In re J.C.
Voltolini Law Offices, and Regina Rosemary Richards, for appellant.
Robert J. McClaren, for appellee Franklin County Children Services.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
DORRIAN, J.
{¶1} Appellant, S.C. (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting permanent custody of J.C. (“the minor child“) to Franklin County Children Services (“FCCS“). For the following reasons, we affirm.
{¶2} The minor child at issue was born on May 21, 2008, and has been in the continuous temporary custody of FCCS since October 14, 2008. Appellant has given birth to six children and has had an extensive history with FCCS due to severe
{¶3} On or about September 21, 2008, appellant left her infant daughter with an unrelated adult male in order to commit a robbery, resulting in appellant stealing a vehicle. At this time, appellant was using crack and ecstasy, and abusing alcohol. In addition, appellant was not properly treating her bi-polar disorder with any type of medication or counseling. Prior to her arrest, appellant contacted a family friend who previously adopted three of appellant‘s children and is the legal custodian of appellant‘s fourth child, advising that she was presently running from the police in a stolen vehicle and that the minor child was in her apartment. Appellant requested that someone go to her apartment and pick up the minor child. Since September 22, 2008, the minor child has continued to live with her kinship care provider at the same residence as four of her biological siblings.
{¶4} On December 29, 2008, appellant entered a plea of guilty to robbery, and on January 23, 2009, the trial court sentenced appellant to three years in prison, with an anticipated release date of September 19, 2011.
{¶5} On October 9, 2008, FCCS filed a complaint for temporary custody of J.C., alleging that the minor child was an abused, neglected or dependent child. On October 14, 2008, the trial court issued a decision granting FCCS temporary custody of the minor child. Subsequently, on January 5, 2009, an order of the trial court adjudicated
{¶6} In order to satisfy the conditions set forth in the reunification plan, appellant had to meet the following objectives: (1) resolve the legal issues that led to her incarceration; (2) provide for all of the minor child‘s basic and protective needs; (3) manage her mental health and take all prescribed medications; (4) incur no more legal charges; (5) comply with all terms of parole; (6) complete an alcohol and drug assessment and follow through with all recommendations; (7) complete a psychological evaluation and follow through with all recommendations; (8) complete parenting classes; (9) contact the agency via telephone, letter or in person on a monthly basis; (10) meet with, telephone or write to the minor child at least once per month; (11) provide the agency with names of alleged fathers; and (12) not use any drugs or alcohol.
{¶7} On September 2, 2009, FCCS filed a motion for permanent custody of the minor child pursuant to
{¶8} Appellant filed a timely appeal asserting the following assignments of error for our review:
- The Trial Court erred by terminating Appellant‘s parental rights where FCCS did not make reasonable efforts to make it possible for the child to return home safely as provided under
R.C. 2151.419 because FCCS did not seek an extension of temporary custody one year before the deadline, but instead moved for PCC to terminate Mother‘s parental rights before she was released from prison. - The Trial Court abused its discretion when it refused to continue the PCC hearing on 21 June 2010 until 8 July 2010, which was a mere two and half weeks until Mother was released from prison, even though Mother substantially complied with the FCCS case plan while incarcerated, and was bonded with J.C. prior to trial.
- The Trial Judge erred in granting Agency‘s motion for PCC of J.C. where Mother was not “repeatedly incarcerated” since J.C.‘s birth.
- The Trial Judge erred in granting Agency‘s motion for PCC of J.C. where Mother‘s parental rights were previously terminated voluntarily—as opposed to involuntarily—because Mother did not contest the previous PCC hearings for her older children.
{¶9} We will first consider appellant‘s first, third and fourth assignments of error because the standard of review for these assignments of error is the same.
