2003 Ohio 7069 | Ohio Ct. App. | 2003
{¶ 2} The record reveals that I.M., aka L.M.N., Jr. (hereinafter referred to as "L.M.N.") was born on February 21, 2002 to the mother, who tested positive for cocaine. The Cuyahoga County Department of Children and Family Services ("CCDCFS") took emergency custody of L.M.N. on February 22, 2002 and contemporaneously filed a complaint for abuse, neglect and dependency. CCDCFS alleged that mother was drug-dependent and had three other children, G.S., M.M. and M.B, none of whom were in her custody. It further alleged that two of the children, M.M. and M.B., were in foster care under the temporary custody of CCDCFS while the other child, G.S., was in the legal custody of a relative. The father of L.M.N. is not the father of these children.
{¶ 3} At the hearing that followed on February 27, 2002, the court found probable cause for the continued removal of L.M.N. and appointed counsel for both mother and father and a guardian ad litem for the child. The record indicates that both parents were personally served with notice of this hearing and were in attendance. A case plan was filed in April 2002, which addressed the agency's concerns relative to the parents' abuse of substances and lack of parenting skills. The agency had additional concerns about the mother's mental health, her lack of adequate housing and issues relative to domestic violence. Referrals for assessment and intervention were made.
{¶ 4} As pertains to the mother, numerous referrals were made for drug assessment, psychiatric evaluation and parenting classes. Mother finally completed the drug assessment following her pregnancy with L.M.N.1 but was unable to follow the recommendation for inpatient treatment because no facility was willing to take her due to frequent relapse. She was able to enter shelter care, however, which, according to the CCDCFS social worker, is "more or less a program to help her get into a drug treatment program." Mother, however, refused to sign a release for the social worker to obtain any information about her progress in this program. Mother made no attempt to complete the psychiatric evaluation or attend parenting classes. Similar referrals for domestic violence intervention went unheeded.
{¶ 5} Father, on the other hand, was to complete parenting classes and submit periodic urine samples to monitor his drug use. He followed through on neither of these recommendations, although he testified that he attended, but did not complete, parenting classes at a facility different than that scheduled by CCDCFS. He did not, however, produce any documentation of such attendance. Additionally, a visitation schedule was established so that the parents could visit with L.M.N. on a weekly or bi-weekly basis. According to the social worker's testimony, both parents visited rarely or not at all.
{¶ 6} An adjudication hearing took place on December 16, 2002. Although mother was present with her counsel, father was not present but his counsel was present. The record indicates that father was serving a ten-month prison sentence for possession of drugs and breaking and entering, a sentence which began in October 2002. The transcript of these proceedings does not indicate that the court or father's counsel were aware of father's conviction and subsequent sentence. CCDCFS moved to amend the complaint and, as amended, mother entered an admission to the allegations contained therein. After hearing testimony from the CCDCFS social worker regarding the father's failure to adhere to the recommendations contained in the case plan, the trial court adjudicated L.M.N. a neglected and dependent child.2
{¶ 7} The dispositional hearing took place on February 7, 2003. This time, father3 and his counsel were present but mother was not present though duly notified. Mother's counsel was present, however, as was the guardian ad litem. After hearing testimony from the social worker and the father, the court granted permanent custody of mother's other child, M.M., to CCDCFS but deferred its ruling on L.M.N. The court eventually granted permanent custody of L.M.N. to CCDCFS.
{¶ 8} Mother and father are now both before this court, assigning a total of seven errors for our review. Father assigns three procedural errors, which we will address first. His fourth and fifth assignments of error are primarily substantive and will be discussed with mother's two assignments of error, both of which are substantive.
{¶ 10} CCDCFS is correct. R.C.
{¶ 11} "No order for permanent custody * * * shall be made pursuant to this section unless the complaint alleging the abuse, neglect, or dependency contains a prayer requesting permanent custody, * * * the summons served on the parents of the child contains * * * a full explanation that the granting of an order for permanent custody permanently divests them of their parental rights * * *."
