Schmidt, In re

• Decision Date: 13 August 1986
• Docket Number: Nos. 85-473,85-489 and 85-496,s. 85-473
• Citation: 25 Ohio St.3d 331,496 N.E.2d 952,25 OBR 386
• Parties: , 25 O.B.R. 386 In re SCHMIDT et al.
• Court: Ohio Supreme Court

Page 331

25 Ohio St.3d 331

496 N.E.2d 952, 25 O.B.R. 386

In re SCHMIDT et al.

Nos. 85-473, 85-489 and 85-496.

Supreme Court of Ohio.

Aug. 13, 1986.

This opinion consolidates three appeals taken from the Court of Appeals for Cuyahoga County, which affirmed an order of the Court of Common Pleas of Cuyahoga County, Juvenile Division, that (1) terminated the parental rights of Donna Smith, Robert D. Smith, Sr., and John Schmidt, and (2) placed Lisa and Tammy Schmidt and Robert Smith, Jr. (the natural children of Donna Smith) in the permanent custody of the Cuyahoga County Welfare Department.

Donna was married to John Schmidt, and her daughters, Lisa (born on May 28, 1974) and Tammy (born on March 26, 1976), are the natural children of Schmidt. Donna divorced Schmidt and subsequently married Robert D. Smith, who is the natural father of Robert Smith, Jr. (born on March 14, 1981). On October 27, 1981, Donna took her two daughters and, later, her son was also taken, to Cleveland Metropolitan General Hospital because she suspected that her husband, Robert, Sr., had sexually abused the children. The children were admitted to the hospital. On November 10, 1981, the Cuyahoga County Welfare Department filed complaints alleging that the children were neglected and that Lisa Schmidt had been abused by her stepfather. At the same time, a motion for immediate temporary custody was filed by the welfare department and, as a result, all three children were committed to its temporary care and custody.

On February 12, 1982, after a hearing before the juvenile court, Lisa and Tammy Schmidt and Robert Smith, Jr. were adjudged neglected. The welfare department's temporary custody of the children was continued, and an initial reunification plan submitted by the department was approved by the court. On March 12, 1982, the welfare department prepared a comprehensive reunification plan, which was approved by the court on November 1, 1982. Following the February 1982 custody determination, Robert Smith, Sr. and Donna Smith were referred to a community health center for counseling. Robert, Sr. received counseling from April 1, 1982 until January 21, 1983. On February 3, 1983, he was ordered imprisoned for a term of two to five years following his conviction on a guilty plea to a charge of gross sexual imposition (which charge was based upon the sexual abuse of his stepdaughter, Lisa). Donna Smith received counseling from August 1982 until January 6, 1983, when she terminated the counseling sessions. Donna subsequently was referred to parenting classes, which she attended sporadically.

On August 1, 1983, the Cuyahoga County Welfare Department filed a motion in the Court of Common Pleas of Cuyahoga County, Juvenile Division, seeking permanent custody of Lisa and Tammy Schmidt and Robert Smith, Jr. Shortly thereafter, on the advice of a social worker, Donna Smith obtained a divorce from Robert Smith, Sr. On November 16, 1983, William F. and Goldie Smith, the parents of Robert Smith, Sr., filed a motion to intervene in the custody proceeding in an effort to prevent the welfare department from obtaining permanent custody of their grandson, Robert Smith, Jr. This motion to intervene was denied on the grounds that the grandparents were "not parties to [the] action."

Hearings on the welfare department's motion for permanent custody were held November 4, and December 12 and 13, 1983; and, both Robert Smith, Sr. and Donna Smith appeared with the benefit of separate counsel at those hearings. John Schmidt, who had not provided any support for his daughters and whose whereabouts were unknown, was provided with notice by publication, but he did not appear at the hearings.

On December 23, 1983, the juvenile court granted the welfare department's motion for permanent custody. The court effectively found that although the welfare department had made a good faith effort to implement a family reunification plan, Robert Smith, Sr. and Donna Smith had not demonstrated an ability to provide a safe and healthy environment for their children. The court held that Lisa and Tammy Schmidt and Robert Smith, Jr. were "neglected and/or dependent children" whose best interests would be served if they were "permanently removed from the care and custody of the[ir] parents."

The grandparents of Robert Smith, Jr., William and Goldie Smith, appealed from the denial of their motion to intervene in the custody proceedings; and, Robert Smith, Sr. and Donna Smith individually appealed from the termination of their parental rights. The court of appeals affirmed the juvenile court's judgment as to all the appellants.

