Opinion
Case No. 19CA1
05-16-2019
IN THE MATTER OF: B.L.O., Adjudicated Dependent Child.
APPEARANCES: James A. Anzelmo, Gahanna, Ohio, for Appellant.1 Timothy E. Forshey, Jackson, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
APPEARANCES: James A. Anzelmo, Gahanna, Ohio, for Appellant. Timothy E. Forshey, Jackson, Ohio, for Appellee. CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
ABELE, J.
Different counsel represented appellant during the trial court proceedings.
{¶ 1} This is an appeal from a Jackson County Common Pleas Court, Juvenile Division, judgment that granted Jackson County Children Services Board (JCCS), appellee herein, permanent custody of fifteen-month-old B.L.O. B.J.O., the child's biological mother and appellant herein, raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
"[APPELLANT] DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HER RIGHT TO CHALLENGE (1) IMPROPER NOTICE OF THE CUSTODY HEARING AND (2) FAILURE OF CHILDREN SERVICES TO FILE A CASE PLAN."
SECOND ASSIGNMENT OF ERROR:
"CHILDREN SERVICES FAILED TO ESTABLISH, BY CLEAR AND CONVINCING EVIDENCE, THAT IT SHOULD BE GIVEN PERMANENT CUSTODY OF BLO."
{¶ 2} Appellant gave birth while subject to a three-year prison term. Appellee could not locate a substitute caregiver for the child, and thus filed a complaint that alleged the child to be dependent and requested temporary custody.
{¶ 3} The trial court subsequently adjudicated the child dependent and placed the child in appellee's temporary custody. On August 20, 2018, appellee filed a motion to modify the disposition to permanent custody. Appellee alleged that the child could not be placed with either parent within a reasonable time, or should not be placed with either parent, and that placing the child in its permanent custody would be in the child's best interest. Appellee asserted that the child was born during appellant's imprisonment and that appellant is not expected to be released from prison until August 2019.
{¶ 4} At the start of the permanent custody hearing, appellant's counsel informed the court that appellant wished to withdraw any objection to purported defects regarding the notice that she had received that advised her of the permanent custody motion and its consequences. She additionally waived any objection to appellee's failure to implement a case plan at an earlier stage of the proceedings and while she was imprisoned. Appellant's counsel stated that counsel had discussed the issues with appellant and that appellant waived the objections "knowingly and voluntarily under her own free will having been advised of her rights and the consequences of a potential permanent custody finding in this case."
{¶ 5} Appellant's counsel also noted that appellant's release date, according to "a print-out from the Ohio Department of Rehabilitation and Corrections," indicates that appellant is scheduled to be released on August 27, 2019. Counsel additionally advised the court that appellant "did just find out that she is eligible for good behavior days * * * so she's not sure of the exact date." Appellant's counsel again indicated that appellant agreed to proceeding with the permanent custody hearing.
{¶ 6} At that juncture, the trial court asked appellant if she had questions or wished to further discuss the matter with her attorney. Appellant responded, "No. Everything's fine." The court noted for the record that appellant "certainly seems clear eyed," "entirely within her senses and not impaired by anything and no medicine or anything like that."
{¶ 7} The trial court then heard argument from the parties. The court thereafter granted appellee permanent custody of the child. The court noted that appellant
waived lack of a filed case plan, notice requirements of ORC 2151.414(A), and acknowledged explanation of finding of Permanent Custody as to 2151.414(E)(11) as to future proceedings. Parties further stipulated to facts set out in Permanent Custody Motion. Mother stated she was doing this knowingly and voluntarily.
{¶ 8} With respect to the merits of appellee's permanent custody motion, the trial court first found that placing the child in appellee's permanent custody is in the child's best interest. The court noted that, due to appellant's incarceration, the child has not had contact with appellant and that the child has been in appellee's temporary custody since September 12, 2017. The court further found that the child needs a legally secure permanent placement and that she cannot achieve this type of placement without granting appellee permanent custody.
