In re McColloch

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[Cite as In re McColloch, 2003-Ohio-5739.] IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO IN RE: : DAKOTA, KAYN, & KARLEANA : MC COLLOCH : C.A. CASE NOS. 02CA39,40 (Civil Appeal from Common Pleas Court) : . . . . . . . . . O P I N I O N Rendered on the 24th day of October, 2003. . . . . . . . . . William F. Schenck, Pros. Attorney; Robert K. Hendrix, Asst. Pros. Attorney, 61 Greene Street, Xenia, Ohio 45385, Atty. Reg. No. 0037351 Attorney for Plaintiff-Appellee Peter N. Griggs, 26 N. Wright Avenue, Fairborn, Ohio 45324, Atty. Reg. No. 0073819 Pamela L. Pinchot, 7501 Paragon Road, Lower Level, Dayton, Ohio 45459, Atty. Reg. No. 0071648 Attorneys for Defendants-Appellants . . . . . . . . . GRADY, J. {¶1} This matter is before the court on separate notices of appeal filed by Carl and Frances McColloch from an order of the Juvenile Court awarding permanent custody of their three minor children, Dakota McColloch, to ( CSB ). the McColloch, Greene Kayn County McColloch Children s and Karleana Services Board Frances McColloch is the mother of all three children. 2 Carl McColloch is the father of Kayn and Karleana (the twins), but not Dakota. Frances and Carl McColloch are half-siblings, sharing the same father. The court s permanent custody order was entered on March 12, 2002, pursuant to R.C. 2151.414(B), on a motion filed by CSB on May 30, 2000, pursuant to R.C. 2151.413. {¶2} This proceeding has an unusual history. Counsel were appointed to represent each parent after CSB filed its motion for permanent custody. Those counsel represented the parents in proceedings before a magistrate, who filed a decision on August 20, 2001. The court adopted the magistrate s decision as its own order on that same date, pursuant to Juv.R. 41(E)(4)(c). Counsel were apparently allowed to withdraw, and each parent then filed a general form of objection, pro se, arguing that their attorneys should not have been permitted to withdraw. New counsel were then appointed. {¶3} The parents new counsel filed no additional written objections. The matter eventually came before the court for hearing on February 12, 2002, on the pro se motions the parents had filed. Counsel for Carl McColloch advised the court that he d not had sufficient time to review the transcript to file written objections. The court advised him and counsel for Frances McColloch that they could proceed orally, and they did. {¶4} On February 14, 2002 following the hearing, the court recommitted the matter to the magistrate pursuant 3 Juv.R. to 41(E)(4)(b), with directions to issue a supplemental decision addressing the issue of adjudication. The magistrate s prior decision had apparently not expressly granted custody to CSB. {¶5} The February Juv.R. magistrate 20, 2002. However, to and the a supplemental decision on The court adopted the decision pursuant to 41(E)(4)(c). objections filed The record February thereafter, the 20, does not 2002 decision court filed reflect its that were own, any filed. separate judgment on March 12, 2002, granting custody to CSB. {¶6} The magistrate s two decisions each contain findings. The first decision, which the court adopted on August 20, 2001, but which the court subsequently rejected, in part, for lack of an adjudicative order, states: FINDINGS OF FACT {¶7} Greene County Children Services Board has maintained an open case since 1998 on the McColloch family. 1999, removed Dakota, from Kayn their and Karleana, parents neglect and dependency. the custody minor due to On February 1, children, physical were abuse, The children were returned on July 16, 1999 and August 12, 1999. The children were placed in the custody of their maternal grandmother on February 28, 2000 and subsequently placed in foster care on March 17, 2000. {¶8} 4 When the children were returned to Frances in 1999, services were put in place to assist with preserving the family unit. In spite of the services, the family household deteriorated, the mental stability of Frances deteriorated to the point, as she testified, that she was not cognizant that she was stealing or being charged with a criminal offense. Both Carl and Frances were on probation in Xenia Municipal Court, both have had a history with drugs, Carl was treated at the Christopher House and Frances has a history of mental illness, as she testified, she has tried to commit suicide at least three times prior to 1995. {¶9} The testimony presented demonstrates that Frances is able to care for the children for short periods of time, but is