Opinion
C. A. 2022-CA-10
07-07-2023
IN THE MATTER OF: E.B.
KANDI HEAVILIN FOLEY, Attorney for Appellee RICHARD L. KAPLAN, Attorney for Appellant
(Appeal from Common Pleas Court-Juvenile Division Trial Court Case No. 22030029)
KANDI HEAVILIN FOLEY, Attorney for Appellee
RICHARD L. KAPLAN, Attorney for Appellant
OPINION
EPLEY, J.
{¶ 1} The biological mother of E.B. ("Mother") appeals from a judgment of the Darke County Court of Common Pleas, Juvenile Division, that awarded permanent custody of the child to Darke County Children Services ("Children Services"). For the reasons that follow, the judgment of the trial court will be affirmed.
I. Facts and Procedural History
{¶ 2} E.B. was born to Mother and Father (who is not a party to this appeal) in April 2019.At the time this case began, E.B. was in the care of Mother.
{¶ 3} Children Services became involved with E.B. in late 2020. On November 29, 2020, Greenville officers were dispatched to Mother's home to do a welfare check on E.B. after a concerned citizen reported that he had observed Mother slap E.B. on the chest in an effort to stop her from crying. The person also reported that E.B. had cigarette burns on her body and a bad rash on her leg. The report advised that the living conditions in the home were poor, specifically that there were bedbugs and roaches present. Officers arrived and confirmed the allegations. E.B. was removed from the home and placed in the temporary custody of Children Services.
{¶ 4} On January 26, 2021, the trial court found E.B. to be a dependent child under R.C. 2151.031 (A). A case plan was created to facilitate reunification and had the following objectives: (1) obtain and maintain suitable housing with working utilities; (2) obtain and maintain verifiable legal source(s) of income; (3) receive a diagnostic mental health [screening] through a [Children Services] approved facility and follow all recommendations; (4) remain medication compliant; and (5) abide by rules of probation. According to the record, Mother did not follow through with the objectives and, as a result, Children Services filed a motion for permanent custody on April 12, 2022.
{¶ 5} After delays due to COVID and Mother's alleged transportation issues, the permanent custody hearing was held on August 16, 2022. During the proceeding (which Mother did not attend), the court heard testimony from Victoria Martin, the clinical director at Recover and Wellness Centers, Amanda Barger, Mother's caseworker, and Bonnie Snyder, E.B.'s court appointed special advocate ("CASA"). Several exhibits were also admitted into evidence. At the conclusion of the trial, the court ruled from the bench that E.B. had been in the temporary custody of Children Services for 12 or more months of a consecutive 22-month period and that permanent custody was in the best interest of the child. A judgment entry was filed on August 29, 2022.
{¶ 6} Mother has filed a timely appeal.
II. Due Process
{¶ 7} In her first assignment of error, Mother alleges that the "trial court's procedure and resulting decision violated [her] fundamental rights pursuant to the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution to raise and care for E.B. as she deems appropriate." Appellant's Brief at 14. We disagree.
{¶ 8} "Due process" does not have a precise definition, but its basis is found in the Fifth Amendment to the United States Constitution which reads: "No person shall be * * * deprived of life, liberty, or property without due process of law[.]" Though originally only applicable to the federal government, the principle was extended to the states by the Fourteenth Amendment. The concept is present in the Ohio Constitution as well. "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law[.]" Article I, Section 16, Ohio Constitution. "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
{¶ 9} Procedural due process (which is the issue Mother appears to raise) challenges the "adequacy of the procedures employed in a government action that deprives a person of life, liberty, or property." Ferguson v. State, 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250, ¶ 42. The reason for the procedural due process requirement is "to ensure that whenever government action deprives a person of life, liberty or property, such a deprivation is implemented in a fair manner." State v. Newberry, 77 Ohio App.3d 818, 821, 603 N.E.2d 1086 (4th Dist.1991).
