In re J.C.
Rendered on June 1, 2010
Robert J. McClaren, for appellee.
John J. Peden, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
{¶1} Appellant, R.D., filed these consolidated appeals seeking reversal of a judgment by the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in which the court granted motions filed by appellee, Franklin County Children Services (“FCCS” or “appellee“), seeking permanent court commitment (“PCC“) of R.D.‘s children, R.C., Ca.C., Co.C., and J.C. (collectively “the children“), thereby terminating her parental rights with respect to the children.
{¶2} The following facts are relevant to this appeal. R.D. is the children‘s mother, and C.C. is the children‘s father. On July 12, 2006, the trial court issued an order granting FCCS temporary custody of the children. This order was issued after FCCS filed complaints seeking findings of abuse, neglect, and dependency for each of the children after J.C. was born with cocaine in his system. At the time of J.C.‘s birth, appellant tested positive for cocaine and marijuana. On August 9, 2006, the trial court found R.C. to be a dependent child; Ca.C. and Co.C. to be neglected and dependent children; and J.C. to be an abused, neglected, and dependent child.
{¶3} Case plans were prepared in each case for the purpose of identifying services needed to rehabilitate the parents to ensure that they could meet the custodial needs of the children, with the ultimate goal being to reunify the children with their parents. During part of the temporary custody, the children were placed with their paternal grandmother, Donna Jenkins (“Ms. Jenkins“). However, the placement ended after Ms. Jenkins allowed unsupervised contact between the children and their parents, a violation of the safety plan formulated for the children.
{¶5} On September 22, 2009, the trial court held a hearing on the PCC motion. At the hearing, testimony was offered regarding each of the parents’ compliance with the case plans. The assigned FCCS case worker, Craig Fitzgerald, testified that the plan called for R.D. to: (1) complete parenting classes; (2) provide proof of stable housing and income; (3) participate in family and individual counseling; (4) participate in a psychological evaluation and follow any recommendations resulting from that evaluation; (5) complete an AOD assessment and follow any recommendations resulting from that assessment, which included periodic urine screens for drug use; and (6) attend visits and medical appointments with the children.
{¶6} Fitzgerald testified that R.D. completed some, but not all, of the provisions of the plan during the 38 months of temporary custody. R.D. completed an outpatient drug treatment plan, but suffered a relapse after that. R.D. stopped providing urine screens, such that by the time of the hearing, she had completed 86 of a requested 329 urine screens, with none completed in the year prior to trial. Fitzgerald further testified that R.D. had not provided proof of stable housing or income, and that R.D. had complied with the requirement that she attend individual counseling, but that she had not complied with all of the recommendations resulting from that counseling. Fitzgerald also testified that R.D. had been convicted of trafficking in cocaine in 2008.
{¶7} At the hearing, R.D. testified about her attempts to comply with the plan, and her drug relapse. R.D. stated that she had contacted Maryhaven about participating
Q. Right. Okay. Are you asking for the children to be returned to you?
A. I‘m asking for my children to return to their grandmother.
Q. So you‘re not asking for the children to be returned to you?
A. No. I‘m asking for them to be returned to Donna Jenkins.
Q. What if they do not go to Donna Jenkins would you ask for them to be returned to you?
A. Yeah.
Q. Do you believe that you are prepared at this point to take custody of them?
A. Are you asking me if I think I can take care of my kids?
Q. I‘m asking you if you‘re prepared at this point to take custody of your children?
A. Yeah.
Q. Even though you‘ve relapsed and not completed another drug treatment program?
A. I start my drug treatment in --- next month but for me to sit here and tell you that I don‘t want my kids, what type of person would I be?
Q. Well I‘m not asking if you want them, I‘m asking if you think you can take care of them right now?
A. That‘s why I‘m asking for them to be placed with their grandmother.
Q. Because you don‘t believe that you can take care of them right now?
A. Yeah.
(Tr. 71-72.)
{¶8} Fitzgerald also testified about the case plan as it pertained to C.C., the children‘s father. Fitzgerald stated that at the time FCCS became involved wth the children, C.C. was incarcerated for a probation violation. C.C. had been convicted in three separate cases between 2004 and 2008 on charges of receiving stolen property and breaking and entering. The case plan called for C.C. to: (1) participate in an AOD assessment and follow any recommendations resulting from that assessment, which included participation in periodic urine screens for drug use; (2) complete a parenting class; (3) participate in a psychological evaluation and follow any recommendations resulting from that evaluation; (4) participate in family counseling; (5) provide proof of stable housing and income; and (6) participate in visits with the children. Fitzgerald testified that C.C. had not fully completed any of the steps in the case plan, although he had partially completed some steps.
