IN THE MATTER OF: S.M. ADJUDICATED DEPENDENT CHILD.
Case No. 14CA4
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
RELEASED: 06/18/2014
[Cite as In re S.M., 2014-Ohio-2961.]
Harsha, J.
APPEARANCES:
Kathryn Hapner, Hapner & Hapner, Hillsboro, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.
Harsha, J.
{¶1} A.G. appeals the trial court‘s decision that awarded Highland County Children Services (HCCS) permanent custody of her now six-year-old son, S.M. A.G. asserts that clear and convincing evidence does not support the court‘s finding that it was in the child‘s best interest to award permanent custody to HCCS.
{¶2} Initially she argues that the evidence does not support the court‘s finding that the child could not or should not be returned to her within a reasonable time. Because the trial court determined that the child had been in HCCS‘s temporary custody for twelve or more months of a consecutive twenty-two month period, it did not need to also find that the child could not or should not be returned to her within a reasonable time. Thus, any reference in the court‘s judgment to that requirement would be mere surplusage and, any error would be harmless. Therefore, we reject this assignment of error as being moot.
{¶4} A.G. also asserts that the trial court‘s failure to determine the child‘s wishes constitutes reversible error. We agree that the court‘s failure to investigate the child‘s wishes was erroneous, but we do not agree that it constitutes plain error in this case. We cannot conclude the omission was outcome determinative; nor do we believe it seriously affected the basic fairness, integrity, or public reputation of the judicial process. Had the child expressed a desire to return to her mother, the remaining best interest factors still support a decision to award HCCS permanent custody.
{¶5} Accordingly, we overrule A.G.‘s assignments of error and affirm the trial court‘s judgment.
I. FACTS
{¶6} On June 21, 2012, HCCS received a report that A.G. had been arrested on theft charges and learned that she and her four-year-old child had been living in a car for over a week. A.G. signed a voluntary agreement for care and agreed to place
{¶7} HCCS subsequently developed a case plan that required A.G. to complete a mental health assessment and follow treatment recommendations, take medication as prescribed, maintain stable housing for at least six months, and comply with her non-reporting probation. A.G. later started living with her boyfriend, J.J., and HCCS added him to the case plan. The case plan required J.J. to complete a substance abuse assessment, follow recommended treatment, obtain stable income, and comply with probation.
{¶8} A July 2013 case plan review noted that A.G. recently obtained housing after a lengthy period of homelessness, but the home was in disrepair and not suitable for the child. Moreover, A.G. did not have a job or stable income and did not have the ability to provide for the child‘s basic needs. J.J. also did not have a job or stable income.
{¶9} On December 11, 2013, HCCS filed a motion to modify the disposition to permanent custody. HCCS asserted that the child had been in its temporary custody for at least twelve of the past twenty-two months under
{¶10} The guardian ad litem filed a report. The guardian ad litem observed that the child‘s foster home is a safe and stable environment and that the child appears bonded with the foster family. The guardian ad litem also noted that he had not interviewed the child to ascertain the child‘s wishes, but he recommended that the court award HCCS permanent custody of the child.
{¶11} The court held the permanent custody hearing and upon the agency‘s motion added a request under
{¶12} HCCS caseworker Tonya Farley testified that HCCS developed a case plan in order to alleviate the concerns regarding the child‘s care and to reunify the child with A.G. She explained that the case plan required A.G. to (1) address her mental health issues by completing an assessment and following treatment recommendations, (2) maintain stable housing and employment for at least six months, and (3) comply with the terms of her non-reporting probation. Farley testified that although A.G. completed a mental health assessment, she did not attend all of her subsequent appointments, and thus, the provider terminated her from the program. Farley stated that A.G. has an appointment scheduled later in February 2014, and that A.G. made the appointment shortly before the permanent custody hearing. Farley stated that throughout the time she worked with A.G., A.G. “has moved around quite a bit.” Farley testified that A.G.‘s current residence is “appropriate,” but that A.G. has not maintained any home for at least six months. Farley also testified that A.G. planned to obtain Social Security
{¶13} Highland County Family Advocacy Center Visitation Monitor Deloris Colville stated that eighty-three visits were made available to A.G., but she attended only fifty-four. Colville explained that A.G. failed to confirm eleven visits and canceled twelve. The foster parent canceled two due to illness, and three were canceled due to inclement weather. Colville stated that the child is “very bonded” to A.G. and calls her “mom.”
