IN THE SUPREME COURT OF OHIO

IN RE:

JEREMY JONES 07" -0009On Appeal from the FranklinCounty Court of AppealsTenth Appellate District

Court of AppealsCase No.: 06 AP 495

APPELLANT-MOTHER JACKAY ANDY'SMEMORANDUM IN SUPPORT OF JURISDICTION

Rosemarie A. Welch (0070400) Gerald Roderick (0018492)Attorney for Appellant Jackay Andy Attorney for Father, DeceasedRosemarie A. Welch Co., L.P.A. 5 E. Long St., Ste. 6052021 E. Dublin-Granville Rd. Ste. 170 Columbus, OH 43215Columbus, OH 43229 (614) 221-8651(614) 318-0073

Robert J. McClaren (0046657)Attorney for Appellee FCCSFranklin County Children Services855 W. Mound St., 3`d FloorColumbus, OH 43223(614) 275-2587

Harry Panitch (0059725)Guardian ad Litem for Appellant454 E. Main St., Ste. 275Columbus, OH 43215(614) 221-3178

Eric Wahl (0073749)Guardian ad Litem1170 Old Henderson Rd., Ste. 109Columbus, OH 43220(614) 442-1953

F 7^ DJAN 0 4 2007

MARCIA J MEN(.,FL. CLERKSUPREME C0UR7 OF OHIO

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ...................................................................................................ii

EXPLANATION AS TO WHY THIS CASE PRESENTSA QUESTION OF PUBLIC OR GREAT GENERAL INTERESTAND A CONSTITUTIONAL QUESTION ..................................................................................1

STATEMENT OF FACTS AND OF THE CASE ........................................................................3

ARGUMENT ................................................................................................................................7

OHIO REVISED CODE SECTION 2151.414(E)(11) AND OHIOREVISED CODE SECTION 2151.419(A)(2)(e) AREUNCONSTITUTIONAL AND VIOLATE THE DUE PROCESSAND EQUAL PROTECTION CLAUSES OF THEFOURTEENTH AMENDMENT ...........................................................................7

1 COURTS ARE DIRECTED BY THE "SHALL" WORDINGIN R.C. 2151.414(E) TO MAKE A PARTICULARFINDING WITHOUT ANY CONSIDERATION OFTHE SPECIFIC CASE FACTS ...........................................:......................8

2. R.C. 2151.419(A)(2)(e) FORCES THE COURT TO FIND THATTHE CHILDREN SERVICES AGENCY, WITHOUTREGARD TO THE SPECIFIC CIRCUMSTANCES OFTHE CASE, DOES NOT NEED TO DO ANYTHINGTO HELP FACILITATE REUNIFICATION .............................................9

3. THE DUE PROCESS AND EQUAL PROTECTION RIGHTSOF THE PARENTS ARE VIOLATED WHEN THE COURTIS RESTRAINED FROM MAKING ANY SPECIFICDETERMINATIONS OR ORDERS ON THE PRESENTCIRCUMSTANCES OF THE PARENTS AND FROMTAKING STEPS TO KEEP THE FAMILY TOGETHER .......................10

CONCLUSION .............................................................................................................................12

CERTIFICATE OF SERVICE ......................................................................................................13

APPENDIX ...................................................................................................................................14

Opinion of the Tenth Appellate District (November 21, 2006) ........................................15

Decision and Entry of Franklin County Juvenile Court ....................................................30

TABLE OF AUTHORITIES

CASES

In re Haves (1997), 79 Ohio St.3d 46 ..................................................................7, 11

Meyer v. Nebraska (1923), 262 U.S. 390 ............................................................7

Santosky v. Kramer (1982), 455 U.S. 745 ...........................................................7, 10, 11

In re Smith (1991), 77 Ohio App.3d 1 .................................................................7> 11

Troxel v. Granville (2000), 530 U.S. 57 ..............................................................7

STATUTES

R.C. 2151.353 ......................................................................................................3

R.C.2151.414 ......................................................................................................3,5,7,8,9, 11, 12

R.C. 2151.419 ......................................................................................................3, 7, 9, 10, 11, 12

ii

EXPLANATION AS TO WHY THIS CASE PRESENTS A QUESTION OF PUBLICOR GREAT GENERAL INTEREST AND A CONSTITUTIONAL QUESTION

Parental right termination proceedings are among the most serious cases heard by the

courts. Most of the cases that come before the court originate with an abuse, neglect or

dependency complaint and then the children services agency receives temporary custody of the

child(ren) while the parents attempt to work on a case plan set forth by the agency in order to

reunify with their child(ren).

In this case, however, a complaint was filed alleging dependency and the children

services agency immediately asked for a permanent court commitment based on the current law

in Ohio. As a result, the parents had no opportunity to work on a case plan and no ability to

attempt to reunify with their child.

This case asks the court to review this type of situation to determine whether it is

appropriate for the court to terminate parental rights based on a previous termination of parental

rights. Further, this case asks the court to review whether the statutes which, on their face, direct

the courts to make specific findings are Constitutional. If a parent has had a child placed into

the permanent custody of a children services agency, the court is directed to make findings that

subsequent children cannot and should not be placed with the parents as well. No regard is given

as to whether that parent has changed his/her situation. This case raises the question as to

whether such a directive is consistent with due process and equal protection rights under the

Fourteenth Amendment.

In addition, this case provides the court with an opportunity to clarify the intent of the

statutes and the situations under which parents might have to have their parental rights

l

terminated. Currently, parents that have changed their lives and may be capable of raising

children can still automatically lose their parental rights due to their past indiscretions. Beyond

the potential Constitutional problems, such a policy flies in the face of this country's focus on the

family and the importance placed on the family unit. Certainly, such a policy which allows the

state to remove a child from parents who at the time of that child's birth are appropriate, raises

questions of great general interest.

2

STATEMENT OF FACTS AND OF THE CASE

Jeremy Jones was born on January 15, 2005 to Gregory Jones and Jackey Andy

(Appellant). Mr. Jones is deceased as of December 30, 2005. Ms. Andy has a total of eight

children including Jeremy, the subject of this case.

This case came before the Trial Court as a direct permanent court commitment (PCC) as

Ms. Andy has had other children permanently committed to Franklin County Children Services

(FCCS and Appellee) (Appeals Court Opinion, p. 2). Ms. Andy also has four children in the

legal custody of a relative.

Jeremy was placed in foster care immediately following his birth. As a result, he has

never resided with either of his parents. On June 28, 2005, FCCS filed a complaint alleging that

Jeremy was dependent and requesting that he be permanently committed to the custody of FCCS

for the purposes of adoption under R.C. 2151.353 and 2151.414. Id.

In addition, FCCS filed a motion requesting that the Court find that reasonable efforts to

prevent the removal of Jeremy from his home and reasonable efforts to return Jeremy to the care

and custody of his parents were not required under R.C. 2151.419(A)(2). Id. FCCS' motion was

granted on June 29, 2005 since a sibling of Jeremy, also a natural child of Mr. Jones and Ms.

Andy, was permanently committed to the agency at an earlier date. Id.

The Court determined that reasonable efforts were not in Jeremy's best interest as it

would not, through reunification, achieve the permanency goal. As a result of this decision,

FCCS was not required or obligated to provide any services to Ms. Andy or Mr. Jones in order to

help them reunify with their son.

