2004 Ohio 6071 | Ohio Ct. App. | 2004
{¶ 2} The record reveals the following facts. Tude Hinkle ("Tude") was born on May 24, 2000, and Sunshine /aka/ Sunshyne Hinkle ("Sunshine") was born August 22, 2001, to appellant and Brenda Whitmer-Hinkle ("Ms. Hinkle"). On March 4, 2002, complaints were filed alleging Tude to be both a neglected and dependent child, and Sunshine to be a dependent child. A guardian ad litem was appointed to represent the children. After an adjudication of dependency on May 14, 2002, the children were made wards of the court and FCCS obtained temporary custody.
{¶ 3} The court approved a case plan in attempt to reunify Tude and Sunshine with their parents. The case plan required appellant and Ms. Hinkle to address drug and alcohol abuse issues, domestic violence issues, maintain employment, meet the financial needs of the children, and to demonstrate their ability to provide for the children's basic needs and protection. (Tr. at 25.)
{¶ 4} On January 30, 2003, FCCS filed a motion for permanent custody of the children. The hearing on the motion occurred on August 13, 2003. At the hearing, Ms. Hinkle, after consulting with counsel, chose not to contest the permanent custody motion. She testified that Tude and Sunshine had formed a bond with the foster family with which they were currently living, and that it would be in the best interest of her children for the permanent custody motion to be granted. (Tr. at 7.)
{¶ 5} At the hearing, FCCS called appellant to testify as if on cross-examination. Appellant testified that he was incarcerated for a burglary offense from 1983 to 1984. In 1985, he was convicted of breaking and entering and aggravated burglary, and originally ordered to serve an indefinite sentence of 15-20 years. Appellant was released on parole in 1998. His parole was terminated on September 11, 2001, after he was arrested on a parole violation for committing a subsequent fifth degree felony. Appellant testified that he was scheduled for release from the institution in May 2004. At the time of the hearing, appellant was incarcerated at Pickaway Correctional Institution. (Tr. 10-12.)
{¶ 6} Appellant averred that he had not seen his children since November 2001. While he was incarcerated, appellant asserted that he remained in contact with Tude and Sunshine. Following this testimony, counsel for appellant and the guardian ad litem declined the opportunity to question appellant. Thereafter, appellant asked, "Am I allowed to say something?" (Tr. at 15.) The trial judge allowed appellant to make a statement, in which he took responsibility for his mistakes with the children. Appellant spoke of his love for his children and his interaction with them prior to his incarceration. During his testimony, the trial judge interjected:
Well, the problem is — well, I don't doubt your affection for your children. I don't doubt that for a minute. But the kids lives have to go on in a regularly, consistent way. Know that somebody's gonna be there for them all the time.
(Tr. at 20.)
{¶ 7} After counsel declined a second opportunity to question appellant, the following exchange occurred:
RALPH HINKLE: I've prayed in Jesus name that you give me dual way, when I get out, to — to prove myself. To do whatever I have to do to get my kids.
JUDGE YARBROUGH: Well, when you get out, you'll have the opportunity to hopefully see the children and establish a relationship with them. But I think it's in their best interest that the permanent custody motion be granted. Their life has to go on. Your life has been a seesaw, up and down, in and out. You're there and you're not there.
RALPH HINKLE: But not in their lives. This is only time — it's the first time —
JUDGE YARBROUGH: All right.
RALPH HINKLE: — I've not been in their life.
JUDGE YARBROUGH: Based on the history that's been solicited here, the evidence that's been solicited, I think the motion should be granted. You can step down now. Have any other witnesses?
(Tr. at 20, 21.)
{¶ 8} Thereafter, Laura Elliott ("Elliott"), the FCCS caseworker assigned to this case since December 2001, offered testimony. Elliott stated that the Hinkle family had a history with FCCS since 1998. She testified that the current case originally opened because of possible drug allegations in the home. A later referral indicated that Tude was admitted to the hospital with bilateral pneumonia, dehydration, hypoxia and hypoglycemia. (Tr. at 23.) After Tude's admission to the hospital, FCCS obtained custody of Tude and Sunshine,1 and Elliott prepared a case plan in order to work with the family. To Elliott's knowledge, Ms. Hinkle had not successfully completed the case plan.