{¶ 12} Father conceded at oral argument that if the record contained such a notice, then this assignment of error must necessarily fail. Our review of the record reveals that such a notice was personally served on both parents and contained the necessary information required by this statute. Consequently, father's first assignment of error is not well taken and is overruled.
{¶ 14} An adjudication of neglect or dependency is a final order capable of immediate review. In re Murray (1990),
{¶ 15} The order adjudicating L.M.N. neglected and dependent was journalized January 8, 2003. Father had 30 days from that date to appeal any error associated with that order and failed to do so. See App.R. 4(A). It is true that father was incarcerated at the time of adjudicatory hearing. He was represented by counsel, however, and the record reveals that he received notice not only of the adjudicatory hearing but the decision rendered as a result of that hearing as well. Indeed, through counsel, father requested permission to attend the dispositional hearing. At no time did either father or his counsel challenge the order adjudicating L.M.N. neglected and dependent within the time allowed by the appellate rules. He cannot now, on appeal of an order awarding permanent custody, challenge that order.
{¶ 16} Father's second assignment of error is not well taken and is overruled.
{¶ 18} Juv.R. 22 governs pleadings and motions, as well as the defenses and objections thereto. Subsection (D), in particular, provides that any defects in the complaint be raised before the adjudicatory hearing by motion. See Juv.R. 22(D) ((2).
{¶ 19} Father at no time raised any objection to the complaint as served upon him. Indeed, he was personally served with the complaint and summons and appeared in court on February 27, 2002 and April 8, 2002. Although duly notified of hearings to take place on April 24, 2002, June 27, 2002, July 30, 2002, August 27, 2002 and October 28, 2002, father did not appear.4 Father's counsel appeared at all these hearings except one. Temporary custody was continued at each of these hearings and an adjudicatory hearing was scheduled for December 16, 2002. The record is devoid of any objection to the sufficiency of the complaint during this 10-month time period. Consequently, father cannot now challenge the sufficiency of the complaint.
{¶ 20} Even if he had raised the issue in the trial court, we would not find any error. R.C.
{¶ 21} The complaint in this case alleged, inter alia, that (1) L.M.N. was born while his mother tested positive for cocaine; (2) mother had a drug problem that prevented her from providing proper care for this child; (3) mother had other children in the temporary custody of CCDCFS or in the legal custody of a relative; (4) mother failed to comply with the agency's case plan; and (5) father failed to provide care or support for L.M.N. Moreover, the complaint sought an award of permanent custody to CCDCFS. Consequently, the complaint complied with the requirements of R.C.
{¶ 22} Father's third assignment of error is not well taken and is overruled.
{¶ 24} If a child is adjudicated as an abused, neglected or dependent child, a trial court may commit that child to the permanent custody of a public children services agency after determining that the child cannot be placed with either of the child's parents within a reasonable time in accordance with R.C.
{¶ 25} In determining whether a child cannot be placed with either parent within a reasonable period of time, the court shall consider all relevant evidence. It must then determine, by clear and convincing evidence, that one or more of the factors contained in R.C.
{¶ 26} Father contends that the trial court failed to make the necessary findings required by these statutes before it awarded permanent custody to CCDCFS. In particular, father argues that the judgment entry is deficient on its face because it does not address the factors set forth in R.C.
{¶ 27} R.C.
{¶ 28} The evidence in this case indicates that mother and father failed to follow through with the recommendations made by CCDCFS. Mother not only failed to attend classes to improve her parenting skills or to remedy issues relative to domestic violence, but similarly failed to complete a psychological evaluation. More importantly, mother did not comply with recommendations to seek treatment for her substance abuse. It is true that she did attend a shelter care program with the objective of obtaining inpatient treatment. However, she delayed assessment and subsequent entrance into this program because she admitted she was still using drugs. She has yet to be accepted into a treatment program because of her history of relapse.
