In re M.J.
Carol G. Grasgreen, 5061 Glenn Lodge Road, Mentor, OH 44060 (For Appellant Stacey Schreiber).
Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, L.P.A., 34 South Chestnut Street, Suite 100, Jefferson, OH 44047-1092 (For Appellee Ashtabula County Children Services Board).
Jodi M. Blankenship, 302 South Broadway, Geneva, OH 44041 (Guardian ad litem for Minors).
Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (Guardian ad litem for Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Stacey Schreiber, seeks review of the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, terminating her parental rights and granting permanent custody of her three children to appellee, Ashtabula County Children Services Board (“ACCSB“). For the following reasons, we affirm the decision of the trial court.
{¶3} On August 10, 2009, ACCSB obtained an ex parte emergency telephone order granting ACCSB custody of the three children. The juvenile court determined there was probable cause to believe the children were suffering from illness or injury and were not receiving proper care, and the removal of the children was necessary to prevent immediate or threatened physical or emotional harm.
{¶4} On August 11, 2009, ACCSB filed a complaint alleging all three children to be dependent children as defined in
{¶5} An emergency shelter care hearing was held and probable cause was found to remove all three children from their parents. Temporary custody remained with ACCSB.
{¶6} ACCSB filed an amended case plan with the juvenile court and, on October 9, 2009, an adjudicatory hearing was held. The parties stipulated to a finding of dependency.
{¶7} On November 30, 2009, a dispositional hearing was held, and it was ordered that the children remain in the temporary custody of ACCSB.
{¶9} At the hearing, ACCSB presented the testimony of Lori Merkel, an intake worker; Andre Miller, the ongoing case worker; Karla Vazquez, a case manager at Signature Health; David Carpenter, a case worker; Rick Armstrong, the supervisor of David Carpenter; Stacy Schreiber, the children‘s biological mother; Judith Catron, a worker with Help Me Grow; Elaine Hunt, a case aid; Kelly Benoit, the foster mother; and Attorney Jodi Blankenship, the children‘s guardian ad litem.
{¶10} To comply with the case plan, Ms. Schreiber and Mr. Johnson were required to obtain/maintain housing and utilities that can accommodate the children, provide verification of housing, keep their rent and utility bills current, and cooperate with Help Me Grow services with regard to budgeting and household maintenance issues. Additionally, Ms. Schreiber was to have a psychological evaluation and follow any recommendations, maintain and keep all necessary appointments, and provide any necessary releases of information. Case management services were offered to the family.
{¶11} At the hearing, Ms. Merkel stated that she received this case in September 2008 due to the following concerns: the family‘s electricity was being turned off, the condition of the family‘s home, and possible domestic violence. During the testimony of Ms. Merkel, she stated that when she first met the family, they were living in an apartment with electrical issues, a broken window, and mold on the walls. Ms. Merkel learned that the children‘s father‘s unemployment benefits had lapsed, and the
{¶12} Mr. Miller, the ongoing case worker, testified that this case was transferred to him by the intake unit and he managed the case for approximately two months. Mr. Miller stated that the family‘s living conditions were a concern—the utilities were not on, water was leaking through the roof, and the family was in the process of being evicted. It was a goal for the family to achieve stable housing. In addition to the aforementioned services, Mr. Miller stated that ACCSB was working with the family to obtain public housing through Ashtabula Metropolitan Housing Authority. Due to his caseload, the case was transferred to David Carpenter, a new ongoing case worker.
{¶13} Mr. Carpenter testified that one of the goals of the case plan was to maintain the children in the home. Mr. Carpenter stated ACCSB worked with the family for approximately six months prior to the agency receiving emergency temporary custody of the children. During those six months, ACCSB provided the following services: case management, transportation for Ms. Schreiber, temporary housing for Ms. Schreiber, assisting Ms. Schreiber in obtaining a photo ID and social security card, food vouchers, and paid for a two-week stay at a hotel to allow the parents the ability to look for stable housing. Further, Mr. Carpenter noted that during this six-month period, the family lived in six different residences, none of which was independent, stable housing. Mr. Carpenter testified it was difficult to stay in contact with Ms. Schreiber
{¶14} On May 11, 2009, ACCSB required court involvement. ACCSB was concerned for the safety and well-being of the children, in addition to the aforementioned concerns. At this time, the youngest child, M.J., was sick and the parents had not provided her with the proper antibiotics. The children were placed in a licensed foster home and supervised, weekly visits were arranged with the biological parents at Rooms to Grow.
