[Cite as In re S.C., 2012-Ohio-3432.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: : : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. : Hon. Sheila G. Farmer, J. IN RE S.C. : : Case No. 12AP040026 : : : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 11JN00599
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 17, 2012
APPEARANCES:
For Parents-Appellant: For TCJFS-Appellee:
JOHN A. GARTRELL DAVID W. HAVERFIELD 153 N. Broadway 389 – 16th St., SW New Philadelphia, OH 44663 New Philadelphia, OH 44663
KAREN DUMMERMITH, GAL 349 E. High Ave. P.O. Box 494 New Philadelphia, OH 44663 Delaney, P.J.
{¶1} Parents-Appellants A.C. and R.C. appeal the March 1, 2012 judgment
entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, to grant
permanent custody of their child to Appellee Tuscarawas County Job and Family
Services (“TCJFS”).
FACTS AND PROCEDURAL HISTORY
{¶2} This appeal pertains to the permanent custody disposition of S.C.,
whose date of birth is November 28, 2011. Appellant R.C. is the natural mother of the
child and Appellant A.C. is the natural father of the child (“Parents”).
{¶3} On November 29, 2011, TCJFS filed a dependency/permanent custody
complaint regarding S.C. S.C. was placed in the temporary custody of TCJFS at that
time. The complaint alleged that eight of S.C.’s siblings had previously been ordered
into the permanent custody of TCJFS.1 TCJFS alleged the Parents failed to alleviate
the concerns that led to the finding of dependency and neglect and failed to engage in
case plan services, resulting in the trial court granting permanent custody of all eight
children to TCJFS. TCJFS prepared a case plan that did not include a reunification
plan for either parent with the child.
{¶4} An adjudicatory hearing was held on the dependency complaint on
January 24, 2012. The trial court found S.C. to be a dependent child by judgment
entry on January 27, 2012. Temporary custody with TCJFS was maintained.
{¶5} On January 30, 2012, TCJFS filed a motion to determine the need for the
agency to expend reasonable efforts to reunify S.C. with the Parents.
1 This Court has examined the prior permanent custody decisions in In re Craig, 5th Dist. No. 2007 AP 03 0017, 2007-Ohio-3726 and In re Craig, 5th Dist. No. 2008 AP 05 0030, 2008-Ohio-4251. {¶6} An evidentiary hearing was held on the permanent custody complaint on
February 21, 2012. The trial court granted permanent custody in favor of TCJFS on
March 1, 2012. The trial court additionally found therein that pursuant to R.C.
2151.419, TCJFS was not required to expend reasonable efforts to reunify S.C. with
the Parents.
{¶7} It is from this decision the Parents now appeal.
ASSIGNMENT OF ERROR
{¶8} The Parents raises one Assignment of Error:
{¶9} “THE TRIAL COURT’S DECISION IN FINDING S.C. TO BE [A]
DEPENDENT CHILD PURSUANT TO ORC 2151.04(D) AND THE DECISION TO
TERMINATE THE APPELLANT’S PARENTAL RIGHTS AND GRANT PERMANENT
CUSTODY TO TUSCARAWAS COUNTY JOB AND FAMILY SERVICES IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE PURSUANT TO R.C. 2151.414 AND
ERRED IN DETERMINING THAT JOB AND FAMILY SERVICES WAS NOT
REQUIRED TO EXPEND REASONABLE EFFORTS TOWARDS REUNIFICATION
BEFORE GRANTING PERMANENT CUSTODY.”
ANALYSIS
DEPENDENCY FINDING
{¶10} The Parents first challenge the underlying dependency finding,
maintaining the evidence presented did not support the same. We disagree.
{¶11} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois,
405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A parent's interest in the care, custody and management of his or her child is “fundamental.” Id.; Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The permanent
termination of a parent's rights has been described as, “ * * * the family law equivalent
to the death penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601
N.E.2d 45 (1991). Therefore, parents “must be afforded every procedural and
substantive protection the law allows.” Id.
