801 N.E.2d 475 | Ohio Ct. App. | 2003
Lead Opinion
{¶ 2} Debbie is the child involved in this action. She was born in August 1997. Hannold is Debbie's natural father. Debra Stillman ("Debra") is Debbie's natural mother. Hannold and Debra were never married and did not live together during any of the relevant time periods of these proceedings.
{¶ 3} Debbie has a variety of medical ailments, including juvenile rheumatoid arthritis. This condition has resulted in Debbie's legs being severely bent. She has undergone several surgeries and takes medication for this condition.
{¶ 4} In January 2000, appellee filed for temporary custody of Debbie, due to allegations that Debra was not providing adequate medical treatment.
{¶ 5} In April 2000, Debbie was returned to Debra's care with an order of protective supervision. A condition of this placement was that Debra would cooperate with Shriner's hospital in the medical treatment of Debbie. However, in May 2000, Debbie did not show up for her scheduled admission to the hospital. Thereafter, on May 12, 2000, appellee was again granted temporary custody of Debbie. *336
{¶ 6} On May 22, 2000, Hannold petitioned the court for temporary custody of Debbie. He was not immediately granted visitation or made part of the case plan, because of the uncertainty of his status as Debbie's father. Debra reportedly informed appellee that another individual was Debbie's father. Further, she indicated that if Hannold was Debbie's father, it was because he raped her. Appellee later determined the rape accusations to be unfounded.
{¶ 7} Hannold had a paternity test conducted in 1998. This test indicated that he was Debbie's father to a certainty in excess of 99.9 percent. However, this was not recognized by appellee. A second test was conducted, which also established that Hannold was Debbie's father with a certainty in excess of 99.9 percent. Appellee's case plan was amended to include Hannold in April 2001. This plan was approved by the court in May 2001.
{¶ 8} Initially after being added to the case plan, there were several objectives set forth for Hannold to meet. He needed to attend parenting classes. He needed to attend literacy classes. He also had to find suitable housing, because, at the time, Hannold was living in an apartment above a business that he considered inadequate.
{¶ 9} Hannold has an IQ in the low seventies. At the time of the hearing, he was living with a female companion, Barbara Grey, and her two adult sons. Carrie Colby, the caseworker assigned to this case, indicated that this was adequate housing.
{¶ 10} Hannold was granted visitation with Debbie. He was also permitted to attend physical therapy sessions with her. Debra Hills, the physical therapist overseeing Debbie's treatment, testified that Hannold had difficulty learning to assist Debbie in two of three exercises she needed. However, she did indicate that Debbie would "shut down" and resisted doing her exercises if she was nervous or uncomfortable.
{¶ 11} After Debbie was taken from Debra's custody the second time, Debra has been virtually non-existent in these proceedings. She did not appear at the final hearing and is not a party to this appeal.
{¶ 12} Due to Debra's absence, the goal of the case plan was permanent custody. This goal was changed to placement with Hannold in October 2001. However, it was returned to permanent custody in January 2002. Further, on January 11, 2002, appellee filed a motion for permanent custody.
{¶ 13} On January 28, 2002, Hannold filed a motion for summary judgment. On May 9, 2002, appellee filed its brief in opposition. The trial court did not rule on Hannold's motion for summary judgment prior to the adjudicatory hearing, in September 2002. At the hearing, the trial court orally overruled Hannold's motion for summary judgment. Then, in April 2003, in the final judgment entry *337 in which it rendered its ultimate decision, the trial court overruled Hannold's motion for summary judgment.
{¶ 14} A hearing was held on appellee's motion for permanent custody in September 2002. Peter Laveck and Carrie Colby, caseworkers of appellee assigned to the case testified. In addition, Dr. Patricia Gillette testified at length regarding her opinion as to what would be in Debbie's best interest. Based upon the interviews she conducted with all of the key characters, and the tests she performed on Hannold, Dr. Gillette concluded that it would be in Debbie's best interest for the motion for permanent custody to be granted.
{¶ 15} Specifically, Dr. Gillette stated that Hannold;
{¶ 16} "does not have the ability to comprehend [Debbie's] medical needs, to be able to discuss [Debbie's] needs, emotional, physical, medical, with the physician and other medical personnel * * *. The progression of juvenile rheumatoid arthritis is chronic and her health can deteriorate. You cannot really predict what is going to happen in the future, and so she may have great emotional problems in the future. I don't believe he would be able to handle these. For example, I know she is on a number of medications. His arithmetic is at a first grade level and his spelling is at a first grade level. I don't know if he really would be able to continually monitor and maintain the correct dosages, the correct timing of her different physical therapies, medical examinations, appointments and physical therapy."