3

A trial of FCCS' request for permanent court commitment was held on August 30, 2005

and August 31, 2005. During the trial, testimony showed that Ms. Andy had made significant

progress with her prior issues of lack of housing, lack of employment and substance abuse issues.

Melissa Estrella, the FCCS caseworker, testified that Ms. Andy completed parenting classes,

maintained her residence for seven years, receives disability income from which she does pay her

bills and there has not ben any indication of substance abuse for many years (TR, August 30,

2005, at 93).

Ms. Estrella continued on that she has concerns about Ms. Andy's ability to demonstrate

what she has leamed in the parenting classes (TR, August 30, 2005, at 124). It is important to

note that Ms. Estrella is making this determination based on only seeing Ms. Andy with her son

at her office for one hour one time per week. At no time did Ms. Estrella see Ms. Andy care for

her son for any extended length of time or in a more normal home-like environment.

Following the trial, though, on September 12, 2005, the Magistrate issued a decision

granting FCCS' request for permanent custody. (Appeals Court Opinion, p. 2). A timely

objection was filed by Ms. Andy on September 23, 2005. Id. Ms. Andy argued in the objection

that the grant of permanent custody was not in the best interests of Jeremy and not supported by

the evidence presented at trial.

On April 24, 2006, the trial court overruled Ms. Andy's objections and found that it was

in the best interests of Jeremy to be permanently committed to the custody of FCCS for the

purposes of adoption. /d.

Ms. Andy timely appealed the trial court's findings. In her appeal, Ms. Andy argued that

the termination of her parental rights was not supported by clear and convincing evidence, that

4

the trial court committed plain error when it allowed the trial to go forward without Appellant's

Guardian ad Litem and that Appellant did not receive the effective assistance of counsel. Id. at

2-3.

On November 21, 2006, the Tenth District Court of Appeals issued an Opinion which

overruled all of Appellant's assignments of error and affirmed the permanent custody award to

FCCS.. Id. at 15. In response to the first assignment of error, the Appeals Court noted that

Appellant questioned only the finding that it was in Jeremy's best interests for permanent custody

to be granted to FCCS and did not question the Trial Court's finding that Jeremy should not be

placed with Appellant under R.C. 2151.414 (E)(11). (Appeals Court Opinion, p. 3). The Appeals

Court found that the Trial Court's finding that it is in Jeremy's best interests to be in the

permanent custody of FCCS was not against the manifest weight of the evidence and was

supported by clear and convincing evidence. Id. at 9. Therefore, the Appeals Court overruled

Appellant's first assignment of error. Id

In the second assignment of error, Appellant alleges plain error occurred when the Trial

Court proceeded with the trial without the Guardian ad Litem for Appellant being present. The

Appeals Court, though found that Appellant had not been prejudiced when the Guardian ad

Litem had another attorney stand in for him and that there was no indication that the result of the

trial would have been different had her actual Guardian ad Litem been present. Id at 10-11. As a

result, Appellant's second assignment of error was overruled. Id

Appellant's third assignment of error alleges that she did not receive the effective

assistance of counsel that she is guaranteed through the Constitution. Id at 10. The Appeals Court

found that the Appellant was unable to demonstrate ineffective assistance of counsel in the three

5

instances that she raised in the argument. Therefore, no plain error was found and the third and

final assignment of error was overruled by the Appeals Court. Id. at 15.

Ms. Andy now timely files the instant Notice of Appeal and Memorandum in Support of

Jurisdiction requesting that this Court review the Constitutional issues raised by this case.

6

ARGUMENT

This case raises concerns about the directives given to courts under R.C. 2151.414(E)(I 1)

and R.C. 2151.419(A)(2)(e). Currently, regardless of how much parents have accomplished and

how many changes they have undergone, parents can lose permanent custody of a child if they, at

some point in the past, lost permanent custody of another child. Such disregard for changed

circumstances and rehabilitation flies in the face of public policy and the very fabric of the

judicial system.

1. OHIO REVISED CODE SECTION 2151.414 (E)(11) AND OHIO REVISED

CODE SECTION 2151.419 (A)(2)(e) ARE UNCONSTITUTIONAL AND

VIOLATE THE DUE PROCESS AND EQUAL PROTECTION CLAUSES

OF THE FOURTEENTH AMENDMENT.

The permanent termination of parental rights has been described as "the family law

equivalent of the death penalty in a criminal case." In re Hayes (1997), 79 Ohio St. 3d 46, 48,

quoting In re Smith (1991), 77 Ohio App.3d 1. Under the Constitution, a parent has a protected

fimdamental interest in the care, custody and control of her child. This right has been well-

established over the years and through case law. See Troxel v. Granville (2000), 530 U.S. 57, 66,

147 L.Ed. 2d 49. Further, this right is protected by the due process clause of the Fourteenth

Amendment, Meyer v. Nebraska (1923), 262 U.S. 390, 399; the equal protection clause of the

Fourteenth Amendment, Santosky v. Kramer (1982), 455 U.S. 745, 753. These opinions by the

Courts show just how important and sacred parental rights are and should be in Ohio.

7

1. Courts are directed by the "shall" wording in R.C. 2151.414(E) to make a particular

finding without any consideration of the speeifie ease facts.

R.C. 2151.414 discusses procedures following the filing of a permanent custody motion

by a children services agency. The statute specifically provides instructions to the courts as to

what findings the court shall make based on particular circumstances. Id. In fact, R.C.

2151.414(E), states, "....If the court determines by clear and convincing evidence, at a

hearing....that one or more of the following exist as to each of the child's parents, the court shall

enter a finding that the child cannot be placed with either parent within a reasonable time or

should not be placed with either parent."

One of the specific circumstances that this statute continues on to reference in this section

states, "The parent has had parental rights involuntarily terminated .... with respect to a sibling of

the child." (R.C. 2151.414(E)(11)). Referencing the first part of this section, the court is

directed by the wording "shall" to enter a finding that the child cannot be placed with either

parent within a reasonable time if the parents have involuntarily lost parental rights to a sibling of

this child (R.C. 2151.414(E)).

This statute does not give the court the ability to consider whether a parent has made

significant changes in her life or whether the conditions that existed at the time of the prior loss

of parental rights have been remedied. Essentially, then, the power of whether the parental rights

of a parent of a subsequent child will be terminated actually rest in the hands of the children

services agency. If the agency files a motion for permanent custody of a child who has been born

to parents who have had their parental rights terminated in respect to another child, the court,

under the statute is left with no choice but to enter a finding that the child cannot be placed with

8

either parent within a reasonable time or should not be placed with either parent. Id. If the

agency chooses not to file a motion for permanent custody, the parents are given an opportunity

to raise the child.

A couple of things are wrong with this approach. First, this approach does not allow the

court to consider whether the parents have made significant changes in their lives and are now

able to raise a child when before they could not raise a child. For example, it is possible for a

couple to remedy all of the concerns that the agency had previously prior to having another child.

