Billy Joe Spears , Alleged Neglected, Abused and Dependent Child Case

• Decision Date: 10 March 1997
• Docket Number: 97-LW-0405,96 CA 1768
• Parties: BILLY JOE SPEARS, JR., ALLEGED NEGLECTED, ABUSED AND DEPENDENT CHILD Case
• Court: Ohio Court of Appeals

BILLY JOE SPEARS, JR., ALLEGED NEGLECTED, ABUSED AND DEPENDENT CHILD

No. 96 CA 1768.

97-LW-0405 (4th)

Court of Appeals of Ohio, Fourth District Athens

March 10, 1997

^[1]COUNSEL FOR APPELLANT GLORIA SPEARS: K. Robert Toy, 50 1/2 South Court Street Athens, Ohio 45701.

COUNSEL FOR APPELLEE BILLY JOE SPEARS, SR: Michael A. Brame, 119 North Market Street, McArthur, Ohio 45651.

COUNSEL FOR APPELLEE ATHENS COUNTY CHILDREN SERVICES: David J Winkelmann, Athens County Assistant Prosecuting Attorney Athens County Children Services, Athens, Ohio 45701.

COUNSEL FOR GUARDIAN AD WILLIAM S. DILES: Frank A. Lavelle, Lavelle Law, Offices, L.P.A., 8 North Court Street, P.O. Box 661, Athens, Ohio 45701.

DECISION

ABELE J.

This is an appeal from an Athens County Common Pleas Court, Juvenile Division, judgment granting Athens County Children services permanent custody of Billy Joe Spears, Jr., born on May 6, 1995 to Gloria Spears, appellant herein, and Billy Joe Spears, Sr., appellee herein.

Appellant assigns the following error:

"THE TRIAL COURT'S DECISION TO GRANT PERMANENT CUSTODY TO ATHENS COUNTY CHILDREN'S SERVICES WAS AN ABUSE OF THE COURT'S DISCRETION."

On November 30, 1995, Athens County Children Services (hereinafter ACCS) filed a complaint alleging Billy Joe Spears, Jr. to be an abused, neglected, and dependent child and filed a motion for an emergency order of custody. In the complaint and in an affidavit in support of the motion, ACCS caseworker Laura Bobo alleged in pertinent part as follows:

"1) Billy Joe Spears, Jr., has a visible bruise on his lower back that extends across the entire back and down the back sides of both legs;

2) The parents' explanation for the bruise is that the child fell on a board;

3) The child is seven months old and is not yet walking (sic);

4) The parents' explanation of the cause of the bruise is unreasonable;

5) The family's housing is not clean, and conditions are unsanitary and inadequate for the child;

6) The child has been hospitalized in the recent past for croup, and the child has been observed inappropriately dressed for the winter weather;

7) The child's sister, Rebecca Palmer Spears, has been adjudicated abused, neglected and dependent, and is the victim of battered baby syndrome."

On November 30, 1995, the trial court granted ACCS emergency custody of the child.

On December 21, 1995, ACCS filed an amended complaint. The amended complaint requested the trial court to award permanent custody of the child to ACCS. The amended complaint included the following additional allegations:

"8) The child has a left tibial fracture that was caused by twisting the leg;

9) The child's mother contends the fracture was caused by getting his foot caught in a chair;

10) The explanation offered by the child's mother for the tibial fracture is unreasonable and at variance with the physical injury;

11) The parents are unable to provide a satisfactory explanation for the fracture.

12) The child showed a bruise in the interior of his ear that was indicative of a hard pinch by an individual."

On December 4, 1995, the trial court held a hearing on the emergency custody order. During the hearing, the trial court reviewed a medical report of the child from Children's Hospital in Columbus, Ohio. The report indicated a left tibial fracture and a possible fracture of the right tibia of a different age. The report also indicated a bruising of the right ear. The trial court found probable cause to continue the emergency custody order. The court journalized its findings on January 5, 1996.

On January 11, 1996, ACCS filed a case plan. The plan listed "adoption" as the permanency planning goal for the child. The plan also provided the parents with counseling, parenting classes, transportation services, homemaker services, and twice weekly visitation with the child.

On April 1, 1996, the trial court held an adjudicatory hearing. On July 22, 1996, the trial court entered judgment finding the child to be abused, neglected, and dependent.

