In re N.F.
Rendered on June 23, 2009
Wolfe & Russ, LLC, and Andrew E. Russ, for appellant.
Robert McClaren, for appellee Franklin County Children Services.
David Colley, for appellee Ohio Youth Advocate Program.
Yeura R. Venters, Public Defender, Allen V. Adair, and Jason M. Hovance, for appellee J.M.
Linda M. Sheppard, Guardian ad Litem.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
{¶1} In this consolidated appeal, T.F. (“mother“), appellant, appeals two judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. In one judgment, the court granted legal custody of mother‘s child, N.F., to A.M. (“aunt“) and L.M. (“uncle“). In the other judgment, the court granted legal custody of mother‘s three additional children, C.M., J.M., and S.M., to J.M. (“father“), appellee.
{¶2} C.M., born September 17, 2001, is the daughter of mother and father. N.F., born November 27, 2002, is the son of mother and father. J.M., born October 25, 2004, is the son of mother and father. S.M., born July 21, 2006, is the daughter of mother and father. On January 4, 2007, Franklin County Children Services (“FCCS“), appellee, filed complaints alleging the children were abused, neglected, and dependent. On January 5, 2007, the trial court granted FCCS temporary custody of the children. On January 29, 2007, a magistrate granted a temporary order of protective supervision with regard to the children. A family case plan was completed February 2, 2007. On March 1 and 2, 2007, the trial court found N.F. and the other three children, respectively, to be dependent, and placed them under the court ordered supervision of FCCS.
{¶3} On April 3, 2007, with regard to N.F., FCCS filed a motion to terminate court ordered protective supervision and grant legal custody, and to make Ohio Youth Advocate Program (“OYAP“), appellee, a party. On April 18, 2007, father filed a motion to terminate the temporary order of custody and court ordered protective supervision and award him legal custody of the children.
{¶5} The magistrate conducted a hearing over the course of numerous days and, on March 18 and 27, 2008, the magistrate issued two nearly identical decisions in which the trial court denied mother‘s June 12, 2007 motion, dismissed father‘s April 18, 2007 motion, terminated the court ordered protective supervision by FCCS, maintained the wardship over the children, awarded legal custody of N.F. to aunt and uncle, awarded legal custody of the three other children to father, and granted mother supervised parenting time. Mother subsequently filed objections in both cases.
{¶6} The trial court held a hearing on mother‘s objections September 8, 2008. On October 24, 2008, the trial court issued two judgments, denying mother‘s objections and approving and adopting the magistrate‘s decisions. Mother appealed the judgments of the trial court, and we have consolidated the appeals. Mother asserts the following assignment of error:
The trial court erred in granting legal custody of CM, JM, and SM to [father], and of NF to [aunt and uncle].
{¶7} In her sole assignment of error, mother argues the trial court erred when it found it was in the best interests of N.F. for legal custody to be granted to aunt and uncle and, in the best interests of the three additional children, legal custody be granted to father. The children in the present case were found to be dependent. In such cases, the standard to be utilized is set forth in
At any hearing in which a court is asked to modify or terminate an order of disposition issued under
section 2151.353 ,2151.415 , or2151.417 of the Revised Code , the court, in determining whether to return the child to the child‘s parents, shall consider whether it is in the best interest of the child.