{¶ 9} The court next reviewed whether the child could not or should not be placed with either parent. The court noted that appellant is in prison and that her term will expire on August 27, 2019. The court also commented that appellant has not applied for judicial release. Consequently, the court found that "due to the child's age; the fact that she was born in prison and has been in agency custody since birth; that the mother will not be released (based on current evidence) until August 27, 2019, and the father is unknown, leads to the conclusion that the Agency's motion be granted pursuant to ORC 2151.414(E)(16)."
{¶ 10} After the trial court entered its permanent custody decision, appellant submitted a letter to the court. In it, she stated that she recently learned that she will be released from prison on May 14, 2019. Appellant stated that she would not have waived her rights if she had known that she may be released from prison earlier than expected. This appeal followed.
I
{¶ 11} In her first assignment of error, appellant asserts that she did not knowingly, intelligently, and voluntarily waive her objections to (1) the alleged improper notice of the permanent custody proceeding; and (2) appellee's failure to file a case plan at an earlier stage of the proceedings. Appellant contends that at the time she waived the objections, she believed that she would remain imprisoned through the end of August 2019. Appellant asserts that because she subsequently learned that her sentence would be reduced and that she would be released in May 2019, she would not have waived the objections. She thus asserts that, because she did not know her actual release date when she waived her rights, her waiver was not knowing, voluntary, and intelligent.
{¶ 12} We recognize and emphasize that "parents' interest in the care, custody, and control of their children 'is perhaps the oldest of the fundamental liberty interests recognized by this Court.'" In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the right to raise one's "child is an 'essential' and 'basic' civil right." In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (stating that "natural parents have a fundamental right to the care and custody of their children"). Thus, "parents who are 'suitable' have a 'paramount' right to the custody of their children." B.C. at ¶ 19, quoting In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio St. 299, 310 (1877); Murray, 52 Ohio St.3d at 157, 556 N.E.2d 1169.
{¶ 13} Additionally, the Ohio Supreme Court has described the permanent termination of parental rights as "'the family law equivalent of the death penalty in a criminal case.'" Hayes, 79 Ohio St.3d at 48, 679 N.E.2d 680, quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Consequently, courts must afford parents facing the permanent termination of their parental rights "'every procedural and substantive protection the law allows.'" Id., quoting Smith at 16, 601 N.E.2d 45; accord B.C. at ¶ 19. Thus, because parents possess a fundamental liberty interest in the care and custody of their children, the state may not deprive parents of their parental rights without due process of law. In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 16; e.g., In re A.G., 4th Dist. Athens No. 14CA28, 2014-Ohio-5014, 2014 WL 5812193, ¶ 12; In re M.H., 4th Dist. Vinton No. 11CA683, 2011-Ohio-5140, 2011 WL 4597509, ¶¶ 49-50. Moreover, a parent's right to due process "does not evaporate simply because" that parent has "not been [a] model parent[] or [has] lost temporary custody of their child to the State." Santosky, 455 U.S. at 753, 102 S.Ct. 1388.
{¶ 14} Although "due process" lacks precise definition, courts have long held that due process requires both notice and an opportunity to be heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 12, citing Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4 S.Ct. 663, 28 L.Ed. 569 (1884); Caldwell v. Carthage, 49 Ohio St. 334, 348, 31 N.E. 602 (1892). "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); accord In re Thompkins at ¶ 13.
{¶ 15} A parent may, however, waive the due process rights to notice and an opportunity to be heard. D.H. Overmyer Co. Inc., of Ohio v. Frick Co., 405 U.S. 174, 185, 61 O.O.2d 528, 92 S.Ct. 775, 782, 31 L.Ed.2d 124 (1972). A waiver of constitutional rights is valid when an individual knowingly, intelligently, and voluntarily relinquishes a known right. E.g., Maryland v. Shatzer, 559 U.S. 98, 104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010); State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, 2012 WL 4711672, ¶ 24. We also note that in parental-rights termination cases, "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 consequences which may follow." Elmer v. Lucas Cty. Children Servs. Bd., 36 Ohio App.3d 241, 245, 523 N.E.2d 540 (6th Dist.1987).
