2004 Ohio 1296 | Ohio Ct. App. | 2004
{¶ 2} Appellant, Kimberly Leitwein, the child's natural mother, assigns the following error for review:
"The trial court erred in ordering permanent custody of Robert Leitwein to the Hocking County Children's Services Board as such was against the manifest weight of evidence."
{¶ 3} Appellant has four children: two are presently emancipated, one lives with an aunt and uncle, and the other is the subject of this appeal. Appellant has not played a significant maternal role in any of her children's lives.
{¶ 4} Appellant has not had physical custody of Robert since 1994, when he was two years old. The record contains allegations that Franklin County Children Services removed Robert from appellant's home, but no documentary evidence exists to support these allegations. Nonetheless, no dispute exists that Robert stopped living with appellant in 1994 and has not lived with her since. Instead, Robert has lived with his grandmother and other relatives.
{¶ 5} Beginning around the age of 5, Robert lived with his maternal aunt and uncle, Mike and Edith Meadows. In March of 2002, the Meadowses contacted HCCS and reported that they could no longer keep Robert in their home. On March 13, 2002, HCCS filed a complaint and alleged that Robert is a dependent child.
{¶ 6} The complaint specifically alleged that on March 11, 2002, HCCS caseworkers Carol Powers and Katie Williams met with the then nine-year old child. HCCS had received a referral that Robert had acted out sexually on the school bus and at home. Robert's four-year old sister reported that he touched her "private," i.e., vaginal area, with his hand. The caseworkers met with the Meadowses, who reported that Robert "is very aggressive, and on two different occasions held [his sister] underneath the water while swimming." They also stated that Robert had put a rope around his sister's neck. The Meadowses stated that they are fearful that Robert will harm his sister and continue to perform sexual acts. They stated that they "can no longer deal with [the child's] behaviors and do not want him in their home." The Meadowses subsequently admitted the dependency allegation.
{¶ 7} HCCS then attempted to implement a case plan for reunification. The Meadows stated that they would not accept Robert back into their home. No other suitable relatives existed and the whereabouts of the natural parents could not be determined. Thus, on March 28, 2003, HCCS filed a motion for permanent custody.
{¶ 8} On June 16, 2003, appellant entered her appearance in the case. On July 2, 2003, the guardian ad litem filed her report and stated that in June of 2003, appellant stated that she was willing to enter into a case plan for reunification. The guardian ad litem nevertheless recommended permanent custody. She stated:
"[The child] has had at a minimum a traumatic childhood. More pointedly, [the child] has had a horrible childhood replete with instances of abuse, neglect, abandonment, and disappointment. He has not recovered from these events. However, he has made progress. It is that progress and the hope for continued progress that I think of when I make this recommendation."
She asserted that Robert's progress "will only be impeded by attempts at starting visits and reunification efforts especially if mother were to falter during the process. I think that while [the mother] has good intentions, there is no assurance that she will follow through with her plans." She also noted that the child's counselor's "strongly" recommended "against [the child] having any contact with his mother at this time." She believes that "[the mother's] reappearance into his life would be extremely traumatic to this child and would likely cause significant psychological harm." The guardian ad litem further noted that she has not witnessed any evidence of bonding between Robert and appellant and that Robert does not relate "any happy memories of his mother." The guardian ad litem noted that Robert does, however, remember his mother's abuse and abandonment. The guardian further opined that only minimal evidence exists to suggest that appellant's lifestyle would be other than the instability she has displayed in the past.
{¶ 9} On September 18, 2003, the trial court held a hearing to consider HCCS's permanent custody request. Tri-County Mental Health social worker Sharon Kuss testified that on March 12, 2002 she first met Robert for a crisis intervention. She also saw Robert the next day for an intake after HCCS had received temporary custody. She also spoke with Robert's aunt and the appellant. She advised the court that she "cannot in good conscience recommend that [the child] either return to mom's care, or to be honest, at this point in time, even have visitation with mom. I think it could psychologically traumatize this child in the extreme."
