Opinion
S-24-011
09-18-2024
In re B.L.W.
Dean F. Ross, for appellee. Laurel A. Kendall, for appellant.
Trial Court No. 22230128
Dean F. Ross, for appellee.
Laurel A. Kendall, for appellant.
DECISION AND JUDGMENT
ZMUDA, J.
I. Introduction
{¶ 1} This matter is before the court on appeal from the judgment of the Sandusky County Court of Common Pleas, Juvenile Division, granting permanent custody of B-L.W. (d.o.b. 4/16/19) to the Sandusky County Department of Job and Family Services. Finding no error, we affirm.
II. Facts and Procedural Background
{¶ 2} On August 4, 2022, the Sandusky County Department of Job and Family Services (SCDJFS) received a referral regarding B-L.W., then 3 years old, and her younger brother, O.L.V., alleging police conducted a drug raid of the children's residence in which law enforcement seized over four kilos of suspected cocaine, as well as marijuana and $50,000 in cash, with allegations the marijuana was accessible to the children. After contacting appellant, the mother of B-L.W., a SCDJFS investigator addressed the allegations with her. Mother denied the children had access to drugs and refused to submit to a drug screen when asked. Mother agreed to meet at the agency the next day and reported as scheduled with the paternal grandmother of O.L.V. Mother, again, refused to submit to a drug screen and declined to sign a release, authorizing access to her drug treatment records. Both mother and the father of the younger child had a history of involvement with SCDJFS, arising from domestic violence and mother's issues with substance abuse, with the most recent case closed on October 13, 2021.
{¶ 3} On August 8, 2022, SCDJFS filed a complaint pursuant to R.C. 2151.27 alleging B-L.W. and her brother, O.L.V. were neglected children as defined by R.C. 2151.03(A)(2) and (6), and dependent children as defined by R.C. 2151.04(C) and (D)(1) and (2). After a shelter care hearing, the juvenile court granted temporary custody of the children first to the paternal grandmother, and later to a paternal uncle. After mother gave birth to a third child, O.J.C.V., the juvenile court granted temporary custody of the infant to the same relative, and all three children were placed together in kinship care.
Disposition regarding O.L.V. and O.J.C.V. is not at issue in this case.
{¶ 4} In August 2022, mother was indicted for complicity to trafficking in drugs, complicity to possession of drugs, and child endangering, arising from the raid on her home earlier in the month. Mother was taken into custody on the charges, and a significant bail was set by the criminal court.
{¶ 5} On September 14, 2022, the juvenile court held a combined adjudication and disposition hearing, and mother consented to findings of neglect and dependency. The juvenile court continued temporary custody in kinship care and mother was provided case plan services, with the case plan adopted as part of the juvenile court's order. Pursuant to the plan, mother needed to demonstrate an ability to maintain her sobriety, secure stable housing free from domestic violence, drugs, and frequent police presence, and continue with her mental health services. Mother declined to identify the father of B-L.W., and no putative father appeared in the proceedings.
{¶ 6} On October 5, 2022, mother filed a motion for temporary and legal custody. Within her motion, she acknowledged that she consented to the disposition requested by SCDJFS at the September 14, 2022 hearing, but only because she was in custody at the time with a large bond. After her bond was reduced, however, she was released from custody and denied all evidence of child endangerment. Mother argued she would be the appropriate placement for the children. On November 8, 2022, SCDJFS filed its opposition to mother's motion seeking temporary custody. In support, SCDJFS attached copies of the indictments for mother and her codefendant, and argued there was video evidence to establish the child endangerment charges. At the dispositional review hearing on December 6, 2022, the juvenile court continued ruling on mother's motion for temporary custody, maintaining the temporary custody with the paternal relative.
{¶ 7} On January 20, 2023, mother was taken into custody after her bond was revoked in the criminal case. She remained in custody for the remainder of the proceedings.
{¶ 8} On March 30, 2023, the paternal relative filed a motion for legal custody of B-L.W. and her siblings, noting the father of B-L.W.'s siblings had not participated in case plan services and mother initially participated in case plan services but failed to attend parenting classes and failed to obtain safe and stable housing. Mother's incarceration was also a factor affecting her participation in services.
{¶ 9} On May 1, 2023, mother entered a guilty plea in the criminal case to an amended count of complicity to trafficking in drugs and to child endangerment, as charged in the indictment, each a third-degree felony. The criminal court found her guilty and continued sentencing in the matter for preparation of a presentence investigation report.
{¶ 10} On May 4, 2023, the paternal relative filed an amended motion for legal custody, withdrawing the request for legal custody of B-L.W. The relative indicated legal custody was only sought as to B-L.W.'s infant sibling. After an annual dispositional review hearing on June 6, 2023, the juvenile court continued placement of B-L.W with kinship placement. The juvenile court continued a decision on the pending motions for custody, filed by mother and the paternal relative.
