In re T.C.K.

• Decision Date: 12 August 2013
• Docket Number: Case No. 13CA3
• Citation: 2013 Ohio 3583
• Parties: IN THE MATTER OF: T.C.K.
• Court: Ohio Court of Appeals

2013 Ohio 3583

IN THE MATTER OF: T.C.K.

Case No. 13CA3

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

RELEASED: August 12, 2013

DECISION AND JUDGMENT

ENTRY

APPEARANCES:

Amanda Keys, St. Marys, West Virginia, Pro Se Appellant.

Hoover, J.

{¶ 1} Amanda Keys, the natural mother of T.C.K., appeals the trial court's decision that awarded legal custody of her child to April King, the child's paternal aunt. Appellant, appearing pro se, does not set forth assignments of error in accordance with the Appellate Rules. We have attempted to discern some cognizable assignments of error from the litany of Juvenile Rules that appellant cites. None of the cognizable assignments of error have merit. Accordingly, we overrule appellant's assignments of error; and we affirm the trial court's judgment.

I. FACTS

{¶ 2} On or about November 24, 2009, the trial court adjudicated T.C.K. a dependent child and ordered the child to remain in appellant Amanda Key's legal custody under the protective supervision of Washington County Children Services's (WCCS). On April 16, 2010, the court terminated the order of protective supervision and placed the child in appellant's legal custody.

{¶ 3} On April 26, 2012, April King, the child's paternal aunt, filed a petition for custody of the child.

{¶ 4} The court subsequently appointed a guardian ad litem for the child. The guardian ad litem recommended that the court award King legal custody of the child.

{¶ 5} On December 14, 2012, the trial court determined that awarding King legal custody of the child would serve the child's best interests. In reaching its decision, the court set forth the following facts:

[T.C.K.] is a 5 ½ year old boy currently in the temporary custody of his paternal aunt, April King. Ms. King filed for custody on April 26, 2012, and this Court granted her temporary custody on April 27, 2012. At the time of her filing, Ms. King had physical custody of [the child] for at least a week after she picked the child up for an overnight visit and the parents never came back for him.

This was not the first time that [the child] had lived with his aunt. He lived with her from August 23, 2007, to April 11, 2009, due to both parents being charged with and later convicted of felony charges in West Virginia relating to the manufacturing of methamphetamine. West Virginia Children Services as a result of the charges placed [the child] with Ms. King. Rodney King [the child's father] served approximately 2 years in prison on that charge and [appellant] served 120 days in the county jail along with 5 years community control. After Mr. King's release from prison, the parents reconciled and [the child] returned to their home in Newport, Ohio. The family resided in Newport, Ohio from April2009 until June of 2012. During this time the child moved back and forth between Ms. King, the paternal grandparents and his parents. Between Christmas 2011 and April 2012, when Ms. King obtained temporary custody, the child resided with Ms. King a majority of the time.

The parents over the years failed to keep the child's shots current. He hadn't been to his pediatrician for 3 years prior to Ms. King obtaining temporary custody. They also failed to provide proper dental care for him. He had a cavity that they neglected for 6 months to have filled which caused him pain when eating. Ms. King has brought all shots current and had his cavity filled.

Accordingly, [sic] to the testimony of family, neighbors and their landlord, the parents fought regularly. They could be heard yelling and screaming at each other all hours of the day. The children were generally present during these fights. Some of the fights involved physical violence between the parents.

In May 2012 the utilities to the parents' home were disconnected and in June they were evicted. After being evicted, the parents and the other two children lived in tents during June and July 2012 in West Virginia, before moving into a house in West Virginia. [The child] visited his parents during the time they lived in the tents. During one of the visits on July 21, 2012, the child was injured during a fight between his parents. His father was hitting his mother and when he stepped between them his father hit him in the head. The child reported this to Ms. King whoimmediately took him to the hospital because he was complaining of headaches. West Virginia Children Services was contacted and an investigation was undertaken. As a result of their investigation, [the child's] two half brothers were removed from the custody of their mother, Amanda Keys by West Virginia authorities and placed in foster care on August 1, 2012. [The child] was not removed since he was in the temporary custody of April King and they were satisfied with his placement since they had placed him with Ms. King back in 2007 to 2009 when the parents went to jail and prison on the drug charge. The worker testified that if [the child] were returned to his parents by this Court that they would immediately file for emergency removal of him. The removal of the two boys by West Virginia was as a result of concerns of domestic violence, physical and verbal abuse of all 3 children, and drug usage by both parents in the presence of the children. As of this date, [the child's] half brothers still remain in foster care in West Virginia.