{¶ 29} Father similarly failed to complete parenting classes. It is true that he testified that he attended parenting classes at a facility other than that recommended by CCDCFS. He admitted, however, that he did not complete the program. Furthermore, there was no documentation presented that indicated that he even partially attended parenting classes. Father admitted that he failed to follow through with recommendations for a drug and alcohol assessment and for periodic drug screening. Indeed, during the pendency of this case, father was convicted and incarcerated for possession of drugs, among other things.
{¶ 30} The evidence also indicates that mother and father are less than committed to L.M.N. Their interaction with the child has been minimal. Since May 2002, mother visited with L.M.N. only twice, although bi-weekly visits had been arranged by CCDCFS. Although father testified that he attempted to or did visit with the child more frequently, the visitation record documents only one visit since CCDCFS obtained custody.
{¶ 31} Certainly it would be understandable if exigent circumstances prevented either parent from visiting the child. According to the testimony of the social worker, however, mother claimed that she "didn't have time." Indeed, mother did not even appear at the dispositional hearing though duly notified. To be sure, father was serving a ten-month prison sentence, which began in October 2002, that prevented his visitation at least from that time forward. Nonetheless, father only visited with L.M.N. once in the preceding eight-month interval between the child's birth and father's incarceration. One or two visits over such a time period militates against establishing a strong and healthy relationship with L.M.N., especially when mother and father had the opportunity to visit on a regular basis and chose not to do so.
{¶ 32} On the contrary, the evidence indicates that L.M.N.'s interaction and relationship with his current foster caregiver has been exemplary. L.M.N. has been in the home of the foster caregiver, who also cares for L.M.N.'s half-sibling, M.M., since his birth. According to the child's guardian ad litem, L.M.N. is doing very well in his current placement — he is in good health and receives good care. The foster caregiver has expressed interest in adopting L.M.N. and his half-sibling.
{¶ 33} The evidence supports that mother and father have been given several opportunities to remedy their situation and have only minimally complied, if that. L.M.N. is thriving in his current environment, an environment that includes a half-sibling. Accordingly, we find that there existed clear and convincing evidence justifying the grant of permanent custody to CCDCFS. As stated above, the record is replete with the agency's efforts at implementing its case plan and the parent's lack of compliance with that plan. Their lack of compliance militates against the return of L.M.N. to their care within a reasonable time. It was, therefore, in the child's best interest for CCDCFS to have permanent custody.
{¶ 34} Mother's first assignment of error and father's fourth and fifth assignments of error are not well taken and are overruled.
{¶ 35} Notwithstanding our conclusion above, we are troubled by the journal entry granting permanent custody to CCDCFS. Although neither party requested findings of fact and conclusions of law as authorized by R.C.
{¶ 36} Nonetheless, several allegations contained in the original complaint were also contained in the amended complaint, proof of which would support the trial court's conclusion. These include (1) the child's date of birth and that mother tested positive for cocaine at the time of that birth; (2) that mother has a drug abuse problem that prevents her from properly caring for her child; (3) that mother has three other children, none of whom are now in her care; (4) that father has failed to provide care or support to the child; and (5) that mother has not complied with the agency's case plan. Because there was clear and convincing proof to support those allegations, we cannot say that the trial court erred in finding that L.M.N. could not be returned to either parent in a reasonable time.
{¶ 37} We are aware of the heavy docket and time constraints that face the juvenile court and its personnel on a daily basis, not to mention the emotional turmoil it faces when dealing with issues such as termination of parental rights. However, these are important issues requiring a careful attention to detail that we find lacking in this case. We note that the trial court issued a nunc pro tunc entry, which cured the obvious clerical errors contained in the original entry so as to reflect what actually occurred at the hearing. Similarly the court, or any of the plethora of attorneys affiliated with this case, should have realized that the journal entry issued was not, in part, consistent with what occurred at the dispositional hearing and taken appropriate action to correct the record.
{¶ 39} R.C.
