IN THE MATTER OF: J.H., Jr.
Case No. 14CA4
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
Released: 07/10/14
[Cite as In re J.H., 2014-Ohio-3108.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.
Laina Fetherolf, Prosecuting Attorney, and Ann Allen McDonough, Assistant Prosecuting Attorney, Logan, Ohio, for Appellee.
McFarland, J.
{¶1} This is an appeal by Appellant of the trial court‘s decision awarding permanent custody of her biological child, J.H., Jr., to appellee, South Central Ohio Job and Family Services, formerly known as Hocking County Children Services. Appellant argues that the trial court erred by determining that the evidence clearly and convincingly shows that awarding appellee permanent custody is in the child‘s best interest, because the evidence fails to show that the child could not achieve a legally secure permanent placement without granting appellee permanent custody. Appellant contends that she would be able to provide a legally secure permanent
I. FACTS
{¶2} On March 26, 2012, appellant gave birth to the child, and both she and the child tested positive for cocaine. Appellant admitted that she had used methadone, Percocet, and cocaine during the last three months of her pregnancy. Appellee subsequently filed a complaint that alleged the child is an abused and
{¶3} On October 30, 2013, appellee filed a permanent custody motion. Appellee argued that awarding it permanent custody of the child would be in the child‘s best interest because (1) the child had been in the same foster home since the child was one month old, (2) the child bonded with the foster mother, (3) the child lacked a bond with appellant and has seen appellant only three times since his birth, (4) appellant had been unable to reunify with the child during the eighteen months before appellee filed the permanent custody motion, and (5) a suitable relative placement does not exist. Appellee asserted that it considered placing the child with appellant‘s father but deemed appellant‘s father unsuitable “due to drug use and criminal history.” Appellee further considered placing the child with appellant‘s aunt, but the aunt stated that she could not take the child.
{¶4} On January 23, 2014, the guardian ad litem filed a report. The guardian stated that she visited both the foster home and appellant‘s father‘s home and found both to be safe and appropriate. However, the guardian ad litem did not believe that placing the child in appellant‘s father‘s home would serve the child‘s best interest due to “the current impact and foreseeable future impact of
“The GAL recommends that [the child] not be placed in [appellant‘s father‘s] home. This recommendation is made in light of [the child]‘s strong bond with foster mother that began shortly after his birth and that foster mother will adopt [the child] if given that opportunity. In addition, [the child] may still not be ‘out of the woods’ in terms of the effect that [appellant]‘s drug use during her pregnancy had on [the child]. The full impact will only be known as he grows and develops. This G[AL] concludes that these potential future challenges create a particular need for [the child] to have a legally secure permanent placement as early in his life as is possible.”
The guardian ad litem thus recommended that the court award appellee permanent custody of the child.
{¶5} Later, during the permanent custody hearing, the guardian ad litem stated: “[G]iven [appellant]‘s history and her inability to stay sober for any extended period of time, it seems unlikely that she will ultimately succeed in [recovering]. And in addition, the time that it would take, a minimum of a year for her to be released from jail and complete treatment and then to find out whether or not she can succeed outside of that structured environment. In the meantime [the child] is in a foster home where he is fond of his foster mother.”
{¶6} On February 3, 2014, the trial court granted appellee permanent custody of the child. The court first found that the child was adjudicated dependent on July 17, 2012, and was in appellee‘s temporary custody from April 5, 2012 through October 30, 2013. The court thus determined that the child had been
{¶7} The court next considered the following factors when evaluating the child‘s best interest: (1) the child had been in foster care since his birth; (2) appellant had not regularly visited or maintained contact with the child; and (3) the child was not competent to express his wishes, but the guardian ad litem believed that awarding appellee permanent custody would serve the child‘s best interest. The court further determined that “the child can only have a legally secure permanent placement by a grant of permanent custody to [appellee].”
{¶8} The court also considered
II. ASSIGNMENT OF ERROR
{¶9} Appellant timely appealed the trial court‘s judgment and raises one assignment of error:
The trial court erred in finding that clear and convincing evidence supports a finding that granting permanent custody is in the best interest of [the child].
III. ANALYSIS
{¶11} Appellant also disputes the court‘s findings that she failed to assist in identifying the child‘s biological father or that she failed to pay child support while the child was in foster care.
A. STANDARD OF REVIEW
“‘Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.“‘”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black‘s Law Dictionary 1594 (6th ed.1990).
