[Cite as In re J.R., 2009-Ohio-4113.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
IN THE MATTER OF: CASE NO. 9-09-05 J. R., OPINION [DANNY MUNDY, APPELLANT].
IN THE MATTER OF: CASE NO. 9-09-06 T. M., OPINION [DANNY MUNDY, APPELLANT].
IN THE MATTER OF: CASE NO. 9-09-07 D. M., III OPINION [DANNY MUNDY, APPELLANT].
IN THE MATTER OF: CASE NO. 9-09-08 L. M., OPINION [DANNY MUNDY, APPELLANT].
IN THE MATTER OF: CASE NO. 9-09-09 E. M., OPINION [DANNY MUNDY, APPELLANT]. Case No. 9-09-05, 06, 07, 08, 09
Appeal from Marion County Common Pleas Court Juvenile Division Trial Court Nos. 2006 AB 50, 2006 AB 51, 2006 AB 52, 2006 AB 71, 2006 AB 122
Judgments Affirmed
Date of Decision: August 17, 2009
APPEARANCES:
Keith A. Kochheiser for Appellant
James P. Luton for Appellee
Douglas B. Diequez, Guardian Ad Litem
SHAW, J.
{¶1} Father-appellant, Danny K. Mundy, appeals five judgments rendered
on February 4, 2009, by the Court of Common Pleas, Family Division, of Marion
County, Ohio, granting permanent custody of J.R., T.M., D.M., and L.M. to
Marion County Children’s Services (“MCCS”) and granting legal custody of E.M.
to his paternal grandmother, Sheila Riggenbach.
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{¶2} The facts relevant to this appeal are as follows. Four of the children
at issue in this appeal, T.M., D.M., L.M., and E.M., are the biological children of
Elizabeth Rogers and the appellant, Danny Mundy. J.R. is the biological child of
Elizabeth Rogers and Joshua Bonham.1 J.R. has autism. T.M. and D.M. were
born with a condition known as Treacher Collins syndrome. As a result of this
condition, both children require the use of a tracheal tube to maintain their
breathing, they have difficulty walking and communicating, and D.M. also has a
feeding tube. These two children also have nurses to help in their daily care.
{¶3} On May 19, 2006, MCCS filed a complaint alleging that J.R., born
July 15, 2000, was abused, neglected, and dependent.2 That same day, the agency
filed two additional complaints, one for T.M., born May 9, 2002, and one for
D.M., born May 18, 2004, alleging those children were dependent and neglected.
These complaints were based upon allegations that their mother, Elizabeth Rogers,
allowed her father, a known sex offender, unsupervised access to J.R. During this
time, her father sexually assaulted J.R.
{¶4} Three days before MCCS filed its complaints, Rogers gave birth to
L.M. However, MCCS did not file a complaint for abuse, neglect, and/or
dependency for L.M. Upon agreement of the parties, J.R. was adjudicated abused 1 Bonham was served by publication but did not enter any appearance for the proceedings nor did anyone on his behalf. The mother testified that she had not had any contact with Bonham since J.R. was six months old. 2 Throughout the proceedings in all five cases, MCCS would dismiss its complaints and re-file and/or amend the complaints due to various statutory time restrictions. However, the substance of these complaints remained consistent.
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and dependent, and T.M. and D.M. were adjudicated dependent on June 15, 2006.
All three were left in the care of their mother and placed under protective
supervision. Although placed in their mother’s care, the appellant also lived in the
home with Rogers and the children.
{¶5} On July 27, 2006, MCCS filed an additional complaint, alleging that
L.M. was abused, neglected, and dependent. This complaint was based on an
incident that occurred on July 1, 2006, wherein L.M. suffered from Shaken Baby
syndrome, causing a left brain subdural hematoma, several broken ribs, and a
blown retina. Tests also showed L.M. had a fractured femur, which was already
healing.
{¶6} The following day, on July 28, 2006, pursuant to an agreement by
Rogers and the appellant, T.M. and D.M. were placed in the physical custody of
their nurses, Kay Hout and Anita “Jodi” Smith. However, J.R. was left in the care
of Rogers, and the three children were kept under protective supervision. Upon
her release from the hospital, L.M. was placed in the temporary custody of MCCS
and placed into foster care because the perpetrator of the abuse upon L.M. had yet
to be determined.3
3 The investigation never revealed who the actual perpetrator was. Rogers suspected that while she was sleeping, J.M. caused the injuries. Both J.M. and Rogers were home at the time. In addition, Jodi Smith, testified that when she arrived at the home on the day L.M. was injured, she saw the appellant knocking on the door of a neighbor. The appellant testified that he was not in the room when L.M. was injured. Smith further testified that she told Rogers to call 911 because she could immediately tell L.M. was critical but that Rogers did not make the call. Instead Rogers and the appellant eventually drove L.M. to the hospital.
