In Re mcmillen/hough Children, Unpublished Decision (11-1-1999)
In Re mcmillen/hough Children, Unpublished Decision (11-1-1999)
Opinion of the Court
OPINION
Appellant Annie Hough appeals the decision of the Stark County Court of Common Pleas, Family Court Division, which granted permanent custody of two of her children to the Stark County Department of Human Services ("SCDHS"). The pertinent history of the case is as follows: On February 15, 1996, the Stark County Family Court found appellant's children, Alisha McMillen, born October 23, 1991, and Angel Hough, born September 5, 1994, to be neglected. The court granted SCDHS temporary custody at that time. On August 19, 1997, SCDHS filed for permanent custody. The court heard evidence on the permanent custody motion on March 12, 1998, May 20, 1998, and June 18, 1998. Christopher McMillen, the signer of Alisha's birth certificate, was a party to the proceedings. The alleged father of Angel, Clinton McCauley, did not participate. On December 18, 1998, the trial court filed its findings of fact and conclusions of law, and issued a judgment entry granting permanent custody of Alisha and Angel to SCDHS. Appellant timely appealed and herein raises the following two Assignments of Error:I THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH 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 CHILDREN WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
Appellant's first and second assignments of error both concern whether the trial court's decision is supported by the manifest weight and sufficiency of the evidence.
In her first assignment of error, appellant contends the trial court's conclusion that the minor children could not be placed with her within a reasonable amount of time is against manifest weight and sufficiency of the evidence. Appellant maintains, in her second assignment of error, the trial court's conclusion that the best interest of the children would be served by the granting of permanent custody to SCDHS is also not supported by the manifest weight and sufficiency of the evidence. We disagree with both assignments of error. As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction (1978),
I The relevant statute, as written at the time of the permanent custody action in the case sub judice, is R.C.
(1) The child is not abandoned or orphaned and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents;
(2) The child is abandoned and the parents cannot be located;
(3) The child is orphaned and there are no relatives of the child who are able to take permanent custody.
* * *
In her first assignment of error, appellant challenges the trial court's conclusion, under R.C.
(1) Following the placement of the child outside his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the child to be placed outside his home. * * *
* * * (12) Any other factor the court considers relevant.
We find the evidence introduced at the hearing supports the trial court's conclusions under R.C.
Q. On her second occasion, how did she interact with her children?
A. I believe with the second involvement in the parenting program, the visitations were not real positive.
Q. Can you elaborate on that, please.
A. Uh huh, yes, Annie was observed walking up and down the halls at the beginning of the visit possibly in search of someone who's coming to the visits. She often looked for other staff members or other visitors to help her in the cafeteria with the children. She also allowed visitors to come into the program against the wishes of the case worker, or without permission, from her case worker. T. at 38-39.
Regarding the third objective of the case plan, psychologist Gerald Bello, SCDHS's expert witness, testified to the results of his 1996 evaluation of appellant. He indicated that appellant's personality test results demonstrated a "sawtooth" pattern, which "identif[ied] random responding and defensiveness in presentation." T. at 18-19. When questioned regarding his conclusions of appellant's competency to parent, he stated as follows: A Yeah, I think I can state a fair amount of certainty, I think if you look at the intake and you combined history in terms of previous relationships and involvements and stuff like that, concerns that are raised whether she accepted responsibility for them, or not, and then intelligence level and some of the defensiveness on the profile, my sense was that she would have a very difficult time parenting effectively, because of a couple factors.
T. at 20.
Dr. Bello's assessment of appellant's I.Q. was a score of 77, which he considered in the borderline range. T. at 25. Turning to the remainder of the case plan, the transcript reveals that although appellant fared better in the joint counseling process, appellant did not complete her recommended individual counseling. T. at 82. Appellant attributed this to her inability to pay. T. at 194. Additionally, caseworker Thorpe scheduled forty visits for appellant and her children in 1996 and 1997 (exclusive of those arranged through Goodwill). Of these, appellant failed to show, canceled, or was late for seventeen visits. T. at 78. Although appellant attributed these problems to transportation difficulties and miscommunication, it is well established that the trier of fact is in the best position to weigh evidence and evaluate testimony. See, In re Brown (1994),
(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents 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;
(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.
A review of the record indicates that although both children demonstrated some attachment to appellant, they likewise showed an attachment and positive interaction with other relatives and third parties. T. at 234-35. Caseworker Thorpe testified that both children were adoptable and in a placement with foster parents who had expressed a desire to adopt. T. at 235-36. Thorpe further expressed doubt that appellant would ever be able to provide the stability warranted for the children. T. at 238. As discussed supra, appellant demonstrated ongoing difficulty in obtaining stable housing throughout the duration of the case, a factor which is clearly relevant in a "best interests" analysis. Finally, it is uncontroverted that the recommendation of the guardian ad litem urged that the trial court grant permanent custody to SCDHS. Judgment Entry at 23. "The discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned." In re Awkal (1994),
For the reasons stated in the foregoing, the decision of the Court of Common Pleas, Family Court Division, Stark County, Ohio, is affirmed.
By Farmer, J. Gwin, P.J. and Reader, V. J. concur.
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