quickly overwhelmed and even more so when Carl is factored into the equation. {¶10} The reports to Guardian the court ad litems and recommending Dr. that Kelliher it was in submitted the best interest of the children to grant permanent custody to Greene County Children Services Board. {¶11} The case was magistrate s recommitted to second the decision, magistrate entered for an after the adjudicative order, states: {¶12} The Court found that the children lacked proper 5 parental care because of the faults or habits of the parents and their condition or environment was such that it warranted this state, in the interests of the children in assuming guardianship. {¶13} The Court heard testimony that both parents at times between February and May, 2000, were incarcerated. In February, 2000, the home was unsanitary, contained a strong odor, dirty, stale food, and the children were inadequately clothed. {¶14} The trial court s written judgment of March 12, 2002, reviewed the course of the proceedings, and then stated the following: {¶15} When the complaint seeking custody was filed . . . the agency had been providing approximately eighteen months. services to the family for Some of the same concerns, such as mental stability and safety of the children, persisted, but new issues also surfaced. trafficking and petty theft. Frances was involved in drug Carl was having difficulties with the law as well, spending periods of time incarcerated and in residential treatment programs. While there is evidence, even from some of CSB s witnesses, which indicates that Frances can be a good parent, there is also ample evidence which supports the Magistrate s finding that Frances is not able to maintain proper care of the children, especially when Carl is in the picture. There was conflicting testimony as to whether Frances 6 was hiding Carl s presence in the home from CSB, but it is the function of the trier of fact to determine which testimony to believe. {¶16} Each parent was assessed by Dr. Kelliher to determine the likelihood that the children could be returned to either one within a reasonable time. Dr. Kelliher had previously evaluated the parents, in connection with the initial Complaint filed by CSB. It was Dr. Kelliher s opinion that the children should be placed into the permanent custody of CSB. {¶17} The Magistrate applied the appropriate criteria in ruling on the issue of permanent custody. statutory There is sufficient evidence in the record to support the Findings of Fact made by the Magistrate. * {¶18} The Objections * are * overruled. The Magistrate s Decision is approved as submitted. {¶19} Carl appeal by and another Frances McColloch, set appointed of timely appealed to this court. who are counsel, represented separately on and They each presented the same two assignments of error: that the trial court abused its discretion in awarding permanent custody of these children to CSB because that agency did not prove by clear and convincing evidence: (1) that permanent placement with CSB was in the children s best 7 interest, and (2) that the children could not be placed with either parent within a reasonable time, or should not be placed with their parents. {¶20} We concluded that on the record before us, we could not determine the assigned errors because the trial court s findings of fact and conclusions of law were not sufficient or in proper form. We remanded this matter to the trial court for further findings. In re: Dakota McColloch, Kayn McColloch and Karleana McColloch (December 20, 2002), Greene App. Nos. 02CA39, and 02CA40. On January 7, 2003, the Juvenile Court filed its findings of fact and conclusions of law pursuant to our remand order. This matter is now before this court for decision on the merits of the assigned errors. CARL MCCOLLOCH S FIRST ASSIGNMENT OF ERROR {¶21} THE APPELLANT IN TRIAL COURT OVERRULING HIS ERRED TO THE OBJECTIONS TO PREJUDICE THE OF THE MAGISTRATE S DECISION WHEN IT FOUND THERE WAS CLEAR AND CONVINCING EVIDENCE THAT THE MINOR CHILDREN COULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE TIME OR AT ALL. FRANCES MCCOLLOCH S SECOND ASSIGNMENT OF ERROR {¶22} THE TRIAL COURT ERRED IN ITS DECISION GRANTING PERMANENT CUSTODY OF THE CHILDREN NAMED HEREIN TO THE GREENE COUNTY CHILDREN SERVICES BOARD BECAUSE IT FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN HEREIN COULD NOT 8 BE PLACED WITH THEIR MOTHER WITHIN A REASONABLE TIME OR SHOULD NOT BE PLACED WITH HER. {¶23} In these assignments of error, both parents argue that the record does not contain clear and convincing