{¶10} “It is well recognized that the right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re Murray (1990), 52 Ohio St.3d 155, 157. “Permanent termination of parental rights has been described as ‘the family law equivalent of the death penalty in a criminal case.’ ” In re Hayes at 48, quoting In re Smith (1991), 77 Ohio App.3d 1, 16. Accordingly, parents must receive every procedural and substantive protection the law permits. Id. “Because an award of permanent custody is the most drastic disposition available under the law, it is an alternative of last resort and is only justified when it is necessary for the welfare of the
{¶11} On appellate review, permanent custody motions supported by the requisite evidence going to all the essential elements of the case will not be reversed as against the manifest weight of the evidence. In re Brown, 10th Dist. No. 03AP-969, 2004-Ohio-3314, ¶11, citing In re Brofford (1992), 83 Ohio App.3d 869. ” ‘[E]very reasonable presumption must be made in favor of the judgment and the findings of facts [of the trial court].’ ” In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶59, quoting Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19. Further, ” ‘if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court‘s verdict and judgment.’ ” In re Brooks at ¶59. ” ‘The discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.’ ” In re Hogle (June 27, 2000), 10th Dist. No. 99AP-944, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316. “An appellate court will not overturn a permanent custody order when it is supported by competent, credible evidence.” In the Matter of Siders (Oct. 29, 1996), 10th Dist. No. 96APF04-413, citing In re Brofford at 876-77.
I. Appellant‘s First Assignment of Error—R.C. 2151.419 , Reasonable Efforts
{¶12} Appellant‘s first assignment of error contends that the trial court erred by granting FCCS‘s motion for permanent custody where FCCS chose not to request an extension of temporary custody as part of the “reasonable efforts” requirement set forth in
{¶13} FCCS filed its motion for permanent custody pursuant to
{¶14}
Except as provided in division (D)(3) of this section, if a 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, the agency with custody shall file a motion requesting permanent custody of the child.
{¶15}
An agency shall not file a motion for permanent custody under division (D)(1) or (2) of this section if any of the following apply:
* * *
(b) If reasonable efforts to return the child to the child‘s home are required under
section 2151.419 of the Revised Code , the agency has not provided the services required by the case plan to the parents of the child or the child to ensure the safe return of the child to the child‘s home.
{¶16} Pursuant to
{¶17} The Supreme Court of Ohio held that “[t]hese sections involve adjudicatory, emergency, detention, and temporary disposition hearings, and dispositional hearings for abused, neglected, or dependent children, all of which occur prior to a decision transferring permanent custody to the state.” In re C.F. at ¶41. Further, “[t]he statute makes no reference to a hearing on a motion for permanent custody.” Id. “Therefore, ‘[b]y its plain terms, the statute [requiring reasonable efforts] does not apply to motions for permanent custody brought pursuant to
{¶18} Previously, this court ruled that the “reasonable efforts” requirement set forth in
{¶19} The Supreme Court of Ohio instructs that “[a]t various stages of the child-custody proceeding, the agency may be required under other statutes to prove that it has made reasonable efforts toward family reunification.” Id. “If the agency has not established that reasonable efforts have been made prior to the hearing on a motion for permanent custody, then it must demonstrate such efforts at that time.” Id. at ¶43.
{¶20} Here, FCCS filed its motion for permanent custody pursuant to
{¶21} However, although a finding of “reasonable efforts” was not required at the permanent custody hearing in this matter, the juvenile court was required to find that FCCS made “reasonable efforts” at prior stages in the case. Specifically, on October 14, 2008, at the temporary custody hearing, the magistrate found that “Franklin County Children Services made reasonable efforts to prevent the continued removal of the child(ren) from the home and that those efforts failed to prevent the continued removal of the child(ren) from the home and continuation in the home is contrary to the welfare of the child.” (See Magistrate‘s Oct. 14, 2008 Findings of Fact and Conclusions of Law.) Also, on January 5, 2009, at the uncontested hearing adjudicating the minor child as abused, neglected or dependent, the magistrate found that FCCS made reasonable efforts “to prevent or eliminate the need for removal of said child from the child‘s own home.” (See Jan. 12, 2009 Magistrate‘s Decision and Judgment Entry adopting same.) Therefore, because the juvenile court previously found that FCCS made “reasonable efforts”
{¶22} In addition to the magistrate‘s express findings, although not required, the judge also made a finding of “reasonable efforts” at the permanent custody hearing. These findings are consistent with the testimony and evidence in the record clearly showing that FCCS made “reasonable efforts” at reunification by providing ongoing services to assist appellant in meeting the goals set forth in the case plan adopted by the trial court on January 5, 2009. Specifically, two caseworkers, Julia Purdom and Christina Grace, actively worked with appellant in order to ensure that she fully understood the goals set forth in the case plan, to determine her ongoing progress toward completing the goals, and to facilitate visitation with the minor child.