{¶12} An agency may request permanent custody of a child as part of its
original abuse, neglect, or dependency complaint. R.C. 2151.353(A)(4). A trial court
should only grant permanent custody as the initial disposition in extreme situations
where reunification is not possible. In re Croston, 4th Dist. No. 95CA1692 (March 21,
1996); In re Smart, 21 Ohio App.3d 31, 35, 486 N.E.2d 147 (10th Dist. 1984).
{¶13} Proceedings involving the termination of parental rights must be
bifurcated into separate adjudicatory and dispositional hearings. R.C. 2151.35, Juv.R.
29 and 34. See also, In re Baby Girl Baxter, 17 Ohio St.3d 229, 479 N.E.2d 257
(1985). In the adjudicatory phase, a child must be found to be abused, neglected or
dependent.
{¶14} In pertinent part, R.C. 2151.04(D) defines a dependent child as any child
to which both of the following apply: (1) “The child is residing in a household in which a
parent, guardian, custodian or other member of the household committed an act that
was the basis for an adjudication that a sibling of the child or any other child who
resides in the household is an abused, neglected or dependent child;” and (2) who
“[B]ecause of the circumstances surrounding the abuse, neglect or dependency of the
sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by the parent, guardian, custodian, or member
of the household.” R.C. 2151.04(D)(1) and (2).
{¶15} “Ohio courts have held that newborn infants can be dependent before
they have ever been released into their parents' custody.” In re Pieper Children, 85
Ohio App.3d 318, 325, 619 N.E.2d 1059 (12th Dist. 1993), See also, In re Bishop, 36
Ohio App.3d 123, 124, 521 N.E.2d 838 (5th Dist. 1987). Essentially, a prospective
finding of dependency is appropriate where a child has not been in the custody of the
parents but circumstances demonstrate that to allow the parents to have custody of
the child would threaten the child's health and safety. “ ‘A juvenile court should not be
forced to experiment with the health and safety of a newborn baby where the state can
show, by clear and convincing evidence, that placing the child in such an environment
would be threatening to the health and safety of that child.’“ In re Pieper Children,
supra, quoting In re Campbell, 13 Ohio App.3d 34, 36, 468 N.E.2d 93, 96 (12th Dist.
1983).
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[Cite as In re S.C., 2012-Ohio-3432.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: : : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. : Hon. Sheila G. Farmer, J. IN RE S.C. : : Case No. 12AP040026 : : : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 11JN00599
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 17, 2012
APPEARANCES:
For Parents-Appellant: For TCJFS-Appellee:
JOHN A. GARTRELL DAVID W. HAVERFIELD 153 N. Broadway 389 – 16th St., SW New Philadelphia, OH 44663 New Philadelphia, OH 44663
KAREN DUMMERMITH, GAL 349 E. High Ave. P.O. Box 494 New Philadelphia, OH 44663 Delaney, P.J.
{¶1} Parents-Appellants A.C. and R.C. appeal the March 1, 2012 judgment
entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, to grant
permanent custody of their child to Appellee Tuscarawas County Job and Family
Services (“TCJFS”).
FACTS AND PROCEDURAL HISTORY
{¶2} This appeal pertains to the permanent custody disposition of S.C.,
whose date of birth is November 28, 2011. Appellant R.C. is the natural mother of the
child and Appellant A.C. is the natural father of the child (“Parents”).
{¶3} On November 29, 2011, TCJFS filed a dependency/permanent custody
complaint regarding S.C. S.C. was placed in the temporary custody of TCJFS at that
time. The complaint alleged that eight of S.C.’s siblings had previously been ordered
into the permanent custody of TCJFS.1 TCJFS alleged the Parents failed to alleviate
the concerns that led to the finding of dependency and neglect and failed to engage in
case plan services, resulting in the trial court granting permanent custody of all eight
children to TCJFS. TCJFS prepared a case plan that did not include a reunification
plan for either parent with the child.
