Opinion
C.A. NOS. 20346.
Decision and Journal Entry Dated: June 13, 2001.
20436 APPEALS FROM JUDGMENTS ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE NOS. DN 99 1 11 DN 99 1 12 DN 99 1 13 DN 99 1 14 DN 99 1 15.
JANET I. STICH, Attorney at Law, 566 White Pond Dr., Suite C #104, Akron, Ohio 44320, for Michelle Woodall, Appellant.
MARTHA HOM, Attorney at Law, 611 West Market Street, Suite One, Akron, Ohio 44303, for Eric Jacobs, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and PHIL BOGDANOFF, Assistant Prosecuting Attorney, 53 University Avenue, Akron, Ohio 44308, for Appellee.
NANCY MERCURIO, Assistant Prosecuting Attorney, 650 Dan Street, Akron, Ohio 44310, for Appellee.
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Michelle Woodall ("Appellant Woodall"), and Appellant, Eric Jacobs ("Appellant Jacobs"), have appealed from the order of the Summit County Court of Common Pleas, Juvenile Division, that terminated Appellants' parental rights. We affirm.
Appellant Woodall is the mother of Ariz. Woodall, born December 3, 1992; Dasha and Derrick Jacobs, born January 29, 1995; Taija Hubbard, born July 24, 1996; and Renisha Pittman, born April 21, 1998. Appellant Jacobs is the father of Ariz, Dasha, and Derrick. On January 4, 1999, all five children were taken into custody under Juv.R. 6 when the police responded to a complaint that the children had been left at home by themselves and that Ariz. had burnt herself while cooking for her younger siblings. On January 5, 1999, the Summit County Children Services Board ("CSB") moved for emergency temporary custody of the five children. On that same date, emergency custody was granted. The children were placed in the home of the great-grandmother, Evelyn Smith. On January 14, 1999, the trial court continued the emergency temporary custody order. On March 25, 1999, Ariz, Dasha, Derrick, and Taija were adjudicated to be abused children by reason of endangerment, and Renisha was adjudicated to be a dependent child.
Appellant Woodall also has a sixth child, Deaire, born during the pendency of this case. Deaire is not a subject of this case.
Appellant Woodall subsequently pled guilty to child endangerment and was sentenced to six months incarceration for the events that led to the taking of the children under Juv.R. 6.
This Court notes that in the trial court's order adjudicating Ariz, Dasha, Derrick, and Taija, the trial court indicates that it has adjudicated these children to be "Endangered children" pursuant to R.C. 2151.031(B). Since an adjudication of "endangered" is not proper under the statute, this Court construes this to be an adjudication of abuse since the definition of an abused child as set forth in R.C. 2151.031(B) includes a child who is endangered.
On May 28, 1999, a case plan was implemented for Appellant Woodall, Appellant Jacobs, and the fathers of the Taija and Renisha. Pursuant to the case plan, Appellant Woodall was required to follow all rules of her probation; remain drug free; address any emotional issues; visit her children regularly and provide appropriate adult supervision at all times; attend parenting classes and follow through with recommendations; and obtain and maintain clean, stable, independent housing. Appellant Jacobs was to visit his children regularly.
On June 8, 1999, Ms. Smith requested that the children be removed from her care and advised CSB that Appellant Woodall had taken the children in violation of the trial court's orders. On June 10, 1999, CSB moved the trial court to amend the case plan to provide for placement with a different relative, and to alter Appellant Woodall's visitation. Previously the visitation had been liberal in that it permitted Appellant Woodall the opportunity to visit with her children at any time so long as Ms. Smith was present to supervise the visitation. Pursuant to CSB's motion the visitation would only be permitted to occur during a one-hour session, once a week, at the CSB visitation center. On June 22, 1999, the trial court granted CSB's motion and ordered Appellant Woodall to have supervised visitation at the CSB visitation center. The trial court further ordered Appellant Woodall to undergo a psychological evaluation and follow all treatment recommendations resulting therefrom. On June 25, 1999, the trial court ordered this case referred to the Coordinated Services Team.
On July 8, 1999, CSB moved the trial court for an order terminating all visitation by Appellant Woodall. In its motion, CSB alleged that Appellant Woodall, had on repeated occasions physically removed the children from their placement without supervision in violation of the trial court's order. Additionally, CSB alleged that following the placement of the children in the second relative's home, Appellant Woodall scuffled with the relative in an attempt to remove the children from the home without supervision. During this scuffle the relative's property was damaged. Appellant Woodall's visitation was temporarily terminated pending a hearing on the motion. On August 10, 1999, the trial court reinstated supervised visitation at the CSB visitation center and ordered Appellant Woodall to have no other contact with the children except that permitted by the court.
On October 22, 1999, a review hearing was held on this case. The trial court found that Appellant had pled guilty to probation violations as a result of her harassment of the relatives with whom the children had been placed. Additionally, the trial court found that Appellant Woodall had missed two of her urine screens and had failed to attend at least two of her Alcoholics Anonymous/Narcotics Anonymous meetings in violation of the conditions of her probation. The trial court stated that despite Appellant Woodall's participation in two parenting classes, she had been unable to demonstrate appropriate parenting skills learned through these courses. It was noted that Appellant Woodall used harsh language with the children and engaged in inappropriate behavior with the children. The Coordinated Services Team recommended that the children not be returned to Appellant Woodall at this time. Accordingly, on October 27, 1999, the trial court ordered that the children remain in the temporary custody of CSB.
On November 12, 1999, CSB moved for permanent custody of the children. On December 1, 1999, Appellant Woodall moved the trial court for a six month extension of the temporary custody to permit her to complete the objectives of her case plan. On December 7, 1999, CSB moved to withdraw its motion for permanent custody to allow Appellant Woodall additional time to meet the case plan objectives and to facilitate reunification. On January 14, 2000, following a hearing, the court granted the six month extension. The trial court noted at this time that Appellant Woodall was not compliant with her case plan and that based upon her actions it was hesitant to extend temporary custody. However, in an effort to maintain this family unit, the court granted the extension.
On December 27, 1999, an amended case plan was filed. Appellant Woodall was directed to control and manage her anger; avoid further criminal activity; participate in counseling on a regular basis and follow through on treatment recommendations; utilize appropriate methods of discipline; supervise her children; accept responsibility for previous methods of parenting; attend parenting classes and utilize recommendations; and deal with and accept her own past issues of neglect and abuse. Appellant Jacobs was instructed to participate in his children's lives; establish paternity; pay child support; and visit the children regularly.
On February 14, 2000, CSB terminated Appellant Woodall's visitation. As a result of actions which led to the termination of the visits, CSB filed an amended case plan that instructed Appellant Woodall to participate in a parenting program to help her understand how to appropriately parent her children and to assist her in resolving the behavior which lead to the termination of visits.
Appellant Woodall moved to reinstate the visitation. A hearing was held on the motion during which evidence was presented concerning the basis for the termination. At the hearing, the evidence established that visitation had been terminated after Appellant Woodall accosted a case aide at the CSB visitation center. The evidence showed that the children were out of control and that Appellant Woodall was engaging in inappropriate behavior with the children during the visit. When offered suggestions by the case aide to resolve the situation, Appellant Woodall became very angry and pinned the case aide against the wall and was reportedly making threatening gestures towards her. As a result of this volatile incident, the children were extremely upset and reportedly experienced extreme long-term anxiety. Appellant Woodall alleged that her visitation should be reinstated in light of the progress she had made on her case plan. Despite Appellant Woodall's claims of compliance, the trial court found that significant evidence had been presented to show that she was not in compliance with the case plan. Testimony was presented that Appellant Woodall had failed to comply with the terms of her probation and, accordingly, a warrant had been issued for her arrest. The evidence further showed that Appellant failed to accept her own personal issues of abuse and neglect and that she refused to accept any responsibility for the children's behavior. Evidence was also presented as to the progress of the children following the termination of the visitation. The testimony indicated that following the termination of the visits with Appellant Woodall, the children's behavior showed notable improvement. Upon review of the evidence presented the trial court denied Appellant Woodall's motion to reinstate visitation.
