IN RE: T.A.M., ADJUDICATED DEPENDENT CHILD. [NATHAN MCIE - APPELLANT]
CASE NO. 3-18-13
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
December 17, 2018
2018-Ohio-5058
Appeal from Crawford County Common Pleas Court Juvenile Division Trial Court Nos. C 2165118 and F 2185059 Judgment Affirmed
Adam Charles Stone for Appellant
Michael J. Wiener for Appellee
O P I N I O N
{¶1} Appellant, Nathan McIe (“McIe“), appeals the June 8, 2018 decision of the Crawford County Court of Common Pleas, Juvenile Division, awarding permanent custody of his minor child, T.A.M., to Crawford County Job and Family Services (the “agency“). For the reasons that follow, we affirm.
{¶2} McIe is the adoptive father and sole parent of T.A.M. (See Case No. F2185059, Doc. No. 5). On Novembеr 18, 2016, T.A.M. reported that he had been sexually abused by McIe. (See Case No. C2165118, Doc. No. 22). McIe was subsequently arrested and charged with three counts of rape and one count of disseminating matter harmful to juveniles. (Id.). (See Case No. F2185059, Doc. No. 5, State‘s Ex. 2). McIe remained in the Crawford County Jail throughout the pendency of the majority of T.A.M.‘s case. (See Case No. F2185059, Doc. No. 5, State‘s Ex. 3).
{¶3} On November 22, 2016, the agency filed a complaint under
{¶4} At a hearing on December 20, 2016, the agency orally moved to amend the complaint from alleging that T.A.M. is an abused child to alleging that T.A.M.
{¶5} On May 11, 2017, the trial court approved the agency‘s case plan regarding T.A.M. and incorporated that plan into its entry. (Case No. C2165118, Doc. No. 22). On November 21, 2017, the agency filed a motion requesting that the trial court grant an extension of the agency‘s temporary custody over T.A.M. and approve an amendment to the case plan. (Case No. C2165118, Doc. No. 27). That same day, the trial court granted the agency‘s motion, extended the agency‘s temporary custody of T.A.M., and approved and adopted the amendment to the case plan. (Case No. C2165118, Doc. No. 28).
{¶6} On February 12, 2018, McIe pleaded guilty to one count of unlawful sexual conduct with a minor in violation of
{¶7} On April 30, 2018, the agency filed a motion for permanent custody of T.A.M. (Case No. F2185059, Doc. No. 1). The motion also included a request for the trial court to approve and adopt a second amendment to the case plan. (Id.). On June 5, 2018, T.A.M.‘s GAL filed his report recommending that the trial court award permanent custody of T.A.M. to the agency. (Case No. F2185059, Doc. No. 5). Following a June 5, 2018 hearing, the trial court granted permanent custody of T.A.M. to the agency and approved and adopted the second case plan amendment on June 8, 2018. (Case No. F2185059, Doc. No. 6).
{¶8} On June 12, 2018, McIe filed a notice of appeal. He raises one assignmеnt of error.
Assignment of Error
Crawford County Job and Family Services Did Not Comply with Statutory and Administrative Requirements in Its Ongoing Reasonable Efforts to Reunify the Minor Child, T.A.M. (date of birth: * * *, 2004) with his Parents.
{¶9} In his assignment of error, McIe argues that the trial court erred by awarding permanent custody of T.A.M. to the agency. Specifically, McIe argues
{¶10} The right to raise one‘s child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.
{¶11} ”
may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to [
R.C. 2151.414(A) ], by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that * * *:(a) The child is not abandoned or orphaned, has not been in the temрorary 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, * * * 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. * * *
(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 * * *.
{¶12}
In determining at a hearing held pursuant to [
R.C. 2151.414(A) ] * * * 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, byclear and convincing evidence, at a hearing held pursuant to [ R.C. 2151.414(A) ] * * * 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 plаced with either parent:* * *
(3) The parent committed any abuse as described in [
R.C. 2151.031 ] against the child, caused the child to suffer any neglect as described in [R.C. 2151.03 ], or allowed the child to suffer any neglect as described in [R.C. 2151.03 ] between the date that the original complaint alleging abuse or neglect was filed and the date of the filing of the motion for permanent custody;* * *
(5) The parent is incarcerated for an offense committed against the child * * *;
* * *
(7) The parent has been convicted оf or pleaded guilty to one of the following:
* * *
(b) An offense under [
R.C. 2903.11 ] * * * and the victim of the offense is the child * * *;* * *
(d) An offense under * * * [
R.C. 2907.04 ] * * * and the victim of the offense is the child * * *;* * *
(12) The parent is incarcerated at the time of the filing of the motion for permanent custody * * * and will not be available to care for the child for at least eighteen months after the filing of the motion for permanent custody * * *.
