In re L.M.
Rendered on November 9, 2010
John J. Peden, for appellant.
Susan M. Kawalec and Robert J. McClaren, for appellee Franklin County Children Services.
Daniel Fletcher, Guardian ad Litem.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
CONNOR, J.
{¶1} Appellant, L.M. (“appellant” or “mother“), appeals from two judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which terminated her parental rights and awarded permanent custody of her two
{¶2} On or about October 16, 2008, FCCS received a professional referral alleging L.M. I was an abused child. As a result, FCCS filed complaints alleging L.M. I was an abused, neglected and dependent child, and L.M. II was a dependent child. A temporary order of custody was granted to FCCS regarding both children. Because these temporary orders of custody were due to expire by operation of law, the complaints were dismissed and re-filed on January 13, 2009 and FCCS was again granted temporary custody.
{¶3} The re-filed complaints alleged that on October 12, 2008, L.M. I, age four months at that time, was transported to Children‘s Hospital due to unresponsiveness and subsequently suffered seizures. Testing revealed L.M. I‘s sodium levels were extremely low. Mother admitted to feeding L.M. I with diluted formula. This, along with diarrhea, likely caused L.M. I‘s low sodium levels (hyponatremia) and seizures. This incident marked L.M. I‘s fourth admission to the hospital with symptoms of uncertain etiology. The complaints also alleged mother did not have stable housing or a source of income. The complaints further alleged mother has a history with FCCS dating back to 2000, and has an older child in the legal custody of a relative.
{¶4} Pursuant to a hearing held on April 8, 2009, L.M. II was found to be a dependent minor and L.M. I was found to be an abused minor. Orders of temporary court commitment were granted to FCCS on that date. The magistrate journalized these findings pursuant to entries filed on April 15, 2009.
{¶6} On August 28, 2009, FCCS filed motions for permanent custody. Amended motions for permanent custody were subsequently filed on January 15, 2010. In the amended motions, FCCS alleged, inter alia, the following: the children were abandoned; the children have been in the temporary custody of FCCS for 12 or more months of a consecutive 22-month period; the children cannot be placed with either parent within a reasonable time or should not be placed with either parent; mother failed to complete various case plan objectives, which included obtaining employment as well as stable and independent housing, and utilizing medical, psychiatric, psychological, or other resources made available to her for the purpose of changing her conduct in order to allow her to resume parental duties.
{¶7} A trial on the motion for permanent custody was held on the following non-consecutive days: March 18, March 29, March 31, and April 6, 2010. Both mother and the alleged father of L.M. I were present and represented by counsel. The alleged father of L.M. II was not present, although the record demonstrated proof of publication had been completed.
{¶9} On April 19, 2010, after considering the testimony and evidence presented, the trial court issued judgment entries terminating the parties’ parental rights. Specifically, the juvenile court found, by clear and convincing evidence, that the children had been in the custody of FCCS for 12 months or more of a consecutive 22-month period and that it was in the best interest of the children to grant permanent custody to FCCS.
{¶10} Appellant filed a timely appeal asserting the following assignments of error for our review:
Assignment of Error – I
The Trial Court committed reversible error when it failed to consider the best interest of the children by not acting on requests from two different relatives for custody of the children.
Assignment of Error – II
The Trial Court committed an abuse of discretion by arbitrarily choosing to hear the motion for permanent custody and mak[ing] no ruling as to the two pending motions for custody from independent parties. This amounts to reversible error.
{¶11} 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. Permanent custody judgments which
{¶12} An appellate court should not substitute its judgment for that of the trial court when there is competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court. State v. Schiebel (1990), 55 Ohio St.3d 71, 74. Clear and convincing evidence is 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. In re Abram, 10th Dist. No. 04AP-220, 2004-Ohio-5435. Clear and convincing evidence does not mean the evidence must be clear and unequivocal, nor does it require proof beyond a reasonable doubt. Id. The reviewing court must weigh the evidence in order to determine whether the trier 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. In re R.L., 10th Dist. No. 07AP-36, 2007-Ohio-3553, ¶6, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52.
