In re J.S.E.
Civil Appeals from the Court of Common Pleas, Juvenile Division, Case Nos. 2009 JCF 00768 and 2009 JCF 00769.
Judgment: Affirmed.
James W. Armstrong, Leipply & Armstrong, 101 Riverfront Centre, 2101 Front Street, Cuyahoga Falls, OH 44221 (For Appellant, Sarah A. Ellis).
Victor V. Vigluicci, Portage County Prosecutor and Charmine T. Ballard, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee, Portage County Department of Job and Family Services).
Joel D. Reed, J. Reed Enterprises, L.L.C., 86 South Cleveland Avenue, Ste. B., Mogadore, OH 44260-1442 (Guardian ad litem).
Shubhra N. Agarwal, 3766 Fishcreek Road, #289, Stow, OH 44224-4379 (For Minor Child, J.S.E.).
Ralph C. Megargel, 231 South Chestnut Street, Ravenna, OH 44266 (For Minor Child, J.V.E.).
{¶1} Mrs. Ellis seeks review of the judgment of the Portage County Court of Common Pleas, Probate/Juvenile Division, which terminated her parental rights and granted permanent custody of her two children to the Portage County Department of Job and Family Services (PCDJFS). We affirm the decision of the trial court.
{¶2} Substantive and Procedural History
{¶3} On November 28, 2007, Mrs. Ellis’ son, J.V.E., d.o.b. August 26, 1998, and daughter, J.S.E., d.o.b. August 15, 2004, were adjudicated dependent. Mrs. Ellis retained custody of the children under a court-order of protective supervision. Accordingly, PCDJFS created a plan for the family to address the safety concerns and living conditions in the home. That same year, Mr. and Mrs. Ellis’ divorce was finalized.
{¶4} In June 2008, PCDJFS amended the case plan to reflect changes made for parenting services. The children were placed in the temporary custody of the agency in September of that year, and thus, PCDJFS amended the case plan a second time in December 2008. The plan was also modified to include sexual abuse therapy and counseling for the children and Mrs. Ellis. The children revealed that J.V.E. had attempted to sexually abuse J.S.E. while the children were still residing with Mrs. Ellis. J.V.E. later repeated the behavior with another little girl in their foster home. The children were separated, and J.V.E. was placed with a different foster family, which did not have young children and could offer more therapeutic services.
{¶5} On August 3, 2009, PCDJFS filed a motion for permanent custody pursuant to
{¶6} Most fundamentally, she failed to remedy any of the conditions that caused the children to be originally moved from the home. Mrs. Ellis had no job, no housing, and ongoing issues with drug abuse. Despite her repeated attempts, Mrs. Ellis failed to complete any of the assigned parenting classes or counseling sessions. Although she would regularly attend supervised visits with the children, she needed constant redirection and support. Further, of the eleven drug screens PCDJFS requested, Mrs. Ellis completed only two; and, the most recent screen, taken in June of 2009, tested positive for methamphetamines and opiates.
{¶7} A hearing was held on September 25, 2009, during which Mr. Ellis voluntarily and permanently surrendered his parental rights. The court also appointed independent counsel for each child because the children‘s wishes differed from the recommendation of the guardian ad litem (GAL). Both children expressed their wish was to return to their mother, while the GAL recommended permanent placement with PCDJFS so the children could be adopted.
{¶8} Without dismissing its original motion for permanent custody, PCDJFS filed an amended motion on October 8, 2009, to reflect that the children had been in PCDJFS’ custody for 12 out of 22 consecutive months. During the two-day hearing in December 2009, the trial court questioned PCDJFS in order to clarify whether it was proceeding on the original or the amended motion. PCDJFS confirmed it was pursuing the original motion and, accordingly, the court proceeded under a best interest analysis pursuant to
{¶9} The Trial Court‘s Findings
{¶10} On December 11, 2009, after considering the testimony and evidence presented by PCDJFS, Mrs. Ellis, the GAL‘s recommendation, and the wishes of the children, the trial court issued its judgment terminating Mrs. Ellis’ parental rights.
