Case Information
*1
[Cite as
In re T.A.
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
IN RE: T.A. C.A. Nos. 13CA010439 T.A. 13CA010445 APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 11JC33947 11JC33948 DECISION AND JOURNAL ENTRY
Dated: December 23, 2013
HENSAL, Judge. Appellants. Brytny M. (“Mother”) and T.A. (“Father”) appeal from a judgment of
the Lorain County Court of Common Pleas, Juvenile Division, that terminated their parental rights to their two minor children and placed them in the permanent custody of Lorain County Children Services (“LCCS”). This Court affirms.
I. Mother and Father are the natural parents of twins, T.A. and T.A., born Dеcember
27, 2009. At the time this case began, the children were living with Mother, who was a minor at that time, and the maternal grandmother. The agency had received a variety of referrals about problems in the home, including that the twins’ basic daily needs were not being met and that they were sometimes left home alone. The children had also required hospital treatment because one of them ingested cocaine and the other was covered with bedbug bites. LCCS also had concerns about illegal drug use by both parents and allegations concerning Mother’s mental health. On August 21, 2011, LCCS filed dependency and neglect complaints, and the children were remоved from Mother’s custody. The trial court later adjudicated them neglected and dependent children.
{¶3} Although the children were placed with a maternal great-grandmother for a period of time, she later informed LCCS that she was no longer able to care for the children. The children were then placed in a fostеr home where they remained throughout this case. During the next year, Mother made minimal progress on the reunification goals of the case plan. Specifically, she had not taken substantial steps toward achieving sobriety or addressing her mental health problems. Father initially made progress in substance abuse treatmеnt and was eventually allowed to have an overnight visit with the children. Shortly afterward, however, Father began missing parenting classes and other case plan appointments and did not maintain contact with the caseworker or guardian ad litem. Because Father’s whereabouts were unknown at that point, LCCS decided that rеunification with Father was no longer a viable option for the children. LCCS had been unable to find a suitable relative who was willing to provide a
permanent home for the children, so it moved for permanent custody of T.A. and T.A. Although a paternal great-grandmother had made some contact with the caseworker, she livеd in Florida and had not complied with the caseworker’s suggestions that she become more involved with the case by working a case plan, communicating regularly with the caseworker, and/or participating in periodic family team meetings via telephone. On the day initially set for the permanent custody hearing, both рarents stipulated
that the children could not be returned to their custody because they had failed to remedy their problems with substance abuse. See R.C. 2151.414(E)(1). They asked, however, that the paternal great-grandparents be considered as legal custodians for the children. Because the great-grandparents lived in Florida and did not have an established relationship with the children, the trial court continued the best interest hearing to allow the great-grandparents more time to visit the children and demonstrate that they could provide T.A. and T.A. with a suitable permanent home. The trial court journalized the results of the first hearing, including that the matter would reconvеne on May 6, 2013 for a hearing on the children’s best interests. The journal entry further indicated that, “[a]t that time, the Court will consider paternal great grandparents as potential relative placements.” On May 6, 2013, the best interest hearing was held before the trial judge.
Although the paternal great-grandparents had not formally moved for legal custody, the hearing proceeded with the parties presenting evidence about the following alternate placements for the children: legal custody or temporary placement with the great-grandparents or permanent custody to the agency. Ten days after the hearing, and before the trial court had issued its judgment, it
notified the parties that the foster father had passed away. During the next three weeks, none of the parties filed anything with the trial court to assert that the foster father’s death should affect the court’s ultimate judgment. On June 10, 2013, the trial court issued its final judgment. It found that permanent custody to LCCS was in the best interests of T.A. and T.A. and terminated the parents’ rights. Father and Mother separately appealed and their appeals were later consolidated. Father raises two assignments of error and Mother raises one.
II.
FATHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY TO THE AGENCY RATHER THAN LEGAL CUSTODY TO PATERNAL GREAT-GRANDPARENTS, DESPITE DISCOVERING A MATERIAL CHANGE IN CIRCUMSTANCES FOLLOWING THE PERMANENT CUSTODY HEARING.
{¶8}
Father’s first assignment of error argues that, when the trial court learned about
the foster father’s death shortly after the рermanent custody hearing, it should have either: (1)
held another hearing to allow the parents to cross-examine witnesses about the impact of his
death on the court’s permanent custody decision, or (2) placed the children with the paternal
great-grandparents because the foster parents were no lоnger a viable adoptive placement.
As indicated already, after the trial court learned about the foster father’s death, it
journalized that fact on the record and notified all parties. The court then waited more than three
weeks before it issued its final judgment. During that three-week period, however, Father did
nоt ask the trial court to take evidence about the death of the foster father. In fact, none of the
parties filed anything with the court to assert that the death of the foster father could or should
have any impact on the permanent custody decision. Because Father raises this issue for the first
time on appеal and does not argue plain error, this Court need not reach the merits of his
assigned error.
See In re J.G.
