Opinion
No. 2010 AP 06 0020.
DATE OF JUDGMENT ENTRY: October 6, 2010.
Appeal from the Tuscarawas County Court of Common Pleas Juvenile Division, Case No. 09 JN 00035.
Affirmed.
Jeff M. Kiggans, Tuscarawas County Job Family Services, for Appellee, TCJFS.
E. Marie Seiber, for Appellant, Mother.
Karen Dummermuth, Guardian ad Litem.
Before: Hon. Julie A. Edwards, P.J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.
OPINION
{¶ 1} Appellant Brook Manbeck ("Mother") appeals the May 26, 2010 Judgment Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile Division, which terminated her parental rights, privileges and responsibilities with respect to her minor child, and granted permanent custody of the child to appellee Tuscarawas County Job and Family Services ("TCJFS").
STATEMENT OF THE FACTS AND CASE
{¶ 2} Mother and Richard Baker ("Father") are the biological parents of M.B. (DOB 8/19/08). Mother was eighteen years old at the time of M.B.'s birth. Mother and Father have never been married.
Father is not a party to this appeal.
{¶ 3} On January 20, 2009, TCJFS filed a Complaint alleging M.B. to be a neglected and dependent child. The Complaint was filed after TCJFS worker Cindy McGuire made a visit to parents' home on January 16, 2009. Officer Shaver of the Uhrichsville Police Department accompanied McGuire as the Southern District Court for Tuscarawas County had issued a warrant for Father's arrest for failure to appear. Although Mother told the officer Father was not in the home, Father was eventually found hiding in the attic. Father was taken into custody and was incarcerated in the Tuscarawas County Jail at the time of the filing of the Complaint in this case. Mother was charged with obstruction of justice. In the months preceding this incident, TCJFS had received reports of loud fights between Mother and Father. Father attempted to kick in the door of the apartment to gain entrance during one of parents' argument. Father was charged with underage consumption as a result of that incident. M.B. was placed in the temporary custody of TCJFS. The trial court appointed counsel for Mother and Father, and a guardian ad litem for M.B.
{¶ 4} The trial court conducted an Adjudicatory Hearing on February 19, 2009, at which time TCJFS was permitted to amend the Complaint. Mother and Father entered pleas of admissions to the Amended Complaint. The trial court found M.B. to be a neglected and dependent child. The trial court scheduled the matter for disposition on March 17, 2009.
{¶ 5} TCJFS conducted a home study for Mother's maternal aunt, Regina Tubaugh, which was filed with the trial court on March 16, 2009. Following the disposition hearing, the trial court ordered M.B. remain in the temporary custody of TCJFS, and adopted a case plan. TCJFS subsequently filed a motion to review the home study of Regina Tubaugh, and a motion to modify prior disposition to place M.B. in the temporary custody of Tubaugh with an order of protective supervision to TCJFS. The trial court scheduled the motions for hearing on June 2, 2009. At the hearing, TCJFS withdrew its motions, and the trial court ordered M.B. to remain in the temporary custody of TCJFS under the original disposition order. The trial court also ordered Mother and Father to submit to immediate drug screens. Both parents tested positive for marijuana. Sometime in May 2009, Mother was charged with underage consumption after being found at a party with Father.
{¶ 6} On June 15, 2009, Mother filed a motion to modify prior disposition, requesting the trial court place M.B. in the temporary custody of Tubaugh under an order of protective supervision to the TCJFS. Mother subsequently withdrew this motion. During this time, Mother obtained a civil protection order against Father. Father violated the CPO on two occasions, and served jail time as a result thereof. As Mother appeared to be taking measures to distance herself from Father, TCJFS increased her visitation with M.B. Shortly thereafter, TCJFS learned Mother was continuing her contact with Father. Based upon information received, caseworker Jaime Grunder investigated and found Mother waiting for Father in the parking lot of a truck stop located near TCJFS's offices. When originally confronted, Mother reacted in a manner which made it clear to the caseworker Mother knew she should not have been with Father. Mother testified at the permanent custody hearing the meeting was coincidental.
