In re K. S.
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James A. Hammer and Joel Kuhlman, for appellant.
Paul A. Dobson, Wood County Prosecuting Attorney, and Charles Bergman, Assistant Prosecuting Attorney, for appellee.
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HANDWORK, J.
{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas, Juvenile Division, which terminated appellant‘s parental rights to her son, K. S., born December 15, 2004, and awarded permanent custody to the Wood County Department of Job and Family Services (“WDJFS“).
{¶ 2} On July 29, 2005, WDJFS filed a complaint in dependency and moved for temporary custody of K.S. and his half-brother, who is not involved in the instant appeal. On September 1, 2005, the juvenile court found K.S. and his half-sibling to be dependent children. The judge further ordered WDJFS to provide protective supervision of the
{¶ 3} Pursuant to her case plan, appellant was to obtain an anger management assessment at Behavioral Connections of Wood County and to submit to random toxicology screens. Appellant was also ordered to get a drug and alcohol assessment at Behavioral Connections of Wood County. However, she failed to appear for her appointments and was not assessed until February 1, 2006. A toxicology screen was performed on that date, and appellant tested positive for cocaine. It was recommended that appellant receive intensive outpatient treatment, but she did not follow up on the services to be provided to her, and her case was closed by that drug treatment facility.
{¶ 4} Protective supervision of appellant‘s children continued for the next several months. On March 20, 2006, WDJFS filed a motion for temporary custody of K.S., asserting that appellant was arrested for possession of cocaine and that K.S. was present in the car at the time of his mother‘s arrest. As a result of this incident, appellant was found guilty of child endangering and of attempted possession of cocaine. She was placed on probation. About the same time as appellant‘s arrest, one of her toxicology screens tested positive for cocaine.
{¶ 5} On March 23, 2006, temporary custody of K.S. was awarded to WDJFS, and he was placed in foster care. Appellant was ordered to obtain a drug and alcohol assessment, an anger management assessment, and to submit to random drug testing
{¶ 6} In March 2007, appellant entered a guilty plea to one count of failing to comply with the order or signal of a police officer, a felony of the fourth degree, and one count of child endangerment, also a felony of the fourth degree. She was sentenced to a total of one year in prison. Between January and September 2006, the month she was imprisoned, appellant was asked to submit to 17 random toxicology screening tests. Of this number, she appeared for ten. Of the random tests that appellant did take one registered positive for cocaine; two of the other tests evidenced traces of cocaine in her urine2.
{¶ 7} After she was released from prison on October 10, 2007, WDJFS provided appellant with another opportunity to reunify with K.S. and his half-brother. Her reunification plan again included an alcohol and drug assessment, as well as requiring
{¶ 8} In November 2007, Melissa Tokar, appellant‘s caseworker, told appellant that if she continued to miss her appointments for toxicology screens over the next three weeks, the agency would file a motion for permanent custody of her children. Due to appellant‘s continued noncompliance with her case plan, WDJFS filed a motion for permanent custody of K.S. on April 2, 2008. Because the hearing on this motion was subsequently continued at appellant‘s request to a date falling beyond the 120 day period mandated by
{¶ 9} At the permanent custody hearing evidence was offered to show that from October 2007 to December 2008, appellant missed 70 percent of her random toxicology screens. She also attended visitation with her children only 57 or 58 percent of the time. Appellant never underwent the third drug and alcohol assessment at Behavioral Connections. She was currently residing in Toledo, Lucas County, Ohio. In September 2008, appellant gave birth to her third child, who was approximately two months old at the time of the hearing. Appellant was working part-time at the International House of
{¶ 10} On January 5, 2009, the juvenile court entered a judgment in which it terminated appellant‘s parental rights and the parental rights of his father. The court awarded permanent custody of this child to WDJFS. The trial judge made a specific finding that K.S.‘s father had abandoned him within the meaning of
{¶ 11} “The trial court erred in determining that Appellant Mother‘s parental rights should be terminated, and the State of Ohio‘s Motion for Permanent Custody should be granted, pursuant to Section 2151.353, Section 2151.413, and Section 2151.414 of the Ohio Revised Code.”
{¶ 12} We start with the precept holding that parents have a constitutionally protected fundamental interest in the care, custody, and management of their children. Santosky v. Kramer (1982), 455 U.S. 745, paragraph one of the syllabus. Thus, parents have essential and basic civil rights to raise their own children. In re Murray (1990), 52 Ohio St.3d 155, 157. These rights, however, are not absolute. In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, ¶ 11. Parental rights are completely subject to the ultimate welfare of a child. In re Cunningham (1979), 59 Ohio St.2d 100, 106. Nevertheless, before a juvenile court can terminate parental rights and award permanent custody to a public or private children services agency, it must find that clear and convincing evidence supports
{¶ 13} Under
{¶ 14} In reaching its determination of whether a child cannot be placed with either or both parents within a reasonable period of time or should not be placed with either or both parents, a court is guided by
{¶ 15} The juvenile court must then also decide that, pursuant to the factors set forth in
{¶ 16} Appellant first claims, in essence, that the trial court was required to find that the exact same
{¶ 17} “In determining at a hearing * * * whether a child cannot be placed with either parent within a reasonable time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines by clear and convincing evidence * * * that one or more of the following [conditions] exist as to each parent * * *.”
{¶ 18} The use of the words “either” and “each” refers to each parent individually. See “each” Merriam-Webster Online Dictionary. 2009. http://www.merriam-webster.com (“being one of two or more considered individually“); “either” Merriam-Webster Online Dictionary. 2009. http://www.merriam-webster.com (“being the one or the other of two“). Thus, the trial court could, and did, find that different conditions listed in
{¶ 19} Moreover, clear and convincing evidence, as set forth infra, was offered to show that the conditions in
{¶ 20} Appellant also maintains that the trial court failed to discuss all of the enumerated factors set forth in
{¶ 21} Before granting permanent custody a court must find that a termination of parental rights is in the child‘s best interest. In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56. In reaching this finding, the court is required to consider all relevant factors, but does not need to express that consideration in its judgment entry. In re Nicholas A., 6th Dist. No. L-04-1303, 2005-Ohio-2104, ¶ 23 (Citations omitted.). These factors include, but are not limited to:
{¶ 22} “(1) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child;
{¶ 23} “(2) 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;
{¶ 24} “(3) The custodial history of the child;
{¶ 25} “(4) 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.
{¶ 26} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶ 27} Our review of
{¶ 28} Consequently, appellant‘s sole assignment of is found not well-taken. The judgment of the Wood County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A).
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Arlene Singer, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.