2006 Ohio 702 | Ohio Ct. App. | 2006
{¶ 2} Tamela W. and Harold S. are the natural parents of three children: J.S., born on March 22, 1994; C.S., born on February 6, 2000; and, Co.S., born on August 1, 2001. Mother and father never married but currently live together. Carol B. and William B. are the children's paternal grandparents. For most of the first five years of his life, J.S. lived with his grandparents. His mother and father also lived with the grandparents on and off during this same timeframe. FCCS was not involved with this family until mother tested positive for cocaine when she gave birth to C.S.
{¶ 3} Subsequently, FCCS filed a complaint on February 8, 2000, alleging that C.S. was a neglected and dependent child and requesting custody of C.S. The complaint alleged that mother tested positive for cocaine when she gave birth to C.S. On May 4, 2000, the trial court adjudicated C.S. a dependent child and awarded FCCS temporary custody of C.S. Neither mother or father contested the dependency adjudication. FCCS filed a similar complaint on May 5, 2000, alleging that J.S. was a neglected and dependent child and requesting custody of J.S. The complaint alleged that C.S. had been placed in the temporary custody of FCCS, and that mother and father had been kicked out of the house where they were living due to a domestic violence situation. On July 20, 2000, the trial court adjudicated J.S. a dependent child and awarded FCCS temporary custody of J.S. Again, mother and father did not contest the dependency adjudication.
{¶ 4} The trial court approved and adopted FCCS' case plan for the reunification of the family. The plan required mother and father to address various areas of concern to FCCS. Significant requirements of the plan included: (1) the parents' participation in parenting and anger management classes; (2) domestic violence and drug and alcohol counseling; (3) establishment of stable housing and employment; (4) psychological evaluations and follow-up with any recommendations; (5) to refrain from criminal charges; and, (6) completion of random urine screens for drugs. The plan also required the grandparents to take anger management classes and to undergo a psychological evaluation and follow-up with any recommendations. All of the family members were to utilize the skills they learned at their classes.
{¶ 5} After FCCS obtained temporary custody of her two children, mother gave birth to Co.S. Because mother was concerned that she would lose custody of Co.S. if FCCS became aware of the child, mother did not visit J.S. or C.S. or have any contact with FCCS for a year. Ultimately, FCCS became aware of Co.S. and sought temporary custody which was granted by the trial court.1
{¶ 6} On August 2, 2001, FCCS filed motions for an award of permanent custody of both J.S. and C.S. pursuant to R.C.
{¶ 7} Appellants each appeal the trial court's award of permanent custody of the children to FCCS. In case numbers 05AP-615 and 05AP-616, mother assigns the following errors:
I. THE TRIAL COURT'S DECISION TERMINATING THE APPELLANT'S PARENTAL RIGHTS TO TWO OF HER THREE CHILDREN WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY NOT APPOINTING COUNSEL FOR THE MINOR CHILDREN.
III. THE TRIAL COURT ERRED BY TERMINATING THE APPELLANT'S PARENTAL RIGHTS TO TWO OF THE THREE CHILDREN WHERE THE APPELLEE FAILED TO MAKE A REASONABLE EFFORT TO REUNIFY THE APPELLANT WITH HER CHILDREN.
{¶ 8} In case numbers 05AP-622 and 05AP-623, grandmother assigns the following errors:
[I.] THE COURT ERRED IN FINDING THAT R.C.
[II.] THE COURT ERRED IN SUSPENDING GRAND-PARENTS' VISITATION BASED UPON A PSYCHOLOGIST[']S RECOMMENDATION WITHOUT A FULL DUE PROCESS HEARING.
[III.] THE DECISION TO DENY THE GRANDPARENTS['] LEGAL CUSTODY MOTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 9} Finally, in case numbers 05AP-627 and 05AP-628, father assigns the following errors:
[I.] THE TRIAL COURT'S DECISION GRANTING AN AWARD OF PERMANENT COURT COMMITMENT TO FRANKLIN COUNTY CHILDREN SERVICES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
[II.] THE TRIAL COURT ERRED IN DIVESTING THE PARENTS OF THEIR PARENTAL RIGHTS WHEN CASE PLAN SERVICES HAD BEEN COMPLETED AND THE MAGISTRATE CONCEDED THAT THERE WAS NOTHING TO SUSTAIN A DEPENDENCY ACTION AGAINST THE THIRD CHILD, CO.S.
