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In re D.F.

Court of Appeals of Ohio, Seventh District, Noble

May 5, 2017

IN THE MATTER OF D.F., R.M., Ru.M., D.M.

         Civil Appeal from Court of Common Pleas, Juvenile Division of Noble County, Ohio Case Nos. 214-3034, 3035, 3036, 3037

          For Appellee Kelly A. Riddle Noble County Prosecutor

          For Appellant Attorney Robert Henry

          Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro Judge.

          OPINION

          DONOFRIO, J.

         {¶1} Appellant, Brandy M., appeals from a Noble County Common Pleas Court judgment granting permanent custody of her four children to appellee, the Noble County Department of Jobs and Family Services.

         {¶2} Appellant is the mother of four children: D.F. (d.o.b. 9/23/01); R.M. (d.o.b. 12/13/04); Ru.M. (d.o.b. 8/31/06); and (D.M. (d.o.b. 9/26/08). Appellant is married to the father of the three younger children. The oldest child's father is unknown.

         {¶3} Appellant, the father, the children, and appellant's mother resided together in Noble County. Sometime in 2014, R.M. disclosed to a teacher that her father was inappropriately touching her at home.[1]

         {¶4} On December 11, 2014, appellee filed a complaint asserting that the children were abused and neglected. The complaint was based on allegations that the father had been sexually abusing R.M., Ru.M., and D.M. and appellant knew of the abuse and did nothing about it. The trial court granted appellee temporary custody of the children. The children were placed in foster care. When the children were removed from the home, the caseworker found that the home was filthy and unsanitary with dog feces on the floor.

         {¶5} The father was convicted of rape and gross sexual imposition for his offenses against R.M. He is serving a prison term until 2031.

         {¶6} The court appointed a guardian ad litem (GAL) for the children. Appellant was granted unsupervised visitation in her home every Saturday.

         {¶7} On January 20, 2015, the trial court adjudicated R.M. to be an abused child and the other children to be neglected children. Appellant agreed with these dispositions. The court found that the father pleaded guilty and had been convicted of rape and gross sexual imposition perpetrated on R.M. A case plan was put in place and the children remained in appellee's custody in foster care.

         {¶8} On July 22, 2015, appellee filed a motion for permanent custody of the children. The motion asserted that the children had been in appellee's temporary custody for at least 12 months of a consecutive 22-month period. Appellee also asserted that it received a report from a psychologist who interviewed appellant and who had multiple concerns about appellant's ability to protect the children and did not believe the concerns could be cured by any type of treatment.

         {¶9} On August 21, 2015, the grandmother filed a motion for custody of the children. Based on her motion, the trial court made her a party to this case.

         {¶10} Also on August 21, the trial court temporarily suspended appellant's visitation after the children returned from visits multiple times with lice. Visitation resumed on September 12, 2015, with visitation occurring every Saturday from 8:30 a.m. until 3:00 p.m., in appellant's home.

         {¶11} The trial court held a hearing on appellee's motion for permanent custody on June 8, and October 26, 2015. It heard testimony from many witnesses including appellant, the grandmother, the GAL, the caseworker, and the psychologists and counselors involved.

         {¶12} The trial court granted appellee's motion for permanent custody. The court found the father had been convicted of raping one of the children and the other three children were living in the home when the rape occurred. It further found appellant was unable or unwilling to prevent the children from suffering physical, emotional, or sexual abuse. It noted that R.M. reported to appellant that her father had sexually abused her and appellant refused to believe R.M., refused to investigate, and failed to report the matter to authorities. The court found that appellant still refuses to believe the abuse occurred even though the father has confessed. The court went on to find that the best interest factors supported a conclusion that permanent custody was in the children's best interest. And the court concluded that the children could not be placed with either parent within a reasonable time.

         {¶13} Appellant filed a timely notice of appeal on December 5, 2016. She now raises two assignments of error. The grandmother did not file an appeal.

          {¶14} A parent's right to raise his or her children is an essential and basic civil right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). "Permanent termination of parental rights has been described as 'the family law equivalent of the death penalty in a criminal case.' In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54." In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). However, this right is not absolute. In re Sims, 7th Dist. No. 02-JE-2, 2002-Ohio-3458, ¶ 23. In order to protect a child's welfare, the state may terminate parents' rights as a last resort. Id.

         {¶15} We review a trial court's decision terminating parental rights and responsibilities for an abuse of discretion. Sims, 7th Dist. No. 02-JE-2, ¶ 36. Abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶16} Appellant's first assignment of error states:

THE JUVENILE COURT ABUSED ITS DISCRETION, AND ITS JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WHEN IT FOUND THAT THE MOTHER WAS UNABLE OR UNWILLING TO PREVENT FUTURE CHILD ABUSE PURSUANT TO R.C. 2151.414(E)(14)[.]

         {¶17} Appellant argues the trial court erred in failing to make findings going to the statutory best interest factors other than finding that she is unwilling to prevent her children from suffering physical, emotional, or sexual abuse. She claims there was evidence as to several other best interest factors yet the trial court only cited the one factor.

         {¶18} Appellant further argues the trial court's finding that she was unwilling to prevent the abuse was not supported by the evidence. Instead, she claims the evidence demonstrated that she was horrified by the sexual abuse and that she wanted to protect her children. Appellant points out there is no allegation that she abused her children and the person who did abuse them is currently incarcerated. And she asserts she complied with all of her case plan directives. {¶19} Pursuant to R.C. 2151.414(B)(1):

[T]he court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, 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 * * * 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.
(b)The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(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 ...

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