2004 Ohio 896 | Ohio Ct. App. | 2004
{¶ 2} On March 13, 2002, a trial court magistrate issued an ex parte custody order on the petition of appellee, Lucas County Children Services Board. The court ordered appellee to take immediate custody of then four-year-old Tashayla S. and her younger half-sister, Yolanda. Appellee alleged that the children's mother, who is "intellectually limited," had lost permanent custody of two other children, allowed a group of teenage boys into her home and that these boys ate the food intended for the children.
{¶ 3} The following day appellee filed a dependency and neglect complaint, reiterating the initial allegations and stating that Tashayla's mother had previously failed to seek regular medical attention even though Tashayla had previously been diagnosed with failure to thrive syndrome and reactive airway disease. More recently, Tashayla reported that she had been "messed with by a bad boy," which appellee took to mean that she had been sexually molested. Both children were eventually adjudicated neglected and dependent with temporary custody awarded to appellee. On February 6, 2003, appellee moved for permanent custody of both children.
{¶ 4} Appellant, Randall M., is Tashayla's father. Shortly after Tashayla and her sister were removed from their mother's home, appellant was advised of the pending action and made a party. According to the judgment entry from the neglect/dependency adjudication, appellant provided child support for his daughter, but neither had regular contact with her nor, at the time, did he believe that he was able to care for her. Appellant, however, was included in the case plan appellee prepared for Tashayla after the adjudication. The plan called for him to complete a diagnostic assessment, attend parenting classes, and have supervised visitation at the agency with Tashayla.
{¶ 5} Appellant refused parenting classes and, at least initially, participating in assessment. His position throughout was that he had not been convicted, or even accused, of misconduct with respect to Tashayla and he should not be treated as if he had. For this same reason, appellant refused agency-supervised visitation. Instead, on June 12, 2002, appellant moved for a visitation and companionship order. This motion was eventually denied. At the permanent custody hearing, appellant was the only party to contest termination of parental rights for Tashayla.
{¶ 6} At trial, appellee's caseworker testified that appellant had refused to engage in any of the case plan services offered and, until only recently, refused diagnostic assessment. Even though appellant had recently undergone assessment, the caseworker reported, he had refused to release the results to appellee. According to the caseworker, appellant had responded similarly in cases involving three other children. With respect to Tashayla, never during the period she was in appellee's custody had appellant visited her.
{¶ 7} For his own part, appellant testified that had little contact with his daughter due in large part to the visitation restrictions established by appellee. His position was that he had not been convicted of anything or broken any laws; therefore, he should not be required to participate in services required for those who had. This was also the reason appellant gave for not attending supervised visitation with Tashayla at any time while she was in appellee's temporary custody. On cross-examination, appellant admitted to prior domestic violence and concealed weapons convictions.
{¶ 8} At the conclusion of the hearing, the trial court entered findings, pursuant to R.C.
{¶ 9} From this judgment, appellant now brings this appeal, setting forth the following two assignments of error:
{¶ 10} "I. The trial court erred in finding that the Lucas County Children Services Board had made a reasonable effort to reunify the minor child with appellant.
{¶ 11} "II. The trial court erred in granting Lucas County Children Services Board's motion for permanent custody as it was against the manifest weight of the evidence to grant it."
{¶ 12} We shall discuss appellant's assignments of error together.
{¶ 13} Ohio courts have long held that a parent who is a suitable person has a paramount right to the custody of his or her child. Clark v. Bayer (1877),
{¶ 14} R.C.
{¶ 15} In this matter, the trial court found that R.C.
{¶ 16} "(1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
{¶ 17} "* * *
{¶ 18} "(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
{¶ 19} "* * *
{¶ 20} "(11) The parent has had parental rights involuntarily terminated * * * with respect to a sibling of the child.
{¶ 21} "* * *
{¶ 22} "(16) Any other factor the court considers relevant."
{¶ 23} Here, the finding that parental rights for a child's sibling have previously been involuntarily terminated only reflects on Tashayla's mother. No evidence was presented that appellant's parental rights to other children had ever been terminated.
{¶ 24} Concerning the R.C.
{¶ 25} With respect to the trial court's finding pursuant to R.C.
{¶ 26} Finally, there is R.C.
{¶ 27} Appellant is hardly blameless concerning the conditions that caused Tashayla's removal. Just because a parent is not a custodial parent, does not absolve him or her from being aware of the conditions to which his or her child is subjected. If appellant was aware of the conditions under which Tashayla lived, he must burden some of the culpability for not attempting to remedy those conditions. If he did not know of these conditions, can it be for any other reason than that he was already neglecting his duty to visit and communicate with his daughter before appellee's involvement with the family?
{¶ 28} The trial court did not accept appellant's excuse, nor do we. During cross-examination at trial, appellant did not know how old his daughter was or what her likes or dislikes were. The reality was that during Tashayla's six years to that point, appellant had virtually no contact with her. During the more than one year Tashayla was in appellee's custody, appellant did not once visit her. In our view, this is sufficient evidence to find clearly and convincingly that appellant demonstrated a lack of commitment toward Tashayla by failing to regularly visit and communicate with her. Accordingly, appellant's second assignment of error is not well-taken.
{¶ 29} On consideration whereof, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Costs to appellant.
Judgment Affirmed.
Handwork, P.J., Pietrykowski, J., and Singer, J., concur.