{¶23} The record reflects that in spite of numerous obstacles, including scheduling conflicts due to appellant‘s behavioral issues, the caseworkers transported the minor child from the kinship care provider‘s home to the Ohio Reformatory for Women in Marysville, Ohio on the following dates: April 3, 2009, May 21, 2009, July 9, 2009, July 23, 2009, August 6, 2009, September 23, 2009, November 4, 2009, January 14, 2010, February 11, 2010, and May 5, 2010.
{¶24} Further, Ms. Grace testified that she searched the Putative Father Registry and sent letters to three individuals, named by appellant as possible fathers, in order to involve them in the situation.
{¶25} Appellant incorrectly suggests that FCCS failed to make “reasonable efforts” in this case because it did not file a motion for an extension of temporary custody but, instead, filed a motion for permanent custody while appellant remained incarcerated.
{¶26} Based upon the evidence in the record, this court finds that FCCS made “reasonable efforts” throughout the case to provide services and support to appellant by assisting her with the goals set forth in the case plan.
{¶27} Appellant‘s first assignment of error is overruled.
II. Third and Fourth Assignments of Error—R.C. 2151.414(E)
{¶28} Appellant‘s third and fourth assignments of error contend that the trial court erred by granting FCCS‘s motion for permanent custody based upon
{¶29} In order for a juvenile court to properly grant a motion for permanent custody filed pursuant to
{¶30} The record in this case reflects that the minor child has been in the continuous custody of FCCS since October 14, 2008, and the trial court adjudicated the child as dependent on January 5, 2009. FCCS properly filed its amended motion for permanent custody on January 8, 2010, asserting that, pursuant to
{¶31} Here, although not required, the trial court did make findings, pursuant to
{¶32} In addressing
{¶33} In addressing
{¶34} Therefore, the trial court did not err in finding that
{¶35} Appellant‘s third and fourth assignments of error are overruled.
III. Second Assignment of Error—Continuance
{¶36} Appellant‘s second assignment of error contends that the trial court abused its discretion by denying appellant‘s motion for continuance. Appellant filed her motion on June 11, 2010, for the trial scheduled on June 21, 2010, in order to delay the permanent custody hearing until after July 8, 2010, anticipating that a separate court would grant her pending motion for judicial release relating to her incarceration. In the event that the criminal court granted judicial release, appellant hoped to show further progress on her case plan and to convince FCCS and the juvenile court to extend temporary custody.
{¶37} “The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge.” State v. Unger (1981), 67 Ohio St.2d 65, 67. Therefore, an appellate court must not reverse a trial court‘s decision to deny a motion for continuance unless it finds that the trial court abused its discretion. Id. See also In re B.G.W., 10th Dist. No. 08AP-181, 2008-Ohio-3693, ¶23. ” ‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.’ ” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151,157.
{¶38} In Unger, the Supreme Court of Ohio states that “[i]n evaluating a motion for a continuance, a court should note, inter alia: [1] the length of the delay requested; [2] whether other continuances have been requested and received; [3] the inconvenience to litigants, witnesses, opposing counsel and the court; [4] whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; [5] whether the defendant contributed to the circumstance which gives rise to the request for a
{¶39} In considering the first Unger factor, the length of delay requested, the trial court properly denied appellant‘s motion for continuance. Appellant‘s motion stated that the criminal court scheduled a judicial release hearing on July 8, 2010, in order to determine the outcome of appellant‘s request for early release from prison. Arguably, as a best-case scenario, the length of delay for the permanent custody hearing would have been for a period of approximately two weeks. However, there was no guarantee that the criminal court would grant judicial release on July 8, 2010. If the criminal court denied appellant‘s motion for judicial release, appellant would remain incarcerated until September of 2011. If, on the other hand, the criminal court granted judicial release, there was no telling how long it would take appellant to get back on her feet and whether another continuance would have been requested in order for appellant to find housing and employment. In addition, appellant‘s motion did not specifically request a new date for the permanent custody hearing, thereby requesting an indeterminate period of time. As such, denial of the motion was proper.
