2003 Ohio 5348 | Ohio Ct. App. | 2003
{¶ 2} On March 1, 2000, FCCS filed a complaint alleging that Heather and Veronica Brooks were neglected and dependent children. Their father, Ronn Brooks, had engaged in numerous acts of domestic violence against their mother, Jennifer Brooks. On March 15, 2000, the Franklin County Juvenile Court issued a temporary order of protective supervision over Heather and Veronica. On March 22, 2000, the juvenile court issued an emergency care order. Pursuant to the terms of the order, the children were removed from their home at that time and placed with FCCS during the pendency of the complaint.
{¶ 3} FCCS later dismissed the complaint and filed two new complaints based on Veronica's allegations of sexual abuse by Mr. Brooks. On November 20, 2000, the magistrate held a dispositional hearing in both cases, adopted the case plan recommended by FCCS, and ordered the children be made wards of the court. The magistrate found Veronica to be abused, dependent and neglected, and found Heather to be a neglected and dependent minor. On December 14, 2000, the magistrate issued a judgment entry awarding temporary custody to FCCS. The case plan required appellant to complete a psychological assessment and follow-up treatment, to complete domestic violence counseling with no further incidents of domestic violence, to complete parenting classes and to demonstrate what she learned to FCCS. Further, Ms. Brooks was to be appropriate with the children and learn to protect them, to abide by the children's wishes, and not speak about their father.
{¶ 4} On May 23, 2001, FCCS filed motions to terminate the parental rights of Ms. Brooks and grant FCCS permanent custody. FCCS re-filed the motion on August 14, 2001. On July 12, 2002, the magistrate granted the motion for permanent custody and denied alternative custody motions filed by Ms. Brooks, the paternal grandparents and the maternal grandfather. By this time, the children had been in the custody of FCCS for a total of 27 months. The magistrate determined that if the children remained in their home, it would be contrary to the children's welfare since the circumstances giving rise to the original complaint had not been alleviated. The magistrate further determined that it was in Heather and Veronica's best interests to terminate Ms. Brooks' parental rights pursuant to R.C.
{¶ 5} Appellant asserts the following assignments of error:
1. The trial court erred by terminating the appellant's parental rights, as that judgment was against the manifest weight of the evidence and was unsupported by clear and convincing evidence.
2. The trial court erred by terminating the appellant's parental rights, when the evidence clearly and convincingly established that the appellant had substantially complied with the case plan.
3. The trial court erred by terminating the appellant's parent rights, when the appellant did not receive the effective assistance of counsel guaranteed by the Ohio and United States Constitutions.
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B) Appellant's trial counsel was ineffective by failing to assert that the appellee was not statutorily authorized to file permanent custody motions and the court lacked statutory authority to proceed on the appellee's motions.
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4. The trial court erred by terminating the appellant's parental rights when it failed to find the presence of one of the 16 factors listed in R.C.
{¶ 6} The magistrate found the following facts. FCCS first removed the children from the home in March 2000 due to the abuse that was taking place. FCCS alleged that Mr. Brooks engaged in numerous acts of domestic violence against Ms. Brooks, and Veronica alleged sexual abuse by Mr. Brooks. After removal, Veronica began therapy with FCCS counselor Linda Brancato. As part of her therapy, Veronica drafted a document entitled "My Story" which detailed the alleged sexual abuse perpetrated upon her by Mr. Brooks. Ms. Brooks was allowed to visit with the children for one hour per week, in the presence of the caseworker, Emily Ledvinka.
{¶ 7} During the first year after the children were removed, Ms. Brooks continued to live with Mr. Brooks but told FCCS they were separated. Ms. Brooks and the paternal grandparents continued to believe that Veronica's allegations of sexual abuse were not true. Ms. Brooks questioned Veronica's allegations even after Veronica recited "My Story" to her during a visit. Over a year after removal, Ms. Brooks left Mr. Brooks and eventually divorced him. However, she continued to be victimized and harassed by Mr. Brooks. Ms. Brooks finally prosecuted Mr. Brooks for robbery and he is currently serving three years in prison. Mr. Brooks' sentence runs until 2004.
{¶ 8} The magistrate further found since Mr. Brooks' imprisonment, Ms. Brooks is faced with harassment from his parents, the paternal grandparents. They stay in their vehicle in the area of Ms. Brooks' employment and her home. The magistrate described Ms. Brooks as a "marked woman." (Magistrate Opinion at 2.) "Having broken free from Ronn Brooks, she now has his extended family watching over her at work and at home." Id.