{¶ 17} Dr. Gillette also opined that Hannold's deficiencies are not something that he could improve upon over time. She concluded, "I just didn't think [Hannold] even understood what was going on with his daughter or the emotional, medical problems that she was facing."
{¶ 18} Carrie Colby, one of the caseworkers involved in this case, echoed many of Dr. Gillette's concerns regarding Hannold's ability to comprehend Debbie's medical needs and to participate in his daughter's physical therapy. Colby testified that she attempted to train Hannold as to what he needed to do to aid Debbie in her physical therapy sessions which included three basic exercises. However, it became apparent that Hannold was unable or unwilling to learn them correctly. He also failed to understand the importance of performing the required exercises and would allow Debbie to decide whether or not she wanted to do the exercises.
{¶ 19} Additionally, during home visits, it became apparent that Hannold would not always provide proper supervision. He permitted Debbie to play on an unsafe swing set despite being told not to, as well as play with gasoline cans in the yard. He also kept lighter fluid and various medications on the coffee table *338 within reach of Debbie. In short, Hannold appears unable to appreciate the dangers that he exposed his daughter to during home visits.
{¶ 20} The court issued its judgment entry granting appellee's motion for permanent custody. The court granted the motion pursuant to R.C.
{¶ 21} Hannold has timely appealed the judgment of the trial court. He raises seven assignments of error on appeal:
{¶ 22} "[1.] The trial court erred in disregarding a parent's fundamental right to raise his child, in violation of the Due Process and Equal Protection Provisions of the Ohio Constitution and the United States Constitution.
{¶ 23} "[2.] The trial court abused its discretion, pursuant to O.R.C.
{¶ 24} "[3.] The trial court erred in concluding that Ashtabula County Children Services Board made reasonable efforts to reunify father with his child.
{¶ 25} "[4.] The trial court erred in failing to conclude that Alfred E. Hannold, Jr. substantially remedied the conditions which caused the removal of the child.
{¶ 26} "[5.] The trial court erred by denying the father's motion for summary judgment.
{¶ 27} "[6.] O.R.C.
{¶ 28} "[7.] The trial court erred in admitting into the record Dr. Gillette's opinions and conclusions regarding the adequacy of Alfred E. Hannold Jr.'s parenting ability."
{¶ 29} We will address these assigned errors out of order.
{¶ 30} In his sixth assignment of error, Hannold challenges the constitutionality of R.C.
{¶ 31} In his fifth assignment of error, Hannold claims the trial court erred by overruling his motion for summary judgment.
{¶ 32} Pursuant to Civ.R. 56(C), summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996),
{¶ 33} R.C.
{¶ 34} "(B)(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:
{¶ 35} "(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.
{¶ 36} "(b) The child is abandoned.
{¶ 37} "(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
{¶ 38} "(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.
{¶ 39} "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 *340
the date the child is adjudicated pursuant to section
{¶ 40} R.C.
{¶ 41} "In determining the best interest of the child * * * the court shall consider all relevant factors, including, but not limited to, the following:
{¶ 42} "(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;
{¶ 43} "(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard to the maturity of the child;
{¶ 44} "(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;
{¶ 45} "(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;
{¶ 46} "(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child."
{¶ 47} Hannold argued that the agency's motion for permanent custody must fail as a matter of law. However, based on the above standard of R.C.
{¶ 48} Hannold's fifth assignment of error is without merit.
{¶ 49} In his first, second, and fourth assignments of error, Hannold asserts the trial court failed to make certain findings prior to terminating his parental rights. Specifically, Hannold argues that the trial court never made an express finding that he was unfit as a parent. He further argues that a finding that R.C.
{¶ 50} The statute in question does not require that the trial court make any of these findings. There is no requirement that a parent be expressly declared unfit, nor is there any requirement that a trial court acknowledge that a parent has a constitutional right to raise his own child.
{¶ 51} The trial court in the present case proceeded under R.C.
{¶ 52} Accordingly, the trial court did not have an obligation to expressly determine that Hannold was an unfit parent. This issue was addressed by the Fourth District Court of Appeals in In re Workman, 4th Dist. No. 02CA574, 2003-Ohio-2220. There, the court opined that while, "[a] parent has a `fundamental liberty interest' in the care, custody, and management of his or her child and an `essential' and `basic civil right' to raise his or her children," the parent's rights are not absolute and "`are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.'" Id. at ¶ 36, quoting In re Cunningham (1979),
{¶ 53} The Workman court concluded that R.C.