Second, this approach improperly shifts judicial power and authority. The court is the

ultimate trier of fact and must have the ultimate authority to determine what is in the best

interests of a child. Unfortunately, with the way the statute is written, the children services

agency actually has that power rather than the court. Id. If the agency files the motion for

permanent custody and the parents have had another child put into the permanent custody of the

agency, the court is directed with the "shall" wording to find that this child cannot be placed or

should not be placed with the parents. Id. The court, under the statute, is not given any authority

to take into consideration the fact that the parent may have made positive changes that would

allow them to parent a child. Id.

2. R.C. 2151.419 (A)(2)(e) forces the court to find that the children services agency,

without regard to the specific circumstances of the case, does not need to do anything to

help facilitate reunification.

R.C. 2151.419 (A)(2) states, "If any of the following apply, the court shall make a

determination that the agency is not required to make reasonable efforts to prevent the removal of

the child from the child's home, eliminated the continued removal of the child from the child's

9

home, and return the child to the child's home." The statute, then, lists out a variety of situations

where these efforts are not required. Id. R.C. 2151.419 (A)(2)(e) states, "The parent from whom

the child was removed has had parental rights involuntarily terminated...."

Again, the court is directed by the word "shall" in the statute which indicates that if a

particular set of circumstances exist, the court has no choice but to make a finding that

reasonable efforts are not required. R.C. 2151.419(A)(2). This section allows the children

services agency to remove a child, even a newbom, from his/her parents and ask for permanent

custody of that child without any consideration given to the current circumstances of the parents

and without any work, however, little may be required, towards future reunification. Id.

Again, the children services agency is able to remove a person's child based on the

previous history with a sibling without any consideration of the current circumstances of the

parent. Then, when the case comes before the court, the court has no options to re-direct the

agency or even obtain and consider additional information due to the strong wording present in

the statute. Id.

3. The due process and equal protection rights of the parents are violated when the

court is restrained from making any specific determinations or orders on the present

circumstances of the parents and from taking steps to keep the family together.

The Supreme Court has provided and applied a three part test that is designed to balance

the interests affect by permanent custody cases Santosky v. Kramer (1982), 455 U.S. 745,754.

This test seeks to balance "the private interests affected by the proceeding; the risk of error

created by the State's chosen procedure; and the countervailing governmental interest supporting

10

use of the challenged procedure." Id. In permanent custody cases, the private interests refers to

the interests of the parents who have a right to raise their children. Id.

In the present case, Ms. Andy had prior children placed in the permanent custody of

Franklin County Children Services and her parental rights were involuntarily terminated. As

previously indicated, the courts have held that the termination of parental rights is extremely

serious. In re Hayes (1997), 79 Ohio St. 3d 46, 48, quoting In re Smith (1991), 77 Ohio

App.3d 1. As a result, it would seem that all steps should be taken to avoid the possibility of

error before making a ruling to terminate parental rights.

In this case, however, since Ms. Andy had previous children placed in the permanent

custody of FCCS, Jeremy was taken from the hospital following his birth and placed in foster

care. Although Ms. Andy had maintained the same residence for seven years, received disability

income, paid her own bills and had not abused any substances for many years (TR, August 30,

2005, at 93), FCCS did not and was not required to attempt to help Ms. Andy reunify with

Jeremy. Instead, under the statutes, FCCS could ask for permanent custody without any case

planning efforts and the court was required to find that the child could not and should not be

placed with his mother. (R.C. 2151.414 (E)(I1) and R.C. 2151.419(A)(2)(e)).

Applying the Santoskv balancing test, the importance of the private interests affected is

extremely high. Santosky v. Kramer (1982), 455 U.S. 745,754. The risk of error when the Court

is directed clearly by statute to find in a certain matter without consideration for the

circumstances surrounding the situation is also extremely high. The compelling governmental

interest is minimal compared to the interests affected and the risk of error.

11

Ms. Andy's due process and equal protection rights are clearly in jeopardy when the court

is unable under statute to consider the circumstances and facts of her particular case. Further,

such a directive under the statute, completely eliminates any system of checks and balances and

undermines all sense of fairness and justice for the judicial system.

CONCLUSION

This Court should accept this case to evaluate the Constitutionality of R.C.

2151.419(A)(2)(e) and R.C. 2151.414(E)(11) in light of the seriousness of parental right

termination cases and a parent's Constitutional guarantees under the Fourteenth Amendment of

due process and equal protection. Parents who have completely changed their lives around

should be given an opportunity to raise their children without facing parental right termination

cases due to past lapses in judgment and mistakes.

Respectfully Submitted:

-•i ; r1. l. i i,^ l' C^

ROSEMARIE A. WELCH (0070400)Attorney for Appellant Jackay Andy2021 E. Dublin-Granville Rd. Ste. 170Columbus, OH 43229(614) 783-2279

12

CERTIFICATE OF SERVICE

I hereby certify that a time-stamped copy of the foregoing Notice of Appeal was servedvia ordinary U.S. mail, postage prepaid, on Robert McClaren, Franklin County ChildrenServices, 855 W. Mound St., Third Floor, Columbus, OH 43223, Eric Wahl, Guardian ad Litem,1170 Old Henderson Rd. Ste. 109, Columbus, OH 43220, Gerald Roderick, Attomey forDeceased Father, Gregory Jones, 5 E. Long St., Ste. 605, Columbus, OH 43215 and HarryPanitch, GAL for Appellant, 454 E. Main St., Ste. 275, Columbus, OH 43215 on this the 4" dayof January 2007.

^^ ' ^ t 1 ^ Z Q t L^

Rosemarie A. Welch (0070400)

13

APPENDIX

IN THE COURT OF APPEALS OF OHIO

Appellant).

TENTH APPELLATE DISTRICT

No. 06AP-495(C.P.No.05JU9B00)

(REGULAR CALENDAR)

O P I N I O N

Rendered on November 21, 2006

Robert Bracco & Associate, and Eric Wahl, Guardian AdLitem, for J.J.

Robert J. McClaren, James Zom and Monica E. Hawkins, forFranklin County Children Services.

Nigh & Zeidan, LLC, Joseph A. Nigh and Tariq H. Zeidan, forappellant J.A.

Harry Panitch, Guardian Ad Litem, for appellant J.A.

APPEAL from the Franklin County Court of Common Pleas,Division of Domestic Relations, Juvenile Branch.

SADLER, J.

{11) Appellant, J.A. ("appellant"), appeals from the judgment of the Franklin

County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which

granted permanent custody of appellant's son, "Baby J," to appellee, Franklin County

Children Services ("FCCS"), for purposes of adoption.

,S

No. O6AP1195 2

{12} The record reveals the following facts and procedural history. Baby J was

born on January 15, 2005. He is the eighth child bom to appellant, and her fourth child

with Baby J's father, who was incarcerated at the time of trial and is now deceased. Of

appellant's other seven children, five live with appellant's sister and two have been

permanently committed to FCCS for purposes of adoption. Baby J has been in foster

care since his birth. On June 28, 2005, when Baby J was roughly six months old, FCCS

filed a complaint alleging that Baby J was dependent and requesting permanent custody,

pursuant to R.C. 2151.353 and 2151.414. As well, FCCS filed a motion for a

determination that reasonable efforts to prevent removal and to return Baby J to his home

were not required, pursuant to R.C. 2151.419(A)(2). The trial court granted that motion

on June 29, 2006, based upon the fact that appellant's parental rights to a sibling of Baby

J had been previousty terminated. R.C. 2151.419(A)(2)(e).