evidence to support the court s finding that these children cannot be placed with either parent within a reasonable time, or should not be placed with their parents. {¶24} In child custody cases, the focus of any decision must be on what is in the child's best interests. (1993), 86 Ohio App.3d 531, 539. deLevie v. deLevie The trial court's discretion should be given "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. gains through observing the The knowledge a trial court witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record. In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court's findings were indeed correct." Miller v. Miller (1988), 37 Ohio St.3d 71, 74 (citations omitted). {¶25} Although the trial court's case is broad, it is not absolute. discretion in a custody In the Matter of Calvin and Tonya Beal (October 5, 1992), Clark App. No. 2903. A trial court's decision in a custody case is "subject to reversal upon a showing of an abuse of discretion." Miller, supra at 74. 9 'The term "abuse of discretion' connotes more than an error of law or judgment; unreasonable, it implies arbitrary, or that the court's unconscionable." attitude is Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶26} R.C. 2151.414(B)(2) governs the termination of parental rights in a natural child when the child is neither abandoned nor orphaned. It provides that a court may grant custody of a child to a movant if the court determines, by clear and convincing evidence, that (1) "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"; and (2) "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." R.C. 2151.414(B)(1). Evidence is clear and convincing if it produces in the mind of the trier of fact "a firm belief or conviction as to the facts sought to be established." v. Ledford (1954), 161 Ohio St. 469, paragraph Cross three of syllabus. {¶27} R.C. 2151.414(E) provides a list of sixteen factors which a court must use to determine whether a child can be placed with his natural parents within a reasonable time, if ever. If the court determines that one or more of these factors exist as to each of the child's parents, the court must find that either the child cannot be placed with his parents within a 10 reasonable time or that the child should never be placed with either parent. Once the trial court finds from all relevant evidence that one or more of these factors exist, it then must consider whether permanent commitment is in the best interest of the child. In re William S., 75 Ohio St .3d 95, 1996-Ohio-182. {¶28} In determining that these children cannot be placed with either parent within a reasonable time, or should not be placed with their parents, the trial court made the following further findings: {¶29} 1. adjudicated an On February abused child, 1, 1999, arising Kayn from McColloch physical was injuries (skull fracture and intra-cranial bleeding) inflicted by Carl McColloch. See 11/12/98 complaint and 2/3/99 Judgment). {¶30} 2. When Carl is in the household, the environment for the children deteriorates. (4/16/01 Transcript, Page 103, Lines 10-16). {¶31} 3. children. residence Carl lacks any concern for the well-being of the At the home visit on February 28, 2000, when the was in disarray and Frances in distress (3/2/01 Transcript, Page 164, Lines 1-5), Carl simply left the house, neither attending to Frances nor the children s needs. (3/2/01, Transcript, Page 166, Lines 7-21) {¶32} 4. The potential harm to the children, posed by risking a return of custody to Frances, placement disrupted again, is too great. on two separate psychologist. occasions by Dr. only 11 have that to Frances was assessed Kelliher, licensed In his second evaluation, his 11/28/00 report contains the following assessment: {¶33} If she followed through on recommended treatments and interventions (e.g., medications, therapy, and hands-on parent education) and fully separated herself from Carl, it may be that she would remain stable and be able to care for her children. Given the past record, however, there seems to be too great a likelihood that one or these assumptions would not hold. She might succumb to pressures from Carl, she might stop taking her medications or discontinue therapy (if it were resumed), or the stress of caring for three small children relapse even with medications and therapy. might trigger a The risk of a third crisis and removal is, in my opinion, too great, and I do not believe the disruption. children They should need be permanent exposed to caretakers, risk and of such their best chance of such permanence