In Re Garner, Unpublished Decision (12-6-1999)
In Re Garner, Unpublished Decision (12-6-1999)
Opinion of the Court
OPINION
Appellant Tonya Garner appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, that granted permanent custody of her daughter, Monique Garner, to the Stark County Department of Human Services ("Agency"). The following facts give rise to this appeal. On September 4, 1996, appellant gave birth to her daughter. The father of the child is Mark Flowers. Two days after the child's birth, the Agency filed a complaint for permanent custody alleging Monique was a dependent child. In the complaint, the Agency alleged Monique's parents were not complying with a case plan, with respect to four of the couple's other children. The Agency also alleged the parents have a history of domestic violence and drug use. The trial court conducted a shelter care hearing on September 9, 1996. The magistrate ordered the child returned to appellant under the protective supervision of the Agency pending an evidentiary hearing on the complaint. Thereafter, the Agency filed a motion to set aside the order of the magistrate made at the shelter care hearing. The trial court conducted a hearing on the Agency's motion on September 25, 1996. The trial court sustained the Agency's motion and granted temporary custody to the Agency pending investigation of appellant's residence. If the residence was found to be appropriate, Monique was to be returned to appellant's residence. On October 4, 1996, the Agency filed a case plan which was the same case plan filed in case number JU-89069 concerning her four older brothers. The trial court conducted an adjudicatory hearing on November 18, 1996. At this hearing, appellant stipulated to a dependency finding and to a portion of the facts alleged in the complaint. The trial court found Monique to be a dependent child based on the facts to which appellant had stipulated. The Agency amended its complaint and requested temporary custody only. The trial court scheduled disposition for November 20, 1996. At this hearing, the trial court found neither parent had obtained adequate housing, domestic violence problems remained between the parties and appellant was in domestic violence counseling but Monique's father was not. The trial court granted temporary custody of the child to the Agency. The trial court conducted a review hearing, pursuant to the Agency's motion, on January 30, 1997. The trial court found appellant still had not obtained adequate housing. The trial court also noted new concerns of appellant's drug use and the fact that she had been terminated from Quest Recovery Services. The trial court ordered that Monique not be returned until appellant obtained adequate housing and resolved issues of her drug use. On August 1, 1997, the Agency filed a motion for permanent custody of Monique due to her parent's failure to comply with their case plan. The trial court conducted a hearing on this motion on November 4, 1997. At the hearing, the Agency withdrew its motion for permanent custody and instead proceeded on a motion to extend temporary custody. The trial court granted the Agency's motion until March 6, 1998. On January 22, 1998, the Agency filed a second motion to extend temporary custody. At the hearing on January 28, 1998, both parents agreed to an extension of temporary custody, with the Agency, until September 6, 1998. On April 28, 1998, appellant filed a motion for return of child. The trial court heard this motion on May 6, 1998. The Agency filed a second motion for permanent custody on July 29, 1998. The trial court conducted a trial on this motion on November 5, 1998. The trial court issued findings of fact and conclusions of law and a judgment entry, on January 14, 1999, granting permanent custody of Monique to the Agency. Appellant timely filed a notice of appeal and sets forth the following assignments of error:I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD CANNOT OR SHOULD NOT BE PLACED WITH THE APPELLANT WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A) (4) of section
(3) The parent committed any abuse as described in section
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
(5) The parent is incarcerated for an offense committed against the child or a sibling of the child;
(7) The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available to care for the child for at least eighteen months after the filing of the motion for permanent custody or the dispositional hearing;
(8) The parent is repeatedly incarcerated and the repeated incarceration prevents the parent from providing care for the child;
(9) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect;
We find the evidence introduced at the hearing supports the trial court's conclusion under R.C.
For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.
By: Wise, P.J. Hoffman, J., and Farmer, J., concur.
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