IN THE MATTER OF: N.M.P., DEPENDENT CHILD.
CASE NO. 2018-P-0056
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
December 31, 2018
[Cite as In re N.M.P., 2018-Ohio-5072.]
TIMOTHY P. CANNON, J.
OPINION
Civil Appeal from the Portage County Court of Common Pleas, Juvenile Division. Case No. 2018 JCF 00506.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee Portage County Department of Job and Family Services).
Neil P. Agarwal, 3732 Fishcreek Road, Suite 288, Stow, OH 44224-4379 (For Appellant Nicole Hofeldt).
Richard C. Lombardi, 240 South Chestnut Street, Ravenna, OH 44266 (Guardian ad litem).
{1} Appellant, Nicole Hofeldt, appeals from the July 25, 2018 judgment entry of the Portage County Court of Common
{2} On May 24, 2017, N.M.P. was removed from appellant, who was unable to provide him with a stable environment. In case No. 2017 JCC 489, N.M.P. was adjudicated dependent and placed in the temporary custody of PCDJFS.
{3} On June 5, 2018, PCDJFS filed a motion for permanent custody of N.M.P., which was assigned case No. 2018 JCF 00506. The motion stated that “[p]ursuant to
The child, N.M.P. was removed from his mother on May 24, 2017 and placed in the interim pre-dispositional custody of PCDJFS by Court Order on May 25, 2017. Adjudication was held on June 14, 2017. N.M.P. has been in the custody of PCDJFS pursuant to a Dispositional Order since August 30, 2017. N.M.P. has remained in the temporary custody of PCDJFS from August 30, 2017 to present. * * * Prior to the current action, N.M.P. was in the temporary custody of PCDJFS from March 11, 2015 until March 10, 2017 under case No. 2015 JCC 183. On March 11, 2017 N.M.P. was returned to the legal custody of his mother, [appellant]. N.M.P. was then re-removed from the custody of his mother on May 24, 2017 and this current action began.
The motion further stated: “Additionally, [p]ursuant to
{4} A guardian ad litem was appointed for N.M.P., and appellant was appointed counsel. A hearing was held on July 16, 2018, at which Kelly Davis, the PCDJFS caseworker, and Attorney Richard Lombardi, the guardian ad litem, testified. Neither appellant nor N.M.P.‘s father appeared; however, appellant‘s attorney was present.
{5} As a preliminary matter, certified copies of the record from 2017 JCC 489 were entered into evidence.
{6} Ms. Davis testified that appellant and N.M.P.‘s father failed to meet the objectives of their case plans, had minimal contact with N.M.P., and were unable to provide legally secure housing for N.M.P. Ms. Davis testified that appellant was on probation and struggled with drug use and mental health issues. Ms. Davis had been unable to locate or successfully contact appellant and last had contact with her on October 2, 2017. Both appellant and N.M.P.‘s father were permitted visits with N.M.P. twice a month for two hours. Ms. Davis testified that appellant attended one out of 28 visits, and N.M.P.‘s father did not attend any visits.
{7} Ms. Davis testified that N.M.P. was placed with a foster family with whom he has developed a bond. N.M.P. also has a biological half-sister with whom he has a bond, and N.M.P.‘s foster parents are supportive of N.M.P. maintaining a relationship with her.
{8} Ms. Davis investigated N.M.P.‘s relatives as potential legal custodians, but the relatives expressed no interest in taking legal custody of N.M.P.
N.M.P. states he wants normal parents. [H]e feels that he was cheated by having Nicole and John as his parents, and he wants the family that he sees with [his foster parents] and their two children. [T]hey give him security. He feels safe. He doesn‘t feel threatened. He knows tomorrow when he wakes up it‘s going to be the same old routine as two weeks ago when he woke up.
{10} Ms. Davis testified that N.M.P. has been in the temporary custody of the agency for 12 of the preceding 22 months, inclusive of cases prior to 2017 JCC 489. Appellant‘s counsel objected to Ms. Davis’ testimony about the previous cases because those records were not in evidence. Counsel for PCDJFS requested the trial court take judicial notice of 2015 JCC 183. Although appellant‘s counsel objected to the court‘s taking judicial notice, the trial judge indicated he would review 2015 JCC 183.