{¶15} Although the parents were notified of the first visit, they failed to attend. The parents attended the next visit, scheduled June 25, 2009. ACCSB addressed transportation issues with the parents, explaining bus access and offering them reimbursement in the form of gas cards for any ride the parents were able to receive to attend the visits. ACCSB also explained to the parents that they were to call the night before or the morning of the visit to confirm the visit. This policy was to ensure that the children were not unnecessarily picked up at the foster family‘s house and transported to Rooms to Grow, as there was limited space at the facility.
{¶16} The parents did not call or attend the following visits: July 2, July 9, and July 16, 2009. Mr. Carpenter testified that if parents fail to call or fail to attend two consecutive visits, the visits are canceled and rescheduled upon the parents’ request. However, in this case, ACCSB wanted to ensure the parents visited with their children regardless of their limitations and thereby extended the no call/no show policy to three visits. On July 23 and July 30, 2009, the visits were canceled due to the children having
{¶17} The parents did not call or attend the following scheduled visits: December 17, December 24, December 31, and January 7. On March 15, 2010, the parents did not call; however, they appeared one hour late for a scheduled visit. The parents came to the March 26, 2010 visit, but it was canceled due to the fact that they still had not provided documentation that they were free of lice. On April 1, 2010, the parents attended a make-up visit. And, on April 12, 2010, the parents attended their scheduled visit. Overall, the agency scheduled 16 visits; two visits were canceled by the agency, and the parents attended three visits scheduled on June 25, 2009, April 1, 2010, and April 12, 2010. Therefore, the parents did not have any contact with their children from June 25, 2009, until April 1, 2010.
{¶18} Mr. Carpenter testified that visits were not scheduled in the summer or fall of 2009 due to the parents’ inability to provide verification that they were free of lice, and the parents had not kept in contact with him or requested visitation.
{¶19} Karla Vazquez, case manager from Signature Health, testified to the same concern with Ms. Schreiber—lack of contact. Ms. Vazquez testified that although she
{¶20} Judith Catron, Help Me Grow coordinator, testified that she has been involved with the family for nearly two years. She outlined the developmental delays of M.J., the youngest child, and described her progress while in the care of the foster family. Further, she noted that all three children have bonded with their foster family.
{¶21} Elaine Hunt testified that she provided transportation to the children for their scheduled visits at Rooms to Grow. Ms. Hunt stated that when she arrived at the foster parents’ home to transport the children to their visit, they were reluctant, often clinging to their foster mother and crying on the way to the visits; also, the children were happy to arrive at the foster parents’ home at the conclusion of the visit.
{¶22} Attorney Jodi Blankenship and Mr. Carpenter both testified that permanent custody was in the best interest of the children.
{¶23} Thereafter, the magistrate issued her decision granting ACCSB permanent custody of all three children and terminated the parental rights of Ms. Schreiber and Mr. Johnson. Objections were filed by the parents, which were overruled by the trial court. The trial court adopted the magistrate‘s decision granting permanent custody to ACCSB.
{¶24} Ms. Schreiber has timely appealed the judgment of the trial court. In addition, Mr. Johnson has appealed the trial court‘s judgment to this court. Our decision in Mr. Johnson‘s appeal is also released today. In re M.J., B.J., and N.J., 11th Dist. No. 2011-A-0007.
{¶26} “The trial court erred in granting the motion for permanent custody as such decision was against the manifest weight of the evidence.”
{¶27} We recognize that the termination of parental rights is “*** the family law equivalent of the death penalty ***.” In re Phillips, 11th Dist. No. 2005-A-0020, 2005-Ohio-3774, at ¶22, citing In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, at ¶14. This court has stated that a parent is entitled to “fundamentally fair procedures in accordance with the due process provisions under the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.” In re Sheffey, 167 Ohio App.3d 141, 2006-Ohio-619, at ¶21.
{¶28} ”
{¶29} “‘(a) The child is not abandoned or orphaned, 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, *** 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.
{¶30} “‘(b) The child is abandoned.
{¶32} “‘(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 ***.‘” In re N.T., 11th Dist. No. 2010-A-0053, 2011-Ohio-650, at ¶51-55. (Citation omitted.)
{¶33} “Therefore,
{¶34} “If the child is not abandoned or orphaned [or has not been in the temporary custody of a public children services agency for 12 of 22 months], then the focus turns to whether the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. Under
{¶35} “Assuming the juvenile court ascertains that one of the four circumstances listed in
{¶36} “The juvenile court may terminate the rights of a natural parent and grant permanent custody of the child to the moving party only if it determines, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody to the agency that filed the motion, and that one of the four circumstances delineated in
{¶37} “‘[W]e will not reverse a juvenile court‘s termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence.‘” In re J.S.E., J.V.E., 11th Dist. Nos. 2009-P-0091 & 2009-P-0094, 2010-Ohio-2412, at ¶25. (Citations omitted.)