{¶4} An adjudicatory hearing was held on the dependency complaint on
January 24, 2012. The trial court found S.C. to be a dependent child by judgment
entry on January 27, 2012. Temporary custody with TCJFS was maintained.
{¶5} On January 30, 2012, TCJFS filed a motion to determine the need for the
agency to expend reasonable efforts to reunify S.C. with the Parents.
1 This Court has examined the prior permanent custody decisions in In re Craig, 5th Dist. No. 2007 AP 03 0017, 2007-Ohio-3726 and In re Craig, 5th Dist. No. 2008 AP 05 0030, 2008-Ohio-4251. {¶6} An evidentiary hearing was held on the permanent custody complaint on
February 21, 2012. The trial court granted permanent custody in favor of TCJFS on
March 1, 2012. The trial court additionally found therein that pursuant to R.C.
2151.419, TCJFS was not required to expend reasonable efforts to reunify S.C. with
the Parents.
{¶7} It is from this decision the Parents now appeal.
ASSIGNMENT OF ERROR
{¶8} The Parents raises one Assignment of Error:
{¶9} “THE TRIAL COURT’S DECISION IN FINDING S.C. TO BE [A]
DEPENDENT CHILD PURSUANT TO ORC 2151.04(D) AND THE DECISION TO
TERMINATE THE APPELLANT’S PARENTAL RIGHTS AND GRANT PERMANENT
CUSTODY TO TUSCARAWAS COUNTY JOB AND FAMILY SERVICES IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE PURSUANT TO R.C. 2151.414 AND
ERRED IN DETERMINING THAT JOB AND FAMILY SERVICES WAS NOT
REQUIRED TO EXPEND REASONABLE EFFORTS TOWARDS REUNIFICATION
BEFORE GRANTING PERMANENT CUSTODY.”
ANALYSIS
DEPENDENCY FINDING
{¶10} The Parents first challenge the underlying dependency finding,
maintaining the evidence presented did not support the same. We disagree.
{¶11} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois,
405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A parent's interest in the care, custody and management of his or her child is “fundamental.” Id.; Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The permanent
termination of a parent's rights has been described as, “ * * * the family law equivalent
to the death penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601
N.E.2d 45 (1991). Therefore, parents “must be afforded every procedural and
substantive protection the law allows.” Id.
{¶12} An agency may request permanent custody of a child as part of its
original abuse, neglect, or dependency complaint. R.C. 2151.353(A)(4). A trial court
should only grant permanent custody as the initial disposition in extreme situations
where reunification is not possible. In re Croston, 4th Dist. No. 95CA1692 (March 21,
1996); In re Smart, 21 Ohio App.3d 31, 35, 486 N.E.2d 147 (10th Dist. 1984).
{¶13} Proceedings involving the termination of parental rights must be
bifurcated into separate adjudicatory and dispositional hearings. R.C. 2151.35, Juv.R.
29 and 34. See also, In re Baby Girl Baxter, 17 Ohio St.3d 229, 479 N.E.2d 257
(1985). In the adjudicatory phase, a child must be found to be abused, neglected or
dependent.
{¶14} In pertinent part, R.C. 2151.04(D) defines a dependent child as any child
to which both of the following apply: (1) “The child is residing in a household in which a
parent, guardian, custodian or other member of the household committed an act that
was the basis for an adjudication that a sibling of the child or any other child who
resides in the household is an abused, neglected or dependent child;” and (2) who
“[B]ecause of the circumstances surrounding the abuse, neglect or dependency of the
sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by the parent, guardian, custodian, or member
of the household.” R.C. 2151.04(D)(1) and (2).