{¶14} The child‘s foster mother stated that the child has resided in her home since June 21, 2012. She explained that when the child first entered her home, he did not speak well and did not know how to use a pencil, a crayon, or scissors. The foster mother stated that she enrolled the child in speech and occupational therapy to address these concerns, and the child has improved “[a] hundred percent.” She testified that the child calls her “mom” and her husband “dad.” The foster mother stated that she is bonded to the child, and the child is bonded to the family. She further explained that the child visits A.G. and does not appear upset or unhappy before or after the visits, but instead, the child appears to have “fun” during the visits. She testified that she and her husband are willing to adopt the child if the court awards HCCS permanent custody.
{¶16} J.J.‘s mother testified she lives in a one-bedroom apartment with A.G. and her son. She admitted that she had been convicted of possession of methamphetamine.
{¶17} The trial court awarded HCCS permanent custody of the child. The court found that HCCS received temporary custody of the child on August, 1, 2012, and that the child has remained in HCCS‘s custody since that time. The court thus determined that the child has been in HCCS‘s temporary custody for twelve or more months of a
“[The child] has been residing in the same foster home since June 21, 2012. According to his foster mother he is very bonded with each member of his foster family and interacts extremely well with each member. If afforded the opportunity the foster parents will adopt [the child].
The evidence also established [the child] is still bonded with his mother and interacted well with her during visits * * * *. However the Court notes the mother has been given the opportunity to visit [the child] 83 times * * * but made the effort to visit only 54 times or 65% of available time. The Court is of the opinion only 5 of the 29 missed visits were not the fault of the mother and therefore she elected not to visit [the child] 24 times without a justifiable excuse.
The Court was not asked to interview [the child] and the Guardian Ad Litem elected not to interview the child. Therefore the wishes of [the child] are unknown to the Court.
* * * *
The Court is of the opinion [the child] is in need of a legally secure permanent placement which currently cannot be achieved without granting the Agency permanent custody.”
{¶18} The court additionally considered A.G.‘s case plan compliance and explained:
“The Court considers the mental health component of the case plan to be a significant requirement for reunification. The mother started but elected not to comply with her mental health counselling [sic] on several occasions. It is disingenuous for the mother to have this Court believe she is now willing to complete that component of her case plan when she has had since September of 2012 to do so.
The same analysis applies to obtaining stable housing. The mother has resided in multiple locations, including the Clinton County Homeless Shelter, since this action was initiated[,] electing to reside in each for a few months. The Court notes the mother was living in a car when the complaint was filed in this action. She has lived at her current residence, a one bedroom apartment, with her boyfriend, another infant child and the mother of her boyfriend who has been convicted for possession of methamphetamine for less than two months. This Court does not extol the decisions of the mother in her choice of residences or those she has permitted to reside with her. Clearly she has chosen not to obtain a safe, stable or healthy environment in which for [the child] to reside. The Court disagrees with the Agency worker who testified the home is ‘appropriate.’
When conflating the evidence it is clear to this Court the mother has elected not to take the steps required to have [the child] returned to her care and
custody and that she has been afforded more than adequate opportunity to do so. Her decisions for the past twenty months are not ones indicative of a mother who is willing to make the sacrifices necessary to have her son returned to her custody and provide him a safe and nurturing environment. The Court finds by clear and convincing evidence it is in the best interest of [the child] to grant permanent custody to the Agency. The mother has done far too little far too late to convince this Court the case should be extended. The Court also notes the Guardian Ad Litem in his timely filed report recommended the motion be granted. [The child] has not resided with his mother for twenty months and it is time to provide him a permanent and stable home environment in which to thrive.”
II. ASSIGNMENT OF ERROR
{¶19} A.G. raises two assignments of error:
First Assignment of Error: “The trial court erred in finding by clear and convincing evidence that it was in the best interest of S.M. to grant permanent custody to the agency pursuant to [R.C.] 2151.414(D).”
Second Assignment of Error: “The trial court erred by not determining the wishes of the child as required by [R.C.] 2151.414(D)(2).”
III. ANALYSIS
{¶20} A.G.‘s first and second assignments of error challenge the trial court‘s decision to award HCCS permanent custody of the child. Because the same general principles apply to both, we consider them together.
{¶21} In her first assignment of error, A.G. asserts that the trial court‘s finding that the child cannot or should not be returned to her care is unsupported by clear and convincing evidence. A.G. contends that she has substantially remedied the conditions that led to the child‘s initial removal from her home. A.G. further argues that the trial court failed to analyze the best interest factors, which she contends are contained in
{¶22} In her second assignment of error, A.G. argues that the trial court erred by failing to consider the child‘s wishes.