{11} Attorney Lombardi testified1 that N.M.P.‘s foster family loves and is bonded with him. He further testified that N.M.P. has “no desire, none, to be with [appellant]” and explained he spoke with “the child on more than one occasion, and [N.M.P.] made it very clear that he does - - absolutely does not want to have contact with [appellant] or her family.” Attorney Lombardi further stated: “[T]his child wants more than anything on earth to stay and live with [his foster family]. I believe it‘s in the child‘s best interest, and I‘ve never felt stronger about a case.”
{12} After the hearing, on July 20, 2018, PCDJFS filed certified copies of journal entries from 2015 JCC 183 in the trial court.
{13} The trial court entered judgment on July 25, 2018. The trial court determined that “[p]ursuant to
{14} Appellant noticed a timely appeal. She asserts six assignments of error.
{15} Appellant‘s first assignment of error states:
{16} “The trial court committed reversible error when it allowed a children
{17} Appellant first argues the trial court erred when it allowed the caseworker to “testify as to her opinion as to what is in the best interest of the child.” In support, appellant directs us to consider In re Ridenour, 11th Dist. Lake Nos. 2003-L-146, et seq., 2004-Ohio-1958; In re A.K., 9th Dist. Summit No. 26291, 2012-Ohio-4430; and In re Smith, 9th Dist. Summit No. 20711, 2002 WL 5178 (Jan. 2, 2002). Those cases provide that under
{18} Appellant next argues the caseworker‘s testimony regarding N.M.P.‘s wishes was hearsay and should have been excluded at the hearing.
{19} “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{20} To determine the best interest of a child, the trial court must consider a specific non-exclusive list of factors set forth in
{21} It was error for the trial court to allow the caseworker‘s testimony regarding N.M.P.‘s wishes over the objection of appellant‘s counsel. The error, however, was harmless. The trial court determined that N.M.P. was capable of verbalizing
{22} Appellant contends the guardian ad litem‘s “testimony does not constitute evidence upon which the trial court may make any factual findings.” Appellant essentially argues that the guardian ad litem‘s testimony about N.M.P.‘s wishes must be excluded as hearsay.
{23}
{24} Appellant‘s first assignment of error is without merit.
{25} Appellant‘s fifth assignment of error states:
{26} “The trial court committed reversible error when in granting permanent custody under
{27} Appellant argues that under
{28} We review the trial court‘s interpretation and application of a statute under a de novo standard of review. State v. Phillips, 11th Dist. Trumbull No. 2008-T-0036, 2008-Ohio-6562, ¶11. “De novo review is independent and without deference to the trial court‘s determination.” State v. Henderson, 11th Dist. Portage No. 2010-P-0046, 2012-Ohio-1268, ¶10 (citation omitted).
{29} “A primary rule of statutory construction is to apply the statute as it is written when its meaning is unambiguous and definite.” In re J.C., 9th Dist. Summit No. 28865, 2018-Ohio-2555, ¶13, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996) &
{30}
{31} Appellant directs this court to follow the Sixth District Court of Appeals’ interpretation of the “12 of 22” language as set forth in In re K.L., 6th Dist. Lucas Nos. L-17-1201 & L-7-1210, 2017-Ohio-9003. In that case, the Sixth District interpreted the language, “consecutive twenty-two-month period,” to mean 22 consecutive months of agency involvement. Id. at ¶48 (“If the 22-consecutive months does not mean 22 months of agency involvement, there was no need to set forth that number in the statute.“). Pursuant to this interpretation, the agency must be involved with a child for at least 22 months before it can file a motion for permanent custody. See id. at ¶40.
{32} By construing “a consecutive twenty-two-month period” to require 22 months of agency involvement, the Sixth District added language to the statute, altering its plain and unambiguous meaning. See J.C., supra, at ¶11-13; In re H.M., 2d Dist. Greene No. 2017-CA-42, 2018-Ohio-989, ¶14-18. We decline to adopt the Sixth District‘s interpretation of
{33} Further, this court has previously construed the language of
¶15. Accordingly, “[i]f, at the time the agency moves for permanent custody, the child has been in the temporary custody of one or more children services agencies for a total of 12 months out of a 22-month time period,
{34} Appellant‘s fifth assignment of error is without merit.