{¶11} Specifically, the court found that at the time PCDJFS filed its motion for permanent custody, the children had not been in the temporary custody of the agency for 12 or more consecutive months. Notwithstanding the reasonable case planning and diligent efforts of PCDJFS to assist Mr. and Mrs. Ellis in remedying the problems of housing, safety, and employment that caused the children to be placed outside the home, the court found that Mrs. Ellis had continuously and repeatedly failed to remedy any of the conditions or complete her case plan. After engaging in an explicit analysis of the best interest factors, the court concluded it was in both children‘s best interest to be placed in the permanent custody of PCDJFS for adoption and terminated Mrs. Ellis’ parental rights.
{¶12} Mrs. Ellis now raises three assignments of error for our review:
{¶13} “[1.] The trial court erred by not dismissing the Motion for Permanent Custody, when the evidence showed the children had been in the temporary custody of the Portage County Department of Job and Family Services for more than twelve months at the time of the filing of the Amended Motion for Permanent Custody.
{¶15} “[3.] The trial court abused its discretion by not permitting Mother‘s then pending criminal case to be adjudicated prior to conducting a hearing on Portage County Department of Job and Family Services’ Motion for Permanent Custody and then granting the Motion for Permanent Custody after Mother‘s pending indictment was used as evidence against her.”
{¶16} Standard of Review
{¶17} “It is well established that a parent‘s right to raise a child is an essential and basic civil right.” In re T.B., 11th Dist. No. 2008-L-055, 2008-Ohio-4415, ¶29, quoting In re Phillips, 11th Dist. No. 2005-A-0020, 2005-Ohio-3774, ¶22, citing In re Hayes (1997), 79 Ohio St.3d 46, 48. “The permanent termination of parental rights has been described as the family law equivalent of the death penalty in a criminal case.” Id., quoting Phillips, citing In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, ¶14. See, also, In re Smith (1991), 77 Ohio App.3d 1, 16. Based upon these principles, the Supreme Court of Ohio has determined that a parent must be afforded every procedural and substantive protection the law allows. (Citations omitted.) Id.
{¶18} ”
{¶19} “Following the hearing,
{¶20} “Therefore,
{¶21} “If the child is not abandoned or orphaned [or has not been in the temporary custody of a public children services agency for 12 of 22 months], then the focus turns to whether the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. Under
{¶22} “Assuming the juvenile court ascertains that one of the four circumstances listed in
{¶23} “The juvenile court may terminate the rights of a natural parent and grant permanent custody of the child to the moving party only if it determines, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody to the agency that filed the motion, and that one of the four circumstances delineated in
{¶24} We would be remiss if we did not take this opportunity to clarify the appropriate standard of review. As was evident during oral arguments, recent case law in our district has led to some confusion. See In re Spicuzza, 11th Dist. Nos. 2007-L 121, 2007-L-126, 2007-L-145, and 2007-L-146, 2008-Ohio-527 (applying the same criminal manifest weight of the evidence standard of review to both a sufficiency of the evidence and manifest weight of the evidence analysis and an abuse of discretion standard to the termination of parental rights); In re Snow, 11th Dist. No. 2003-P-0080, 2004-Ohio-1519, ¶28 (applying an abuse of discretion standard of review).
{¶25} Thus, to clarify, the appropriate standard of review is that “we will not reverse a juvenile court‘s termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence.” In re T.B. at ¶36, quoting In re Lambert at ¶75, citing In re Jacobs (Aug. 25, 2000), 11th Dist. No. 99-G-2231, 2000 Ohio App. LEXIS 3859, 8. “Clear and convincing evidence is more than a mere preponderance of the evidence; it is evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” Id. at ¶35. (Citations omitted).