{¶ 40} Mother, relying on In re Campbell (Oct. 27, 2000), Cuyahoga App. Nos. 77552 77603, 2000 Ohio App. Lexis 4787, urges this court to find that a PPLA is a better disposition because she has "a strong affinity" for L.M.N. and has made advances toward obtaining custody. Indeed, mother asserts that she "is building on her parenting and social skills" and soon will be, if not already, "sufficiently equipped to resume parenting full time." Moreover, mother claims to have her psychological problems "under control" and has "steadfastly denied future involvement with drugs and alcohol." Mother cites no evidence in the record to support these contentions, other than unauthenticated letters that she apparently authored or authored by others. Reiterating, mother did not attend the hearing although duly notified.
{¶ 41} CCDCFS, on the other hand, urges this court to revisit our earlier decision in Campbell. In particular, CCDCFS disagrees withCampbell to the extent that it viewed a PPLA disposition as a "middle ground" between permanent custody to the agency and reinstating custody to a parent, an approach to disposition that the Campbell court apparently did not want to discourage. See Campbell at *16; see, also, Inre Nickol (Oct. 18, 2001), Cuyahoga App. Nos. 78701 78742, 2001 Ohio App. Lexis 4658. CCDCFS refers us to the enabling legislation, the Adoption and Safe Families Act of 1997 ("ASFA"), Pub.L.
{¶ 42} The law's intent is to solve problems associated with prolonged stays in foster care that deprive children "of the permanency of family and, in many cases, subject them to further emotional and developmental risk." Freundlich, Expediting Termination of Parental Rights: Solving a Problem or Sowing the Seeds of a New Predicament? (1999), 28 Cap. U.L.Rev. 97, 110.
{¶ 43} In March 1999, Ohio adopted its version of ASFA when Am.Sub.H.B. 484 became effective through the efforts of the 122nd
General Assembly. "Ohio's Act, like the federal one, mandates that courts consider what is in the best interests of the child when making dispositional8 orders in dependency and neglect cases * * * [and] requires that the child's health and safety be considered paramount when determining whether an agency has made reasonable efforts to reunify a family." Lundberg Stratton, Expediting the Adoption Process at the Appellate Level (1999), 28 Cap. U.L.Rev. 121, 123. Although the emphasis remains on establishing permanency in placement, a juvenile court has the discretion to make an award of disposition that does not permanently divest parents of their parental rights. See, e.g., R.C.
{¶ 44} Reviewing the history behind these statutes, we find CCDCFS's argument to be primarily semantic. The state relies on a report from the Congressional Research Service, which refers to the PPLA as a permanency goal of "last resort." See K. Spar, Congressional Research Service Report for Congress, Adoption Promotion Legislation in the 105th Congress, 97-491 EPW, (Nov. 24, 1997). "The law revises the list of permanency goals (which had included long-term foster care) to include returning home, referral for adoption and termination of parental rights, guardianship, placement with a relative, or, as a last resort, another planned, permanent living arrangement." Id. at CRS-4. These "permanency goals" are no different than alternatives for disposition available to the trial court as set forth in R.C. Chapter 2151. Although the Campbell court may have referred to the choices available to the trial court as a "middle ground," we find its conclusion to be statutorily based.
{¶ 45} Be that as it may, we find Campbell distinguishable in this case. The trial court in Campbell was faced with arguments from the parties urging the court to choose permanent custody or a PPLA. Evidence was presented as to the parent's relationship with the children and her attempts and progress at overcoming the problems identified by the agency. These are not present in the case before us. First, the parties did not argue for, nor did the court suggest, an alternate disposition. CCDCFS sought permanent custody and mother sought to have custody reinstated to her. Secondly, and more importantly, there was no evidence presented that would indicate that a PPLA disposition would be in the child's best interests or that one of the factors listed in R.C.
{¶ 46} R.C.
{¶ 47} Mother's second assignment of error is not well taken and is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Sean C. Gallagher, J., concurs.
James J. Sweeney, P.J., Concurs in Judgment only.