{¶15} “Ohio courts have held that newborn infants can be dependent before
they have ever been released into their parents' custody.” In re Pieper Children, 85
Ohio App.3d 318, 325, 619 N.E.2d 1059 (12th Dist. 1993), See also, In re Bishop, 36
Ohio App.3d 123, 124, 521 N.E.2d 838 (5th Dist. 1987). Essentially, a prospective
finding of dependency is appropriate where a child has not been in the custody of the
parents but circumstances demonstrate that to allow the parents to have custody of
the child would threaten the child's health and safety. “ ‘A juvenile court should not be
forced to experiment with the health and safety of a newborn baby where the state can
show, by clear and convincing evidence, that placing the child in such an environment
would be threatening to the health and safety of that child.’“ In re Pieper Children,
supra, quoting In re Campbell, 13 Ohio App.3d 34, 36, 468 N.E.2d 93, 96 (12th Dist.
1983).
{¶16} The trial court’s dependency decision was based on a finding that TCJFS
had been granted permanent custody of eight prior born children. The evidence
further demonstrates that in the prior cases, the Parents failed to complete their case
plan objectives, such as addressing concerns with poor hygiene, an unsafe home
environment, poor parenting skills, and domestic violence. As in In re Craig, 5th Dist.
No. 2007 AP 03 0017, 2007-Ohio-3726, the trial court could find that the nature and
circumstances of the Parents’ situation would place a newborn at risk. Therefore,
pursuant to R.C. 2151.04, the trial court did not abuse its discretion in adjudicating the
child dependent. MANIFEST WEIGHT
{¶17} The Parents next contend the trial court’s decision to grant permanent
custody was against the manifest weight of the evidence. We disagree.
{¶18} Once reunification efforts have either been waived, unsuccessfully
completed or exhausted without progress, R.C. 2151.353(A)(4) states in pertinent part
that if a child has been adjudicated abused, neglected or dependent, the court may
“commit the child to the permanent custody of a public children service agency or
private child placing agency, if the court determines in accordance with division (E) of
section 2151.414 of the Revised Code that the child cannot be placed with one of the
child's parents within a reasonable period of time or should not be placed with either
parent and determines in accordance with division (D) of section 2151.414 [2151.41.4]
of the Revised Code that the permanent commitment is in the best interest of the
child.” R.C. 2151.353(A)(4).
{¶19} With respect to the first requirement, R.C. 2151.414(E) sets forth a list of
16 possible predicate findings. One of those findings must be established prior to a
judicial conclusion that a child cannot or should not be placed with the child's parent.
R.C. 2151.414(E)(11) states that, in determining whether a child cannot be placed with
a parent within a reasonable period of time or should not be placed with a parent, the
court shall determine if the following exists: “The parent has had parental rights
involuntary terminated pursuant to section or sections 2151.343 or 2151.415 of the
Revised Code with respect to a sibling of the child.” R.C.2151.414(E)(11). {¶20} The statute also enumerates certain criteria for evaluating whether
permanent custody with a children's services agency is in the child's best interests.
R.C. 2151.414(D) requires a court to consider the following factors:
(1) the interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster care givers 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 ending on or after March 18, 1999;
(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 division (E)(7) to (11) of this section
apply in relation to the parents and the child.
{¶21} A trial court's permanent custody finding, which is supported by clear and
convincing evidence, will not be overturned as against the manifest weight of the
evidence if the record contains competent credible evidence by which the court could
have formed a firm belief or conviction that the essential statutory elements for a
termination of parental rights have been established. In re S et al., 102 Ohio App.3d
338, 344-345, 657 N.E.2d 307 (1995); Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Additionally, “[e]very reasonable
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984).
{¶22} As stated above, the parental rights as to the Parents’ eight prior children
have been involuntarily terminated. The children are siblings of S.C.
{¶23} Elizabeth Bendetto, agency case manager who handled several prior
cases concerning the Parents and their other children, testified as to the concerns in
the prior cases that involved inadequate home conditions, mental health and stability
problems of the Parents, and domestic violence in the home. (T. 5.) During the prior
cases, the Parents never completed their case plans. (T. 6.) Bendetto testified that
the Parents completed the Goodwill Parenting Program in 2008, not as part of a case
plan, but because they were attempting to secure custody of another child. (T. 47.)