Continuance
{¶ 10} Mother objects to the trial court's decision to deny a continuance on the day of trial. However, any harm suffered by Mother (and there is no evidence that there was any) was self-inflicted and did not negatively impact her due process rights. On April 12, 2022, the court sent out notices to the parties, including Mother, that the permanent custody trial would be held on June 29, 2022. Despite knowing about the trial date two and a half months in advance, Mother called the morning of the trial and stated that she did not have transportation to the courthouse. The court granted a continuance that morning and sent out notice of the new trial date, August 16, 2022. The Court noted that there would be no more continuances.
{¶ 11} On August 16, Mother failed to appear, again citing "transportation issues." Her trial attorney made an oral motion to continue the trial or to allow her to participate via telephone, but the court declined, stating:
[Mother] had every opportunity to appear. It was weeks ago when we had the prior hearing. * * * I have said over and over in this court, the Court will
provide transportation. And she doesn't live that far away. Piqua is what I think I heard. I mean, if anybody would have told us, if she would have called up here at 8:00 a.m., we would have made arrangements.
Trial Tr. at 9. Despite defense counsel's objection, the trial went forward without Mother present.
{¶ 12} Mother's due process rights were not infringed by the trial court, because a parent's right to be present at a custody hearing is not absolute. In re L.C., 2d Dist. Montgomery Nos. 27174, 27175, 2016-Ohio-8188 ¶ 10, citing In re A.L.W., 9th Dist. Summit No. 27312, 2016-Ohio-911; In re M.M., 4th Dist. Meigs No. 14 CA 6, 2014-Ohio-5111. In a permanent custody case such as the one at bar, "[d]ue process includes a hearing upon adequate notice, assistance of counsel, and under most circumstances, the right to be present at the hearing." In re R.W.H., 2d Dist. Montgomery No. 28880, 2021-Ohio-4024, ¶ 89. In this case, the court provided notice of the new trial date, and at the proceeding, there was a full trial with multiple witnesses, exhibits and arguments. Mother's trial counsel fully advocated for her, vigorously cross-examined witnesses, and objected to both testimony and exhibits. Contrary to Mother's position that there were "no countervailing reasons" not to grant the continuance, the court had a responsibility to determine the disposition as quickly as possible; the child had been in the foster care system since 2020, and the obligation to provide E.B. with permanency and normalcy outweighed the request for a continuance. Mother's due process rights were not violated when the trial court denied her motion for a continuance. Accord In re MM. at ¶ 51 ("Counsel meaningfully represented appellant at the hearing, a complete record was made, and appellant has failed to show what additional testimony or evidence she would have offered that would have changed the outcome of the case.").
Vagueness
{¶ 13} Mother next asserts that her due process rights were violated because "[t]he requirement that [she] obtain suitable housing is vague on its face and as applied to [her] case." Appellant's Brief at 17. While not expressly stated, we interpret her argument as invoking the "void for vagueness" doctrine. The doctrine is based on the due process provision of the Fourteenth Amendment and bars enforcement of "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). See also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ("[T]he void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.").
{¶ 14} In the case at bar, we cannot say the requirement that Mother obtain suitable housing was void for vagueness. This constitutional doctrine applies almost exclusively to penal statutes, which have the potential to take away a person's liberty. But see Norwood v. Horney, 110 Ohio St.3d 353, 2006 -Ohio-3799, 853 N.E.2d 1115, ¶ 104 (applying the void for vagueness doctrine to eminent domain). Accordingly, because Mother is not complaining of a criminal statute, the void for vagueness doctrine does not apply and her due process rights were not violated.
Hearsay Evidence
{¶ 15} Mother further asserts that her rights were abridged because medical and court documents were admitted in violation of the rule against hearsay. According to Evid.R. 801(C), "hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted[.]" Hearsay is not admissible "except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly * * *, by [the Rules of Evidence], or by other rules prescribed by the Supreme Court of Ohio." Evid.R. 802.