{¶ 16} After our review in the case sub judice, we disagree with appellant that she did not knowingly, intelligently, and voluntarily waive her rights to object to the alleged defective notice of the permanent custody hearing and to appellee's failure to implement a case plan at an earlier stage of the proceedings. The transcript of the permanent custody hearing reflects that appellant spoke with her counsel and opted to waive any objections to the alleged defective notice and lack of timely case plan. The trial court inquired of appellant and specifically commented that appellant appeared "clear eyed" and "entirely within her senses." Nothing in the record suggests that appellant was under duress, that anyone had pressured her into waiving her objections, or that anyone made appellant any promises in exchange for her waiver. Appellant's assertion that she may have arguably miscalculated her prison-release-date does support or require the conclusion that she failed to understand and appreciate the consequences of her waiver. Cf. State v. Riley, 4th Dist. Washington No. 16CA29, 2017-Ohio-5819, 2017 WL 2988070, ¶ 20, appeal not allowed, 152 Ohio St.3d 1421, 2018-Ohio-923, 93 N.E.3d 1003, and cert. denied, 139 S.Ct. 200, 202 L.Ed.2d 123, quoting Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970) (observing that "'[t]he rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision'").
Although neither party specifically addresses the issue, for purposes of argument, we presume, without deciding, that a failure to provide proper notice of a permanent custody proceeding and the lack of a case plan violate the due process rights of a parent facing the permanent termination of parental rights.
{¶ 17} Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.
II
{¶ 18} In her second assignment of error, appellant asserts that the record does not contain clear and convincing evidence to support the trial court's permanent custody decision. Appellant recognizes that the court partially based its decision upon appellant's imprisonment through late August 2019, but claims that the evidence fails to show that she will remain imprisoned through late August 2019. Appellant further faults appellee for failing to establish visits with the child during appellant's imprisonment.
A
{¶ 19} Generally, a reviewing court will not disturb a trial court's permanent custody decision unless the decision is against the manifest weight of the evidence. E.g., In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
"Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.'"Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990).
{¶ 20} When an appellate court reviews whether a trial court's permanent custody decision is against the manifest weight of the evidence, the court "'"weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered."'" Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶¶ 23-24.
{¶ 21} The question that an appellate court must resolve when reviewing a permanent custody decision under the manifest weight of the evidence standard is "whether the juvenile court's findings * * * were supported by clear and convincing evidence." In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. "Clear and convincing evidence" is:
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986). In determining whether a trial court based its decision upon clear and convincing evidence, "a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) ("Once the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof."); In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495 N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986) (stating that whether a fact has been "proven by clear and convincing evidence in a particular case is a determination for the [trial] court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence"). Thus, if the children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm belief that permanent custody is warranted, then the court's decision is not against the manifest weight of the evidence. In re R.M., 4th Dist. Athens Nos. 12CA43 and 12CA44, 2013-Ohio-3588, ¶ 62; In re R.L., 2nd Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 17, quoting In re A.U., 2nd Dist. Montgomery No. 22287, 2008-Ohio-187, ¶ 9 ("A reviewing court will not overturn a court's grant of permanent custody to the state as being contrary to the manifest weight of the evidence 'if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements * * * have been established.'"). Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, "'clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.'" Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court should find a trial court's permanent custody decision against the manifest weight of the evidence only in the "'exceptional case in which the evidence weighs heavily against the [decision].'" Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175; accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
{¶ 22} In the case sub judice, after our review we are unable to conclude that the evidence weighs heavily against the trial court's decision.
B
{¶ 23} A parent has a "fundamental liberty interest" in the care, custody, and management of his or her child and an "essential" and "basic civil right" to raise his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶¶ 8-9. A parent's rights, however, are not absolute. D.A. at ¶ 11. Rather, "'it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.'" In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974). Thus, the State may terminate parental rights when a child's best interest demands such termination. D.A. at ¶ 11.