{¶ 7} On November 17, 2009, Michelle Clum, M.B.'s maternal grandmother, and her husband, Richard Clum, filed a motion for legal custody of the child. Mother filed a motion for updated home study and to modify prior disposition, again asking the trial court to place M.B. with Tubaugh. TCJFS filed a motion for permanent custody on December 9, 2009. Following the annual review hearing on January 11, 2010, the trial court denied Richard and Michelle Clum's request for a home study due to Michelle Clum's past history with TCJFS. The trial court also denied the request for a home study of Amber Manbeck, Mother's sister, based upon the past criminal history of her live-in boyfriend which had not been fully and timely disclosed to TCJFS.
{¶ 8} The trial court conducted the permanent custody hearing on March 25, 2010. Via Judgment Entry filed May 26, 2010, the trial court terminated Mother's parental rights, privileges and responsibilities with respect to M.B., and granted permanent custody of the child to TCJFS. The trial court found M.B. could not and should not be placed with Mother within a reasonable time, and TCJFS had used diligent, reasonable efforts in planning to remedy the problems which caused the initial removal of the child.
{¶ 9} It is from this judgment entry Mother appeals, raising the following assignments of error:
{¶ 10} "I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO TUSCARAWAS COUNTY JOB AND FAMILY SERVICES (TCJFS') ABSENT CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY EXPENDED REASONABLE EFFORTS AND THAT THE CHILD COULD NOT BE PLACED WITH MOTHER WITHIN A REASONABLE TIME.
{¶ 11} "II. THE TRIAL COURT ERRED IN NOT AWARDING LEGAL CUSTODY TO EITHER APPELLANT'S MOTHER AND STEP-FATHER, MICHELLE AND RICHARD CLUM, OR HER MATERNAL AUNT, REGINA TUBAUGH."
{¶ 12} This case comes to us on the expedited calendar and shall be considered in compliance with App. R. 11.1(C).
I
{¶ 13} In her first assignment of error, Mother contends the trial court erred in granting permanent custody of M.B. to TCJFS because the record did not contain clear and convincing evidence TCJFS expended reasonable efforts, and M.B. could not be placed with Mother within a reasonable time.
{¶ 14} We first address Mother's contention the trial court's finding M.B. could not be placed with Mother within a reasonable time was not based on clear and convincing evidence.
{¶ 15} As an appellate court, we neither weigh the evidence nor judge the credibility of the 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 (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.
{¶ 16} 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 schedule a hearing and provide notice upon the 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.
{¶ 17} 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; (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.
{¶ 18} 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.
{¶ 19} 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.
{¶ 20} If the child is not abandoned or orphaned, then the focus turns to whether the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all relevant evidence before making this determination. The trial court is required to enter such a finding if it determines, by clear and convincing evidence, that one or more of the factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of the child's parents.
{¶ 21} TCJFS began its involvement with the family due to the unstable nature of the household. Father abused alcohol and drugs, and became violent as a result of such use. Further, Mother was unable to understand the effects of the situation upon M.B., and was unable to provide M.B. with a secure environment. Mother's case plan required her to complete a psychological assessment and follow recommendations, participate in individual counseling, meet the requirements of Ohio Works First Program, maintain appropriate housing, participate with Help Me Grow, complete parenting classes and demonstrate parenting skills, and make decisions which represent the best interest of M.B. Although Mother completed some of her case plan, she repeatedly failed to make decisions which were in the best interest of M.B. For example, on May 2, 2009, Mother was at a party with Father which led to her being charged with, and ultimately convicted of, underage consumption. Based upon this incident, TCJFS added a substance abuse assessment to Mother's case plan. As part of the assessment, Mother underwent a drug screen and tested positive for marijuana. Mother obtained a civil protection order against Father in June, 2009. Nonetheless, her case worker observed Mother and Father together in an automobile in the parking lot of a truck stop near TCJFS's offices.