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{¶7} On August 15, 2006, MCCS filed for emergency orders for T.M. and
D.M. based upon information received from the local sheriff’s department that the
parents failed to provide a safe environment for the children by allowing J.R. to
throw (“airborne”) and push his medically fragile siblings in a rough manner.
These orders were granted the following day, and emergency placement of T.M.
was given to Jodi Smith and emergency placement of D.M. was given to Kay
Hout.
{¶8} L.M. was found to be abused and dependent on April 17, 2007.
MCCS later filed a motion for temporary custody of J.R., T.M., and D.M., which
was granted on June 6, 2007. Shortly thereafter, J.R. was placed in the therapeutic
foster home of Charity Slaughter. Eventually, both T.M. and D.M. were placed in
the home of Jodi Smith.
{¶9} On October 25, 2007, Rogers gave birth to E.M. The following day,
MCCS filed an ex parte motion for emergency custody of E.M., which was
granted. Thereafter, MCCS filed a complaint, alleging that E.M. was a dependent
child. The basis for this complaint was the prior history of the family with MCCS,
wherein the other four children were found to be dependent children and two of
them were additionally found to be abused children. Temporary custody of E.M.
was granted to MCCS, and he was placed in the care of Jodi Smith.
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{¶10} The appellant later filed a motion for kinship placement of E.M. with
the appellant’s mother, Sheila Riggenbach. On February 5, 2008, the parties
agreed to terminate MCCS’ temporary custody of E.M. and to grant temporary
custody of E.M. to his paternal grandmother.4 Two days later, E.M. was placed
with his grandmother.
{¶11} On April 14, 2008, MCCS filed motions for permanent custody of
J.R., T.M., D.M., and L.M. MCCS also filed an amended complaint, alleging
E.M. was dependent and requesting that permanent custody of E.M. be granted to
the agency that same date.
{¶12} On June 30 and July 1, 2008, the trial court held an adjudicatory
hearing for E.M. and a permanent custody hearing for the other four children. On
August 12, 2008, the paternal grandmother filed a motion to be made a party to
E.M.’s case and a motion for legal custody of E.M. The grandmother’s motion to
be made a party was granted on September 25, 2008.
{¶13} The trial court found E.M. to be a dependent child on September 17,
2008. A dispositional/permanent custody hearing for E.M. was held on September
30, 2008. At the permanent custody hearing for the children, MCCS presented
testimony and exhibits regarding two psychological examinations of the appellant,
which noted his mental health issues and substance and alcohol abuse. The
agency also presented the testimony of foster parents for the children, three of the 4 This agreement was adopted by the trial court and journalized on February 20, 2008.
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caseworkers assigned to the children, and one of L.M.’s nurses. The court also
heard testimony from the parents, the maternal and paternal grandmothers, the
appellant’s sister, and one of the nurses for T.M. and D.M.
{¶14} On February 4, 2009, the trial court granted permanent custody of
the four oldest children to MCCS. The trial court also granted legal custody of
E.M. to his paternal grandmother.
{¶15} The father-appellant now appeals these five judgments, asserting
three assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED REVERSABLE [sic] ERROR WHEN IN ACCORDANCE WITH OHIO REVISED CODE 2151.414, IT FAILED TO CONSIDER ALTERNATE PLACEMENT RATHER THAN PERMANENT CUSTODY.
ASSIGNMENT OF ERROR NO. 2
THE DECISION OF THE TRIAL COURT IS IN ERROR WHEN [IT] FAILED TO FOLLOW ALL OF THE PROVISIONS OF 2151.414.
ASSIGNMENT OF ERROR NO. 3
BY ITS OWN JUDGMENT ENTRY DATED SEPTEMBER 17, 2008, CONCERNING THE MINOR CHILD, ERIC [sic] JAY MUNDY, THE COURT MADE FINDINGS OF FACT THAT DO NOT INDICATE ANY REASON AS TO WHY THE FATHER SHOULD NOT HAVE THE CARE AND CUSTODY.
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First Assignment of Error
{¶16} In his first assignment of error, the appellant contends that the trial
court erred by not considering alternate placement of the children rather than
permanent custody. Initially, we note that this assignment of error concerns all
five of the children. However, J.R. is not the biological or adopted child of the
appellant. Further, the record is devoid of any motion filed on behalf of the
appellant for custody of J.R. As such, he lacks standing to challenge the trial
court’s decision to grant permanent custody of J.R. to MCCS. Therefore, this
assignment of error is overruled as to J.R. Further, the request by MCCS for
permanent custody of E.M. was not granted. To the contrary, legal custody of
E.M. was granted to his paternal grandmother. Accordingly, this assignment of
error is overruled as moot as to E.M.