appears to be through persons other than their parents. This course is all the more difficult to embrace because Frances does appear to be able to take good, appropriate care of her children for short spans of time, but she does not appear likely to be able to maintain such care in the long term (11/28/00 Report, Plaintiff s Exhibit 3, Page 12 17, First Paragraph) {¶34} 5. parent, because intervention unable The children should not be placed with either to despite and nearly eighteen community-based maintain a safe months services, and secure the of agency parents environment for are the children. {¶35} The trial court s findings implicate one or more of the statutory factors set out in R.C. 2151.414(E) as to each parent. Additionally, competent, credible those evidence findings in the are record. supported In re by Clever (October 18, 2002), Montgomery App. No. 19298, 19299, 2002-Ohio5588. {¶36} As to Carl McColloch, on or about February 3, 1999, Kayn McColloch was adjudicated an abused child and removed from the home as a result of serious head injuries she suffered when struck by a toy Carl threw at her in a fit of rage. R.C. 2151.414(E)(3). Carl has also spent several periods of time incarcerated in including or periods residential during drug which treatment these facilities, permanent custody proceedings were pending. During those periods of time Carl was obviously to not 2151.414(E)(13). available In care addition, for there the is children. evidence that R.C. Carl suffers from mental illness and substance abuse problems, that he has in the past mistreated Dakota McColloch and now Dakota 13 mistreats the twins, Kayn and Karleana McColloch, and that on at least one occasion when Frances McColloch was experiencing a severe mental and emotional breakdown and the children needed immediate care, Carl simply left the home. R.C. the evidence 2151.414(E)(16). {¶37} With demonstrates various respect that to Frances despite community based the McColloch, fact services CSB to has this been providing family for over eighteen months in an effort to remedy the problems that caused the children s substantially removal remedy from those the home, Frances conditions. R.C. has failed to 2151.414(E)(1). Some of the initial concerns such as Frances mental illness and instability, and her inability to cope at times with the stress of caring for her three children persist. In addition, other problems have arisen including Frances criminal behavior, which includes the sale of drugs from her home when her children were present, and her failure to attend court ordered budgeting classes, and her admission to her mother that she had allowed Carl to stay with her and that she hid him from her caseworkers in violation of the court s order. {¶38} While substantial children, periods efforts and of there is time is evidence to improve capable of if follows she her being that Frances ability to a parent good through with has care for for all made of her short her 14 recommended treatments and case plan interventions, especially when Carl is not around, there is also competent credible expert testimony from Dr. Kelliher that it is unlikely that Frances will be able to sustain appropriate care of her children long term. In other words, the improvements Frances has made in being able to care for her children are most likely temporary, and she is medications at high and risk for The therapy. a relapse, testimony notwithstanding demonstrates the children s need for a legally secure permanent home which can only be achieved via a grant of permanent custody to CSB. {¶39} Additionally, there is evidence that at various times this home was filthy and cluttered with stale food, dirty clothes, and on one occasion open pill bottles that were laying about. The children were at times not kept clean. The guardian ad litems and Dr. Kelliher each recommended that CSB be granted permanent custody. R.C. 2151.414(E)(16). {¶40} To the extent that one or more of the factors in R.C. 2151.414(E) exist as to each parent, the trial court was required to find that these children could not be placed with either parent within a reasonable time or should not be placed with their parents. R.C. 2151.414(E). supported by clear and convincing evidence. That finding is We see no abuse of discretion on the part of the trial court. {¶41} These assignments of error are overruled. 