In re O.W.

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[Cite as In Re: O.W., 2010-Ohio-5099.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT IN RE: O.W. AND L.G. : : : : : : : : : JUDGES: Hon. Julie A. Edwards, P.J. Hon. W. Scott Gwin, J. Hon. Patricia A. Delaney, J. Case No. 2010-CA-00180 OPINION CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2008JCV00940 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: October 18, 2010 APPEARANCES: For Appellee For - Appellant QUAY D. COMPTON SCDJFS 220 East Tuscarawas St. Canton, OH 44702 JOHN A. DANKOVICH Stark County Public Defender 200 West Tuscarawas St., Ste. 200 Canton, OH 44702 [Cite as In Re: O.W., 2010-Ohio-5099.] Gwin, J. {¶1} Appellant-mother Ulanda W.1 appeals the June 21, 2010, judgment entry of the Stark County Court of Common Pleas, Family Court Division, which terminated her parental rights with respect to her minor children, O.W. and L.G. and granted permanent custody of the child to appellee, the Stark County Department of Jobs and Family Services (hereinafter SCDJFS). I. Procedural History {¶2} On August 20, 2008, the SCDJFS filed a complaint in 2008 JCV 000940 seeking temporary custody of O.W. DOB, 8/06/2005 and L.G. DOB, 6/06/2007, alleging the children to be dependent or neglected. On September 17, 2008, the children were found dependent and temporary custody was placed with the SCDJFS. A case plan was adopted and made an order of the court. The case plan included, but was not limited to, assessments for parenting abilities and substance abuse, as well as following the recommendations of the assessment. {¶3} On February 13, 2009, the Court conducted a dispositional review. At that time, the parents were required to attend Goodwill Parenting and receive mental health services. The children remained in the temporary custody of the SCDJFS. {¶4} On July 16, 2009, the SCDJFS filed a motion for permanent custody of O.W. and L.G. On October 30, 2009 the paternal grandmother, French F.2 filed a motion for intervention and a motion for legal custody. On November 6, 2009, mother filed a motion for legal custody to be granted to the paternal grandmother. No party or 1 For purposes of anonymity, initials designate appellant s name only. See, e.g., In re C.C., Franklin App. No. 07-AP-993, 2008-Ohio-2803 at ¶ 1, n.1. 2 See note 1 supra. Stark County, Case No. 2010-CA-00180 3 interested person filed motions requesting legal custody be granted to a paternal aunt, Iris G.3 {¶5} The trial on the motions was held on September 3, 2009 (hereinafter "1T."), November 9, 2009 (hereinafter "2T.") and March 29, 2010 (hereinafter "3T"). On February 4, 2010, the Court issued its decision that the children cannot and should not be placed with either parent at this time or within a reasonable time. On June 21, 2010, the Court issued its decision that the best interest of the children would be served by the granting permanent custody of the children to the SCDJFS. {¶6} It is from this entry that the appellant-father has appealed. II. Assignments of Error {¶7} On appeal, mother asserts the following assignments of error: {¶8} I. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE CHILDREN WOULD BE SERVED BY GRANTING PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. {¶9} II. THE JUDGMENT OF THE TRIAL COURT DENYING CHANGE OF LEGAL CUSTODY TO PATERNAL GRANDMOTHER WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. {¶10} A. Burden Of Proof {¶11} [T]he right to raise a child is an essential and basic civil right. In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, quoting Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. A parent's interest in the care, custody and management of his or her child is fundamental. Id.; Santosky v. Kramer 3 See note 1, supra. Stark County, Case No. 2010-CA-00180 4 (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. The permanent termination of a parent's rights has been described as, * * * the family law equivalent to the death penalty in a criminal case. In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45. Therefore, parents must be afforded every procedural and substantive protection the law allows. Id. {¶12} An award of permanent custody must be based upon clear and convincing evidence. R.C. 2151.414(B) (1). The Ohio Supreme Court has defined clear and convincing evidence as [t]he measure or degree of proof that will produce in the mind of the Trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal. In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-104, 495 N.E.2d 23. {¶13} B. Standard of Review {¶14} Even under the clear and convincing standard, our review is deferential. If some competent, credible evidence going to all the essential elements of the case supports the trial court s judgment, an appellate court must affirm the judgment and not substitute its judgment for that of the trial court. In re Myers III, Athens App. No. 03CA23, 2004-Ohio-657, ¶ 7, citing State v. Schiebel (1990), 55 Ohio St. 3d 71, 74, 564 N.E.2d 54. The credibility of witnesses and weight of the evidence are issues primarily for the trial court, as the Trier of fact. In re Ohler, Hocking App. No. 04CA8, 2005-Ohio1583, ¶ 15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Stark County, Case No. 2010-CA-00180 5 III. Requirements for Permanent Custody Awards {¶15} R.C. 2151.414 sets forth the guidelines a trial court must follow when deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court must schedule a hearing, and provide notice, upon filing of a motion for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child or has placed the child in long-term foster care. {¶16} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to grant permanent custody of the child to the public or private agency if the court determines, by clear and convincing evidence, it is in the best interest of the child to grant permanent custody to the agency, and that any of the following apply: (a) the child is not abandoned or orphaned, 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 and the parents cannot be located; (c) the child is orphaned and there are no relatives of the child who are able to take permanent custody; or (d) the child has been in the temporary custody of one or more public children services agencies or private child placement agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999. {¶17} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial court must apply when ruling on a motion for permanent custody. In practice, the trial court will usually determine whether one of the four circumstances delineated in R.C. 2151.414(B) (1) (a) through (d) is present before proceeding to a determination regarding the best interest of the child. Stark County, Case No. 2010-CA-00180 6 {¶18} Both of appellant-mother s assignments of error center upon the best interest prong of the permanent custody analysis by the trial court. Appellant-mother does not contest the trial court s determination and findings concerning the first-prong of the permanent custody analysis, nor does she seek to have custody of the children awarded to her. {¶19} A. Best Interest of the Children {¶20} In determining the best interest of the child at a permanent custody hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including, but not limited to, the following: (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents 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; and (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. {¶21} The focus of the best interest determination is upon the child, not the parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a grant of permanent custody would have upon the parents. In re: Awkal (1994), 95 Ohio App.3d 309, 315. A finding that it is in the best interest of a child to terminate the parental rights of one parent is not dependent upon the court making a similar finding with respect to the other parent. The trial court would necessarily make a separate determination concerning the best interest of the child with respect to the rights of the mother and the rights of the father. Stark County, Case No. 2010-CA-00180 7 {¶22} The trial court made findings of fact regarding the child s best interest. It is well-established that [t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. In re Mauzy Children (Nov. 13, 2000), Stark App. No. 2000CA00244, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424. {¶23} As an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence, upon which the fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758. A fundamental premise of our criminal trial system is that the[Trier of fact]is the lie detector. United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of witness testimony, therefore, has long been held to be the part of every case [that] belongs to the [Trier of fact], who [is] presumed to be fitted for it by [his or her] natural intelligence and their practical knowledge of men and the ways of men. Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891) . United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267. Reviewing courts should accord deference to the trial court s decision because the trial court has had the opportunity to observe the witnesses demeanor, gestures, and voice inflections that cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St. 3d 71. {¶24} B. Efforts to Identify Appropriate Relative Placement. Stark County, Case No. 2010-CA-00180 8 {¶25} Appellant-mother argues that the trial court erred by not placing O.W. and L.G. in the legal custody of their relatives, namely their paternal grandmother, French F. {¶26} R.C. 2151.412(G), in relevant part, states: {¶27} In the agency's development of a case plan and the court's review of the case plan, the child's health and safety shall be the paramount concern. The agency and the court shall be guided by the following general priorities: {¶28} (5) If the child cannot be placed with either of the child's parents within a reasonable period of time or should not be placed with either, if no suitable member of the child's extended family or suitable non-relative is willing to accept legal custody of the child, and if the agency has a reasonable expectation of placing the child for adoption, the child should be committed to the permanent custody of the public children services agency or private child placing agency. {¶29} The child being placed in a permanent situation that fosters growth, stability, and security serves the child s best interests. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055. Accordingly, a court is not required to favor a relative if, after considering all the factors, it is in the child's best interest for the agency to be granted permanent custody. In re A.C., 12th Dist. No. CA 2006-12-105, 2007-Ohio-3350 at ¶17; In Re Dylan B., Luna B, Stark App. No. 2007-CA-00362, 2008Ohio-2283 at ¶66; In re Turner, 5th Dist. No. 2006CA00062, 2006-Ohio-4906 at ¶ 35; In re Perry, 4th Dist. Nos. 06 CA 648, 06 CA 649, 2006-Ohio-6128 at ¶62. {¶30} The court must consider all of the elements in R.C. 2151.414(D) as well as other relevant factors. There is not one element that is given greater weight than the others pursuant to the statute. In re Schafer, 11 Ohio St.3d 498, 2006-Ohio- 5513 at ¶ Stark County, Case No. 2010-CA-00180 9 56. Schafer made it clear that a trial court's statutory duty, when determining whether it is in the best interest of a child to grant permanent custody to an agency, did not include finding by clear and convincing evidence that no suitable relative was available for placement. "The statute requires a weighing of all relevant factors, and the trial court did that in this case. R.C. 2151.414 requires the court to find the best option for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a) through (d). The statute does not make the availability of a placement that would not require a termination of parental rights an all-controlling factor. The statute does not even require the court to weigh that factor more heavily than other factors." Schaeffer at 111 Ohio St.3d, 498, 2006-Ohio-5513, at ¶ 64; In Re Dylan B., Luna B, supra at ¶ 67; In re Avon, 5th Dist. No. 2006-AP-09-0051, 2007-Ohio-1431 at ¶26. {¶31} During the best interest phase of the permanent custody hearing, the court received testimony from the ongoing caseworker, Vicki Mitchell, the appellant-father, paternal aunt Iris G. and from the paternal grandmother, French F. who had requested custody of the children. {¶32} Paternal grandmother testified that she is 74 years old. She stated she has adequate income to support the children. She