In re S.H.
Rendered on the 16th day of September, 2011.
MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorneys for Appellee, State of Ohio
CASSIE L. SCRENGI, Atty. Reg. #0084895, 130 West Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Appellant, D.H. and MARK SEGRETI, Atty. Reg. #0009106, 1405 Streamside Drive, Centerville, Ohio 45459 Attorney for Appellant, C.R.
HALL, J.
{¶ 1} C.R. and D.H. appeal separately from the trial court‘s judgment entry overruling their objections to a magistrate‘s decision and awarding Montgomery County
{¶ 2} The record reflects that the trial court adjudicated S.H. dependent and neglected in response to a complaint filed by MCCS. After obtaining temporary custody, MCCS moved for permanent custody in October 2009. A magistrate held a hearing on the motion. Based on the evidence presented, the magistrate awarded MCCS permanent custody of S.H., who was nine years old at the time. In support of the custody determination, the magistrate found, inter alia, that S.H. had been in MCCS‘s custody for twelve or more months of a twenty-two-month period and that awarding the agency permanent custody was in the child‘s bеst interest. C.R. (“Mother“) and D.H. (“Father“) filed objections and supplemental objections to the magistrate‘s ruling. On April 12, 2011, the trial court overruled the objections and granted MCCS permanent custody. Expedited appeals by Mother and Father followed.
{¶ 3} Mother‘s appeal contains three assignments of error. First, she claims the trial court erred in adopting the magistrate‘s decision. Sеcond, she asserts that the trial court‘s grant of permanent custody to MCCS is contrary to law and unsupported by substantial, competent, and reliable evidence. Third, she argues that the trial court‘s permanent custody determination is against the weight of the evidence.
{¶ 4} Father advances five assignments of error in his appeal. First, he contends MCCS failed to prove, by clear and convincing evidence, that it provided reasonable case planning and made diligent efforts to reunify S.H. with him. Second, he claims an award of permanent custody to MCCS is not in S.H.‘s best interest. Third, he asserts that the trial court erred in denying his request to continue the hearing on MCCS‘s permanent custody motion.
{¶ 5} In In re M.R., Montgomery App. No. 2010 CA 64, 2011-Ohio-3733, ¶ 24-26, this court summarized the legal standards governing a children services agency‘s motion for permanent custody:
{¶ 6} ”
{¶ 7} ”
{¶ 8} In three related assignments of error, which she has briefed together, Mother first contends the trial court‘s custody determination is contrary to law and unsupported by the evidence. More specifically, she claims the trial court‘s judgment is based on a finding that S.H. “could not be placed with either parent within a reasonable time or should not be placed with the child‘s parents.” Mother correctly points out that such a finding was unnecessary because S.H. had been in MCCS‘s custody for more than twelve of twenty-two consecutive months. See In re C.W., at ¶ 21.
{¶ 9} We do not agree, however, that the trial court‘s inclusion of an unnecessary finding in its ruling rendered its judgment contrary to law or unsupported by the evidence. A trial court may grant an agenсy permanent custody if such a disposition is in a child‘s best interest and either (1) the child cannot or should not be placed with a parent or (2) the child has been in the agency‘s custody for at least twelve of twenty-two months.
{¶ 10} With regard to determining the best interest of S.H., Mother contends the trial court misapplied the applicable factors and the burden of proof. Her argument implicates
{¶ 11} Having reviewed the trial court‘s ruling (which adopted the magistrate‘s decision), we conclude that it reflects proper consideration and application of the forgoing factors. With regard to
{¶ 12} On appeal, Mother contends
{¶ 13} Mother‘s argument on appeal focuses primarily on
{¶ 14} Mother‘s argument reflects her misunderstanding of
{¶ 15} “As for the
{¶ 16} “In considering all the factors and ‘the totality of the circumstances,’ the court found that it was in the best interest of the child that ‘the permanent custody motion be granted so that the placement of the child in his current foster home be continued.’
{¶ 17} “The court satisfied its statutory duty. That duty did not include the requirement imposed by the appellate court that the juvenile court determine by clear and convincing evidence that ‘termination of appellant‘s parental rights was not only a necessary option, but also the only option.’ Nor did that duty include the requirement that the juvenile court find by clear and convincing evidence that no suitable relative was available for placement. The statute requires a weighing of all the relevant factors, and the trial court did
{¶ 18} In light of Schaefer, we reject Mother‘s argument that the trial court was required to find no other option available before awarding permanent custody to MCCS. “The issue of a child‘s best interest comes at the end of a long road.” Id. at ¶ 65. Perhaps unlike earlier stages of a dependency, abuse, or neglect proceeding, a best-interest analysis in the context of an agency‘s permanent custody motion requires considering more than whether a child could be reunited with a parent. Id. The possibility of placing S.H. somewhere other than in MCCS‘s permanent custody was but one of the factors for the trial court to consider under
{¶ 19} Having reviewed the record, we believe MCCS proved, by clear and convincing evidence, that awarding it permanent custody was in S.H.‘s best interest. Such a determination is not contrary to law, unsupported by the evidence, or against the weight of the evidence. As a result, the trial court did not err in overruling Mother‘s objections and adopting the magistrate‘s decision. Mother‘s assignments of error are overruled.
