2006 Ohio 286 | Ohio Ct. App. | 2006
THE TRIAL COURT'S DECISION TO GRANT FRANKLIN COUNTY CHILDREN SERVICE[']S MOTION FOR PERMANENT CUSTODY OF BOTH [APPELLANT'S] CHILDREN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Because competent, credible evidence supports the trial court's award of permanent custody, we affirm.
{¶ 2} On April 1, 2001, FCCS removed appellant's daughter, JD, from appellant's care and filed a complaint on April 10 to have the child declared neglected and/or dependent. On June 26, 2001, JD was found to be a dependent and neglected child and eventually was placed with her current foster mother. On April 11, 2003, FCCS filed a motion for permanent custody of JD.
{¶ 3} Appellant's most recent child, OJ, was born on November 17, 2003. Two days after OJ's birth, FCCS moved for temporary custody as a result of appellant's testing positive for cocaine during her eighth month of pregnancy. On November 19, 2003, OJ was placed in the same foster home as her half-sister, JD. On January 11, 2005, FCCS moved for permanent custody of OJ.
{¶ 4} On January 4 and 5, 2005, a hearing was held regarding the permanent custody of JD; on February 9, 2005, a similar hearing was held regarding OJ in which all previous testimony from JD's hearing was incorporated into OJ's case. Following the hearings, the trial court granted FCCS' motions for permanent custody of JD and OJ. In her single assignment of error, appellant contends the record does not support the trial court's judgments.
{¶ 5} The record facts are not seriously disputed, as appellant failed to appear or testify at any of the hearings. After JD was removed from appellant's custody, FCCS devised a case plan to attempt appellant's reunification with JD. The case plan required appellant to provide for the basic care and safety of JD, successfully attend parenting classes and demonstrate knowledge of parenting techniques, maintain stable housing, complete a psychological evaluation and follow the recommendations, complete a drug and alcohol assessment and follow the recommendations, complete random drug screens, and seek individual counseling in connection with domestic violence issues. Appellant was allowed one hour per week of supervised visitation to take place at FCCS. Once OJ also was removed from appellant's care, the case plan applied to reunification attempts with both daughters.
{¶ 6} At the January 4 hearing, caseworker Rosann Gingerich testified that appellant completed a number of aspects of her case plan. Specifically, appellant maintained stable housing, completed two sets of parenting classes, attended a domestic violence program at "Choices," completed a psychological assessment, and eliminated various safety concerns within appellant's home. Gingerich did not know whether appellant was employed, but stated appellant did not produce evidence of employment, even part-time, to Gingerich at any time. Although appellant did not complete individual counseling for domestic violence, Gingerich was not aware of any reported incidents of domestic violence since 2001.
{¶ 7} Gingerich observed appellant during a limited number of supervised visitations, as the size of FCCS' caseload requires that it employ aides to supervise parent visits. From her observations, Gingerich testified appellant's initial attendance at the visitation sessions was not consistent, and appellant failed, at times, to give advance notice of her absence. After the initial visits, appellant was more consistent in attending the scheduled visits. Gingerich testified that appellant was, for the most part, appropriate with her children during the visits: appellant read to her children, assisted with JD's homework, and cleaned up after her children on most occasions. Appellant also was able to play at a child's level with them. Gingerich's only concern was that appellant fed OJ, eight months old at the time, some fries and chips. Overall, Gingerich stated the visits went well.
{¶ 8} Of primary concern to FCCS and Gingerich was appellant's cocaine abuse. Because appellant tested positive for cocaine when she was eight months pregnant with OJ, the case plan required appellant to submit to random drug screens and complete a 12-week rehabilitation program. Gingerich testified that since she became the caseworker for OJ and JD in February 2002, 110 random drug screens were given to appellant. Of those, appellant sent back 22; 21 were negative, and one was positive for cocaine. Prior to Gingerich becoming the caseworker, appellant was given 91 drug screens. Only 32 of those were returned; 31 were negative and one was positive. Since 2001, appellant has been given approximately 200 drug screens; appellant returned a little over 50 of them, or about 25 percent. Significantly, in 2004, appellant was given 65 drug screens; appellant completed only four, or less than six percent. In addition, although appellant attended a 12-week program to address her drug abuse problem, she never was formally released from the program.