{¶ 16} Here, Mother challenges two sets of documents. Exhibits 1 and 2 were medical records from Recovery and Wellness Centers, where she received her initial diagnostic mental health assessments. These documents, while hearsay, were admitted via Evid.R. 803(6), the business records exception. The Rule states that a document may be admissible if it displays four essential elements: "(1) it must have been kept in the regular course of business; (2) it must stem from a source who had personal knowledge of the acts, events, or conditions; (3) it must have been recorded at or near the time of the transaction; and (4) a foundation must be established by the testimony of either the custodian of the record or some other qualified person." Royse v. Dayton, 2011-Ohio-3509, 958 N.E.2d 994, ¶ 25 (2d Dist.). The business records exception also has an authentication requirement. "[T]he testifying witness must possess a working knowledge of the specific record-keeping system that produced the document * * * [and] be able to vouch from personal knowledge of the record-keeping system that such records were kept in the regular course of business." State v. Davis, 62 Ohio St.3d 326, 343, 581 N.E.2d 1362 (1991).
{¶ 17} Victoria Martin, the clinical director at Recovery and Wellness, testified at trial that as the center's director and supervisor of clinicians, she had access to all records kept in its electronic filing system. She further stated that every time a clinician had an appointment with a patient, notes from the session were immediately entered into the record system. Martin's testimony created a proper foundation for the admission of Exhibits 1 and 2 as business records in accordance with Evid.R. 803(6).
{¶ 18} Exhibits 3 through 7 were printouts from the Miami County Municipal Court website purporting to show that Mother owed fines and fees in various cases and that she had a pending theft charge from that county. While Exhibits 1 and 2 fit within a recognized hearsay exception, these records did not. Children Services suggested that the trial court admit the exhibits, relying on Evid.R. 902 - evidence that is self-authenticating, specifically Evid.R. 902(5), "official publications."
{¶ 19} The scope of Rule 902(5) extends to books, pamphlets, and other publications purporting to be issued by a public authority. 31 Fed. Prac. & Proc. Evid. § 7139 (2d ed.). While "publication" is not defined, there is no reason to think that the drafters had anything other than the ordinary meaning in mind: a writing produced in multiple copies for distribution to persons beyond those involved in the creation of the writing. Id., citing Black's Law Dictionary (11th ed., 2019). Therefore, official publications may be distinguished from the subjects covered by the preceding subdivisions of Rule 902, public records (Evid.R. 902(4)) and public documents (Evid.R. 902(2)-(3)), in that those items are usually prepared for filing or recording in a public office, not distribution. Id. The following are examples of what Ohio courts have concluded are "official publications" pursuant to Evid.R. 902(5): State v. Frakes, 5th Dist. No. 07CA0013, 2008-Ohio-4204, 2008 WL 3856293 (NHTSA manual); Tippie v. Patnik, 11th Dist. Geauga No. 2007-G-2787, 2008-Ohio-1653 (OToole, J., dissenting) (Secretary of State website); State v. Hyslop, 6th Dist. Lucas No. L-03-1298, 2005-Ohio-1556 (state identification card); Dayton Invest. Group v. Holden, 2d Dist. Montgomery No. 18309, 2000 WL 1513917 (Oct. 13, 2000) (HUD pamphlet); Wofter v. Wofter, 5th Dist. Muskingum No. 98 CA 28, 1999 WL 436829 (June 16, 1999) (school handbook); State v. Acker, 6th Dist. Lucas No. L-89-238, 1990 WL 152141 (Oct. 12, 1990) (high school yearbook); Florer v. Queen City Grain Co., Inc., 1st Dist. Hamilton No. C-800907, 1981 WL 10072 (Oct. 28, 1981) (county zoning resolution). By contrast, the evidence presented in this case was not admissible under Evid.R. 902(5).
{¶ 20} The exhibits presented here appear to be public records. To be admissible under Evid.R. 902(4), there must be a certified copy of the document. Presented at trial, however, was a printed court docket from the Miami County Municipal Court, which showed that Mother had outstanding fines and a pending criminal charge. Although it admitted the documents, the trial court seemed to recognize the issue: "The Court will point out that Children Services could have easily just gotten certified copies of all of these records, and it wouldn't have been a problem at all." Trial Tr. at 55. We find that the trial court erred in admitting the court documents.
