In re J.W.
Rendered on November 21, 2019
On brief: William T. Cramer, for appellant J.W., Jr.
On brief: Yeura Venters, Public Defender, and Robert D. Essex, for appellant J.W., Sr.
On brief: Robert J. McClaren, for appellee Franklin County Children Services.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
BEATTY BLUNT, J.
{1} In these consolidated appeals, appellant J.W., Jr. and appellant J.W., Sr. (“Father“) appeal the February 14, 2019 decision and judgment entry from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, terminating the parental rights of Mother1 and appellant J.W., Sr. and granting permanent custody of J.W., Jr. to Franklin County Children Services (“FCCS“).
{2} J.W., Jr. was born on February 20, 2008. J.W., Jr. has been in the continuous custody of FCCS since August 27, 2015 when a temporary order of custody was obtained. FCCS initially became involved when Mother arrived with the children2 at the Young Men‘s Christian Association (“YMCA“) shelter and advised they had been living in the woods. At that time, Mother agreed to place the children in respite care but failed to provide the medication J.W., Jr. required for his mental and physical health.
{3} On November 6, 2015, FCCS filed a complaint alleging that J.W., Jr. was a neglected child, pursuant to
{4} On January 26, 2016, J.W., Jr. was adjudicated dependent and in an entry filed February 1, 2016, the trial court issued a temporary court commitment (“TCC“) to FCCS. In the same entry, the trial court also adopted a case plan. The case plan required Mother to maintain contact with FCCS and the children, have a legal source of income and ensure the child‘s basic needs were met, complete an alcohol and other drugs (“AOD“) assessment, follow any recommendations from the AOD assessment, submit to drug screens, have stable housing, and sign all information releases requested by the agency. The case plan required Father to maintain contact with the children and FCCS, complete an AOD assessment, have proof of a legal source of income, and stable housing.
{5} On August 25, 2016, the court held an annual review hearing. At the hearing, the court extended the TCC for six months. In addition, the case plan was updated to require both Mother and Father to complete AOD assessments and follow through with any treatment recommendations, and to complete walk-in drug screens free of substance abuse. Further, Father was specifically required to refrain from engaging in illegal activity.
{6} On December 30, 2016, FCCS filed its motion seeking permanent custody of J.W., Jr.
{7} On June 13, 2017, counsel for Father filed a motion to appoint counsel for J.W., Jr. or, in the alternative, for the court to conduct an in-camera interview. On
{8} Subsequently, during a January 23, 2018 hearing, the GAL requested a continuance of the trial on the motion for permanent custody to give both Mother and Father an opportunity to commence inpatient drug rehabilitation programs to treat heroin addiction. The GAL noted that both children had a “strong, strong bond with the parents, especially the little boy.” Mother and Father joined the motion, FCCS opposed it, and the court granted the motion. The record does not indicate whether inpatient drug rehabilitation was ever completed by either Mother or Father.
{9} On February 12, 2019, the matter finally proceeded to trial. Father appeared via teleconference because he was incarcerated. Despite the fact that Mother had joined in the January 23, 2018 motion for a continuance of the trial on the motion for permanent custody, she failed to appear, and her attorney had already been granted leave to withdraw from the case based on lack of contact with or instructions from Mother. Further, Mother had missed all court dates since February 2018.
{10} At the trial, FCCS presented the testimony of Rochelle Gallagher, the FCCS caseworker. Jonathan Klein, the GAL, also provided testimony. No other testimony or evidence was presented.
{11} Ms. Gallagher gave testimony on the background of the case and explained the initial case plan that was developed as discussed above. She first testified as to the status of the case plan as it pertained to Mother and her essential lack of compliance with the case plan. She further testified that the last visit Mother had with J.W., Jr. was in September 2017 and the last telephone contact with him was in August 2018.
{12} Ms. Gallagher then gave testimony that Father did complete an AOD assessment but did not follow through with the recommended treatment, nor did he complete drug screens. She also explained that at the time of the trial Father was incarcerated on drug possession and forgery charges with an expected release date of December 2019. She further testified that prior to his incarceration, Father had failed to
{13} Ms. Gallagher then provided testimony concerning J.W., Jr. as follows. She testified he was originally hospitalized due to extreme mental health and behavioral concerns, and had been at Belmont Pines from December 2015 to December 2016, when he transferred to Hannah Neil, where he remained until June 2018. From June 2018 until August 2018 he was placed at St. Vincent, after which he was placed into a foster home. J.W., Jr. is bonded with his foster mother, but the foster home is not a potentially adoptive home.
{14} Gallagher further testified that J.W., Jr. has been diagnosed with attention deficit hyperactivity disorder (“ADHD“), chronic post-traumatic stress disorder (“PTSD“), a seizure disorder, a mood disorder, a developmental disorder and a pervasive learning disorder, and that he takes medications. He has issues with bullying others, bathroom and sanitary issues, stealing, and sexualized behavior. He goes to counseling weekly and also utilizes psychiatric services.
{15} Following the testimony of Gallagher, testimony was provided by Klein. He testified that he had been the GAL for J.W., Jr. and his sister since November 2017. He stated he had seen J.W., Jr. approximately eight times. He also testified he had observed one visit between J.W., Jr. and Mother and Father, that the visit went well and that they seemed bonded. The GAL testified that his recommendation was the motion for permanent custody be granted primarily based on the facts that Father was in prison and Mother could not be located.