On May 31, 2000, CSB moved for permanent custody of Ariz, Dasha, Derrick, Taija, and Renisha. Following a hearing, on October 5, 2000, the trial court granted permanent custody to CSB and terminated the parental rights of Appellant Woodall, and Appellant Jacobs. The trial court found that it was in the children's best interests that they be placed in the custody of CSB; that the children had been in CSB's custody in excess of twelve of the past twenty-two months; that the children are in need of a legally secure, permanent placement and said placement cannot be effectuated without a grant of permanent custody to CSB; and that the children could not and should not be placed with either parent within a reasonable time. Appellants timely appealed. Appellant Woodall has raised five assignments of error. Appellant Jacobs has raised six assignments of error. The assignments of error have been rearranged and consolidated for ease of review.
The parental rights of the fathers of Taija and Renisha were also terminated at that time. These individuals have not appealed the order of the trial court.
APPELLANT WOODALL'S ASSIGNMENT OF ERROR I
The trial court erred in finding that it is in the minor childrens' [ sic.] best interest that they be placed in the permanent custody of CSB as the prosecution failed to meet its burden of proof requiring clear and convincing evidence.
APPELLANT WOODALL'S ASSIGNMENT OF ERROR II
The trial court erred in granting CSB's motion for permanent custody thereby terminating the parental rights of Appellant Woodall as the trial court's findings are against the manifest weight of the evidence which could only lead to one conclusion that being contrary to the judgment of the trial court.
APPELLANT JACOBS' ASSIGNMENT OF ERROR I
Appellant [Jacobs] substantially complied with his case plan requirements and therefore a grant of permanent custody was contrary to law.
APPELLANT JACOBS' ASSIGNMENT OF ERROR IV
The decision to grant permanent custody of these children to CSB was against the manifest weight of the evidence[,] and the evidence presented was insufficient to support the decision.
APPELLANT JACOBS' ASSIGNMENT OF ERROR V
The trial court erred by granting CSB's motion for permanent custody as permanent custody was not in the children's best interests.
In Appellant Woodall's first and second assignments of error and in Appellant Jacobs' first, fourth and fifth assignments of error, Appellants have argued that the trial court's order granting permanent custody of these five children to CSB was not supported by clear and convincing evidence and was against the manifest weight of the evidence. We disagree.
We note that clear and convincing evidence must exist to support a permanent custody award. The Ohio Supreme Court has defined "clear and convincing evidence" as follows:
[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, 103-04. See, also, State v. Schiebel (1990), 55 Ohio St.3d 71, 74. In reviewing whether the lower court's decision was based upon clear and convincing evidence, "a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Schiebel, 55 Ohio St.3d at 74. If the lower court's judgment is "supported by some competent, credible evidence going to all the essential elements of the case[,]" a reviewing court may not reverse that judgment. Id. Moreover, "[a]n appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusion of law[.]" Id. Issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact. As the court explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80:
The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.
Accordingly, this Court must review the evidence to establish that there was competent, credible evidence to support each element.
R.C. 2151.414(B) provides that:
Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.
(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.
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999.
Pursuant to the plain language of R.C. 2151.414(B)(1)(d), when a child has been in a children services agency's temporary custody for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999, a trial court need not find that the child cannot or should not be placed with either parent within a reasonable time. See In re Fox (Sept. 27, 2000), Wayne App. Nos. 00CA38, 00CA39, 00CA40, 00CA41, unreported, at 11; In re Moody (Aug. 7, 2000), Athens App. No. 99CA63, unreported, 2000 Ohio App. LEXIS 3644 at *9-10; In re Moody (Aug. 7, 2000), Athens App. No. 99CA62, unreported, 2000 Ohio App. LEXIS 3645 at *16-17. See, generally, In re Rodgers (2000), 138 Ohio App.3d 510, 521-22; In re Barker (June 16, 2000), Champaign App. No. 20001, unreported, 2000 Ohio App. LEXIS 2609, at *6-1. Instead, under R.C. 2151.414(B)(1), the juvenile court may grant permanent custody to CSB upon two findings: (1) that the children had been in the temporary custody of an appropriate agency "for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999[,]" and (2) that a grant of permanent custody to CSB is in the best interests of the children.
For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.
The evidence before the trial court demonstrated that the children were taken into custody under Juv.R. 6 on January 4, 1999. Sixty days after that date is March 5, 1999. CSB moved for permanent custody on May 31, 2000. The trial court granted permanent custody on October 5, 2000. By the time of the permanent custody hearing on September 19 and 20, 2000, the children had been in the temporary custody of CSB for the eighteen months of the prior consecutive twenty-two month period.
Thus, when considering a permanent custody motion brought pursuant to R.C. 2151.414(B)(1)(d), the only other consideration becomes the best interests of the child. R.C. 2151.414(D) provides that in determining the best interests of a child, a court should consider all relevant factors, including but not limited to:
(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(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, 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 * * *;
(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;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
Upon review of the evidence, it is clear that the record supports that the children's best interests could only have been served through the granting of permanent custody to CSB.
The procedural history of this family clearly establishes that all five children have spent almost their entire lives in the custody of CSB due to various problems with Appellants. CSB first became involved in this matter when Appellant Woodall and Ariz. were removed from the maternal grandmother's home following a drug raid on the home during which the maternal grandmother was arrested. Appellant Woodall and Ariz. were placed with the maternal great-grandmother until they were removed by CSB following an altercation during which Appellant Woodall threatened the maternal great-grandmother with an ice pick and threatened to destroy her property. In 1995, Appellant Woodall, Ariz, Dasha and Derrick were removed from the maternal grandmother's home following an occurrence of domestic violence between Appellant Woodall and the maternal grandmother. Appellant Woodall was placed in a detention home and the children were placed in CSB's custody. The children were returned to Appellant Woodall, but they were almost immediately removed again due to another incident between Appellant Woodall and the maternal grandmother. The children were initially placed with the maternal great-grandmother, but were removed after Appellant Woodall harassed her. In March 1996, the children were returned to Appellant Woodall. In August 1998, CSB was again referred to the family based upon allegations of neglect. However, Appellant Woodall moved away and CSB lost contact with her. In January 1999, the children were taken into custody under Juv.R. 6 following a complaint that the children had been left home alone and Ariz. had burnt herself trying to make food for her younger siblings. The children have remained in the custody of CSB since that time. Clearly, the procedural history indicates that the children have spent a prolonged period of time in the custody of CSB.
In addition to the prolonged family involvement with CSB, several of the witnesses testified that due to extensive behavioral issues with the children, the children require a secure placement in a loving, stable environment. As seen in the history of this case, such a placement has not been possible with Appellants. This is exemplified in the incident which prompted CSB's involvement in this family in 1999, wherein Appellant Woodall left a six-year-old child at home alone to supervise four-year-old twins and a two-year-old child. While Appellant Woodall alleges that she left the children with a babysitter, she pled guilty to child endangering on the charges that arose from this incident, and she thereby admitted to her actions. Additionally, Ariz. told several people, including the case worker and her counselors that she was often left home alone to care for her younger siblings and that she had witnessed violence while in the custody of Appellant Woodall.
There was also testimony concerning the well-being of the children. The evidence indicated that the children have bonded with the foster parents and that they appear to excel when separated from their parents and each other. Additionally, several witnesses testified that following the termination of visitation with Appellant Woodall the children's behavior showed notable improvement. In fact, Ariz's teacher, Kimberly Romanowski, testified that she had concerns about the reinstatement of visitation with Appellant Woodall due to the regressions suffered by Ariz. in the past following such visits.
In light of their tender age, the children did not testify regarding their wishes concerning their placement. The guardian ad litem, did, however, state that the children's best interests would be served only through a grant of permanent custody to CSB. The guardian ad litem stated that Appellant Woodall had been unable to provide the children with a safe, stable, and structured environment. She further went on to illustrate the improvement with the children following their removal. Specifically, she noted that when the children were removed from Appellant Woodall's care they had to be taught how to do basic things such as brush their teeth, personal hygiene, sitting at a table, and eating with utensils.
Accordingly, upon review of the evidence, the trial court's determination that it was in the children's best interests that they be placed in the permanent custody of CSB was supported by competent, credible evidence.
Since there was competent, credible evidence to support that it was in the children's best interests to grant permanent custody to CSB, and the children have been in the custody of CSB for eighteen months of the consecutive twenty-two month period, the trial court did not abuse its discretion in granting permanent custody to CSB under R.C. 2151.414(B)(1). Appellant Woodall's first and second assignments of error and Appellant Jacobs' first, fourth and fifth assignments of error are without merit.
APPELLANT WOODALL'S ASSIGNMENT OF ERROR III
The trial court's decision must be reversed as the trial court improperly quashed a discovery subpoena issued on behalf of Appellant Woodall.