At the time of the child's placement in the temporary custody of April King in April 2012 his behavior was terrible. He was a very violent and angry child. He was afraid his parents would return and take him away. He was scared by the thought of going with them. He would hit and cuss at people and talk about sex. He knew more about sex than a 5 year old should. Ms. King placed him in counseling. He sees a counselor one time per week and is now on Adderall. His behavior as a result of the counseling is much better now, although he still has some anger issues.

According to the child's guardian ad litem's testimony in Court and in his report, the child is scared by the thought of going back to his parents and told the guardian ad litem they are mean. He told the guardian ad litem that he desires to live with his aunt and stated that he would run away if he were returned to his parents.

The guardian ad litem believes it would be in the best interest of [the child] to be placed in the legal custody of his paternal aunt given all the issues with his parents and the fact that he is bonded with April King and she can provide a stable environment for the child.

{¶ 6} The court determined that the parents are unsuitable and that placing the child in the parents' custody would not be in the child's best interests. The court concluded that awarding King legal custody of the child would serve his best interests. The court thus awarded King legal custody. Appellant timely appealed the trial court's judgment.

II. ASSIGNMENTS OF ERROR

{¶ 7} Appellant has not raised any assignments of error that comply with the appellate rules. Instead, she lists eleven Juvenile Rules preceded by "Trial Court er [sic]" or "Receiving agency er [sic]." We ordinarily afford considerable leniency to pro se litigants and do not necessarily hold them to the same standards as attorneys. E.g., State v. Ritchie, 4th Dist. No. 10CA20, 2011-Ohio-164, ¶5; Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846 N.E.2d 878, ¶5 (4th Dist.); Whittington v. Kudlapur, 4th Dist. No. 01CA1, 2001-Ohio-2525. However, we will not "conjure up questions never squarely asked or construct full-blown claims from convoluted reasoning." Stateex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206, 614 N.E.2d 827 (1992). We will consider a pro se litigant's appellant's brief so long as it "contains at least some cognizable assignment of error." Robb at ¶ 5; accord Coleman v. Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, ¶14 (consideringpro se litigant's brief when it contains "some semblance of compliance" with appellate rules of practice and procedure).

{¶ 8} In the case sub judice, we are tempted to dismiss this appeal based upon appellant's failure to comply with the appellate rules and to identify any cognizable assignment of error. Appellant's listing of a variety of Juvenile Rules does not tell us precisely how she believes the trial court erred when applying the rules. However, we have liberally construed appellant's brief and believe some assignments of error can be surmised. We explain and discuss each one below.

III.ANALYSIS

A.LACK OF TRANSCRIPT

{¶ 9} Before considering appellant's assignments of error, we first note that the record does not contain a transcript of the custody hearing. Although appellant requested a transcript of the proceedings, the court reporter filed an affidavit in which he alleged that he could not transcribe the proceedings due to a malfunction in the recording.

{¶ 10} App.R. 9(C) specifies the procedure an appellant may follow when a transcript is unavailable: "If no recording of the proceedings was made, if a transcript is unavailable, or if a recording was made but is no longer available for transcription, the appellant may prepare a statement of the evidence or proceedings from the best availablemeans, including the appellant's recollection." In Knapp v. Edwards Laboratories, the court set forth the consequences of failing to provide a transcript or a statement of the evidence: "When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

{¶ 11} In the case at bar, without a transcript of the custody hearing or a statement of the evidence, our review of appellant's assignments of error is limited. Absent an adequate record of the facts, testimony, and evidentiary matters necessary to support appellant's assignments of error, we have...