In re S.R.
Decided: June 5, 2013
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Kyle J. Bristow, for appellant L.S.
Laurel A. Kendall, for appellant S.R.
Julie C. Taylor, for appellee.
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SINGER, P.J.
{¶ 1} This is a consolidated appeal from a judgment issued by the Court of Court of Common Pleas, Juvenile Division, terminating appellants’ parental rights and granting
{¶ 2} Appellant, L.S. is the biological father of S.R. (“the child“), born in 2008. Appellant, S.R. is the biological mother of the child. On June 14, 2010, LCCS filed a complaint alleging dependency and neglect of the child. Following an adjudication hearing, a magistrate found the child to be neglected and dependent and awarded LCCS temporary custody of the child. On November 29, 2010, the court adopted the magistrate‘s decision. On December 7, 2011, LCCS filed a motion for permanent custody of the child. The motion was granted on November 7, 2012.
{¶ 3} Appellant, L.S., sets forth the following assignment of error:
I. The trial court‘s decision to terminate L.S.‘s parental rights with his daughter was not supported by clear and convincing evidence.
{¶ 4} Appellant, S.R., sets forth the following assignments of error:
I. The court‘s grant of permanent custody to Lucas County Children Services was not supported by clear and convincing evidence.
II. The trial court‘s failure to issue written findings of fact stating the reasons supporting its “reasonable efforts” determinations constitutes prejudicial and reversible error as a matter of law.
{¶ 5} Both appellants, in their first assignments of error, contend that the court lacked clear and convincing evidence to grant permanent custody of their child to LCCS.
{¶ 6} A trial court‘s determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence. In re Andy–Jones, 10th Dist. No. 03AP–1167, 2004–Ohio–3312, ¶ 28. The factual findings of a trial court are presumed correct since, as the trier of fact, it is in the best position to weigh the evidence and evaluate the testimony. In re Brown, 98 Ohio App.3d 337, 648 N.E.2d 576 (3d Dist.1994). Moreover, “[e]very reasonable presumption must be made in favor of the judgment and the findings of facts [of the trial court].” Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988). Thus, judgments supported by some competent, credible evidence going to all essential elements of the case are not against the manifest weight of the evidence. Id.; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 7} A juvenile court may grant permanent custody of a child to a public services agency if the court finds, by clear and convincing evidence, two statutory prongs: (1) the existence of at least one of the four factors enumerated in
{¶ 8} In making a finding under
{¶ 9} Once a finding is made by the court satisfying one of the factors enumerated in
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether 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;
(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 10} The factors set forth in
{¶ 11} Ohio courts uniformly hold that “[n]on-compliance with a case plan is grounds for termination of parental rights.” In re Campbell, 138 Ohio App.3d 786, 742 N.E.2d 663 (10th Dist.2000).
I. Appellant L.S.
{¶ 12} L.S. testified that he was incarcerated for domestic violence when the child was born. Upon his release, he moved in with S.R. and the child. Less than a month later, he was incarcerated again. He is now currently serving a four year prison sentence for burglary. He testified that he would like to see custody of the child go to his sister, D.S., in Tennessee.
{¶ 13} D.S. testified that she would like to adopt S.R. because “she‘s family.” She acknowledged that she has had very minimal contact with the child, who was born in 2008. She also admitted to having a substance abuse problem ten years ago and she testified that she does not get along with her brother, L.S.
II. Appellant S.R.
{¶ 14} LCCS caseworker Tymeeka Gipson testified that she first became involved in this case in 2010 when it was reported to LCCS that S.R. was only feeding her two year-old child liquid nutritional supplements, such as brands Ensure, Boost and Pedialyte, because S.R. did not want the child to “get fat.” She was known to leave the child alone or threaten to taser her neighbors if they refused to watch the child while she was at work. During the brief period of time L.S. was out of prison and living with S.R., S.R. left the child with L.S. while she went to work. On one such occasion, S.R. locked her apartment from the outside, leaving L.S. and the child locked in her third floor apartment for 16 hours with no means of safely escaping. S.R. claimed she worked 16-18 hours a day although no one at LCCS was able to confirm she was employed as S.R. refused to disclose her employer.
{¶ 15} A diagnostic assessment found S.R. to be suffering from adjustment disorder, cyclothymic disorder, delusional disorder and personality disorder. A case plan was developed by LCCS with recommended mental health services such as anger management classes. Gipson testified that S.R. is very aggressive and was frequently threatening LCCS staff at their agency. It was also recommended that she take
{¶ 16} The guardian ad litem (“GAL“) for the child agreed with Gipson‘s recommendation for permanent custody. She testified that she frequently visited the child at her foster home and that the child, at the age of four, appears to have adjusted very well to her surroundings. She also added that she believes all of the child‘s needs are being met in the foster home. The GAL testified that her attempts to observe S.R. interact with the child were made difficult by S.R.‘s openly hostile attitude towards her. The GAL noted that she had previously been involved with S.R. as a GAL when S.R. lost custody of her older child. In sum, the GAL testified that S.R.‘s refusal to acknowledge
III. The Trial Court‘s Decision
{¶ 17} In its judgment entry granting LCCS permanent custody, the court found there was clear and convincing evidence, pursuant to
{¶ 18} The court also found that there was clear and convincing evidence, pursuant to
{¶ 19} Based on our review of the record as summarized above, we find that the trial court‘s decision was supported by clear and convincing evidence. Accordingly, both of appellants’ first assignments of error are found not well-taken.
{¶ 20} In her second assignment of error, appellant S.R. contends that the court erred in failing to issue findings of fact and conclusions of law supporting the court‘s determination that reasonable efforts were made to prevent the child‘s removal from S.R.
{¶ 21} In a reasonable efforts determination, the issue is not whether the agency could have done more, but whether it did enough to satisfy the reasonableness standard under the statute. In re Myers, 4th Dist. No. 02CA50, 2003–Ohio–2776, ¶ 18. A “reasonable effort” is an “honest, purposeful effort, free of malice and the design to defraud or to seek an unconscionable advantage.” In re Weaver, 79 Ohio App.3d 59, 63, 606 N.E.2d 1011 (12th Dist.1992).
{¶ 22} The trial judge found that LCCS made “more than reasonable efforts to prevent the need to remove the child.” These efforts were detailed in the judgment entry including the fact that Caseworker Gipson met S.R. face to face on a monthly basis while S.R. was attempting to complete her case plan. Because of S.R.‘s hostility and uncooperativeness during these meetings, specific security protocols were put in place to secure the safety of Gipson, as well as everyone else present in the building at that time. While she initially regularly attended visitation with her child, her visitations were ultimately suspended due to inappropriate behavior with the child. The judgment entry notes that LCCS offered her numerous psychological and psychiatric services, some of
{¶ 23} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, P.J.
Thomas J. Osowik, J.
Stephen A. Yarbrough, J. CONCUR.
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JUDGE
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JUDGE
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.