{¶23} “A reviewing court generally will not disturb a trial court‘s permanent custody decision unless the decision is against the manifest weight of the evidence.” In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶29; accord In re J.V.-M.P., 4th Dist. Washington No. 13CA37, 2014-Ohio-486, ¶11. To determine whether a permanent custody order is against the manifest weight of the evidence, an appellate court must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving evidentiary conflicts, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. R.S. at ¶30, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶20. In reviewing the evidence under this standard, we must defer to the trial court‘s credibility determinations because of the presumption in favor of the finder of fact. In re R.S. at ¶33, citing Eastley at ¶21. Additionally, deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); accord In re Christian, 4th Dist. No. 04CA 10, 2004-Ohio-3146, 2004 WL 1367399, ¶7. As the Ohio Supreme Court long-ago explained:
“In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by printed record.”
{¶24} In a permanent custody case, the dispositive issue on appeal is “whether the juvenile court‘s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶43; accord
B. PERMANENT CUSTODY PRINCIPLES
C. PERMANENT CUSTODY FRAMEWORK
{¶26}
(a) The child is not abandoned or orphaned or has not 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, 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.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The 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.
{¶28} In the case at bar, A.G. does not challenge the trial court‘s
D.
“In determining * * * 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, * * * that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent * * * [.]”
The statute then outlines sixteen factors for a trial court to consider. Because the factors A.G. cites do not relate to the best interest analysis, her argument that the factors do not support the trial court‘s best interest finding is meritless. Furthermore, to the extent A.G. asserts that the trial court improperly relied upon them when determining that the child cannot or should not be returned to her within a reasonable time under
E. BEST INTEREST
{¶31} “In a best-interests analysis under
{¶32} Our focus here is on the child‘s wishes “as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the child‘s maturity.”
{¶33} Despite her assertion that the trial court‘s failure to consider the child‘s wishes constitutes reversible error, A.G. never objected to the guardian ad litem‘s failure to interview the child; she never questioned the guardian ad litem regarding the child‘s wishes; she never requested the trial court to conduct an in camera interview of the child; and she never objected to the trial court‘s failure to do so. Thus, appellant failed to preserve this issue for appellate review. See In re M.C., 9th Dist. Summit No. 24797, 2009-Ohio-5544, ¶36 (determining that parent‘s argument trial court erred by failing to consider child‘s direct wishes lacked merit when parent “did not request that his child testify at the hearing, nor did he ask the trial judge to conduct an in camera interview of the child“). See, generally, State v. Clinkscale, 122 Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862, ¶31 (stating that a party must timely object to preserve error for appeal); Stores Realty Co. v. City of Cleveland, Bd. of Bldg. Standards and Bldg. Appeals, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975) ( “Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, are waived and may not be raised upon appeal.“). Thus, our review is limited to a plain error analysis.
{¶35} In this case, the court obviously deviated from a legal rule, i.e., it failed to consider the child‘s wishes—one of the express factors outlined in
{¶36} But here we deal with plain error. Thus, even if the child had directly expressed a wish to live with A.G., this one factor alone would not require the trial court to deny HCCS permanent custody. Instead, the child‘s wishes are but a factor for the trial court to weigh along with others outlined in
{¶37} Regarding the child‘s interactions and interrelationships, the evidence shows that the child is bonded with the foster family. The child also is bonded with A.G. However, A.G.‘s past conduct shows that she did not fully commit to being reunited with her child. Instead, she made half-hearted attempts to comply with the case plan and only at the eleventh hour sought to again comply with the case plan. Furthermore, A.G. failed to exercise all of her opportunities to visit with the child, thus demonstrating that she lacked an absolute commitment to her child. A.G. may share a loving relationship with her child, but she has failed to take full advantage of continuing to maintain that relationship. With respect to the child‘s custodial history, the evidence shows that the child has been in HCCS‘s temporary custody for well-over twelve months. Additionally, the child has been out of A.G.‘s care since June 21, 2012, and has lived in the same foster home since that time. The evidence also supports the court‘s finding that the child could not achieve a legally secure permanent placement without granting HCCS
{¶38} As a final point, we admonish trial courts to carefully apply each factor outlined in
{¶39} Accordingly, we overrule A.G.‘s two assignments of error and affirm the trial court‘s judgment.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.