{¶ 54} "* * * [W]e believe that inherent within R.C.
{¶ 55} "We do not believe that R.C.
{¶ 56} We agree with the analysis set forth in the Workman decision. The fact that a children services agency has had temporary custody of a child for at least twelve months of the prior twenty-two months is a definite indication that a parent is unable, unsuitable, or unfit to adequately care for the child. That is precisely what happened in the case sub judice. Debbie had been in the temporary custody of appellee for the previous twenty-eight months at the time of the hearing. Hannold established his paternity, and was involved with the case, sixteen months prior to the hearing. Hannold had ample opportunity to demonstrate his parenting abilities. However, the evidence presented supports a conclusion that Hannold, despite his best efforts to comply with the case plan, was simply not capable of providing the type of parenting that was required by this "special needs" child. That is what makes this decision so difficult.
{¶ 57} Based upon the foregoing analysis, Hannold's first, second, and fourth assignments of error are without merit.
{¶ 58} In the third assignment of error, appellant contends that the trial court erred by concluding that appellee made reasonable efforts to reunify Debbie with her father. While appellant is correct in his assertion that the trial court made this finding, the fact is that no such finding is required under the statute. When considering a motion for permanent custody brought pursuant to R.C.
{¶ 59} Hannold's third assignment of error is without merit.
{¶ 60} In the seventh assignment of error, appellant maintains that the trial court erred by permitting the testimony of Dr. Gillette regarding the adequacy of his parenting because Dr. Gillette relied heavily on hearsay reports provided to her by appellee.
{¶ 61} Evid.R. 703 provides, "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted into evidence."
{¶ 62} Evid.R. 801(C) provides, "`Hearsay' is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
{¶ 63} It is appellant's contention that, over his attorney's objection, Dr. Gillette was permitted to testify to information she obtained from reports prepared by appellee. Thus, appellant argues that this information constitutes hearsay and was, therefore, inadmissible pursuant to this court's holding in In re Walker, 11th Dist. No. 2002-A-0089, 2003-Ohio-799.
{¶ 64} To begin with, appellant has failed to support his claim that objections were made with citations to the record. It appears to this court that, in fact, there were no objections made to the testimony in question. Accordingly, appellant has waived this issue and cannot raise it for the first time on appeal. State ex rel. Zollner v. Indus.Comm. (1993),
{¶ 65} Moreover, even if this argument had been properly preserved, it is clear that it must fail. It is well established that, "when an expert's opinion is based, in whole or in major part, on facts or data perceived by him, then the requirements of Evid.R. 703 are satisfied." Ryser v. Conrad, 11th Dist. No. 2001-T-0034, 2001-Ohio-8783, *5, citing State v. Solomon (1991),
{¶ 66} In the Walker case, it is apparent that the expert witness relied heavily on the reports of other doctors, social workers, law enforcement agencies, and the children services agency, to form her opinion on whether permanent custody should be granted. That report was admitted into evidence. In contrast, in the present case, Dr. Gillette relied, in major part, on her own observations that resulted from interviewing appellant, Debbie, Debbie's foster parents, and the physical therapist, and her own test results. Dr. Gillette testified that while she read the reports that resulted from two previous psychological examinations of appellant, she found them to be "not helpful" as *344 some of the tests had been improperly administered. Additionally, Dr. Gillette's report, itself, was never admitted into evidence in this case. Thus, this case is clearly distinguishable from the Walker case.
{¶ 67} Accordingly, appellant's seventh assignment of error is without merit.
{¶ 68} The judgment of the Ashtabula Court of Common Pleas, Juvenile Division is hereby affirmed.
Judgment affirmed.
DONALD R. FORD, P.J., concurs.
WILLIAM M. O'NEILL, J., dissents with dissenting opinion.
Dissenting Opinion
{¶ 69} I must respectfully dissent.
{¶ 70} In his sixth assignment of error, Hannold challenges the constitutionality of R.C.
{¶ 71} The Supreme Court of Ohio has recognized the importance of parents' rights to raise their children. "`"Permanent termination of parental rights has been described as "the family law equivalent of the death penalty in a criminal case." * * * Therefore, parents "must be afforded every procedural and substantive protection the law allows."'"2
{¶ 72} Moreover, both the Supreme Court of Ohio and the United States Supreme Court have recognized parental rights as fundamental liberty interests. This is apparent in the following language:
{¶ 73} "`The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the *345 State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.'"3
{¶ 74} Finally, the United States Supreme Court has "recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children."4
{¶ 75} Since a fundamental constitutional right is at issue, the constitutionality of R.C.
