In re Haller, 2009 Ohio 545 (Ohio App. 2/9/2009), 16-08-16.
| Decision Date | 09 February 2009 |
| Docket Number | No. 16-08-16.,16-08-16. |
| Citation | 2009 Ohio 545 |
| Parties | In the Matter of: Kayden Haller Adjudicated Dependent Child [Brandon Haller, Appellant] |
| Court | Ohio Court of Appeals |
Appeal from Wyandot County Common Pleas Court, Juvenile Division, Trial Court No. C 2062009.
Judgment Affirmed.
Howard A. Elliott, for Appellant.
Jonathan K. Miller, for Appellee.
{¶1} Father-appellant, Brandon Haller (hereinafter "Brandon"), appeals the Wyandot County Court of Common Pleas judgment granting permanent custody of his son, Kayden Haller (D.O.B. 06-06-05) (hereinafter "Kayden"), to the Wyandot County Department of Job and Family Services (hereinafter "WCDJFS"). For the reasons that follow, we affirm.
{¶2} On March 30, 2006, WCDJFS filed a complaint pursuant to R.C. 2151.04(C) alleging that Kayden was a dependent child because his condition and environment warranted the State to assume guardianship. (Doc. No. 1). The complaint alleged that Kayden's mother, Cindy Patterson (hereinafter "Cindy"), who was under WCDJFS' protective supervision herself, was unable to adequately provide for Kayden. (Doc. No. 1, Attached Statement of Facts). The complaint further indicated that Brandon was unable to care for Kayden because he was incarcerated. (Doc. No. 1). WCDJFS attached to the complaint an affidavit in support of an ex parte order to place Kayden in its temporary care and custody. (Id.). The trial court sua sponte appointed a guardian ad litem ("GAL") for Kayden, sent notice of hearings, and summoned both Cindy and Brandon. (Doc. Nos. 4-7).
{¶3} On March 31, 2006, the trial court issued an ex parte order awarding WCDJFS temporary custody of Kayden. (Doc. No. 8). Also on March 31st, the State filed a precipe with the clerk requesting that Brandon be served with a copy of the complaint and notice of initial appearance, adjudication, and disposition at his supposed place of incarceration. (Doc. No. 13). The clerk issued the order to serve Brandon that same day. (Doc. No. 14).
{¶4} On April 6, 2006, a notice of failure of service ("refused") on Brandon was filed. (Doc. No. 18). On April 13, 2006, the State filed a second precipe with the clerk requesting that Brandon be served with the same documents, this time providing a different place of incarceration. (Doc. No. 20). A return receipt was filed with the trial court on April 18, 2006. (Id., Attached).
{¶5} On May 22, 2006, adjudication was held with both Cindy and Brandon present. (June 22, 2006 JE, Doc. No. 32). Cindy and Brandon entered pleas of admission to the dependency complaint, and the trial court found Kayden to be dependent. (Id.). The parties waived bifurcation, and the matter immediately proceeded to disposition. (Id.). The trial court ordered that Kayden continue to be placed in foster care with Cindy and remain in WCDJFS' temporary custody. (Id.). The trial court also ordered that Brandon follow the case plan goals, including that he be evaluated for drug and alcohol abuse, anger management, and complete a parenting program. (Doc. No. 32).
{¶6} Thereafter, the matter proceeded with various amended case plans. Ultimately, however, WCDJFS filed a motion for permanent custody pursuant to R.C. 2151.413 on March 5, 2008. (Doc. No. 62). The motion alleged that Cindy failed to meet case plan objectives and that Brandon was incarcerated and unable to provide for Kayden. (Id., Attached Statement of Facts). That same day, the State filed a precipe with the clerk seeking personal service of the motion, notice of hearing, and notice of rights upon Cindy and Brandon. (Doc. No. 63). A return receipt for Brandon was filed with the trial court on March 13, 2008. (Id., Attached).
{¶7} On April 21, 2008, a hearing on the motion was held, but Brandon was not present at the hearing but was only represented by counsel. (Apr. 21, 2008 Tr. at 4). The court heard testimony from several of the department's witnesses; however, the court could not complete the hearing that day due to time constraints and continued the matter for further hearing on June 9, 2008. (Doc. No. 81).