{35} Appellant‘s second assignment of error states:
{36} “The trial court committed reversible error when it took judicial notice of a separate proceeding during the permanent custody hearing.”
{37} Appellant contends the trial court improperly took judicial notice of 2015 JCC 183 to establish that N.M.P. had been in the agency‘s custody for 12 months of a consecutive 22 month period under
{38} “A trial court may not take judicial notice of prior proceedings in the court but may only take judicial notice of prior proceedings in the immediate case.” Diversified Mtge. Investors, Inc. v. Athens Cty. Bd. of Revision, 7 Ohio App.3d 157, 157 (4th Dist.1982); see also In re Knotts, 109 Ohio App.3d 267, 271 (3d Dist.1996); Woodman v. Tubbs Jones, 103 Ohio App.3d 577, 580 (8th Dist.1995); and Johnson v. Summit Cty. Court of Common Pleas, 11th Dist. Geauga No. 2014-G-3207, 2015-Ohio-211, ¶4, quoting State v. Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶17 (collecting cases). The rationale behind this rule is that, “‘if a trial court takes notice of a prior proceeding, the appellate court cannot review
{39} “Even if the separate prior case was heard by the identical trial court, that court cannot take judicial notice of any determination made in the separate case.
Rather, any detail about the separate case can only be established through the submission of evidence.” Johnson, supra, at ¶5, citing In re Pyle, 7th Dist. Belmont No. 91-B-27, 1992 WL 98028, *1 (May 6, 1992); see also State v. Baiduc, 11th Dist. Geauga No. 2006-G-2711, 2007-Ohio-4963, ¶24.
{40} These concerns are not at issue in this case. PCDJFS referenced 2015 JCC 183 in its motion for permanent custody. At the permanent custody hearing, the caseworker testified that N.M.P. had previously been in the temporary custody of the agency. She testified she had that knowledge because she has “access to previous court records, the previous case plans.” On July 20, 2018, certified copies of a magistrate‘s order and several journal entries from 2015 JCC 183 were filed with the trial court. These documents are part of our record on appeal. Accordingly, it was not error for the trial court to consider these documents as evidence that N.M.P. has previously been in temporary agency custody.
{41} Appellant‘s second assignment of error is without merit.
{42} Appellant‘s third assignment of error states:
{43} “The trial court committed reversible error when it allowed the State to supplement the record after the permanent custody hearing in violation of Mother‘s right to due process.”
{44} Appellant argues the trial court engaged in a “trial by ambush” and violated her due process rights when it “allowed [PCDJFS] to submit documents after the permanent custody hearing had concluded, did not give a copy of those documents to Mother, did not give Mother a reasonable opportunity to review or object to the submission of those documents before, during, or after the permanent custody hearing,
and especially for the trial court to rely upon those documents in the granting of permanent custody to PCDJFS.”
{45} “A parent‘s right to raise his or her children is an ‘essential’ and ‘basic’ civil right.” In re Sheffey, 11th Dist. Ashtabula No. 2005-A-0063, 2006-Ohio-619, ¶22, quoting In re Murray, 52 Ohio St.3d 155, 157 (1990). “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state.” Id., citing Santosky v. Kramer, 455 U.S. 745, 753 (1982). “Accordingly, when the state initiates a permanent-custody proceeding, parents must be provided with fundamentally fair procedures in accordance with the due process provisions under the Fourteenth Amendment to the United States Constitution and
{46} In the context of permanent custody proceedings, the issue of supplemental evidence submitted after the hearing has arisen when a guardian ad litem filed his or her report subsequent to the hearing. In this context, “[o]nce the trial court makes the decision to allow evidence to enter the record after the hearing, the trial court should provide an opportunity for cross-examination and the
{47} We do not determine that appellant‘s due process rights were violated. As stated above, PCDJFS referred to 2015 JCC 183 in its motion for permanent custody.
