IN THE MATTER OF: R.E.P.
Case No. 2011AP050021
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 14, 2011
2011-Ohio-5375
Hon. W. Scott Gwin, P.J., Hon. Julie A. Edwards, J, Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 11JN00088; JUDGMENT: Affirmed
| For-Mother | For Father |
| SHARON BUCKLEY-MIRHAIDARI 152 N. Broadway Ave., Ste. 101 New Philadlephia, OH 44663 | JOHN GARTRELL, JR. 153 N. Broadway New Philadelphia, OH 44663 |
| For Job & Family Services | Guardian Ad Litem |
| JEFF KIGGANS 389 16th Street S.W. New Philadelphia, OH 44663 | KAREN DUMMERMUTH Box 494 New Philadelphia, OH 44663 |
| For Maternal Grandmother | For Paternal Grandparents |
| MICHAEL JOHNSON 117 South Broadway New Philadelphia, OH 44663 | SHAWN LINDSAY Box 272 Uhrichsville, OH 44683 |
{1} Appellant-mother J.S.1 appeals the April 26, 2011, Judgment Entry of the Tuscarawas County Court of Common Pleas, Juvenile Court Division, which terminated her parental rights with respect to her minor child, R.E.P and granted permanent custody of the child to appellee, Tuscarawas County Job & Family Services (hereinafter “TCJFS“).
I. PROCEDURAL HISTORY
{2} Appellant J.S. is the biological mother of R.E.P.2 R.E.P. was born on February 8, 2011.
{3} On February 10, 2011, TCJFS filed a complaint alleging R.E.P. age 2 days old was a dependent child. The child was removed directly from the hospital. At the time of removal, the parents had a pending dependency and neglect case with their two older children, I.S. and R.P. in Tuscarawas County Court of Common Pleas, Juvenile Division Case Number 10 JN 00138.
{4} At the shelter care hearing on February 10, 2011 the court ordered R.E.P. to be placed in the temporary custody of TCJFS. An adjudicatory hearing was held on March 9, 2011 and the trial court found R.E.P. to be dependent. The dispositional hearing was scheduled for April 7, 2011 to be considered in conjunction with the permanent custody hearing of R.E.P.‘s two brothers, R.P. age 7 and I.S. age 10
{5} The paternal grandparents, Mr. and Mrs. P. filed a motion to intervene, a motion for legal custody and temporary custody and a motion for a home study on
{6} On February 18, 2011, TCJFS filed a motion for permanent custody. The permanent custody hearing was held on April 7 and April 14, 2011 at the same time as the permanent custody hearing of R.E.P.‘s two older brothers. The trial court awarded TCJFS permanent custody of the minor child R.E.P.
II. STATEMENT OF THE FACTS
{7} TCJFS became involved with this family the most recent time on March 29, 2010, by filing a Complaint alleging that I.S. and R.P. were dependent and neglected children.
{8} The concerns presented were that the parents in the home were not following through with the recommendations of TCJFS in a recently-closed diversion case. It was apparent that the parents would make improvements while TCJFS was involved with hygiene, supervision, etc., but as soon as TCJFS was no longer involved the situation devolved again to one of neglect.
{9} A case plan was filed for the parents with the goal of reunification. Worker Jaime Grunder testified that the plan did not require the parents to complete services that were very recently completed by mother and/or father, such as parenting classes.
{10} The children were placed in a foster home with the Village Network. The worker assigned to the children was Ms. Brandi Ankrom. Ms. Ankrom also is the counselor for R.P. The counselor for I.S. through the Village Network is Ms. Judy McGill. She already had a relationship with both R.P. and I.S. due to her position as the
{11} When the schedule of the children‘s counseling was changed in late August 2010 due to scheduling reasons to directly follow the visits between the children and their parents, the counseling sessions for both I.S. and R.P. deteriorated dramatically. The visits were suspended for a brief trial period in October per the agreement of the parties. The visits were suspended indefinitely by the Court in February 2011 in an attempt to see if the visits were the reasons that the children had become out of control. The behaviors of the children improved dramatically according to all the professionals involved during the times when the visitation schedule was suspended.
{12} R.P. stated to Ms. Ankrom that he would get his “ass beat” in the home of his parents regarding his toileting accidents. I.S. also told his counselor Ms. McGill that he saw R.P. getting hit with a belt in reference to toileting issues. Ms. McGill testified that this physical retribution for toileting accidents made toileting issues worse for R.P.
{13} While the case was progressing with R.P. and I.S., appellant-mother gave birth to R.E.P. on February 8, 2011.
{14} Ms. Grunder testified that mother continued to deny that she was pregnant and did not begin to receive prenatal care until December for her child that was born in February. Ms. Grunder further testified both parents completed their case plan objectives in this case.
{15} Ms. Grunder testified that the parents contacted Developmental Disability Services but they were not eligible for services because they did not have mental health
{16} The maternal grandmother, M. B. and her husband also offered to assist in case management services, but were denied.
{17} Judy McGill (I.S.‘s counselor), Julie McFarland (R.P.‘s personal one-on-one school aide) and Brandi Ankrom (Village Network Assistant Coordinator and R.P.‘s individual therapist) all testified that R.P.‘s toileting issues of defecating and urinating in his pants have continued even though he has been in foster care for almost a year.