In her third assignment of error, Appellant Woodall has argued that the trial court erred when it improperly quashed her discovery request. We disagree.
"[A]bsent an abuse of discretion, an appellate court must affirm a trial court's disposition of discovery issues." State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469. An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable decision. State ex rel. Askew v. Goldhart (1996), 75 Ohio St.3d 608, 610.
In this case, Appellant Woodall's attorney made a request for the production of documents on the second day of trial. The prosecutor representing CSB objected noting that the request was for an inordinately large amount of documents and that it would take a significant amount of time to compile these records. Based upon the timing of the request at such a late period in the proceedings, the trial court quashed the subpoena noting that Appellant Woodall knew of these records and could have requested them much earlier. This Court is unable to say that such an order is an abuse of discretion. Appellant Woodall's third assignment of error is without merit.
APPELLANT WOODALL'S ASSIGNMENT OF ERROR IV
The trial court's decision must be reversed based upon prosecutorial misconduct.
In her fourth assignment of error, Appellant Woodall has argued that the trial court's decision should be reversed due to the misconduct of the prosecutor during the course of the trial. We disagree.
When reviewing allegations of prosecutorial misconduct, appellate courts must consider that "`the touchstone of due-process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.'" State v. Hill (1996), 75 Ohio St.3d 195, 203, quoting Smith v. Phillips (1982), 455 U.S. 209, 219, 71 L.Ed.2d 78, 87. The Ohio Supreme Court has declared that prosecutorial misconduct is not grounds for error unless the individual has been denied a fair trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266. In order to reverse a conviction based on prosecutorial misconduct, the individual must prove that the comments were improper and that they prejudicially affected her substantial rights. State v. Smith (1984), 14 Ohio St.3d 13, 14.
Appellant Woodall has alleged that the prosecutor committed error when she introduced evidence that Appellant Woodall failed to comply with the terms of her probation in the form of an arrest warrant served on her at the trial.
Maintaining compliance with her probation was a requirement of Appellant Woodall's case plan. Therefore, evidence which goes to show that she had not been compliant with her case plan is admissible. Such a fact does not necessarily need to be proven through a certified copy of a conviction for a probation violation. Therefore, it was not error for such evidence to be presented.
Even assuming arguendo that such evidence was improper, Appellant Woodall has failed to establish that such proffered evidence prejudiced her substantial rights. This Court notes that this matter was tried to the bench and not a jury. This Court further notes that the arrest warrant was excluded as an exhibit by the trial court with the court noting that this was not evidence of a conviction and therefore was not properly admitted as proof of the fact that Appellant Woodall failed to comply with the terms of her probation. Therefore, while the serving of the arrest warrant upon Appellant Woodall in court does seem to be unnecessary high drama, this Court presumes that the trial court followed its own rulings and considered only that evidence that was properly admitted. Accordingly, Appellant Woodall's fourth assignment of error is without merit.
APPELLANT WOODALL'S ASSIGNMENT OF ERROR V
The trial court's decision must be reversed based on the ineffective assistance of counsel on behalf of Appellant Woodall.
In her fifth assignment of error, Appellant Woodall has argued that she was denied effective assistance of counsel. We disagree.
The United States Supreme Court has set forth a two-part test to determine if a conviction or sentence should be reversed based upon ineffective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L.Ed.2d 674, 693. "First, the [appellant] must show that counsel's performance was deficient." Id. To meet this standard Appellant Woodall must be able to prove "errors so serious that counsel was not functioning as the `counsel' guaranteed the [appellant] by the Sixth Amendment." Id. Second, Appellant Woodall must establish that the deficient performance by counsel was serious enough that it resulted in prejudice to her "so serious as to deprive the [appellant] of a fair trial, a trial whose result is reliable." Id. The Ohio Supreme Court set out a substantially similar standard in State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus, holding "[c]ounsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance."
Appellant Woodall has alleged that counsel's representation was deficient in that (1) he failed to timely subpoena three witnesses, and (2) he failed to timely request documents from CSB resulting in the trial court quashing her discovery motion. She has claimed that her prejudice arises from her inability to present the testimony of these witnesses and rebut the historical references made to this case through the requested documents. However, Appellant Woodall has failed to indicate how the absence of such witnesses and records altered the result of a trial whose result was reliable. Accordingly, Appellant Woodall's fifth assignment of error is without merit.
APPELLANT JACOBS' ASSIGNMENT OF ERROR II
CSB did not use reasonable and diligent efforts to reunite this family.
In his second assignment of error, Appellant Jacobs has argued that CSB failed to comply with the mandates of R.C. 2151.419(A)(1). Specifically, he has alleged that CSB failed to make reasonable efforts to prevent the removal of the children from their home. We disagree.
We will address this issue only as it relates to the CSB's efforts to reunify the children with Appellant Jacobs since Appellant Woodall has not raised this issue.
R.C. 2151.419 provides in part:
(A)(1) Except as provided in division (A)(2) of this section, at any hearing held pursuant to section 2151.28, division (E) of section 2151.31, or section 2151.314 [2151.31.4], 2151.33, or 2151.353 [2151.35.3] of the Revised Code at which the court removes a child from the child's home or continues the removal of a child from the child's home, the court shall determine whether the public children services agency or private child placing agency that filed the complaint in the case, removed the child from home, has custody of the child, or will be given custody of the child has made reasonable efforts to prevent the removal of the child from the child's home, to eliminate the continued removal of the child from the child's home, or to make it possible for the child to return safely home. The agency shall have the burden of proving that it has made those reasonable efforts. * * * In determining whether reasonable efforts were made, the child's health and safety shall be paramount.
CSB took extensive measures to reunify the children with Appellant Jacobs. The case plan had several requirements geared solely towards reunification of the children with Appellant Jacobs. The case plan provided that Appellant Jacobs was to establish paternity of the children, support the children financially, and visit regularly with his children. Appellant Jacobs did establish paternity of Ariz, Dasha, and Derrick. However, as Appellant Jacobs admitted, he did not pay child support for these children. While this Court understands that Appellant Jacobs lives in Georgia and is unable to see the children frequently, he failed to maintain any sort of visitation schedule with the children. He visited only sporadically, at best, and he threatened to not return when the children misbehaved.
In spite of this lack of compliance with his case plan, CSB conducted an interstate compact with Clayton County, Georgia in order to complete a home study to assess the viability of the placement of these children with Appellant Jacobs. It was the recommendation of the Clayton County Children Services Board that the placement was unsuitable. CSB cannot be faulted for this finding. Therefore, the trial court did not err when it found that reasonable efforts were made to prevent the removal of the children from Appellant Jacobs' home. Appellant Jacobs' second assignment of error is without merit.
APPELLANT JACOBS' ASSIGNMENT OF ERROR III
The trial court improperly admitted evidence regarding [Appellant Jacobs'] criminal history as a juvenile and offenses committed more than ten years ago.
In his third assignment of error, Appellant Jacobs has argued that the trial court erred when it permitted his credibility as a witness to be attacked through the use of criminal convictions that occurred more than ten years prior to the trial. He has alleged that such evidence is specifically excluded under Evid.R. 609.
Evid.R. 609(B) provides that:
(B) Time limit
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of probation, or shock probation, or parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Appellant Jacobs has argued that since the convictions were greater than ten years old and advance notice was not provided, the evidence was admitted in error.
CSB has argued that such convictions were not offered for the purpose of attacking Appellant Jacobs' credibility, but rather were offered in accordance with R.C. 2151.414. Pursuant to R.C. 2151.414(E)(13) evidence that a parent is "repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child" may be used to establish that a child cannot or should not be placed with a parent within a reasonable time. CSB was clear at the trial that it was this basis for which they sought the introduction of the evidence referencing Appellant Jacobs' past incarcerations. R.C. 2151.414 does not place a time limit on the evidence of convictions. Accordingly, it was not error for the trial court to admit this evidence of past convictions. Appellant Jacobs' fifth assignment of error is without merit.
APPELLANT JACOBS' ASSIGNMENT OF ERROR VI
The trial court erred to the prejudice of [Appellant Jacobs] by allowing evidence of the interstate compact to be admitted as the manner in which the evidence was handled constituted unfair surprise.
