IN THE MATTER OF: R.C. DEPENDENT CHILD
Case No. 13 CA 14
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 21, 2014
2014-Ohio-191
Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 11 JC 591. JUDGMENT: Affirmed.
For Appellant Mother
FEISUL M. KHAN Post Office Box 273 Zanesville, Ohio 43702-0273
For Appellee GCCSB
BRYAN C. CONAWAY ASSISTANT PROSECUTOR 139 West 8th Street, P. O. Box 640 Cambridge, Ohio 43725
Wise, J.
{¶1} Appellant Jodie Covington appeals from the decision of the Court of Common Pleas, Guernsey County, which found her son, R.C., to be a dependent child and awarded legal custody of him to an aunt and uncle, Karen and Larry Brooker. The relevant procedural facts leading to this appeal are as follows.
{¶2} The child in the case sub judice, R.C., was born in November 2011. GCCSB became involved following a referral from medical personnel at South Eastern Regional Medical Center concerning R.C.‘s father‘s handling of the newborn baby. The agency thereupon filed a complaint alleging the child was dependent under
{¶3} On November 18, 2011, the trial court issued an ex parte order of temporary custody to GCCSB. A complaint was filed three days later.
{¶4} On December 12, 2011, following a “probable cause” hearing, the trial court issued an order granting temporary legal custody of R.C. to his aunt and uncle, Karen and Larry Brooker.
{¶5} On January 20, 2012, the trial court sua sponte issued an order directing counsel to “secure a suitable translator” for appellant, who has significant hearing issues.
{¶6} An adjudicatory hearing was originally scheduled for January 31, 2012. Said hearing apparently did not go forward as scheduled.
{¶7} Another hearing was then set for April 16, 2012. The trial court heard some evidence, but then found additional time would be necessary. The matter was then continued until August 7 and 8, 2012.
{¶9} On November 26, 2012, subsequent to the completion of the adjudicatory phase hearing, the trial court issued a judgment entry finding R.C. to be a dependent child. The court again found additional time would be necessary for disposition, and therefore set the matter for further hearing on March 11 and 18, 2013.
{¶10} The trial court ultimately issued a judgment entry on April 5, 2013, granting legal custody of R.C. to the Brookers and terminating protective supervision by GCCSB.1
{¶11} On April 24, 2013, appellant filed a notice of appeal. She herein raises the following four Assignments of Error:
{¶12} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DISMISS GUERNSEY COUNTY CHILDREN SERVICES’ COMPLAINT WHEN DISPOSITION HAD NOT OCCURRED WITHIN NINETY (90) DAYS OF THE FILING OF THE COMPLAINT.
{¶13} “II. THE TRIAL COURT ERRED IN FINDING THE MINOR CHILD TO BE A DEPENDENT CHILD BASED ON THE DISABILITIES OF THE [SIC] MS. COVINGTON AND NOT HER ACTUAL ABILITY TO PARENT.
{¶15} “IV. THE TRIAL COURT ERRED IN AWARDING LEGAL CUSTODY OF THE MINOR CHILD TO KAREN AND LARRY BROOKER.”
I.
{¶16} In her First Assignment of Error, appellant contends the trial court erred in failing to dismiss GCCSB‘s complaint concerning R.C. pursuant to the relevant dispositional time guidelines. We disagree.
{¶17}
{¶18} This timeframe mandate is also reflected in the language of
{¶19} Ohio appellate courts have nonetheless recognized that “[a]lthough the time requirements are considered mandatory, a parent may waive them.” See, e.g., In re: D.W., 4th Dist. Athens No. 06CA42, 2007-Ohio-2552, ¶ 14, citing In re Kutzli (1991), 71 Ohio App.3d 843, 845-846, 595 N.E.2d 1026. “A party implicitly waives the time-limit when the party ‘fails to move for dismissal when it becomes the party‘s right to do so, or
{¶20} In the case sub judice, as set forth in our statement of facts above, the GCCSB complaint was filed on November 21, 2011. R.C. was finally adjudicated as a dependent child via judgment entry filed on November 26, 2012, even though the trial court had ordered him into the temporary custody of his aunt and uncle early in the case. After a number of continuances based on the need for a sign-language interpreter and additional hearing time, the dispositional phase was finally commenced on November 5, 2012, and was completed on March 11, 2013.
{¶21} Nonetheless, a review of the record reveals that appellant and her trial counsel never moved for dismissal in light of the aforesaid events on grounds of timeliness. Furthermore, the agency, the guardian ad litem, and the court itself never brought up the dispositional timeliness issue in that regard. We therefore find the ninety day time requirement for disposition under
{¶22} Accordingly, appellant‘s First Assignment of Error is overruled.
II.
{¶23} In her Second Assignment of Error, appellant contends the trial court erred in finding R.C. to be a dependent child. We disagree.
{¶24} As an initial matter, we note the text of this assigned error seems to assert the trial court made its decision based solely on appellant‘s disabilities, which we submit is not a fair assessment of the court‘s handling of this case. While the more expansive argument portion of appellant‘s brief ameliorates the harshness of her textual claim, we
{¶25} Turning to the pertinent statutory language,
{¶26} “As used in this chapter, ‘dependent child’ means any child:
{¶27} “(A) Who is homeless or destitute or without adequate parental care, through no fault of the child‘s parents, guardian, or custodian;
{¶28} “(B) Who lacks adequate parental care by reason of the mental or physical condition of the child‘s parents, guardian, or custodian;
{¶29} “(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child‘s guardianship;
{¶30} “***.”
