2005 Ohio 429 | Ohio Ct. App. | 2005
{¶ 2} In April of 2001, Rachelle's four children, Ashton, Devin, Zachary and Austin were removed from her home. Ashton was born on May 27, 2000; Devin was born June 21, 1996. At the time of their removal, Ashton was eleven months old and Devin was almost five years old. The children were initially removed from Rachelle's home based on Ashton being hospitalized for non-organic failure to thrive syndrome and unsuitable home conditions. Prior, Ashton's siblings had also been diagnosed with failure to thrive syndrome as well. Subsequently, in August of 2001, both Ashton and Devin were adjudicated to be dependant children and ACCSB was granted temporary custody.
{¶ 3} In May of 2001, following the initial removal, case plans were filed by ACCSB. The case plans listed the following family strengths:
1. No reports of inflicted injury. 2. Family has adequate economic resources 3. Adequacy of medical care.
The case plans listed the following family concerns:
1. Age of child and inability to protect self. 2. Rochelle (sic.) and Donald's parenting skills. 3. History of assaultive behavior.
{¶ 4} To comply with the case plans, Rachelle and Donald were required to maintain a stable home, which was clean and clear of any hazards, and to maintain an adequate level of income or utilize community resources to provide for the children's basic needs. Rachelle and Donald were also required to eliminate the risks to the children, by successfully completing and utilizing skills and knowledge obtained in parenting classes. Additionally, Rachelle and Donald were required to cease all assaultive behavior and to keep questionable people out of the home. Finally, each was to attend counseling and follow through with all of the counselor's recommendations.
{¶ 5} In August of 2002, an amended case plan was filled in Ashton's case. The amended case plan included the following additional family concern:
Parents have completed psychological evaluations which reflects thechild should not return to the parents. Due to the age of the child thereis an inability to protect self. The child is in need of permanency.
{¶ 6} At the time of the children's removal, Rachelle was estranged from Donald. Subsequently, the two made various attempts to reconcile in order to regain custody of their children. However, the two ultimately parted ways in June of 2002. At that time, Donald's case plan performance began to improve, while Rachelle's performance declined.
{¶ 7} From June of 2002 through March of 2003, Rachelle's performance continued to decline. During this time, Rachelle was transient. She had traveled to Las Vegas for over a month with a truck driver, failing to inform either ACCSB or any other member of her family. Additionally, Rachelle's involvement in a domestic violence situation resulted in her spending seventeen days in jail. She was involved in an incident where her brother kicked her and beat her up. Finally, around the end of 2002, Rachelle developed head lice, which took quite some time to remedy. As a result of these incidents, Rachelle missed several visits with her children.
{¶ 8} Rachelle did complete her psychological examination; however, she failed to follow through with her counseling. And, finally, while Rachelle did complete parenting classes, ACCSB workers testified that her parenting skills had not improved. During her visits, Rachelle required intense supervision and the case workers stated they did not know how long it would take Rachelle to properly handle her children.
{¶ 9} In March of 2003, ACCSB filed a motion for permanent custody. On April 30, 2003 and July 16, 2003, the juvenile court held hearings on the matter. Following the hearing, the juvenile court found that Rachelle had failed to bond with both Devin and Ashton and that all four of her children had been diagnosed with failure to thrive syndrome. Additionally, the juvenile court found that while Rachelle had acquired adequate and stable housing at the time of the hearing, she had not done so until after the filing of ACCSB's motion for permanent custody. The juvenile court went on to find that Rachelle was currently living with Leroy Zimmerman, who Rachelle knew to be a felon whose children had been removed from his home by a children's service agency. The juvenile court noted that Rachelle had failed to visit her children eighteen of thirty-nine visitation opportunities and that many of her visits were missed when she left the state with the truck driver and failed to inform ACCSB that she had left the state.
{¶ 10} The juvenile court also relied upon the testimony of both Dr. David K. Connell, a clinical and forensic psychologist, and the deposition of Dr. Frederick P. Ferri, a counseling and forensic psychologist. Both Connell and Ferri had evaluated Rachelle and concurred in the conclusion that she lacked the psychological, emotional and intellectual qualities that would allow her to adequately parent her children. The juvenile court also specifically noted the following:
Dr. Connell further states that in his opinion, for the mother tochange her life in any significant way, she would be required tosuccessfully complete a course of therapy which would take up to twoyears for completion, and that it would be very difficult for her tocomplete this therapy because of her borderline intellectualfunctioning. Dr. Connell further says without therapy [Rachelle's] life,and the lives of her children, will in the future resemble their lives inthe past: chaotic, unstable and abusive.
{¶ 11} Finally, the juvenile court found that the children had adjusted well to life in the foster care and are thriving in that environment; that the children had been in the temporary custody of ACCSB for twelve or more consecutive months of the last twenty-two months; that the children's need for legally secure permanent placement cannot be achieved without a grant of permanent custody; and, that Guardian Ad Litem, Joseph Benavidez, recommended that granting permanent custody was in the children's best interests.