[III.] THE GRANTING OF AN AWARD OF PERMANENT COURT COMMITMENT TO FRANKLIN COUNTY CHILD-REN SERVICES IS NOT IN THE BEST INTEREST OF THE CHILDREN.
{¶ 10} At the outset, we recognize that parents have a constitutionally protected fundamental interest in the care, custody, and management of their children. Santosky v. Kramer
(1982),
{¶ 11} For ease of analysis, we will address appellants' assignments of error out of order. Grandmother's first assignment of error attacks the constitutionality of R.C.
{¶ 12} Grandmother contends in her second assignment of error that the trial court erred by terminating her visitation with J.S. without a hearing. The trial court suspended family visits with J.S twice during the proceedings. The first suspension was due to the family members' inappropriate, abusive behavior during a family visit. The second suspension was based on the recommendation of J.S.'s counselor due to J.S.'s violent behavior after visits. However, issues relating to the court's suspension of visitation during this case are now moot. In re C.C., supra, at ¶ 23-24. A case becomes moot if a judgment upon some matter cannot have any practical legal effect upon a then-existing controversy. Id., citing In re Brown, Franklin App. No. 03AP-1205,
{¶ 13} This court cannot grant grandmother any relief with respect to the suspension of her visitation with J.S. We cannot give her back time to spend with the child. Id., quoting In reBailey, Hamilton App. No. C-040014,
{¶ 14} We move on to mother's second assignment of error. Mother contends that the trial court erred by failing to appoint independent counsel for J.S. and C.S. We first note that mother lacks standing to raise this issue on appeal. See In reJohnson, Franklin App. No. 03AP-1264,
{¶ 15} Moreover, even if the mother had standing to assert this assignment of error, she has waived the issue. Mother never requested the trial court to appoint independent counsel to represent the children and never objected to the failure of the trial court to appoint such counsel. Mother raised this argument for the first time on appeal. "`Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, are waived and may not be raised upon appeal.'" Id. at ¶ 14, quoting StoresRealty Co. v. City of Cleveland, Bd. of Bldg. Standards Bldg.Appeals (1975),
{¶ 16} We recognize that in limited circumstances an appellate court may review an issue otherwise waived under the plain error doctrine. Id. at ¶ 14; In re Wright, Franklin App. No. 04AP-435,
{¶ 17} In mother's third assignment of error, she contends the trial court improperly awarded permanent custody because FCCS failed to make reasonable efforts to reunify her with her children. We disagree. In certain situations, a trial court must determine whether or not a public children services agency made "reasonable efforts" to reunify. R.C.
{¶ 18} Mother's first assignment of error and all of father's three assignments of error address the evidentiary support for the trial court's award of permanent custody to FCCS. We will discuss them collectively.
{¶ 19} A decision to award permanent custody requires the trial court to take a two-step approach. First, a trial court must find whether 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.
R.C.
{¶ 20} Once the trial court finds that one of the circumstances in R.C.
(1) 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;
(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.
R.C.
{¶ 21} A trial court's determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence. In re Andy-Jones, Franklin App. No. 03AP-1167,
{¶ 22} In connection with the first step of this analysis, the parties do not dispute that the children were in the temporary custody of FCCS for 12 or more months of a consecutive 22-month period ending on or after March 18, 1999. R.C.
{¶ 23} Instead, the parties' arguments focus on the second step of the analysis. They contend that the trial court's decision that an award of permanent custody was in the children's best interest was against the manifest weight of the evidence. As noted, we will review the evidence to determine whether competent, credible evidence supports the trial court's best interest finding. In re G.B., Franklin App. No. 04AP-1024,
{¶ 24} R.C.
{¶ 25} R.C.
{¶ 26} R.C.
{¶ 27} R.C.
