In re Brown, 2006 Ohio 2863 (Ohio App. 5/26/2006), 06CA4.

• Decision Date: 26 May 2006
• Docket Number: No. 06CA4.,06CA4.
• Citation: 2006 Ohio 2863
• Parties: In the Matter of: Corey Brown Courtney Brown Kyle Brown Ethan Brown.
• Court: Ohio Court of Appeals

Page 1

2006 Ohio 2863

In the Matter of: Corey Brown Courtney Brown Kyle Brown Ethan Brown.

No. 06CA4.

Court of Appeals of Ohio, Fourth District, Athens County.

Date Journalized: May 26, 2006.

Civil Appeal from Common Pleas Court, Juvenile Division.

Thomas L. Cornn, 8 North Court, Street, Suite 407, Athens, Ohio 45701, Counsel for Appellant Melissa Brown.

William R. Biddlestone, 8 North Court, Street, Suite 308, Athens, Ohio 45701, Counsel for the Children.

C. David Warren, Athens County, Prosecutor and George J. Reitmeier, Assistant Prosecutor, P.O. Box 1046, Athens, Ohio 45701, Counsel for Appellee Athens County Children Services.

DECISION AND JUDGMENT ENTRY

PER CURIAM.

{¶ 1} This is an appeal from an Athens County Common Pleas Court, Juvenile Division, judgment that awarded Athens County Children Services (ACCS) permanent custody of Corey Brown, born April 11, 1995, Courtney Brown, born September 7, 1996, Kyle Brown, born February 24, 1999, and Ethan Brown, born January 5, 2001.

{¶ 2} Appellant Melissa Brown, the children's natural mother, raises the following assignments of error for review and determination:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN VIOLATION OF MOTHER'S RIGHT TO DUE PROCESS BY ALLOWING THE INTRODUCTION OF TESTIMONY OBTAINED FROM PREVILEGED [SIC] COMMUNICATION BETWEEN MOTHER AND HER COUNSELOR."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PREDJUDICIAL [SIC] ERROR WHEN IT DENIED MOTHER'S MOTION FOR CONTINUANCE."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND VIOLATED MOTHER'S RIGHT TO DUE PROCESS OF LAW BY ADMITTING THE CASE NOTES OF NIKKI PEYTON."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT BASED ITS DECISION TO TERMINATE MOTHER'S PARENTAL RIGHTS BASED ON EVIDENCE NOT IN EXISTENCE AT THE TIME THE MOTION TO MODIFY DISPOSITION TO PERMANENT CUSTODY WAS FILED."

{¶ 3} On January 22, 2003, ACCS filed a complaint and alleged the children to be neglected and dependent. On March 4, 2003, the trial court adjudicated the children dependent and awarded ACCS temporary custody.

{¶ 4} ACCS unsuccessfully attempted to reunite the children with appellant and their father. The children's parents have a history of domestic violence that they do not hide from the children. The children are afraid of their father and the trial court issued an order to prohibit the father from having contact with the children or with appellant. Each time the children returned home, ACCS eventually had to again seek their custody. Thus, since January of 2003, the children have been in ACCS's temporary custody three times. On June 30, 2005, ACCS filed a motion for permanent custody.

{¶ 5} On August 26, 2005, the guardian ad litem filed her report and related that ACCS removed the children after attempted reunification due to domestic violence, physical abuse, emotional abuse, alcohol abuse, and failure to comply with the case plan. She opined that the Brown home is unsafe for the children due to alcohol abuse, domestic violence, physical abuse and verbal abuse. The children have witnessed their father assault their mother and stated that the mother "was as mean as dad when she was drinking." She stated that "[t]he children have intense behavioral and anger problems as a result of being exposed to repeated acts of violence; some of the behaviors have abated since they have been in foster care, but all foster parents report the children still have anger issues."

{¶ 6} On August 22, 2005, appellant requested to continue the permanent custody hearing. She asserted that because the court did not appoint her counsel until July 18, 2005, counsel needed additional time. At a hearing regarding the motion, counsel contended that he had insufficient time to familiarize himself with the case and to provide effective representation.

{¶ 7} ACCS opposed appellant's motion noting that one of its witnesses, who resides in Kentucky and attends law school, would suffer a hardship if the court continued the case. It also stated that other witnesses had cleared their calendars to appear at the hearing.

