Brown, In re

• Decision Date: 02 November 1994
• Docket Number: 9-94-31,Nos. 9-94-28,s. 9-94-28
• Citation: 98 Ohio App.3d 337,648 N.E.2d 576
• Parties: In re BROWN. (Two Cases.)
• Court: Ohio Court of Appeals

Page 337

98 Ohio App.3d 337

648 N.E.2d 576

In re BROWN. (Two Cases.)

Nos. 9-94-28, 9-94-31.

Court of Appeals of Ohio, Third District, Marion County.

Decided Nov. 2, 1994.

Wilson & Kochheiser Co., L.P.A., Keith A. Kochheiser, Marion, for appellant, Amy Brown.

Spohn, Spohn & Zeigler, S. Fredrick Zeigler, Marion, for appellant, Marvin Brown.

Jim Slagle, Marion County Pros. Atty. and James P. Luton, Asst. Pros. Atty., Marion, for appellee, Marion County Children Services Bd.

Grimes & Russell, Mark Russell, Marion, for guardian ad litem.

EVANS, Judge.

These are appeals by Marvin Brown and Amy Brown, natural parents of Nichole Marie Brown, from a judgment of the Court of Common Pleas of Marion County, Juvenile Division, granting the motion of the Marion County Children Services Board ("appellee") for permanent custody of Nichole.

Nichole was born in 1984. Her parents were married to each other for approximately a year. Following their divorce, Marvin Brown retained legal custody of Nichole. Marvin later married Robin Monk. Robin and Marvin raised Nichole until late 1991, when Marvin was incarcerated in Florida, for approximately a four-month period. At that time, Robin brought Nichole back to Ohio and left her with Amy Brown. Amy thereafter contacted appellee, requesting assistance in changing custody of Nichole to herself. Appellee requested "emergency temporary custody" of Nichole, on February 3, 1992. The court granted appellee's request on the same day. On June 11, 1992, Nichole was found by the court to be a dependent child, pursuant to a stipulation between appellee and Marvin Brown. In the same entry, appellee was awarded temporary custody of the child. There is no evidence in the record that Nichole's mother, Amy Brown, was ever notified by the court of the hearing which gave rise to these judgments.

Following court reviews of the case plans developed by appellee, Marvin Brown moved the court for a return of custody to him, alleging that he had complied with the case plan, had maintained a stable, suitable home, obtained the recommended psychological evaluations, and had visited with Nichole in order to maintain the parent-child relationship. The court denied the motion, based upon appellee's desire to subject the matter to further investigation. Shortly thereafter, Marvin was imprisoned following a "no contest" plea on a domestic violence charge arising from a disagreement between Marvin and his ex-wife, Robin Monk, with whom he still resides. Appellee filed its motion for permanent custody of Nichole, alleging that the parents had failed to cooperate in accomplishing the goals of the "case plan." After receiving notice of appellee's filing, Amy Brown also filed a motion for custody.

Hearings were held on appellee's motion on February 23, 1994 and March 3, 1994. Following the presentation of evidence by the three parties, the court granted appellee's motion for permanent custody of Nichole. Both of Nichole's parents have appealed the judgment of the trial court. Amy Brown has asserted four assignments of error; Marvin Brown asserts two, which will be addressed along with Amy's assignments, where appropriate.

MOTHER'S FIRST ASSIGNMENT OF ERROR

"The trial court committed reversible error by failing to enter a finding that the child cannot be place[d] with either of her parents within a reasonable time or should not be placed with her parents as required by Revised Code 2152.414(E)."

FATHER'S FIRST ASSIGNMENT OF ERROR

"The judgment of the trial court in granting permanent custody was against the manifest weight of the evidence and contrary to law."

FATHER'S SECOND ASSIGNMENT OF ERROR

"The trial court erred in granting appellee's motion for permanent custody and abused it's [sic ] discretion in sustaining the motion for permanent custody of the Marion County Children Services Agency in that the procedures of Ohio Revised Code 2151.414 were not followed."

