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In re C.C.

Court of Appeals of Ohio, Third District

July 22, 2013

IN THE MATTER OF: C.C., ABUSED CHILD [CASEY COLEMAN, SR., APPELLANT] [NATASHA JEWELL nka NATASHA COLEMAN, APPELLANT]

Appeal from Defiance County Common Pleas Court Juvenile Division Trial Court No. 30746 Judgment

Timothy C. Holtsberry for Appellant-Father

Peter R. Seibel for Appellant-Mother

Morris J. Murray and Russell R. Herman for Appellee

OPINION

SHAW J.

{¶1} Father-appellant Casey Coleman ("Casey") and mother-appellant Natasha Coleman ("Natasha") appeal the February 28, 2013, judgment of the Defiance County Common Pleas Court, Juvenile Division, granting permanent custody of their minor child "C.C." to the Defiance County Department of Job and Family Services ("DCDJFS" or "the agency").

{¶2} On November 3, 2011, a complaint was filed alleging that C.C. was an abused child and a dependent child. (Doc. 3). The complaint alleged specifically that C.C, not yet three months old at the time, "suffered a fractured scapula and his parents could not provide a plausible explanation as to how such injury occurred, and furthermore, [C.C] exhibited bruising on his face, arm and leg, as such, said child appears to be an abused child as defined in [R.C] 2151.031(C)" and a dependent child as defined in R.C. 2151.04(C). (Id.) The complaint requested that C.C. be placed in the temporary custody of DCDJFS or in the legal custody of an appropriate relative. (Id.)

{¶3} An emergency ex-parte hearing was held, wherein probable cause was found to believe that C.C. was an abused and/or dependent child. (Doc. 1). DCDJFS was granted emergency temporary custody of C.C. pending a hearing on the matter. (Id.)

{¶4} On November 23, 2011, Casey and Natasha entered their initial appearance on the complaint. (Doc. 12).

{¶5} On December 22, 2011, Tennille Becker Newton was appointed Guardian Ad Litem ("GAL") for C.C. (Doc. 11).

{¶6} On February 1, 2012, a Case Plan was filed with the stated goal of returning C.C. to Casey and Natasha. (Doc. 18). The Case Plan detailed that C.C.'s parents should, inter alia, finish high school/get their GEDs, complete parenting classes, and maintain a clean and stable home. ( Id. .)

{¶7} On February 28, 2012, a hearing was held wherein Natasha and Casey entered pleas of "Not True" to the allegations in the complaint. (Doc. 23). DCDJFS requested that C.C. remain in the agency's temporary custody pending further hearing. ( Id. .)

{¶8} On August 6, 2012, a hearing was held wherein both Casey and Natasha entered admissions to the allegation of abuse, and in exchange for their admissions, the agency dismissed the allegation of dependency. (Doc. 36). The court accepted the admissions and subsequently found that C.C. was an abused child pursuant to R.C. 2151.031(C). The parties waived their right to a second hearing and elected to proceed immediately to disposition. ( Id. .) The parties agreed that it was in C.C.'s best interests to be placed in the temporary custody of DCDJFS, and the court found that it was, in fact, in C.C.'s best interest and so C.C. was placed in the temporary custody of DCDJFS. (Id.) An entry reflecting this was filed August 15, 2012. (Id.)

{¶9} On November 6, 2012, DCDJFS filed a motion for permanent custody of C.C. (Doc. 47).

{¶10} On November 8, 2012, a hearing was held for annual review, and for an initial appearance on DCDJFS's motion for permanent custody. At the hearing, a representative of the agency stated that C.C.'s parents were failing to follow any terms of the case plan, that they were not visiting with the child as they should and that their lives remained unstable. (Doc. 54). The matter was set for a full hearing on the motion for permanent custody. (Id.)

{¶11} On February 7, 2013, the agency filed an amended motion for permanent custody, adding that C.C. had been in the temporary custody of the agency for twelve or more months of a consecutive 22 month period. (Doc. 64).

{¶12} On February 19, 2013, the GAL filed her report and recommendation, ultimately concluding that it would be in C.C.'s best interest if permanent custody was awarded to DCDJFS. (Doc. 80).

{¶13} On February 26, 2013, the case came on for a full hearing on the agency's motion for permanent custody. At the hearing, Natasha and Casey each consented to the termination of parental rights, believing it to be in C.C.'s best interest. The court conducted a colloquy with each parent individually, asking each parent if the parent understood what the parent was consenting to and if consenting to permanent custody was the parent's decision. In addition, the court repeatedly made clear that the court was not in a hurry, and that the parents could take as much time as they wanted to be sure of their decision. In the end, Casey and Natasha consented to the termination of their parental rights, and their parental rights were terminated. Permanent custody of C.C. was awarded to the agency. An entry reflecting this was filed on February 28, 2013. (Doc. 92).

{¶14} It is from this judgment that Casey and Natasha appeal, asserting the following assignments of error for our review.[1]

{¶15} Casey asserts the following assignments of error for our review.

ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT'S CONSENT TO THE PERMANENT CUSTODY MOTION WAS MADE VOLUNTARILY OR KNOWINGLY.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN FINDING BY CLEAR AND CONVINCING EVIDENCE THAT THE GRANT OF PERMANENT CUSTODY TO THE AGENCY WAS IN THE CHILD'S BEST INTEREST.
ASSIGNMENT OF ERROR 3
APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

{¶16} Natasha asserts the following assignments of error for our review.

ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT'S CONSENT TO THE PERMANENT CUSTODY MOTION WAS MADE VOLUNTARILY OR KNOWINGLY.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN FINDING BY CLEAR AND CONVINCING EVIDENCE THAT THE GRANT OF PERMANENT CUSTODY TO THE AGENCY WAS IN THE CHILD'S BEST INTEREST.
ASSIGNMENT OF ERROR 3
APPELLANT WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

{¶17} As the arguments in Casey and Natasha's assignments of error are identical, we will address them together.

Casey and Natasha's First Assignments of Error

{¶18} In Casey and Natasha's first assignments of error, they argue that the trial court erred in finding that they had knowingly and voluntarily consented to the termination of their parental rights.

{¶19} "The standard for appellate review in a permanent-custody case is whether the trial court had clear and convincing evidence to make an award of permanent custody." In re Terrence, 6th Dist. No. L-05-1018, 2005-Ohio-3600, ¶ 86, citing In re Hiatt, 86 Ohio App.3d 716, 725 (4th Dist.1993). The "clear and convincing evidence" standard is a higher degree of proof than the "preponderance of the evidence" standard generally used in civil cases, but is less stringent than the "beyond a reasonable doubt" standard used in criminal cases. State v. Schiebel, 55 Ohio St.3d 71, 74, (1990). On appeal from an order terminating parental rights, an appellate court will not reverse the trial court's judgment if, upon a review of the record, it determines that the trial court had sufficient evidence to satisfy the clear-and-convincing-evidence standard. In re Wise, 96 Ohio App.3d 619, 626, (9th Dist. 1994).

{¶20} In reaching its determinations regarding permanent custody, the trial court must safeguard certain fundamental rights of parents. Terrence, supra, at 87. "It is well recognized that the right to raise a child is an 'essential' and 'basic' civil right." In re Franklin, 3d Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, ¶ 9, quoting In re Hayes, 79 Ohio St.3d 46, 48 (1997) (citation omitted). The Supreme Court of Ohio has held that a parent "must be afforded every procedural and substantive protection the law allows." In re Hayes, supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist. 1991). Where parental rights are permanently terminated, "it is of utmost importance that the parties fully understand their rights and that any waiver is made with full knowledge of those rights and the consequences which will follow." Elmer v. Lucas Cty. Children Serv. Bd, 36 Ohio App.3d 241, 245, (6th Dist. 1987), Terrence, supra.

{¶21} "[Juvenile Rule] 34 and R.C. 2151.35 do not specifically require a full colloquy for admissions on disposition." In re Terrence, 6th Dist. No. L-05-1018, 2005-Ohio-3600, ¶ 89 citing In re Erich L, 6th Dist. No. L-04-1340, 2005-Ohio-2945; In re Lakes, 2nd Dist. No. 19028, 2002-Ohio-3917. "Nevertheless, fundamental due process requires that when a parent is waiving the fundamental right to care for and have custody of a child, the trial court must have a meaningful dialogue with that parent to be certain that the consent is truly voluntary." Terrence, supra, at ¶ 89, citing Elmer v. Lucas Cty. Children Serv. Bd, supra. If a parent expresses uncertainty or misunderstandings about his or her decision to waive parental rights, the trial court's acceptance of the waiver is improper. Id

{¶22} In the case sub judice the final hearing was scheduled to be heard on February 26, 2013. On that date, the parties convened, and the trial court stated on the record that three days were reserved for the hearing. (Tr. at 3). The trial court then asked all of the parties and their attorneys to introduce themselves. (Id.) Following this, the agency's attorney informed the court that an agreement had been reached whereby the parents wished to consent to the agency's motion for permanent custody. ( Id. . at 5).

{¶23} Natasha's attorney said that it was his understanding that Natasha wanted to consent to the agency's motion, and that he felt Natasha understood what she was doing. (Tr. at 6). The court then proceeded to address each parent individually, beginning with Natasha. The court addressed Natasha directly, who stated that she was eighteen and turning nineteen in May.[2] (Tr. at 7). Natasha stated that since the proceedings began, she had gotten married to C.C.'s father. (Tr. at 8). She also stated that C.C. was approximately eighteen months old. (Id.) Natasha informed the court that she had dropped out of high school and was considering getting her GED. (Tr. at 9). The following exchange then occurred between the court and Natasha.

COURT: Do you know your lawyer's name?
NATASHA: Jeffrey Horvath
COURT: Have you had enough time to talk to him about this case?
NATASHA: Correct.
COURT: Do you feel like you understand what's going on here?
NATASHA: Yes.
COURT: Can you explain to me in your words what you think is going to happen?
NATASHA: That it's best for [C.C.] to be put up for adoption.
** *
COURT: * * * Was that a hard thing to tell me?
NATASHA: Yes.
COURT: Okay. Do you want to tell me that, Natasha?
NATASHA: That it's best for him to be put up for adoption.
COURT: Is that what you wanted to tell me?
NATASHA: Yes.
COURT: Do you know that you don't have to tell me that?
NATASHA: No.
COURT: Do you know that you don't ...

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