{¶ 22} Despite some compliance with some aspects of the case plan, the exact problem which led to the initial removal of M.B. remained unaddressed. We find the trial court did not error in finding the child could not be placed with Mother within a reasonable time.
{¶ 23} We now turn to Mother's assertion the trial court's finding TCJFS expended reasonable efforts was not supported by clear and convincing evidence.
{¶ 24} Pursuant to R.C. 2151.419, the agency which removed the child from the home must have made reasonable efforts to prevent the removal of the child from the child's home, eliminate the continued removal of the child from the home, or make it possible for the child to return home safely. The statute assigns the burden of proof to the agency to demonstrate it has made reasonable efforts. R.C. 2151.419 is generally not applicable to permanent custody proceedings. In re C.F., 113 Ohio St.3d 73, 81, 862 N.E.2d 816, 2007-Ohio-1104 (Citation omitted). Nonetheless, we find TCJFS did make reasonable efforts.
{¶ 25} As discussed supra, TCJFS implemented a comprehensive reunification plan to assist Mother in remedying the problems which caused MB to be removed. Despite the services and repeated conversations to end contact with Father, Mother continued to do otherwise. Based upon our review of the record, we find substantial evidence to establish TCJFS used reasonable efforts to reunify the family, but Mother made no significant progress toward alleviating the TCJFS's core concerns for MB.
{¶ 26} Mother's first assignment of error is overruled.
II
{¶ 27} In her second assignment of error, Mother argues the trial court erred in failing to award legal custody to either M.B.'s maternal grandparents or maternal great aunt.
{¶ 28} 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.
{¶ 29} In In re Schaefer, 111 Ohio St.3d 498, 857 N.E.2d 532, 2006-Ohio-5513, the Ohio Supreme Court clearly found a trial court's statutory duty in determining whether it is in the best interest of a child to grant permanent custody to an agency does not include finding, by clear and convincing evidence, no suitable relative is available for placement. The statute requires the trial court to weigh all relevant factors. 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 which would not require a termination of parental rights an all-controlling factor nor does it require the court to weigh that factor more heavily than other factors. Schaeffer at ¶ 64.
{¶ 30} Contrary to Mother's assertion TCJFS did not investigate the two relative placements, the record reveals TCJFS did conduct such investigations. TCJFS originally investigated M.B.'s maternal grandmother, Michelle Clum, early in the case when Tubaugh sought custody of the child. Tubaugh intended to have Clum care for M.B. while she (Tubaugh) was at work. TCJFS found documentation of an incident occurring on November 15, 2005, during which Mother and her sister were the victims of substantiated physical abuse at the hands of Clum. Clum was criminally charged based upon this incident, and eventually pled guilty to a reduced charge. Although the charge was eventually expunged from Clum's record, TCJF, nonetheless, could find the incident decisive in its consideration of whether to place M.B. with Clum.
{¶ 31} TCJFS completed a home study of Tubaugh early in the case. Tubaugh was provided with unsupervised visitation. TCJFS became uncomfortable with placing M.B. in Tubaugh's temporary custody based upon its belief Tubaugh would not protect M.B. and would not be honest about what was happening in her home. This concern arose after Tubaugh had a conversation with M.B.'s foster parents during which Tubaugh's boyfriend commented TCJFS did not need to know everything. Tubaugh did not contradict or correct this statement. Later in the case, Mother filed a motion to modify disposition to place M.B. in Tubaugh's custody. Before the trial court heard that motion, Mother withdrew such as Tubaugh had incurred expenses which would make it financially difficult for her to assume custody. Tubaugh did undergo a psychological assessment. The clinical therapist questioned the validity of the test results as she found Tubaugh was not forthcoming in her answers.
{¶ 32} Based upon the record, we find the trial court did not abuse its discretion in failing to place M.B. in the custody of either maternal grandparents or her maternal great aunt.
{¶ 33} Mother's second assignment of error is overruled.
{¶ 34} The judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is affirmed.
Hoffman, J., Edwards, P.J. and Wise, J. concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion, the judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed to Appellant.