{¶13} When an appellate court reviews whether a trial court‘s permanent custody decision is against the manifest weight of the evidence, the court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.‘” Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶ 23-24.
“The measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986).
{¶15} In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.“); In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495 N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986) (stating that whether a fact has
{¶16} Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.‘” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175. A reviewing court should find a trial court‘s permanent custody decision against the manifest weight of the evidence only in the “‘exceptional case in which the evidence weighs heavily against the [decision].‘” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175; accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
B. PERMANENT CUSTODY PRINCIPLES
{¶18} A parent has a “fundamental liberty interest” in the care, custody, and management of his or her child and an “essential” and “basic civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829. A parent‘s rights, however, are not absolute. D.A. at ¶ 11. Rather, “it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the pole star or controlling principle to be observed.” In reCunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So. 2d 54, 58 (Fla.App.1974). Thus, the state may terminate parental rights when a child‘s best interest demands such termination. D.A. at ¶ 11.
{¶19} Before a court may award a children services agency permanent custody of a child,
(A) To provide for the care, protection, and mental and physical development of children * * *;
* * *
(B) To achieve the foregoing purpose[ ], whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interests of public safety.
C. PERMANENT CUSTODY FRAMEWORK
{¶20}
(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.
{¶21} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
{¶22} In the case at bar, appellant does not challenge the trial court‘s
D. BEST INTEREST
{¶23}
{¶24} Here, the only best interest factor appellant challenges concerns the trial court‘s finding regarding the child‘s need for a legally secure permanent placement.
{¶25}
{¶26} The child has been in appellee‘s temporary custody since he was a newborn, and at the time of the permanent custody hearing, he was almost two years old. During that time, appellant was unable to provide the child with a legally secure permanent placement, mainly due to her drug abuse and incarceration. At the time of the permanent custody hearing, appellant‘s expected release date was July 2014. Thus, appellant would not be able to provide the child
““ * * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * [parent] an opportunity to prove her suitability. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child‘s present condition and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * The law does not require the court to experiment with the child‘s welfare to see if he will suffer great detriment or harm.”
In re Bishop (1987), 36 Ohio App.3d 123, 126, 521 N.E.2d 838, quoting In re East (1972), 32 Ohio Misc. 65, 69, 288 N.E.2d 343, 346. We therefore disagree with appellant‘s suggestion that the court should have considered a temporary arrangement pending appellant‘s unpredictable ability to regain custody of the child. In re J.B., 9th Dist. Nos. 24470 and 24473, 2009-Ohio-1054, ¶ 27 (observing that a temporary placement offers “none of the protections of legal custody and no assurance of permanence“) .
{¶27} Moreover, we do not agree with appellant that the trial court was required to seriously consider her father as a placement before awarding appellee permanent custody. The Ohio Supreme Court considered this same issue in In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, and rejected the argument that a trial court must find by clear and convincing evidence that no suitable relative is available for placement before awarding a children services
{¶28} Appellant nevertheless asserts that under that Ninth District‘s rationale in In re A.A., 9th Dist. Summit No. 22196, 2004-Ohio-5955, the trial court was required to determine whether her father could have provided the child with a legally secure permanent placement before terminating her parental rights and awarding appellee permanent custody. However, A.A. was decided approximately two years before the Schaefer decision. Thus, the rule that appellant cites from A.A. (“If a legally secure placement could have been accomplished without terminating parental rights * * * the agency should have explored it and the trial court should have considered this less drastic alternative to permanently severing a family relationship,” A.A. at ¶ 18) is of questionable validity in light of the Schaefer court‘s statement that
{¶29} Consequently, the trial court had no duty to first consider placing the child with appellant‘s father before granting appellee permanent custody. Thus, we reject appellant‘s assertion that the court‘s finding that the child needed a
{¶30} Appellant does not challenge the trial court‘s findings regarding any of the other
{¶32} Accordingly, based upon the foregoing reasons, we overrule appellant‘s sole assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
{¶33} I concur in judgment and opinion with one caveat. The principle opinion indicates at ¶ 28 that the holding in In re A.A., 9th Dist. No. 22196, 2004-Ohio-5955, “is of questionable validity in light of the Schaefer court‘s statement * * *” of a contrary rule. It apparently reaches that conclusion based upon the chronology of the two cases, i.e. “However, A.A. was decided approximately two years before the Schaefer decision.” In my view the validity of In re A.A. is not merely questionable but a foregone conclusion. And its demise is not a matter of chronology, but rather one of hierarchy.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.
For the Court,
BY: Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.