On August 6, 1996, the trial court held a dispositional hearing. On August 27, 1996, the trial court entered judgment divesting appellant and the child's father of their parental rights and awarding permanent custody of the child to ACCS. The trial court found, inter alia, as follows: (1) the child is a victim of battered baby syndrome; (2) neither parent attended the twice weekly visitations with the child with any frequency despite the fact ACCS workers have gone to the parents' home to offer transportation before almost every scheduled visitation; (3) the parents cannot care for their dogs properly; (4) the parents' home continues to be unsanitary and unhygienic; (5) there is a reasonable probability that the child will be adopted; and (6) an adoptive placement would benefit the child.

Appellant filed a timely notice of appeal.^[2]

In her sole assignment of error, appellant asserts that the trial court abused its discretion by awarding permanent custody of the child to ACCS. In support of her assertion, appellant argues that the injuries to the child were minor. Appellant further argues that it appears that the trial court based its decision on a previous case in which the trial court found the child's sister to be abused, neglected and dependent. Appellant contends that the record in the case sub judice does not contain competent and supportive evidence to support either the finding of abuse, neglect, and dependency or the award of permanent custody to ACCS.

A parent's right to raise his or her children is an "essential" and "basic civil right." In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169, citing Stanley v. Illinois (1972), 405 U.S. 645, 651. Moreover, parents have a "fundamental liberty interest" in the care, custody, and management of the child. In re Murray, citing Santosky v. Kramer (1982), 455 U.S. 745, 753. However, the rights and interests of natural parents are not absolute.

R.C. 2151.27(C) permits a public children services agency to file a complaint requesting permanent custody of a child:

(C) If the complainant in a case in which a child is alleged to be an abused, neglected, or dependent child desires permanent custody of the child or children, temporary custody of the child or children, whether as the preferred or an alternative disposition, or the placement of a child in long-term foster care, the complaint shall contain a prayer specifically requesting permanent custody, temporary custody, or the placement of the child in long-term foster care.

R.C. 2151.35(A) provides that if the court finds that the child is abused, neglected, or dependent, "the court shall proceed * * * to hold a dispositional hearing." R.C. 2151.35(B)(3) provides that at the conclusion of the dispositional hearing, "the court may make any order of disposition that is set forth in section 2151.353 of the Revised Code."

R.C. 2151.353(A)(4) provides that a court may grant a request for permanent custody if the court determines, by clear and convincing evidence, that: (1) permanent custody is in the best interest of the child; and (2) the child cannot be placed with either of his parents within a reasonable period of time or the child should not be placed with his parents. We note both the "best interest" determination and the "cannot be placed with either parent" determination focus on the child, not the parent.

R.C. 2151.353(A)(4) provides that the trial court must make the two permanent custody determinations in accordance with R.C. 2151.414(D) and (E).^[3] R.C. 2151.414(D) provides that when making the best interest determination, courts must consider all relevant factors. Relevant factors include the child's probability of adoption and whether adoptive placement would benefit the child, the child's interactions with family members and others, the child's custodial history, and the child's need for a legally secure permanent placement. When making the determination of whether the child cannot be placed with either of his parents within a reasonable period of time, a court must likewise consider all relevant evidence. Courts must consider pursuant to R.C. 2151.414(E)(1) the parents' utilization of social and rehabilitative services made available to them. If the parents have demonstrated a lack of commitment toward the child, R.C. 2151.414(E)(4) requires the court to find that "the child cannot be placed with his parents within a reasonable time."

In In Re Butcher (Apr. 10, 1991) Athens App. No 1470, unreported, we noted that R.C. 2151.414 does not require that each and every condition listed in subsection (E) exist before the court may terminate parental rights. The trial court may make its decision based solely on the existence of one of the conditions.

In a permanent custody proceeding, trial courts must use the "clear and convincing evidence" standard of proof. See R.C. 2151.414(E). When the proof required must be clear and convincing, 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. In State v. Schiebel (1990), 55 Ohio St.3d 714, 74, 564 N.E.2d 54, 60, the court wrote that the standard of "clear and convincing evidence" is defined as:

"* * * that measure or degree of proof which is more than a mere `preponderance of the evidence,' but not to the extent of such certainty as is required `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established."

We note that an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence going to all the essential elements of the...