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In re Muze

December 5, 2008


CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common Pleas of Harrison County, Ohio Juvenile Division Case No. 20073027.

The opinion of the court was delivered by: Donofrio, J.


JUDGMENT: Reversed and remanded.

JUDGES: Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite.

{¶1} Appellant, A.M., appeals a decision of the Harrison County Common Pleas Court, Juvenile Division, terminating her parental rights over her son, J.M., and granting permanent custody of him to appellee, Harrison County Department of Job and Family Services (DJFS). She argues that the trial court's finding that she had abandoned her son and that DJFS had expended reasonable efforts towards reunification were against the manifest weight of the evidence and an abuse of discretion. She also argues that the trial court's reliance on the guardian ad litem's report in reaching its decision violated her Fourteenth Amendment procedural due process rights.

{¶2} On September 11, 2006, fifteen-year-old A.M. gave birth to J.M. (Tr. 29.) Since A.M. tested positive for drugs when she was admitted to the hospital to give birth to J.M., a referral was made to DJFS. (Tr. 28, 252.) In November 2006, A.M., along with her mother, agreed to voluntary services from DJFS. A case plan was developed for A.M.'s mother, A.M. and J.M., with the goal of reunification. A.M.'s case plan goals included: a mental health assessment and counseling, if needed; drug and alcohol assessment and counseling; Help Me Grow services; and parent education. (Tr. 31, 86-87.)

{¶3} On December 21, 2006, A.M.'s mother agreed to relinquish custody of A.M. and J.M. to DJFS through a voluntary thirty-day agreement with the previously initiated voluntary services and case plan to continue. (Tr. 29.) A.M. and J.M. were placed in foster care together. (Tr. 40.) On January 17, 2007, DJFS filed complaints of dependency with respect to A.M. and J.M. and both remained in the temporary custody of DJFS until February 26, 2007, when they were both returned to A.M.'s mother with DJFS retaining court-ordered protective supervision.

{¶4} Due to a previous unruly determination, A.M. was on probation. (Tr. 275.) On May 8, 2007, a day when A.M. was supposed to be in school, A.M.'s mother called A.M.'s probation officer, Laurie McAfee, and reported that A.M. had left the home without permission, taking J.M. with her. (Tr. 276.) Officer McAfee, along with the assistance of Sergeant Mark Smith of the Cadiz Police Department, went to A.M.'s home in search of her. (Tr 65.) A.M.'s mother indicated that A.M. was seen walking in town. (Tr. 66.) Sgt. Smith and Officer McAfee located A.M. in town walking with a friend and pushing J.M. in a stroller. (Tr. 66, 277, 279.) McAfee questioned A.M. about why she was not in school and inquired about what was going on. (Tr. 66.) A.M. indicated that she was having problems with her mother and that she needed help. (Tr. 66) Sgt. Smith contacted Children Services and they sent Demetrius Carrothers. (Tr. 66, 280.) A.M.'s aunt arrived at the scene and she let her hold J.M. (Tr. 70, 235, 281) When it became apparent to A.M. that she and J.M. were going to be placed in the care of Children Services, she fled the area. (Tr. 67, 70-71, 236, 281.) J.M. was placed in foster care. (Tr. 40-41.)

{¶5} Unable to locate A.M., Sgt. Smith had her entered into LEADS as a missing/runaway juvenile. (Tr. 69.) A.M. went to an ex-boyfriend's house in the Akron area and then later moved to Barberton. (Tr. 237-238, 263.) While there, A.M. made phone calls to her grandmother. Once the grandmother determined that A.M. was in Barberton, she notified their police department and DJFS. (Tr. 190, 203.) Barberton Police Department recovered A.M. on August 27, 2007, and Officer McAfee and a Cadiz Police Department officer went to Barberton and returned A.M. to Harrison County. (Tr. 67.) A.M. was then returned to her mother's custody. (Tr. 39.) J.M. remained in foster care.

{¶6} On November 30, 2007, A.M.'s mother kicked her out of her home at which point she went to live with her grandmother. (Tr. 88.) A.M. attributed the incident to a fight she got into with her mother's boyfriend and his giving her mother an ultimatum that either he or her kids had to go. (Tr. 243-244.) A.M.'s grandmother would later obtain legal custody of her in March 2008.

{¶7} Due to A.M.'s lack of progress on the case plan, on April 9, 2008, DJFS moved for permanent custody of J.M. based on the ninety-day period of abandonment that resulted from A.M.'s running away and that it would be in J.M.'s best interests for DJFS to have permanent custody. A.M. opposed the motion alleging that she had made enough progress on the case plan to warrant a six-month extension.

{¶8} The matter proceeded to a hearing on May 6, 2008, and May 20, 2008. At the May 6th hearing, before proceeding on DJFS's motion for permanent custody, the trial court denied A.M.'s grandmother's motion to terminate temporary custody and for legal custody of J.M.. The court limited her role to that of A.M.'s legal guardian and custodian only. On May 6, 2008, DJFS presented the testimony of eight witnesses: (1) Courtney Walker, A.M.'s first DJFS case worker; (2) Sergeant Mark Smith, Cadiz Police Department; (3) Valerie Warrington; (4) Linda Shoppe, A.M.'s second DJFS case worker; (5) Mark Kowalski, Harrison Central High School Assistant Principal; (6) Robert Brooks, Harrison Central High School Resource Officer; (7) Monica Goddard, A.M.'s drug and alcohol counselor; and (8) Cindy Sickles, A.M.'s mental health counselor. On May 20, 2008, A.M. testified on her own behalf and presented the testimony of her grandmother.

{¶9} On May 28, 2008, the juvenile court granted permanent custody of J.M. to DJFS. The court determined that A.M. had abandoned J.M., that attempts to reunify them had failed, and that it was in J.M.'s best interests that DJFS be granted permanent custody. This appeal followed.

{ΒΆ10} A.M. raises three assignments of error. A.M.'s third assignment of error will be addressed first since it is ...

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