{¶ 12} Accordingly, the juvenile court concluded, in two separate judgment entries, that, after considering all the relevant evidence, it was in the best interest of the children to award permanent custody to ACCSB. It is from these judgments Rachelle appeals. The judgments have been consolidated for the purposes of this appeal, and we are presented with the following assignments of error for our review.
{¶ 13} Due to the nature of appellant's claims, we will be addressing the assignments of error out of order.
{¶ 15} We begin our review of this issue by noting that "[i]t is well recognized that the right to raise a child is an `essential' and `basic civil right.'" In re Hayes (1997),
{¶ 16} Once a child has been placed in the temporary custody of a children's services agency, the agency is required to prepare and maintain a case plan for that child. R.C.
{¶ 17} However, once an agency files a motion for permanent custody, the Revised Code requires that the trial court determine, by clear and convincing evidence, that a grant of permanent custody to the moving agency is in the best interest of the child and that one of four enumerated factors applies. R.C.
The child has been in the temporary custody of one or more publicchildren service agencies or private child placing agencies for twelve ormore of a consecutive twenty-two month period * * *. R.C.
{¶ 18} The Supreme Court of Ohio has held that "[c]lear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts 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 is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." Cross v. Ledford (1954),
{¶ 19} In the case sub judice, Rachelle contends that the juvenile court erred in finding that there was clear and convincing evidence that awarding permanent custody to ACCSB was in the children's best interest. Specifically, Rachelle argues that her compliance with the case plan and her stability at the time of the permanency hearing are sufficient to prove that the children should have been returned to her custody.
{¶ 20} In making a determination of the best interests of the child at a permanent custody hearing, "the court shall consider all relevant factors, including, but not limited to, * * *: (1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers * * *, and any other person who may significantly affect the child; (2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem * * *; (3) 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 * * *; (4) 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; (5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child." R.C.
{¶ 21} As noted above, the juvenile court considered several things in making its decision to grant ACCSB permanent custody of the children. Specifically, the juvenile court considered Rachelle's failure to bond with either Devin or Ashton as well as the fact that all of Rachelle's children had been diagnosed with failure to thrive syndrome. The court also noted that the children had adjusted well in foster care. Next, the juvenile court considered the custodial history of both Devin and Ashton, noting that the children had been in the temporary custody of ACCSB for more than twelve of the last twenty-two consecutive months. Additionally, the juvenile court discussed the children's need for legally secure permanent custody.
{¶ 22} The juvenile court also noted that that while Rachelle did currently have stable housing, she had not done so until after the filing of ACCSB's motion for permanent custody. The juvenile court considered Rachelle's involvement with and living with a known felon who had also had his children removed from his custody by a children's services agency. The juvenile court also considered Rachelle's visitation history as well as her reasons for missing visits and her failure to contact ACCSB when she did miss visits. And, finally, the juvenile court relied heavily upon Rachelle's psychological evaluations and the recommendations of both Dr. Ferri and Dr. Connell that Rachelle was not presently able to adequately parent.
{¶ 23} Upon review of the entire record, we find that the juvenile court's findings are supported by clear and convincing evidence and were properly considered under R.C.
{¶ 24} Accordingly, the second assignment of error is overruled.
{¶ 26} As noted above, R.C.
In determining the best interests of a child * * * the court shallconsider all relevant factors, including, but not limited to thefollowing: (1) The interaction and interrelationship of the child with the child'sparents, siblings, relatives, foster caregivers and out-ofhome providers,and any other person who may significantly affect the child; (2) The wishes of the child, as expressed directly by the child orthrough the child's guardian ad litem, with due regard for the maturityof the child; (3) The custodial history of the child, including whether the child hasbeen in the temporary custody of one or more public children servicesagencies or private child placing agencies for twelve or more months of aconsecutive twenty-two month period ending on or after March 18, 1999; (4) The child's need for a legally secure permanent placement andwhether that type of placement can be achieved without a grant ofpermanent custody to the agency; (5) Whether any of the factors in divisions (E)(7) to (11) of thissection apply in relation to the parents and child.
Additionally, R.C.
(7) The parent has been convicted of or pleaded guilty to one of thefollowing:
(a) An offense under section
{¶ 27} On appeal, Rachelle contends that the juvenile court's judgment entry does not indicate that any consideration was given to the factors identified in R.C.
{¶ 28} Rachelle correctly asserts that the Eleventh District Court of Appeals has read the language R.C.
{¶ 29} In the case sub judice, it is clear from the juvenile court's judgment entry and the record that the court did properly consider all of the R.C.
{¶ 30} As noted above, R.C.
{¶ 31} Having found that the juvenile court was not required to include a specific written discussion of the R.C.
{¶ 32} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments affirmed. Cupp, P.J., and Shaw, J., concur.