{¶ 28} The parents in this case completed a significant number of the requirements in the FCCS case plan. Mother attended and completed domestic violence counseling and parenting classes. She completed a psychological and drug and alcohol assessment. Similarly, father attended and completed domestic violence counseling and anger management classes and also took a psychological and a substance abuse assessment. However, father was detained on domestic violence charges against mother two times after the trial court adopted FCCS' case plan. He was also detained once in 2002 for punching a hole in a courthouse wall. Additionally, Ms. Nickell did not see parents using skills they learned in parenting classes during their visits with the children.
{¶ 29} More significantly, mother and father did not complete the majority of their required random drug screens. Mother had a history of abusing Talwin, a prescription drug which she used without a prescription. She did not stop the abuse of that drug until after C.S. was born. Mother also tested positive for cocaine when C.S. was born. Father tested positive for Benzodiazeprine and Opiates in 2002. Therefore, substance abuse was a significant aspect of the parents' case plan. However, mother failed to complete 69 of 70 drug screens in a two-year period. In the same time span, father only completed eight of 67 drug screens. In fact, the parents last case worker, Corey Garris, testified that in the six months before the hearing in this matter ended, the parents did not complete any drug screens. It is clear from the testimony of the parents' case workers that the parents failed to complete a significant number of the drug screens that they were asked to complete.
{¶ 30} Additionally, Dr. Aiken testified about J.S.'s behavior problems, including diagnosis of: attention deficit disorder; oppositional defiant disorder; characteristics of autistic behavior; and post-traumatic stress disorder. Dr. Aiken testified that when he first treated J.S., he would revert to behaviors of a two or three-year old. He recommended that FCCS terminate family visits with J.S. because his regressive behavior would increase after visits. He testified that J.S.'s behavior has improved with the termination of such visits. Dr. Aiken believes that reunification with the family would be emotionally devastating to J.S. and would lead to regression in his behavior. As such, he recommended that FCCS be awarded permanent custody of J.S.
{¶ 31} The parents in this case failed to address substance abuse, domestic violence, and anger issues that were requirements in their case plan. These were all major concerns that FCCS had about their ability to provide a secure placement for the children. This factor weighs in favor of the trial court's determination.
{¶ 32} Finally, R.C.
{¶ 33} The record reflects competent, credible evidence for the trial court to have found that an award of permanent custody was in the best interest of the children. Accordingly, its award of permanent custody to FCCS of J.S. and C.S. is not against the manifest weight of the evidence. Mother's first assignment of error and father's three assignments of error are overruled.
{¶ 34} Finally, grandmother's third assignment of error contends that the trial court's decision denying her motion for legal custody is against the manifest weight of the evidence. However, a trial court is not required to consider placing a child with a relative prior to granting permanent custody to an agency. In re Zorns, Franklin App. No. 02AP-1297, 2003-Ohio-5664, at ¶ 28. Relatives seeking custody of a child are not afforded the same presumptive legal rights that a parent receives. Id. A trial court does not even need to find by clear and convincing evidence that a grandparent is not a suitable placement option. In re A.D., Cuyahoga App. No. 85648,
{¶ 35} Ms. Nickell, the original case worker for the family, testified that the grandparents were not an appropriate placement for the children. The evidence in this case indicates that grandparents acted inappropriately during visits with the children by arguing with the parents. Their conduct contributed to the termination of visitation during this proceeding. The grandparents refused to allow FCCS case workers into their house for a home study to determine whether their house was appropriate for children. Grandparents testified that they lied to FCCS workers while mother absented herself for a year with Co.S. There was also concern about grandfather's alcohol consumption and failure to successfully complete alcohol counseling. Finally, if granted custody, grandparents would allow the parents back into their house. Given this evidence, the trial court did not abuse its discretion by denying grandmother's motion for legal custody. Grandmother's third assignment of error is overruled.
{¶ 36} In conclusion, grandmother's second assignment of error is overruled as moot and the remaining assignments of error are overruled. The judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed.
Judgment affirmed.
Petree and McGrath, JJ., concur.