{¶8} On June 9, 2008, the motion hearing recommenced, again without Brandon present but with his attorney present. (June 9, 2008 Tr. at 3); (July 3, 2008 JE, Doc. No. 86). At this hearing, Cindy consented to the motion for permanent custody and surrendered her parental rights. (Id. at 4-5); (July 3, 2008 JE, Doc. No. 86). The trial court, thereafter, found that it was in Kayden's best interest that WCDJFS' motion for permanent custody be granted as to Cindy. (Id. at 11); (July 3, 2008 JE, Doc. No. 86). However, with respect to Brandon, the trial court provided him two weeks to decide whether he wanted a further hearing or was willing to consent to the motion. (Id. at 12-13); (July 3, 2008 JE, Doc. No. 86).
{¶9} On July 31, 2008, again the motion hearing recommenced, this time with Brandon and his counsel present. (July 31, 2008 Tr. at 4); (Aug. 11, 2008 JE, Doc. No. 90). On August 11, 2008, the trial court granted WCDJFS' motion for permanent custody and terminated Brandon's parental rights. (Doc. No. 90).
{¶10} On August 20, 2008, Brandon filed his notice of appeal. Brandon now appeals the trial court's grant of permanent custody and termination of his parental rights asserting three assignments of error.
THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN THAT THE DECISION OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BY VIRTUE OF THE FACT THAT THE TRIAL COURT DID NOT SPECIFICALLY AND ADEQUATELY CONSIDER ALL THE RELEVANT FACTORS REQUIRED BY THE OHIO REVISED CODE AS A PREDICATE TO THE GRANTING OF A MOTION FOR PERMANENT CUSTODY.
{¶11} In his first assignment of error, Brandon argues that the trial court failed to specificallyaddress and adequately consider each of the R.C. 2151.414(D) factors in making its "best interests" determination. As such, Brandon argues that the trial court's decision "was in error as a matter of law." (Appellant's Brief at 9).
{¶12} The State, on the other hand, argues that the trial court provided "some affirmative indication" that it had considered the R.C. 2151.414(D) factors because the trial court specifically stated it had in its judgment entry. The State argues that our precedent establishes that this is sufficient to comply with the statute. Furthermore, the State argues that it is clear that the trial court considered these factors, though it did not specifically identify them, when the judgment entry is reviewed and compared with the factors. We find that the trial court's judgment complied with R.C. 2151.414(D) and was not contrary to law.
{¶13} Pursuant to R.C. 2151.413, an agency that has been granted temporary custody of a child that has not been abandoned or orphaned may seek permanent custody of that child. R.C. 2151.414(B) permits permanent custody to be granted if the agency has shown by clear and convincing evidence that such action is in the "best interests of the child," and that any of the factors in division (B)(1) apply. In re Jackson, 3d Dist. No. 5-03-25, 2004-Ohio-542, ¶6. The trial court here found that Kayden was in WCDJFS' temporary custody for twelve or more months of a consecutive twenty-two month period under R.C. 2151.414(B)(1)(d). Brandon does not dispute this finding.
{¶14} Brandon argues that the trial court erred by failing to adequately consider the R.C. 2151.414(D) "best interests" factors. We disagree. To determine whether granting permanent custody to the agency is in the `best interests of the child,' R.C. 2151.414(D) provides a non-exclusive list of factors for the trial court to consider:
(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers 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 divisions (E)(7) to (11) of this section apply in relation to the parents and child.
As this Court has stated before, "[i]n rendering its judgment, the trial court must either specifically address each of the required considerations set forth in R.C. 2151.414(D) in its judgment entry, or otherwise provide some affirmative indication in the record that the court has considered the specific factors listed in R.C. 2151.414(D)." In re Robinson, 3d Dist. No. 1-08-24, 2008-Ohio-5311, ¶30, citing In re McMillin, 171 Ohio App.3d 686, 2007-Ohio-2046, 872 N.E.2d 975, ¶12 (emphasis in original).
{¶15} The trial court here specifically stated in its judgment entry that it "* * * considered the factors set forth in Section 2151.414 of the Ohio Revised Code * * *." (Aug. 11, 2008 JE, Doc. No. 90). Furthermore, although the trial court did not specifically reference its findings of fact to the applicable R.C. 2151.414(D) factors, its findings of fact provide "some affirmative indication" that it properly considered them.
{¶16} With regard to R.C. 2151.414(D)(1) as it applied to Brandon, the trial court found that:
The Department presented the testimony of Ms. McGee, who advised the Court of the relationship between Kayden and his father, the father's non-compliance with the Case Plan goals, his criminal record and his present incarceration. Ms. McGee further advised there was no other appropriate family member,...
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