{¶26} Amended Motion for Permanent Custody
{¶27} In her first assignment of error, Mrs. Ellis contends the trial court erred in proceeding with its determination of the children‘s best interests pursuant to
{¶28} We disagree. At the outset of the hearing, the court clarified the statutory basis upon which PCDJFS was proceeding. PCDJFS never filed a motion to dismiss the original motion. Thus, pursuant to
{¶29} Upon similar facts, the Eighth Appellate District, in In re C.E., 8th Dist. Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, explained that “[t]he Agency filed an amended motion alleging that the twelve month period had been met ***. Since this motion is an amendment and not a new motion, it relates back in time to the original filing. Civ.R. 15(C). The time between the filing of the motion and the hearing cannot be counted in the time calculation. In re Arnold, 3d Dist. No. 1-04-71, 1-04-72, 1-04-73, 2005-Ohio-1418, ¶10. The trial court must thus make additional findings before terminating parental rights to [appellant].” Id. at ¶18.
{¶30} Prior to the hearing, the trial court inquired as to which
{¶32} Later in the proceeding, J.V.E.‘s counsel argued the original motion for permanent custody should be dismissed because
{¶33} It is clear from our review that the court engaged in the proper analysis, and all the parties understood the amended motion related back to the original motion to include the “12 out of 22 months in temporary custody” as merely one determinative factor to be considered. Most fundamentally, PCDJFS was held to a higher evidentiary standard in electing to proceed pursuant to
{¶34} Nothing precludes an agency from moving for permanent custody before a child has been in the agency‘s temporary custody for at least 12 months. “If a ground other than
{¶35} Mrs. Ellis’ first assignment of error is without merit.
{¶36} Reasonable Efforts at Reunification
{¶37} In her second assignment of error, Mrs. Ellis intertwines a sufficiency of evidence argument with one of manifest weight. She argues that there is insufficient evidence to support a finding that the children could not be placed with her within a reasonable period time, yet she also presents a manifest weight of the evidence analysis. As we find the manifest weight of the evidence more than supports the trial court‘s findings, necessarily then, PCDJFS introduced sufficient evidence that the children could not be reunified with Mrs. Ellis within a reasonable period of time. Mrs. Ellis’ second assignment of error is without merit.
{¶38} “Clear and convincing evidence is more than a mere preponderance of the evidence; it is evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re S.M., 11th Dist. No. 2008-G-2858, 2009-Ohio-91, ¶21, citing In re T.B. at ¶35. “The standard of review for weight of the evidence issues, even where the burden of proof is ‘clear and convincing,’ retains its focus upon the existence of some competent, credible evidence. In other words, when reviewing awards of permanent custody to public children services agencies, judgments supported by some competent, credible evidence must be affirmed. If the record shows some competent, credible evidence supporting the trial court‘s grant of permanent custody to the county, *** we must affirm that court‘s decision, regardless of the weight we might have chosen to put on the evidence.” Id., quoting In re Kangas,
{¶39} “In determining *** whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence.”
{¶40} “The existence of a single factor will support a finding that a child cannot be placed with either parent within reasonable period of time.” In re S.M. at ¶23, quoting In re Johnston, 11th Dist. No. 2008-A-0015, 2008-Ohio-3603, ¶40, citing In re J.C., 4th Dist. No. 07CA834, 2007-Ohio-3783, ¶23; In re Williams S. (1996), 75 Ohio St.3d 95, 99 (”
{¶41} Mrs. Ellis argues the trial court lost its way as there is sufficient evidence she was substantially complying with the case plan and that the children could be returned to her within a reasonable period of time.
{¶42} As proof, she first contends that she completed her initial drug assessment and resultant recommendations. It is true that Mrs. Ellis completed the initial drug assessment, but quite untrue that she followed the recommendations. Specifically, she was requested to randomly submit drug screens on 11 occasions. Of those, Mrs. Ellis completed two. She tested positive for methamphetamines and opiates on the most recent screen taken on June 25, 2009, well after the children‘s removal in September of 2008.
{¶43} Second, Mrs. Ellis contends that although she admittedly did not complete the assigned counseling and therapy programs, the fact that she completed the first ten week session of one program is sufficient evidence of compliance. The simple fact is, however, that Mrs. Ellis did not complete one of the programs to which she was assigned. She made numerous attempts to complete the programs, yet she was ultimately terminated from them for her excessive absences. In her one-on-one sexual behavior counseling sessions, Mrs. Ellis completely stopped attending even though she had only one or two more sessions to finish. Her therapist opined that she did not believe her children‘s statements of sexual abuse and refused to acknowledge J.V.E.‘s sexualized behavior.