Further, the credibility of the certified copies from 2015 JCC 183 is readily ascertainable, and appellant concedes she was notified the documents had been submitted on the same day they were filed. Appellant also had the opportunity to cross-examine the caseworker about the existence of the previous case. See Ridenour, supra, at ¶28 (determining that where the guardian ad litem is subject to cross-examination at the permanent custody hearing and the untimely report does not provide any new or different evidence, a parent is not prejudiced by submission of the untimely report and no additional hearing is required).
{48} At the hearing, appellant‘s counsel stated he needed to confront the records from 2015 JCC 183 to determine whether it involved the same mother and child and whether the child was placed in the temporary custody of the agency in that case. Appellant‘s counsel could have disputed those facts during the hearing but did not, and there is no genuine issue that 2015 JCC 183 pertains to appellant and N.M.P. That information is apparent from the face of the 2015 JCC 183 documents. Further, the record from 2017 JCC 489, which is part of our record on appeal, indicates N.M.P. was previously removed from appellant and placed in agency custody. A case review dated November 2, 2017, states: “This is the second time [N.M.P.] has been in JFS custody. * * * His mom gained custody back in March 2017 but came to the agency and stated she could not provide a safe and stable home for [N.M.P.].” The case review further states: “[N.M.P.] was removed from [appellant‘s] custody in March 2015 and returned to his mothers [sic] custody in March 2017 and then re-removed for the same concerns in May 2017.”
{49} Appellant‘s third assignment of error is without merit.
{50} Appellant‘s sixth assignment of error states:
{51} “The trial court committed reversible error when in granting permanent custody under
{52} ”
{53} The juvenile court may terminate the rights of a natural parent
{54} “A reviewing court generally will not disturb a trial court‘s permanent custody decision unless the decision is against the manifest weight of the evidence.” In re D.M., 4th Dist. Hocking No. 15CA22, 2016-Ohio-1450, ¶10 (citations omitted); see also In re S. Children, 5th Dist. Stark No. 2012-CA-00164, 2012-Ohio-6265, ¶24, citing
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179 & State v. Thompkins, 78 Ohio St.3d 380 (1997). In applying this standard, the appellate court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder 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.‘” Eastley, supra, at ¶20; quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001); quoting Thompkins, supra, at 387; quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{55} “‘Issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact.‘” In re D.H., 11th Dist. Ashtabula No. 2017-A-0081, 2018-Ohio-630, ¶18, quoting In re West, 4th Dist. Athens No. 05CA4, 2005-Ohio-2977, ¶37.
{56} Appellant argues the trial court‘s finding that N.M.P. was in agency custody for 12 months of a consecutive 22 month period under
{57} For purposes of computing 12 months of a consecutive 22 month period, a child is considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated or the date that is 60 days after the removal of the child from the home.
{58} We do not conclude the trial court‘s finding under
PCDJFS on May 28, 2015. N.M.P. remained in the temporary custody of PCDJFS until March 14, 2017, when he was ordered returned to appellant. In 2017 JCC 489, on May 24, 2017, N.M.P. was again placed in the interim predispositional custody of the agency. He was adjudicated dependent on June 22, 2017, and temporary custody was granted to the agency on August 30, 2017. Inclusive of 2015 JCC 183, N.M.P. was in temporary agency custody for 12 or more months out of the 22 consecutive months preceding the filing of the motion for permanent custody. Accordingly, the trial court‘s finding under
{60} Appellant‘s sixth assignment of error is without merit.
{61} Appellant‘s fourth assignment of error states:
{62} “The trial court committed reversible error when it granted permanent custody upon grounds that were not brought to the attention of the parents in a timely fashion.”
{63} Appellant first takes issue with the trial court‘s finding that “[p]ursuant to
{64} Appellant next argues that granting permanent custody pursuant to
{65} Appellant further argues that the trial court‘s finding under
{66} Appellant‘s fourth assignment of error is without merit.
{67} Often these cases present difficult choices regarding termination of the parental rights of a parent who has made attempts at being a parent. This is not one of those cases. Appellant was afforded many opportunities for assistance with her parenting but declined virtually all of them and did not even appear at the hearing to state her intentions.
{68} The judgment of the Portage County Court of Common Pleas, Juvenile Division, is affirmed.
CYNTHIA WESTCOTT RICE, J.,
concur.