In re Z.S.
Steven H. Eckstein, Washington Court House, Ohio, for Appellant Mother.
Autumn D. Adams, Toledo, Ohio, for Appellant Father.
Justin Lovett, Jackson County Prosecuting Attorney, and William L. Archer, Jr., Assistant Jackson County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
ABELE, J.
{1} This is a consolidated appeal from a Jackson County Common Pleas Court, Juvenile Division, judgment that granted Jackson County Job and Family Services, appellee herein, permanent custody of two-year-old Z.S.1
“THE TRIAL COURT‘S GRANT OF PERMANENT CUSTODY TO THE JACKSON COUNTY JOBS AND FAMILY SERVICES CHILDREN‘S DIVISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{3} The child‘s biological father also raises the following assignment of error:
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED PERMANENT CUSTODY [OF] ZS TO CHILD PROTECTIVE SERVICES BECAUSE THE APPOINTED GUARDIAN AD LITEM FAILED TO CONDUCT AN INDEPENDENT INVESTIGATION AS TO THE BEST INTERESTS OF ZS.”
{4} On October 13, 2020, appellee filed a complaint that alleged the then 11-month-old child to be neglected and dependent. The complaint asserted that the child had been exposed to domestic violence and the parents did not comply with safety plans. Appellee requested temporary custody and separately asked for emergency temporary custody, which the court granted.
{5} On January 8, 2021, the trial court adjudicated the child dependent and later entered a dispositional order that continued the child in appellee‘s temporary custody.
{6} On March 10, 2022, appellee filed a motion for permanent custody and alleged that the child has been in its
{7} On June 30, 2022, the trial court held a permanent custody hearing. At the hearing, caseworker Kristin Butts characterized mother‘s progress throughout the case as regressive. She explained that mother might make some progress, but eventually slipped back into using drugs or otherwise engaged in illicit conduct that led to multiple arrests throughout the pendency of the case. Butts stated that mother most recently had been terminated from a program in February 2022 and in June 2022, she was arrested. At the time of the hearing, the mother was in jail.
{8} Caseworker Butts stated she did not meet the father because he is in prison and his expected release date is in November 2023. Butts indicated that the child is with a foster family, doing well in the family‘s home and the foster family is interested in adoption.
{9} The child‘s guardian ad litem (GAL) also testified and
{10} On July 26, 2022, the trial court granted appellee permanent custody of the child. The court found that (1) the child has been in appellee‘s temporary custody for 12 or more months of a consecutive 22-month period, (2) placing the child in appellee‘s permanent custody is in her best interest, and (3) the father “has utterly failed to comply with the case plan,” is in prison until November 15, 2023, and failed to maintain contact with the child or appellee even when he was not in prison. The court further noted that mother has a substance-
I
MOTHER‘S APPEAL
{11} In her sole assignment of error, mother asserts that the trial court‘s judgment is against the manifest weight of the evidence. In particular, she argues that clear and convincing
{12} Appellee, however, asserts that it presented ample clear and convincing evidence to support the trial court‘s judgment. Appellee argues that the evidence presented at the hearing shows, inter alia, that (1) father is in jail with a November 2023 expected release date, (2) mother was in prison at the time of the hearing and had other periods of incarceration throughout the pendency of the case, (3) mother recently was charged with drug possession, and (4) the mother did not complete any of the numerous treatment programs that she had attempted to complete. Appellee also points out that the GAL clarified during her testimony that she had been in contact with the foster parents at various points throughout the pendency of the case, but had been unable to reach them before she submitted her final report due to miscommunication. Appellee further contends that any error that might exist would be harmless in
A
{13} Generally, a reviewing court will not disturb a trial court‘s permanent custody decision unless the decision is against the manifest weight of the evidence. E.g., In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
“Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.‘”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black‘s Law Dictionary 1594 (6th Ed.1990).
{14} When an appellate court reviews whether a trial court‘s permanent custody decision is against the manifest weight of the evidence, the court “‘weights the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence,
The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.
{15} Moreover, 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 (Emphasis sic).” 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, ¶ 7.
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986). In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.“); In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495 N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986) (whether a fact has been “proven by clear and convincing evidence in a particular case is a determination for the [trial] court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence“).
{17} Thus, if a children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm belief that permanent custody is warranted, the court‘s decision is not against the manifest weight of the evidence. In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 62 (4th Dist.); In re R.L., 2nd Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 17, quoting In re A.U., 2nd Dist. Montgomery No. 22287, 2008-Ohio-187, ¶ 9 (“A reviewing court will not overturn a court‘s grant of permanent custody to the state as being contrary to the manifest weight of the evidence ‘if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements * * * have been established.‘“).