15 FRANCES MCCOLLOCH S FIRST ASSIGNMENT OF ERROR {¶42} THE TRIAL COURT ERRED IN ITS DECISION GRANTING PERMANENT CUSTODY OF THE MCCOLLOCH CHILDREN TO THE GREENE COUNTY CHILDREN SERVICES BOARD BECAUSE IT FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS IN THE BEST INTEREST OF THE CHILDREN TO TERMINATE THEIR MOTHER S PARENTAL RIGHTS AND GRANT PERMANENT CUSTODY TO THE AGENCY. CARL MCCOLLOCH S SECOND ASSIGNMENT OF ERROR {¶43} THE APPELLANT IN TRIAL COURT OVERRULING ERRED HIS TO THE OBJECTIONS TO PREJUDICE THE OF THE MAGISTRATE S DECISION WHEN IT DETERMINED THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT THE COMMITMENT OF THE CHILDREN TO PERMANENT CUSTODY TO THE AGENCY WAS IN THE CHILDREN S BEST INTEREST. {¶44} In these assignments of error, both parents argue that the record does not contain clear and convincing evidence to support the court s finding that permanent placement of these children with CSB is in the children s best interest. {¶45} R.C. 2151.414(D) identifies factors a court must consider when determining the best interests of the child. states that a court shall consider all relevant It evidence including, but not limited to: {¶46} (1) child with the The interaction child's and parents, interrelationship siblings, relatives, of the foster 16 caregivers and out-of-home providers, and any other person who may significantly affect the child; {¶47} "(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; {¶48} "(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; {¶49} "(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; {¶50} "(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child." {¶51} In determining these children court made to the that grant it is permanent following in the custody findings best to relative interest CSB, to the each of trial of the factors set out in R.C. 2151.414(D): {¶52} (D)(1) child with the The interaction and interrelationship of the child s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who 17 may significantly effect the child FINDINGS OF FACT {¶53} 1. approximately Complaint in Despite CSB s involvement with the family for eighteen which months permanent prior to custody the was May 30, sought, the 2000, mental instability and actions of the parents continued to place the safety of the children at risk. {¶54} 2. CSB s involvement with the family began on November 12, 1998, with the filing of a complaint alleging Kayn to be abused and dependent, and alleging Dakota and Karleana to be dependent. 9/13/99, and The Judgments filed 11/30/98, 2/3/99, 7/9/99, 1/28/00 reflect that CSB had been granted protective supervision or temporary custody of the children. {¶55} 3. On February supervision of the children. Better Childhood, a county 28, 2000, CSB had protective On that date, an employee of A early intervention program for children ages three years and younger, made a pre-arranged visit to the McColloch residence. The parents had advance notice, therefore, of the caseworker s visit that day. were home at the time. Both parents The employee described the condition of the home as follows: That s probably my third that was actually my fourth home visit and that was the worst I ve ever seen the home. You literally had to move things when you came in the door. There were shoes and clothes and food, and I know I went over to the couch where Frances was and noticed 18 there medication bottles, prescription bottles, Pepto Bismol. was There was a bowl of cereal on the floor with cigarette butts floating in the milk. (3/2/01 Transcript, Page 169, Lines 9-17) It was really dirty compared to the other times I had been there. had never seen it in such disarray. the most bottles. open. outstanding thing I I Safety issues were probably noticed, being There was various bottles out. the medication Some of them were My concern would be if the children were up you would definitely have a potential hazardous condition. (3/2/01 Transcript, Page 170, Lines 2-9) {¶56} 4. The parents allowed the home environment to lapse into a condition which placed the children s safety at risk. {¶57} (D)(2) The wishes of the child, as expressed by the child or through the child s guardian ad litem, with due regard for the maturity of the child FINDINGS OF FACT {¶58} 1. It is the wish of all three children, as expressed through their guardian ad litem, that they be placed into the permanent custody of CSB. See the CASA Guardian ad Litem Report filed 12/1/00. {¶59} 2. It is the wish of Kayn McColloch, as expressed by his attorney, Mr. Miles, that he be placed into the Agency s permanent custody. 