In his sixth assignment of error, Appellant Jacobs has argued that the trial court abused its discretion when it permitted evidence of the home study completed pursuant to the interstate compact to be admitted as evidence. Specifically, he has argued that the fact that the interstate compact report was provided to him on the first day of trial prejudiced him by preventing him from being able to adequately prepare and by preventing him from calling witnesses to rebut the statements in the report. We disagree.
Appellant Jacobs was presented with the report on the first day of trial. Appellant Jacobs has argued that the report was made available to the prosecutors approximately two weeks prior to trial and the delay in conveying the report to him was fundamentally unfair. The record does not support these assertions. The case worker from CSB did speak with the case worker in Clayton County, Georgia, and was informed of her initial thoughts on placing the children with Appellant Jacobs. However, despite repeated requests by CSB for the report, the report was not completed until after the commencement of trial. The delay was attributable to additional efforts to attempt to garner approval for a placement with Appellant Jacobs. Therefore, the trial court did not err in allowing the report to be admitted where it had not been given to Appellant Jacobs until after the commencement of trial.
Appellant Jacobs has alternatively argued that the admission of the report was error because it prohibited him from effectively preparing and presenting his case. Generally, appellate courts will not consider arguments that could have been, but were not, raised in the trial court. In re 730 Chickens (1991), 75 Ohio App.3d 476, 488. We find that Appellant Jacobs has waived this issue.
After the parties and the court had ample time to review the report, a hearing was held on all objections to the report. As a result of this hearing, significant portions of the report were deleted. The trial court only admitted those portions of the report which contained facts specifically found by the investigating officer in Georgia. Following the deletion of these portions of the report, Appellant Jacobs' counsel indicated that he had no objections to the admission of the report. Accordingly, since Appellant Jacobs indicated that he had no problem with the admission of the redacted version of the interstate compact report, he may not challenge the validity of it now. Appellant Jacobs' sixth assignment of error is without merit.
Appellant Woodall's five assignments of error and Appellant Jacobs' six assignments of error are overruled and the judgment of the trial court is affirmed.
The Court finds that there were reasonable grounds for these appeals.
We order that a special mandate issue out of this Court, directing the County of Summit, Court of Common Pleas, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to Appellant.
Exceptions.
______________________________________ LYNN C. SLABY
In its twenty-three pages, the dissent raises, in good faith, serious concerns about the manner in which the Summit County Children Services Board ("CSB") handled the welfare of Appellant Woodall and her five children. The dissent expresses the outrage which right thinking persons must feel when presented with such a tragic case. But neither outrage nor previous errors define the present duty of this Court. Instead, this Court is charged by Ohio law to determine whether the trial court abused its discretion when it determined that clear and convincing evidence supported an award of permanent custody of Appellant Woodall's children to CSB.
This Court does not take that duty lightly, for as the dissent aptly points out, parenting is a fundamental right, Troxel v. Granville (2000), 530 U.S. 57, not to be disturbed absent evidence that termination of parental rights is a necessity and in the best interests of the children. In re Wise (1994), 96 Ohio App.3d 619, 624. In fulfilling its duty, this Court cannot allow the present best interests of the children to get lost in the outcry over how events complained of could have happened. Nor is it our job to instruct on the wisdom of the General Assembly when it enacted R.C. 2151.414(B)(1). That law is very clear, and its constitutionality has not been challenged in this matter.
Were this Court to speculate that CSB is partially responsible in this case for not providing better support services or that the separation of the children from Appellant Woodall precipitated some of their behavioral problems, these factors do not obviate the only pertinent issue before this Court: whether the trial court abused its discretion in awarding CSB permanent custody, and whether such award was in the children's best interests. Such is the cold harsh reality before this Court. This Court must act and, no matter its decision, there will not be a happy solution.
I respectfully disagree with the dissent and point out that the Court is being asked to act with the wisdom of Solomon in circumstances where there can be no perfect justice. As imperfect as the result might be, its efforts must be to secure the best interests of the children now. It can only be hoped that agencies charged with the review of such matters will benefit from the painstaking detail of the dissent and act accordingly.
The majority has concluded that the trial court did not abuse its discretion for several reasons. First, leaving a six-year-old child at home alone to care for four younger siblings, no matter the duration of time or the reasons argued in justification, is dangerous and irresponsible, and the evidence indicates that this was not a one time event. Second, Appellant Woodall has demonstrated an inability to accept responsibility for her own life choices and a present determination to do things her own way despite her attendance at any number of parenting classes. Such an attitude dispels any confidence that Appellant Woodall will accept guidance in the future or put the best interests of her children first. Third, the prolonged involvement of CSB with this family and the turmoil associated with shuffling these children between homes is exceedingly detrimental to these children and only serves to further enhance the behavioral issues facing them. Fourth, the witnesses who had frequent interaction with the children testified about the setbacks the children experienced each time they visited with Appellant Woodall. Finally, the guardian ad litem, the representative for the children, stated that, when considering the needs of the children and Appellant's Woodall's ability to meet those needs as exhibited throughout the course of the case, it was in the children's best interests that permanent custody be granted to CSB. In fact, the guardian ad litem indicated that "it's time to do the right thing by these children and award custody of all these children to [CSB]."
I believe such abandonment to be a compelling factor when taken in combination with other pertinent factors. Additionally, the record suggests that some harm did befall Ariz. while home alone that day in that she received a burn on her finger while cooking for her younger siblings. The burn itself was not severe in nature, but it does represent the potential for much greater tragedy. The dissent has alleged that Appellant Woodall's testimony that Ariz. received the burn while under her supervision is unchallenged. On the other hand, the police investigation as attested to in a sworn statement presents evidence that Ariz. received the burn while home alone and not while under Appellant Woodall's supervision. The trial court was vested with the responsibility of weighing the evidence when making its decision.
Margaret Campbell, a case aide who supervised the visitations between Appellant Woodall and the children, testified to several instances that exemplified Appellant Woodall's obstinance and refusal to accept any assistance or direction to improve her parenting abilities. Ms. Campbell indicated that on one occasion when she asked Appellant Woodall to control the children and supervise them, Appellant Woodall said "leave [me] alone. These are [my] kids and [I'll] do what [I] want with them." She further testified that when asked to put the food away so that they could begin the visitation Appellant Woodall would usually respond "Leave me alone. I know what I'm doing." Ms. Campbell testified that Appellant Woodall was given leeway in regard to her direction of the children but that Appellant Woodall "doesn't listen to me and she doesn't listen to anyone that tells her what to do or gives her any kind of suggestions." Ms. Campbell testified that Appellant Woodall believes that children should act this way and that such behavior should be permitted because they are her kids. Such behavior continued until the visits were terminated. At the last visit between Appellant Woodall and the children, Appellant Woodall was discussing matters about the case with Ariz. in violation of the rules at the visitation center. When Ms. Campbell requested that she not do that, Appellant Woodall responded "[l]eave me alone." When Ms. Campbell requested a second time that Appellant Woodall not talk about case issues with the children, Appellant Woodall again refused to comply, demanding that Ms. Campbell "[l]eave [her] alone." The visit was then ended; however, Appellant Woodall refused to leave and pinned Ms. Campbell against the wall and again stated "[l]eave me alone."
Christina Miller, the CSB caseworker also testified that Appellant Woodall denies any responsibility for the children's behavior. She further testified that in spite of the parenting classes Appellant Woodall has completed, she still fails to exhibit appropriate parenting skills.
The dissent appears to allege that the problems suffered by the children cannot be attributed to Appellant Woodall because the problems were not diagnosed until after the children were removed. The evidence indicates, however, that the foundation for these problems began with Appellant Woodall. In point of fact, Appellant Woodall herself admitted that the teachers from the Head Start program had told her about behavioral problems with Dasha before the children were removed from her custody. While Ariz, Taija, and Renisha were not enrolled in Head Start, the preexisting problems with Dasha support the conclusion that the later diagnosed problems suffered by all of the children originated while in Appellant Woodall's custody. Additionally, there was testimony by various witnesses that support the conclusion that the problems with the other children were not wholly attributable to their removal from Appellant Woodall's custody.
