Opinion
30630 30631 30632 30637 30638 30639
07-19-2023
IN RE A.H. K.H. L.H.
JAYSEN M. MERCER, Attorney at Law, for Appellant. ALEXANDRA HULL, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee. NOWAR KATIRJI, Guardian ad Litem. SHUBHRA AGARWAL, Attorney at Law, for L.H. and A.H. OLIVIA PENCE, Attorney at Law, for K.H.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 21-03-000208 DN 21-03-000210 DN 21-03-000211
JAYSEN M. MERCER, Attorney at Law, for Appellant.
ALEXANDRA HULL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee.
NOWAR KATIRJI, Guardian ad Litem.
SHUBHRA AGARWAL, Attorney at Law, for L.H. and A.H.
OLIVIA PENCE, Attorney at Law, for K.H.
DECISION AND JOURNAL ENTRY
JILL FLAGG LANZINGER JUDGE.
{¶1} Appellants, M.G. ("Mother") and J.H. ("Father"), appeal from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that placed three of their minor children in the permanent custody of Summit County Children Services Board ("CSB"). This Court affirms.
I.
{¶2} The trial court proceedings initially involved five children, but the only children who are parties to this appeal are K.H., born July 25, 2008; A.H., born June 17, 2011; and L.H., born June 9, 2017. Mother and Father are the biological parents of these children. Although Mother and Father had lived together for many years prior to this case, they ended their relationship in 2019, and the children continued living with Mother.
{¶3} On March 29, 2021, CSB filed complaints to allege that the three children were dependent primarily because of their exposure to domestic violence perpetrated by Mother against one of her older children; Mother's untreated substance abuse and mental health problems; and Mother's failure to consistently supervise them. The juvenile court adjudicated the children dependent and later placed them in the temporary custody of CSB.
{¶4} Because each parent had a history of substance abuse and mental health problems, the case plan included mental health and substance abuse components for each of them and required them to demonstrate that they could provide for the basic needs of the children.
{¶5} During the first year of the case, the parents made progress on the substance abuse component of the case plan. Father tested negative for drugs from the beginning and Mother later was able to demonstrate a period of sobriety. The trial court granted a first six-month extension of temporary custody to allow the parents more time to work toward reunification. Each parent progressed to unsupervised visits with the children in their respective homes.
{¶6} By the spring and summer of 2022, however, each parent began to exhibit symptoms of substance use and/or unstable mental health. Mother's unsupervised home visits were terminated after only two visits because she had violated the agency's rules during both visits by having alcohol and her boyfriend in the home while the children were there. During the children's second visit in April 2022, a physical altercation arose between Mother and the boyfriend. K.H. also became physically involved in the incident and the police were called to the home. Mother's visitation with the children was returned to supervised visits at the visitation center, but Mother attended inconsistently and K.H. refused to visit with Mother.
{¶7} During the summer of 2022, there were numerous incidents during which Mother exhibited paranoid and erratic behavior, as observed by the caseworker. Mother was regularly drinking again and informed the caseworker that she could continue to drink alcohol because it is legal, and she is an adult. During August 2022, Mother was involuntarily hospitalized because she was intoxicated and expressing suicidal thoughts. CSB was unable to see the contents of the hospital records, however, because Mother refused to sign releases.
{¶8} Although Father had not exhibited any signs of substance abuse, he continued to struggle with chronic depression. Father receives disability income because of his depression but also works part-time to be able to meet his basic needs. During July 2022, Father voluntarily admitted himself to a hospital for psychiatric treatment. While he was hospitalized for ten days, he lost his job and, because he could not afford to pay his bills, he also lost his housing.
{¶9} On August 11, 2022, CSB moved for permanent custody of K.H., A.H., and L.H. During January 2023, the case proceeded to an evidentiary hearing on CSB's permanent custody motion, as well as competing dispositional motions for a second six-month extension of temporary custody or legal custody to either parent.
