In re N.E.
Nicole M. Stephenson, 30 North D Street, Hamilton, Ohio 45013, for appellant, L.E.
Ched Peck, 304 North Second Street, Hamilton, Ohio 45011, for N.M-G.
Leslie Kennedy, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, guardian ad litem
O P I N I O N
BRESSLER, J.
{¶1} Appellant, the biological mother of N.E.,1 appeals a decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of the child to the Butler County Department of Job and Family Services.
{¶2} N.E. was born on October 11, 2007. Prior to the child‘s birth, BCDJFS was
{¶3} BCFJFS moved for permanent custody of N.E. on October 10, 2008. A hearing on the motion was held before a magistrate on March 16-17, 2009. The magistrate issued a decision granting the motion for permanent custody. The parents filed objections to the magistrate‘s decision and the trial court remanded the case to the magistrate for a limited purpose regarding an evidentiary matter. The magistrate issued an amended decision, again granting permanent custody of N.E. to BCDJFS. The parents again filed objections, which were overruled by the trial court.
{¶4} Appellant now appeals the trial court‘s decision to grant permanent custody to BCDJFS. She raises the following two assignments of error for our review:
{¶5} “THE TRIAL COURT ERRED TO THE PREJUDICE OF MOTHER-APPELLANT WHEN IT ADMITTED THE SOCIAL SUMMARY [ ] AND ENTERED IT INTO EVIDENCE AGAINST THE OBJECTION OF MOTHER THAT IT CONTAINED HEARSAY EVIDENCE.”
{¶6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF MOTHER-APPELLANT WHEN IT GRANTED THE AGENCY‘S REQUEST FOR PERMANENT CUSTODY, SEVERING THE MOTHER‘S RELATIONSHIP WITH HER CHILD AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED.”
{¶7} In her first assignment of error, appellant argues that the trial court erred when it admitted a social summary prepared by the agency caseworker into evidence. At the hearing, Lisa Leverette, an agency caseworker, testified that she prepared a
{¶8} On appeal, appellant again argues that the admission of the social summary was error as it contained inadmissible hearsay. However, appellant failed to object to the admission of this exhibit when she filed objections to the magistrate‘s decision. The juvenile rules require written objections to a magistrate‘s decision to be filed within 14 days of the magistrate‘s decision.
{¶9} In her objections to the magistrate‘s first decision, appellant challenged the manifest weight of the evidence. Appellant also objected to an evidentiary issue involving the magistrate‘s decision to take judicial notice of the testimony and evidence in the mother‘s case as a juvenile with the agency and a half-sibling‘s case and
{¶10} At the hearing on the second set of objections, counsel for the mother argued her position and mentioned that the court improperly admitted the social summary and argued briefly that it was inadmissible hearsay. However,
{¶11} Appellant has not argued on appeal that the admission of this exhibit was plain error. In addition, appellant has failed to address in any manner how the admission of the social summary prejudiced her. The majority of the evidence contained in the summary was testified to in some manner at the hearing and there is no indication that the trial court specifically used any evidence from the social summary not mentioned at the hearing in its decision. In fact, the court specifically stated when it admitted the social summary that it would be reviewed with the hearsay issues taken into consideration. Accordingly, we find no merit to appellant‘s first assignment of error.
{¶13} Before a natural parent‘s constitutionally protected liberty interest in the care and custody of her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. Santosky v. Kramer (1982), 455 U.S. 745, 759, 102 S.Ct. 1388. An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to whether sufficient credible evidence exists to support the juvenile court‘s determination. In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶16. As an appellate court reviewing a decision granting permanent custody, we neither weigh the evidence nor assess the credibility of the witnesses, but instead determine whether there is sufficient clear and convincing evidence to support the juvenile court‘s decision. See In re Dunn, Tuscarawas App. No. 2008AP030018, 2008-Ohio-3785.
{¶14}
{¶15}
{¶16} “(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;
{¶17} “(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;
{¶18} “(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 ending on or after March 18, 1999;
{¶19} “(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;
{¶20} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶21} With respect to
{¶22} With respect to
{¶23} With respect to
{¶24} With respect to
{¶25} The court found that while the mother participated in the in-home parenting classes, there were still problem areas and at the end of the program, the mother reverted to some of her old bad habits. There was also concern regarding the mother‘s ability to retain information from the lessons presented. The trial court detailed the
{¶26} The court further found that the mother has not complied with the case plan requirement of stable employment and has depended on the income of her parents and N.E.‘s father, an illegal alien who works seasonally in construction. Finally, the court found that the parents were not able to maintain stable housing and that while the case was pending the mother has moved approximately 11 times and often lived with friends or the maternal grandparents.
{¶27} The court further found that there are no appropriate family members to take custody of N.E. While the maternal grandmother testified that she would be willing to take custody of the child, she did not file a motion for custody and there was evidence that her home was not appropriate and the agency would not approve her as an appropriate custodian of the child.
{¶28} Based on consideration of these factors, the trial court determined that it is in N.E.‘s best interest to grant permanent custody to the agency. Based on our review of the record, we find the court‘s conclusions on this finding are supported by the evidence.
{¶29} In addition to finding permanent custody was in the child‘s best interest,
{¶30} The court first considered
{¶31} “Following the placement of the child outside his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the child to be placed outside his home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.”
{¶32} The court found that the complaint pertaining to N.E. was filed due to the agency‘s history with the mother and maternal grandmother dating back to 1993, regarding issues of neglect and psychological problems, allegations involving N.E.‘s sibling, drug abuse by the mother and a failure to complete drug treatment and the mother‘s mental health needs. The court again discussed the mother‘s failure to complete case plan services, including residential drug treatment, mental health issues, employment and housing requirements and found that the parents have failed continuously and repeatedly to substantially remedy the conditions that caused N.E. to
{¶33} The court also considered
{¶34} We find no error in the trial court‘s determination that a grant of permanent custody was in N.E.‘s best interest or in the court‘s determination that N.E. cannot be placed with her parents within a reasonable time or should not be placed with her parents. However, after making a best interest determination and a finding that the child could not be placed with either parent pursuant to
{¶35} The requirements in
{¶36} As discussed above, we find no error in the court‘s determination that it is in the child‘s best interest to grant permanent custody to the agency or in the court‘s determination that the child cannot be placed with either parent or should not be placed with her parents. However, once those findings were made, the court erroneously determined that it was required to grant permanent custody under the “shall grant” language in
{¶37} Judgment reversed and remanded.
YOUNG, P.J., and POWELL, J., concur.