{¶39} If the child is not abandoned or orphaned, then the focus turns to whether the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. Under
{¶40} Under this assignment of error, Ms. Schreiber presents three arguments for our review. First, she maintains that the trial court erred in determining there was clear and convincing evidence that the children were abandoned.
{¶41} “Abandonment,” as defined in
{¶42} During her testimony, Ms. Schreiber acknowledged that after the June 25, 2009 visit, she failed to attend the next three scheduled visits. Further, she testified that she did not request any visitation with the children in August, September, October, or November, nor did she keep in contact with Mr. Carpenter. Upon Ms. Schreiber‘s own
{¶43} Ms. Schreiber attempts to provide this court with numerous reasons as to why she failed to contact or visit with her three children for approximately nine months. First, Ms. Schreiber maintains that her failure to contact Mr. Carpenter or attend the scheduled visits was not intentional, but due, in part, to a lack of transportation. Ms. Schreiber‘s testimony, however, indicates that Mr. Carpenter offered to assist her with transportation to the scheduled visits. Further, Ms. Schreiber also points to a lack of communication as her reason for not attending the visits. Again, her own testimony reveals that Mr. Carpenter urged her to schedule visits with her children and, even when visits were rescheduled upon her request, she still failed to call or attend. Finally, Ms. Schreiber notes the lice issue. Again, the record is clear that Ms. Schreiber failed to provide documentation that she was free of lice and, therefore, she was unable to visit the children. Lack of communication, transportation issues, and the problem with head lice may have contributed to Ms. Schreiber‘s lack of contact and attendance; however, she cannot rely upon these reasons as a justification for her children‘s abandonment. See In re Phillips, supra, at ¶35-36. This argument is without merit.
{¶44} Second, Ms. Schreiber maintains the trial court erred in its determination that she failed continuously and repeatedly to remedy the conditions causing the children to be placed outside the home.
{¶46} The testimony indicates that Ms. Schreiber has been renting a three-bedroom apartment since March 2010, and she is residing with the children‘s father. At the time of the hearing, rent was $350 per month. Father was receiving approximately $400 every two weeks in unemployment compensation, of which $200 goes toward child support. However, there was evidence in the record that father‘s unemployment was to be terminated in September 2010, and he has expressed difficulty in obtaining future employment. At the time of the hearing, Ms. Schreiber was earning approximately $80 per month for her babysitting services. Further, although Ms. Schreiber receives $200 in food stamps, she testified that she is still having difficulty and must supplement her monthly food supply with trips to the local food pantry. Although required to take medication, Ms. Schreiber stated that she is unable to, as she does not have health insurance nor can she afford to pay for it. Therefore, although it is evident that Ms. Schreiber has made attempts at compliance with the case plan, these attempts are insufficient grounds upon which to rest a finding that she can be reunified with her children within a reasonable period of time. In re J.S.E., supra, at ¶46. (Citation omitted.)
{¶48} Third, Ms. Schreiber alleges the trial court erred in finding, by clear and convincing evidence, that the award of permanent custody to ACCSB was in the children‘s best interest. We disagree.
{¶49} As previously stated,
{¶50} “In determining the best interest of a child at a hearing ***, the court shall consider all relevant factors, including, but not limited to, the following:
{¶51} “(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;
{¶52} “(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;
{¶53} “(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 or 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 and, as described in division (D)(1) of section
{¶54} “(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;
{¶55} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶56} In its judgment entry, the trial court states that it considered “all of the criteria in Revised Code Section
{¶57} All three children are currently placed together in a foster home. Further, the foster mother expressed her willingness to adopt all three children. The evidence reveals that the children are thriving in their foster home, especially M.J., the youngest child. The record reveals M.J., who was one-year old at the time of removal, could not sit-up, crawl, or make age appropriate sounds. Judith Catron, service coordinator for Help Me Grow, testified that M.J. did not receive any services because the family was frequently moving. Since being placed in their current foster home, M.J. has received consistent services and now is crawling, walking, and talking. In fact, M.J. was re-assessed in January 2010 and is no longer in need of services, as she is developing appropriately. There is also testimony in the record that reveals all three children have bonded with their foster family. Attorney Jodi Blankenship, the guardian ad litem, and Mr. Carpenter, the case worker, also testified that permanent custody was in the best interest of the children.