{¶ 21} While the evidence that Mother owed several hundred dollars in fines was inadmissible and was error, it was a harmless error to admit the document showing that she had a pending theft charge, because there was other evidence presented that confirmed it. In addition to the internet print-out, case worker Amanda Barger testified that she had independently verified the charge by calling the police. Trial Tr at 48. As a result, evidence of this particular charge was properly before the trial court.
{¶ 22} Even with the improper admission of some of the municipal court documents, we fail to see how Mother's due process rights were violated.
Mental Health Compliance
{¶ 23} Finally, Mother contends that her due process rights were violated when the trial court did not consider her alleged partial compliance with mental health requirements. Mother makes no effort to explain how this was a violation of her due process rights, and we will consider this argument in the manifest weight claim in Mother's second assignment of error.
{¶ 24} Though the trial court erred in admitting several exhibits demonstrating that Mother had unpaid fines relating to other court cases, there is nothing in the record that demonstrates her due process rights were violated. Mother's first assignment of error is overruled.
III. Manifest Weight and Sufficiency of the Evidence
{¶ 25} In her second assignment of error, Mother claims that the trial court's decision to grant permanent custody to Children Services was against the manifest weight of the evidence and based on insufficient evidence.
{¶ 26} The United States Supreme Court has described parents' interest in the care, custody, and control of their children as "perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). This interest, however, is not absolute. "The state has broad authority to intervene to protect children from abuse and neglect." State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court, Prob. Div., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380, ¶ 58 (O'Connor, C.J., dissenting).
{¶ 27} Because awarding permanent custody is a "drastic remedy that involves the termination of parental rights, permanent custody determinations must be based upon clear and convincing evidence." (Citations omitted.) Id. "Clear and convincing" means more than a preponderance, but less than "clear and unequivocal." In re Rose, 2017-Ohio-694, 85 N.E.3d 498, ¶ 19 (2d Dist.). Whether there was sufficient evidence to support the clear and convincing standard is a question of law which we review de novo. In re D.G., 2021-Ohio-429, 168 N.E.3d 43, ¶ 8 (1st Dist.).
{¶ 28} R.C. 2151.414 sets forth a two-part analysis for courts to consider when determining a motion for permanent custody to a public services agency. First, the trial court must find by clear and convincing evidence that the child either (a) cannot or should not be placed with the parent within a reasonable time; (b) is abandoned; (c) is orphaned with no relatives above to take permanent custody; or (d) has been in the temporary custody of a public or private children services agency for 12 or more months of a consecutive 22-month period. In re I.W., 2d Dist. Clark No. 2019-CA-76, 2020-Ohio-1643, ¶ 20; R.C. 2151.414.
{¶ 29} If the first prong is met, the court must then determine whether granting permanent custody is in the best interest of the child. In re J.N., 2d Dist. Clark No. 2019-CA-82, 2020-Ohio-4157, ¶ 26; R.C. 2151.414(B)(1). R.C. 2151.414(D)(1) sets out factors the court must consider:
(a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child * * *;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
"No one element is given greater weight or heightened significance." In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
{¶ 30} Once a decision is made regarding permanent custody of a child, an appellate court will not reverse absent an abuse of discretion. In re J.N. at ¶ 22. The term "abuse of discretion" implies the court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "[T]he discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned." Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Because "[t]he knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record[,] * * * the reviewing court in such proceedings should be guided by the presumption that the trial court's findings were indeed correct." (Citations omitted.) Id.
{¶ 31} There is no dispute that E.B. had been in the temporary custody of Children Services for at least 12 months of a consecutive 22-month period as is required by R.C. 2151.414(B) and, because of that, the trial court's analysis focused only on whether granting permanent custody to Children Services was in the best interest of the child. After considering all the requisite factors, it found, by clear and convincing evidence, that granting permanent custody to Children Services was in the best interest of E.B. Our review of the record leads to the same conclusion.
