Awkal, In re
| Decision Date | 27 June 1994 |
| Docket Number | No. 65481,65481 |
| Citation | 95 Ohio App.3d 309,642 N.E.2d 424 |
| Parties | In re AWKAL. |
| Court | Ohio Court of Appeals |
Debra Obed, Cleveland, for appellee Cuyahoga County Department of Children and Family Services.
MIke Schaffer, Cleveland, guardian for appellant Abdul Awkal.
Patrick S. Corrigan, Cleveland, guardian ad litem, for appellee Zaynab Awkal.
James A. Draper, Cuyahoga County Public Defender, and Therese M. Peters, Asst. Public Defender, Cleveland, for appellant Abdul Awkal.
This is an appeal from a judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, which permanently terminated the parental rights of Abdul Awkal, appellant herein, and granted permanent custody of Zaynab Awkal to the Cuyahoga County Department of Children and Family Services ("CCDCFS"). Mr. Awkal, father of Zaynab, has appealed, setting forth the following assignment of error:
"The trial court erred when it granted the Cuyahoga County Department of Children and Family Services' motion for permanent custody of Zaynab Awkal; instead, the trial court was mandated to order legal custody under R.C. 2151.412(G)(2) and R.C. 2151.412(D)(5)."
The facts that are relevant to the issues raised in this appeal are as follows. On January 7, 1992, appellant fatally shot Latife Awkal, his wife and Zaynab's mother, and shot and killed Zaynab's maternal uncle. Thereafter, the juvenile court issued an order that granted emergency custody and care of Zaynab to CCDCFS.
At a June 17, 1992 adjudicatory hearing, the juvenile court determined that Zaynab was a dependent child. At the conclusion of that hearing, the juvenile court terminated CCDCFS's emergency custody order and issued an order granting temporary custody of Zaynab to CCDCFS.
On January 12, 1993, CCDCFS filed a motion to modify temporary custody to permanent custody.
On February 26, 1993, the court conducted a preliminary hearing on the motion for permanent custody. At the hearing, appellant, who was represented by counsel, stipulated to the following:
On March 22, 1993, attorney Patrick Corrigan, guardian ad litem for Zaynab, made a preliminary recommendation to the juvenile court that the best interests of Zaynab would be served by having her reside permanently with her maternal uncle and his wife, Amer and Mirvat Abdul-Aziz. Corrigan said he had visited with Zaynab in the home of Amer and Mirvat Abdul-Aziz on four separate occasions and that at each visit, Zaynab was playful and appeared healthy and well kept. Corrigan reserved making a final recommendation until the close of the adjudicatory hearing on the motion for permanent custody.
On March 23, 1993, an adjudicatory hearing was held on the motion for permanent custody. Appellant was present at the hearing, although he did not testify. The following evidence was adduced at the hearing.
Amer Abdul-Aziz, Zaynab's maternal uncle, testified that Zaynab had been living with him, his wife Mirvat, and their son since January 9, 1992. Until approximately January 1993, they lived in a double house in the city of Cleveland. Throughout this time, his parents lived above them and his mother helped care for Zaynab. In August 1992, Amer, Mirvat and their son went to Lebanon to care for Mirvat's mother, who was suffering from cancer. Amer returned to the United States alone approximately one month later. During this one-month period when Amer and Mirvat were both in Lebanon, Amer's brother Ali and his wife Mona cared for Zaynab.
In December 1992, Amer and Zaynab went together to Lebanon, where Mirvat was due to have a baby. When Amer and Zaynab returned to Cleveland in February 1993, they moved in with Ali, Mona and their four children in Strongsville, Ohio. Amer explained that Mirvat could not yet return to the United States because of medical complications of her pregnancy and visa problems with their newborn baby. Although Amer could not provide a date when Mirvat would return, he indicated that government officials said it would not be much longer.
Amer testified that he had no intention of moving back to Lebanon on a permanent basis, as his business interests were in the United States, and that he had no financial problems caring for Zaynab. Amer further testified that he thought of Zaynab as his own biological child and that he wanted to legalize their relationship by adopting her.
Ali Abdul-Aziz testified that from the time Zaynab was placed with his brother Amer in January 1992, he had had almost daily contact with her. Ali said Zaynab had no problem adjusting to living with Amer and Mirvat. Ali further stated that even though Amer and Zaynab were currently living with him, his wife Mona, and their four children, Amer was Zaynab's primary provider of care. Amer took care of Zaynab on weekends, evenings, and during the day on the days Mona worked outside the home. Ali said that Amer also took care of his four children on the days Mona worked. Amer took Zaynab to the doctor's office when she was ill and provided for her other needs. Ali stated that it was in Zaynab's best interests that she be adopted by Amer and Mirvat.