{18} Ms. McGill testified that she was aware of 2 accidents with R.P. since his visits with his parents were suspended and she was also aware of accidents occurring at the Village Network during counseling sessions. One of the accidents occurred when R.P. was sick with diarrhea and the other when he had a tooth pulled and was on antibiotics.
{19} Ms. McGill initially had contact with the older child I. S. through her position at New Philadelphia in the fall of 2007. At this time, he was in the care of his parents. Ms. McGill testified that “his behavior was very aggressive, he, his hygiene, um, very disheveled, he was often dirty, had a strong body odor“. Someone had to intervene with I.S. because of his behaviors in the classroom every day.
{20} R.P.‘s one-on-one personal school aide, Julie McFarland testified that she has been R.P.‘s aide since January 2011 and that prior to January 2011, R.P. never
{21} Ms. McGill worked again with I. S. and R. P. in her position as a counselor at The Village Network. Ms. McGill testified that during the summer of 2010, her counseling sessions went fairly well. However, she further testified that once her sessions with the children directly followed the visitation the children had with their parents, the situation drastically changed. Ms. McGill testified that the behavior of the child deteriorated to a degree to which she only attempted to manage his behaviors, and there was very little counseling happening during those sessions.
{22} It came to a point in October 2010 where Ms. McGill and Ms. Brandi Ankrom, the counselor for R.P., asked TCJFS what could be done. It was decided, with the approval of the parents, that the visits between the children and their parents would be stopped for a two-week period to determine if any difference could be noted in the children. There was an improvement for that short time. However, when visits were re-started, the problems restarted.
{23} Maternal grandmother Ms. B. testified that prior to the current case being filed, she was unaware that the children were having difficulty in school even though
{24} Paternal grandmother Ms. T. P. stated that she did not have any concerns about the children‘s mother and her son‘s ability to parent the children.
{25} Ms. Grunder testified that she did not think that either set of grandparents would protect the children from their parents.
{26} By an entry filed April 26, 2011, the court granted TCJFS’ request for a permanent commitment of R.E.P. to the agency.
{27} It is from this entry that the appellant-mother has appealed.
III. ASSIGNMENTS OF ERROR
{28} On appeal, mother asserts the following assignments of error:
{29} “I. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY SERVICES PERMANENT CUSTODY AS SAID DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY
{30} “II. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY SERVICES PERMANENT CUSTODY WHEN APPROPRIATE RELATIVE PLACEMENT WAS AVAILABLE FOR R.E.P.”
A. Burden of Proof
{31} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, quoting Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. A parent‘s interest in the care, custody and management of his or her child is “fundamental.” Id.; Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. The permanent termination of a parent‘s rights has been described as, “* * * the family law equivalent to the death penalty in a criminal case.” In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45. Therefore, parents “must be afforded every procedural and substantive protection the law allows.” Id.
{33} An award of permanent custody must be based upon clear and convincing evidence,
B. Standard of Review
{34} Even under the clear and convincing standard, our review is deferential. If some competent, credible evidence going to all the essential elements of the case supports the trial court‘s judgment, an appellate court must affirm the judgment and not substitute its judgment for that of the trial court. In re Myers III, Athens App. No. 03CA23, 2004-Ohio-657, ¶ 7, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. The credibility of witnesses and weight of the evidence are issues primarily for the trial court, as the trier of fact. In re Ohler, Hocking App. No. 04CA8, 2005-Ohio-1583, ¶ 15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273.
{35}
{36} Following the hearing,
{37} Therefore,
{38} The court must consider all relevant evidence before determining the child cannot be placed with either parent within a reasonable time or should not be placed with the parents.
{39}
{40} “(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code that one or more of the following exist as to each of the child‘s parents, the court
{41} “(1) Following the placement of the child outside the child‘s 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 to substantially remedy the conditions causing the child to be placed outside the child‘s 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 changing parental conduct to allow them to resume and maintain parental duties.
{42} “***
{43} “(16) Any other factor the court considers relevant.”
{44}
{45} In this case, the trial court made its permanent custody findings pursuant to
{46} As set forth in our Statement of Facts, supra, the trial court‘s findings are based upon competent credible evidence. The record includes testimony of the witnesses at trial. The trial court was in the best position to determine the credibility of the witnesses.
{47} The evidence demonstrated the successful efforts appellant-mother had made in the case to regain custody of her children. On that point, the evidence demonstrates that any improvement the appellant-mother has made in her life is tentative and, perhaps, temporary, and that she is at risk of relapse. The trial court found that, regardless of appellant‘s compliance with aspects of his case plan, she was still not able to be a successful parent to R.E.P.
{48} In the case of In re: Summerfield, Stark App. No. 2005CA00139, 2005-Ohio-5523, this court found where, despite marginal compliance with some aspects of the case plan, the exact problems that led to the initial removal remained in existence, a court does not err in finding the child cannot be placed with the parent within a reasonable time.
