In Re J.W.

Sadler, Presiding Judge, dissenting.

{¶ 30} Because there is clear and convincing evidence in the record supporting the trial court’s judgment, I would overrule the father’s assignment of error and J.W. Jr.’s first assignment of error. Accordingly, I respectfully dissent.

{¶ 31} The majority reverses the trial court’s judgment on the basis that, in the majority’s view, there is evidence that a legally secure permanent placement is available without granting permanent custody to FCCS. This conclusion appears

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to treat R.C. 2151.414(D)(4) as a controlling factor that eclipses all others in determining a child’s best interest. It is contrary to the explicit holding of the Supreme Court of Ohio that “[R.C. 2151.414] does not make the availability of a placement that would not require a termination of parental rights an all-controlling factor.”

In re Schaefer,

111 Ohio St.3d 498 , 2006-Ohio-5513 , 857 N.E.2d 532, ¶ 64 .

{¶ 32} I also disagree with the majority’s determination that Sharon Dixon’s testimony demonstrates that “a secure permanent home was immediately available for the child and his father without the granting of PCC of the child.” R.C. 2151.414(D)(4) provides, “In determining the best interest of a child * * * the court shall consider * * * [t]he 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.” (Emphasis added.)

{¶ 33} The Ohio Revised Code does not define the term “legally secure permanent placement.” But the word “secure” means “free from fear, care, or anxiety,” “affording safety,” “trustworthy, dependable,” “strong, stable, or firm enough to ensure safety,” and “capable of being expected or counted on with confidence.” Webster’s Third New International Dictionary (1966) 2053. The word “permanent” means “continuing or enduring (as in the same state, status, place) without fundamental or marked change,” “not subject to fluctuation or alteration,” and “lasting, stable.” Id. at 1683.

(¶ 34} In accord with these definitions, Ohio courts have interpreted R.C. 2151.414(D)(4) as requiring a placement that is stable and consistent.

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The word “stable” means “firmly established” and “abiding, enduring, persisting, permanent.” Id. at 2218. The word “consistent” means “marked by harmony, regularity, or steady continuity throughout.” Id. at 484.

{¶ 35} The majority believes that the record contains evidence that it is possible to achieve a placement for J.W. Jr. that is legally secure — in other words, trustworthy, dependable, stable, and capable of being counted on with confidence; as well as permanent — in other words, continuing without fundamental or marked change, lasting, harmonious, and marked by continuity. The majority bases this belief upon the testimony of Sharon Dixon.

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{¶ 36} Upon close evaluation of the facts of record, however, I find no support for the majority’s conclusion. Dixon testified that she became acquainted with J.W. Sr. through the Internet and first began conversing with him in March 2006. She first met him in person in June 2006, just two months prior to the hearing on the PCC motion. By the date of the hearing, Dixon had spent merely 13 days with J.W. Sr. in person. Yet two weeks before the hearing, the couple became engaged.

{¶ 37} As of the date of the hearing, however, they had made no specific plans to marry, and J.W. Sr. had never traveled to Oklahoma to visit her. He and Dixon stated that they planned for J.W. Sr. to move to Oklahoma, but did not say when. J.W. Sr. told the court that he had never informed J.W. Jr.’s caseworker about Dixon’s existence or his relationship to her. It was Dixon who called the caseworker late in the week immediately preceding the trial.

{¶ 38} Dixon is retired and lives in Henryetta, Oklahoma, with her 92-year-old mother and her 30-year-old son. That son has a criminal record and is on probation. He had a drug addiction, and it had been one year, she said, since he had used drugs. Dixon stated that the couple planned for J.W. Sr. to move to Oklahoma to live in Dixon’s home, which is a duplex that she owns. Each side of the duplex has three bedrooms. She lives in one side with her mother and son, and she planned for J.W. Sr. and J.W. Jr. (should he be returned to his father’s custody) to move into the other side of the duplex upon completion of repairs to that side occasioned by damage done by former tenants. She did not say when those repairs would be completed but stated that the damage was extensive because the tenants had punched holes in the walls and had set the home on fire. She stated that once she and J.W. Sr. marry, she will move into the other side of the duplex with him and J.W. Jr.

