Opinion
CASE NO. 9-14-46
07-06-2015
IN RE: A.M. [TAMMY MARTIN - APPELLANT].
APPEARANCES: Joel M. Spitzer Raymond A. Grogan, Jr.
OPINION
Appeal from Marion County Common Pleas Court Family Division
Trial Court No. 2013-AB-00035
Judgment Affirmed
APPEARANCES:
Joel M. Spitzer for Appellant Raymond A. Grogan , Jr. for Appellee PRESTON, J.
{¶1} Appellant, Tammy Martin ("Martin"), appeals the October 23, 2014 judgment entry of the Marion County Court of Common Pleas, Family Division, granting permanent custody of her child, A.M., to appellee, Marion County Children Services ("MCCS"). For the reasons that follow, we affirm.
{¶2} Martin gave birth to A.M. in March 2013, while incarcerated at the Ohio Reformatory for Women ("ORW"). (Doc. Nos. 1, 3, 4). On March 20, 2013, MCCS filed a "motion for ex parte/emergency orders with notice of hearing." (Id.). That day, a magistrate of the trial court granted ex parte, emergency temporary custody of A.M. to MCCS. (Doc. Nos. 2, 3).
{¶3} After filing several complaints in 2013 and 2014 that the trial court dismissed, on MCCS's motion, under R.C. 2151.35, MCCS filed its final complaint on March 6, 2014. (Doc. No. 64). (See also Doc. Nos. 4, 12, 13, 34, 35, 46, 47, 54, 63). In its March 6, 2014 complaint, MCCS alleged that A.M. is a dependent child under R.C. 2151.04 and requested that the trial court grant temporary custody of A.M. to MCCS. (Doc. No. 64).
{¶4} At multiple points in the case, MCCS submitted case plans to the trial court, which the trial court approved and incorporated into disposition entries. (Doc. Nos. 10, 31, 37, 53, 58). MCCS also filed semiannual administrative reviews. (Doc. Nos. 62, 84).
{¶5} On May 2, 2013, the trial court appointed a guardian ad litem for A.M. and counsel to represent Martin. (Doc. Nos. 16, 18).
{¶6} At a hearing on May 12, 2014, Martin and A.M.'s father, Frank Stephens ("Stephens"), stipulated that A.M. is a dependent child. (See Doc. No. 93). Accordingly, the trial court found that A.M. is a dependent child. (Id.).
{¶7} On August 12, 2014, MCCS filed a motion for permanent custody of A.M. (Doc. No. 77).
{¶8} On October 14, 2014, the trial court held a permanent-custody hearing. (Oct. 14, 2014 Tr. at 1).
{¶9} On October 23, 2014, the trial court filed its judgment entry awarding permanent custody of A.M. to MCCS. (Doc. No. 96).
{¶10} Martin filed her notice of appeal on November 20, 2014. (Doc. No. 101). She raises three assignments of error for our review. We will address her first and third assignments of error together, followed by her second assignment of error.
Assignment of Error No. I
The trial court committed reversible error in finding that factors existed that precluded the placement of [A.M.] with the appellant within a reasonable time as that finding was against the manifest wieght [sic] of the evidence.
Assignment of Error No. III
The trial court committed reversible error in granting permanent custody of the child to Marion County Children Services as that decision was against the manifest weight of the evidence.
{¶11} In her first assignment of error, Martin disputes the trial court's reliance on R.C. 2151.414(E)(1) and (4) in concluding that A.M. should not be placed with her. In Martin's third assignment of error, she argues that the trial court "did not cite any specific reason for finding that it was in the best interest of the child to permanently sever custody" and that the trial court "erred in finding that the clear and convincing evidence showed that it was in the best interest of the children [sic] to grant permanent custody to MCCS." (Appellant's Brief at 7-8).
{¶12} The right to raise one's child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923). "Parents have a 'fundamental liberty interest' in the care, custody, and management of the child." Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 6.
{¶13} When considering a motion for permanent custody of a child, the trial court must comply with the statutory requirements set forth in R.C. 2151.414. See In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 14. R.C. 2151.414(B)(1) provides, in relevant part, that a trial 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:R.C. 2151.414(B)(1)(a), (d). Specifically concerning R.C. 2151.414(B)(1)(a), "[i]f one or more of the factors enumerated in R.C. 2151.414(E) is found to be present by clear and convincing evidence, the trial court shall find that the child cannot be placed with the parents within a reasonable period of time or should not be placed with the parents." In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 54, citing In re Goodwin, 3d Dist. Shelby No. 17-08-12, 2008-Ohio-5399, ¶ 23.