{¶13} “‘If the trial court determines that any provision enumerated in
{¶14} “Under
(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 * * *;
(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.
{¶15} If the trial court makes these statutorily required determinations, a reviewing court will not reverse a trial court‘s decision unless it is not supported by clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985) and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence is that which is sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re S.G., 2015-Ohio-2306, at ¶ 10, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶16} McIe does not appear to challenge any of the trial court‘s findings under
{¶17} Nevertheless, although he does not frame his arguments as such, we interpret McIe‘s arguments as challenging the trial court‘s bеst-interest findings under
{¶18} With respect to
{¶20} In addition, Rachel testified that McIe suggested four potential placements for T.A.M.—Ellen Gregory, Gina Gregory, Gartrell McIe, and Iva. (Id. at 9). She stated that the agency did not establish contact with either of the Gregorys or with Gartrell McIe. (Id. at 9-10). As to potential placement with Iva, Rachel testifiеd that although Iva requested that she be considered as a placement for
{¶21} On cross-examination, Rachel agreed with McIe‘s counsel‘s assertion that the agency was required to use reasonable efforts to “maintain the child in the home” and to “keep the child with the family, if possible.” (Id. at 11). She stated that when T.A.M. was removed from McIe‘s custody, McIe, Iva, and T.A.M. were all residing in the same home. (Id. at 13). Rachel testified that the agency did not conduct a home study on Iva, did not run a background check on Iva, and did not provide Iva with any services under the case plan. (Id. at 12). She confirmed that Iva was excluded as a potential placement for T.A.M. due to substantiated allegations arising from T.A.M.‘s case. (Id.). Rachel stated that although Iva attempted to contact the agency, the agency did not provide services, assessments, or referrals for Iva. (Id. at 12, 14).
{¶22} Rachel reiterated that T.A.M. had nоt made much progress at Boys Village, that he continued to act out in a sexual manner, and that Boys Village had reported that T.A.M. was “very off” the day he saw Iva. (Id. at 14-15). Regarding T.A.M.‘s prospects for adoption, Rachel testified that the agency‘s
{¶23} On еxamination by T.A.M.‘s GAL, Rachel testified that T.A.M. was removed from the home because McIe was the sole custodial parent of T.A.M. and Iva did not have custody of T.A.M. (Id. at 17). She testified that regardless of the fact that T.A.M. was also living with Iva at the time he was removed, he would have been removed because McIe was T.A.M.‘s only residential parent. (Id.). Rachel
{¶24} Furthermore, Rachel testified that despite T.A.M.‘s lack of progress in the program, it would be in his best interest to remain in the program. (Id. at 18). Rachel agreed with T.A.M.‘s GAL‘s assessment that removing him from the program and placing him “back home” would “be setting him up to fail most likely because of his behaviors[,] * * * he would offend on someone.” (Id.). Raсhel testified that the fact that T.A.M. had not successfully completed the program did not mean that he could not complete the program. (Id.). Although she could not speculate on T.A.M.‘s chances of being adopted, she opined that T.A.M. would have a greater chance of being adopted if the agency gained permanent custody over him so that he could complete the program at Boys Village. (Id. at 20-21).
{¶25} On re-cross-examination, Rachel testified that she believed that other children had been removed from Iva‘s care and custody but that she could not remember with certainty the year in which the children were removed. (Id. at 22). She identified the two children but “could not tell * * * why they were removed.” (Id.). Rachel testified that she only knew that two children were removed from the home but she could not state why they were removed or whether Iva was at fault. (Id. at 23). She further testified that T.A.M. continued to have “sexual behaviors”
{¶26} Therefore, the record establishes that the agency and the trial court considered a slate of alternative placements for T.A.M. in lieu of permanent custody. First, the record demonstrates that three suggested relative placements were excluded from consideration due to their failure to establish contact with the agency. Furthermore, the record supports that Iva was not a suitable candidate for placement of T.A.M. due to previous exclusionary contact with the agency and substantiated allegations arising out of the same case that necessitated T.A.M.‘s removal from McIe‘s custody. Finally, it is clear that, despite T.A.M.‘s lack of progress in the program at Boys Village, granting permanent custody to the agency in order to allow T.A.M. to complete the program affords him the best chance оf eventually settling into a safe, stable, and secure home environment. Removing T.A.M. from the program and placing him with Iva would deprive him of much needed therapeutic resources and would likely frustrate the efforts to help T.A.M. cope with the abuse inflicted on him by McIe. In sum, clear and convincing
{¶27} McIe‘s assignment of error is overruled.
{¶28} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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