19 (4/16/01, Transcript, Page 151, Lines 3-7) {¶60} (D)(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 FINDINGS OF FACT {¶61} 1. Dakota McColloch was in the temporary custody of CSB from February 1, 1999, to July 16, 1999. See Judgment filed 2/3/99 and 7/9/99. {¶62} 2. Karleana and Kayn McColloch were in the temporary custody of CSB from February 1, 1999, to August 12, 1999. See Judgment filed 2/3/99 and 7/9/99. {¶63} 3. When the Court terminated the agency s temporary custody described in paragraphs #1 and #2, custody was returned to Frances McColloch. {¶64} 4. CSB was awarded protective supervision. On April 3, 2000, interim custody of all three children was awarded to the agency, pending the Complaint for Permanent Custody. {¶65} (D)(4) See Judgment filed 4/13/00. 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 FINDINGS OF FACT 20 The children need a legally secure placement. {¶66} 1. When the complaint seeking permanent custody was filed on May 30, 2000, the children had been removed twice from the parents during the prior seventeen months. {¶67} 2. custody. the No other relative was available to assume The children s maternal grandmother, Lavina Rash, and maternal petition action. for step-grandfather, custody in the Ronald midst of Boyer, the withdrew permanent their custody (4/16/01 Transcript, Page 44, Lines 4-11) {¶68} 3. Because the Court is making a finding herein that the children should not be returned to either parent, the Court is finding that a legally secure placement for the children cannot be achieved without a grant of permanent custody to the agency. {¶69} The evidence presented in this case demonstrates that it is the wish of all permanent custody of CSB. three children to be R.C. 2151.414(D)(2). placed in the These children have been in the temporary custody of CSB for twelve or more months out of a consecutive twenty-two month period beginning February 1, 1999 2151.414(D)(3). and ending December 1, 2000. R.C. There is also evidence that these children need a legally secure permanent placement that cannot be achieved without a grant of permanent custody to CSB. R.C. 21 Additionally, evidence was presented regarding 2151.414(D)(4). the relationship between the children and their biological parents as well as their foster parents, R.C. 2151.414(D)(1), including conflicting evidence as to the degree of between Frances and the twins, Kayn and Karleana. bonding It is of course the duty of the trial court as the trier of facts to resolve conflicts in the evidence by determining the credibility of the witnesses and the weight to be given to their testimony. Clever, supra. {¶70} We find that there is clear and convincing evidence that supports the trial court s determination that it is in the best interest of these children to award permanent custody to CSB. Thus, there is no abuse of discretion on the part of the trial court. {¶71} These assignments of error are overruled. FRANCES MCCOLLOCH S SUPPLEMENTAL ASSIGNMENT OF ERROR {¶72} THE TRIAL COURT ERRED IN ADOPTING BOTH THE AUGUST 20, 2001 DECISION DECISION OF OF THE THE MAGISTRATE MAGISTRATE IN AND SO THE FAR AS FEBRUARY THE 20, 2002 MAGISTRATE S DECISIONS DID NOT CONTAIN SUFFICIENT FINDINGS OF FACT FOR THE TRIAL COURT TO MAKE AN INDEPENDENT ANALYSIS OF SAID DECISIONS. {¶73} In this assignment of error Defendant argues that the magistrate s decisions in this permanent custody matter did not 22 contain sufficient findings of fact and conclusions of law to enable the trial court to perform its own independent analysis of the magistrate s decision. Thus, the trial court should not have adopted the magistrate s decision. {¶74} Defendant is magistrate s findings. challenging the sufficiency of the Ordinarily, when a trial court overrules any objections that have been filed and adopts a magistrate s decision, on appeal from that decision we necessarily review the magistrate s determining findings whether of the fact trial and conclusions court abused of its law in discretion. Here, however, on appeal we remanded this matter back to the trial court to enter findings. Our order of remand required the trial court to make its own findings of fact and law, which it did. and It is those findings, the trial court s findings of fact conclusions of law, that we now review on appeal in determining whether the trial court abused its discretion in awarding permanent custody of these children to CSB. The magistrate s findings are moot. {¶75} This assignment of error is overruled. of the trial court will be affirmed. FAIN, P.J. and YOUNG, J., concur. Copies mailed to: The judgment 23 Robert K. Hendrix, Esq. Peter N. Griggs, Esq. Pamela L. Pinchot, Esq. Hon. Robert W. Hutcheson

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