{¶ 24} Before a court may award a children services agency permanent custody of a child, R.C. 2151.414(A)(1) requires the court to hold a hearing. The primary purpose of the hearing is to allow the court to determine whether the child's best interests would be served by permanently terminating the parental relationship and by awarding permanent custody to the agency. Id. Additionally, when considering whether to grant a children services agency permanent custody, a trial court should consider the underlying purposes of R.C. Chapter 2151: "to care for and protect children, 'whenever possible, in a family environment, separating the child from the child's parents only when necessary for the child's welfare or in the interests of public safety.'" In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 29, quoting R.C. 2151.01(A).
C
{¶ 25} A children services agency may obtain permanent custody of a child by (1) requesting it in the abuse, neglect or dependency complaint under R.C. 2151.353, or (2) filing a motion under R.C. 2151.413 after obtaining temporary custody. In this case, appellee sought permanent custody of the child by filing a motion under R.C. 2151.413. When an agency files a permanent custody motion under R.C. 2151.413, R.C. 2151.414 applies. R.C. 2151.414(A).
{¶ 26} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody of a child to a children services agency if the court determines, by clear and convincing evidence, that the child's best interest would be served by the award of permanent custody and that one of the following conditions applies:
(a) The child is not abandoned or orphaned or 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 ending on or after March 18, 1999, 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 consecutive twenty-two month period ending on or after March 18, 1999.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{¶ 27} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in R.C. 2151.414(B)(1) applies, and (2) that awarding the children services agency permanent custody would further the child's best interest.
D
{¶ 28} In the case sub judice, appellant has not presented a specific argument regarding the trial court's R.C. 2151.414(B)(1)(a) finding and did not cite R.C. 2151.414(B)(1)(a) in her appellate brief. "It is not the function of this court to construct a foundation for [an appellant's] claims; failure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal." Cantanzarite v. Boswell, 9th Dist. Summit No. 24184, 2009-Ohio-1211, ¶ 16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996). Appellate courts possess discretion to disregard any assignment of error that fails to include citations to the authorities in support. State v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-4315, 2018 WL 5314869, ¶ 43; Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28, 2015-Ohio-119, 2015 WL 223007, ¶ 33; State v. Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 34, citing Frye v. Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4, 2008-Ohio-2194, ¶ 12; App.R. 12(A)(2). Consequently, we will not address appellant's "undeveloped argument[] or assume [appellant]'s duty and formulate an argument for [her]." State v. Palmer, 9th Dist. Summit No. 28303, 2017-Ohio-2639, 2017 WL 1749087.
E
{¶ 29} R.C. 2151.414(D) directs a trial court to consider "all relevant factors," as well as specific factors, to determine whether a child's best interest will be served by granting a children services agency permanent custody. The listed factors include: (1) the child's interaction and interrelationship with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (2) the child's wishes, as expressed directly by the child or through the child's guardian ad litem, with due regard for the child's maturity; (3) the child's custodial history; (4) the child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.
{¶ 30} Determining whether granting permanent custody to a children services agency will promote a child's best interest involves a delicate balancing of "all relevant [best interest] factors," as well as the "five enumerated statutory factors." In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G., 9th Dist. Summit Nos. 24097 and 24099, 2008-Ohio-3773, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and 07AP-591, 2008-Ohio-297, 2008 WL 224356, ¶ 19. However, none of the best interest factors requires a court to give it "greater weight or heightened significance." C.F. at ¶ 57. Instead, the trial court considers the totality of the circumstances when making its best interest determination. In re K.M.S., 3rd Dist. Marion Nos. 9-15-37, 9-15-38, and 9-15-39, 2017-Ohio-142, 2017 WL 168864, ¶ 24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶ 46. In general, "[a] child's best interest is served by placing the child in a permanent situation that fosters growth, stability, and security." In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-916, 2016 WL 915012, ¶ 66, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
{¶ 31} In the case at bar, we do not believe that the trial court's best interest determination is against the manifest weight of the evidence. Our review of the evidence reveals the following with respect to the best interest factors.