{¶ 10} When asked whether the appellant should be allowed to re-enter the child's life, Kuss stated:
"At this point in time, understand that [the child] is really fragile. The only way he would be able to deal with mom re-entering his life is if he is in — if he has the security to be able to handle that and cope with it without it basically destroying his sense of self again. And that can't happen — it's kind of a catch-22 — until he is in an adoptive placement, been there, feeling secure, been there for quite some time because we are taking a pretty tremendous trauma to have mom re-enter his life. You know, [the child] has come to a very fragile adjustment to his parents not being a part of his life. And he's okay with that right now. But if we push on that at the moment, because he can't have a solid sense of security at this time because he knows he's not where he's going to be and we can't give him that until he's in a permanent place. And that's the only kind of safeguard that we could have to cushion the trauma the re-introduction of either mom or dad in his life."
Kuss does not believe that it would help Robert to currently enter counseling sessions with the appellant to ease into the relationship. Kuss also stated that she had asked Robert about his mother and while he stated that he might want to see her again, he did not state that he would like to live with her.
{¶ 11} HCCS social worker Ann Gadrim also testified that any reunification attempt with the appellant would be detrimental to the child.
{¶ 12} On September 26, 2003, the trial court awarded HCCS permanent custody. Appellant filed a timely notice of appeal.
{¶ 13} In her sole assignment of error, appellant argues that the trial court erred by awarding HCCS permanent custody. In particular, appellant asserts that (1) the record does not contain clear and convincing evidence to support the trial court's decision that awarding HCCS would serve Robert's best interests; and (2) before awarding HCCS permanent custody, HCCS should have attempted to reunify her with Robert. We disagree with appellant.
{¶ 14} A parent has a "fundamental liberty interest" in the care, custody, and management of his or her child and an "essential" and "basic civil right" to raise his or her children.Santosky v. Kramer (1982),
{¶ 15} R.C.
{¶ 16} R.C.
{¶ 17} When considering a motion for permanent custody, a trial court should consider the underlying principles of R.C. Chapter 2151:
(A) To provide for the care, protection, and mental and physical development of children * * *;
* * * *
(C) To achieve the foregoing purpose, whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interests of public safety.
R.C.
{¶ 18} We note that clear and convincing evidence must exist to support a permanent custody award. The Ohio Supreme Court has defined "clear and convincing evidence" as follows:
"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. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal."
In re Estate of Haynes (1986),
{¶ 19} Moreover, "an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusion of law." Id. Issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact. As the court explained inSeasons Coal Co. v. Cleveland (1984),
"The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony."
{¶ 20} R.C.
(a) The child is not abandoned or orphaned or has not 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 ending on or after March 18, 1999, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(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 ending on or after March 18, 1999.
{¶ 21} R.C.
* * * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
* * * *
(10) The parent has abandoned the child.
* * * *
(16) Any other factor the court considers relevant.
{¶ 22} A trial court may base its decision that a child cannot or should not be placed with either parent within a reasonable time upon the existence of any one of the above factors. The existence of one factor alone will support a finding that the child cannot be placed with either parent within a reasonable time. See In re William S. (1996),
{¶ 23} R.C.
{¶ 24} In the case at bar, we find ample competent and credible evidence to support the trial court's decision to award WCCS permanent custody of Robert. We first note that the trial court found that appellant demonstrated a lack of commitment by failing to regularly support, visit, or communicate with Robert. Appellant has not challenged the court's finding and evidence in the record clearly supports the finding. Appellant's relatives have cared for Robert since he was two years old. Since that time, appellant has not provided day-to-day care for Robert. For one year, she lived in Kentucky and had absolutely no contact with Robert. Again, the record amply demonstrates that Robert cannot or should not be placed with appellant within a reasonable time. See R.C.
{¶ 25} Next, the record contains competent and credible evidence to support a finding that granting HCCS would serve Robert's best interests. With respect to the first best interest factor, 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, the evidence shows that no maternal bond exists between Robert and his mother. The evidence further shows that Robert has adjusted well to his foster home.
{¶ 26} Regarding the second factor, the child's wishes, as expressed directly by the child or through the child's guardian ad litem, we note that the guardian ad litem recommended that the trial court award HCCS permanent custody. Additionally, as related by Kuss, Robert did not request that he be allowed to live with appellant.
