755 N.E.2d 448 | Ohio Ct. App. | 2001
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Appellant is the biological mother of Mason (born 10/26/94), Stevie (born 3/28/97) and Hunter (born 5/15/99). Kevin Ament, now deceased, was the biological father of the children.
CCDHS became involved with Mason and Stevie in 1997 after receiving a report that Stevie was taken to a hospital for first and second degree burns on her hands, legs and back. At the time, appellant and her husband had charges pending against them for child endangerment in Campbell County, Kentucky. CCDHS filed a complaint alleging that Mason and Stevie were dependent pursuant to R.C.
CCDHS later moved the trial court to grant permanent custody of Mason and Stevie to CCDHS. The trial court denied the motion and ordered that the children remain in the temporary custody of CCDHS. Mason and Stevie remained in foster care from December 1997 through April 1999. In April 1999, upon the motion of CCDHS, the trial court granted legal custody of Mason and Stevie to appellant and her husband, subject to protective supervision. The trial court adopted a case plan to assist the family in correcting the issues that led to the placement of the children in the custody of CCDHS. Appellant gave birth to Hunter in May 1999.
Appellant and her husband appeared to be making progress in accordance with the goals and objectives set forth in the case plan, but on December 21, 1999 appellant's husband committed suicide by shooting himself in the head in the family's doghouse. Traumatized by the discovery of her husband's suicide, appellant left her home that night with her three children and never returned. Eventually, appellant took Mason, Stevie and Hunter to Newport, Kentucky to *306 live with her mother, Kim Stewart. While her children were in the care of her mother, appellant attempted suicide by ingesting cocaine, alcohol and "pills." Stewart, with whom appellant never had a strong relationship, asked appellant to leave her home and refused to allow appellant to stay with her. Stewart continued to provide some level of care for the children. However, appellant did not have a permanent place for her or her children to live.
Appellant was arrested for violating conditions of her community control. Specifically, appellant used drugs and alcohol; she failed to inform the probation department of her residence and she failed to report to the probation department as required. Appellant was sentenced to complete a four to six month "lock-down" drug treatment program at the River City Correctional Facility.
The trial court granted emergency protective custody of Mason, Hunter and Stevie to CCDHS. CCDHS filed a complaint with the trial court alleging that Hunter was dependent pursuant to R.C.
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT RULED IN FAVOR OF THE STATE'S MOTION REQUESTING THAT PERMANENT CUSTODY OF THE AMENT CHILDREN BE AWARDED TO THE DEPARTMENT OF HUMAN SERVICES.
Appellant claims the trial court erred by granting permanent custody of her children to CCDHS. In support of her assignment of error, appellant presents five separate issues. First, appellant argues that there was insufficient evidence for the trial court to determine that Hunter was dependent. Second, appellant argues that the trial court failed to properly adjudicate Mason and Stevie as dependent. Third, appellant argues that CCDHS's motion for permanent custody was untimely. Fourth, appellant maintains that res judicata bars the trial court from awarding permanent custody of Mason and Stevie to CCDHS. Fifth, appellant asserts that the trial court erred by denying her motion for a new trial. We will address each of appellant's issues in turn.
Appellant first argues that there was insufficient evidence for the trial court to determine that Hunter was dependent. Appellant maintains that she provided Hunter with a safe, secure environment by leaving them with her mother. She further contends that the state provided no evidence to demonstrate that her mother's home was "an inappropriate placement." *307
A determination of dependency must be supported by clear and convincing evidence. R.C.
As relevant to this case, R.C.
(C) Whose condition or environment is such as to warrant the state, in the interest of the child, in assuming the child's guardianship;
(D) To whom both of the following apply:
(1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or another child who resides in the household is an abused, neglected, or dependent child.
(2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.
The determination that a child is dependent requires no showing of fault on the parent's part. Instead, the focus is solely upon "the child's situation to determine whether the child is without proper (or adequate) care or support." In re Riddle (1997),
79 Ohio St.3d 259 ,262 . When a child is receiving proper care pursuant to an arrangement initiated by the parent with a caregiver, the child is not a dependent child. Id. at 263.
In this case, the trial court was presented with evidence that Hunter lacked proper care and support. After the death of appellant's husband, appellant left the family home. Appellant stayed with friends and eventually she moved in with her mother, Kim Stewart. Stewart, with whom appellant never had a strong relationship, asked appellant to leave her home and refused to allow appellant to stay with her. At the time, Hunter was only eight months old. Although Stewart continued to provide some level of care to the children, there was no evidence that Stewart's efforts to provide care to Hunter were the result of any agreement or arrangement between appellant and Stewart. Moreover, appellant did not have a permanent place for her or her children to live. *308
Appellant attempted suicide by ingesting cocaine, alcohol and "pills." Appellant was arrested for violating conditions of her community control and was sentenced to complete a four to six month "lock-down" drug treatment program at the River City Correctional Facility. In order to ensure that Hunter and his siblings received adequate care, CCDHS sought and was granted emergency custody of the children.