(a) The child is not abandoned or orphaned, 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, * * * 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.
* * *
(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 * * *.
{¶14} "[T]he findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are alternative findings, [and] each is independently sufficient to use as a basis to grant the Agency's motion for permanent custody." In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶ 80. Under the plain language of R.C. 2151.414(B)(1)(d), when a child has been in an agency's temporary custody for 12 or more months of a consecutive 22-month period, a trial court need not find that the child cannot be placed with either parent within a reasonable time or should not be placed with the parents. In re I.G., 3d Dist. Marion Nos. 9-13-43, 9-13-44, and 9-13-45, 2014-Ohio-1136, ¶ 30, citing R.C. 2151.414(B)(1)(d).
{¶15} "If the trial court determines that any provision enumerated in R.C. 2151.414(B)(1) applies, the trial court must determine, by clear and convincing evidence, whether granting the agency permanent custody of the child is in the child's best interest." (Emphasis sic.) In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 55, citing In re D.M., 3d Dist. Hancock Nos. 5-09-12, 5-09-13, and 5-09-14, 2009-Ohio-4112, ¶ 33 and In re K.H., 3d Dist. Hancock No. 5-10-06, 2010-Ohio-3801, ¶ 30. In determining whether granting the agency permanent custody is in the best interest of the child, R.C. 2151.414(D)(1) provides:
[T]he court shall consider all relevant factors, including, but not limited to, the following:R.C. 2151.414(D)(1)(a)-(e).
(a) 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;
(b) 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;
(c) 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 * * *;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶16} "Clear and convincing evidence is more than a preponderance of the evidence but not as much evidence as required to establish guilt beyond a reasonable doubt as in a criminal case; rather, it is evidence which provides the trier of fact with a firm belief or conviction as to the facts sought to be established." In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 42, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122 (1991). "Upon review, an appellate court 'must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.'" Id. at ¶ 43, quoting In re Meyer at 195, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985). "A reviewing court will not reverse a trial court's determination unless it is not supported by clear and convincing evidence." Id., citing In re Meyer at 195, citing In re Adoption of Holcomb at 368 and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). See also In re A.E., 3d Dist. Seneca Nos. 13-14-14 and 13-14-15, 2014-Ohio-4540, ¶ 28 ("A court's decision to terminate parental rights will not be overturned as against the manifest weight of the evidence if the record contains competent, credible evidence by which a court can determine by clear and convincing evidence that the essential statutory elements for a termination of parental rights have been established."), citing In re B.G.W., 10th Dist. Franklin No. 08AP-081, 2008-Ohio-3693 and In re Nevaeh J., 6th Dist. Lucas No. L-06-1093, 2006-Ohio-6628, ¶ 17.
{¶17} Here, the record supports the trial court's conclusion that, under R.C. 2151.414(B)(1)(d), A.M. was in the temporary custody of MCCS for 12 or more months of a consecutive 22-month period. The trial court placed A.M. in the temporary custody of MCCS on March 20, 2013, and A.M. remained in MCCS's temporary custody through MCCS's filing its August 12, 2014 motion for permanent custody and the October 14, 2014 permanent-custody hearing. (Oct. 14, 2014 Tr. at 14); (Doc. Nos. 2, 3, 9, 20, 32, 68, 93). That amounts to over 16 consecutive months that A.M. was in MCCS's temporary custody. Indeed, Martin concedes that R.C. 2151.414(B)(1)(d) applies in this case. (Appellant's Brief at 7). Therefore, it was unnecessary for the trial court to make the alternative determination, under R.C. 2151.414(B)(1)(a) and 2151.414(E), that A.M. should not be placed with either parent. See In re I.G., 2014-Ohio-1136, at ¶ 30, 32. Because, as Martin concedes, one provision of R.C. 2151.414(B)(1) applies—namely, R.C. 2151.414(B)(1)(d)—we next address the trial court's best-interest determination under R.C. 2151.414(D)(1). See In re A.F., 2012-Ohio-1137, at ¶ 55.