{49} Further, substantial compliance with a case plan, in and of itself, does not prove that a grant of permanent custody to an agency is erroneous. In re Watkins v. Harris (Aug. 30, 1995), 9th Dist. No. 17068, at 9. The dispositive issue is not whether the parent has substantially complied with the case plan, but rather, whether the parent has substantially remedied the conditions that caused the child‘s removal. See, e.g., In re McKenzie (Oct. 18, 1995), 9th Dist. No. 95CA0015, at 7-8; In re Pittman, Summit App. No. 20894, 2002-Ohio-2208 at ¶ 60.
{50} Based upon the foregoing, as well as the entire record in this case, the court properly found R.E.P. could not or should not be returned to the appellant-mother within a reasonable time. Despite offering numerous services, the appellant-mother was unable to mitigate the concerns that led to the child‘s removal.
B. The Best Interest of the Child.
{51} In determining the best interest of the child at a permanent custody hearing,
{52} The focus of the “best interest” determination is upon the child, not the parent, as
{53} The trial court made findings of fact regarding the child‘s best interest. It is well-established that “[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.” In re: Mauzy Children (Nov. 13, 2000), Stark App. No. 2000CA00244, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.
{54} As an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758. “A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)“. United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267. Reviewing courts should accord deference to the trial court‘s decision because the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that cannot be
{55} In the case at bar, the judgment entry granting permanent custody specifically included a statement that the trial court had considered all the factors listed in
1). Relative Placement.
{56} The child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055. Accordingly, a court is not required to favor a relative if, after considering all the factors, it is in the child‘s best interest for the agency to be granted permanent custody. In re A.C., 12th Dist. No. CA 2006-12-105, 2007-Ohio-3350 at ¶ 17; In re Turner, 5th Dist. No. 2006CA00062, 2006-Ohio-4906 at ¶ 35; In re Perry, 4th Dist. Nos. 06 CA 648, 06 CA 649, 2006-Ohio-6128 at ¶ 62.
{57} During the permanent custody hearing, the court received testimony concerning the relative placement. TCJFS Worker Jaime Grunder testified to the long history that maternal grandmother Ms. B. has with TCJFS. This included more than one substantiated abuse and a substantiated neglect. Ms. Grunder stated that while these
{58} Ms. B. testified that prior to the current case being filed, she was unaware that the children were having difficulty in school even though they were having contact with the children. She further referred to her daughter J. S. as a “good mom,” and that they got good physical care from their parents. However, the trial court found that based upon her entire testimony Ms. B did in fact know about many of the instances of issues concerning the children as they occurred.
{59} Paternal grandmother Ms. T. P. stated that she did not have any concerns about Jackie and her son‘s ability to parent the children. Case Worker Grunder also testified that in her opinion Mr. and Mrs. P. had little insight about what the concerns were regarding the children. The trial court found that the couple was aware of the filthy living conditions with animal feces and roaches and they did nothing to actively intervene.
{60} The willingness of a relative to care for the child does not alter what a court considers in determining permanent custody. In re Patterson (1999), 134 Ohio App.3d 119, 129-130, 730 N.E.2d 439, 446-447.(Citing In re Mastin (Dec. 17, 1997), Lorain App. Nos. 97CA006743 and 97CA006746 at 7). The child being placed in a permanent situation that fosters growth, stability, and security serves the child‘s best interests. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055. Accordingly, a court is not required to favor a relative if, after considering all the factors, it is in the child‘s best interest for the agency to be granted permanent custody. In re A.C., 12th Dist. No. CA 2006-12-105, 2007-Ohio-3350 at ¶ 17; In Re Dylan B., Luna B, Stark App. No. 2007-CA-00362, 2008-Ohio-2283 at ¶ 66; In re Turner, 5th Dist. No. 2006CA00062, 2006-Ohio-4906 at ¶ 35; In re Perry, 4th Dist. Nos. 06 CA 648, 06 CA 649, 2006-Ohio-6128 at ¶ 62.
{61} The court must consider all of the elements in
{62} Based on the evidence submitted at trial, the court properly determined the best interest of R.E.P. would be served by the grant of permanent custody to TCJFS rather than to be placed with either the maternal or paternal grandparents. There was sufficient evidence submitted at the hearing to call into question, the relatives’ ability to provide a long term, stable placement for the children.
{63} For these reasons, we find that the trial court‘s determination that appellant-mother had failed to remedy the issues that caused the initial removal and therefore R.E.P. could not be placed with her within a reasonable time or should not be placed with her was not against the manifest weight or sufficiency of the evidence. We further find that the trial court‘s decision that permanent custody to TCJFS was in R.E.P.‘s best interest was not against the manifest weight or sufficiency of the evidence.
{64} Appellant‘s first and second assignments of error are overruled.
{65} The judgment of the Tuscarawas County Court of Common Pleas, Juvenile Court Division is affirmed.
By Gwin, P.J.,
Edwards, J., and
Delaney, J., concur
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
HON. PATRICIA A. DELANEY
IN THE MATTER OF: R.E.P.
CASE NO. 2011AP050021
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Tuscarawas County Court of Common Pleas, Juvenile Court Division is affirmed.
Costs to appellant.
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
HON. PATRICIA A. DELANEY