{¶17} In regards to the other three children, our review of a grant of
permanent custody begins by noting that “[i]t is well recognized that the right to
raise a child is an ‘essential’ and ‘basic’ civil right. In re Franklin, 3rd Dist. Nos.
9-06-12, 9-06-13, 2006-Ohio-4841, citing In re Hayes (1997), 79 Ohio St.3d 46,
48, 679 N.E.2d 680. The Supreme Court of Ohio has held that a parent “must be
afforded every procedural and substantive protection the law allows.” In re
Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.
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{¶18} Additionally, the trial court is vested with broad discretion in
determining the allocation of parental rights and responsibilities for the care of
minor children. Blaker v. Wilhelm, 6th Dist. No. WD-04-003, 2005-Ohio-317,
citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As a trial
court is in the best position to weigh witness credibility and evaluate a child’s
needs, the standard for reviewing a trial court’s grant of permanent custody is
abuse of discretion. In re Rinaldi, 3rd Dist. No. 1-02-74, 2003-Ohio-2562.
Therefore, absent an abuse of that discretion, a trial court’s decision regarding the
allocation of parental rights and responsibilities must be upheld. Masters v.
Masters (1994), 69 Ohio St.3d 83, 85, 630 N.E.2d 665. An abuse of discretion
constitutes more than an error of law or judgment and implies that the trial court
acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse of
discretion standard, a reviewing court may not simply substitute its judgment for
that of the trial court. Id. Therefore, it is within these constructs that we examine
Appellant’s first assignment of error.
{¶19} Before a juvenile court may terminate parental rights and award
permanent custody of a child to a properly moving agency, it must find clear and
convincing evidence of both prongs of the permanent custody test: (1) that the
child is abandoned, orphaned, has been in the temporary custody of the agency for
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at least 12 months of a consecutive 22-month period, or that the child cannot be
placed with either parent within a reasonable time or should not be placed with
either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant
of permanent custody to the agency is in the best interest of the child, based on an
analysis under R.C. 2151.414(D). In re D.M., 9th Dist. Nos. Civ.A. 22732, 22749,
2005-Ohio-6740 at ¶ 11, citing R.C. 2151.414(B)(1)(a) through (d) and (2); See
also In re William S. (1996), 75 Ohio St.3d 95, 99, 661 N.E.2d 738.
{¶20} In the case sub judice, the appellant contends that the trial court was
required to consider alternate placement of the children rather than permanent
custody pursuant to R.C. 2151.414. Although the appellant cites this section of
the Revised Code, he provides no specific sub-section and/or division in support
of his argument that the trial court must consider alternate placement. Rather, his
argument relies upon R.C. 2151.412(F)(1)(a), which requires a case plan to have a
goal “to achieve a safe out-of-home placement in the least restrictive, most family-
like setting available and in close proximity to the home from which the child was
removed[.]” He then asserts that the children were placed “all over central Ohio”
and that this made visitation difficult.
{¶21} Our review of R.C. 2151.414, as previously outlined, reveals no
requirement that the trial court favor alternate placement over awarding permanent
custody. Further, even assuming arguendo that such a requirement exists, the
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evidence before the trial court demonstrated that the three children at issue in this
assignment of error, T.M., D.M., and L.M., each have serious, debilitating, and
life-threatening medical conditions that require constant care. Their respective
medical conditions necessitated specialized placement in homes where those
responsible for their care understood their extreme needs and could meet those
needs. In fact, R.C. 2151.412(F)(1)(a) specifically requires that the goal of
achieving a safe out-of-home placement be “consistent with the best interest and
special needs of the child[.]” Therefore, MCCS placed these children with people
who not only were trained and experienced in handling medically fragile children
but who also knew these children prior to placement in their respective homes.
{¶22} In this case, the paramount concern was the physical safety of the
children, as their very survival depended upon it. Thus, no error occurred in the
placement of the children. Moreover, the record before the court amply supports
the trial court’s decision to grant permanent custody of the children. The
witnesses testified about the psychological problems, poor parenting skills, and
impaired judgment of the appellant, and the defiant and belligerent attitude the
appellant has with others regarding the medical treatment of his children. Given
the intense medical needs of the children, the court did not abuse its discretion in
finding by clear and convincing evidence that both prongs of the permanent
custody test were satisfied. Accordingly, the first assignment of error is overruled.
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Second Assignment of Error
{¶23} The appellant contends in his second assignment of error that the
trial court erred by not following the mandates of R.C. 2151.414 in regards to
E.M. In support of this contention, the appellant asserts that MCCS sought
permanent custody of E.M., who has no medical problems and who was never in
the care of his parents due to the issues with the other four children, and that the
trial court failed “to consider not only the parents, but the extended family, so that
the child could remain in a family like setting.”
