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In re Sherry S.

December 5, 2008

IN THE MATTER OF: SHERRY S., LEROY S., III, CAROL S., AND CARMON S.


Trial Court Nos. 2006 JA 0001, 2006 JD 0001, 2006 JA 0002 & 2006 JA 0003.

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

DECISION AND JUDGMENT ENTRY

{¶1} This is an appeal from a judgment by the Erie County Court of Common Pleas, Juvenile Division, terminating a mother's and father's parental rights and granting permanent custody to appellee, Erie County Department of Job and Family Services ("agency"). For the reasons that follow, we affirm the judgment of the trial court.

{¶2} Husband-and-wife appellants, Leroy S., Jr. and Tina S., are the biological parents of minor children, Carol S., who was born in 1997, Carmon S., who was born in 1999, Sherry S., who was born in 2000, and Leroy S., III, who was born in 2003. The agency first became involved with this family in the fall of 2005, in response to allegations that the father, Leroy S., Jr. had sexually abused his three girls. At that time, the family, having recently moved from Illinois, had been living in Ohio for approximately one month.

{¶3} On October 7, 2005, temporary custody of the minor children was granted to the agency. On January 3, 2006, the agency filed complaints alleging that Carol S., Carmon S., and Sherry S. were abused, neglected and dependent children and that Leroy S., III was a dependent child. By entry of admissions, both parents waived their right to trial in connection with these complaints. On March 10, 2006, the children were adjudicated as follows: Carol S. was found to be abused, neglected, and dependent; Carmon S. and Sherry S. were found to be neglected and dependent; and Leroy S., III was found to be dependent.

{¶4} Pursuant to these adjudications, the trial court ordered that temporary custody continue with the agency. The court further ordered that both parents were to submit to psychological evaluations, and that Leroy S., Jr. was, in addition, to follow all recommendations of Firelands Mental Health in connection with his domestic violence assessment and to submit to a sex specific evaluation with Mary Kate Baumgardner of The Giving Tree. A previously-issued restraining order preventing Leroy S., Jr. from having any contact whatsoever with his children was ordered to remain in effect, and supervised visitation for Tina S. was ordered to continue. Mental health counseling for each of the children and the children's placement with foster mother, Christine A., were likewise ordered to continue.

{¶5} On September 17, 2007, the agency timely filed a motion for permanent custody of the minor children. Hearing on the matter was held on February 19, 20, and 21, 2008. At the hearing, certain facts were stipulated to by the parties.

{¶6} Any defects in notice of service of the motion for permanent custody and summons and/or of hearing were waived, and all parties acknowledged that the court was rendering its decision in the matter within the period mandated by statute. The parties agreed that the guardian ad litem's report for the children had been circulated to all parties and filed prior to the commencement of trial. In addition, the parties acknowledged the prior adjudications of the children as indicated above; the fact that the children had been in the temporary custody of the agency for 12 or more months of a consecutive 22 month period after March 18, 1999; and the fact that the children cannot now, or within a reasonable time in the future, be placed with their parents.

{¶7} Exhibits A through F were admitted as stipulated findings of fact, and exhibits L through R, were admitted, by stipulation, as self-authenticating documents.

{¶8} Pursuant to exhibit R, the parties stipulated that the children are bonded with each other and their foster mother, and that the three girls are bonded with their mother. It was also agreed that there are no extended-family relatives that have established a bond with the children.

{¶9} In addition to the above-mentioned stipulated facts, evidence of the following was adduced.

{¶10} During an October 11, 2005 client interview with Firelands Counseling and recovery services, Tina S. reported that the reason that she and the rest of the family had moved from Illinois was because there had been a number of cases involving their family and that state's department of job and family services. According to Tina S., there were at least ten such cases involving the children, with past allegations involving neglect and sexual abuse.

{¶11} Abundant evidence was introduced to show the emotional states of the three female children, Carol S., Carmon S., and Sherry S., each of whom had been in counseling throughout the pendency of the case. Through the testimony of Sarah DiFilippo, the girls' therapist, it was established that the girls have suffered, and continue to suffer, from significant emotional problems, including extreme fears, anxiety and post traumatic stress disorder, and that, although they are making improvement, they will continue to need treatment. All of the girls reported sexual abuse by their father, and all are intensely fearful of him. Each of the girls reported having nightmares, the recurring theme of which involved their father trying to harm the family.

{¶12} Testimony by DiFilippo and the girls' foster mother, Christine A., established that the integration of Tina S. into the girls' therapy resulted in the girls' regression into negative behaviors, including encopresis, enuresis, self-harm and stealing. Such regression apparently stemmed from Tina S.'s inability -- even after therapy -- to accept the girls' emotional state of mind and to act in a way that could improve their behavior and mental state of being. Specifically, the evidence showed that Tina S., upon hearing the disclosures of the girls concerning allegations of sexual abuse at the hands of their father, would question the girls' veracity and their understanding of what they were reporting had happened to them.

