In Re R.K.
JOURNAL ENTRY AND OPINION
{¶ 1} Appellant A.K. (“appellant“) appeals from the order of the Cuyahoga County Juvenile Court awarding permanent custody of appellant‘s minor child, R.K., to the Cuyahoga County Department of Children and Family Services (“CCDCFS“). For the reasons stated below, we affirm.
I.
{¶ 2} On August 18, 2000, R.K. (d.o.b. 6/28/96) was removed from appellant‘s home due to alleged injury, inappropriate care, and mental health issues of appellant. On August 21, 2000, CCDCFS filed a complaint alleging abuse, neglect, and dependency, and sought temporary custody of R.K.1 On March 1, 2001, pursuant to
{¶ 3} On October 25, 2001, CCDCFS filed a motion to modify temporary custody to permanent custody. A hearing was held in November 2002. Various witnesses testified and, on December 10, 2002, the trial court awarded permanent custody of R.K. to CCDCFS. Appellant timely filed her appeal and advances three assignments of error for our review.
II.
{¶ 4} In her first assignment of error, appellant argues that “the trial court committed reversible error when, upon filing of the motion for permanent custody, it failed give [sic] notice to Appellant, in accordance with
{¶ 5}
“Upon the filing of a motion pursuant to section
2151.412 * * * of the Revised Code for permanent custody of a child, the court shall schedule a hearing and give notice of the filing of the motion and of the hearing, in accordance with section2151.29 of the Revised Code, to all parties to the action and to the child‘s guardian ad litem. The notice also shall contain a full explanation that the granting of permanent custody permanently divests the parents of their parental rights * * *.”
{¶ 6} Appellant argues that no such notice was given. Appellant concedes that she was given notice approximately 14 months prior to CCDCFS‘s motion for permanent custody. Despite this, appellant argues such notice was given when CCDCFS was seeking temporary custody and that such a long delay does not constitute proper notice under the statute. CCDCFS argues that, contrary to appellant‘s contention, she did receive notice following the filing of the motion to modify temporary custody. We agree with CCDCFS.
{¶ 7} The motion to modify temporary custody was filed October 25, 2001. The record indicates appellant was personally served on April 26, 2002, some six months after the filing of the motion to modify custody and seven months prior to the hearing.
{¶ 8} Appellant‘s first assignment of error is overruled.
III.
{¶ 9} In her second assignment of error, appellant argues that “the trial court committed reversible error by granting the motion for permanent custody when the guardian ad litem had not submitted a written report to the court prior to or at the time of the hearing, as required by
{¶ 10}
{¶ 11}
{¶ 12} Appellant‘s second assignment of error is overruled.
IV.
{¶ 13} In her final assignment of error, appellant argues that because CCDCFS failed to show, by clear and convincing evidence, that permanent custody should be awarded to it, the trial court‘s judgment was against the manifest weight of the evidence. We disagree.
{¶ 14} In order for a child to be placed in the custody of an agency, the trial court must first determine one of four conditions exist, namely:
“1) The child is not abandoned or orphaned or has not been in 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, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents. “2) The child is abandoned. “3) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. “4) The child has been in the temporary custody of one or more public children services or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999.” See
R.C. 2151.414(B)(1) .
{¶ 15} In the case sub judice, appellant argues that CCDCFS failed to meet its burden by clear and convincing evidence and, therefore, the trial court‘s order is against the manifest weight of the evidence. Manifest weight concerns whether the jury, or in this case the trial court, lost its way creating a manifest miscarriage of justice. State v. Thompkins (1997), 78 Ohio St.3d 380. “Judgments supported by some competent credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” Whatley v. Tokheim Corp. (Jan. 30, 1986), Cuyahoga App. No. 49407, citing C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The credibility of witnesses and the weight given to their testimony are primarily matters for the finder of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Having reviewed the record, the trial court had competent credible evidence on which to base its decision.
{¶ 16} In considering an award of permanent custody, a court must determine whether, by clear and convincing evidence, it is in the best interest of the child that the child can be placed with the parent within a reasonable time or should not be placed with the parent. In the matter of D.F., Cuyahoga App. No. 81613, 2003-Ohio-3221. Here, the trial court specifically found that R.K. was removed from appellant‘s home in August of 2000, and remained in the custody of CCDCFS for over two years. This being the case, the court was not required to consider whether R.K. could be placed with a parent within a reasonable time. In re M.H., Cuyahoga App. No. 80620, 2002-Ohio-2968.4 Rather, the court must focus on determining whether the award of permanent custody was in the best interests of the child.
{¶ 17} In determining the best interests of the child, the court must consider all relevant factors including, but not limited to, those contained in
{¶ 18} Appellant argues that Latanya Deane (“Deane“), the social worker, testified that appellant never missed a visit with R.K. during the entire foster care period. Deane indicated that appellant would often hug R.K. upon arriving at the center and would bring toys and other play items with her for R.K. and her to play with. Amy Hurd (“Hurd“), the social worker assigned to R.K.‘s case, confirmed appellant‘s behavior. Additionally, Patricia Koch (“Koch“), coordinator of the parenting program at the MetroHealth Center, acknowledged that appellant had completed the parenting program.
{¶ 19} Appellant argues the statute does not require perfection on behalf of the parent, and that she substantially complied with the mandates of
{¶ 20} Lastly, regarding her mental health, appellant argues clinical psychologist Amy Justice (“Justice“) testified that although appellant suffers from an adjustment disorder with depression and anxiety, such a condition does not amount to paranoid personality disorder or other serious ailment. Justice testified that symptoms of depression and anxiety are common during custody proceedings.
{¶ 21} CCDCFS, on the other hand, argues that although appellant completed the parenting program, Koch testified that appellant “wasn‘t amenable to any guidance” and that “she wasn‘t able to see that she might have some problems with her parenting.” Further, appellant denied having a psychological condition and refused to participate in portions of her evaluation. Koch concluded that “Ms. [A.K.] has not made any significant advances in addressing her mental health issues over the past two years * * *” and that “* * * the problems that brought her to the attention of DCFS and have impeded her ability to properly parent her daughter * * * have not been substantially remedied and would therefore be expected to continue.” CCDCFS argues that the trial court‘s findings are proper in light of appellant‘s refusal to cooperate.
{¶ 22} Regarding the relevant factors for the court to consider, pursuant to
{¶ 23} Additionally, applying the relevant factors under
{¶ 24} Lastly, appellant‘s mental illness issues were a factor to be considered.
{¶ 25} Overall, we are concerned with the best interests of the child, not merely the existence of a good relationship. In re Holyak (July 12, 2001), Cuyahoga App. No. 78890. There is testimony that benefits both parties and the trial court needed to weigh that testimony and reach a determination. The trial court is in the best position to weigh the credibility of the witnesses and evidence submitted. We are not in a position to second-guess the trial court absent an abuse of discretion. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. Based on the record and transcript of proceedings, we find no such abuse of discretion.
{¶ 26} The trial court had sufficient competent credible evidence to support its decision. Appellant‘s third assignment of error is overruled.
Judgment affirmed.
JAMES J. SWEENEY, P.J. and COLLEEN CONWAY COONEY, J. CONCUR.