Wishes of the Child through the Guardian Ad Litem
{¶ 32} The first factor the trial court felt was especially important was R.C. 2151.414(D)(1)(b) - the wishes of the child, as expressed directly by the child or through the child's guardian ad litem. While E.B. was too young to express her own wishes, she was represented by Bonnie Snyder, her CASA since the beginning of the case in December 2020. Snyder testified that Mother was unable to provide housing or a steady income to support E.B. She also noted that Mother had unresolved mental health concerns, outstanding legal issues, and had not complied with court orders. She was also concerned that Mother consistently ignored E.B. during supervised visits, choosing to instead focus on another child. Overall, it was Snyder's belief that it was in E.B.'s best interest to be placed in the permanent custody of Children Services.
Custodial History of the Child
{¶ 33} The next factor that the trial court found convincing was R.C. 2151.414(D)(1)(c) - the custodial history of the child. E.B. had been in and out of foster homes since being removed from Mother's care at the end of 2020. The record indicates that she had five different placements in that time, including a three-month span with her paternal great-grandparents. Despite Mother's argument that being placed in five foster homes in a two-year period "is not a significant number," it is clear that living with multiple families every year is not ideal for a young child.
The Child's Need for a Legally Secure Permanent Placement
{¶ 34} The final factor highlighted by the court was R.C. 2151.414(D)(1)(d) - 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. Victoria Martin, Amanda Barger, and Bonnie Snyder testified in support of this factor.
{¶ 35} Barger testified that she had been Mother's caseworker since January 2021 and was familiar with the case plan and the steps Mother had taken to be reunited with E.B. One of the issues that Mother had was that she had not demonstrated that she had "suitable housing" for E.B. as required by the plan. Barger told the court that Mother lived in a one-bedroom apartment in Piqua with her mom, stepdad, and boyfriend. The fact that there were four adults (and two dogs) in a one-bedroom space was a concern for Barger, but more than that was the fact that there were structural issues - walls were crumbling, the front door did not latch, and a step leading to the apartment had failed, meaning that one could fall through. Perhaps the biggest concern, however, was that Mother had known the house was not suitable since January 2021, but had done nothing about it. Trial Tr. at 36-37.
{¶ 36} There was also testimony from Barger that Mother had not complied with the requirement that she obtain and maintain employment. While Mother had had two confirmed jobs since January 2021 (Taco Bell and Burger King), the employment lasted only a few weeks. The court heard that for the majority of the timeframe, Mother would say she was working, but when Barger called to verify, the business had no record of her, and Mother never provided any pay stubs to confirm employment.
{¶ 37} According to trial testimony from Victoria Martin, Mother also failed to comply with the requirement that she receive a diagnostic mental health screening and follow all recommendations. Martin told the court that Mother had attended her initial service appointment at Recovery and Wellness and then never returned for follow-ups. She had also been scheduled for a medical evaluation for which she failed to show up and did not reschedule. In fact, Mother failed to show at least six times. See also Exhibits 1 and 2.
{¶ 38} Finally, there was testimony that Mother did not consistently attend visitations with E.B. According to Barger, in the first eight months of 2022, there were approximately 30 visits scheduled and Mother attended 15. At the visits she did attend, Mother rarely acknowledged E.B., choosing instead to focus on her other child. "[S]ometimes when they see each other for that initial, she doesn't even acknowledge [E.B.] is there. And throughout the visit, there will be a lot of times that she will ignore what [E.B.] is doing * * * and not engage with her." Trial Tr. at 67.
{¶ 39} Based on the evidence of Mother's struggles and apparent apathy toward her daughter, the court determined that to achieve a permanent placement for E.B., it was necessary to grant permanent custody to Children Services. The court heard that Foster Mom, with whom E.B. had bonded, wanted to adopt E.B. if permanent custody were granted and Children Services would pursue that adoption.
{¶ 40} After considering the requisite factors, the trial court found by clear and convincing evidence that E.B. had been in the temporary custody of Children Services for over 12 months of a consecutive 22-month period and that it was in the best interest of the child to grant permanent custody to Children Services and divest Mother of parental rights. The trial court's decision analyzed the necessary factors and was reasonable. Based on our review of the record, we cannot say the trial court abused its discretion.
{¶ 41} The assignment of error is overruled.
IV. Conclusion
{¶ 42} The judgment of the trial court will be affirmed.
TUCKER, J. and LEWIS, J., concur.