{113} The request for permanent court commitment ("PCC") was tried before a

magistrate on August 30-31, 2005. On September 12, 2005, the magistrate issued a

decision granting PCC. On September 23, 2005, appellant filed an objection to the

magistrate's decision in which she argued that the evidence was insufficient to support

the magistrate's decision that PCC was in Baby J's best interest. By judgment entry

journalized on April 24, 2006, the trial court overruled appellant's objection and granted

FCCS' request. Specifically, the trial court found that PCC is in Baby J's best interest and

that Baby J should not be placed with appellant. Appellant timely appealed and advances

three assignments of error for our review, as follows:

1. THE TRIAL COURTS DECISION TERMINATING THEAPPELLANTS PARENTAL RIGHTS TO HER CHILD WAS

lu

No. O6AP•495 3

NOT SUPPORTED BY CLEAR AND CONVINCINGEVIDENCE.

II. THE TRIAL COURT ERRED BY TERMINATING THEAPPELLANTS PARENTAL RIGHTS BECAUSE ALLOWINGTHE PROCEEDINGS TO CONTINUE WITHOUT THEPRESENCE OF THE APPELLANTS GUARDIAN AD LITEMWAS PLAIN ERROR.

III. THE TRIAL COURT ERRED BY TERMINATING THEAPPELLANTS PARENTAL RIGHTS WHEN THEAPPELLANT DID NOT RECEIVE THE EFFECTIVEASSISTANCE OF COUNSEL GUARANTEED BY THE OHIOAND UNITED STATES CONSTITUTIONS.

(14) We begin with appellant's first assignment of error. FCCS sought

permanent custody pursuant to R.C. 2151.414(B)(1)(a). Pursuant to that statutory

provision, a court may grant permanent custody of a child to a public children services

agency if the court determines at the hearing, by clear and convincing evidence, (1) that it

is in the best interest of the child to grant permanent custody of the child to the agency,

and (2) that 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 12 or more months of a consecutive 22- 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.

(15) In the present case, the trial court determined (1) it is in the best interest of

Baby J to grant permanent custody of him to FCCS; and (2) Baby J should not be placed

with appellant. Because appellant has had her parental rights involuntarily terminated

with respect to a sibling of Baby J, the trial court was required to enter a finding that Baby

J should not be placed with appellant. R.C. 2151.414(E)(11). Thus, in support of her first

No. 06AP-495 4

assignment of error, appellant attacks only the finding that PCC is in Baby J's best

interest. She contends that the trial court focused too much on her previous substance

abuse and inability to care for her other children, and not enough on her current situation.

(16) In order to terminate parental rights, the movant must prove, by clear and

convincing evidence, one of the four factors enumerated in R.C. 2151.414(B)(1) and that

the child's best interest is served by a grant of permanent custody to FCCS. In re M.B.,

10"' Dist. No. 04AP-755, 2005-Ohio-986. Clear and convincing evidence requires that the

proof "'produce in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.' " tn ne Estep (Feb. 8, 2001), 10th Dist. No. OOAP-623, 2001

Ohio App. LEXIS 435, at '4, quoting In the Matter of Coffrnan (Sept 7, 2000), 10th Dist.

No. 99AP-1 376, 2000 Ohio App. LEXIS 4033, citing Cross v. Ledford (1954), 161 Ohio

St. 469, 120 N.E.2d 118, paragraph three of the syllabus.

(17} A trial court's determination in a permanent custody case will not be

reversed on appeal unless it is against the manifest weight of the evidence. In re And)6

Jones, 10"' Dist. No. 03AP-1167, 2004-Ohio-3312, ¶28. Judgments supported by some

competent, credible evidence going to all essential elements of the case are not against

the manifest weight of the evidence. Ibid.; C.E. Morris Co. v. Foley Construction Co.

(1978), 54 Ohio St.2d 279, 376 N.E.2d 578, paragraph one of the syllabus.

(18) The findings of a trial court are presumed correct since, as the trier of fact, it

is in the best position to weigh the evidence and evaluate the testimony. In re Brown

(1994), 98 Ohio App.3d 337, 342, 648 N.E.2d 576; In n: Hogle (June 27, 2000), 10th Dist.

No. 99AP-944. Moreover, "every reasonable presumption must be made in favor of the

judgment and the findings of facts [of the trial court]." Karches v. Cincinnati (1988), 38

No. O6AP-495 5

Ohio St.3d 12, 19, 526 N.E.2d 1350. "[I]f the evidence is susceptible of more than one

construction, we must give it that interpretation which is consistent with the verdict and

judgment, most favorable to sustaining the [juvenile] court's verdict and judgment." Ibid.

(19} In determining the best interest of the child, for purposes of a

permanent custody motion, the court:

* * * shall consider all relevant factors, including, but notlimited to, the following:

(1) The interaction and interrelationship of the child with thechild's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who maysignificantly affect the child;

(2) The wishes of the child, as expressed directly by the childor through the child's guardian ad litem, with due regard forthe maturity of the child;

(3) The custodial history of the child, including whether thechild has been in the temporary custody of one or more publicchildren services agencies or private child placing agenciesfor twelve or more months of a consecutive twenty-two monthperiod ending on or after March 18, 1999;

(4) The child's need for a legally secure permanent placementand whether that type of placement can be achieved without agrant of permanent custody to the agency;

(5) Whether any of the factors in divisions (E)(7) to (11) of thissection apply in relation to the parents and child.

R.C. 2151.414(D).

{110} First, the trial court was required to consider Baby J's interaction and

interrelationship with his mother, his relatives and his foster mother. Baby J's young age

precludes direct inquiry of him with respect to his relationships with these individuals.

Baby J has been in the foster mother's care since his birth and J.A. has never been

i "I

No. 06AP-495 6

responsible for his care. Nonetheless, caseworker Melissa Estrella ("Estrella"), testified

that Baby J recognizes J.A. and that she shows him affection. Baby J's foster mother,

Malta Regina Nice ("Nice") testiried that at times Baby J "lights up" when he sees J.A.

during supervised visits.

{111} However, Estrella also testified that J.A. has attended only roughly half of

the available weekly two-hour supervised visits with Baby J (though some missed visits

were due to the baby being ill) and that J.A. frequently seeks to end visits early because

two hours is too long for her. Estrella testified that she is concemed for Baby J's safety

while he is with his mother; Estrella would not be comfortable leaving J.A. alone with

Baby J for five minutes. Estrella related that J.A. has difficulty holding Baby J properly

and has nearly dropped Baby J on occasion. She also tried to feed Baby J part of a

Wendy's hamburger and french fries when he was four months old despite the fact that

he has had problems with a reflux disorder.

{112} According to Estrella, who is a licensed social worker employed with FCCS

for ten years, J.A. remains concerned primarily with her own needs and not with Baby J's.

When asked whether she has ever observed J.A. being able to put Baby J's needs ahead

of her own, Estrella replied, "[a]bsolutely not." Nice, too, testified that J.A. cannot stay

focused on Baby J during visits because she becomes "distracted by talking about things

going on with her." (Tr. Vol. I, 129.)

