2005 Ohio 3285 | Ohio Ct. App. | 2005
{¶ 2} J.Z. was born on November 7, 1997 and is appellant's only child. At the time of his birth, appellant was living with her mother, B.T. The living arrangement was not harmonious, as appellant and her mother both suffered with mental health issues. Specifically, in June 1997, appellant threw a trophy at her mother, giving rise to a charge of domestic violence against appellant. The charges ultimately were resolved with appellant's entering a plea to criminal mischief and being ordered to anger management counseling through a local mental health agency.
{¶ 3} The anger level in the household subsided for a period of time, but for the month preceding November 6, 2002, appellant's mother called the police virtually daily regarding incidents at the home. At least part of the disagreement arose out of appellant's dissatisfaction with the care her mother rendered to J.Z. On November 6, 2002, angered at seeing her son ready to enter the truck of a telephone repairman, appellant hit her mother on the head with a pan. Both parties to the argument suffered physical injury.
{¶ 4} Appellant's mother left the home to summon the police. When the police arrived, appellant had both a shotgun and a gun at hand. Allegedly firing one of them at the police, appellant then received fire in return. At one point in her testimony, appellant stated J.Z. was in his bedroom at the time of the gunfire; at another point she stated he was with her; reports to FCCS indicated she held J.Z. hostage during the ordeal. In any case, J.Z. was in the home and at the least able to hear what was occurring, as was true during the fights that routinely broke out between appellant and her mother.
{¶ 5} The November 6, 2002 incident gave rise to felonious assault charges against appellant, to which she entered a guilty plea that resulted in a sentence of three years incarceration. Held in custody from November 6, 2002, appellant was given 256 days of jail credit at the time of her July 2003 sentencing and is expected to be released from the Ohio Reformatory for Women in November 2005. Following her release, she anticipates spending three months in a halfway house.
{¶ 6} On November 7, 2002, FCCS filed a complaint in the trial court, alleging J.Z. was an abused, neglected or dependent child and seeking either temporary custody or permanent commitment pursuant to R.C.
{¶ 7} On March 6, 2003, J.Z. was found to be a neglected and dependent minor and was temporarily committed to the custody of FCCS. Four months later, on July 25, 2003, FCCS filed a motion for permanent custody. The matter was heard before the trial court on November 22, 2004 and November 30, 2004 and resulted in a decision, including findings of fact and conclusions of law, that awarded permanent custody of J.Z. to FCCS. Appellant appeals, assigning two errors:
{¶ 8} Appellant's first assignment of error asserts the judgment of the trial court lacks sufficient competent credible evidence to support it.
{¶ 9} It is well recognized that the right to raise a child is a basic and essential civil right. In re Hayes (1997),
{¶ 10} In order to terminate parental rights, the movant must demonstrate by clear and convincing evidence that (1) termination is in the child's best interests, and (2) one of the four factors enumerated in R.C.
{¶ 11} R.C.
{¶ 12} According to the facts presented at the November 2004 hearing on FCCS' motion for permanent custody, a case plan was developed to assist in reunification of appellant with J.Z. Specifically in November 2002, a caseworker from the Ohio Youth Advocate Program, the agency with which FCCS contracted to provide services in this case, was assigned to J.Z.'s case. At the time, J.Z. had been in foster care for about a week or two.
{¶ 13} The caseworker, Kristine Monroe, testified she met with appellant two times and went over the case plan with her. According to Monroe, the case plan provided that J.Z. be evaluated for an appropriate school environment and that he receive a psychological assessment, a psychiatric assessment, and counseling to address some of the incidents leading to the case opening. As to appellant, the case plan required that she complete a psychological evaluation, and if recommended, a psychiatric evaluation. It further specified that appellant complete counseling to address domestic violence and women's empowerment issues, and then complete parenting classes as well. Because at the time the case plan was developed both the father and the maternal grandmother had expressed an interest in having custody of J.Z., the plan required the grandmother to complete a psychological evaluation and both adults to participate in visitation with J.Z.
{¶ 14} In her capacity as the caseworker, Monroe met with appellant two times, in December 2002 and March 2003. The December meeting was to obtain necessary information about J.Z. in order to administer appropriate medication to him. According to Monroe, when she first received the case, J.Z. "would make remarks about blood, make remarks about killing people. He was extremely, extremely hyperactive, pretty much impossible to control to the point where we felt that if we were not able to administer medication that he would likely end up in a residential treatment center." (Nov. 22, 2004 Tr. 53-54.) Monroe discussed the plan with appellant in detail, including the things appellant would need to do to try to be reunited with her son. Appellant expressed an interest in working through whatever issues would be necessary to achieve reunification.