{¶13} During her client interview with Firelands Counseling and Recovery Services, Tina S. admitted that she was confused about what to believe in connection with her girls' disclosures. Her parenting assessment reveals that she tested in the borderline range of intellectual functioning and that she suffers from intermittent depression and anxiety, often with psychotic overlays. In the parenting assessment recommendations, it was stated that "[Tina S.'s] demonstration of intermittent poor judgment, inability to be self sufficient and self reliant, her dependency on another [Leroy S., Jr.] and tendency to be influenced [,] as well as her parenting deficits all suggest that she could not effectively and safely single parent without sufficient support and ongoing monitoring."

{¶14} Regarding Leroy S., Jr., with whom Tina S. continues to reside, the record reveals that he has undergone sex-specific evaluation, psychological testing and treatment. In each evaluation he appears to have purposely failed to reveal significant information relating to the purpose of each evaluation that would have allowed accurate diagnosis and meaningful treatment. As one example, Leroy S. failed to reveal to the sex-specific evaluator prior inappropriate sexual behaviors and a documented residential placement that dealt with sexual behavior.

{¶15} Additional evidence demonstrates that Leroy S., Jr. has a history of legal problems arising from, or otherwise related to, his anger. As an adult, he was discharged (less than honorably) from the U.S. Navy for aggression towards an officer. In addition, there was evidence that he completed a domestic violence assessment and a batterer's intervention program.

{¶16} In connection with his parenting assessment, Leroy S., Jr. reported that he completed an anger management program in order to have a restraining order that had been filed by his wife terminated. According to the parenting assessment, the restraining order was issued following Leroy S., Jr.'s having gotten "upset with the kids."

{¶17} Testimony by agency caseworker, Florence Dyer, established that none of the girls wants to even see their father, let alone return to his home; instead, they all want to remain with their foster mother. Dyer testified that the youngest sibling, Leroy S., III, simply does not know his father.

{¶18} Julie Saleski, interim director of supervised visitation center Kinship House, testified as to the relationship between Tina S., and Leroy S., III. According to Saleski, there appeared to be very little, if any, bonding between mother and son.

{¶19} Following the hearing, the court rendered its decision, awarding permanent custody of Carol S., Carmon S., Sherry S., and Leroy S., III, to the agency. Specifically, the trial court found that the children had been in the temporary custody of one or more public children services agencies or private child placing agencies for 12 or more months of a consecutive 22-month period ending on or after March 18, 1999; that there was clear and convincing evidence that the children cannot and should not be placed with either parent within a reasonable period of time pursuant to R.C. 2151.414(E)(1) and(2); and that an award of permanent custody to the agency was in the children's best interest pursuant to R.C. 2151.414(D).

{¶20} In support of its finding that the children cannot and should not be placed with either parent within a reasonable period of time, the trial court relied upon evidence demonstrating: (1) the emotional states of the children; (2) the mental problems of both parents; and (3) the parents' inability to substantially rectify the reasons that the children were removed in the first place.

{¶21} In support of its determination that an award of permanent custody to the agency was in the children's best interest, the court specifically found that the bond between the children and their foster mother had become stronger than the bond between the children and the parents, especially as between the children and their father, and, also, that the children had bonded with their foster siblings.

{¶22} In addition, the court found, in accordance with statements by the children's guardian ad litem and attorney, that the girls desired to remain in their foster placement and did not with to return to their parents' care and custody. In making this finding, the court stated that it had considered the wishes of the children in light of their level of maturity and mental states. Specifically, the court concluded that the expression of the girls' desires was appropriately considered, but that Leroy S., III, lacked the maturity to express an opinion.

{¶23} Noting that the children had been out of their parents' custody since November 2005, the court further concluded that the children, given their emotional states and ages, were in need of a legally secure placement, and that permanent placement could not be achieved without granting the agency's motion.

{¶24} Concluding its best interest analysis, the trial court stated:

{¶25} "The girls suffer from severe emotional trauma as a result of their experiences in their parents' care and custody. This trauma is evidenced by destructive, self-harming and recurring nightmares about their father. Their need for treatment will continue for a significant time in the future. Evidence revealed at trial that Mother and Father still reside together. It appears by clear and convincing evidence that returning the children now or in the near future would be detrimental to the children's best interests. In other words, the grant of the agency motion for permanent custody is in the children's best interest."

{¶26} Finally, the court found that reasonable efforts had been made to make it possible for the children to return home, but that those efforts were ultimately unsuccessful. Specifically, the court found that the agency had offered directly, or had provided through referral casework services: substitute care, counseling, case management, information and referral, visitation services through Kinship House, wraparound services, family therapy, parenting education, sex offender treatment, and domestic violence treatment.

{¶27} Leroy S., Jr., and Tina S. each filed timely appeals. Leroy S., Jr., raises the following assignments of error in his appeal:

{ΒΆ28} I. "THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF PAST RECOLLECTION RECORDED WITHOUT MEETING ...


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