{¶ 27} With respect to the third factor, the child's custodial history, Robert has not been in appellant's physical custody since he was two years old. Since that time, he has lived with his grandmother (until he was age 5) another relative for a short time, and then the Meadowses until March of 2002.
{¶ 28} The fourth factor, 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, further supports the trial court's decision to award WCCS permanent custody. The evidence reveals that Robert has abandonment issues and fears being abandoned yet again. To ease his abandonment fears, Robert needs a legally secure permanent placement where he feels safe and loved. Appellant's lengthy history of her inability or unwillingness to care for her children indicates that she will unlikely be able to care for Robert. Appellant has not shown a significant commitment to Robert and she has not fulfilled his emotional needs. For Robert to have a chance in life, he must be afforded an opportunity to develop in a stable and nurturing home. Appellant's past history establishes that she cannot provide Robert with an opportunity to successfully develop into a productive member of society. In fact, Robert's therapist stated that reuniting him with appellant would be detrimental to Robert's well-being. Additionally, no other suitable relative placements exist. Thus, the evidence supports the trial court's finding that a legally secure permanent placement cannot be achieved without a grant of permanent custody to HCCS.
{¶ 29} Appellant further argues that the trial court erred by concluding that HCCS used reasonable efforts. She asserts that HCCS did not use reasonable efforts because it did not implement a case plan to reunify Robert with her, but instead sought permanent custody of the child.
Children services agencies are statutorily required to develop case plans for children in their custody and the case plans should include objectives for each of the child's parents. See R.C.
{¶ 30} In the case at bar, HCCS did not develop a case plan to include appellant, Robert's natural mother. We note, however, that HCCS could not locate appellant until after it had filed the permanent custody motion. Furthermore, even when the agency possesses a duty to use reasonable efforts, courts have found an implied exception to mandatory case planning efforts when those efforts would be futile. "[T]here is no need to implement a reunification plan when it would be futile." Elmer v. LucasCounty Children's Services Board (1987),
{¶ 31} In the case at bar, we agree with the trial court's conclusion that any attempt at reunification would have been futile. Appellant has had little to no contact with Robert for approximately eight years. She has relinquished the right to care for the child to other relatives. She has simply sat on her parental rights for eight years and now wishes to enter her biological child's life. All HCCS affiliated workers stated that appellant's return to Robert's life would further traumatize the child, at a time when he is beginning to cope with his feelings of abandonment. Robert has not expressed any strong feelings for appellant and does not recall many positive memories. For HCCS to attempt to reunify Robert with his biological mother would simply frustrate the child's progress. As Kuss stated, Robert first needs a stable and nurturing home before he can even begin to think about establishing any type of relationship with his biological mother.
{¶ 32} Under the circumstances present in the case sub judice, we readily agree with HCCS and the trial court that any attempt at reunification would be futile. See, generally,Norris, supra.
{¶ 33} Furthermore, courts have recognized that: "`* * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * [parent] an opportunity to prove her suitability. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child's present condition and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * The law does not require the court to experiment with the child's welfare to see if he will suffer great detriment or harm.'"
In re Bishop (1987),
{¶ 34} Accordingly, based upon the foregoing reasons, we overrule appellant's sole assignment of error and affirm the trial court's judgment.
Judgment affirmed.
Harsha, J. Evans, J.: Concur in Judgment Opinion.
(7) The parent has been convicted of or pleaded guilty to one of the following:
(a) An offense under section
(b) An offense under section
(c) An offense under division (B)(2) of section
(d) An offense under section
(e) A conspiracy or attempt to commit, or complicity in committing, an offense described in division (E)(7)(a) or (d) of this section.
(8) The parent has repeatedly withheld medical treatment or food from the child when the parent has the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent withheld it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual means through prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued pursuant to section
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated pursuant to this section or section
"Under certain circumstances, R.C.
The distinction between a complaint requesting permanent custody pursuant to R.C.
This court, however, has previously held that a trial court must enter an R.C.
"While we have previously ruled that a reasonable efforts determination was not required under a motion for permanent custody, see In re Rowe (Jan. 30, 1998), Scioto App. No. 97CA2592, unreported, the current version of R.C.
Under R.C.