{113} Estrella has attended all but one of J.A.'s two-hour supervised visits with

Baby J. Estrella testified that she has never seen J.A demonstrate the parenting skills

that she learned during the parenting classes that she previously completed. In another

instance, Estrella testified that only very inconsistently has she seen J.A. demonstrate

No. 06AP-495 7

that she can implement what she has learned. When asked to describe how parenting

classes have been helpful and to explain how these classes have helped improve her

parenting, J.A. cfted only the reassurance she felt in meeting other mothers that are in

circumstances similar to her own; she stated that she already knew how to perform the

child care skills that were taught in the parenting classes and did not identify any

parenting skills with respect to which she felt she had improved as a result of attending

the classes. Estrella related that during supervised visits, J.A. has been able to console

Baby J on only a few occasions, but usualiy seeks guidance from others when Baby J

cries or becomes fussy. Nice stated that J.A. usually does not change Baby J's diapers

during visits.

{114} Nice testified that she has cared for Baby J since he was two days old. She

explained that he is underdeveloped physically and has trouble gaining weight. At the

time of trial, Baby J was being evaluated to determine whether he has cerebral palsy. He

is developmentally delayed. He could not yet crawl at the time of trial, despite the fact

that he was eight months old, and he could sit up only with difficulty. Nice testified that

raising Baby J requires a great deal of intensive, one-on-one interaction including time

spent working intensely on his motor skills to encourage him to sit up and push up on his

hands. Nice maintains a consistent schedule of feedings every two to three hours, and

takes Baby J to doctor visis approximately three times per month. Estrella testified that

she is confident that J.A. would not be successful keeping Baby J on a consistent

schedule if she were his caregiver.

No. 06AP-495 8

(115} Nice testified that she and her husband have a 16-year-old biological

daughter who is usually "inseparable" from Baby J, and the couple also cares for a 2-

year-old foster child.

11[16} The evidence demonstrates that Baby J is well cared for by his foster family

and that his medical and developmental needs are being met. He recognizes J.A. and is

happy to see her, but she is unable to place his needs before hers and is unable to

implement adequate parenting skills during supervised visits. J.A. has never been the

primary caregiver for Baby J. This factor weighs in favor of permanent custody.

1117) Next, the trial court was required to consider the wishes of the child, as

expressed through his guardian ad litem. Baby J's guardian ad litem reported that Baby J

is well cared for in foster care. The guardian ad litem opined that appellant has failed to

improve in her parenting skills and felt that continuing with the case plan would be a

fruitless endeavor and would only delay the inevitable. The guardian ad litem

recommended that the trial court grant the PCC request. This factor weighs in favor of

permanent custody.

11181 Next, the court was required to take into account the custodial history of the

child. The evidence clearly demonstrated that Baby J has been in foster care

continuously since he left the hospital after his birth. This factor weighs against appellant.

{1191 Next, the court was required to consider Baby J'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. "Without doubt, every child needs a legally

secure placement. The question is whether or not the parent[ ] can provide such a

placement." In re J.S., 10'" Dist. No. 05AP-615, 2006-Ohio-702, 127.

No. O6AP-095 9

{120} In this case, the trial court found that a legally secure placement could not

be achieved without a grant of permanent custody to FCCS. Sufficient competent,

credible evidence supports this conclusion. Baby J has never resided with his mother

and the evidence demonstrated that J.A. is unable to meet his day-to-day needs. Estrella

testified that J.A.'s sister is unable to care for Baby J because she currently cares for five

of J.A.'s other children, all of whom have special needs. According to Estrella there are

no other relatives suitable to care for Baby J. Nice testified that she would consider

adopting Baby J if that option were available. This factor weighs in favor of permanent

custody.

{121} Finally, the court was required to consider whether any of the factors in R.C.

2151.414(E)(7) through (11) apply in this case. The court found that R.C.

2151.414(E)(11) applies because appellant has had her parental rights involuntarily

terminated with respect to a sibling of Baby J. Appellant has never disputed this fact.

This weighs in favor of permanent custody and against appellant.

{122} Upon review of the record, we find that the trial court properly determined

that it is in Baby J's best interest to grant permanent custody to FCCS, and the court's

determination in this regard is supported by clear and convincing evidence. Accordingly,

appellant's first assignment of error is overruled.

{123} Appellants second and third assignments of error raise issues that she

never raised in her objection to the magistrate's decision. Pursuant to Civ.R.

53(D)(3)(b)(iv), "[e]xcept for a claim of plain error, a party shall not assign as error on

appeal the court's adoption of any factual finding or legal conclusion, whether or not

specifically designated as a finding of fact or conclusion of law under Civ. R.

No. O6AP-495 10

53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by

Civ. R. 53(D)(3)(b)." This rule "imposes a duty to make timely, specific objections in

writing to the trial court, identifying any error of fact or law in the magistrate's decision." In

re A.V., 10" Dist. No. 05AP-789, 2006-Ohio-3149, ¶22, citing O'Connor v. Trans World

Senis., 10°i Dist. No. 05AP-560, 2006-Ohio-2747, ¶8. Thus, in failing to raise below the

issues raised in her second and third assignments of error, appellant has waived all but

plain error.

(124) "In civil cases, the plain error doctrine is not favored and may be applied

only in the extremely rare case involving exceptional circumstances where error seriously

affects the basic faimess, integrity, or public reputation of the judicial process itself." In re

H.M.S., 10'hDist. No. 05AP-613, 2006-Ohio-701, ¶6, citing Goldfuss v. Davidson (1997),

79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus. In the present case, we find no plain

error.

{125} In support of her second assignment of error, appellant argues that the trial

court committed plain error when it proceeded on the second day of trial even though

appellants guardian ad litem was out of town and had previously told the court that he

could not be present that day and would have to send another attomey in his place. But

appellant has failed to demonstrate that she was prejudiced by the fact that a "stand-in"

attomey appeared on behafF of her guardian ad litem on the second day of trial. The

attorney who appeared related to the court the guardian ad litem's position that PCC

should not be granted and that the court should allow appellant to work further on her

case plan. Therefore, the guardian's supportive recommendation was made to the court.

/No. 06AP-495 11

(126) More importantly, however, the court had before it overwhelming evidence

that it would be in Baby J's best interest for the court to grant PCC, including the opinion

from Baby J's guardian ad litem that further case plan efforts would be "futile" and would

serve only to delay the "inevitable" granting of PCC to FCCS. Appellant has failed to

demonstrate that the basic faimess of her trial was undermined or that its result was

affected by the fact that another attorney appeared in place of her guardian ad litem for

part of the trial. Accordingly, appellant's second assignment of error is overruled.

(127) In her third assignment of error, appellant argues that she received

ineffective assistance of counsel because counsel failed to ( 1) object to the presence of

the caseworker throughout the trial; (2) cross-examine Baby J's guardian ad litem; and (3)

argue that R.C. 2151.414(B)(1)(d) is unconstitutional as applied to appellant. Again, we

review only for plain error.