A.C. also participated in court-ordered anger management counseling due to an
assault conviction in the Tuscarawas County Common Pleas Court. (T. 23.)
{¶24} S.C. is placed in a foster to adopt home with the child’s biological
siblings. (T. 39.) Bendetto testified the foster family was in a position to meet the
child’s long term needs and provide the child a permanent home. Id.
{¶25} The guardian ad litem recommended that permanent custody be granted
to TCJFS.
{¶26} The trial court’s findings that the child could not be placed with the
Parents within a reasonable period of time or should not be placed with the parents and that the best interests of the child would be served by granting permanent custody
to TCJFS were supported by clear and convincing evidence.
REASONABLE EFFORTS
{¶27} The Parents finally challenge the trial court’s decision, pursuant to R.C.
2151.419, that the agency was not required to expend reasonable efforts to reunify
S.C. with the Parents.
{¶28} Pursuant to R.C. 2151.419, the agency which has removed the child
from the home must have made reasonable efforts to prevent the removal of the child
from the child's home, eliminate the continued removal of the child from the home, or
make it possible for the child to return home safely. In re Hess, 5th Dist.
Nos.2007CA00262, 2007CA00261, 2008-Ohio-1920, ¶ 46.
{¶29} However, R.C. 2151.419(A)(2) states in pertinent part as follows:
If any of the following apply, the court shall make a determination that
the agency is not required to make reasonable efforts to prevent the
removal of the child from the child's home, eliminate the continued
removal of the child from the child's home, and return the child to the
child's home:
***
(e) The parent from whom the child was removed has had parental rights
involuntarily terminated pursuant to section 2151.353, 2151.414, or
2151.415 of the Revised Code with respect to a sibling of the child.
{¶30} The Parents nonetheless direct this Court to R.C. 2151.419(A)(3), which
states: “At any hearing in which the court determines whether to return a child to the child's home, the court may issue an order that returns the child in situations in which
the conditions described in divisions (A)(2)(a) to (e) of this section are present.”
{¶31} Parents further cite to the decision of the Sixth District Court of Appeals
in In re Nicholas P., 169 Ohio App.3d 570, 2006-Ohio- 6213, 863 N.E.2d 1102 (6th
Dist.) which states that R.C. 2151.419(A)(3) “provides the trial court with the
discretion to override the mandate of R.C. 2151.419(A)(2)(e).” Id. at ¶ 36.
{¶32} In In re Craig, 5th Dist. No. 2007 AP 03 0017, 2007-Ohio-3726, we
referenced the Nicholas P. decision, although we did not expressly adopt the
“override” holding therein. In In re Craig, 5th Dist. 2008 AP 05 0030, 2008-Ohio-4251,
we reviewed the identical reasonable efforts argument under similar factual
circumstances. In that case, we held the trial court properly concluded that TCJFS
was not required to make reasonable efforts to prevent and eliminate the removal of
S.C. from his home and to return the child to his home.
{¶33} The same facts and circumstances are present in the case sub judice.
We accordingly follow the precedent set in In re Craig, 5th Dist. No. 2007 AP 03 0017,
2007-Ohio-3726 and In re Craig, 5th Dist. 2008 AP 05 0030, 2008-Ohio-4251 to find
that TCJFS was not required to make reasonable efforts to prevent and eliminate the
removal of S.C. from her home and to return the child to her home. CONCLUSION
{¶34} For the foregoing reasons, the Parents’ sole Assignment of Error is
overruled.
{¶35} The judgment of the Tuscarawas County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Delaney, P.J.
Gwin, J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
PAD:kgb IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: : : : JUDGMENT ENTRY : : IN RE S.C. : : Case No. 12AP040026 : : : :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Tuscarawas County Court of Common Pleas, Juvenile Division is AFFIRMED. Costs
assessed to Appellants.