{¶10} During the hearing, in discussing the potential of a second six-month extension of temporary custody, the trial judge questioned whether the extension would necessarily end on the two-year sunset date in March, approximately two months later. The trial judge asked the parties to submit post-hearing briefs on that issue.
{¶11} On January 27, 2023, Father and CSB filed briefs to address the potential timing of a second six-month extension of temporary custody. Neither party filed anything in response to the other party's brief on the issue. On February 15, 2023, the trial court filed its final judgment, which terminated parental rights and placed the children in the permanent custody of CSB. Mother and Father appeal and each raise two assignments of error.
II.
MOTHER'S ASSIGNMENT OF ERROR I
THE COURT ERRED TO MOTHER'S GREAT PREJUDICE AND DEPRIVED HER OF HER DUE PROCESS RIGHTS WHEN IT GRANTED [CSB'S] MOTION FOR PERMANENT CUSTODY DESPITE SERVICE UPON MOTHER NOT BEING PERFECTED.
{¶12} Mother's first assignment of error is that the trial court failed to properly serve her with the permanent custody motion. Specifically, she asserts that service of the motion by publication was improper in this case because CSB had not first exercised "reasonable diligence" to ascertain Mother's address. Her sole argument is that, because of alleged defects in service of the motion, she was deprived of her right to due process at the permanent custody hearing.
{¶13} To begin with, Mother was represented by counsel at the hearing, but counsel raised no challenge to the propriety of service of the permanent custody motion. See In re D.F., 9th Dist. Summit Nos. 30616 and 30617, 2023-Ohio-2366, ¶ 12. Moreover, even if this Court were to address the merits of this alleged error, Mother cannot establish reversible error unless she demonstrates both trial court error and resulting prejudice. In re H.P., 9th Dist. Summit Nos. 29973 and 29975, 2022-Ohio-778, ¶ 26. Mother has failed to argue or demonstrate that she was prejudiced by any defect in service of the motion.
{¶14} As the Ohio Supreme Court explained in In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 13, due process requires that a children services agency provide a parent with notice of the permanent custody motion and hearing that is "reasonably calculated, under all the circumstances, to apprise" the parents of the proceedings and provide them with "an opportunity to present their objections." The agency need not provide them with "actual notice." Id. at ¶ 14.
{¶15} In this case, Mother appeared at the permanent custody hearing with her trial counsel, demonstrating that she received "actual notice" of the motion and summons. See In re McGee, 3d Dist. Seneca No. 13-08-01, 2008-Ohio-2497, ¶ 7. Mother attended the hearing and was able to participate in her defense against CSB's permanent custody motion. Therefore, the record does not support Mother's argument that she was deprived of due process, as she received notice and had the opportunity to be heard at the permanent custody hearing. See Thompkins, 2007-Ohio-5238, at ¶ 13. Mother's first assignment of error is overruled.
MOTHER'S ASSIGNMENT OF ERROR II
THE COURT ERRED TO MOTHER'S GREAT PREJUDICE AND IN DEROGATION [] OF HER DUE PROCESS RIGHTS WHEN IT GRANTED [CSB'S] MOTION FOR PERMANENT CUSTODY UNDER RC. []2151.414(B)(1)(D) WHICH IMPERMISSIBLY ALLOWS FOR THE SEVERANCE OF MOTHER'S FUNDAMENTAL LIBERTY INTEREST BY A MERE PREPONDERANCE OF THE EVIDENCE.
{¶16} Mother's second assignment of error is that she was denied due process because R.C. 2151.414(B)(1)(d) authorized the trial court to find that the first prong of the permanent custody test was satisfied by a mere preponderance of the evidence. Mother's argument misrepresents the evidentiary burden required by the permanent custody statute. Every subsection of R.C. 2151.414 explicitly requires clear and convincing evidence to support a termination of parental rights. Of significance here, R.C. 2151.414(B)(1)(d) required that the trial court find, by clear and convincing evidence, that the children had been in agency temporary custody for at least 12 months of a consecutive 22-month period and that permanent custody is in the children's best interest.