{¶ 11} On June 13, 2023, the juvenile court granted temporary custody of B-L.W. to SCDJFS by ex parte order, upon the motion of SCDJFS to modify temporary custody. The motion was prompted by B-L.Ws paternal relative informing SCDJFS they could no longer care for her. The juvenile court held a shelter care hearing with mother present on June 14, 2023. Based on the court's review of the record and the lack of other appropriate placement options, the court granted modification of B-L.W s temporary custody, placing B-L.W. in the temporary custody of SCDJFS.
{¶ 12} On July 7, 2023, SCDJFS filed a motion to extend temporary custody of B-L.W. In support of extending temporary custody, SCDJFS argued that mother was incarcerated, preventing her from participating in her case plan services. The motion identified the plan for reunification, after mother was released from custody, which included mother finding stable housing, completing an IOP, reengaging in mental health services, following the law, and complying with any terms of her probation upon release from jail.
{¶ 13} On July 12, 2023, mother was sentenced to 30 months in prison in the criminal case, with 189 days of jail time credit. On July 26, 2023, mother provided an updated address to reflect her new address at the Ohio Reformatory for Women in Marysville. On July 28, 2023, mother filed a motion seeking alternate relative placement of all three children with a paternal aunt in North Carolina. The juvenile court subsequently denied the motion.
{¶ 14} On September 11, 2023, the juvenile court held a dispositional review hearing. After noting reasonable efforts to reunite mother with the children, the court continued temporary custody with current placement. The juvenile court further noted that temporary custody of B-L.W would terminate on February 8, 2024, unless a motion for modification was filed by January 8, 2024. The pending motions were continued for hearing, with a hearing date set for November 28, 2023.
{¶ 15} The SCDJFS continued to seek an appropriate family placement for B-L.W., and mother continued to decline to identify a putative father. On November 17, 2023, SCDJFS filed a motion seeking modification of temporary custody to permanent custody and a motion for permanency hearing. The putative father was served notice of the hearing by publication.
{¶ 16} On November 28, 2023, the juvenile court held a hearing on the pending motions. Mother withdrew her motion for temporary and legal custody, through her trial counsel. The court continued B-L.W.'s placement with SCDJFS.
{¶ 17} On February 2, 2024, SCDJFS filed a second and final motion to extend temporary custody. As to mother's progress with the case plan, the motion noted mother's incarceration, with reunification dependent on mother's completion of case plan services, including refraining from substance use, taking prescribed medications, and maintaining a safe and stable home free from drug use, domestic violence, and frequent police presence. To accomplish the goal of family reunification, Mother was required to continue with case plan services "if she is released from prison." SCDJFS further noted that mother remained on the case plan because B-L.W. was in foster care "with no other alternative placement options and paternity has not been established" and there was a motion for permanent custody for B-L.W. pending, filed as a result of mother's incarceration, no putative father, and no placement options "through family search and engagement."
{¶ 18} On February 20, 2024, following a dispositional review hearing in a sibling's case, the parties waived notice of hearing on the pending motion to extend temporary custody and all parties consented to an extension beginning February 8, 2024. The juvenile court noted the complaint was filed on August 8, 2022, and the matter was continued for the permanent custody hearing in March.
{¶ 19} On March 8, 2024, the juvenile court held a permanency hearing pursuant to the November motion of SCDJFS. Mother appeared by videoconference. Mother's trial counsel was present at the hearing and represented to the juvenile court that mother consented to admission of exhibits and to an award of permanent custody to SCDJFS. The court inquired of mother, who acknowledged she was consenting, but only because the court refused to "extend the time or give me a continuance or anything." As to her voluntary consent, mother expressed that giving up custody was very difficult, and despite her efforts at improving her life while in prison, "I'm doing this because I have to do this 'cause under the timeframe, I can't get a continuance, so this is the option I have." As to the timing, mother appeared to believe that the time limitations in R.C. 2151.415(D) only counted from the placement with SCDJFS in June 2023.
{¶ 20} On April 2, 2024, the juvenile court issued its findings of fact, conclusions of law, and judgment entry, granting permanent custody of B-L.W. to SCDJFS. The juvenile court took note that B-L.W.'s father was unknown, and service was perfected on father, "John Doe," by publication on March 4, 2024, pursuant to statute. No person appeared in response to the notice by publication.
{¶ 21} The juvenile court further noted the consent of the parties, and that mother waived her right to trial by consenting to the motion of SCDJFS, "including waiving her right to cross examine witnesses, subpoena witnesses and her right to remain silent if called as a witness thus reserving any right to remain silent on any potential criminal liability." The juvenile court noted it engaged in a "detailed advisement and inquiry with mother on the record under oath" regarding her consent, and after a "thorough inquiry," determined mother's waiver was a "knowing, voluntary, and intelligent waiver of her right to a trial" and a consent to place B-L.W. in the permanent custody of SCDJFS.