{¶ 9} Although appellant had attempted to correspond with Elliott, she indicated that she had no contact with him during her first year as the assigned caseworker for the Hinkle children. She averred that appellant has written one letter addressed to the children per the foster parents. Elliott gave a copy of the case plan to appellant, including referrals for services for when he was released from prison. She was unable to evaluate whether or not appellant was completing any of the programs offered in prison, or if the programs would comply with appellant's requirements under the case plan.
{¶ 10} Elliott testified as to the children's current living situation in a foster home. Elliott observed that Tude and Sunshine had formed a bond with the foster parents and were adjusting well in their current environment. Elliott noted that the foster parents were planning on adopting both Tude and Sunshine, and that it would affect the bond between the siblings if they were separated. In her assessment, Elliott asserted that the children were "desperately in need of permanency," and the possibility of the current foster family adopting Tude and Sunshine would be in their best interest. (Tr. at 30, 31.)
{¶ 11} Elliott testified that Tude and Sunshine had been in temporary custody since May 7, 2002. Elliott offered that she did not see a bond between appellant and the children, and that placement with relatives was not possible.2 Elliott offered that while appellant had a parole hearing scheduled for sometime in May 2004, his current release date was 2037. She did not believe that she could reunify Tude and Sunshine with appellant in the next six to 12 months.
{¶ 12} While the guardian ad litem did not offer testimony, she requested, through closing arguments, that the court grant FCCS's motion. Thereafter, the guardian ad litem offered her report into evidence.
{¶ 13} After closing remarks from all parties, the judge allowed appellant to make additional statements on his own behalf. Thereafter, the judge indicated that he would take the matter under advisement. (Tr. at 43.) On April 27, 2004, the trial court issued its decision and judgment entry, including findings of fact and conclusions of law, sustaining the motion to commit the Hinkle children to the permanent custody of FCCS. The judgment terminated the parental rights of both appellant and Ms. Hinkle.3
{¶ 14} Appellant timely asserted the following two assignments of error:
First assignment of error
Appellant's procedural and substantive due process rights were violated when the trial Judge expressed his decision prior to hearing all the evidence.
Second assignment of error
Ohio revised code 2151.414, facially and as applied to appellant, violates appellant's substantive due process rights under article
{¶ 15} The crux of appellant's first assignment of error is the discussion set forth at page three, paragraph seven of this opinion. Appellant contends that the trial court judge made statements after his initial testimony, indicating his decision to grant the permanent custody motion before the conclusion of the evidence. Appellant asserts that the trial court was required to make specific findings pursuant to R.C.
{¶ 16} FCCS and the guardian ad litem collectively argue that the trial judge's comments were an unbiased summary of the evidence presented up to that time of the trial. FCCS contends that even if we find that the comments made by the trial judge were improper, the comments were harmless and did not affect the result of the trial. In support, FCCS emphasized the evidence entered in favor of the permanent custody motion. Finally, the guardian ad litem asserts that if the judge's comments were perceived as improper, appellant's counsel should have moved for a mistrial or its equivalent under the Juvenile Rules. The guardian ad litem argues that while this remedy was not sought, it was unnecessary, considering the judge's neutral conduct for the remainder of the hearing.
{¶ 17} In support of his position, appellant cites In reThornton (1985),
Appellees claim that the record contains sufficient evidence for a finding that visitation by the maternal grandparents is in Joseph's best interests. Appellees may well be correct, as the record contains substantial testimony both from the affected parties and medical personnel. Yet, conflicting testimony wasbarred by the referee's limitation of testimony. To affirm a judgment after such a one-sided hearing violates fundamental concepts of fairness and improperly vitiates the trial court's function as an impartial arbiter of the facts. A condition precedent to finding visitation to be in a child's best interests pursuant to R.C.