{¶18} Martin argues that the trial court "did not cite any specific reason for finding that it was in the best interest of the child to permanently sever custody." (Appellant's Brief at 7-8). "[I]n rendering its judgment, the trial court must either specifically address each of the required considerations set forth in R.C. 2151.414(D) in its judgment entry, or otherwise provide some affirmative indication in the record that the court has considered the specific factors listed in R.C. 2151.414(D)." (Emphasis sic.) In re M.R., 2013-Ohio-1302, at ¶ 77, citing In re D.H., 3d Dist. Marion No. 9-06-57, 2007-Ohio-1762, ¶ 21. Here, while the trial court did not specifically address each R.C. 2151.414(D) factor, it cited R.C. 2151.414(D) in making its best-interest conclusion: "In accordance with [R.C.] 2151.414(D) the Court finds that the grant of permanent custody of [A.M.] to [MCCS] is in the best interest of the child." (Doc. No. 96 at 4). See In re M.R. at ¶ 78 ("While it is far from the better practice, we find that the trial court's citation to the appropriate statute when making its best interest finding meets its obligation, albeit to the minimum extent possible, in demonstrating that the R.C. 2151.414(D) factors were considered."). In addition, in its judgment entry, the trial court made findings relevant to the R.C. 2151.414(D) factors. (See Doc. No. 96 at 2-4). See In re M.R. at ¶ 78 ("Moreover, * * * there is clear and convincing evidence in the record to support the trial court's finding that it is in M.R.'s best interest to grant the Agency's motion for permanent custody.").
{¶19} Martin makes no specific arguments concerning why she believes the trial court's best-interest determination is against the manifest weight of the evidence. She fails to cite legal authorities or parts of the record on which she relies. App.R. 16(A)(7) requires that Martin include in her brief: "An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." (Emphasis added.) Under App.R. 12(A)(2), we are not required to address arguments that have not been sufficiently presented for review or supported by proper authority, as required by App.R. 16(A)(7). Black v. St. Marys Police Dept., 3d Dist. Mercer No. 10-11-11, 2011-Ohio-6697, ¶ 14. Indeed, "'[i]t is not the obligation of this Court to construct an argument for an appellant.'" In re M.Z., 9th Dist. Lorain No. 11CA010104, 2012-Ohio-3194, ¶ 13, quoting In re C.R., 9th Dist. Summit Nos. 25211, 25223, and 25225, 2010-Ohio-2737, ¶ 43.
{¶20} Nevertheless, the record supports the trial court's factual findings relevant to the R.C. 2151.414(D) factors. Regarding R.C. 2151.414(D)(1)(a), A.M. was born on March 19, 2013, while Martin was incarcerated, and has been in foster care with Melissa and Craig Draper since her birth. (Doc. No. 96 at 2-3); (Oct. 14, 2014 Tr. at 14, 24-25). Also as the trial court noted, "Mrs. Draper testified that she and her husband are bonded to [A.M.] and [A.M.] to them. She further testified that they are willing to adopt [A.M.]." (Doc. No. 96 at 3). (See also Oct. 14, 2014 Tr. at 25-26). Martin was released from prison on June 24, 2013 and visited A.M. only once, on July 10, 2013, before Martin was arrested again, convicted of robbery, and sentenced to 42 months in prison on October 21, 2013. (Doc. No. 96 at 3); (Oct. 14, 2014 Tr. at 22-23, 27). Although Martin was aware that she was entitled to be present at the permanent-custody hearing and that a decision adverse to her would result in the permanent termination of her parental rights, Martin chose not to attend the permanent-custody hearing. (Id. at 2); (Id. at 1-2). Regarding R.C. 2151.414(D)(1)(b), the trial court appears to have duly regarded A.M.'s young age, noting her date of birth is March 19, 2013, making her 19 months old at the time of the trial court's decision. (Id. at 2); (Id. at 14). Regarding R.C. 2151.414(D)(1)(c), A.M. has been in the custody of MCCS and the foster care of the Drapers since her birth. (Id. at 3); (Id. at 24-25). A.M. has been in MCCS's temporary custody continuously for the more than 12 months between A.M.'s birth and the filing of MCCS's motion for permanent custody. (Doc. No. 96 at 3); (Oct. 14, 2014 Tr. at 14); (Doc. Nos. 2, 3, 9, 20, 32, 68, 93). Regarding R.C. 2151.414(D)(1)(d), a caseworker contacted a relative who Martin said would take custody of A.M., but that relative declined. (Doc. No. 96 at 3); (Oct. 14, 2014 Tr. at 19). Stephens, A.M.'s father, voluntarily surrendered permanent custody to MCCS, and the evidence demonstrated that Martin cannot provide a legally secure permanent placement for A.M. (Id. at 1, 4); (Id. at 4-10, 11-23). Regarding R.C. 2151.414(D)(1)(e), the trial court made findings relevant to R.C. 2151.414(E)(11). That is, Martin's parental rights were terminated with respect to her two other children, born in 2007 and 2009, and Martin did not prove that she can provide an adequate and permanent home for A.M. (Doc. No. 96 at 2); (Doc. No. 4); (Oct. 14, 2014 Tr. at 14). The termination of Martin's custody as to at least one of her other two children was involuntary. (Doc. No. 96 at 2); (Doc. No. 4).