{¶45} Mrs. Ellis’ steps toward compliance, such as completing her initial drug assessment, do not equate to an amelioration of any of the conditions that caused the children‘s removal. Moreover, after the children were removed, Mrs. Ellis lost her housing, was charged with drug manufacturing, tested positive for illegal narcotics, did not go to counseling, and failed to complete the assigned programs.
{¶46} The evidence reflects that Mrs. Ellis’ compliance with the case plan did not increase after the children‘s removal. In fact, she fell further behind. Attempts at compliance are insufficient grounds upon which to rest a finding that Mrs. Ellis can be reunified with the children within a reasonable period of time. See In re S.M. at ¶26, citing In re Pihlblad, 5th Dist. Nos. 2008CA0019 and 2008CA0020, 2008-Ohio-2776, ¶32 (“where, despite marginal compliance with some aspects of the case plan, the exact problems which led to the initial removal remained in existence, a court does not
{¶47} Mrs. Ellis’ second assignment of error is without merit.
{¶48} Pending Criminal Charge
{¶49} In her third assignment of error, Mrs. Ellis contends the court abused its discretion by prejudicially considering her illegal manufacturing of methamphetamines charge as evidence that the children could not be reunified with her in a reasonable period of time. Our review, however, reveals the pending charge was clearly not a dispositive factor in the court‘s determination as the court was explicit that it did not consider it.
{¶50} “[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case ***.” In re Fair, 11th Dist. No. 2007-L 166, 2009-Ohio-683, ¶58. An abuse of discretion connotes more than error of law or judgment; it implies that the trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶51} Moreover, “[w]hen a matter is tried before the court in a bench trial, there is a presumption that the trial judge ‘considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.‘” In re Fair at ¶66, quoting Jackson v. Herron, 11th Dist. No. 2003-L-145, 2005-Ohio-4046, ¶28, citing State v. White (1968), 15 Ohio St.2d 146, 151, and Columbus v. Guthmann (1963), 175 Ohio St. 282, paragraph three of the syllabus; see, also, In re J.P., 8th Dist. No. 81486, 2003-Ohio-3522, ¶29.
{¶53} She takes issue with the fact that the court stated in its judgment entry: “Also in June of 2009, Mrs. Ellis was charged with Knowingly Assembling or Possessing one more chemicals that may be used to manufacture a controlled substance of Schedule I or II, to wit; Methamphetamines, in violation of
{¶54} From our review of the record, it is clear that the court was merely stating a fact -- the pending charge was not going to be considered. It is apparent that the trial court admitted the indictment for the limited purpose of providing context for Mrs. Ellis’ conversation with her caseworker regarding PCDJFS’ true motivation in filing the permanent custody motion.
{¶55} “The Court: *** What I‘m going to do is I‘m going to take the indictment. I‘m going to admit the indictment just because there‘s been testimony. You don‘t deny that there has been an indictment.
{¶56} “Mrs. Ellis’ counsel: No, sir. I did agree to stipulate to that.
{¶57} “The Court: Okay. All the other documents, including the warrant, the plea of not guilty, I‘m just going to return those to you to the department.
{¶59} “The Court: So, ‘W’ is now a state‘s exhibit that is an indictment that alleges an unproved crime at this point. ***.”
{¶60} Thus, as our review indicates, the court ensured that Mrs. Ellis’ unadjudicated charge was not erroneously used as the basis of PCDJFS’ motion for permanent custody. The court merely acknowledged the fact of the indictment because of the surrounding testimony, and it cannot be said that this was the dispositive factor that led the court to find that Mrs. Ellis could not be reunified with her children in a reasonable period of time.
{¶61} Mrs. Ellis’ third assignment of error is without merit.
{¶62} The judgment of the Portage County Court of Common Pleas, Probate/ Juvenile Division, is affirmed.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.