Thus, the failure of the trial court to fully adduce all relevant evidence on the visitation issue and thereby make a determination that visitation pursuant to R.C.
Appellant claims that the trial judge herein, as the trial judge in Thornton, prematurely made a decision and thus acted with impropriety. We disagree.
{¶ 18} Unlike the situation in Thornton, we find that the trial judge in this case adduced all relevant evidence prior to making his official decision to grant the permanent custody motion. The trial judge did not bar further testimony after making the comments to appellant. To the contrary, he heard evidence from Elliott, who assessed that the possibility of the current foster family adopting Tude and Sunshine would be in the best interests of the children. (Tr. at 30, 31.) While the guardian ad litem did not offer testimony, she indicated in closing arguments that she supported FCCS's motion. Moreover, after closing arguments of counsel, the judge allowed appellant to make an additional statement on his own behalf. At the close of the hearing, the judge indicated that he would take the matter under advisement. Therefore, we find appellant's reliance onThornton misplaced.
{¶ 19} In order to conclude our determination of whether or not the trial judge's statements had any effect on his decision to grant FCCS permanent custody, we analyze the evidence as stated in the trial court's findings of fact and conclusions of law. R.C.
(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, 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 any of the following apply:
(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.
For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section
{¶ 20} In its findings, the trial court stated:
Pursuant to the statutory timelines set forth in R.C.
* * *
In view of the foregoing facts, the Court finds that R.C.
(April 27, 2004 Decision at 4, 5.)
{¶ 21} After finding clear and convincing evidence was presented to fulfill the first prong of the custody statute, the trial court then considered the best interests of the children, pursuant to R.C.
(1) The interaction and interrelationship of the child with the child's parents, 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 or through the child's guardian ad litem, with due regard for the maturity of the child;
(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 ending on or after March 18, 1999;
(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.
{¶ 22} First, the trial court evaluated the relationships and interaction of the children with their parents, relatives and foster parents. In its findings, the court made reference to the testimony of appellant, finding that he lacked contact with the children. The court relied upon Elliott's testimony that the children were not bonded with their biological parents, but alternatively were bonded with their foster parents. The court also indicated that the foster parents sought to adopt Tude and Sunshine. (April 27, 2004 Decision at 4.)
{¶ 23} Next, the trial court addressed the wishes of the children through the guardian ad litem, finding that the guardian ad litem was in support of the permanent custody motion. Ibid.
{¶ 24} Pursuant to R.C.
{¶ 25} Fourth, the court considered the children'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. The court found that no possibility existed that the children could be returned to either parent within a reasonable period of time. Further, the court found that no relatives have come forward who are willing or appropriate to care for the children. In conclusion, the court determined that no less restrictive means were available other than permanent custody to the agency. Ibid.
{¶ 26} Finally, pursuant to R.C.
{¶ 27} While the trial judge's comments may have been made prematurely and were inappropriate, we find the trial judge's remarks did not rise to a decision on the motion4 or taint the analysis of his decision to grant the permanent custody motion. We find that FCCS established by clear and convincing evidence that the Hinkle children's best interests are served by placing them in the permanent custody of FCCS. Through the evidence adduced at the hearing, we find that the trial court correctly applied the statutory guidelines found in R.C.
{¶ 28} In his second assignment of error, appellant challenges the constitutionality of R.C.
{¶ 29} FCCS contends that constitutional issues cannot be challenged on appeal if the issues were not raised at the trial court level. In support of its position, FCCS cites In reStillman,
{¶ 30} We have recently declined to review a constitutional challenge to R.C.
{¶ 31} In their appeal of the court's award of permanent custody to FCCS, the appellants in Andy-Jones argued that R.C.
{¶ 32} In keeping with this precedent, we decline to address the constitutionality of R.C.
{¶ 33} Having overruled appellant's first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in granting permanent custody to FCCS of Tude Wayne Roger Jay Hinkle and Sunshine Cierra Hinkle.
Judgment affirmed.
Lazarus, P.J., and French, J., concur.