{¶40} In considering the second Unger factor, prior continuances, the trial court properly denied appellant‘s motion for continuance. The record reflects that appellant previously filed a motion for continuance on March 22, 2010, for the purpose of seeking judicial release. The trial court granted appellant‘s motion, thereby continuing the hearing scheduled on May 17, 2010, until June 21, 2010. In weighing the fact that the permanent custody hearing scheduled on May 17, 2010, was delayed due to appellant‘s previous
{¶41} In considering the fourth and fifth Unger factors, whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived, and whether appellant contributed to the circumstances which give rise to the request for continuance, we find that the trial court properly denied appellant‘s motion for continuance. Although appellant presented the court with a legitimate reason for requesting the continuance, to see if the criminal court would grant her pending motion for judicial release, appellant also contributed to the circumstances giving rise to the request for continuance.
{¶42} First, appellant committed a crime resulting in a prison sentence of three years. Second, while in prison, appellant engaged in behavior requiring disciplinary action which consequently delayed appellant‘s ability to partake in services offered by the prison. The record reflects that due to assaulting another prisoner and exhibiting aggressive behavior, appellant sat in solitary confinement and received a “pink shirt” designation, limiting her access to services. The prison placed “pink shirt” inmates on waiting lists for services offered such as life skills classes, parenting classes, anger management classes, drug/alcohol classes, counseling and GED services, which delayed appellant‘s opportunity to progress with her case plan. In addition, appellant missed a scheduled visit with the minor child on May 21, 2009. The caseworker testified that she drove the minor child from Pickerington to Marysville, only to learn that appellant was “in the hole” for 25 days due to assaulting an inmate and threatening to kill another inmate.
{¶43} This court considered a similar fact pattern in In re B.G.W., supra. We held in that case that the trial court did not abuse its discretion by denying a request for continuance where the appellant, incarcerated and suffering from a drug addiction, sought delay only to demonstrate additional progress on her case plan by attempting to continue proceedings until after the completion of her drug treatment program at Maryhaven. Id. In In re B.G.W., the appellant waited 18 months to avail herself to services that “would have assisted her in meeting the objectives of the case plan designed to reunify her with the minor child.” Id. at ¶26. We stated that “[w]hile the reasons for appellant‘s delay may be apparent from the record, the trial court properly could regard her failure to pursue the available services as dilatory.” Id.
{¶44} Therefore, because appellant‘s continued bad behavior contributed to the circumstances giving rise to the request for continuance, we find that the trial court properly denied the motion.
{¶45} In considering the sixth Unger factor, unique facts relevant to this case, we consider first that a continuance would not have likely changed the outcome of the case. Even if appellant left prison on July 8, 2010, and the permanent custody hearing was held on July 9, 2010, appellant still could not demonstrate substantial compliance with her case plan in order to ultimately persuade the trial court that it is in the minor child‘s best interest to remain with appellant. Specifically, the trial court found that appellant “has been unable to substantially remedy the conditions that caused the removal and to demonstrate that she will/has been able to sufficiently remedy her drug addiction and maintain sobriety outside the confines of prisons [sic] and to provide for all of [the minor child‘s] basic and protective needs and providing her with a safe and permanent home[.]”
{¶46} Second, as a unique fact relevant to this case, we consider that, pursuant to
{¶47} Appellant‘s second assignment of error is overruled.
{¶48} Having overruled all four of appellant‘s assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.