CCDCFS social worker Mary Ann Fox testified that in February 1992, she was assigned to Zaynab's case. Fox said she had observed Zaynab's interaction with Amer and Mirvat Abdul-Aziz and was of the impression that Zaynab was content and fit right into the family unit. It was Fox's opinion that Amer and Mirvat were very committed to raising Zaynab until she reached majority, as well as beyond. Fox further expressed the opinion that it was in the best interests of Zaynab that she be adopted by Amer and Mirvat. Fox also testified concerning Zaynab's relationship with her paternal aunt and uncle, Ali and Mirvat Awkal, and her paternal grandparents. Although Fox was not considering paternal relatives for placement or adoption at this point, she indicated that the visitation rights of Zaynab's paternal relatives were an issue she addressed in the motion for permanent custody. Fox explained that if the motion for permanent custody were granted, the paternal relatives would most likely be cut off from Zaynab unless the material relatives she was permanently placed with chose to preserve Zaynab's ties to her paternal relatives. Fox said that paternal relatives had had visitation with Zaynab on the following dates since temporary custody was granted to CCDCFS in June 1992: July 12, 1992; August 16, 1992; September 27, 1992; and November 29, 1992. They had also requested visitation on December 30, 1992, but Zaynab was in Lebanon. Fox said she had called the paternal relatives when Zaynab returned from Lebanon and offered visitation on February 11, 17, and 18, which was declined. Fox also testified that the paternal relatives had refused her request that they schedule an appointment with Dr. Neuhaus of the Juvenile Court Diagnostic Clinic.
Upon cross-examination, Fox said she had never interviewed appellant because, under the circumstances of this case, reunification between appellant and Zaynab would never occur. Fox further stated that CCDCFS was moving for permanent custody rather than legal custody of Zaynab to secure prompt permanent placement through adoption by a maternal relative. Fox explained that Zaynab could not be adopted unless CCDCFS had permanent custody of her.
Dr. Steven Neuhaus, an expert in child psychology employed by the Cuyahoga County Juvenile Court, testified that he had had several opportunities to interview Zaynab in the company of Amer, Ali and Mona Abdul-Aziz. In Neuhaus's opinion, Zaynab's mental and cognitive development was on par with other children of her age and in some areas was more advanced. Neuhaus said Amer was Zaynab's primary care provider, but his extended family also partook in her care, which was a positive force in Zaynab's development. Neuhaus expressed the opinion that these multiple care providers might help counter some of the anxiety she experiences as a result of the shooting incident, evidenced by her reaction to loud noises and violence on television.
With regard to permanent custody versus legal custody, Neuhaus expressed the opinion that permanent custody was in Zaynab's best interest so that the adoption by Amer and Mirvat could take place. He stated that adoption would give the family a sense of permanence and allow them to move on without interference. He further stated that, psychologically, Zaynab needed a mother and a father rather than an aunt and an uncle. Finally, Neuhaus opined that Zaynab would benefit from an adoption by Amer and Mirvat.
On cross-examination, Neuhaus testified that he did not see any problems in Zaynab as a result of her having lived in multiple locations or having been cared for by different relatives while she was in the temporary custody of CCDCFS.
Over objection, Ruth Lowery, an employee of Cuyahoga County's Family Conciliation Service, and Cuyahoga County Deputy Sheriff Henry Van Dame testified concerning the events surrounding the shooting death of Zaynab's mother. Deputy Van Dame stated that while on duty at the Lakeside Court House, he observed appellant run down the hall, stop at an elevator, and point his gun at Zaynab's head. Deputy Van Dame shot appellant, who then dropped Zaynab.
On appellant's behalf, Richard Graham, director of legal services for the juvenile court, testified as an expert regarding the differences between legal and permanent custody. Graham explained that whereas permanent custody permanently terminates all parental rights in giving custody to a public or private care agency, legal custody involves residual parental rights. Graham further explained that the main purpose of a custody order is to provide a child with...
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...parent of the child." See In re G.P., 5th Dist. No. 2013CA00126, 2013-Ohio-4692, 2013 WL 5761607, ¶ 43, citing In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994). Similarly, R.C. 2151.414(C) prohibits a court from "deny [ing] an agency's motion for permanent custody solely......
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