{¶9} At the hearing, C.C. testified about the attempts he had made to comply with the case plan. C.C. testified that if custody was not given to R.D., he believed he could take custody of the children. When asked what he hoped the result of the hearing would be, C.C. stated that, “I would like for my kids to go to my mother only because she‘s ready, she has everything set up, you know, she‘s prepared. I‘m not prepared.” (Tr. 115.)
{¶10} Also at hearing, testimony was offered regarding Ms. Jenkins’ desire to take custody of the children. Ms. Jenkins testified that she had undergone drug treatment for cocaine use in 2003, and that at the time of the trial, she had two minor children that were
{¶11} Ms. Jenkins further testified about the initial placement of the children with her, and their removal due to the violation of the safety plan by allowing R.D. and C.C. to have unsupervised access to the children. Ms. Jenkins testified that she made a number of attempts to make her home suitable for the children, and that FCCS had not approved those changes.
{¶12} Fitzgerald testified that FCCS performed two home studies to determine whether Ms. Jenkins’ home could be a suitable placement for the children. The first home study concluded that placement should be denied because Ms. Jenkins was at that time living in an apartment that was not up to code. The second home study also resulted in a denial of placement because the house Ms. Jenkins was living in at that time had structural problems. Fitzgerald testified that a third home study was not conducted because Fitzgerald discovered that Ms. Jenkins had lost custody of her two minor children due to her substance abuse problem. Fitzgerald felt that Ms. Jenkins had not been honest with him in discussing her drug problem initially, having first told him that the substance abuse problem was entirely her ex-husband‘s.
{¶13} After the hearing, the court issued a judgment entry. In the entry, the trial court concluded that FCCS had met the requirements for filing a motion seeking PCC as set forth in
{¶14} R.D. filed this appeal, and asserts three assignments of error:
Assignment of Error I
The Trial Court Did Not Rule On Paternal Grandmother‘s Motion For Legal Custody Of The Four (4) Minor Children Of This Action.
Assignment of Error II
The Trial Court Erred When It Did Not Consider the Requirements Of Ohio Revised Code 2151.414(D)(1)(2) (sic) Which requires A Determination Of The Children‘s Interaction With Parents. Siblings, Relatives, Foster Care Givers and Out Of House Providers, Or Any Other Person Who May Sufficiently Affect The Child. This Requirement Is Used In Determining The Best Interest of The Minor Children.
Assignment of Error III
The Trial Court Ruled Against The Manifest Weight Of The Evidence Because It Only Applied The Standard Of Clear And Convincing Evidence, Whereas The Appealable Standard To Be Applied To Paternal Grandparent Motion For Custody Would Have Been The Standard Of Preponderance Of The Evidence.
{¶15} In her first assignment of error, appellant argues that the trial court erred when it failed to rule on Ms. Jenkins’ motion seeking to have custody of the children granted to her. Initially, we note that R.D.‘s first assignment of error actually constitutes
{¶16} Furthermore, even if appellant could properly assert this error on Ms. Jenkins’ behalf, we find the assignment has no merit. Appellant argues that the trial court‘s failure to rule on Ms. Jenkins’ motion for custody means that there is no final appealable order in this case, because Ms. Jenkins’ motion for custody constitutes a claim on which the trial court has not entered judgment.
{¶17}
{¶18} Accordingly, appellant‘s first assignment of error is overruled.
{¶20} Since the trial court specifically addressed each of the factors set forth in
{¶21} In her third assignment of error, appellant argues that the trial court‘s conclusion that custody would not be placed with Ms. Jenkins is against the manifest weight of the evidence, since the trial court‘s ruling stated it was based on the standard of clear and convincing evidence, rather than a preponderance of the evidence. As with appellant‘s first assignment of error, this assignment is actually an assertion of error on Ms. Jenkins’ behalf, and appellant therefore lacks standing to assert that error.
{¶22} Furthermore, even if appellant could properly assert this error on Ms. Jenkins’ behalf, we find the assignment has no merit. In determining that the motion for PCC should be granted, the trial court stated in its entry that it had applied the standard of evidence applicable to a PCC motion, which is that of clear and convincing evidence.
{¶24} Accordingly, appellant‘s third assignment of error is overruled.
{¶25} Having overruled appellant‘s three assignments of error, we affirm the judgment by the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
TYACK, P.J., and McGRATH, J., concur.