{¶ 22} With mother's consent, the juvenile court determined the record supported the allegations in the complaint under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E)(1), (3), (5), (12), and (15), and the statutory best interest sections under R.C. 2151.414(D)(1)(a) and (d). SCDJFS withdrew any remaining alleged subsections.
{¶ 23} The court found, by clear and convincing evidence, that SCDJFS received a referral for B-L.W. in August, 2022, after the drug raid on the child's home, and that an ex parte order was issued on August 5, 2022, granting temporary custody of B-L.W. to a relative and protective supervision to SCDJS. SCDJFS filed its complaint on August 8, 2022.On September 14, 2022, B-L.W. was adjudicated neglected and dependent, and the court placed B-L.W. in the temporary custody of her siblings' paternal uncle. On June 12, 2023,the juvenile court modified the order of temporary custody, placing B-L.W. with SCDJFS, and B-L.W. remained in the temporary custody of SCDJFS since June 12, 2023.
{¶ 24} The juvenile court further found that mother was sentenced to 30 months in prison following her guilty plea to complicity to trafficking in drugs and endangering children, each a felony of the third degree. Furthermore, despite reasonable efforts to assist mother and remedy the conditions that caused the child to be placed outside the home, mother failed to remedy the conditions, and her estimated release date from prison was July 4, 2025. Additionally, mother has a history of a prior case with B-L.W. involving drug incidents, which favors granting permanent custody with SCDJFS.
{¶ 25} The juvenile court also noted that there was no family placement for B-L.W., and as to the father, specifically noted that "Mother did not provide a name for biological Father and she made statements to the caseworker that she would rather see that child go into permanent custody rather than give biological Father's information."
{¶ 26} As to the best interests of B-L.W., the court found that B-L.W. is doing well in her treatment foster placement, has responded positively to the stable and consistent environment the placement provides, and B-L.W. needs a legally secure, permanent placement that can only be achieved by granting permanent custody to SCDJFS.
{¶ 27} Based on the factual findings, the juvenile court concluded that mother consented to permanent custody to SCDJFS after thorough advisement and inquiry on the record, that SCDJFS made reasonable but unsuccessful efforts to return B-L.W. to mother, that B-L.W. cannot be placed with mother, and that permanent custody of SCDJFS is in the best interests of the child, with the permanency plan of adoption.
{¶ 28} This appeal followed.
III. Assignment of Error
{¶ 29} In challenging the award of permanent custody to SCDJFS, mother asserts a single assignment of error on appeal, as follows:
The Sandusky County Dept. of Job and Family Services did not prove by clear and convincing evidence that mother here was incapable of completing the recommended case plan services relating to her daughter B-L.W. within statutory time frames.
IV. Analysis
{¶ 30} Mother does not challenge the juvenile court's factual findings regarding her consent or her ability to care for B-L.W. Mother also appears to acknowledge that she was unable to complete her case plan services during the time B-L.W. was in temporary custody. Additionally, mother does not challenge the findings regarding the best interests of B-L.W. Instead, mother's sole assignment of error concerns the juvenile court's finding relative to placement of B-L.W. with her mother within a reasonable time, and whether SCDJFS could have sought a continuance of temporary custody to extend time until mother completed her prison sentence and was able to engage in case plan services once more.
{¶ 31} Before terminating parental rights and granting permanent custody to SCDJFS under R.C. 2151.414, the juvenile court must first find, by clear and convincing evidence, that (1) one of the enumerated factors under R.C. 2151.414(B)(1)(a)-(e) apply and (2) that permanent custody is in the best interest of the child. R.C. 2151.414(B)(1). In re Z.C., 2023-Ohio-4703, ¶ 7. "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Id., quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 32} Mother consented to the finding under R.C. 2151.414(B)(1)(a), which permits a grant of permanent custody of a child when it is in the best interests of the child, by clear and convincing evidence, and the child has not been in the temporary custody of the agency for twelve or more months within a consecutive twenty-four-month period and the evidence demonstrates "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. Because the juvenile court determined R.C. 2151.414(B)(1)(a) applied, it examined the factors under R.C. 2151.414(E), with only one factor required to support a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent. In re T.G., 6th Dist. Lucas No. L-23-1073, 2023-Ohio-2576, ¶ 38.
{¶ 33} The juvenile court found that R.C. 2151.414(E)(1), (3), (5), (12), and (15) applied to mother's case. Thus, the juvenile court found that each of the following sections of R.C. 2151.414(E) applied:
(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.