(128) Pursuant to R.C. 2151.352, parents are guaranteed the right to counsel at

all stages of a permanent custody proceeding. This right also arises from the guarantees

of due process and equal protection contained within the constitutions of Ohio and the

United States. State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66,

paragraph two of the syllabus. The right to counsel includes the right to effective

assistance of counsel. In re Heston (1998), 129 Ohio App.3d 825, 827, 719 N.E.2d 93.

The test for ineffective assistance of counsel used in criminal cases is equally applicable

to actions seeking to force the permanent, involuntary termination of parental custody. In

rre McLemore (Mar. 20, 2001), 10" Dist. No. OOAP-974.

{129) A properly licensed attorney in Ohio is presumed competent. Vaughn v.

Maxwell (1965), 2 Ohio St.2d 299, 301, 31 0.O.2d 567, 209 N.E.2d 164. Thus, the

No. 06AP-495 12

burden of showing ineffective assistance of counsel is on the party asserting it. State v.

Smith (1985), 17 Ohio St.3d 98, 100, 17 OBR 219, 477 N.E.2d 1128. Trial counsel is

entitled to a strong presumption that all decisions fall within the wide range of reasonable

professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.

Tactical or strategic trial decisions, even if ultimately unsuccessful, do not generally

constitute ineffective assistance of counsel. State v. Carter (1995), 72 Ohio St.3d 545,

558, 651 N.E.2d 965 ("judicial scrutiny of counsel's performance is to be highly

deferential, and reviewing courts must refrain from second-guessing the strategic

decisions of trial counsel"); State v. Carpenter (1996), 116 Ohio App.3d 615, 626, 688

N.E.2d 1090 (a court of appeals is to "presume that a broad range of choices, perhaps

even disastrous ones, are made on the basis of tactical decisions and do not constitute

ineffective assistance").

(130) "The benchmark for judging any claim of ineffectiveness must be whether

counsel's conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result." Strickland v. Washington

(1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674. To succeed on her claim of

ineffective assistance of counsel, appellant must satisfy a two-prong test. First, she must

demonstrate that her trial counsel's performance was deficient. Id. at 687. This requires

a showing that counsel committed errors "so serious that counsel was not functioning as

the 'counsel' guaranteed by the Sixth Amendment to the United States Constitution." Ibid.

(131} But an error by counsel, even ff unreasonable under prevailing professional

standards, does not warrant setting aside a judgment unless the error affected the

outcome of the trial. Id. at 691. Thus, once appellant has shown deficient performance, if

No. 06AP-495 13

she can make such a showing, she must also demonstrate that there exists a reasonable

probability that, were it not for her counsel's errors, the result of the trial would have been

different.' Id. at 694. "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Ibid.

{132} Though claims of ineffective assistance of counsel are comprised of two

components, "there is no reason for a court * " to approach the inquiry in the same order

or even to address both components of the inquiry if the [party asserting the claim] makes

an insufficient showing on one. In particular, a court need not determine whether

counsel's performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies." Id. at 697.

{133] First, appellant argues that her counsel was ineffective for failing to object to

Estrella's presence in the courtroom throughout trial. However, appellant does not argue,

and cannot demonstrate, that she suffered any actual prejudice as a resuB of Estrella's

presence. There has been no suggestion that Estrella interfered with the proceedings or

that her presence had any effect on the testimony of other witnesses. Accordingly,

counsel's failure to request a separation of witnesses does not constitute ineffective

assistance. In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶42; see, also, In re

Thompson, 10th Dist. No. 02AP-557, 2003-Ohio-580, ¶37.

(134) Next, appellant argues that her counsel was ineffective for failing to cross-

examine Baby J's guardian ad litem. She argues that her counsel should have probed

1 "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome ofthe proceeding. Virtually every act or omission of counsel would meet the test ""' and not every error thatconceivably could have influenced the outcome undermines the reliability of the result of the proceeding."Strickland, supra, at 693. (Citation omitted.)

No. O6AP-095 14

whether Baby J's guardian had relied upon stale information rather than first-hand

observations of appellant's more recent interactions with Baby J.

(135} An appellate court reviewing an ineffective assistance of counsel claim must

not scrutinize trial counsel's strategic decision to engage, or not engage, in a particular

line of questioning on cross-examination. State v. Revels, 12t" Dist. No. CA2001-09-223,

2002-Ohio-4231, ¶28. This is especially true when, as here, the record reveals no "basis

to conclude that cross-examination of the child's guardian ad litem would have revealed

any facts that would have changed the outcome of the trial, or would even have been

favorable to appellant" Brooks, supra, at ¶40; see, also, State v. Melhado, 10u' Dist. No.

02AP-458, 2003-Ohio-4763, appeal not accepted for review, 100 Ohio St.3d 1547, 2003-

Ohio-6879, 800 N.E.2d 752; State v. Brown (1988), 38 Ohio St3d 305, 528 N.E.2d 523;

State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037.

(1136} In fact, the decision not to cross-examine Baby J's guardian ad litem may

well demonstrate counsel's competence and skill, in light of the fact that the guardian

expressed strong and unequivocal support for FCCS' motion. If appellant's counsel was

aware of no facts that could be brought out in cross-examination to undermine the basis

for such support, cross-examination might well have served only to underscore the merits

of FCCS' position. Given that there is at least one plausible scenario under which

counsel's decision not to cross-examine the guardian ad litem was part of an astute legal

strategy, we find no ineffective assistance with respect thereto.

(137) Finally, appellant contends that her counsel was ineffective for failure to

argue that R.C. 2151.414(B)(1)(d) is unconstitutional as applied in this case. Specifically,

she argues that the statute is unconstitutional because the "twelve out of twenty-two

No. 06AP-495 15

months" provision deprived appellant of due process because she "had no control over

how long the child was out of her custody and no control over how long these

proceedings dragged out." (Brief of Appellant, at 10.)

{138} We note initially that this court has previously rejected the same argument

relating to the "twelve of twenty-two months" language of R.C. 2151.414(B)(1)(d). See,

e.g., In ie Bray, 10"' Dist. No. 04AP-842, 2005-Ohio-1540, ¶9; In re C.C., 10"' Dist. No.

04AP-883, 2005-Ohio-5163, ¶11; In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887,

132. More importantly, however, is the fact that PCC was sought and granted based

upon R.C. 2151.414(B)(1)(a), not R.C. 2151.414(B)(1)(d). Baby J had not been in FCCS'

temporary custody for twelve months when FCCS filed its complaint seeking permanent

custody; therefore, R.C. 2151.414(B)(1)(d) could never have been applied to that request.

Trial counsel was not ineffective for failing to challenge the constitutionality of a provision

not used against appellant.

{139) Appellant has failed to demonstrate ineffective assistance of counsel under

Strickland and, thus, has failed to demonstrate the existence of plain error. Accordingly,

appellant's third assignment of error is overruled.

{140) Having overruled all of appellant's assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,

Juvenile Branch.

Judgment affirmed.

FRENCH and MCGRATH, JJ., concur.