Following the start of this case, Ariz. was referred to Akron Child Guidance for an evaluation because of erratic, out of control behaviors at school. She was acting out in school, swearing, hitting, biting, and being disruptive. Joann Brown, Ariz's counselor at Akron Child Guidance indicated that Ariz. suffered from mood swings. Ms. Brown further testified that such mood swings are attributable to events that transpired while Ariz. was in Appellant Woodall's custody, such as being left to supervise the younger children, witnessing violence, and being left alone. Specifically, Ms. Brown indicated that Ariz. had told her she witnessed Appellant Woodall become violent in the home on several occasions and that on one occasion she witnessed Appellant Woodall going after other individuals in the house with a gun. Ms. Brown indicated that the stress of being removed from Appellant Woodall could have contributed to the extent of the behavioral issues and emotional problems, but again reiterated the impact of the circumstances while in Appellant Woodall's care upon such problems.
Mark Schaeffer, a counselor with United Disability Services Developmental Pre-school, testified that he had completed assessments on Derrick, Dasha, and Renisha and that each of them has developmental delays. Mr. Schaeffer testified that a connecting factor between children with such delays would be "the amount and quality of stimulation in the home and the consistency of it from day to day." He further indicated that reading, lots of language, and firm discipline would contribute to developmental successes and that these elements must be started from day one. He testified that without such factors a child is at risk for developmental and emotional troubles.
Ms. Romanowski, Ariz's teacher, testified that Ariz. would kick, bite, and scratch her and the other students. She testified that she was frequently the target of Ariz's attacks and that such behavior would appear whenever she would give Ariz. instructions, even directions as simple as "sit in your seat." Ms. Romanowski testified that Ariz. was making strides in overcoming these behavioral issues, but that after a visit with Appellant Woodall, Ariz's behavior would regress and it would take a couple of days to get her back to the previous levels of achievement.
Ms. Campbell testified that she had observed the children both with Appellant Woodall and without. She stated that when Appellant Woodall was not around you could set boundaries on the children and control their behavior, but that when Appellant Woodall was present, the children refused to listen to anyone. She further testified that she transported the children to the visits and that while the children were excited to see each other, such excitement did not rise to the level of chaos attendant with the visits with Appellant Woodall.
In the end, the clear mandate from the General Assembly is that children at risk need a present remedy before more tragic circumstances intervene. I view the record as supporting the termination of Appellant Woodall's parental rights now. The trial court did not act without reason, in an arbitrary manner or unconscionably. Hence, I concur in the judgment of the majority.
The gravity of the lower court's decision cannot be overstated — an individual's fundamental liberty interest has been abolished, and five children have been separated from their mother forever. It is critical that this Court examine the lower court's decision that permanent separation is in the children's best interest, in conjunction with a review of Michelle's fundamental liberty interest. To affirm, this Court must find that the lower court fully considered whether "it is in the best interest of the child[ren] to permanently terminate [Michelle's] parental rights and grant permanent custody to [CSB]." R.C. 2151.414(D) mandates a review of all the facts in the record. "In determining the best interest of a child * * * the court shall consider all relevant factors, including but not limited to," the five enumerated. (Emphasis added.) R.C. 2151.414(D).
In determining whether the lower court erred in terminating Michelle's parental rights, and in finding that such a determination is in the children's best interests, my review of the record has caused me to write the following dissent.
I.
The most compelling facts pertaining to Ariz. Woodall, the oldest child, were that she was a six-year-old girl who was functioning appropriately, who shared a tight bond with her mother and her siblings, and, who after having been removed from her mother, alienated from her siblings, and placed in a foster home, was labeled retarded, and enrolled in "special" classes in a school for children with severe behavioral problems.
Before she was removed from her mother's home, she was a happy, healthy, well-adjusted six-year old girl, who people said was mature for her age. She was lively, bright, and socially appropriate. She was doing well in her classes at the local public elementary school. She lived with her mother, and her younger brother and two sisters. She had overcome major medical challenges in her short, young life; she had been born prematurely with severe gastrointestinal problems that necessitated the use of a catheter and a feeding tube, and required constant care. But she was strong and determined, and so was her mother, who at thirteen years of age, was a child herself.
Akron Child Guidance Center notes 6-11-99; testimony from Joanne Hannah, an Early Start coordinator for Children's Hospital.
Because of her youth, doctors doubted that the thirteen-year-old mother would be able to properly care for her sickly child. But the young mother was impressive in her desire to care for her child. She took classes at Akron Children's Hospital to teach her how to care for her baby daughter's severe medical needs, and several times a day meticulously cleaned her daughter's catheter and feeding tube. To everyone's surprise, she was able to nurse her sick child to complete health.
In January of 1999, however, life as the little six-year-old had always known changed. CSB received an anonymous call reporting that she and her siblings had been left at home alone. Without warning, she was removed from her home and mother. She was immediately separated from her sisters and brother and shuffled from one caretaker to the next — but never permitted to go home. She was authorized to see her mother and her siblings for one hour each week under the close supervision of social workers. She was counseled weekly that her mother was inadequate and that she must adjust to her "new mom" — her foster mom.
At first she did not like her foster mom or her new home. She longed for her real mom. She cried incessantly. Often she could not sleep through the night. For the first four or five months she would get so upset she would throw up. She did learn to calm down though — it just took making her clean up her own vomit. Then she became violent.
Akron Child Guidance Center notes 9-19-99.
Coordinated Services Team meeting notes 3-24-00.
"Mildly mentally retarded" was the diagnosis. She was placed in special classes in a special school — a school for the behaviorally challenged. She was no longer permitted to see her mother or her siblings.
She is subdued now — she has been placed on medication. She has few violent outbursts. The diagnosis is "she's doing better." She doesn't cry as much, and she even hugs her foster mother. The decision is "this is in her best interest."
Yet, the record reveals that when Ariz. and her siblings were taken from their mother, Michelle Woodall, they were well dressed, well fed, well behaved, happy, and closely bonded to each other and Michelle. There were no allegations that Michelle abused the children. The sole complaint was the report that Michelle had left the children home alone. The unrefuted evidence is that prior to her removal from Michelle, Ariz. did well in school, and she did not display any behavioral or developmental problems. In fact, none of the children were diagnosed with any behavioral or developmental issues. However, once CSB removed the children, their behavior deteriorated to the point that they became violent and, at times, uncontrollable, and every child was diagnosed as having developmental delays.
5-29-99 Case Plan.
Akron Child Guidance Center initial assessment of Ariz.
The record in the present case is particularly distressing. Nearly every page of CSB's counseling notes on Ariz. describe Ariz's love for her mother and the difficulty she suffered as a result of the separation. The initial intake notes from Akron Child Guidance Center (ACGC) state that Ariz. "appeared to be quite alert and lively and socially appropriate[,]" and that "[h]er mood was appropriately fluctuating." Page after page of counseling notes in the record state that Ariz. was having a very difficult time adjusting without her mother and that Ariz. admitted that she would intentionally misbehave because she thought that would help her see her mother.
What is missing from the record though is clear and convincing evidence that the decision to terminate Michelle Woodall's parental rights was in the children's best interest. Therefore I must vigorously dissent with the majority's disposition of Michelle's first and second assignments of error. With the balance of the opinion, I concur.
II.
Given the current state of the law, the analysis of the instant case must begin with the best interest of the Woodall children.
Best Interests of the Woodall Children
Although I am disturbed by the fact that R.C. 2151.414(B(1)(d) does not require a determination of parental unfitness prior to terminating the parent's rights in his or her child, as discussed infra, that issue is not on appeal and such is the current state of the law. Therefore, as the majority correctly points out, the trial court needed only to find, by clear and convincing evidence, that it is in the children's best interest to grant permanent custody to CSB. R.C. 2151.414(B).
In my view, a review of the record shows that there is not clear and convincing evidence that it is in the children's best interest to grant permanent custody to CSB. The record shows that until January of 1999, when the instant case was filed, the children were in Michelle's care. The record does establish that Michelle's mother, Roslyn Woodall, was involved with CSB on many occasions, but that CSB never seized the opportunity to help Michelle while she was still a child.
Michelle along with her infant child, Ariz, was removed from Michelle's mother's home in 1992. However, Michelle's children were never removed from Michelle's custody prior to 1999.
Although the instant case was not initiated until January 1999, the critical period of time for this family began in 1992. On October 28, 1992, CSB received a referral that Michelle, then thirteen years old, was pregnant, and that a twenty-five-year-old male was the father. Instead of reporting the possible rape of a child, or offering Michelle assistance with her pregnancy, CSB closed the case due to a reported lack of cooperation of Michelle's family.