{¶13} ” ‘The discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.’ ” In re Hogle (June 27, 2000), 10th Dist. No. 99AP-944, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316.
{¶15} A decision to award permanent custody requires the trial court to conduct a hearing and make a two-part finding. A trial court may grant permanent custody of a child to an agency if the court determines, by clear and convincing evidence, that: (1) it is in the best interest of the child; and (2) that one of the following factors set forth under
{¶16} As stated above,
{¶17} Here, appellant does not challenge the trial court‘s finding under
{¶18} Appellant‘s aunt, Janet Greene, filed a motion for legal custody of L.M. II and L.M. I on March 18, 2010, less than two hours before the permanent custody hearing was scheduled to begin. At the hearing, the juvenile court informed Ms. Greene that the permanent custody motion would be heard first, and if that motion was denied, her motion for custody would be addressed. Then, on March 22, 2010, prior to the beginning of the second day of trial, Darlene Hicks, the mother of appellant and the maternal grandmother of the children, filed a motion for custody. The trial court made a similar determination with respect to the priority of Ms. Hicks’ motion for legal custody and proceeded with the permanent custody motion filed by FCCS.
{¶19} Appellant now argues the juvenile court should have considered the custody motions of the relatives at the hearing, prior to making a final determination on the permanent custody motion. Appellant submits that new evidence in a trial can be
{¶20} In response to mother‘s arguments, FCCS submits mother lacks standing to assert any claims filed on behalf of her nonappealing, nonparty relatives. Even if mother did have standing to assert these claims, FCCS asserts appellant‘s trial counsel had a full opportunity to question mother‘s relatives in order to demonstrate their suitability for custody and counsel was unable to show that they were suitable. Additionally, FCCS argues the trial court is not required to explicitly rule upon the relatives’ motions for legal custody, nor is the trial court required to consider placing a child with a relative prior to granting permanent custody. Based upon testimony presented at the hearing, which revealed Ms. Greene and Ms. Hicks were not suitable for custody, FCCS asserts the trial court properly exercised its discretion in failing to grant either relative‘s motion for legal custody. Furthermore, FCCS argues the juvenile court properly analyzed the best interest factors and determined permanent custody was in the best interest of the children.
{¶21} Despite appellant‘s statement to the contrary, appellant‘s first assignment of error appears to assert the purported rights of Ms. Greene and Ms. Hicks to pursue
{¶22} Although appellant cites to In re Smith (1991), 77 Ohio App.3d 1, for the proposition that an appealing party may assert an error against a nonappealing party when the error is prejudicial to the rights of the appealing party, we find that case to be distinguishable from the instant case. In Smith, the interests of the appellants-parents were aligned with the interests of five of their children, all of whom sought reunification. However, the guardian for the children, who also served in a dual capacity as attorney for the children, was not recommending that the children be returned to their parents. Thus, the interests of the Smith children were prejudiced by the lack of separate counsel and because those interests were the same as the interests expressed by the Smith parents, the parents were found to have standing to assert the issue as an assignment of error. Such is not the case here, since the children are too young to express their wishes, and thus there can be no conflict.
{¶24} In her second assignment of error, appellant argues that the juvenile court abused its discretion by arbitrarily choosing to hear the motion for permanent custody prior to hearing the motions for legal custody filed by the two relatives and by failing to explicitly rule on those two motions.
{¶25} “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151. Because the juvenile court is not required to make a determination regarding a relative‘s motion for legal custody prior to granting permanent custody to an agency, we find the trial court‘s decision to first address the permanent custody motion was not arbitrary and therefore did not constitute an abuse of discretion.