{¶ 8} The trial court noted that the case has been pending since January of 2003 and found that appellant must bear "a significant portion of the responsibility for not contacting her newly appointed counsel any earlier." The court found that appellant had the burden to maintain contact with her attorney. The court decided to grant appellant's counsel leeway as the hearing proceeded, but denied her request for a continuance. The court noted that if the need arose for a recess, it would grant one.

{¶ 9} At the permanent custody hearing, ACCS questioned appellant regarding her counseling. Appellant objected and argued that communications between her and her counselor are privileged. The trial court did not permit ACCS to delve into certain areas, such as childhood events, but stated that the relevant questions are whether she attended counseling and if she progressed.

{¶ 10} ACCS asked appellant whether she abused cocaine. She stated, "I've used it a couple of times but I never abused it." The following colloquy then occurred:

Q. There was a time when you used cocaine almost daily for a three or four month period isn't there?

A. No, not everyday. It was years ago.

Q. That was in the year 2003 wasn't it.?

A. Years ago.

Q. Pardon me?

A. Yes. Years ago.

Q. The year 2003?

A. Yes.

Q. And you say you didn't use it daily but you used it quite frequently almost daily for a hree or four month period in 2003 didn't you?

A. Some. I don't recall it's been too long."

{¶ 11} Appellant's former neighbor testified that he witnessed one of appellant's children, clothed in a diaper, walking around the apartment complex and almost reach the state highway. He also claimed that one of her children used scissors to let air out of his vehicle's tire. He stated that he would see her sitting and drinking alcohol while the children ran around. He did not think she supervised them properly.

{¶ 12} On December 29, 2005, the trial court awarded ACCS permanent custody. The court did not allow ACCS to introduce appellant's records from her counseling sessions "because [they] contain confidential communications that exceed the intended scope of the written releases." The court determined that permanent custody serves the children's best interests. The court also considered the children's interactions and interrelationships:

"All of these children have suffered as a result of a home life with their parents that regularly included domestic violence, abuse, and substance abuse. With good reason, they all fear their father. Melissa, the mother, also fears David, the father, again, with good reason. Mother and father have a history of separating and divorce proceedings. Mrs. Brown's heart may be in the right place, but she has been wholly unsuccessful in regaining appropriate parental control of these children. The children have modeled and demonstrated their father's anger and violent behaviors. All relationships are strained.

By contrast, when outside the home the boys have a reasonable relationship with each other. However, the boys are mean to their sister beyond any acceptable level. The children have established appropriate relationships with their respective foster families and are benefitting from the counseling which they now receive regularly. It may be necessary to place the children separately for adoption.

While it is not necessary for the court to state reasons why these children cannot and should not be reunited with a parent in the future, it is important to point out the lack of genuine commitment demonstrated by the parents. At the very time that this case was approaching hearing on the critical motion to modify disposition to permanent custody, mother `met' a man through the internet and moved to Hamilton, Ohio, some three hours from Athens County. In an effort to justify this decision she explained that the move was based upon better employment opportunities. At the time of the last hearing in this matter, mother had held three different jobs in Hamilton, including motel housekeeper and convenience store clerk, the highest paying of which paid eight dollars an hour. Additionally, this move made impossible any regular consistent visitation and was obviously inconsistent with any realistic plan for reunification.

Father moved in with a family (husband, wife, son and daughter) and is the new `boyfriend' of the family's daughter, age nineteen."

{¶ 13} The court next considered the children's wishes:

"Because of their mental issues and immaturity, little weight should be place[d] on the wishes of the children. Their statements in this regard have varied. They love their mother and fear their father. They are very confused and often evidence anger."

{¶ 14} Regarding the children's custodial history, the court stated:

"All the children have lived in agency care for twelve or more months of a consecutive twenty-two month period. Multiple strategic efforts to reunite the family have failed. Prior to this court's involvement (which commenced in January 2003), the parties were already in divorce court. Prior to that, the children lived primarily with their mother and father.

Mother admits to using cocaine `almost daily' for a two to three month period in 2003 even though ACCS * * * had just receive temporary custody of her children and she was subject to the requirements of a case plan.

Using March 4, 2003, (the date of adjudication of dependency) as a start date and January 3, 2005, as the end date, the children have been in agency custody and care as follows:

All four children were in agency foster care the months of March, April, May, June, November and December of 2003 and January, March, April, May and June of 2004, at which time Courtney returned to mother's home. Cory remained in care during July and August of 2004...