On February 3, 1993, while Michelle was still with child, police made a drug raid upon the home of Michelle's mother, Roslyn Woodall. Michelle's mother was arrested for drug abuse, aggravated drug trafficking, and child endangering, and Michelle and her siblings were placed in CSB's custody. Legal custody of Michelle, who was still a minor, was transferred to Michelle's maternal grandmother, Evelyn Smith, until Smith called CSB and said that she could no longer care for Michelle or Michelle's sister because the girls had threatened her with an ice pick. By this time, Michelle had already given birth to Ariz, and both Ariz. and Michelle were placed in CSB's custody. Less than a month later, however, Smith requested that Michelle and Ariz. be returned to her home. CSB complied with the request to return Michelle and Ariz. but there is no evidence in the record that it provided any services. Michelle's mother, Roslyn, was subsequently released from prison and Michelle and Ariz. were returned to her.
There is nothing in the record to substantiate this allegation, and there is no indication that a police report was ever filed.
Over the next several years Michelle gave birth to four more children: twins, Derrick and Dasha, in 1995; Taija in 1996; and Renisha in 1998. All of the children, except Renisha, were born to Michelle while Michelle was still a minor. CSB knew of all the births, but there is no indication in the record that Michelle was given or even offered any type of assistance. While it is true that CSB received a call concerning Michelle and her children in 1998, there is nothing in the record to substantiate that there was any problem because Michelle was living in another jurisdiction, and CSB did not contact the family.
Then in January 1999, CSB received an anonymous call reporting that Ariz. and her siblings had been left at home alone. Once Ariz. was taken into custody, it was noticed that Ariz. had a burn on her finger. When questioned Ariz. did state, according to CSB caseworkers, that she had burnt herself while cooking for her siblings. Michelle's unchallenged testimony is that she was aware of Ariz's burn because it had happened while she was home.
In determining that permanent custody should be removed from Michelle and granted to CSB, the trial court relied on the following factors: the children have bonded with the foster parents, the children appear to excel when separated from their parents and each other, and following the termination of visitation with Michelle, the children's behavior showed notable improvement. These factors do not constitute clear and convincing evidence which justify termination of Michelle's parental rights.
It is well documented in CSB's records that Michelle and her children shared a very strong, loving bond. In fact, CSB's notes describe the anguish the children went through upon separation from Michelle. Yet, this bond between the children and their natural parent seems to have been given little weight despite the fact that the natural parent's right to the care and custody of his or her child is one of this nation's oldest fundamental liberty interests. See Troxel v. Granville (2000), 530 U.S. 57, 65, 147 L.Ed.2d 49, 56.
CSB reported that the children's behavior showed signs of improvement after visits with Michelle were terminated. This is based on CSB's repeated complaint, while visitations were in effect, that the children acted up during visits and that Michelle could not control them. The caseworkers deemed this behavior "inappropriate." The record establishes that Michelle was only permitted to visit her children for one hour per week, under close supervision of CSB employees. The visits were with all five children, and were the only times that the children had contact with each other. No one disputes, and in fact the record expressly documents, that the children were very attached to one another and to their mother, that the children were very excited to see one another, and that each child would fight for Michelle's attention at the sessions. However, because the kids, whose ages ranged from six years of age down to one, would not keep quiet and play structured games, the caseworkers labeled the visits as "chaotic."
Coordinated Services Team meeting notes 8-25-99 and 10-14-99.
B. CSB and Michelle Woodall
Since permanent termination of parental rights has been described as "the family law equivalent of the death penalty in a criminal case," parents must be afforded every procedural and substantive protection the law allows. In re Hayes (1997), 79 Ohio St.3d 46, 48, quoting In re Smith (1991), 77 Ohio App.3d 1. See, also, In re Sadiku (2000), 139 Ohio App.3d 263. An action to terminate parental rights in cases of abuse, neglect, or dependency must balance the liberty interests of parents against the rights of the children to be free from harm from their parents. See Lassiter v. Dept. of Soc. Serv., (1981), 452 U.S. 18, 27. "The fundamental liberty interest of natural parents in the care, custody, and management of their child[ren] does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the [s]tate." Santosky, supra, at 753. Because an award of permanent custody is the most drastic disposition available under the law, it is an alternative of last resort and is only justified when it is necessary for the welfare of the children. See In re Cunningham (1979), 59 Ohio St.2d 100, 105.
1. The Agency's Involvement
One of the major concerns I have with this case is that CSB failed to offer Michelle assistance in remedying the problem that initially caused the children to be placed outside the home. The children were removed because they were left at home without adult supervision. However, nowhere in the record is any discussion, service offered, or suggestion made to Michelle concerning supervision of the children. Because Michelle works outside of the home and not all of her children are of school age, such a plan is essential.
What is particularly disconcerting to me, in this regard, is that CSB provided each of the foster homes various services to aid in caring for the children, but the agency never offered such services to Michelle. For example, in furtherance of what is supposed to be the objective of the case plan — reunification of the family — CSB could have offered Michelle unmarried parent services, homemaker/health aide, crisis services, environmental management, or parent aide services. In fact, these services are so basic that they are listed as part of the boilerplate checklist on CSB's standard case plan form.
5-22-99 Case Plan.
Furthermore, it also appears that CSB failed to make any reasonable efforts to reunify the family. Michelle repeatedly attempted to prove to CSB that she was able to effectively parent her children; Michelle requested on numerous occasions that the children be returned to her at least one-by-one on a trial basis.
In October of 1999, Yvonne Johnston, Michelle's counselor at New Beginnings, also advised CSB that she believed the children should be returned to Michelle one or two at a time.
After reviewing the record, one has to be reminded that the mission of Summit County Children Services' is to respect "the dignity, integrity and uniqueness of each family and [to] adhere to the philosophy that governmental intrusion is warranted only when children are thought to be at risk." Summit County Children Services, All About Us,http://www.summitkids.org/aoutus.html. "The primary goal [of the agency] is to protect children from harm by helping parents to manage their problems in ways other than abusing or neglecting their children." Id. Certainly, in this case, CSB failed to help Michelle manage the problem for which her children were taken away — leaving her children home alone.
In addition, the lack of intervention by CSB following the sexual victimization of Michelle at the age of twelve or thirteen is especially troubling. CSB learned from its brief investigation that it was probable that Michelle's mother condoned or promoted the sexual relations between her then thirteen-year-old daughter and the twenty-five-year-old man who was allegedly providing the mother drugs. Although this information gave CSB even more cause to intervene, the agency decided to close the case. The mere fact that Michelle was a parent at age thirteen coupled with the fact that her mother had been incarcerated for drug trafficking, warranted at least the offer of some type of intervention and protective services. Unfortunately, we cannot know how Michelle's life may have been different had some action been taken in 1992.
2. Authorization of Governmental Intrusion
I am also concerned that the current statutory scheme fails to adequately protect the rights of parents and their children when they become either voluntarily or involuntarily involved with children services agencies. In March of 1999, the General Assembly enacted an amendment to R.C. 2151.414 which enables a court to presume parental unfitness where a child has been in the temporary custody of a children services agency for more than twelve months of a twenty-two month period. R.C. 2151.414. The statute also relieves the state from the burden of establishing that a parent has failed to substantially remedy the conditions, which caused the removal of the children. See In re Decker (Feb. 13, 2001), Athens App. No. 00CA0042, unreported.
The impact of this amendment is just beginning to be realized, as the statute became effective only twenty-six months ago. In fact, this Court recently issued two opinions in which I dissented on this very issue. See In re Bunting (May 23, 2001), Wayne App. No. 01CA0010 and 01CA0011, unreported; In re Laird (May 23, 2001), Wayne App. No. 01CA0005, unreported. I explained the effect of the amendment in In re Bunting, supra:
Prior to the March 1999 addition of R.C. 2151.414(B)(1)(d), the state could not permanently terminate parental rights unless it proved, by clear and convincing evidence, (1) that the parent was unfit in some way and (2) that permanent custody was in the child's best interest. With the recent addition of subsection (B)(1)(d), however, the state is able to satisfy its burden of proving parental unfitness simply by establishing that the child has remained in the temporary custody of the agency for more than a year.
In an effort to prevent dependent and neglected children from lingering in the foster care system indefinitely, the legislature imposed a twelve-month time limit on reunification that has obviated the state's need to prove parental unfitness before permanently terminating parental rights. Instead, courts are apparently to presume the unfitness of a parent because her child has been in the temporary custody of a children services agency for more than twelve months of a twenty-two month period. And, even worse, R.C. 2151.414 provides no mechanism for a parent to rebut this presumption. If the child has remained in temporary custody for the requisite period, the state has satisfied what was once the "unfitness" prong of the permanent custody test. Because the state is no longer required to present such evidence, the circumstances surrounding that period of temporary custody are not necessarily revealed at the permanent custody hearing * * *. A child may have remained in the temporary custody of the agency for a variety of reasons, including that the parent was making great progress toward reunification.
