Opinion
2023CA00118
01-05-2024
IN THE MATTER OF: C.T. JR. MINOR CHILD
For Plaintiff-Appellee: BRANDON WALTENBAUGH STARK COUNTY JFS For Appellant Mother: KATHALEEN S. O'BRIEN Father's Trial Counsel: ANTHONY KAPLANIS
Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2022JCV707
JUDGMENT: AFFIRMED
For Plaintiff-Appellee: BRANDON WALTENBAUGH STARK COUNTY JFS
For Appellant Mother: KATHALEEN S. O'BRIEN
Father's Trial Counsel: ANTHONY KAPLANIS
JUDGES: Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
OPINION
Delaney, J.
{¶1} Appellant S.M. ("Mother") appeals from the August 23, 2023 Findings of Fact and Conclusion of Law of the Stark County Court of Common Pleas, Family Court Division, granting permanent custody of minor child C.T. Jr. to appellee Stark County Department of Job and Family Services ("Agency").
{¶2} This case is related to In the Matter of C.T. Minor Child, 5th Dist. Stark No. 2023CA00119.
FACTS AND PROCEDURAL HISTORY
{¶3} The following facts are adduced from the record of the permanent custody hearing on August 21, 2023. Counsel for both parents individually moved for extensions of temporary custody, but the motions were overruled.
{¶4} Caseworker is the ongoing caseworker for the family. Two children are involved: C.T. Jr., dob 11/12/15 ["John Doe"], and C.T., dob 8/29/18 ["Jane Doe"]. The siblings are the children of Mother and Father, C.T. Sr. Paternity has been established; C.T. Sr. is not a party to the instant appeal and our opinion will focus on Mother, although a significant portion of the hearing addressed Father, his psychological assessment, and his relationship with the children.
{¶5} Mother has prior involvement with the Agency initiated on November 17, 2021, when law enforcement advised of concerns for substance abuse, drugs, deplorable home conditions, children unsupervised out of the house, and Mother's unstable mental health. Specifically, law enforcement found the children unsupervised, although Mother claimed it was only for a short time and she was a short distance away.
{¶6} The Agency established a safety plan with a family friend, but the safety plan was disrupted when the caregiver could not maintain it due to Father residing in the home with significant issues; he tested positive for marijuana and cocaine.
{¶7} A complaint alleging dependency and neglect was filed on June 29, 2022; the allegation of neglect was later deleted. On July 27, 2022, the children were found to be dependent and placed in the Agency's temporary custody and have remained therein for the duration of the case. On July 27, 2022, a case plan was filed with a goal of reunification. Timely case plan reviews were conducted. On May 17, 2023, the Agency filed a motion for permanent custody. On May 26, 2023, after a dispositional hearing, the trial court found there were no compelling reasons to preclude the request for permanent custody. GAL reports were submitted on July 27, 2022; December 29, 2022; May 15, 2023; and August 14, 2023.
{¶8} Mother's initial case plan included a court order to complete a drug and alcohol assessment with CommQuest; continue with mental health counseling in which she was already engaged; continue mental health individual counseling at Coleman; and correct conditions of the home. Mother completed the substance abuse assessment and was recommended to residential treatment, but she was unsuccessfully discharged due to lack of participation and lack of motivation. Mother was recommended to re-engage in intensive outpatient treatment; she did re-engage but was unsuccessful because she relapsed, failed to appear for sessions, and was eventually terminated from treatment.
{¶9} Mother completed a second assessment in July 2023 and was recommended to re-engage in intensive outpatient treatment with CommQuest. As of the date of the hearing, Mother completed the initial assessment and two sessions. However, she also had a positive drug screen within a month of the permanent custody hearing.
{¶10} Mother is on the "Agency Color Code" for drug screens and is required to screen once per week. Although Mother was required to screen once a week for over a year, she complied with less than 10 screens. The most recent screen approximately two weeks prior to the hearing was positive for THC and cocaine. Although Mother has had some negative screens, others have been positive for methamphetamine, amphetamines, and THC.
{¶11} Mother was already engaged in mental health treatment through Coleman and was told to continue to follow all recommendations for individual counseling, but she was unsuccessfully discharged for non-compliance and failure to attend.
{¶12} Mother had independent housing throughout the pendency of the case and lived with a relative at the time of the hearing. Caseworker testified the housing is appropriate for Mother on her own, but not with the children. Mother lives with the children's Grandmother, who has a history with the agency. Grandmother had custody of another child who was removed due to substance abuse concerns. Caseworker told Mother the Agency would not approve reunification with John and Jane Doe as long as Mother lived with Grandmother. Mother reported she attempted to find subsidized housing but still lived with Grandmother at the time of the hearing.
{¶13} Mother visits the children for two hours bi-weekly at the Agency. Mother has sometimes been late to visitation and left early. When the children asked why she was leaving, she said she "had something more important to do."
{¶14} Mother has not been referred to parenting classes because she has not maintained sobriety.