Accordingly, we conclude that sufficient credible evidence exists to support the trial court's determination that Hunter is a dependent child.
Second, appellant argues that the trial court failed to adjudicate Mason and Stevie as dependent. Appellant maintains that the trial court committed a "tactical error" by failing to readjudicate Mason and Stevie as dependent at the same time that Hunter was adjudicated to be dependent.
R.C.
The trial court adjudicated Mason and Stevie as dependent pursuant to R.C.
Alternatively, appellant asserts that the trial court, in determining whether to award permanent custody of Mason and Stevie to CCDHS, should have applied the version of R.C.
This court has held a trial court should apply the version of the statute in effect at the time that the motion for permanent custody was filed *309 when ruling upon a motion for permanent custody.
In re Rodgers (2000),
Third, appellant asserts in a labyrinthine argument that CCDHS's motion for permanent custody was untimely. Appellant appears to argue that CCDHS inappropriately sought permanent custody of Mason, Stevie and Hunter before having custody of them for a certain time period. It appears that appellant maintains that CCDHS is required to have custody of the children for twelve consecutive months prior to filing a motion for permanent custody.
Under Ohio law, there are two mechanisms by which a child may be committed to the permanent custody of a public children services agency.In re Vinci (Sept. 3, 1998), Cuyahoga App. No. 73043, unreported. The agency may file an original complaint alleging the child is dependent, neglected or abused and request permanent custody as the disposition. R.C.
(A) A public children services agency or private child placing agency that, pursuant to an order of disposition under division (A)(2) of section
2151.353 of the Revised Code or under any version of section2151.353 of the Revised Code that existed prior to January 1, 1989, is granted temporary custody of a child who is not abandoned or orphaned may file a motion in the court that made the disposition of the child requesting permanent custody of the child.(D)(1) Except as provided in * * * this section, if a 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, the agency with custody shall file a motion requesting permanent custody of the child.
With regard to Hunter, CCDHS filed an original complaint alleging him to be a dependent child. In the complaint, CCDHS requested permanent custody of Hunter as the first disposition and temporary custody as the alternative disposition. CCDHS's complaint is not untimely and wholly permissible under R.C. Chapter 2151.
Turning to Mason and Stevie, the trial court placed them in the temporary custody of CCDHS in December 1997 pursuant to R.C.
CCDHS had custody of Mason and Stevie for at least twelve months in a consecutive twenty-two month period. In addition, at the time CCDHS filed its motion for permanent custody, Mason and Stevie were in the temporary custody of CCDHS. Accordingly, CCDHS's motion for permanent custody was appropriate and "timely" under both R.C.
Fourth, appellant argues that res judicata bars the trial court from awarding permanent custody of Mason and Stevie to CCDHS. According to appellant, the trial court's denial of CCDHS's motion for permanent custody of Mason and Stevie in 1999 bars CCDHS from filing a second motion for permanent custody that includes some of the same facts and issues as the first motion. Appellant contends CCDHS must confine its motion for permanent custody to only those issues that occurred after the trial court denied the first motion.
Under the doctrine of res judicata, "a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995),
Inasmuch as the juvenile court is vested with continuing jurisdiction to review and, if necessary, modify its dispositional orders, * * * res judicata does not prohibit the litigation of issues relevant to a motion for permanent custody even though the same or similar issues may have been considered in a prior action falling within the purview of R.C. Chapter 2151.
In re Burkhart (Aug. 19, 1991), Butler App. No. CA90-07-146, unreported; accord In Re Vaughn (Dec. 6, 2000), Adams App. No. 00CA692, unreported. *311 Accordingly, res judicata does not bar the trial court from awarding permanent custody of Mason and Stevie to CCDHS.
Finally, appellant argues that the trial court erred by denying her motion for a new trial. Appellant argues that a witness reported that there was an irregularity in the proceedings that requires a new trial.
Pursuant to Civ.R. 59(A), the trial court may grant a new trial to any party on any issue upon any number of specified grounds, including: "[I]rregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial[.]" In addition, a trial court has the discretion to grant a new trial for "good cause shown." Civ.R. 59(A). The decision to grant or deny a motion for a new trial pursuant to Civ.R. 59 rests in the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. Sharp v. Norfolk W. Ry. Co. (1995),
Appellant moved for a new trial on the basis of "factual irregularities." However, appellant's motion lacked any specificity with regard to the alleged irregularities. The trial court ordered appellant to provide, by way of affidavit, the facts upon which her allegations were based. Appellant failed to provide any affidavits to the trial court, and the trial court overruled her motion.
Civ.R. 59(A)(1) provides a trial court with discretion to grant a new trial when an irregularity in a court proceeding prevents a party from having a fair trial. This discretion preserves the integrity of the judicial system where the presence of serious irregularities in a proceeding could have a material adverse affect on the character and public confidence in judicial proceedings. See, e.g., Koch v. Rist
(2000),
Appellant's five issues presented in support of her assignment of error are without merit. Accordingly, appellant's assignment of error is overruled.
Judgment affirmed.
VALEN, P.J., and WALSH, J., concur. *312