I am concerned that the statute fails to adequately protect "the rights of the parents and, as a result, the rights of their children." In re Bunting, supra. This is because "R.C. 2151.413(D)(1) and R.C. 2151.413(D)(3)(a) essentially require the agency to move for permanent custody unless it can document `a compelling reason that permanent custody is not in the best interest of the child.'" Id. In effect, "the current statutory scheme pushes the agency to end a [parent]'s relationship with [his/her] children[.]" Id.
3. Review of Case Plan
Because permanent custody proceedings involve a fundamental liberty interest and place great discretion in social workers employed by children services agencies, it is absolutely essential that courts exercise judicial responsibility when reviewing their records. The trial court must balance protecting the children from abuse and neglect with protecting a parent's fundamental liberty interest. It is not enough for a court to mechanically accept case plan directives and then permanently terminate a parent's rights for not complying or "solv[ing] every problem that a caseworker thinks should be solved." Wiens, State v. Parent Termination of Parental Rights: Contradictory Actions by the Ohio Legislature and the Ohio Supreme Court in 1996 (1997), 26 Cap.U.L.Rev. 673, 678 (noting that "[a]gencies already have tremendous power to shape the outcome of an abuse, neglect or dependency case. The children services agencies control visitation[,] * * * decide whether or not to continue with efforts to reunite the family[,]" and "whether to move for permanent custody[.]").
The record demonstrates the children here were removed from their home on the basis of an isolated incident, i.e., leaving them alone without adult supervision. CSB was then required to create a case plan directed towards correcting the parenting deficiencies that resulted in the removal of the children and to make reasonable efforts to reunify the family. R.C. 2151.419.
A case plan was developed and filed on May 25, 1999, four months after removal of the children. This plan required Michelle to: follow all the rules of her probation; to remain drug free; to address any emotional issues; to regularly visit her children and provide appropriate adult supervision; to attend parenting classes and to follow through with all recommendations; and to obtain clean, stable, independent housing. The record demonstrates that she complied with the case plan objectives in all significant regards.
The rules of Michelle's probation are not set forth in the record.
Michelle successfully completed a twelve-week intensive outpatient drug treatment program, Exodus. As part of the program, Michelle was required to drop urine screens twice a month and attend three AA or NA meetings a week. Michelle was evaluated at the Community Health Center. The purpose of the assessment was to determine the extent of any chemical dependency. The assessment concluded, "chemical dependency treatment does not appear needed." Christina Miller, a CSB caseworker, testified that Michelle had not had a positive urine screen since Renisha was born in April of 1998. Miller also testified that she had no reason to believe that Michelle was anything other than drug free at the time of the permanent custody trial.
Michelle attended parenting classes at CSB and at Urban Ounce of Prevention. Although not ordered to do so by the court, Michelle enrolled in and successfully completed a parenting program through Exodus, called New Beginnings. In October of 1999, Yvonne Johnston, Michelle's counselor at New Beginnings, reported to CSB that she felt that Michelle "has a lot of strengths and that she is very determined to work, and that [Michelle] loves her children and is determined to get them back." Johnston also reported that she believed that Michelle could "handle the children" if the children were sent back home and Johnston talked to Michelle about the children's individual needs." Johnston suggested that the children be returned to Michelle one or two at a time. Furthermore, Christina Miller testified that she observed Michelle apply the skills she had learned from her parenting class during visits at the CSB visitation center.
Michelle attended each and every hearing. She completed psychological, psychiatric, and parenting evaluations from Portage Path, Exodus, the Blick Clinic, and Pastoral Counseling in an attempt to satisfy CSB. Christina Miller testified that Michelle was unable to complete her psychological evaluation for several months, through no fault of her own, because CSB had had trouble finding someone to perform the assessment. It is important to note that on November 12, 1999, CSB filed its first motion for permanent custody in the case. In its motion, CSB asserted that one of the reasons that Michelle's parental rights should be terminated was because, at that point, Michelle had "not obtained a parenting eval or a psychological eval[.]" CSB failed to mention in that motion that it was CSB's fault that the evaluations had not been performed.
CSB's complaints with Michelle's compliance with the case plan objectives were that: Michelle was uncooperative in working with CSB and that she was unable to supervise the children in the CSB visitation center; Michelle had "inappropriate" interaction with the children; she did not fully comply with the terms of her probation; and that Michelle did not show that she was able to effectively demonstrate that she could implement the parenting skills she learned in the courses she completed. The trial court obviously agreed, as it made reference to each complaint in its final entry. However, the facts in the record do not support the findings.
In regard to the trial court's findings that Michelle was unable to supervise the children in the CSB visitation center and that Michelle was uncooperative in working with CSB, the evidence demonstrates that Michelle could not possibly have met these requirements in the setting CSB arranged. The children would fight for Michelle's attention during the visits because the one-hour per week sessions were the only times the children were permitted to see each other or their mother. The one-hour sessions took place in a visitation center with other families, and under close scrutiny of social workers who reportedly would undermine Michelle's authority by correcting Michelle in front of her children. The social workers consistently tried to make Michelle adhere to their values and beliefs on parenting.
Caseworkers who supervised the visitations also reported Michelle's interaction with the children was "inappropriate," and that Michelle was uncooperative because she would bring her children food. For example, CSB caseworkers reported mom's behavior as inappropriate because Mom would bring "complete meals to the visits, even though she ha[d] knowledge that the children ha[d] already eaten." Michelle testified that she brought the children "Church's Chicken, mac and cheese, [and] mashed potatoes." But that after CSB instructed her not to bring so much food, she "broke it down to Lunchables and juice."
Coordinated Services Team meeting notes 8-25-99. See, also, Coordinated Services Team meeting notes 10-14-99.
Transcript of Proceedings, Vol. 2, 173.
The idea that a parent was criticized for bringing her child too much to eat is beyond comprehension. The discussion of such a trivial point so offends the solemnity of permanent custody proceedings that it is an embarrassment to mention, but is indicative of the value judgments social workers attempted to impose on Michelle. There is no indication in the record that the children were suffering from childhood obesity or any other eating disorder. Instead, this is but one example of differing value judgments as to how to raise one's children. The belief that "a good parent feeds her child small portions of health snacks, i.e. Lunchables," is a value judgment that should not be imposed upon parents simply because it is the belief of the social worker.
One other unsettling incident cannot go unmentioned. At the time of the permanent custody trial, Michelle still owed money she was required to pay as part of her probation. During the second day of the permanent custody trial, CSB's attorney brought a deputy sheriff into the courtroom. Attempting to imply that Michelle is hostile, CSB's attorney stated that the deputy was present for "security." Transcript of Proceedings Vol. 2, 185. However, apparently aspiring to trigger Michelle's temper, CSB's attorney attempted to have Michelle arrested and placed in custody right in the middle of the permanent custody trial for failure to pay the $481.00 balance of her fine. Given the facts of this case, where Michelle had completed extensive counseling — much of which was self-initiated, she was drug and alcohol free, she had adequate housing for the children, she attended each and every hearing and visitation, it hardly seems appropriate that a balance of less than five hundred dollars on a fine, should hold such weight (as expressed in the trial court's journal entry) in deciding whether to terminate Michelle's parental rights.
CSB and the trial court also deemed Michelle's action of checking her daughters' vaginas for signs of sexual abuse inappropriate. Given that Michelle was sexually victimized as a child and that no one came to her aid, it seems only appropriate that Michelle would be worried about protecting her daughters. More importantly, Ariz. reported to both Michelle and CSB that she had been sexually assaulted while in foster care. The record fails to indicate whether CSB conducted any investigation into Ariz's allegations.
Akron Child Guidance Center notes 10-22-99.
CSB reported that Michelle would say "inappropriate" things to her kids at visitations. A review of the "inappropriate" language reveals that Michelle told Ariz. that "she needs to behave if she wants to [go] home[.]" Although CSB criticized Michelle for discussing "inappropriate" topics, such as the children's possible return home, at the same time CSB was telling the children that Michelle was a "poor parent." Meeting notes show that even prior to filing for permanent custody, the goal of counseling was to get Ariz. to recognize her mother was deficient. It is difficult to reconcile how getting a six-year-old child to recognize her mother's deficiencies coincides with CSB's duty to attempt to reunite the family.