59254G20

IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIODIVISION OF DOMESTIC RELATIONS

JUVENILE BRANCHN

IN THE MATTER OF: Case No. 05JU-9600 r ^ -;o

JEREMYJONES Judge Preisse-tj

N ^nF±

'>!''tMagistrate Jorgensen C-) ^ ;,)o

rnDECISION AND ENTRY 23 r-N

This matter came before the court pursuant to Ohio Rule of Juvenile Procedure 40 (E)(3),

and the Local Rule of Juvenile Court 8(A), on the timely objection filed by Jackey Ank, rpo:therr `,

of the minor children, on September 23, 2005, to the magistrate's decision filed Segl7m* 12;'13

C- )

2005. An Objection to the Magistrate's decision was filed by the Father of the rninor^hild,

Gregory Jones on September 26, 2005. Gregory Jones died on December 30, 20(^ oral-^n

argument took place on March 1, 2006. A transcript of the proceedings beforeu)Ma°gstr5tc'-

Jorgensen has been filed with the Court.

HISTORY

This case involves the permanent placement of Jeremy Jones, born January 15, 2005.

Jackey Andy is the child's mother. The child's father, Gregory Jones, died on December 30,

2005. Jackey Andy has seven other children, five are in the permanent custody of Jackey's

sister, Patricia Sykes and two have been involuntarily permanently committed to the custody of

Franklin County Children Services (FCCS) for adoption. (See case numbers 99JU-7843 and

O1JU-01-536). TR August 30, 2005 at 36.

On June 28, 2005, FCCS filed: a complaint alleging dependency and requesting

disposition of Permanent Custody, pursuant to RC 2151.353 and RC 2151.414 and a Motion for

Determination that Reasonable Efforts are Not Required pursuant to RC 2151.419(A)(2). On

3 i.'

June 29, 2005, the Magistrate ordered that pursuant to RC 2151.419(A)(2), FCCS is not required

to make reasonable efforts to prevent the removal of the child from the child's home, or to

eliminate the continued removal of the child from the child's home, or to return the child to the

child's home, because such efforts would not achieve the permanency goal of reunification,

would not be in the best interest of the child, and for the following additional reason(s):

(e) The parent from whom the child was removed has had parental rights terminatedwith respect to a sibling of the child.

R.C. 2151.419(A)(2). Jeremy is currently in the custody of FCCS and in the foster care of Malta

Regina Nice. TR August 30, 2005 at 123. FCCS involvement with Jackey Andy d" bi+t^k ta.r'n

1989, prior to Jeremy's birth. Since 1989 when Jackey Andy first became involved ^th F^CS, :.- ^^

she has made progress with some of the prior issues such as lack of housing, emp(nment and;:;;-o

substance abuse. As indicated by Jackey's caseworker, Melissa Estrella, Jackey h=completvlc-,cn o ' °^^

parenting classes, maintained the same residence for the last seven years, receives"^egulac„,̀.'.

disability income, and pays her bills. Further, for many years, there has been no indication of

substance abuse. TR August 30, 2005 at 93.

Jackey has weekly one hour supervised visitation with Jeremy, but for a variety of

reasons, has cancelled several of her weekly visits. Ms. Estrella has directly observed many

visits and testified that while Jackey has taken parenting classes, she still presents a risk to the

child. Ms. Estrella said she would not feel comfortable allowing even five minutes of

unsupervised visitation between Jackey and her child. Further, Jeremy is a special needs child as

are all of Jackey's children. He has significant delays and possible Cerebral Palsy. TR August

30, 2005 at 124.

J9254F1o2

A trial was held on August 30, 2005 and August 31, 2005. On September 12, 2005, the

Magistrate filed a decision granting FCCS' motion for permanent court commitment of Jeremy

Andy Jones, finding by clear and convincing evidence that each parent had failed continuously

and repeatedly to substantially remedy the conditions causing Jeremy to be placed outside.the

home and, as such, Jeremy could not or should not be placed with either parent within a

reasonable time. R.C. 2151.414(E)(1). Finally, the Magistrate specifically found, by clear and

convincing evidence that it was in Jeremy's best interest to grant permanent custody to FCCS.

R.C.2151.414(B).

MOTHER'S OBJECTIONSr r^ `'r

Jackey Andy objects to the Magistrate's Decision stating that the ordef^gr^ting,;`-^

Permanent Custody of Jeremy Andy Jones to Franklin County Children Services is not4it thc^=

best interest of the child and that even if the Mother is not currently able to care for tlct '̂t^, sh0e'`I ' : L U

will be capable of doing so within a reasonable time. Furthermore, Jackey Andy arguea° thr^

was insufficient evidence to prove FCCS' case by clear and convincing evidence that Jackey is

not capable of caring for her child.

LAW AND ANALYSIS

Under Civ. R. 53(E)(3)(a), within fourteen days of the filing of a magistrate's decision, a

party may file written objections to the magistrate's decision. In accordance with Civ. R.

53(E)(3)(b), the objections shall be specific and state with particularity the grounds of the

objection. Civ. R. 53(E)(4)(b) provides that a court shall rule on any objections to a magistrate's

decision, and a court may adopt, reject, or modify the magistrate's decision, hear additional

evidence, recommit the matter to the magistrate with instructions or hear the matter.

'J92o4Ho3

Civ. R. 53 places upon the court the ultimate authority and responsibility over the

referee's findings and ralings. Hartt v. Munobe, 67 Ohio St.3d 3, 5 (1993). The trial court must

undertake the equivalent of a de novo determination in light of any filed objections, when

independently assessing facts and conclusions contained in a magistrate's report. Civ. R.

53(E)(3)(b). See also In re Thomas, No. 18029, 2000 Ohio App. LEXIS 1564 (2°d Dist. April 7,

2000). Civ. R. 53(E)(3)(b) contemplates a de novo review of any issue of fact or law that a

magistrate has determined when an appropriate objection is timely filed. The trial court may not

properly defer to the magistrate in the exercise of the trial court's de novo review. an^er u: t?rn '4

Keener, 143 Ohio App. 3d 789 (2'"i Dist. 2001).

This court is focusing on Mother's objection, as Father is now deceased. tThe.^4othet,'

argues that the child could have been placed with her within a reasonable time and t4t F'ttScn a r

41not prove by clear and convincing evidence to the contrary.

Pursuant to RC 2151.414, the Court may grant permanent custody of a child to a movant

if the Court determines by clear and convincing evidence that it is in the child's best interest and

pursuant to RC 251.414(B)(I)(a), the child is not abandoned or orphaned, or has not been in the

temporary custody of one or more public children service 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 amount of time or should not be placed be placed with either of the

child's parents. The statute directs the Court to determine whether a child could not or should

not be placed with either parent by reviewing factors set forth in RC 2151.414(E)(I )-(16). Upon

review of those factors, this Court finds based on the reasons set forth in this decision, Jeremy

Jones should not be placed with Jackey Andy.

59254^04'

Parentine Skills

The agency has made diligent efforts to assist Jackey Andy, but Ms. Andy has failed

repeatedly to substantially remedy the condition that brought the child into placement, Jackey's

lack of suitable parenting skills. Ms. Estrella testified that she would be very fearful for Jackey

to have an infant or small child unsupervised for any length of time because depending on

Jackey's mood and depending on what is going on in her life, she's easily distracted and agitated.

Ms. Estrella stated that she has had to remind Jackey several times to hold Jeremy's head

because she will lose focus and not pay attention to the baby and what he is doing. Further, Ms.