{¶ 39} J.W. Sr. testified that he lives with his parents and that their home is unfit for a child. He further stated that his only source of income is the $50 to $100 per week that he earns selling scrap metal and “junk” that he collects, and he admitted that his income is insufficient to support J.W. Jr. He admitted that his employment and housing situations have not changed in the four years in which J.W. Jr. has been in foster care, despite the fact that J.W. Sr.’s case plan required him to obtain and maintain adequate and stable housing and employment. When J.W. Sr. was asked what he would do if J.W. Jr. were returned to him, he stated that he would take J.W., Jr. to Oklahoma. However, J.W. Sr. admitted that he does not know Dixon very well. Dixon has never met J.W. Jr.

{¶ 40} In light of J.W. Sr.’s employment situation, Dixon was asked about the employment prospects in Henryetta. She replied, “There’s — there’s some employment. I mean, it’s not — like my son, when he was working, right now he’s working for construction and he’s working there, and I think he could probably

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get [J.W. Sr.] on, I’m not sure.” She later testified, however, that, “Henryetta, it’s more of a retirement community” so there is “not much” construction activity going on in the town.

{¶ 41} Then, Dixon was asked whether she would be able to support J.W. Sr. and J.W. Jr. in the event that J.W. Sr. was unable to obtain employment right away or even for a long time. She replied, “Well, I get my social security; it’s not a lot but * * She later testified that she receives $900 to $950 per month in Social Security.

{¶ 42} When asked if Dixon has any income other than her own Social Security, she told the court, “[M]y mom lives with me so, I mean, right now she pays all the — she buys all the groceries, so I’ve got more than enough to live on right now. But if anything happened to her I — I would have to cut corners a little bit maybe.” She added that her other son (who does not live with her) works at a pizza shop, saying, “I think maybe I could probably get him to hire [J.W. Sr.] too, but that wouldn’t be the kind of job [J.W. Sr.] really want and needs, you know.”

{¶ 43} Under R.C. 2151.414(D)(4), the trial court was not charged with merely determining whether J.W. Sr. represented a

loving

placement, which J.W. Sr. may very well be, given his bonded relationship with his son that has developed through regular visitation. Rather, the court was obligated to consider J.W. Jr.’s need for a

legally secure permanent

placement, and whether, on the record before it, that type of placement can be achieved without a grant of permanent custody to the agency.

In re P.B.,

9th Dist. No. 23276, 2006-Ohio-5419 , 2006 WL 2959520 , ¶ 39. A placement dependent upon nothing more than inchoate hopes and dreams of relocation, marriage, and employment is inadequate to fulfill the need for a legally secure permanent placement.

{¶ 44} Moreover, “[p]ermanent placement of a child outside the home is not an abuse of discretion where a parent has historically been unable to comply with a case plan for a period of years, and then comes into court with ‘clean hands’ for a period of a few weeks.”

In re Collins

(Aug. 24, 2000), 10th Dist. No. 99AP-1468, 2000 WL 1199223 , quoting

In re Maye

(May 4, 2000), 10th Dist. No. 99AP-529, 2000 WL 552194 (judgment granting permanent custody to agency affirmed when mother had had three years in which to complete her case plan, despite the fact that mother had recently obtained full-time employment, because, inter alia, she depended on her cousin for housing, she did “not seem to grasp the importance of providing a secure, stable environment for [her child]” and she admitted that she had no real plans as to how she would support herself or her child).

{¶ 45} Indeed,

Maye

stated, “ ‘[a parent’s] eleventh-hour efforts to convince the court that [he] should be awarded custody are not sufficient to indicate that [he] is capable of * * * caring for a child.’ ” Id. at *23, quoting

In re Gallatin

(Apr. 16, 1997), 6th Dist. No. 96CA0059, 1997 WL 193683 .

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{¶ 46} Here, J.W. Sr.’s “eleventh-hour” engagement to a woman with whom he has spent only 13 days does not give J.W. Sr. “clean hands” and is insufficient to demonstrate that J.W. Jr.’s need for a legally secure permanent placement can be met other than by granting the agency’s motion for PCC. It is undisputed that J.W. Sr. has for

four years

accomplished no change whatsoever in his dismal financial and housing situations, both of which were requirements of his case plan. Simply stated, J.W. Sr. has no means of supporting J.W. Jr. and has no prospect of being able to do so, on his own, in the future.

{¶ 47} But the majority sees Dixon as the remedy for all of these deficiencies and views her as a legitimate means of achieving a legally secure permanent placement for J.W. Jr., despite the fact that she and J.W. Sr. had been engaged for only two weeks, she had never met J.W. Jr., and no one who testified (except Dixon) had ever even been to her home. Indeed, J.W. Sr. admitted that he really did not know Dixon very well.