Coordinated Services Team Meeting Notes 11-18-99.
Throughout its records, CSB reported that Michelle is "uncooperative" because she would not specifically denounce her upbringing and because Michelle would not admit that her early sexual relationship with a twenty-five-year-old man was inappropriate. The lower court also found that "Michelle denies that her relationship with Mr. Jacobs was inappropriate when she was thirteen-years-old and he was twenty-five-years-old." A careful review of the record shows that at times Michelle admitted that she was raped, and that the relationship was inappropriate. However, even if Michelle had not admitted that the relationship was inappropriate, I find it incomprehensible that CSB would condemn Michelle for failing to declare the relationship to be inappropriate when CSB failed to act in a manner consistent with that opinion in 1992.
The trial court found also that Michelle failed to comply with court orders by having contact with the children beyond her designated supervised visitation periods. The trial court found that the additional contacts Michelle made with her children, because they were made outside of CSB's scheduled times, were a factor upon which Michelle's parental rights could be terminated. Although it is essential that parties comply with court orders, such as limiting visitation to CSB's discretion, a review of the record shows that Michelle did not just ignore the court. Rather, Michelle's family members initiated most of the contacts while the children were in their custody. For example, Evelyn Smith testified that when she received custody of the five children she did not have a job, but that she started working and "needed somebody to help [her] take care of [the children]. So [she]asked Michelle to help [her] take care of them." That is, until "CSB started `getting down' on [her]." CSB was aware that Michelle's extended family was causing problems and that someone was always being dishonest. However, at that time CSB felt that it was a good decision to leave the children in the extended family's care, despite the fact that CSB repeatedly noted in its records that Michelle's extended family was involved in drugs, and that the family caused trouble for Michelle.
Transcript of Proceedings Vol. 2, 104-105.
1-14-99 and 6-22-99 Journal Entry; Akron Child Guidance Center notes 8-25-99.
The trial court found that Michelle had not shown that she is able to effectively demonstrate that she can implement the skills she learned in the parenting courses she completed. Michelle, however, was never given the opportunity to demonstrate that she could implement the skills she learned and that she could care for all of the children. The only time Michelle had any opportunity to demonstrate her parenting skills was with all five children at one time during the one-hour weekly visits. CSB caseworkers agreed that Michelle would have been better able to demonstrate her parenting skills with the children on an individual basis, yet CSB denied Michelle's repeated requests to visit each child separately.
Transcript of Proceedings Vol. 1, 99.
Transcript of Proceedings Vol. 1, 105.
Transcript of Proceedings Vol. 1, 200.
Although CSB offered each of the foster homes various services, CSB never provided Michelle with any, such as unmarried parent services, homemaker/health aide, crisis services, environmental management, or parent aide. Nor did CSB offer Michelle any assistance in dealing with her children's problems. CSB claimed that one reason the children must not be returned to Michelle is because Michelle does not know how to cope with the children's behavioral or developmental problems. But, CSB never attempted to teach Michelle how to deal with the children's difficulties. Yet, CSB gave each foster parent training and assistance in dealing with the disabilities.
See 5-22-99 Case Plan.
At the trial below, much attention was devoted to the fact that these children had behavioral issues and needed a secure, loving, and stable environment. Every child, with or without behavioral issues needs a secure, loving, stable environment. There is no evidence that Michelle could not provide such an environment. The children's developmental delays were not diagnosed until after they were removed from their home. Michelle testified that she is now aware of the children's special needs and that she is willing to do whatever it takes to address them.
The trial court also found that "no evidence was submitted which indicates that Michelle can provide adequate housing for the children." However, no evidence was submitted that proved Michelle did not have adequate housing. In fact, CSB's records indicate that Michelle lives alone in a two-bedroom apartment, and had adequate bedding for the children.
The trial court found that the children represent the third generation of a dysfunctional family, and that they have benefited from counseling. It is true that Michelle comes from a family with problems. It is CSB's duty, however, to attempt to help rectify the problems in such a family, and not remove children simply because they represent another "generation" of that family. Furthermore, that the children have benefited from counseling has absolutely nothing to do with Michelle's ability to parent. The children were never diagnosed with any problems while they were in Michelle's care, and there was no evidence to suggest that Michelle would not continue counseling for the children if they were returned to her.
While the trial court also found that "Michelle admitted that she smoked marijuana while pregnant with Renisha[,]" the record shows that Michelle completed an intensive drug program, and has passed all of her drug tests since April of 1998. Christina Miller testified that she had no reason to believe that Michelle was other than drug free at the time of the trial.
Transcript of Proceedings Vol. 1, 100-101.
Transcript of Proceedings Vol. 1, 101. Again, it is troubling that CSB holds this against Michelle now when CSB was aware of the fact that Renisha tested positive at birth for marijuana in 1998, but took no action to remove Renisha, or to monitor her health and safety. However, now that the present case against Michelle shows that Michelle is drug and alcohol free, CSB uses that information against her, and the trial court found it to be of critical importance.
Joanne Hannah, an Early Start coordinator for Children's Hospital, testified that she met Michelle when Ariz. was first born because of Ariz's severe medical condition. Ariz. was born prematurely, and with gastrochisis. Hannah offered Michelle services to help with Ariz's care, and Michelle accepted "every service that [she] had to offer." Hannah stated that hospital staff was concerned that due to Michelle's young age, she would not be able to properly care for Ariz's severe problems. However, Michelle took and passed a number of classes that taught her how to deal with Ariz's catheter and feeding tube. Hannah further testified that she followed Michelle for three years, with weekly contact for the first three months and monthly contact thereafter.
Transcript of Proceedings Vol. 2, 136-138.
Hannah further testified that based on her thirteen years of experience, she can say that Michelle was a great mother to Ariz. In fact, in response to a question as to how Michelle interacted with Ariz, Hannah stated that she "really want[ed] to talk about this because" in her experience she had never seen such a young mother take such great care of a baby that had such severe medical needs. Also, Hannah indicated she interacted with Michelle on a regular basis for over three years, and she observed Michelle's parenting skills first hand. Hannah testified that she also observed Michelle at the hospital with all five children and was amazed at how well behaved the children were, and how well Michelle managed all of them.
Transcript of Proceedings Vol. 2, 139.
III. Conclusion
Although the record shows that Michelle was not a "perfect parent," the record fails to establish that the children could not be placed with her and fails to show that it was in the children's best interest that Michelle's parental rights be terminated.
It is important not to lose sight of the basic facts of this case. The children were taken from Michelle after it was found that they were left at home alone for an undetermined amount of time. The children were immediately separated from each other and their mother, and simultaneously began exhibiting behavioral problems. Although CSB never addressed the problem for which the children were taken away — being left at home alone — the agency placed many requirements upon Michelle. Michelle successfully completed virtually every stricture imposed upon her: Michelle underwent psychiatric and psychological evaluations, completed counseling and parenting classes, found adequate housing and a job, had clean drug screens, and visited her children. Michelle completed several counseling programs that were not even required by the court. Michelle did everything possible to get her children back. Still it was not enough for CSB.
This is not a case where Michelle physically or emotionally abused her children. This is not a case where Michelle failed to address her issues. This is a case where Michelle left her children home alone on at least one occasion. This is a case where the children were functioning normally prior to their removal from their mother, but who were labeled "challenged" after the separation. This case presents the question of whether leaving your children home alone warrants permanent removal. Obviously, the answer to that question depends also upon consideration of the surrounding circumstances. In this case, my judgment is that permanent removal is not warranted.
For all of the foregoing reasons, I dissent from the decision to terminate Michelle's parental rights.
In closing, I note that the record indicates that Michelle's thirteen-year-old sister is pregnant and lives with their mother Roslyn Woodall. Hopefully, the poor judgment exercised in 1992 will not be repeated — particularly given that CSB has been notified that Roslyn's home may not be safe for children.
The trial court noted in its January 14, 1999 journal entry that:
Police made the extra effort to come to Children Services Board to request that the children not be placed with the maternal grandmother due to the fact that these officers had made drug arrests at the home of the maternal grandmother and had frequently been in and out of her home due to on-going drug activity which they alleged included use and sales of drugs by the maternal grandmother herself. They were concerned that the children would not be safe if placed in this residence.