{¶15} The hearing also addressed Father's history with the Agency; in summary, Father did not follow recommendations of the case plan and did not permit Caseworker to visit his residence for an evaluation. Father and Mother have visited together with the children at the Agency and have had inappropriate interactions including loud verbal altercations requiring workers to ask one parent to leave.
{¶16} Ultimately, Caseworker testified neither parent has made satisfactory progress on the case plan. Mother doesn't have appropriate housing and tested positive for cocaine and THC two weeks prior to the hearing, despite re-engaging with substance abuse treatment. Both parents independently requested an extension of time to work on the case plan. When asked if a four-month extension would enable either parent to reunite with the children, Caseworker testified an extension would be ineffective because four months is not enough time for either parent to resolve the significant issues preventing reunification with the children.
{¶17} Upon cross-examination, Caseworker was asked whether Mother could maintain sobriety and complete Goodwill Parenting within four months, and answered no, she cannot. When asked what remains for Mother to complete on the case plan, Caseworker responded Mother must maintain stable housing, follow through with recommendations for mental health, and follow and complete all drug abuse treatment plans.
{¶18} Caseworker testified about the children in the best-interests portion of the hearing. She testified the overall physical health of both minor children is very good.
Unfortunately, during the case history both children have changed placements. Upon removal in June 2022, the children were first placed together in an Agency foster home. This placement lasted until November 2022 when John Doe exhibited sexual behaviors with other children in the home. Both children were moved together to a kinship home within the same community. The children were familiar with the second family and it was considered a "kinship placement" because the second foster family went to church with the first foster family, in addition to having other activities together. This placement only lasted about two months because Jane Doe acted out sexually with another child in the home.
{¶19} In January 2023, the children were placed together in a Pathway purchase care home. Jane Doe has remained in that placement; John Doe was removed in April 2023 for sexualized behaviors with other children in the home. John Doe was then placed separately in an NYAP home in which there are no other children. He has remained in this placement since April 2023. The children remain separated due to the risk of harm to Jane Doe from John Doe's behavior, described as kissing and overly affectionate with his sibling.
Caseworker testified a "purchase care foster home" is a licensed agency, but not licensed through Stark County Department of Job and Family Services. When asked whether this placement is outside Stark County, the answer in the record is nonresponsive. T. 65-66.
{¶20} When asked for an explanation of John Doe's sexualized behaviors, Caseworker testified that when the initial placement change occurred, she asked Mother whether she knew of previous concerns. Mother said there was a child in the neighborhood and "she was aware of something happening" prior to the Agency's involvement, but when John Doe was questioned, he retracted the statement. T. 68. John Doe did not disclose any sexual abuse during a forensic interview but he is in counseling in part to address his behaviors. T. 69.
Father was also asked about John Doe's behaviors and became "very emotional and upset." T. 70. Caseworker told Father John Doe would be referred for a forensic interview and counseling, and Father replied that John Doe did not need counseling.
{¶21} Jane Doe is doing very well in her current placement and is bonded with other children in that home. At the time of the hearing, she had been there almost 9 months and the family is interested in adopting her.
{¶22} John Doe is in a home with no other children; his foster mom does a lot of activities with him, including taking him to play with her grandchildren. He is reported to do well in interactions with those children. He has contact with Jane Doe during monitored visitation. Caseworker is willing to talk with Jane Doe's foster-to-adopt family about possibly adopting John Doe to keep the siblings together.
{¶23} The Agency has reached out to relatives for potential kinship placements but none have come forward.
{¶24} Caseworker testified permanent custody is in the children's best interests because neither parent has made significant progress on the case plan and neither has shown they can provide for the children long-term.
{¶25} The guardian ad litem (GAL) was asked to make a statement at the hearing and said neither Father nor Mother made suitable efforts on the case plan until the motion for permanent custody was filed. The GAL stated neither parent reached out the Agency to pursue action on the case plan.
{¶26} On August 23, 2023, the trial court filed Findings of Fact and Conclusions of Law and a Judgment Entry granting the Agency's motions for permanent custody of John and Jane Doe.
{¶27} Mother now appeals from the trial court's judgment entries.
{¶28} Mother raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶29} "I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT GROUNDS EXISTED FOR PERMANENT CUSTODY OF [THE] MINOR CHILDREN AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶30} "II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILDREN TO GRANT PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
ANALYSIS
I., II.
{¶31} Mother's assignments of error are related and will be addressed together. In her first assignment of error, Mother argues the Agency failed to show by clear and convincing evidence that grounds existed for permanent custody and the trial court's decision granting permanent custody is against the manifest weight of the evidence. In her second assignment of error, Mother argues the Agency failed to demonstrate that a grant of permanent custody to the agency was in the children's best interests and the trial court's finding is against the manifest weight of the evidence. We disagree.
Manifest Weight
{¶32} On review for manifest weight, the standard in a civil case is identical to the standard in a criminal case: a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction [decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the Supreme Court of Ohio explained the following:
Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis sic.)