{¶ 32} The child was born while appellant was imprisoned, and the two have had no contact. Although appellant attempted to establish visitation with the child, she waited until the child was approximately one year old. The child has remained in the same foster home throughout the proceedings and the foster family would like to adopt the child.
{¶ 33} The child's guardian ad litem recommended that the trial court grant appellee permanent custody of the child.
{¶ 34} The child never has lived under appellant's care. Instead, appellee immediately removed the child from appellant due to appellant's imprisonment and then placed the child in a foster-to-adopt home. At the time appellee filed its permanent custody motion, the child had not yet been in its temporary custody for twelve or more months of a consecutive twenty-two month period.
{¶ 35} The child needs a legally secure permanent placement and can only achieve this type of placement by granting appellee permanent custody. Appellant is in prison. At the time of the permanent custody hearing, the evidence showed that appellant would remain in prison through the end of August 2019. The child's father is unknown. Appellee did not locate any suitable relative placements.
{¶ 36} Furthermore, even if appellant is released from prison earlier than August 2019, the trial court was not obligated to hold the child in custodial limbo while appellant completes her prison term and re-establishes herself into society. Appellant's hope that she will be able to adequately provide for and care for the child is speculative and unproven. As this court often
"* * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * [parent] an opportunity to prove her suitability. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child's present condition and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * The law does not require the court to experiment with the child's welfare to see if he will suffer great detriment or harm."In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, ¶ 48, quoting In re Bishop, 36 Ohio App.3d 123, 126, 521 N.E.2d 838 (5th Dist.1987).
{¶ 37} To the extent appellant claims that appellee failed to exercise reasonable efforts to reunify appellant with the child, we point out that this court and others previously have indicated that an agency's failure to develop a reunification plan may be reasonable when a parent is imprisoned. In re C.B.C., 4th Dist. Lawrence No. 15CA18, 2016-Ohio-916, 2016 WL 915012, ¶ 79, citing In re N.A.P., 4th Dist. Washington No. 12CA30, 2013-Ohio-689, ¶ 45 (parent's four-year prison sentence "made it impossible to provide meaningful case planning services and to attempt reunification with appellant"); In re S.D., 10th Dist. Franklin Nos. 08AP-546 and 08AP-575, 2009-Ohio-1047, ¶ 14 ("Under the circumstances, [the parent's] criminal conduct had made it difficult, if not impossible, for FCCS to provide meaningful services."); In re A.D., 2nd Dist. Miami No.2007CA23, 2008-Ohio-2070, ¶ 8 ("Although [children services'] efforts were directed solely toward [the mother], such an approach was reasonable considering that [the father] was incarcerated when the children entered temporary custody and would remain incarcerated for another two and one-half years."); In re Meadows, 4th Dist. Scioto No. 05CA3009, 2005-Ohio-5018, ¶ 16; Elmer v. Lucas Cty. Children Serv. Bd., 36 Ohio App.3d 241, 244, 523 N.E.2d 540 (6th Dist.1987) ("[T]here is no need to implement a reunification plan when it would be futile."). "Obviously, when a parent is imprisoned, reunification is futile until the parent is released and obtains a stable home." N.A.P. at ¶ 45. Accord Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L.Rev. 321, 366, fn. 222 (2005) (citation omitted) ("The larger obstacle to successful reunification in cases where the parent is incarcerated, however, is the lack of a foreseeable and timely reunification. The health and safety of a child will almost always require that any reunification be within the foreseeable future and within a reasonable time. A parent incarcerated for any length of time longer than a few months quite obviously faces a significant barrier to reunification, no matter what efforts the agency makes.").
{¶ 38} In sum, after our review of the evidence and arguments, we are unable to conclude that the trial court's permanent custody decision is against the manifest weight of the evidence.
{¶ 39} Accordingly, based upon the foregoing reasons, we overrule appellant's assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the appeal be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:/s/_________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.