{¶ 20} We turn now to Father‘s appeal. In his first assignment of error, Father contends MCCS failed to prove, by clear and convincing evidence, that it provided reasonable case planning and made diligent efforts to reunify S.H. with him. Absent such proof, Father
{¶ 21} Upon review, we find Father‘s argument to be without merit. As noted above, the parties do not dispute that S.H. had been in the temporary custody of MCCS for more than twelve months of a consecutive twenty-two-month period when the agency movеd for permanent custody. In light of that fact, which the trial court recognized, MCCS was not required to demonstrate reasonable case planning and diligent efforts at reunification. As this court noted in In re J.R., when the “twelve in twenty-two” requirement has been satisfied, the only remaining issue is whether a grant of permanent custody to MCCS is in a child‘s best interest. Father‘s arguments about reasonable case planning and diligent efforts at reunification go to a different issue, namely whether a child can be placed with either parent within a reasonable time or should not be placed with the child‘s parents. See, e.g., In re J.C., Cuyahoga App. No. 96269, 2011-Ohio-3842, ¶ 18-20. That issue arises when a child has not been in an agency‘s custody for more than twelve months of a consecutive twenty-two-month period. Because S.H. had been in MCCS‘s custody for more than twelve of the preceding twenty-two months, the agency no longer was required to show reasonable case planning and diligent efforts at reunification. Cf. In re A.M., Greene App. No. 2009 CA 41, 2009-Ohio-6002, ¶ 45-47; In re Smith, Miami App. No. 2001-CA-54, 2002-Ohio-1786. Father‘s first assignment of error is overruled.
{¶ 22} In his second assignment of error, Father claims an award of permanent custody to MCCS was not in S.H.‘s best interest. In support, he disputes a finding that placement with him would be a threat to S.H.‘s safety. Father cites his own hearing testimony that he does not pose a safety threat. He also expresses his opinion that S.H. has bonded with
{¶ 23} The foregoing arguments fail to persuade us that the trial court‘s best-interest determination is erroneous. We are unsure precisely what the magistrate and the trial court meant when they characterized Father as posing a threat to S.H.‘s safety. The record does reflect, however, that Father has a history of incarcerations, substance abuse, housing and employment instability, and sporadic contact with S.H. During the hearing below, he admitted not contacting S.H. for many months because he knew he was wanted on a felony warrant. For the reasons set forth more fully аbove, we again conclude that MCCS proved, by clear and convincing evidence, that awarding it permanent custody was in the child‘s best interest. Father‘s second assignment of error is overruled.
{¶ 24} In his third assignment of error, Father asserts that the trial court erred in denying his request for a continuance. His argument, however, actually concerns the magistrate‘s denial of his request to cоntinue the hearing on MCCS‘s permanent custody motion. In support of the request, Father‘s attorney argued below that he had been able to meet with his client only two weeks before the hearing. The magistrate determined that two weeks was sufficient time to prepare. Without a showing of some prejudice by Father‘s counsel, the magistrate overruled the motion. (Trial transcript аt 7-8).
{¶ 25} We will not reverse the denial of a continuance absent an abuse of discretion. Crawford v. Hawes, Montgomery App. No. 23209, 2010-Ohio-952, ¶ 10. Given counsel‘s failure below to identify any particular prejudice that Father suffered by being denied a continuance, we see no abuse of discretion in the magistrate‘s ruling. The third assignment of
{¶ 26} In his fourth assignment of error, Father argues that the trial court erred in “giving weight” to a guardian ad litem‘s repоrt. Father contends the report was entitled to no weight in the trial court‘s custody determination because the guardian ad litem had not spoken to Mother for several months and had not contacted him despite discovering his location two weeks before the hearing.
{¶ 27} Upon review, we find Father‘s argument to be unpersuasive. The guardian ad litem testified at the hearing and wаs subject to cross examination. She explained the basis for her opinions regarding the best interest of S.H. She also responded to questions about her investigation of the case and her interaction with Father and Mother. In addition, Father and Mother testified and were able to explain first-hand what had happened in their lives since their last contact with the guardian ad litem. After reviewing all of the evidence, the trial court was free to assess “the guardian ad litem‘s credibility and determine the weight to be given to [the] report.” In re Sydney J. (Sept. 30, 1999), Ottawa App. No. OT-99-026. We find no merit in Father‘s argument that the trial court was required to disregard the report based on an alleged deficiency in the guardian ad litem‘s investigation. The fourth assignment of error is overruled.
{¶ 28} In his fifth assignment of error, Father contends thе trial court demonstrated bias and prejudice against him by terminating his visitation rights while objections to the magistrate‘s decision were pending. This argument stems from an agreement between the parties that Father would have visitation with S.H. while his objections were pending if he passed a drug test. Father filed a motion below, arguing that he had been arrested on an
{¶ 29} We see no evidence of bias or prejudice by the trial court against Father. In the proceedings below, Father alleged that counsel for MCCS and the guardian ad litem had made the visitation deal despite knowing that he could not perform his obligation. Father did not allege impropriety by the trial court itself, which attempted to remedy the problem upon discovering it. We note, too, that the trial court‘s judgment entry overruling Father‘s objections has rendered moot any issue regarding his visitation rights. The fifth assignment of error is overruled.
{¶ 30} Based on the reasoning set forth above, the judgment of the Montgomery County Common Pleas Court, Juvenile Division, is affirmed.
FAIN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Johnna M. Shia
Cassie L. Screngi
Mark Segreti
Hon. Anthony Capizzi