{¶17} Mother is challenging the constitutionality of the so-called "12 of 22" first-prong ground for terminating parental rights. She asserts that it deprived her of due process because, unlike the first-prong grounds for permanent custody set forth in R.C. 2151.414(B)(1)(a), the "12 of 22" ground does not require clear and convincing evidence that the children cannot or should not be returned to the custody of either parent. See R.C. 2151.414(B)(1)(d).
{¶18} In the trial court, Mother did not object to the constitutionality of R.C. 2151.414(B)(1)(d) but has raised this argument for the first time on appeal. This Court "need not reach constitutional challenges that were not timely raised before the trial court." In re O.T., 9th Dist. Summit No. 24403, 2009-Ohio-1055, ¶ 12, citing State v. Awan, 22 Ohio St.3d 120 (1986), syllabus. Because Mother failed to preserve this issue for appellate review, her second assignment of error is overruled.
FATHER'S ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT CONSIDERED THE BRIEF FILED BY [CSB] ON JANUARY [27], 2023 BECAUSE THE BRIEF GROSSLY EXCEEDED THE SCOPE OF THE ISSUE THE COURT REQUESTED BRIEFING ON AND CSB THEREFORE GAINED AN UNDUE ADVANTAGE.
{¶19} Father's first assignment of error is that the trial court erred by considering CSB's post-hearing brief because it "grossly exceeded the scope" of the issue that the trial court had requested the parties to brief, which was the potential timing of a second six-month extension of temporary custody. CSB filed its brief about a second extension of temporary custody more than two weeks before the trial court entered its judgment entry.
{¶20} Father had more than two weeks to object to the scope of the agency's brief, but he did not, so he failed to preserve this issue for appellate review. Father raises this challenge for the first time on appeal and does not argue plain error, so we need not reach the merits of this assigned error. See In re B.E., 9th Dist. Medina No. 18CA0074-M, 2019-Ohio-1040, ¶ 23. Father's first assignment of error is overruled.
FATHER'S ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND IT WAS IN THE BEST INTEREST OF THE CHILDREN TO GRANT PERMANENT CUSTODY TO CSB RATHER THAN LEGAL CUSTODY TO FATHER BECAUSE THAT DECISION WAS NOT IN THE BEST INTEREST OF THE CHILDREN, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶21} Father's second assignment of error is that the trial court's permanent custody judgment was not supported by the evidence presented at the hearing. Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; the child or another child of the same parent has been adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). Clear and convincing evidence is that which will "produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶22} In considering whether the juvenile court's judgment is against the manifest weight of the evidence, this Court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new [hearing] ordered." (Internal quotations and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court "must always be mindful of the presumption in favor of the finder of fact." Id. at ¶ 21.
{¶23} The trial court found that the first prong of the permanent custody test was satisfied in this case under R.C. 2151.414(B)(1)(d) because the children had been in the temporary custody of CSB for at least 12 months of a consecutive 22-month period. Father does not dispute that finding, which is supported by the record.
{¶24} Father does challenge the trial court's finding that permanent custody was in the best interest of the children. He asserts that the trial court should have placed the children in his legal custody, rather than terminating parental rights. "This Court has held, however, that if permanent custody is in the best interest of the child, legal custody to a relative necessarily is not." In re M.S., 9th Dist. Summit Nos. 30506 and 30515, 2023-Ohio-1558, ¶ 26. Consequently, this Court will review the evidence to determine whether the evidence supported the trial court's decision that permanent custody was in the best interest of the children.
{¶25} This Court's best interest review focuses on the best interest factors set forth in R.C. 2151.414(D). In making its best interest determination, the trial court was required to consider the statutory best interest factors, which include: the interaction and interrelationships of the child, the wishes of the child, the custodial history of the child, the child's need for permanence and whether that can be achieved without a grant of permanent custody, and whether any of the factors outlined in R.C. 2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see In re R.G., 9th Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11.
The trial court did not find that any of those provisions applied to the facts of this case.
{¶26} This Court begins by emphasizing that Mother has not challenged the merits of the trial court's decision. The record is clear, however, that she was not prepared to provide her children with a stable home. As noted above, by the time CSB moved for permanent custody, Mother was again abusing alcohol and was exhibiting symptoms of unstable mental health.