{¶8} As noted previously, the court adjudicated the children as dependent, with protective supervision under FCCS, as an order of disposition under
{¶9} This court will not reverse an award of legal custody absent an abuse of discretion. In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214. Abuse of discretion connotes more than an error of law or judgment; rather, it implies that the trial court‘s decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Legal custody where parental rights are not terminated is not as drastic a remedy as permanent custody. Nice at 455. Therefore, the trial court‘s
{¶10} Mother presents several specific arguments as to why the trial court‘s decision was in error, which we will address in conjunction with our best interest analysis. The magistrate and trial court found that it was in the best interests for aunt and uncle to obtain custody of N.F. and for father to obtain custody of C.M., J.M., and S.M. Specifically, the magistrate indicated that mother did not provide proper care for the children, and was unable to provide the consistent attention, structure, and discipline the children needed. The magistrate pointed out that mother had so little control over N.F. that she voluntarily agreed to place N.F. with aunt and uncle prior to FCCS‘s order. The magistrate also found that mother was not able to properly ensure that C.M. was in school consistently and, when C.M. was in school, she was late, hungry, tired, and sad. When C.M. was in father‘s care, her performance and demeanor at school improved dramatically. The magistrate further found that, when mother placed N.F. with aunt and uncle, N.F. behaved well with no signs of the outrageous behavior he exhibited while with mother. The magistrate also noted that N.F. overdosed on mother‘s diet pills while in her care, resulting in a four-day hospital stay. Although the magistrate‘s and trial court‘s decisions centered mostly on N.F. and C.M., because they are the two oldest children, the trial court also found S.M.‘s and J.M.‘s best interests were served by granting legal custody to father.
{¶12} Jessica Ardelea, C.M.‘s kindergarten teacher, testified C.M. started kindergarten late because mother was confused as to when C.M. could start. C.M.‘s attendance when she started school in November was not very good. She had over 30 absences for a half-day program, and she would come in tired, hungry, and sad. After
{¶13} Stacy Goddard, a caseworker at OYAP, testified she visited mother‘s home. The home was clean, and J.M. and S.M. were clean. Mother told her that she had taken N.F. to aunt and uncle‘s home because of his behavior, and he had threatened to cut her throat with a knife and watch her bleed. Mother told Goddard that S.M. was in need of medication, but she did not have a medical card for her. Goddard later discovered that mother, in fact, had the medical cards. Mother also told her she was having problems getting C.M. to school. Goddard testified that mother told her she was depressed and had been on medications for it, but the medications were not working. When Goddard discussed with mother the incident in which N.F. found her diet pills and overdosed, which resulted in his four-day hospitalization, mother blamed N.F. for finding and eating the pills. Goddard said mother wrote a letter on March 18, 2007, that stated mother wanted to give aunt and uncle permanent custody of N.F. Goddard said aunt and uncle‘s house was very appropriate. When she first met N.F., he was very polite and friendly. She witnessed no behavior like mother described.
{¶14} Goddard also testified that father had brought all four children into her office seeking to keep the children with him, and he showed her photographs of bruises on their
{¶15} Mother testified her house was sometimes chaotic in the mornings. C.M. was difficult to wake up in the mornings for school, and she often missed the bus. To remedy this issue, mother would prepare C.M.‘s breakfast, bathe her, and lay out her clothes the night before. Mother said she understood why C.M. was tired before school, as C.M. slept in the same room with her infant sister. She said despite what the school officials reported, C.M. ate every morning before school. She said she never had the opportunity to see if afternoon kindergarten would improve C.M.‘s attendance and tiredness before custody was transferred to father.
{¶16} With regard to N.F., mother testified that, one morning he disappeared from home, and friends found him two blocks away at a gas station. Although mother put chain locks on the doors, N.F. broke the chain. N.F. often talked about wanting to be with father, and father previously worked at the gas station. Mother said she decided to place N.F. with his aunt and uncle because he was out of control. He would destroy her house,
{¶17} Mother admitted she was tired of being a single mother. In January 2007, mother called aunt and said she was on the edge and wanted her to get the children before they were harmed. She denied having ever hit any of her children or striking them with spoons. She testified that father claimed she abused the children when J.M. fell out of a wagon once while playing with a friend.
{¶18} Mother works at a restaurant and works part-time for her father laying tile, cleaning apartments, and installing sinks. Mother‘s live-in boyfriend also contributes financially. Her boyfriend is an exotic dancer and works part-time for her father. She said the children adore her boyfriend, and he spends time with them. By the time of the hearings that took place in December 2007, mother‘s live-in boyfriend was in the process of moving out of the house after she discovered he had posed for a pornographic website. Although she said she was still dating her boyfriend at that time, they were breaking up as soon as he was out of the house. Mother also said neither she nor father have a driver‘s license. She testified that she had not done any drugs for several months prior to trial.
