In Re J.T., Unpublished Decision (10-15-2004)
In Re J.T., Unpublished Decision (10-15-2004)
Opinion of the Court
{¶ 2} We conclude that the findings the trial court made necessarily imply that the children were in the custody of the GCCSB agency at least twelve months out of a consecutive twenty-two month period ending on or after March 18, 1999, which finding, together with the trial court's finding that it is in the best interests of the children that their custody be awarded to the GCCSB, for which finding there is support in this record, provides an independent basis for the award of permanent custody to the GCCSB, pursuant to R.C.
{¶ 4} Due to the disruption in the children's lives, Sweitzer contacted the Greene County Children's Services Board (GCCSB) through the police and brought J.T. and N.T. to GCCSB in June, 2001. The Greene County Court of Common Pleas, Juvenile Division, granted an emergency order of custody of J.T. and N.T. to GCCSB. After a hearing, the trial court temporarily committed the children to the interim custody of GCCSB. J.T. and N.T. were placed in a certified foster home.
{¶ 5} In July, 2001, the trial court found that J.T. and N.T. were dependent, as alleged in the complaint made by GCCSB, and the trial court ordered that custody be awarded to GCCSB. J.T. and N.T. were placed in a new foster home in July, 2001, and then again in September, 2001, with their current foster family. In July, 2001, GCCSB developed a case plan with the goal of reunification, which was later amended on several occasions. The case plans allowed visitation between the children and Terry as follows:
{¶ 6} "[J.T.] and [N.T.] are allowed to speak to their father on the phone while visiting with their grandmother if their grandmother is monitoring the call. [J.T.] and [N.T.'s] father is serving a life sentence in a federal prison * * *."
{¶ 7} Terry did have phone visitation with J.T. and N.T., which was monitored by Sweitzer at her home.
{¶ 8} In May, 2002, GCCSB filed a motion to extend the temporary commitment of the children to GCCSB. After a hearing, the trial court ordered that it was in the best interest of J.T. and N.T. that custody remain with GCCSB.
{¶ 9} In May, 2003, GCCSB filed a motion requesting a modification of the temporary commitment of J.T. and N.T. to an order of permanent commitment of the children to GCCSB. After a hearing, the trial court granted permanent custody of J.T. and N.T. to GCCSB in January, 2004, making the following pertinent findings of fact:
{¶ 10} "1. [J.T.], born 9/9/92, and [N.T.], born 12/12/94, are the natural children of James Michael Terry and Donna Raikes. Mr. Terry and Ms. Raikes were never married to each other. These individuals lived as a family unit since the birth of the children, for several years in the state of Florida. Mr. Terry loved and cared for his children.
{¶ 11} "2. In 1998, Mr. Terry was incarcerated on a federal offense and has been serving a federal sentence since said date. He received a sentence of thirty years to life as a `career offender', which is now under appeal.
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{¶ 12} "5. On July 18, 2001, the children were adjudicated dependent. Temporary custody of [J.T.] and [N.T.] was granted to Greene County CSB. The children have been in the agency's temporary custody since said date.
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{¶ 13} "9. Ms. Raikes has demonstrated a lack of commitment toward the children by failing to regularly support, visit or communicate with the children when able to do so. Her intermittent involvement has been detrimental to their well being.
{¶ 14} "10. Jackie Sweitzer has not sought custody because her husband does not want to take on the responsibility of raising two young children. There are no other relative placements available.
{¶ 15} "11. The children cannot and should not be returned to Ms. Raikes within a reasonable period of time.
{¶ 16} "12. The children have been in their current foster placement since September 28, 2001. This is a loving, nurturing environment for them. The children have shown significant improvement in their behavior, self-esteem and school performance since being in this placement. The foster parents are interested in adopting [J.T.] and [N.T.].
{¶ 17} "13. The children cannot be placed with Mr. Terry within a reasonable period of time.
{¶ 18} "14. The children have expressed to their therapist and the guardian ad litem their desire to be adopted by their foster parents. [J.T.] would like to have some contact with his father.
{¶ 19} "15. It is in the best interest of the children that they be placed into the permanent custody of the agency."
{¶ 20} From this judgment of the trial court awarding permanent custody of J.T. and N.T. to GCCSB, Terry appeals.
{¶ 22} "The trial court's judgment amounts to plain error as it relies excessively on inadmissable evidence in finding that the appellant was incarcerated and would not be available to care for his minor children for eighteen months after the filing of the motion for permanent custody and in concluding that the minor children could not or should not be placed with the appellant within a reasonable period of time.
{¶ 23} "The trial court erred in its judgment granting permanent custody of the terry children to the green county children services board because the agency failed to prove by clear and convincing evidence that the terry children could not or should not be placed with appellant within a reasonable period of time."
{¶ 24} Because Terry presents similar and related arguments under both assignments of error, we will address them together. Terry contends that the trial court erred in awarding permanent custody of his children, J.T. and N.T., to GCCSB.
{¶ 25} R.C.
{¶ 26} "(a) The child is not abandoned or orphaned or has not 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, 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.
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{¶ 27} "(d) 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.
{¶ 28} "For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section
{¶ 29} Terry contends that the trial court erred in awarding permanent custody of J.T. and N.T. to GCCSB, because GCCSB failed to demonstrate, by clear and convincing evidence, that the children could not be placed with him within a reasonable time as required by R.C.
{¶ 30} R.C.
{¶ 31} Terry contends that GCCSB failed to present clear and convincing evidence that Terry was incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the children and that he would not be available to care for the children for at least eighteen months after the filing of the motion for permanent custody or the dispositional hearing. Terry contends that the trial court's finding that Terry received a sentence of thirty years to life as a career offender was supported by inadmissible evidence, not competent, credible evidence. Terry contends that he will be released from prison within eighteen months of the dispositional hearing on the motion for permanent custody, and therefore, his children could be placed with him within a reasonable time.
{¶ 32} GCCSB contends that it does not rely on R.C.
{¶ 33} Pursuant to R.C.
{¶ 34} When GCCSB filed a motion requesting a modification of the temporary commitment of J.T. and N.T. to an order of permanent commitment of the children to GCCSB on May 29, 2003, the children had been in the temporary custody of GCCSB for twenty-two months. When the first hearing was held on the motion on December 22, 2003, the children had been in the temporary custody of GCCSB for twenty-nine months. We conclude that J.T. and N.T. have been in the temporary custody of GCCSB, a public children services agency, for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999, in accordance with R.C.
{¶ 35} The trial court did not specifically state whether it relied on subsection (a) or subsection (d) of R.C.
{¶ 36} Even if the trial court did incorrectly determine that the children could not be placed with Terry within a reasonable time, as required by R.C.
{¶ 37} Because the record reflects that J.T. and N.T. have been in the temporary custody of GCCSB, a public children services agency, for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999, in accordance with R.C.
{¶ 38} Terry's first and second assignments of error are overruled.
Wolff and Grady, JJ., concur.
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