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In re R.Y.

Court of Appeals of Ohio, Second District

September 13, 2013

IN RE: R.Y., JR., C.Y., A.Y., A.Y. and S.Y.

Civil appeal from Common Pleas Court, Juvenile Division T.C. NO. 2000-5797 2009-1876 2009-1877 2009-1879 2009-1881

MATTHEW T. CRAWFORD, Atty. Reg. No. 0089205, Assistant Prosecuting Attorney, Attorney for Appellee, Montgomery County Children Services

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, Attorney for Appellants, Parents C.Y. and R.Y.

OPINION

FROELICH, J.

(¶ 1} Father and Mother appeal from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which granted permanent custody of their five children to Montgomery County Children Services ("MCCS").

(¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

(¶ 3} Father and Mother were married at the time of the hearing in this case, and they were the parents of five children together: R.Y., Jr. ("R.Y."), the only boy, who was 10 when the hearing in this case began, S.Y., age 7, Ar.Y., age 5, and twins girls, C.Y. and Ab.Y., age 3.

(¶ 4} Father and Mother have a long history of involvement with MCCS. Before their relationship began, each had a child from another relationship removed from his or her custody. Further, R.Y. had been adjudicated to be dependent in December 2000, when he was three months old; he was returned to his parents about ten weeks later. When R.Y. was two years old, Father pled no contest to and was found guilty of ten counts of pandering sexually oriented material involving a minor, after R.Y.'s guardian ad litem observed child pornography at the home.

(¶ 5} In April 2009, MCCS removed Father and Mother's five children from the home and placed them in foster care. MCCS filed a motion for interim custody, citing concerns over extensive cockroach infestation, other concerns about sanitation, and ten referrals in a 14-month period for physical abuse, neglect, and emotional maltreatment. MCCS had also received reports of sexual abuse which, though unsubstantiated, "raise[d] concern for the children's safety due to Father's history of sex related crimes involving minors." Interim temporary custody was awarded to MCCS.

(¶ 6} Neglect and dependency complaints were filed for each of the children except R.Y., who had previously been adjudicated dependent. In July 2009, S.Y., Ar.Y., C.Y. and Ab.Y. were adjudicated dependent and neglected. In October 2009, MCCS was awarded temporary custody of all the children. Temporary custody was extended two times, in April 2010 and December 2010.

(¶ 7} In February 2011, MCCS filed a motion for permanent custody of each of the five children. In March 2011, Father and Mother filed a motion for custody of the children. A hearing was held before a magistrate on several dates between June 2011 and February 2012. On March 7, 2012, the magistrate denied the parents' motion for custody and granted permanent custody of the children to MCCS. The parents filed objections to the magistrate's decision. On March 6, 2013, after an independent review of the evidence, the trial court overruled the parents' objections and adopted the decision of the magistrate that the children should be placed in the permanent custody of MCCS.

(¶ 8} Father and Mother appeal, raising one assignment of error.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING PERMANENT CUSTODY TO MONTGOMERY COUNTY CHILDREN SERVICES, AS THE AGENCY FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE CHILDREN.

(¶ 9} Father and Mother contend that the trial court's conclusions that it was in the children's best interest to grant permanent custody to MCCS and that the children could not be returned to their parents within a reasonable time were not supported by clear and convincing evidence. They also claim that MCCS could have done more to support them and to work toward reunification.

(¶ 10} In Ohio, a trial court is authorized to terminate parental rights and to grant permanent custody to a children services agency in several enumerated circumstances. These circumstances include a finding, by clear and convincing evidence, that permanent custody is in a child's best interest, coupled with a finding that the child 1) cannot be placed with either parent within a reasonable period of time or should not be placed with either parent, for one of the reasons specified in R.C. 2151.414(E), or 2) has been in the temporary custody of a public children services agency for twelve or more months of a consecutive twenty-two-month period. R.C. 2151.414(B); In re SJ., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing In re KM., 8th Dist. Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8. The burden of proof is on the children services agency. In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066, ¶ 14.

(¶ 11} We review a trial court's decisions regarding the best interest of a child and whether the child can be returned to the parent's care within a reasonable time for an abuse of discretion. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 48; In re K.H., 2d Dist. Clark No. 2009-CA-80, 2010-Ohio-1609, ¶ 66. An abuse of discretion implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. In re D.H., 10th Dist. Franklin No. 11AP-761, 2012-Ohio-2272, ¶ 9; In re S.M., 2d Dist. Montgomery No. 24539, 2011-Ohio-6710, ¶ 4.

(¶ 12} R.C. 2151.414(D) directs the trial court to consider all relevant factors when determining the best interest of the child, including but not limited to: (1) the interaction and interrelationship of the child with the child's parents, relatives, foster parents and any other person who may significantly affect the child; (2) the wishes 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 ...


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