, 9th Dist. Wayne No. 12CA0037,
FATHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT’S JUDGMENT THAT PERMANENT CUSTODY TO THE AGENCY WAS IN [THE CHILDREN’S] BEST INTERESTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
MOTHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN VIOLATION OF MOTHER’S [RIGHTS UNDER THE] FOURTEENTH AMENDMENT TO THE UNTIED STATES CONSTITUTION DUE PROCESS CLAUSE AND ARTICLE I SECTION SIXTEEN OF THE OHIO CONSTITUTION IN FINDING THAT PERMANENT CUSTODY WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, AND IN TERMINATING APPELLANT’S PARENTAL RIGHTS WHEN THE TRIAL COURT’S JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This Court will address Father’s second assignment of error and Mother’s sole
assignment of error together because they are closely related. Each parent asserts that the trial court’s best interest decision was not supported by the evidence. Although Mother also argues that the trial court made errors in finding that the children could not or should not be returned to her custody, both parents waived any challenge to the trial court’s finding under R.C. 2151.414(E)(1) by stipulating on the record that the first prong of the permanent custody test had been satisfied on that ground. Mother’s brief includes additional arguments, such as the effectiveness of her trial counsel in entering such a stipulation, which this Court will disregard because she did not separately assign them as error. See App.R. 12(A)(1)(b) and App.R. 12(A)(2). This Court will confine its review to the evidence supporting the permanent custody decision. Before a juvenile court may terminate parental rights and award permanent
custody of children to a children services аgency, it must find clear and convincing evidence of both prongs of the permanent custody test that: (1) the children are abandoned, orphaned, have been in the temporary custody of the agency for at least 12 months of the prior 22 months, or that the children cannot be placed with either parent within a reasonable time or should not be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent custody to the agency is in the best interest of the children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S. , 75 Ohio St.3d 95, 99 (1996). The trial court found that the first prong of the permanent custody test had been
satisfied, based on a stipulation by all parties, that the children could not or should not be
returned to either parent’s custody because they had failed to remedy the problems that caused
the continued removal of the children from their custody.
See
R.C. 2151.414(E)(1). The parties
litigated only whether permanent custody was in the best interests of the children. Although the
parents conceded that they were not able to provide their children with a suitable home at that
time, they argued that the children should be placed with their paternal great-grandparents.
Although the great-grandparents did not formally move for legal custody of the
children, the trial court issued a journal entry on March 4, 2013, stating that it would take
evidence at the best interest hearing to determine whether it should place the children with the
great-grandparents. Because the trial court’s decision whether to place the children in the
custody of the paternal great-grandparents was also based on the best interest of the children,
“this Court typically conducts a single ‘best interest’ review of the trial court’s decision to place
the child[ren] in the permanent custody of the agency rather than in the legal custody to a
relative.”
In re I.A
., 9th Dist. Summit No. 26642,
interests, the juvenile court must consider the following factors:
(a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home рroviders, 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 * * *;
(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 * * *.
R.C. 2151.414(D)(1)(a)-(d). [1] The interaction between the great-grandparents and the children had been very
limited during the lives of these young children. The great-grandparents lived in Florida and, although the great-grandmother testified that she visited Ohio every summer, her husband apparently did not, and she did not explain the extent of contact, if any, that she had with the сhildren before they were removed from Mother’s custody. When the great-grandmother first contacted LCCS to express interest in providing an alternate placement for the children, the caseworker encouraged her to work a case plan at the same time as the parents, in case reunification with onе or both parents was not possible. Nevertheless, although the great- grandmother communicated with Father and the maternal grandmother about what was happening in the case and tried to assist Father behind the scenes, she did not start working with LCCS to consider placing the children with her until it became apparent that reunificаtion with Father would not be possible. During the first year of the case, the great-grandmother did not visit the children,
work on a reunification plan, or even participate in family team meetings via telephone. The caseworker, a 15-year veteran at LCCS, testified that she has worked with many nonparent relatives and that she сould “usually get a pretty good indicator of how serious a relative is” about providing a home for the children by how often they call her, how long they stay on the phone with her, and the types of questions that they ask. She would expect a relative who seriously wanted to keep the children with family and out of foster care to have become involved in family team meetings and call her often to check on the children. These grandparents, however, did not call the caseworker to ask about the children. Instead, they waited almost a year before they started working with LCCS, allowing the children to remain in foster care and assimilate intо another family.
{¶18} After visits with the children began, the great-grandmother visited the children only a few times and her husband visited them only once. During the visits with the children, the great-grandmother showed no affection toward them and would tend to watch them play with each other rather than interacting with them. The guardian ad litem opined that the children werе not comfortable with the great-grandparents and that there was no loving bond between them. The guardian ad litem further testified that the great-grandmother did not redirect their misbehavior even when they were throwing toys or hitting each other.
{¶19} In contrast to the distant interaction between the children and their great- grandparents, the guardian testified about the positive interaction between the children and their foster mother. The foster mother was attentive, loving, and provided the children with firm boundaries. The children’s speech and behavior had improved and they were thriving in the stable and loving environment in their foster home. Because the children were only thrеe years old at the time of the permanent
custody hearing, the guardian ad litem spoke on their behalf. She opined that permanent custody was in their best interests. She did not believe that the great-grandparents could provide them with a suitable home because they were not very attentive to the children and had no bond with them. She further testified that “[t]he children don’t know these grandparents.” By the time of the permanent custody hearing, the children had spent most of their lives in temporary homes and were in need of a legally secure permanent placement. Their parents were unable to provide them with a suitable home at that timе or in the foreseeable future and LCCS had been unable to find a relative who was dedicated to providing them with a suitable permanent home. Consequently, the trial court reasonably concluded that a legally secure permanent placement would only be achieved by terminating parental rights and placing the children for adoption. There was ample evidence before the trial court to support its conclusion that
permanent custody to LCCS was in the best interests of T.A. and T.A. Father’s second assignment of error and Mother’s sole assignment of error are overruled.
III. The parents’ assignments of error are overruled. The judgmеnt of the Lorain
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hеreof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JENNIFER HENSAL FOR THE COURT MOORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
ROBERT CABRERA, Attorney at Law, for Appellant.
KATHLEEN M. AMERKHANIAN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and FAYE LIST, Assistant Prosecuting Attorney, for Appellee.
Notes
[1] The factor set forth in R.C. 2151.414(D)(1)(e) does not apply to the facts of this case.