{¶27} Mother complains that Ms. Greene and Ms. Hicks were not joined as parties, were not allowed to participate in the hearing, and were not appointed counsel. However, both motions for legal custody were filed at the “eleventh hour.” Ms. Greene‘s motion was filed less than two hours before the hearing was to begin and Ms. Hicks’ motion was filed after a day of testimony and evidence had already been heard. Furthermore, a trial court has wide discretion in determining the parties to a juvenile court action. See In re D.T. at ¶13. Appellant has cited to nothing which required the trial court to allow Ms. Greene or Ms. Hicks to intervene or to be joined as parties. In addition, although the trial court did not explicitly make a ruling with respect to Ms. Greene‘s and Ms. Hicks’ motions, which essentially requested that they be joined as parties and considered for custody,1 by failing to rule on said motions, the trial court, in effect, denied the motions. See Vahdati‘bana v. Scott R. Roberts & Assoc., L.P.A., 10th Dist. No. 07AP-581, 2008-Ohio-1219.
{¶28} Furthermore, although the trial court did not join Ms. Greene or Ms. Hicks as parties or specifically hear their motions for legal custody simultaneously with the motion for permanent custody, the trial court did hear testimony about these relatives, their involvement with the children, and the suitability for custody. Michelle McKarn, the FCCS caseworker involved with the family, testified that Ms. Green had previously been
{¶29} In addition, the caseworker testified that she had contacted Ms. Hicks twice during the pendency of the case to determine whether Ms. Hicks was interested in having the children placed in her care. However, both times Ms. Hicks indicated she did not want custody of L.M. II and L.M. I The caseworker testified that she had this discussion with Ms. Hicks early in the case after the children were removed and then again in May 2009. Ms. Hicks admitted that she had known for nearly a year that FCCS intended to seek permanent custody of the children. She also admitted that she was never very close to L.M. I and that since this case has been pending, she had only visited with the children on two occasions. In addition, she conceded she was not familiar with the specifics of L.M. I‘s special needs, although she did indicate she was willing to learn about them in order to take care of him.
{¶30} Moreover, the Guardian ad Litem pointed out that Ms. Greene and Ms. Hicks both lacked insight into the special needs of the children, suggesting it was not in the best interest of the children to be placed with either relative.
{¶31} Therefore, although the trial court did not actually hear the relatives’ motions for legal custody, it is evident that the trial court heard testimony about the suitability of these relatives at the same time that it heard evidence regarding mother‘s failure to complete various components of the case plan, as well as her lack of understanding of L.M. I‘s special needs, particularly his feeding issues.
{¶33} As to the fifth factor listed above, the factors set forth in
{¶34} Here, we find the trial court properly analyzed, applied, and considered the best interest factors. The trial court analyzed the “bond” the children had with the mother, the foster mother, grandmother, and the great aunt. Based upon the testimony
{¶35} These findings are supported by the evidence and testimony presented during the hearing. In addition to the discussion of the testimony set forth above, the record also demonstrates that both children have made amazing strides since their placement with the foster family. The foster mother testified that when L.M. II first came to live with them, she was assessed as having a large adaptive behavior delay, a speech delay, and a low cognitive score. Once she began attending an MRDD preschool and was placed in a structured environment with a regular routine, she overcame her speech delay and her cognitive skills were no longer affected. In addition, the caseworker testified that L.M. II was previously a very frightened child who has now developed into a child who will readily engage with the caseworker and who has a very strong bond with her foster family. The caseworker also indicated L.M. II identifies her foster home as her home and cares for and trusts her foster parents and looks to them for attention, comfort, and questions.
{¶37} Based upon all of this testimony, the trial court‘s findings that L.M. I is too fragile to risk being placed with a family member recognizes that it is not in his best interest to be placed with family members who are completely unfamiliar with his special needs and with the commitment required to meet them, and that L.M. I and L.M. II should remain together, due to their strong bond and his special needs. Furthermore, given mother‘s family‘s failure to express any interest in being involved until the “eleventh hour,” mother‘s failure to complete certain objectives in the case plan and to remedy the problems which initially caused the children to be placed outside the home, and the children‘s need for legally secure placement that will meet L.M. I‘s special needs and allow them to continue to make progress and thrive, the trial court‘s findings in applying the best interest factors are supported by the record.
Judgments affirmed.
BROWN and KLATT, JJ., concur.
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