{¶33} In weighing the evidence, however, we are always mindful of the presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.
Permanent Custody Determination
{¶34} R.C. 2151.414(B)(1)(a) states in relevant part that permanent custody may be granted if the trial court determines, by clear and convincing evidence, that it is in the best interest of the child and the child is not abandoned or orphaned * * * 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.
{¶35} Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross at 477, 120 N.E.2d 118.
{¶36} R.C. 2151.414(E) sets out the factors relevant to determining whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. The section states in relevant part:
(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either
parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code 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: (1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. * * *
(16) Any other factor the court considers relevant.
Best Interests
{¶37} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in determining the best interest of a child:
(D)(1) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following:
(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, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period * * *;
(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.
Mother's Arguments
{¶38} Mother argues the Agency failed to show grounds existed to grant its motion for permanent custody. Specifically, she argues the goal of the case plan was reunification and she made sufficient progress on the plan such that the motion should not have been granted, or she should have more time given to complete it. Mother argues she complied with counseling, residential treatment, and intensive outpatient treatment, and consistently visited the children. We find, however, that the trial court properly determined Mother has not substantially remedied the problems leading to Agency involvement
{¶39} The trial court noted the case plan requirements for Mother included the following: a drug and alcohol assessment with CommQuest and follow all recommendations; continue with mental health treatment at Coleman; correct the conditions of the home which led to the children's removal; and comply with Agency drug screens weekly. Mother completed the drug and alcohol assessment with recommendations for residential treatment, but was unsuccessfully discharged for lack of cooperation; she later engaged in intensive outpatient treatment, but was unsuccessful due to a relapse. In July 2023, Mother completed a second drug and alcohol assessment with a recommendation of intensive outpatient treatment; Mother only recently started treatment and had two sessions before the hearing. Mother did not comply with weekly drug screens, completing less than 10 out of a requested 50. The permanent custody hearing was on August 21, 2023; Mother's most recent drug screen was on August 10, 2020, and she was positive for THC and cocaine. Mother was discharged from Coleman for mental health services due to noncompliance, no-shows, and cancellations. Mother did not have appropriate housing at the time of the hearing and resided with Grandmother, who had a child removed from her own custody. Mother attended visitation but has been late or left early (claims Mother disputes); once she told the children she had something more important to do. She has not been referred to parenting classes because she has not maintained her sobriety.
{¶40} Mother has sought subsidized housing and has re-engaged with mental health services. She is presently in outpatient treatment for substance abuse. There is no dispute Mother made progress on portions of the case plan, but the primary goal is not to simply complete the case plan. In re T.H., 5th Dist. Muskingum No. CT2016-0009, 2016-Ohio-7312, 2016 WL 5940835, ¶ 42. Even the successful completion of a case plan is not dispositive on the issue of reunification. Matter of N.D., 5th Dist. No. 2022CA00104, 2023-Ohio-439, 208 N.E.3d 859, ¶ 26, citing In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, 2014 WL 688653. Where a parent has participated in his or her case plan and completed most or all of the plan requirements, a trial court may still properly determine that such parent has not substantially remedied the problems leading to agency involvement. Id., citing In the Matter of A.L. and J.L., 5th Dist. Guernsey No. 11 CA 23, 2012-Ohio-481, 2012 WL 424928. Upon our review of the record, we find the trial court's findings of fact and conclusions of law are supported by clear and convincing evidence; Mother has not made sufficient progress to create any reason to believe reunification with the children would be safe or successful.
{¶41} The trial court found reunification with Mother was not in the children's best interests. Both children have changed placements several times, but are doing well in their current placements. There is a possibility of adoption for Jane Doe, and Caseworker will discuss adoption of John Doe as well because the goal is to keep the siblings together if possible. Caseworker and the GAL both recommended permanent custody of both children to the Agency. Any harm caused by severing any bond with Mother is outweighed by the benefits of permanence for both children.
{¶42} A child's best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security. We have frequently noted, "[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child 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." In re A.R., 5th Dist. Stark No. 2022CA00148, 2023-Ohio-1359, ¶ 51, citing In re E.H., 5th Dist. Stark No. 2022CA00007, 2022-Ohio-1682, ¶ 101, internal citations omitted.
{¶43} Mother did not make significant progress on her case plan, there was not reasonable cause to believe Mother would be reunified with the children, and it was not in the best interests of the children for stability and permanency. Matter of W.W., 5th Dist. Licking No. 2023 CA 00057, 2023-Ohio-4112, ¶ 30. Upon review, we find sufficient clear and convincing evidence to support the trial court's decision to grant the Agency's motion for permanent custody of the children, and do not find any manifest miscarriage of justice. We further find there is competent, credible evidence to support the juvenile court's decision that it was in the best interest of both children to be placed in the permanent custody of the Agency.
CONCLUSION
{¶44} Mother's two assignments of error are overruled and the judgment of the Stark County Court of Common Pleas, Family Court Division is affirmed.
Delaney, J., Wise, P.J. and Baldwin, J., concur.