{¶31} Under Ohio law, “[e]very reasonable presumption must be made in favor of the judgment and the findings [of the juvenile court]. * * * If the evidence is susceptible to more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, and most favorable to sustaining the [juvenile] court‘s verdict and judgment.” In re: MB, Summit App.No. 21812, 2004-Ohio-2666, ¶ 6, citing Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 526 N.E.2d 1350. It is well established that the trial court, as the fact finder, is free to believe all, part, or none of the testimony of each witness. See State v. Caldwell (1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096. In contrast, as an appellate court, we neither weigh the evidence nor
{¶32} During the evidentiary hearings regarding adjudication in the case sub judice, the trial court initially heard testimony from eight witnesses called by GCCSB: Roy Higgins (GCCSB caseworker), Carol Huhn (registered nurse at Southeastern Ohio Medical Center), Nancy Neff (medical social worker at Southeastern Ohio Medical Center), Kellie Engstrom (service coordinator for the “Help Me Grow” program at the Guernsey County Board of Developmental Disabilities), Kaylea Hupp (also a service coordinator for the “Help Me Grow” program), Tonya Hitchens (director of service and support at the Guernsey County Board of Developmental Disabilities), Melissa Keylor (GCCSB screening and assessment supervisor), and Johnna Denbow (GCCSB ongoing caseworker). Through various aspects of these witnesses’ testimony, the agency presented its chief concerns, namely that both parents are developmentally delayed, that appellant-mother has hearing and communication issues, that the father did not appear to grasp proper techniques for holding and handling an infant, that the father has anger management issues, and that all of these concerns limited the
{¶33} In addition, the agency called clinical psychologist Dr. Robin Tener, who testified as to her professional evaluation of the parents. In sum, Dr. Tener concluded that neither of them would be able to provide reliable or safe care for R.C. for the foreseeable future. See Tr., August 8, 2012, at 77-78. Although appellant now contends Dr. Tener‘s evaluation of appellant was problematic, in part because of purported sign language barriers, we have previously recognized, regarding the issue of dependency determinations, that “the law does not require the court to experiment with the child‘s welfare to see if * * * [the child] will suffer great detriment or harm.” In re F.M., Tuscarawas App.No. 2011 AP 07 0029, 2012-Ohio-1082, ¶ 68, quoting In re Burchfield (1988), 51 Ohio App.3d 148, 156, 555 N.E.2d 325. Upon review, we conclude the trial court did not err or abuse its discretion in reaching its determination of R.C.‘s dependency status pursuant to
{¶34} Accordingly, appellant‘s Second Assignment of Error is overruled.
III.
{¶35} In her Third Assignment of Error, appellant contends the trial court erred in finding the existence of the statutory “reasonable efforts” requirement. We disagree.
{¶36}
{¶37} In sum, pursuant to the above statutory subsection, the agency which has removed the child must have made reasonable efforts to prevent the removal of the child from the child‘s home, eliminate the continued removal of the child from the home, or make it possible for the child to return home safely. See In re Hess, Stark App.Nos. 2007CA00262, 2007CA00261, 2008-Ohio-1920, ¶ 46.
{¶38} Appellant focuses her argument on the earliest judgment entries in this matter: The November 18, 2011 ex parte order of temporary custody and the December 12, 2011 order granting temporary legal custody to the Brookers. In considering the reasonableness of the agency‘s efforts to maintain the child in the home in a case such
{¶39} Upon review, we find no reversible error as to the “reasonable efforts” criterion under the facts and circumstances of this case. Appellant‘s Third Assignment of Error is overruled.
IV.
{¶40} In her Fourth Assignment of Error, appellant contends the trial court committed reversible error by awarding legal custody of R.C. to the Brookers. We disagree.
{¶41} In Ohio, the statutorily permissible dispositional alternatives in a dependency, neglect, or abuse case are enumerated in
{¶43} Appellant proposes that the disposition of legal custody to relatives following a dependency adjudication requires a finding of parental unfitness. However, the requirement that a trial court must make a finding of parental unsuitability before awarding custody to a nonparent does not apply in the disposition of cases involving abuse, neglect, or dependency. In re L.H., Muskingum App.No. CT2013-0017, 2013-Ohio-5279, ¶ 25, citing In re L.M., 2nd Dist. Greene No. 2010-CA-76, 2011-Ohio-3285, ¶ 18. See, also, In re T.G., Butler App.Nos. CA2005-10-444, CA2005-12-521, 2006-Ohio-5504, ¶ 16.
{¶44} Appellant‘s argument in this regard is thus without merit, and upon review of the record and the testimony and reports therein, including the recommendations of the guardian ad litem, we otherwise find no abuse of discretion in the trial court‘s decision to award legal custody of R.C. to the Brookers under
{¶46} For the reasons stated in the foregoing opinion, the judgment of the Guernsey County Court of Common Pleas, Juvenile Division, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.