R.C. 2151.414(E)(11) provides:
The parent has had parental rights involuntarily terminated with respect to a sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the Revised Code, or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to those sections, and the parent has failed to provide clear and convincing evidence to prove that, notwithstanding the prior termination, the parent can provide a legally secure permanent placement and adequate care for the health, welfare, and safety of the child.
{¶21} For the reasons above, we conclude that clear and convincing evidence supports the trial court's determinations under R.C. 2151.414 that it was required to and did make in granting MCCS's motion for permanent custody. The trial court properly determined that R.C. 2151.414(B)(1)(d) applies and that it is in A.M.'s best interest to grant permanent custody to MCCS. The trial court's decision to grant MCCS's motion for permanent custody is not against the manifest weight of the evidence, as Martin argues. The trial court did not err in granting MCCS's motion for permanent custody.
{¶22} Martin's first and third assignments of error are overruled.
Assignment of Error No. II
The trial court committed reversible error in finding reasonable efforts were made to prevent the removal of [A.M.] from the home.
{¶23} In her second assignment of error, Martin argues that MCCS failed to make reasonable efforts to reunify A.M. and Martin. Specifically, Martin argues that "MCCS failed to make reasonable efforts to enroll [Martin] in the [Achieving Baby Care Success Program ("ABC Program")] at the Ohio Reformatory for Women." (Appellant's Brief at 7).
Martin includes this quoted text under her third assignment of error, in which she summarizes the argument she makes under her second assignment of error. --------
{¶24} "'R.C. 2151.419 imposes a duty on the part of children services agencies to make reasonable efforts to reunite parents with their children where the agency has removed the children from the home.'" In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 37, quoting In re Sorg, 3d Dist. Hancock No. 5- 02-03, 2002-Ohio-2725, ¶ 13. "The reasonable efforts requirement in R.C. 2151.419(A)(1) does not apply in a hearing on a motion for permanent custody filed pursuant to R.C. 2151.413." In re T.S., 3d Dist. Mercer Nos. 10-14-13, 10-14-14, and 10-14-15, 2015-Ohio-1184, ¶ 33, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 43. "'However, except for some narrowly defined statutory exceptions, the state must still make reasonable efforts to reunify the family during the child-custody proceedings prior to the termination of parental rights.'" Id., quoting In re C.F. at ¶ 43. "[T]he agency bears the burden of showing that it made reasonable efforts," and "'if the agency has not established that reasonable efforts have been made prior to the hearing on a motion for permanent custody, then it must demonstrate such efforts at that time.'" Id. at ¶ 26, citing R.C. 2151.419(A)(1); Id. at ¶ 34, quoting In re C.F. at ¶ 43. We review under an abuse-of-discretion standard a trial court's finding that an agency made reasonable efforts toward reunification. See In re C.F. at ¶ 48; In re Sherman, 3d Dist. Hancock Nos. 5-06-21, 5-06-22, and 5-06-23, 2006-Ohio-6485, ¶ 11.