(3) The parent committed any abuse as described in section 2151.031 of the Revised Code against the child, caused the child to suffer any neglect as described in section 2151.03 of the Revised Code, or allowed the child to suffer any neglect as described in section 2151.03 of the Revised Code between the date that the original complaint alleging abuse or neglect was filed and the date of the filing of the motion for permanent custody;
(5) The parent is incarcerated for an offense committed against the child or a sibling of the child;
(12) The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available to care for the child for at least eighteen months after the filing of the motion for permanent custody or the dispositional hearing.
(15) The parent has committed abuse as described in section 2151.031 of the Revised Code against the child or caused or allowed the child to suffer neglect as described in section 2151.03 of the Revised Code, and the court determines that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the child's placement with the child's parent a threat to the child's safety.
As to the best interests determination, the juvenile court found the following sections of R.C. 2151.414(D) applied:
(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; …
(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;
{¶ 34} Mother's challenge to the juvenile court's findings rests on the "reasonable time" determination and the authority of the juvenile court to extend temporary custody until she was eligible for release from prison. In support, mother argues that "[t]his court should find that the 24-month statutory maximum time for a permanent custody determination began to run" on the date of the shelter care hearing, June 14, 2023, when the court transferred temporary custody to SCDJFS. Mother provides no authority to support this interpretation of "temporary custody" as tied to the placement, either kinship placement or foster care placement.
{¶ 35} "Temporary custody' is statutorily defined as "legal custody of a child who is removed from the child's home, which custody may be terminated at any time at the discretion of the court or, if the legal custody is granted in an agreement for temporary custody, by the person who executed the agreement." R.C. 2151.011(B)(25). Temporary custody is not defined in terms of placement of the custody, but as custody over a child removed from the home. In modifying temporary custody, a court must do more than specify placement; the court must also continue temporary custody to maintain that placement. See, e.g., In re L.A., 2014-Ohio-894, ¶ 6 (1st Dist.) (reversing where the juvenile court denied motion to modify temporary custody to permanent custody and ordered children to remain in the current placement without an award of custody to anyone).
{¶ 36} The duration of temporary custody is also statutorily defined, limited to a two-year period from either the date of filing of the complaint or the date the child was first placed into shelter care, "whichever date is earlier." See R.C. 2151.415(D)(4). The statute provides:
No court shall grant an agency more than two extensions of temporary custody pursuant to division (D) of this section and the court shall not order an existing temporary custody order to continue beyond two years after the date on which the complaint was filed or the child was first placed into shelter care, whichever date is earlier, regardless of whether any extensions have been previously ordered pursuant to division (D) of this section. R.C. 2151.415(D)(4).
{¶ 37} Here, the first shelter care hearing occurred, and the complaint was filed in early August 2022. Therefore, the two-year period could not extend beyond August 2024. We have previously held that a juvenile court has no authority to extend temporary custody beyond two years. In re Julian V., 2008-Ohio-978, ¶ 15 (6th Dist.) ("The statutes herein clearly limit a grant of temporary custody of a dependent child for a period of one year, follow by up to two extensions of six months each."); see also In re M.O., 2014-Ohio-3060, ¶ 13 (2d Dist.), quoting In re D.J., 2006-Ohio-6304, ¶ 13 (2d Dist.) (temporary custody of children in the care of a children's services agency is limited to two years, an initial one-year period followed by up to two extensions of six months each). Based on application of the statute, therefore, the juvenile court had no discretion to extend the temporary custody a third time, beyond the two-year period provided by R.C. 2151.415(D)(4).
{¶ 38} In the alternative, mother argues that SCDJFS did not need to file the motion seeking permanent custody in November 2023, while mother was still incarcerated. We find no authority that prevented the filing, and based on the record, it appears that time was necessary to complete service by publication on the putative father, who was not identified during the pendency of the case. Additionally, R.C. 2151.415 permits a motion seeking a dispositional order prior to the end of the first extension of a temporary custody order. In re Adams, 2007-Ohio-4840, ¶ 22, citing R.C. 2151.415(D); 2151.415(A)(1) through (5).
{¶ 39} Having carefully considered the record, the argument of the parties, and the applicable law, we find no merit to mother's argument regarding calculation of the two-year period or the need to determine permanent custody within that two-year period. Furthermore, mother consented to the juvenile court's findings and judgment awarding permanent custody to SCDJFS, and the record contains clear and convincing evidence to support this judgment. Accordingly, mother's sole assignment of error is not well-taken.
V. Conclusion
{¶ 40} Finding substantial justice has been done, we affirm the judgment of the Sandusky County Court of Common Pleas, Juvenile Division, awarding permanent custody of B-L.W. to SCDJFS. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. Gene A. Zmuda, J. Charles E. Sulek, J. CONCUR.