{¶ 9} As appellant correctly asserts, the right to rear a child is a basic and essential civil right. In re Hayes (1997),
{¶ 10} In order to terminate appellant's parental rights, FCCS was required to demonstrate by clear and convincing evidence that (1) one of the four factors enumerated in R.C.
{¶ 11} On appellate review, "[p]ermanent custody motions supported by some competent, credible evidence going to all the essential elements of the case will not be reversed * * * as against the manifest weight of the evidence." In re Brown,
Franklin App. No. 03AP-969,
{¶ 12} To establish one of the four factors outlined in R.C.
{¶ 13} FCCS removed JD from appellant's care on April 1, 2001, and JD remained in FCCS custody; FCCS filed a motion for permanent custody of JD on April 11, 2003. OJ was removed from appellant's care on November 19, 2003, and remained in FCCS custody; FCCS filed a motion for permanent custody of OJ on January 11, 2005. Thus, at the time FCCS filed the respective motions for permanent custody, both children had been in the custody of FCCS for 12 or more months of a consecutive 22-month period; appellant does not dispute that conclusion. Although the trial court specifically so found regarding JD, it did not regarding OJ; the record nonetheless supports such a finding. Accordingly, R.C.
{¶ 14} The record further supports a finding that the conditions of R.C.
{¶ 15} Because the evidence supports a finding under either R.C.
{¶ 16} In examining the best interests of the children under the foregoing parameters, the trial court concluded that unsuccessful efforts at reunification left the children in need of a legally secure placement that could not be achieved without awarding permanent custody to FCCS. The trial court further found a reasonable probability of adoption based on the foster mother's willingness and ability to adopt the children. Although the trial court determined JD to some degree was bonded to appellant, the court found JD was bonded more strongly with her foster mother; OJ was too young to express an opinion. Recognizing appellant's significant progress with some of the case plan's requirements, the trial court nonetheless determined that appellant's repeated failure to submit drug screens demonstrated appellant's lack of commitment to her children and warranted an award of permanent custody to FCCS.
{¶ 17} The testimony of Gingerich and the guardian ad litem supports the trial court's determination. Specifically, Gingerich testified JD is very bonded to OJ and her foster mother and is doing well in the foster placement, and JD expressed her strong desire to remain with her foster mother. Although the testimony indicates JD interacted adequately with appellant during the supervised visits, JD quickly detached from appellant after the visit. OJ was too young to sufficiently evaluate her interaction with appellant or others and similarly was too young to express her desire regarding placement. The guardian ad litem, however, expressed his recommendation that both JD and OJ remain with their foster mother.
{¶ 18} With respect to custodial history, JD has not lived with appellant since 2001. OJ was only two days old when she was removed from appellant's custody and placed in the same foster home as JD, where OJ has lived virtually her entire life. Further, because FCCS could not return the children to appellant due to her failure to address her drug problem, FCCS has had custody of the children for a substantial period of their lives, making a priority the children's need to procure a legally secure placement that may include adoption. The foster family is a possible adoptive placement for both children, and permanent custody would allow such a placement for JD and OJ.
{¶ 19} Despite the evidence supporting the trial court's judgment, appellant essentially argues that because termination of parental rights is such a harsh remedy, appellant's rights should not be terminated. The record, however, makes clear that appellant unfortunately has a serious drug abuse problem that prevents her from being capable of appropriately caring for her children. Four years have elapsed from the time JD was removed, and appellant has not demonstrated an ability to address her problem and the children's need for a secure home. Indeed, JD and OJ are two of several children removed from appellant's care, and, knowing from prior experience the consequences of the hearing, appellant did not even appear.
{¶ 20} Because the trial court's judgments are supported by the evidence in the record, we overrule appellant's single assignment of error and affirm the judgments of the trial court.
Judgments affirmed.
Petree and French, JJ., concur.