{¶59} As her second assignment of error, Ms. Schreiber alleges:
{¶60} “The [trial] court erred, to the detriment of the appellant, by failing to consider the wishes of the children.”
{¶61} Ms. Schreiber argues the trial court failed to consider the wishes of the children, particularly N.J., who was approximately five and one-half years old at the time of the hearing.
{¶62} This court has held that children involved in a case where a children services agency is seeking to terminate their parents’ parental rights are “parties” and, therefore, are entitled to representation by counsel pursuant to
{¶63} To support her argument on appeal, Ms. Schreiber cites to this court‘s opinion in In re Allen, 11th Dist. No. 2008-T-0010, 2008-Ohio-3389. See, also, In re Allen, 11th Dist. No. 2008-T-0008, 2008-Ohio-3390. In Allen, the trial court made a dual appointment of an attorney to serve as both guardian ad litem and counsel for the children, ages five and six; however, it was not apparent from the record whether the
{¶64} “Pursuant to
{¶65} In this matter, the guardian ad litem testified at the hearing that she attempted to meet with the oldest child, N.J., but she was “very reluctant,” “very isolated,” and “would not talk.” The guardian ad litem further testified that N.J. was “non-responsive” to her questions. Further, in her guardian ad litem‘s report, she stated that “the subject children in this proceeding are of tender years. The children are unable to articulate any preference as to whether adoption or reunification is appropriate due to their age.” Here, the guardian ad litem followed our directives as outlined in Allen, supra. That is, she attempted to interview the child, determined that N.J. was unable to express her interests, and then reported her findings to the trial court. Therefore, based on the record before us, we cannot say the trial court erred in failing to appoint N.J. counsel, and, consequently, Ms. Schreiber‘s second assignment of error is without merit.
{¶66} Ms. Schreiber‘s third assignment of error alleges:
{¶67} “The trial court erred, to the detriment of appellant, by allowing appellant‘s compelled testimony against her constitutional right against self-incrimination.”
{¶68} Ms. Schreiber contends the juvenile court committed reversible error by allowing ACCSB to call her to testify upon cross-examination. Ms. Schreiber maintains that compelling her to take the stand to testify against herself was a violation of her Fifth Amendment right against self-incrimination. Ms. Schreiber relies on In re Billman
{¶69} The instant case is similar to In re Myers, 3d Dist. No. 13-06-48, 2007-Ohio-1631. In Myers, the father objected, raising his Fifth Amendment protection against self-incrimination, when called to testify on cross-examination by the Seneca County Department of Job and Family Services (“SCDJFS“) during the adjudicatory hearing. Id. at ¶29. The trial court disagreed with the father‘s objection and permitted him to be called as a witness. Id. The father answered some questions but, unlike Ms. Schreiber, raised the Fifth Amendment protection to others. Id. Upon raising the protection, the trial court directed opposing counsel to cease questioning. Id.
{¶70} The father appealed and, as one of his assigned errors, argued that the trial court violated his rights under the Fifth Amendment when it permitted the SCDJFS to call him as a witness on cross-examination. Id. at ¶28. Like Ms. Schreiber, the father cited, inter alia, In re Billman, supra, to support his argument. Id.
{¶71} The Third Appellate District stated:
{¶72} “The Fifth Amendment applies in both criminal and civil proceedings. *** In a criminal proceeding, the Fifth Amendment permits a criminal defendant to completely refuse to testify. *** By contrast, in a civil proceeding, the Fifth Amendment prohibits the state from compelling a witness to testify regarding a matter that ‘may tend to incriminate’ the witness in a future criminal proceeding. *** ‘Compulsion, in this sense, arises whenever some penalty *** is imposed for failing to offer testimony.’ ***
{¶74} This court has recently rejected Ms. Schreiber‘s argument finding no violation of a parent‘s Fifth Amendment protection when ACCSB called the parent to testify upon cross-examination during the presentation of its case and instructed her to answer questions. In re L.M., 11th Dist. No. 2010-A-0058, 2011-Ohio-1585, at ¶52-55.
{¶75} Upon being called for cross-examination, Ms. Schreiber asserted her Fifth Amendment protection. The juvenile court overruled her counsel‘s objection and permitted Ms. Schreiber to be called as a witness. Again, the Fifth Amendment protection against self-incrimination did not permit Ms. Schreiber to completely refuse to testify. Furthermore, a review of the record reveals that the juvenile court did not compel Ms. Schreiber to answer any questions; Ms. Schreiber answered all of the questions asked of her and never asserted her Fifth Amendment protection during her testimony.
{¶77} The judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, is hereby affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.