{¶25} "'Case plans are the tools that child protective service agencies use to facilitate the reunification of families who * * * have been temporarily separated.'" In re T.S. at ¶ 26, quoting In re Evans, 3d Dist. Allen No. 1-01-75, 2001 WL 1333979, *3 (Oct. 30, 2001). "To that end, case plans establish individualized concerns and goals, along with the steps that the parties and the agency can take to achieve reunification." Id. at ¶ 27, citing In re Evans at *3. "Agencies have an affirmative duty to diligently pursue efforts to achieve the goals in the case plan." Id., citing In re Evans at *3. "'Nevertheless, the issue is not whether there was anything more that [the agency] could have done, but whether the [agency's] case planning and efforts were reasonable and diligent under the circumstances of this case.'" Id., quoting In re Leveck, 2003-Ohio-1269, at ¶ 10. "'"Reasonable efforts" does not mean all available efforts. Otherwise, there would always be an argument that one more additional service, no matter how remote, may have made reunification possible.'" In re H.M.K., 2013-Ohio-4317, at ¶ 95, quoting In re M.A.P., 12th Dist. Butler Nos. CA2012-08-164 and CA2012-08-165, 2013-Ohio-655, ¶ 47. "We also note that the statute provides that in determining whether reasonable efforts were made, the child's health and safety is paramount." In re T.S. at ¶ 27, citing R.C. 2151.419(A)(1).
{¶26} In its October 23, 2014 entry granting MCCS permanent custody of A.M., the trial court determined that MCCS made reasonable efforts toward reunification:
The Court further finds pursuant to [R.C.] 2151.419(A)(1) that the Agency has made reasonable efforts to prevent removal of the child from the home of her parents, eliminate the continued removal of the child from the parents' home and taken steps to make it possible for(Doc. No. 96 at 4).
the child to return home safely, but that parents' failure to work with the Agency in achieving the goals and the objectives of the case plan in this regard have prevented return of the child to the parents' home.
{¶27} Martin's sole argument in support of this assignment of error—namely, that MCCS failed to use reasonable efforts to enroll Martin in the ABC Program—is problematic for multiple reasons. First, the ABC Program, in which mother-inmates can maintain custody of their infants, is not administered by MCCS; it apparently is administered by ORW. (Doc. Nos. 58, 64, 84); (Oct. 14, 2014 Tr. at 14). See In re A.F. at ¶ 42 ("Though [mother-appellant] contends that [the counselor's] decision to continue with outpatient treatment is indicative of MCCS's unreasonable efforts, [mother-appellant] overlooks the fact that [the counselor] is not an agent of MCCS, but an employee of [Marion Area Counseling Center]. Consequently, this contention does not demonstrate that MCCS's efforts were unreasonable."), citing In re Jo. S., 3d Dist. Hancock Nos. 5-11-16 and 5-11-17, 2011-Ohio-6017, ¶ 33 and In re Van Atta, 3d Dist. Hancock No. 5-05-03, 2005-Ohio-4182, ¶ 12. Martin cites nothing in the record to suggest how MCCS could have done more than it did concerning the ABC Program. See In re Jo. S. at ¶ 33. Second, according to Randy Lee, an ongoing caseworker at MCCS, Martin did not qualify for the ABC Program because "[s]he lost custody of a child and was unsuccessful discharge [sic] on the previous program with it." (Oct. 14, 2014 Tr. at 14). (See also Doc. No. 64 ("The [ORW] in Marysville is equipped with the [ABC Program]. Tammy Martin participated in this program in 2007. Tammy Martin was removed from this program in March 2007 due to behavioral issues and is not able to participate in the program again.")). Third, Martin was released from ORW on June 24, 2013 and is presently incarcerated at Dayton Correctional Institution, and there is no indication in the record that the ABC Program exists at Dayton Correctional Institution. (Doc. Nos. 31, 84); (Oct. 14, 2014 Tr. at 11). In short, Martin failed to demonstrate how MCCS failed to make reasonable efforts to enroll her in the ABC Program or toward reunification.
{¶28} In fact, the record reflects that MCCS made reasonable efforts to reunify Martin with A.M., and the trial court's factual findings in its judgment entry granting MCCS's motion for permanent custody clearly demonstrate the reasonableness of MCCS's efforts. See In re T.S., 2015-Ohio-1184, at ¶ 34. Specifically, MCCS developed a case plan, arranged for visits for Martin with A.M. when Martin was not incarcerated, and investigated the possibility of A.M. being placed with a relative. (Doc. Nos. 31, 58); (Oct. 14, 2014 Tr. at 16, 19, 22). Therefore, the trial court did not abuse its discretion in finding that MCCS made reasonable efforts toward reunification under R.C. 2151.419.
{¶29} Martin's second assignment of error is overruled.
{¶30} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed ROGERS and WILLAMOWSKI, J.J., concur.