The cause is now before this court pursuant to the allowance of motions to certify the record.

Coltman, Ebert & Valore Co., L.P.A., and Andrew D. Bemer, Jr., Fairview Park, for appellee Cuyahoga County Dept. of Human Services.

Spiegelberg & Baich, Wilhelm G. Spiegelberg II and Dale A. Baich, Cleveland, for appellant Donna J. Smith.

Robert C. Kreps, Fairview Park, for appellant Robert D. Smith, Sr.

John H. Lawson and Bruce Tyler Wick, Cleveland, for appellants-intervenors William F. Smith and Goldie Smith.

Maria A. Smith, Cleveland, urging reversal for appellant Donna J. Smith, for amicus curiae Institute for Child Advocacy.

Harris & Papcke and Mary E. Papcke, Cleveland, urging reversal, for appellant Donna J. Smith, for amicus curiae Women Together, Inc.

PER CURIAM.

Each of the appellants herein raises an issue or issues that will be addressed in this opinion. First, Robert D. Smith, Sr. contends that the juvenile court order that permanently terminated his parental rights with regard to his son, Robert Smith, Jr., was not supported by clear and convincing evidence. The juvenile court was required to determine (1) whether the welfare department had made a "good faith effort" to implement a family reunification plan, R.C. 2151.414(A)(1); (2) whether the parent had "acted in such a manner that the child is a child without adequate parental care, and will continue to act in the near future in such a manner that the child will continue to be a child without adequate parental care," R.C. 2151.414(A)(2); and (3) whether it was "in the best interest of the child to permanently terminate parental rights," R.C. 2151.414(A)(3). Upon consideration of the answers to the foregoing questions and of the child's custodial history, the juvenile court was authorized to grant permanent custody of Robert Smith, Jr. to the welfare department if clear and convincing evidence supported a finding that Robert, Jr. was (at the time of the hearing) and would continue to be (in the near future) "a child without adequate parental care." R.C. 2151.414(B).

We believe that clear and convincing evidence does support the order terminating Robert Smith, Sr.'s parental rights. The record reveals that, pursuant to the Cuyahoga County Welfare Department's family reunification plans, Robert, Sr. received a variety of services--including evaluation of, and counseling for, his alcoholism. These services continued up until Robert, Sr.'s incarceration following his conviction of gross sexual imposition; and, even after Robert, Sr.'s imprisonment, a county social worker contacted the prison's social worker in order to supply information regarding Robert, Sr.'s background and need for continued support services.

In spite of the services provided to Robert, Sr., he was unable to control his alcoholism; and, after his son and stepdaughters were removed from his home, he continued to physically abuse his wife, causing her to seek shelter in a home for battered women in February and June-July 1982. Robert, Sr.'s son, Robert Smith, Jr., was removed from his parent's custody in 1981 at the age of eight months, and he apparently has lived with only one set of foster parents during the time that he has been in the custody of the welfare department. Robert, Jr.'s prospects for adoption were described as "excellent."

The foregoing evidence satisfies the requirement that "clear and convincing evidence" support a termination of parental rights. The record reveals that Robert, Sr. was an alcoholic, who could not control his abuse of alcohol. Robert, Sr. sexually abused his stepdaughters; and he physically abused his wife, ¹ even after his stepdaughters and son had been removed from Robert, Sr.'s home as a result of his behavior. Robert, Sr.'s counselors did not believe that he would be able to control either his alcoholism or his abusive behavior in the near future. As such, Robert Smith, Jr. properly was adjudged "a child without adequate parental care," and Robert Smith, Sr.'s parental rights properly were terminated.

The second appellant herein, Donna Smith, also contends that the order terminating her parental rights was not supported by clear and convincing evidence. We disagree with this contention.

Like Robert Smith, Sr., Donna Smith received a variety of services as a result of the implementation of the welfare department's family reunification plans. The record reveals, however, that Donna was less than diligent in her utilization of the available services. In January 1983, Donna Smith terminated counseling sessions that had focused on her inability to protect her children from the abusive conduct of her husband. Later, Donna was referred to parenting classes; but, as noted by the juvenile court, she attended only eleven of the twenty classes, made little progress, and was found to have tremendous emotional needs that took precedence over her desire to provide parental care.

Donna Smith did regularly exercise her right to visit once monthly with her children, and she demonstrated love and affection towards them. The record is clear, however, that Donna was desirous of reuniting with Robert, Sr. upon his release from prison. Donna was diagnosed at a community mental health center as having "adjustment disorder with anxiety and a personality problem with passive features," and a...