{¶19} Mother stated her visits with the children are at a mall and are fun. The children are excited to see her. When the visits end, J.M. cries and C.M. tells her she wants to come home with her. When mother visits N.F., he is excited to see her and,
{¶20} Mother further stated she completed her entire case plan. She stated all of the children have their own clothes, toys, beds, and anything else they need. Mother testified she was prescribed medication for depression, and she is following all doctors’ prescriptions for medication for her depression. Mother believes father is capable “to an extent” of taking care of the children. She admitted that father cares for the children‘s physical needs and provides a home.
{¶21} Ashley Schroeder, a family case manager at the National Youth Advocate Program, testified she conducted home visits at uncle and aunt‘s home. The home was very clean, with plenty of food and room for N.F. N.F. appeared to be very bonded to aunt and uncle. She never saw N.F. act out during a monthly visit. However, aunt reported to her that N.F. would urinate in inappropriate places. C.M.‘s school teacher told Schroeder C.M. has perfect attendance and has friends, and the teacher had no concerns. Schroeder also observed the three children in father‘s custody. Father had no problems managing their behavior. She believed father would comply with visitations for mother if he were ordered to do so. She said father‘s and mother‘s work schedules have created difficulty arranging visitations.
{¶22} Aunt, father‘s sister, testified mother contacted her in January 2007, and said she had beaten “the crap” out of N.F., causing 15 bruises. The children were removed from custody that evening, and N.F. came to live with her. When custody was
{¶23} Aunt further testified that, when N.F. first came to her house, he was very angry, talked about knives and swords, horded food, and urinated on things. N.F. told her he urinates on things because he was locked in his room at his mother‘s house and could not use the bathroom. He still gets very angry and acts out when they mention mother to him. After one visit to mother‘s house, he returned with a plastic sword toy, and he used it toward her dog, so she took it away. After an overnight visit with mother, N.F. was very angry and used the “N” word to refer to an African-American walking by aunt‘s house. N.F. said he learned the word by listening to mother‘s and her boyfriend‘s music. Aunt also found the pornographic website featuring mother‘s boyfriend through a picture on mother‘s MySpace page, and mother told her that she was angry about the pornographic pictures. Aunt does not wish to adopt N.F., just protect him. Aunt did not believe mother should ever regain custody of the children.
{¶24} Katharine Smiley, a counselor at C.M.‘s elementary school, testified that C.M.‘s attendance when she first started school in November 2006 was sporadic. In a year-end assessment, the school indicated that C.M. exhibited behaviors sometimes seen in emotionally disturbed children, she had no opportunity for social or cultural stimulation outside of school, she had poor attendance, the parents never attended teacher/parent conferences, and C.M. was more than one year below grade level in all
{¶25} Father testified he has had custody of the three children since mid-April 2007. He has been employed for the last several years and lives in a three bedroom apartment. He said he never had the same issue with C.M. having trouble getting up for school. She has had perfect attendance at her new school. His family and fiancée, Megan, help him with the children. His fiancée is still married and has two children, who live with them every other week. Father also testified he thought N.F. was better off with his sister for the time being because he could get individual attention from her, but father wanted custody of him in the future. All four children see each other about every other
{¶26} Leah Lemasters, who provided day-care for the children approximately three days per week from winter 2006 until April 2007, testified she has never seen father visit the children. She said she has seen N.F. throw huge temper tantrums and get violent. She also added that the diet pills that N.F. took were in mother‘s purse on top of the refrigerator. She said it was extremely difficult to wake C.M. for school. She found mother‘s parenting appropriate.