{¶ 48} Even if the two had had a more established relationship and definitive marriage plans, Dixon barely receives sufficient income to support herself and her son, and she maintains the household only with the help of her 92-year-old mother’s Social Security checks. She admits that she would experience financial difficulties if her mother were to pass away. She testified to limited employment opportunities in her hometown and stated that one of her sons could “maybe” or “probably” get J.W. Sr. a job.

{¶ 49} On this evidence, the trial court stated:

There appears to be no persuasive reason why the father should be excused from establishing an adequate home for the child in the past 46 months. He has no statutory disability for excusing him from providing an adequate home. Other parents with more limited capabilities regularly secure adequate housing.

Foster care has been too convenient for the father to be motivated to secure housing.

The potential with the new relationship with Ms. Dixon is too speculative and too recent.

(Emphasis added.)

{¶ 50} Indeed, this court has affirmed a grant of permanent custody to the agency when the possibility of placement with the parent is “speculative” at the time of trial, even when the parent had recently made progress following repeated failures to complete aspects of the case plan.

In re Dailey,

10th Dist. No. 04AP-1346, 2005-Ohio-2196 , 2005 WL 1055783 , ¶ 20.

{¶ 51} Because there is no evidence that a legally secure permanent placement can be achieved without a grant of permanent custody to the agency, and because there is clear and convincing evidence supporting the trial court’s determination

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that a legally secure permanent placement

cannot

be achieved without granting FCCS’s motion for permanent custody, this factor weighs heavily in favor of granting that motion.

{¶ 52} As for the other factors required to be considered under R.C. 2151.414(D), the first factor weighs equally in favor of granting and denying the motion because, as the majority noted, J.W. Jr. is bonded with this father and with his foster family. The second factor weighs against granting the motion because J.W. Jr. has expressed his desire to be with his father. The third factor weighs in favor of granting the motion because J.W. Jr. had been in the custody of FCCS for over three and one-half years (virtually half his life) at the time of trial. The trial court also found that the GAL’s recommendation is a relevant factor and noted that the GAL recommended that the motion be granted.

{¶ 53} In light of all of the foregoing, the trial court’s judgment granting permanent custody of J.W. Jr. to FCCS is supported by competent, credible, clear, and convincing evidence and, therefore, must be affirmed.

In re L.M.,

10th Dist. No. 06AP-534, 2007-Ohio-1596 , 2007 WL 1018390 , ¶ 7;

In re J.J.,

10th Dist. No. 06AP-495, 2006-Ohio-6151 , 2006 WL 3375090 , ¶ 7, discretionary appeal not allowed, 112 Ohio St.3d 1495 , 2007-Ohio-724 , 862 N.E.2d 120 .

{¶ 54} I disagree with the majority’s analysis and disposition of the father’s assignment of error and J.W. Jr.’s first assignment of error, and I would overrule these assignments of error. Finding no merit in J.W. Jr.’s second and third assignments of error, I would affirm the judgment of the trial court. For all of the reasons set forth herein, I dissent.

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. See, e.g.,

In re D.P.,

10th Dist. No. 06AP-780, 2007-Ohio-1703 , 2007 WL 1080657 , ¶ 16;

In re Collins

(Aug. 24, 2000), 10th Dist. No. 99AP-1468, 2000 WL 1199223 ;

In re P.B.,

9th Dist. No. 23276, 2006-Ohio-5419 , 2006 WL 2959520 , ¶ 32;

In re McCain,

4th Dist. No. 06CA654, 2007-Ohio-1429 , 2007 WL 914870 , ¶ 20, citing

In re Adoption of Ridenour

(1991), 61 Ohio St.3d 319, 324 , 574 N.E.2d 1055 ;

In re Janson,

11th Dist. No. 2005-G-2657, 2005-Ohio-6713 , 2005 WL 3476624 , ¶ 67-68;

In re T.M. III,

8th Dist. No. 83933, 2004-Ohio-5222 , 2004 WL 2340654 , ¶ 59,

In re P.P.,

2nd Dist. No. 19582, 2003-Ohio-1051 , 2003 WL 863568 , ¶ 30;

In re Miqueal M.,

6th Dist. No. L-02-1020, 2002-Ohio-3417 , 2002 WL 1438664 , ¶ 30.