{18} Once a reviewing court finishes its examination, the judgment may be reversed only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost
B
{19} We recognize that “parents’ interest in the care, custody, and control of their children ‘is perhaps the oldest of the fundamental liberty interests recognized by th[e United States Supreme] Court.‘” In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the right to raise one‘s “child is an ‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (“natural parents have a fundamental right to the care and custody of their children“). Thus,
{20} A parent‘s rights, however, are not absolute. In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11. Rather, “‘it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.‘” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). Thus, the State may terminate parental rights when a child‘s best interest demands such termination. D.A. at ¶ 11.
{21} Before a court may award a children services agency permanent custody of a child,
C
{22} A children services agency may obtain permanent custody of a child by (1) requesting it in the abuse, neglect or dependency complaint under
{23}
- (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.
- (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{24} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
{25} In the case at bar, the trial court found that the child had been in the agency‘s temporary custody for more than 12 months of a consecutive 22-month period, and thus, that
{26}
{27} Courts that are determining whether a grant of permanent custody to a children services agency will promote a child‘s best interest must consider “all relevant [best interest] factors,” as well as the “five enumerated statutory factors.” C.F. at ¶ 57, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G., 9th Dist. Summit Nos. 24097 and Summit Nos. 24099, 2008-Ohio-3773, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and Franklin Nos. 07AP-591, 2008-Ohio-297, ¶ 19. However, none of the best interest factors are entitled to “greater weight or heightened significance.” C.F. at 57. Instead, the trial court considers the totality of the circumstances when making its best interest determination. In re K.M.S., 3rd Dist. Marion Nos. 9-15-37, 9-15-38, and Marion Nos. 9-15-39, 2017-Ohio-142, ¶ 24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶ 46. In general, “[a] child‘s best interest is served by placing the child in a permanent situation that fosters growth, stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-916, ¶ 66, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
D
{28} In the case sub judice, appellant disputes the trial court‘s factual finding that the GAL stated that “the foster caregivers have a good relationship with the child and have an interest in adopting the child should permanent custody be granted to [appellee].” She alleges that the trial court‘s factual finding lacks support. Appellant notes that the GAL stated that she could not contact the foster parents before she submitted her final report to the court. Appellant thus surmises that the GAL‘s inability to contact the foster parents before she submitted her final report establishes that the GAL could not have known that the foster family shared a positive relationship with the child. She likewise theorizes that because appellee gave the GAL the incorrect phone number, appellee also lacked any basis to suggest that the foster family shares a positive relationship with the child.
{29} After our review, we do not find merit to appellant‘s
{30} Because appellant does not specifically challenge the trial court‘s findings regarding the other best-interest factors, we will not include an extended analysis of those factors. Instead, we simply note that the record contains ample clear and convincing evidence to support the trial court‘s
{31} Accordingly, based upon the foregoing reasons, we overrule the mother‘s sole assignment of error.
II
FATHER‘S APPEAL
{32} In his sole assignment of error, father asserts that the trial court abused its discretion by granting appellee‘s request for permanent custody when the GAL did not comply with Sup.R. 48.03. The father contends that the GAL did not independently investigate the child‘s best interest, but instead relied upon the caseworkers’ reports. He also points out that the GAL testified at the permanent custody hearing, she last had contact with the child more than four months before the hearing. The father further notes the GAL admitted she did not contact the father even though she knew where to locate him (in prison).
{33} We initially observe that, during the trial court proceedings, the father did not assert that the GAL‘s report failed to comply with Sup.R. 48.06.2 It is well-settled that a
{37} In the case sub judice, the father did not argue that the trial court obviously erred by considering the GAL‘s recommendation. We further point out that this court, along with other Ohio appellate courts, has refused to recognize purported superintendence rule violations as reversible error. E.g., In re A.P., 4th Dist. Gallia No. 21CA14, 2022-Ohio-1577, ¶ 46; In re K.L., 11th Dist. Portage No. 2021-P-0022, 2021-Ohio-3080, ¶ 63 (“the failure to comply with the Rules of Superintendence, even if a technical error, is not reversible“); In re E.W., 4th Dist. Washington No. 10CA18, 2011-Ohio-2123, ¶ 12 (superintendence rules are internal housekeeping rules that do not create any substantive rights); Pettit v. Pettit, 12th Dist. Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶ 12 (superintendence rules are “administrative directives only, and are not intended to function as rules of practice and
{38} Moreover, the father has not shown that the result of the trial court proceedings would have been different if the GAL had conducted additional investigation. The father did not argue, for example, that if the GAL met with the child shortly before the permanent custody hearing, or had contacted the father during his incarceration, the trial court would have rejected appellee‘s permanent custody motion and would have granted the parents additional time to demonstrate that one of them would be able to provide the child with proper care. As the GAL and agency caseworkers stated at the permanent custody hearing, the father remains incarcerated until his possible release in November 2023. Also, the mother has been unable to successfully complete any of the multiple drug treatment programs that she has entered throughout the pendency of the
{39} Accordingly, based upon the foregoing reasons, we overrule the parties’ assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the appeal be affirmed and that appellee recover of appellants the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, 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.