{¶27} Mother‘s boyfriend, D.Z., testified mother was a good parent. He said mother now puts all of her pills and medications in a lockbox in her bedroom. He never saw mother spank the children with a wooden spoon. He agreed C.M. was hard to wake for school. D.Z. said that mother signed the document giving aunt and uncle “permanent” custody so N.F. could get medical care and coverage while in aunt and uncle‘s care. He also stated that he posed for the pornographic photos a couple of years ago while in Florida because he had no money, and that he is no longer an exotic dancer. He moved out of mother‘s house because the nude photographs were causing problems for her. D.Z. also testified that father would come to mother‘s house to visit the children twice a month for an hour or so. D.Z. said father would sometimes cancel mother‘s visitations with the children.
{¶29} After a thorough review of the record in this case, we cannot find that the trial court abused its discretion when it awarded legal custody of N.F. to aunt and uncle and legal custody of C.M., S.M., and J.M. to father. The record makes clear that mother has had an extremely difficult time caring for the four children. Her house was described as chaotic, and it was difficult for mother to control the children in her home. On several occasions, mother admitted that she was tired of being a parent. In January 2007, she telephoned aunt and told her that she needed to take the children from her before they were harmed. Mother was extremely frustrated by N.F.‘s behavior and voluntarily relinquished care of N.F. to aunt and uncle on several occasions, finally executing a
{¶30} Mother has also shown irresponsibility in looking after the best interests of the children. She failed to place her diet pills in a secure place, resulting in N.F. overdosing on them. Although there was testimony that the diet pills were in her purse on top of the refrigerator, there was also evidence that the children often climbed on the countertops. N.F. also wandered from mother‘s house, ending up two blocks away before he was found. Furthermore, mother failed to assure and promote C.M.‘s schooling. She enrolled C.M. over two months late for kindergarten, and C.M. was absent an extraordinary number of times. Mother also failed to foster a positive environment for school, as evidenced by the abundant testimony from school officials that C.M.‘s behavior and performance were poor while she was under mother‘s care. In addition, although S.M. was in need of asthma medication, mother claimed she did not have the children‘s medical cards to pay for it, although mother, in fact, had the cards.
{¶31} Contrary to mother‘s failings, father and aunt and uncle did not report the same difficulties experienced by mother. As soon as father retained custody of C.M., her school attendance, demeanor, attitude, and performance vastly improved. Father said he had no problem waking C.M. for school in the mornings. There was also evidence that, while in aunt and uncle‘s care, N.F. was polite and friendly and exhibited no behavior like mother described. The three other children were also very clean and happy in father‘s home. Father had no problems managing their behavior while in his custody.
{¶33} Mother argues that FCCS did not offer the testimony of a forensic psychologist or psychiatrist as to her alleged drug dependency or any proof of her inability to function with or without psychotropic medications. We first note that mother did not raise this argument in her objections to the magistrate‘s decision so that the trial court
{¶34} Mother also asserts that, although she was slow getting started with the case plan objectives, she completed all that was asked of her, including an alcohol and drug assessment and parenting classes. The case plan here included the children and adults being violent free, alcohol and drug assessments and mental health assessments for the parents, speech therapy for one of the children, and counseling for N.F. While mother did comply with the case plan requirements insofar as her assessments went, there remained a question as to mother‘s physical abuse of the children. There were photographs of bruises on the children‘s bodies, and the children reported their mother and her boyfriend were hitting them with spoons and belts. Father said he had seen mother hit the children with spoons, and the children told him she hit them. Although mother and her boyfriend denied having ever hit the children, there was evidence mother called aunt in January 2007, and said she was on the edge and wanted her to get the children before they were harmed. Aunt testified mother also told her she had beaten “the crap” out of N.F., causing 15 bruises. Aunt also testified that N.F. told her that his mother kept him locked in his room without access to a bathroom. Although mother argues that she rebutted the allegations of physical abuse, she can point only to her testimony that she had a letter at home from FCCS that indicated the physical abuse was unsubstantiated. The trial testimony from father, Goddard, and aunt regarding mother‘s abuse is more persuasive.
{¶36} Accordingly, mother‘s single assignment of error is overruled, and the judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, are affirmed.
Judgments affirmed.
BRYANT and McGRATH, JJ., concur.
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