{¶27} After CSB moved for permanent custody, Mother's parenting problems only escalated. She continued to drink alcohol to excess and had legal problems because of her drinking. During November 2022, Mother caused an automobile collision while intoxicated and was charged with, and later convicted of, driving under the influence. During December 2022, while intoxicated, Mother got into a domestic violence altercation with another one of her older children. The police were called and had to force their way into Mother's locked bedroom to arrest her. While the officers physically dragged Mother out of her house, she bit one of them on the arm. Mother was charged with felony domestic violence, assault on a police office, and resisting arrest. Those charges were still pending at the time of the hearing.
{¶28} Father's mental health problems also continued after his 10-day psychiatric hospitalization in July. During the few months before the hearing, Father was hospitalized two additional times for psychiatric treatment. After the second hospitalization, Father did not follow up with the medication that had been prescribed because he did not like the way it made him feel. Consequently, he was again hospitalized the following month. After that hospitalization, Father continued to take a new medication, which he claimed was working, but he had been taking it for only a short period by the time of the hearing. Moreover, apparently because of his repeated hospitalizations, Father was unemployed and had no independent housing at the time of the hearing. He was living with his brother, which he conceded was not a suitable home for his children.
{¶29} Examining the statutory best interest factors, the court first looked to the children's interaction with their parents and significant other people in their lives. None of the children were closely bonded to Mother, and the oldest child had no desire to see her. The younger two children had bonded with Father during this case and interacted well with him, but Father had no suitable housing or financial means to provide for their basic needs.
{¶30} Moreover, Father's current mental health treatment was in its early stages. Father had not provided CSB with access to his medical records, nor had he introduced the records into evidence. Consequently, the only evidence at the hearing about Father's mental health treatment was that he had been admitted to the psychiatric ward at St. Thomas Hospital three separate times during the past six months. Father testified that he had been following up with the recommended out-patient treatment after his most recent hospital stay, but there was no evidence presented to verify or contradict that testimony.
{¶31} Throughout this case, the children lived together in the same foster home. They were closely bonded with each other and had adjusted well to living in the foster home. The caseworker testified that the foster parents had not yet decided whether they wanted to adopt the children, but that CSB would make every effort to keep the siblings together if parental rights were terminated.
{¶32} The trial court conducted an in camera interview of the oldest child, K.H. She informed the court that she wanted to be placed in the permanent custody of CSB. A.H. expressed to the guardian ad litem that she wanted to be placed in the legal custody of Father or, if that was not possible, in the permanent custody of CSB. The trial court determined that L.H., then five years old, lacked the maturity to express her own wishes.
{¶33} The guardian ad litem opined that permanent custody was in the best interest of all three children. He expressed disappointment that each of the parents had been making case plan progress and then "too many things crumbled at the last minute" for reunification to be possible. Regarding Father, he emphasized that Father had never cared for the children on a day-to-day basis, did not have appropriate housing, and lacked the financial means to meet even his own basic needs.
{¶34} By the time of the hearing, the custodial history of the children included nearly two years living in the temporary custody of CSB. Prior to this case, the children had lived in Mother's sole custody since October 2019 and had been exposed to alcohol abuse and domestic violence in the home. Prior to that time, they also lived with Father, but Father testified that he had a serious drug problem back then and had not been a good father.
{¶35} The children needed a legally secure permanent placement. Neither parent was prepared to provide them with a suitable placement and CSB had been unable to locate any friends or relatives who were willing and able to do so. The trial court reasonably concluded that a legally secure permanent placement would be achieved by placing the children in the permanent custody of CSB.
{¶36} Father has failed to demonstrate that the trial court lost its way in determining that permanent custody was in the best interest of K.H., A.H., and L.H. See Eastley at ¶ 20. Father's second assignment of error is overruled.
III.
{¶37} The parents' assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
HENSAL, P. J. STEVENSON, J. CONCUR.