testified that she has sufficient housing to accommodate the addition of the children. She stated that if she received custody, she would rely on assistance from her sister, Laura D. and her daughter, Iris G. in raising the children. {¶33} The ICPC home study of Laura D. was admitted into evidence as State's Exhibit 4 without objection. Ms. Mitchell testified that [Laura D ] s ICPC home study was denied, as Laura D. indicated she was unable to care for the children after she was fully Stark County, Case No. 2010-CA-00180 10 informed of the needs of the children and the nature of the commitment she would be making as legal custodian. [Laura D.] also withdrew her request for placement/custody of the children and previously testified that she did not want custody of the children. {¶34} Both the paternal grandmother and appellant testified that if legal custody were granted to the paternal grandmother, the appellant s sister, Iris G. would assist her in caring for the children. Appellant testified the Iris G. works with special needs children at a school in Chicago. He stated that she has worked at the school for over 20 years. {¶35} The ICPC home study of Iris G. was admitted into evidence as State's Exhibit 3 without objection. {¶36} Ms. Mitchell testified at the "very beginning" of the case, the paternal grandmother was given the opportunity to be considered for placement but she declined. (3T. at 37). The paternal grandmother later came forward requesting consideration for care or custody of the children. Pursuant to her request and in compliance with R.C. 2151.56 to 2151.61, an Interstate Compact on Juveniles was completed. (3T. at 12). Her home study was denied by the children services agency in Cook County, Illinois, the home county of the paternal grandmother. (3T. at 13, 23). The denial was based upon lack of understanding of the children's needs, denial that the children were special needs children, and denial of any problems with the parents. (3T. at 14, 23 24). Paternal grandmother "Seemed to you know be more interested in a temporary placement versus a long term placement." (3T. at 14). {¶37} SCDJFS attempted to facilitate an extended visitation in the parents home. The plan included the paternal grandmother residing in the home. (3T. at 22). Prior to placing the children in the home, SCDJFS requested a four to six month Stark County, Case No. 2010-CA-00180 11 commitment from the paternal grandmother to stay in the home of the parents. (3T. at 11). The paternal grandmother indicated her agreement and commitment to the children and the plan. (Id.). Three days later, the paternal grandmother informed the foster parents she was leaving town. Ms. Mitchell, the ongoing worker from SCDJFS, went to the home to speak with the paternal grandmother. (3T at 42). The paternal grandmother was unable to explain why she was leaving after only three days and she did not know when or if she would return. (3T. at 11 - 12, 42). {¶38} A home study was also completed on the paternal aunt. (3T. at 17). The home study indicated a "guarded recommendation" for placement with the paternal aunt. The guarded recommendation was based upon lack of contact and bond with the children, understanding of the children's needs, denial that the children were special needs children, and denial of any problems with the parents. A letter was sent to the paternal aunt offering her the ability to visit with the children, to learn about the children's medical needs and to be part of the process. She "has not made any effort to visit." (3T. at 17). She did attend one visit with the parents, but did not seek any additional time with the children and "hadn't seen the children but you know for a very long time prior to that. (Id.) There is no bond between the aunt and the children. {¶39} According to the Cook County, Illinois officials who conducted the home study, placement should not occur until "she should first demonstrate that she understands that the parent's pose a risk to the children as [paternal aunt] had stated that she did not believe that there was a problem and believed that the children should be returned home to the parents and in fact stated that in Court the last time she was Stark County, Case No. 2010-CA-00180 12 here I believe." (3T. at 18). The paternal aunt testified "I know there's nothing wrong with my brother" and the children should be returned to his custody. (2T. at 47). {¶40} Ms. Mitchell opined that a grant of permanent custody would be in the best interest of the children. (3T. at 19). Ms. Mitchell indicated that in the year and a half the children have been in custody, no party, other than the foster family, has demonstrated an ability to meet the specific needs of these children. (3T. at 20). {¶41} Based upon the testimony, the court properly denied the motion by paternal grandmother and appellant-mother for a change of legal custody. There was sufficient evidence submitted at the hearing to call into question, the relatives' ability to provide a long term, stable placement for the children. IV. Conclusion {¶42} For these reasons, we find that the trial court did not abuse its discretion in denying the paternal grandmother s motion for custody. Additionally, the trial court did not abuse its discretion in denying appellant-mother s motion to change legal custody to paternal grandmother. {¶43} We further find that the trial court s decision that permanent custody be granted to the SCDJFS was in the children s best interest and was not against the manifest weight or sufficiency of the evidence. {¶44} Appellant s first and second assignments of error are overruled. Stark County, Case No. 2010-CA-00180 13 {¶45} The judgment of the Stark County Court of Common Pleas, Family Court Division is affirmed. By Gwin, J., Edwards, P.J., Delaney, J., concur _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. PATRICIA A. DELANEY WSG:clw 0927 [Cite as In Re: O.W., 2010-Ohio-5099.] IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT IN RE: O.W. AND L.G. : : : : : : : : : : JUDGMENT ENTRY CASE NO. 2010-CA-00180 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas, Family Court Division is affirmed. Costs to appellant. _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. PATRICIA A. DELANEY

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