{¶ 15} Several months after the March meeting, however, appellant was sentenced to three years imprisonment as a result of the felonious assault charges involving her mother. About the same time, Monroe was removed as caseworker because the matter was staffed for permanent custody proceedings and returned to the purview of FCCS. At that time, Amanda Bachor became the caseworker.
{¶ 16} According to Bachor, she received the case in July 2003 and met with appellant on one occasion. Bachor received letters from appellant, had a telephone conversation with her, and had one conversation with a social worker at Jackson Pike. In addition, Bachor mailed to appellant case updates with the reviews, as well as a letter regarding J.Z.'s progress. In addition to the details of the case plan Monroe testified to, Bachor specified that the plan required that J.Z.'s basic needs be met, that he be in appropriate educational schooling due to his special needs, and that appellant establish income, stable housing, and a safe environment with utilities.
{¶ 17} Given that evidence, the trial court determined pursuant to R.C.
{¶ 18} While appellant's contentions are grounded in at least some of the language of R.C.
{¶ 19} Even if, however, the trial court wrongly interpreted R.C.
{¶ 20} Specifically, the evidence showed that appellant failed to successfully complete any of the significant elements of her case plan, despite some progress in a few areas. In re Brofford (1992),
{¶ 21} Nonetheless, the evidence at first blush suggests a possible alternate placement through appellant's mother or the child's father. Neither, however, provides a feasible placement according to the evidence. Specifically, Glen Ransom, the putative father, filed a motion regarding J.Z. and appeared at the first day of the evidentiary hearing on FCCS' motion for permanent custody. At that time, he requested DNA testing to conclusively determine his status as J.Z.'s father. When the trial court refused the testing at such a late date in the proceedings, Ransom left the proceedings and did not return. Nor does the evidence suggest Ransom's compliance with the terms of the case plan.
{¶ 22} Similarly, appellant's mother is not a suitable placement for J.Z. According to the evidence, her own mental health issues preclude her rationally addressing J.Z.'s needs and, indeed, appellant does not want J.Z. placed with her mother.
{¶ 23} Given the foregoing, the trial court properly concluded that J.Z. cannot or should not be returned to either parent within a reasonable time under R.C.
{¶ 24} In addition to a finding pursuant to R.C.
{¶ 25} Here, both the guardian ad litem and the attorney for the child requested that the motion for permanent custody be granted. Although the guardian ad litem attempted to insert the child's expressed wishes into the closing argument of the hearing, the trial court precluded the argument because evidence to that effect was not presented during the hearing. Nonetheless, the evidence presented unequivocally indicates J.Z. has progressed as a result of the time spent with his foster family and is primarily bonded to a foster parent who is interested in adopting him. In addition, permanent custody is the only available avenue that provides J.Z. a secure and permanent placement. Not only does permanent custody enable FCCS to pursue adoption, but even at the time of the dispositional hearing, appellant would not be available to J.Z. for nearly 15 months due to her sentence and subsequent placement in a halfway house following her release from prison.
{¶ 26} In the final analysis, the trial court properly concluded that termination of parental rights is in the best interests of J.Z. Appellant's incarceration precludes her from providing an adequate and permanent home for J.Z.J.Z. has progressed in foster care and has an opportunity to be adopted in a foster home where he has bonded with the parent, an opportunity that would be lost absent termination of parental rights. The trial court properly determined his best interests support granting the motion for permanent custody.
{¶ 27} For the foregoing reasons, appellant's first assignment of error is overruled.
{¶ 28} Appellant's second assignment of error asserts the trial court erred in precluding appellant's counsel from conducting direct examination of appellant immediately after the conclusion of FCCS' examination of appellant.
{¶ 29} The record, however, does not support appellant's contentions. At the conclusion of the examination of appellant, FCCS' counsel announced she had no further questions. When the trial judge indicated the witness could step down, appellant's attorney stated: "Your Honor, would — would — would the bench prefer me to recall her on — in my case-in-chief?" (Nov. 22, 2004 Tr. 47.) When the trial judge replied that he would, counsel for appellant responded, "Thank you, Your Honor, will do." Id. With that, counsel for FCCS called its next witness.
{¶ 30} Contrary to the suggestion in appellant's assignment of error, counsel never requested the opportunity to directly examine appellant at the conclusion of the cross-examination conducted through FCCS' counsel. Instead, counsel asked the trial court's preference, the trial court indicated its preference, and counsel for appellant acceded to that preference. Because counsel failed to either request the opportunity to directly examine appellant or to object to the trial court's response to counsel's inquiry, appellant has waived any error in the trial judge's manner of handling that aspect of the proceedings. Moreover, given the latitude granted a trial judge in conducting a trial, appellant has fallen short of proving plain error in the trial judge's response.
{¶ 31} Appellant's second assignment of error is overruled.
{¶ 32} Having overruled both of appellant's assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
French and McGrath, JJ., concur.