Estrella stated that on at least two occasions when Jackey was standing Jeremy up, M;^.Esjfgllar- al

lunged for the baby because it appeared that Jackey was going to drop him. TR Auguz0,g005_-:

c-,at 89-90.

h b

Ms. Estrella testified that on many visits, Jackey brings fast food for herseo. ^'ti ond::, .Ni Uc^

-+= 0occasion, Ms. Estrella stated that Jackey tried to feed Jeremy, who was four monNs oaat t5!^i

time, a French fry and a little bit of hamburger. Because Jeremy is a special needs child, both the

caseworker and the foster mother indicated that he has reflux issues, so the adult food was

especially inappropriate. However, Ms. Estrella indicated that after explaining to Jackey about

Jeremy's digestion problem of keeping food down, she thinks Jackey would ignore the advice.

TR August 30, 2005 at 92.

Mental Health Issues

During prior case plans with FCCS, Jackey was psychologically evaluated and was

diagnosed with bipolar disorder, depression and possible narcissism. Jackey testified at the time

of the trial that she just started consistently taking Wellbutrin and meets with a counselor, Linda

i

59264Has

Cregar, at Concorde counseling. However, Jackey indicated that she has not seen her counselor

in months because the counselor was sick. TR August 30, 2005 at 49.

Both the caseworker and foster mother testified that because Jeremy is a special needs

child, he requires a very set schedule. Any deviation from his schedule could result in health

problems. Jeremy requires frequent doctor visits but Jackey has a hard enough time scheduling

and attending her own appointments. TR August 30, 2005 at 60-64, 125-132. When asked if

Jackey would be able to keep Jeremy on a regular schedule, Ms. Estrella stated, "No, I don't. I

think that once Jackey becomes agitated or depressed, or loses focus, that it's all about her need -

and she would not be able to do that." TR August 30, 2005 at 100.

Permanent Commitment of Siblin¢s h v >r y3 -,r,.t

Prior to the removal of Jeremy Jones, seven additional children were remov"roackyO tV

Andy's custody, two of which were permanently committed to the Court. The mos#-;ecent chiFd;;-,^ :^ •^•- .

removed was Christian Michael Andy-Jones. Christian was removed two days af^ bibCn t'J :C O

o ^on the same concerns that caused the permanent conunitted of his oider brother, Gregory J

Jackey's caseworker at the time of Christian's commitment, Corey Garris, testified that the

specific concerns that were present during Christian's removal were Jackey's mental health

issues and failure to demonstrate appropriate parenting skills in her interactions with Christian.

Mr. Garrison testified Ms. Andy did not demonstrate age appropriate expectations of what

Christian should be able to do. Additionally, Mr. Garris testified Jackey exhibited self-centered

behavior during her visits with Christian, being concerned with her feelings instead of focusing

on Christian's feelings.1

It is evident that the same concerns exist between Jackey and Jeremy that existed during,. .,

Christian's removal.

1 Trial Court Exhibit 1, In re: Christian Michael Andy Jones, Case No. 03AP-1167 (June 24, 2004).

59254Na6i

BEST INTEREST FACTORS

In determining the best interest of the child, the court must consider the following factors:

(1) The interaction and interrelationship of the child with the child's parents, siblings,relatives, foster parents and out-o£ home providers, and any other person who maysignificantly affect the child; •

(2) The wishes of the child, as expressed directly by the child or through the child'sguardian ad litem, with due regard for the maturity 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 ofplacement can be achieved without a grant of permanent custody to the agency.

R.C. § 21 51.414(D).

The court is not required to find that each and every statutory condition ex^s tglbre;;2-_7

making a best interest determination; the decision may be based solely on the existencWrp e of

C-)the conditions. See In re Butcher, Athens App. No. 1170, (April 10, 1991),,^nrejbrte. ,.:

Moreover, a court does not abuse its discretion by not granting permanent custodyce en-,̂yvh o^

finds every statutory factor in the state's favor, because R.C. § 2151.414(B) provides only that

the court may grant permanent custody when it makes a best interest determination. See In re

Seymour (Feb. 23, 1993), Hocking App. No. 92-CA-5, unreported.

Interaction and [nterrelationship

Ms. Estrella testified that Jeremy recognizes Jackey and that she shows affection towards

her child. However, Ms. Estrella stated that Jackey wakes Jeremy almost every time he is

sleeping because she wants his eyes open for pictures. Ms. Estrella states that to some degree

this is undcrstandable, but reiterates that Jackey is only concerned about her needs and not what

is in the best interest of Jeremy. Also, Ms. Estrella said that only on a few occasions has Jackey

59s4Ho7,

been able to console Jeremy when he gets cranky or cries, but usually seeks guidance from the

caseworker or the foster mother. TR August 30, 2005 at 91.

The Wishes of the Child

At the time of the trial, Jeremy was approximately seven months old. Jeremy's Guardian

Ad Litem stated that although Jackey has made some progress, there are still several concems

regarding parenting skills and her mental health issues. Jeremy's Guardian Ad Litem believes

that it is in Jeremy's best interest that this Court grants permanent custody to FCCS.

Custodial Historvr 3 :

Jeremy was immediately put into foster care directly from the hospital. FCQS oluained_,-ma

temporary custody of Jeremy on January 18, 2005 and Jeremy was placed in the Qret^.'fostert...',`..,,....;h

care of Malta Regina Nice. Jackey has never been responsible for Jeremy's care.

Legally Secure Placement 07 ^

The court is to take into account the child's need for a legally secure placement and

whether the placement can be achieved without the grant of permanent custody. The Magistrate

found that it is in Jeremy's best interest to have a legally secure placement, which would be

impossible without permanent custody to FCCS. The foster mother, Malta Regina Nice

indicated that she and her family would consider adopting Jeremy. TR Augast 30, 2005 at 134.

Therefore, this Court finds that Jeremy is in need of legally secure placement and that such

placement cannot be achieved without granting permanent custody to FCCS.

CONCLUSION

While there is no doubt that Jackey Andy cares about Jeremy, the primary focus of this

case must be the best interest of Jeremy. This Court finds that the record supports adjudication

of dependency for Jeremy Andy Jones. Jeremy was removed from the home for the same

8

reasons that his siblings, Christian and Gregory were adjudicated dependent children: deficits in

parenting skills and mother's mental health issues. Jeremy is in danger of being abused or

neglected. A review of the record supports FCCS' argument that Jackey has failed to alleviate

the conditions under which Gregory and Christian were removed from her care. With this

evidence in the record, the Magistrate had proper grounds to order permanent court commitment

of the minor child, Jeremy Jones.

Decision is OVERRULED.

IT IS SO ORDERED.

GE DANA PREISSE ^ ^

PRAECIPE: TO THE CLERK OF COURTS -:0

o 'rc,:)

Pursuant to Civil Rule 58(B), you are hereby instructed to serve upon all parties not:$

default for failure to appear, notice of the judgment and its date of entry upon the journal in the

manner prescribed by the attached instructions for service.

cc: Eric WahlGuardian Ad Litem for Children

Michael MorganAttorney for Mother

Gerald RoderickAttorney for Father

Monica HawkinsAttorney for FCCS

Therefore, Jackey Andy's Objection to the Magistrate's