{16} Immediately following the presentation of the foregoing evidence and the admission of exhibits, the trial court orally granted FCCS‘s motion without hearing closing arguments. Counsel for appellant J.W., Sr. formally objected to not being permitted to present a closing argument. Counsel for appellant J.W., Jr. did not make an objection. In ruling on the objection made by counsel for appellant J.W., Sr., the trial court stated “[c]losing arguments are not evidence, and since you didn‘t present any, the Court will take your objection under note, but that closing argument is not required because it is not evidence.”
{18} These timely appeals followed.
II. Assignments of Error
{19} Appellant J.W., Jr. raises one assignment of error in his appeal:
The trial court did abuse its discretion by granting the Franklin County Children Services Motion for Permanent Custody of the minor children.
{20} Appellant J.W., Sr. raises one assignment of error in his appeal:
The trial court abused its discretion to the prejudice of the appellant when it refused to allow appellant‘s counsel to make a closing argument depriving him of his right to the effective assistance of counsel and his right to Due Process under the Fourteenth Amendment and Article I, Section 16 of the Ohio Constitution.
III. Standard of Review
{21} A trial court‘s determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence. In re Andy-Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28; In re B.B.H., 10th Dist. No. 14AP-882, 2015-Ohio-2347, ¶ 14. “Judgments are not against the manifest weight of the evidence when all material elements are supported by competent, credible evidence.” In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8. Accordingly, an appellate court ” ‘will not overturn a permanent custody order when it is supported by competent, credible evidence.’ ” In re M.W., 10th Dist. No. 11AP-524, 2011-Ohio-6392, ¶ 20, quoting In re Siders, 10th Dist. No. 96APF04-413, (Oct. 29, 1996), citing In re Brofford, 83 Ohio App.3d 869, 876-77 (10th Dist.1992). Further, “[i]n reviewing a judgment granting permanent custody to FCCS under the manifest weight standard, ’ “an appellate court ‘must make every reasonable presumption in favor of the judgment and the trial court‘s findings of facts.’ ” ’ ” In re E.B., 10th Dist. No. 16AP-352, 2017-Ohio-2672, ¶ 19, citing In re K.M., 10th Dist. No. 15AP-64, 2015-Ohio-4682, ¶ 13, quoting In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8, quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. ” ‘[I]f 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, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988).
IV. Discussion
{22} “Parents have a constitutionally-protected fundamental interest in the care, custody, and management of their children.” In re H.D., 10th Dist. No. 13AP-707, 2014-Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of Ohio likewise has recognized the essential and basic right of a parent to raise his or her child. In re Murray, 52 Ohio St.3d 155, 157 (1990); In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28. “Parental rights, however, are not absolute, and a parent‘s natural rights are always subject to the ultimate welfare of the child.” In re E.B at ¶ 19, citing In re K.M. at ¶ 15, citing In re Cunningham, 59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the state may terminate the parental rights of natural parents when such termination is in the best interest of the child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694 (Sept. 25, 2000); In re Wise, 96 Ohio App.3d 619, 624 (9th Dist.1994).
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{25} Relevant to this appeal,
(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 * * *.
{26} In this case, it is undisputed that J.W., Jr. was in the temporary custody of FCCS for 12 or more months of a consecutive 22-month period. Thus, the statutory factor in
{27} Next, in determining the best interest of a child,
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether 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 * * *;
(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{28} In this case, the evidence at trial overwhelmingly supported the trial court‘s conclusion that granting permanent custody to FCCS was in J.W., Jr.‘s best interest. Under
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{32} Moreover, the trial court found that Mother had failed to appear for any hearing since February 2017, that Father is incarcerated with an expected release date of December 2019, and no relative had filed a motion for custody or had otherwise had an approved home study or ICPC. The foregoing findings are all supported by evidence in the record. Therefore, evidence in the record supported the trial court‘s conclusions that neither parent could meet the basic needs of the child, the child needs a legally secure permanent placement as required by statute and such a placement cannot be achieved without a grant of permanent custody to FCCS.
{33} Lastly, under
{34} In sum, the record demonstrates the trial court properly reviewed and weighed the evidence pertaining to all factors relevant to determining whether granting permanent custody to FCCS was in J.W., Jr.‘s best interest. Upon our review of all the evidence presented at trial in this case, we determine that there is competent and credible
{35} Furthermore, any error on the part of the trial court in not allowing closing argument by either appellant was harmless error. No prejudice to either appellant resulted from any purported error because presenting closing arguments would not have changed the outcome in this case. This is so because the evidence overwhelmingly supports the trial court‘s decision, and nothing counsel could have said during closing argument would have altered the ultimate conclusion in this particular case.
{36} Nevertheless, we are concerned by the fact that the trial court orally pronounced its judgment at the close of the hearing without affording counsel the opportunity to present closing arguments. We observe that we have stated previously that the better practice is to permit the parties to give a closing argument in a permanent custody hearing. In re Williams, 10th Dist. No. 00AP-973 (March 20, 2001) *11-12. We definitively reiterate this better practice in order to provide guidance for future proceedings.
{37} In conclusion, we overrule the assignment of error presented by appellant J.W., Jr., we overrule the assignment of error presented by appellant J.W., Sr., and we affirm the decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting permanent custody of J.W., Jr. to FCCS.
BROWN and BRUNNER, JJ., concur.
Judgment affirmed.