A trial court conducting a hearing on a motion for permanent custody must follow the guidelines set forth in R.C. 2151.414. Pursuant to R.C. 2151.353(A)(4), the court may grant such a motion if two determinations are made. The court must determine by clear and convincing evidence, after a child has been found by the court to be neglected, dependent, or abused, that it is in the child's best interest to grant the movant permanent custody "and that any of the following apply":

"(1) The child is not abandoned or orphaned and the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents;

"(2) The child is abandoned and the parents cannot be located;

"(3) The child is orphaned and there are no relatives of the child who are able to take permanent custody." R.C. 2151.414(B)(1) through (3).

When determining what is in the child's best interest, R.C. 2151.414(D) mandates that the court consider "all relevant factors, including, but not limited to, the following":

"(1) The reasonable probability of the child being adopted, whether an adoptive placement would positively benefit the child, and whether a grant of permanent custody would facilitate an adoption "(2) The interaction and interrelationship of the child with his parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child;

"(3) The wishes of the child, as expressed directly by the child or through his guardian ad litem, with due regard for the maturity of the child;

"(4) The custodial history of the child;

"(5) 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."

Further, if the court has determined, based on R.C. 2151.414(B)(1), that a child cannot or should not be placed with the parents within a reasonable time (which would be the only appropriate finding in this case), the court must consider all relevant evidence, finding, by clear and convincing evidence, that one of eight conditions exists that would prohibit placement of the child with one of its parents.

The trial court, without designating which code sections it found applicable, noted that its decision was based on certain "factual findings," as follows: that Nichole's mother suffers from Schizo-affective disorder, borderline personality, and epilepsy, and therefore takes several psychoactive medications; that Amy "suffers from emotionality [sic ], depression and over[-]excitement, and would find it difficult to parent full time"; that Nichole's father has been incarcerated several times; that Marvin had "just terminated a volatile relationship" with Robin, which involved a charge of domestic violence; that neither parent had been able to maintain permanent housing; that neither parent had "developed a relationship" with the child; that "the parents have failed repeatedly and continuously for a period of six months or more to substantially remedy the conditions that cause[d] the child to be removed from the home"; that the parents visited Nichole "sporadically" while she was in foster care; and that Nichole is adoptable and needs "a legally secure placement to provide stability" in her life.

In general, a reviewing court may not reverse a trial court's judgment based on the weight of the evidence presented, since the judge, when acting as the trier of facts, is in the best position to weigh the evidence and evaluate the testimony. However, as we noted above, an R.C. 2151.414 permanent custody determination must be supported by clear and convincing evidence. See, e.g., In re Davis (June 3, 1994), Defiance App. Nos. 4-93-25 through 4-93-27, unreported, 1994 WL 240271. Clear and convincing evidence is more than a mere preponderance of the evidence. Rather, a petitioner must prove each of its allegations, clearly and convincingly, producing " 'in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.' " In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 18 OBR 419, 425, 481 N.E.2d 613, 620, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus. ¹

While the court's findings, supra, appear to coincide with several of the given statutory factors, our review of the record establishes that many of the court's "factual" conclusions are unsupported by the evidence. Further, the court drew no discernible conclusions from the noted "factual findings," but simply stated that "[w]hile each individual act of the parents in and of itself might not warrant a granting of permanent custody, the totality of the acts, and the pattern of the parent[s'] behavior over the three year period prior to the filing of the motion more than satisf[y] the court that permanent custody requirements have been met and permanent custody should be granted."

We conclude that parents' constitutional rights may not be abridged by such a cursory judgment. The court is required by the statute to find, by clear and convincing evidence, that certain criteria have been met, and the court must state those findings on the record, such that it is clear to all parties that the decision is supported by the facts. ² See R.C. 2151.353; R.C. 2151.414. See, e.g., In re Burrell (1979), 58 Ohio St.2d 37, 12 O.O.3d 43, 388 N.E.2d 738 (parent's conduct is significant only of it can be shown, by clear and convincing evidence, to have an adverse impact upon the child sufficient to warrant state intervention).

Moreover, it is evident from a review of the record and the judgment entry of the juvenile court that the court failed to make the requisite determinations of what is in Nichole's best interest. Rather, the court simply noted generally that Nichole "can be adopted quite readily," and that there existed "a great need for a legally secure placement to provide stability" in her life. There is no evidence that the court...