{¶ 76} The state's interest in protecting its children from abuse and neglect is compelling. However, R.C.
{¶ 77} The Supreme Court of Ohio has acknowledged that a finding of parental unsuitability is necessary in a custody dispute between a natural parent and a nonparent.7 While the Hockstok case involved a dispute between a parent and a grandparent and was decided pursuant to R.C.
{¶ 78} Pursuant to R.C.
{¶ 79} Cases involving the termination of parental rights are often very complex. There are many competing interests involved. The child, caseworkers, natural parent(s), foster parent(s), psychologists, doctors, attorneys, and others involved must complete a variety of tasks before there is a final permanent custody hearing. However, as all the various tasks and reports are being completed, the "statute of limitations" is running against the natural parents. Should twelve months pass, the children services agency is halfway home on the battle for permanent custody. R.C.
{¶ 80} In addition, the children services agency files the motion for permanent custody. The natural parents have no control over the timeliness of the filing of the motion. The current statutory framework entices the agency to wait to file the motion for permanent custody until the child has been in their custody for twelve months. Why would an agency file a motion for permanent custody early, when it could wait to file until after twelve months have passed, and go right to the best interest phase?
{¶ 81} Simply stated, R.C.
{¶ 82} Moreover, the best interest analysis of R.C.
{¶ 83} Not only is the arbitrary time requirement being used against a parent once pursuant to R.C.
{¶ 84} In addition to the time requirement, other factors of the best interest analysis consider the child's relationship with its foster parents and current placement situation.11 This is entirely unfair to the natural parents. Foster parents, presumably, will always be "fit," as they must have met certain screening criteria to become foster parents. Moreover, if the child has been in the custody of the agency for more than a year, it is likely the child has been in the home of the foster parents for that time. In most every case, the child, especially a young child, is going to have a stronger bond to the foster parents, who interact with them on a daily basis, than to the natural parents, whom they see only for minimal times during structured visitation.
{¶ 85} Pursuant to the current version of R.C.
{¶ 86} Moreover, the "best-interest" analysis of R.C.
{¶ 87} Appellee argues that R.C.
{¶ 88} The majority cites the Fourth District's holding in In reWorkman, for the inference that R.C.
{¶ 89} I disagree with the above analysis, as it raises several constitutional concerns. The initial problem with the "presumption" reasoning, is that it is factually incorrect. Children can be placed in the temporary custody of a children services agency for a variety of reasons. Such placement is not, per se, indicative of improper acts on behalf of the parent. For instance, in the case sub judice, the uncontested evidence presented by appellee was that Hannold was not responsible for the child's temporary placement with appellee. The evidence clearly established that the reason for the child's placement was the neglect of the child's mother. Hannold did not live with the child's mother and had no means of controlling her actions. How can there be a presumption that he is unfit to care for his daughter?
{¶ 90} The second concern is that the children services agency is determining that the parent continues to be "unfit" while the child is in its custody. Permitting a determination of unfitness to be made by a caseworker, rather than a court of law, is fundamentally unfair. Allowing an order of temporary custody (even if a parent was not involved in the temporary custody hearing) and subsequent continuing placement with children services, to be a presumption of "unfitness" is a violation of a parent's constitutional rights, as they are being deemed an "unfit" parent, without the constitutional safeguards designed to protect them from untrue allegations.
{¶ 91} By the time paternity was legally established and Hannold was involved in the case, nearly a year had passed since the child had been removed from her mother the second time. While there were several factors that contributed to this delay, the children services agency benefited, as the time limitations were running for the duration of this process. At the time of the permanent custody hearing, the child had been in the temporary custody of appellee in excess of twelve months. The only question before the court was "was it in the best interest of the child to grant appellee's motion for permanent custody." The court was permitted to consider the child's relationship with her foster parents as a factor for terminating Hannold's parental rights. The trial court was not required to find that Hannold was unfit or unsuited to raise his child. Hannold *349 was entitled to a higher burden of proof before his fundamental constitutional right was terminated.
{¶ 92} R.C. 2951.414(B)(1)(d) permits a court to terminate parents' rights to raise their children without finding that the child should not, or could not, be placed in the parents' home. Rather, the court is merely required to consider whether it is in the "best interest" of the child for permanent custody to be given to the children service agency. Thus, an individual's fundamental right to raise their child may be extinguished by the court finding that the child will be better off with her foster parents. This proposition is in direct conflict with the constitutional safeguards that have been continuously reiterated by the Supreme Court of Ohio and the United States Supreme Court.14
{¶ 93} I recognize the legislature's intent to shift emphasis to the well being of the child. However, R.C.