways. First, the trial court relied on the polygraph evidence in concluding that Lester B. had substantially complied with the requirements of his case plan, even though the case plan contains no mention whatsoever of a polygraph requirement. Second, in the trial court's view, the polygraph evidence essentially exonerated Lester B. of his prior conviction for sexual assault. This is problematic because that conviction might otherwise have played a larger role in the court's analysis of G.B.'s best interest, pursuant to R.C.
{¶ 31} I would also sustain appellant's second assignment of error due to the posture of appellant's motion, the manner in which the trial court ultimately disposed of that motion, and the plain language of R.C.
{¶ 32} In its motion, FCCS alleged that it would demonstrate entitlement to an order of permanent commitment under R.C.
{¶ 33} But when an agency's motion is premised upon R.C.
{¶ 34} In summary, I believe that this proceeding was detrimentally affected by the trial court's erroneous admission of, and reliance upon, the polygraph evidence, and that the trial court failed to make a crucial factual finding required by the applicable statute and the posture of the motion before it. Accordingly, I would sustain appellant's second and fifth assignments of error, find the remaining assignments of error moot, reverse the judgment of the trial court, and remand this matter for a new evidentiary hearing on the motion for permanent court commitment. Because the majority has determined otherwise, I respectfully dissent.