{¶ 9} Ms. Brooks eventually starting taking steps in compliance with her case plan. The magistrate found that Ms. Brooks visited her children with great regularity. At the time of trial, Ms. Brooks had her own residence and a steady job. She went to individual counseling, parenting classes and domestic violence classes as set forth in the case plan. However, the magistrate found that part of the case plan included the need for Ms. Brooks to communicate to her children that she supports them and believes them. Two years after removal, and only days before the commencement of trial, Ms. Brooks told Veronica she believes her allegations. The magistrate found this did not amount to case plan compliance.1 Further, the magistrate discussed the psychological impact all this had on both Veronica and Heather. The caseworker felt there was no bond between Heather and Ms. Brooks and only a tenuous bond between Veronica and Ms. Brooks. Heather was diagnosed with Post-Traumatic Stress Disorder because of her chaotic violent life with her family. Veronica is hyperactive, has problems with peer interaction, and severe problems with self-harm statements. The magistrate concluded pursuant to R.C.
{¶ 10} Ms. Brooks claims that FCCS had its mind made up about the placement of the children from the beginning and did not intend to return them to her even though she substantially complied with the case plan. She argues that although she was in an abusive situation, FCCS did very little to help her out of it and reunify her with the children. She claims that FCCS gave her vague instructions and she was confused as to how to address the children's abuse by and fear of their father. She also complains that she could only see her children for one hour per week and always in the presence of the caseworker.
{¶ 11} In the third assignment of error, Ms. Brooks contends that she was denied effective assistance of counsel for various reasons. One enumerated reason questions the jurisdiction and authority of the juvenile court to hear this case and will be addressed first. Ms. Brooks maintains that trial counsel was ineffective by failing to assert that the appellee was not statutorily authorized to file permanent custody motions and the court lacked statutory authority to proceed. We disagree.
{¶ 12} FCCS moved for permanent custody under R.C.
{¶ 13} For purposes of computing 12 months of a consecutive 22-month period, "a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated * * * or the date that is sixty days after the removal of the child from home." R.C.
{¶ 14} In In re Sypher (Mar. 11, 2002), Belmont App. No. 01-BA-36, the appellant made a similar argument to Ms. Brooks. She argued the court failed to apply the word "consecutive" in R.C.
{¶ 15} We do not find it necessary to determine whether FCCS is required to wait until the entire 22-month period has run before filing a motion for permanent custody. FCCS properly filed its motion under R.C.
{¶ 16} We now turn to Ms. Brooks' first and second assignments of error. In the first assignment of error, Ms. Brooks argues the trial court erred by terminating her parental rights, as that judgment was against the manifest weight of the evidence and was unsupported by clear and convincing evidence. In the second assignment of error, Ms. Brooks argues that because clear and convincing evidence shows she substantially complied with the case plan, grant of permanent custody to FCCS was error. These assignments argue the same thing, whether the trial court's judgment to terminate parental rights is against the manifest weight of the evidence, and will be addressed together.
{¶ 17} Judgments supported by some competent, credible evidence going to all essential elements of a case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978),
{¶ 18} In this case, FCCS had to prove by clear and convincing evidence that one of the factors under R.C.
{¶ 19} In determining the best interests of a child under R.C.
{¶ 20} In this case, the magistrate's findings, as detailed above, indicate that he considered the above factors in light of the facts of the case. The magistrate stated "Permanent Court Commitment (PCC) serves the best interest of these children to FCCS. Under Ohio Revised Code (ORC)
{¶ 21} Although the trial court affirmed the magistrate's decision, its opinions do not indicate that it considered all the best interest factors. Most of its decision discusses the evidence provided by the children's therapists and the psychological trauma suffered by the children. In a conclusory fashion, the trial court states in its decisions "[i]n accordance with R.C.
{¶ 22} Although this court has held that a trial court need not specifically enumerate each best interest factor in its decision and entry, the court must state findings on the record so that it is clear to the parties that the decision is supported by the facts. In re Strong, Franklin App. No. 01AP-1418, 2002-Ohio-2247 ("even though the magistrate's `best interest' determination was challenged in the mother's objections, there is no indication from a review of the court's entry that it considered the statutory factors regarding that issue"); In the Matter of Heyman (Aug. 13, 1996), Franklin App. No. 96APF02-194 ("[a]lthough a trial court is not required to specifically enumerate each factor under R.C.
{¶ 23} Here, the trial court does not indicate whether it considered the children's wishes, the interrelationship between the children and Ms. Brooks, each other, and foster families, the need for a legally secure placement and whether that could be accomplished without granting permanent custody to FCCS. In fact, the trial court does not mention any of the best interests factors or the statutory provision relating to such factors to show that they were considered. R.C.
{¶ 24} Because we remand to the trial court, we decline to address the remaining arguments of the third assignment of error and decline to address the fourth assignment of error, and they are overruled as moot.
{¶ 25} Appellant's first and second assignments of error are sustained, the third and fourth assignments of error are overruled as moot, and the case is remanded to the trial court for proceedings consistent with this opinion.
Judgments affirmed in part and reversed in part, and cause remanded with instructions.
BOWMAN and BROWN, JJ., concur.