{¶24} While the appellant accurately states that MCCS requested
permanent custody, the trial court denied this request. To the contrary, the trial
court granted the motion of Sheila Riggenbach, the appellant’s mother, to award
legal custody of E.M. to her. In reaching this decision, the trial court found that
the parents were not capable of caring for any child based on their past history,
including the fact that E.M.’s sister, L.M., was born with no health problems but
suffered abuse while in her parents’ care and then they failed to provide immediate
emergency attention to her. However, the court also found that continued
parenting time between E.M. and his parents should occur and that legal custody
to the paternal grandmother would adequately protect E.M. and provide for his
need for permanency. Thus, the court concluded that E.M.’s best interests would
be served by granting legal custody of E.M. to his grandmother, who had
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temporary custody of him since he was four months old, and that such a decision
would not terminate the parental rights of the appellant and Elizabeth Rogers.
{¶25} The record clearly demonstrates that the trial court considered both
the parents and the extended family. In fact, E.M. was placed in the legal custody
of his paternal grandmother. Thus, the trial court kept the child with his extended
family. As such, the appellant has already received the result he now seeks
through this assignment of error. Therefore, the second assignment of error is
overruled.
Third Assignment of Error
{¶26} In his third assignment of error, the appellant contends that the trial
court erred by failing to indicate why the appellant should not have the care and
custody of E.M. In support of this assertion, the appellant references the
September 17, 2008 judgment of the trial court, finding E.M. to be a dependent
child.
{¶27} Admittedly, this entry does not reference any direct findings as to
the appellant. However, the appellant’s assignment of error does not challenge the
adjudication of dependency. Rather, he contends the court erred in not providing a
reason as to why he was not given custody of E.M. at the disposition.
{¶28} After adjudicating E.M. to be dependent, the trial court held a
dispositional hearing on E.M., which included MCCS’ request for permanent
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custody of him. This hearing was held on September 30, 2008, the same day as
the continuation of the permanent custody hearing for the four older children.
Prior to that time, the trial court received two days of testimony on the permanent
custody motions for E.M.’s siblings. Also included in those previous two days of
evidence was a substantial amount of testimony regarding E.M.
{¶29} At the conclusion of all the evidence regarding each of the five
children, the trial court took the matters under advisement. In its February 4, 2009
decision, the trial court found that the parents were not capable of caring for any
child based on their past history, including the fact that E.M.’s sister, L.M., was
born with no health problems but suffered abuse while in her parents’ care and
then they failed to provide immediate emergency attention to her. The court also
found that the parents could not assimilate the resources made available to them
through counseling. In specifically addressing its concerns as to the appellant, the
court found that the appellant was unable to focus, had past mental health
problems and drug and alcohol issues, was in danger of relapsing, had weak
parenting skills, had impaired judgment, lacked insight, and was resentful of
authority and typically defiant and belligerent when told or asked to do anything
regarding the medical treatment of his children. The court then held that
notwithstanding reasonable case planning and diligent efforts by the agency to
assist the parents to remedy the problems that initially caused the children to be
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placed outside the home, the parents failed continuously and repeatedly to
substantially remedy these problems pursuant to R.C. 2141.414(E)(1).
{¶30} The court also found that the parents demonstrated a lack of
commitment toward the children by failing to regularly support, visit, or
communicate with the children when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the children pursuant to
R.C. 2151.414(E)(4). Here, the court found that visitations were sporadic because
of the parents’ actions, including the appellant’s decision to enroll in school an
hour and a half away without a residence or dependable means of transportation.
{¶31} Despite these findings, the court also found that continued parenting
time between E.M. and his parents should occur and that legal custody to the
paternal grandmother would adequately protect E.M. and provide for his need for
permanency. Thus, the court concluded that E.M.’s best interests would be served
by granting legal custody of E.M. to his grandmother, and that such a decision
would not terminate the parental rights of the appellant and Elizabeth Rogers.
{¶32} Notably, the appellant does not dispute these findings. Rather, he
inaccurately maintains that no findings were made and, thus, the trial court failed
to follow statutory mandates.5 Not only were numerous findings made by the
court in regards to the appellant and the court’s decision to grant legal custody to
5 Although the appellant states “[t]his was in error in failing to follow the statutes set forth above and must be reversed[,]” he fails to provide any statutory references in support of this statement. This failure makes it quite difficult to ascertain the exact nature of the alleged error purportedly committed by the trial court.
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the paternal grandmother, as previously discussed, these findings were supported
by the evidence before it. Therefore, this assignment of error is overruled.
{¶33} For all of these reasons, the five judgments of the Marion County
Common Pleas Court, Family Division, are affirmed.
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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