Opinion
2022CA00042 2022CA00043 2022CA00044
08-19-2022
IN THE MATTERS OF: IN RE: C.G. (DOB 10-25-15), Z.G. (DOB 06-20-17), L.G. (DOB 05-20-20)
For Plaintiff-Appellee JAMES B. PHILLIPS Stark County JFS For Defendant-Appellant EUGENE O'BYRNE
Appeal from the Stark County Court of Common Pleas, Family Court Division, Case Nos. 2019JCV1282, 2019JCV1283 and 2020JCV00430
JUDGMENT: Affirmed
For Plaintiff-Appellee JAMES B. PHILLIPS Stark County JFS
For Defendant-Appellant EUGENE O'BYRNE
JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
OPINION
Baldwin, J.
{¶1} Appellant C.G. appeals from the March 22, 20222 Judgment Entry of the Stark County Court of Common Pleas, Family Court Division terminating her parental rights and granting permanent custody of C.G., Z.G., and L.G. to Stark County Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant C.G.[hereinafter "appellant"] is the biological mother of C.G. (DOB 10/25/15), Z.G. (DOB 6/20/17) and L.G. (DOB 5/20/20). The father of all three children is M.G.
{¶3} On December 20, 2019, a complaint was filed in Stark County Court of Common Pleas, Juvenile Division, Case No. 2019JCV01282 alleging that C.G. was a dependent, neglected and/or abused child. On December 20, 2019, a complaint was filed in Stark County Court of Common Pleas, Juvenile Division, Case No. 2019JCV01283 alleging that Z.G. was a dependent and/or neglected child. Finally, on May 22, 2020, a complaint was filed in Stark County Court of Common Pleas, Juvenile Division, Case No. 20209JCV00430 alleging that L.G. was a dependent and/or neglected child.
{¶4} On March 12, 2020, the trial court held an adjudicatory hearing and found C.G. to be an abused child and Z.G. to be a dependent child. On July 1, 2020, trial court held an adjudicatory hearing and found L.G. to be a dependent child. All three children were ordered into the temporary custody of Stark County Department of Job and Family Services (SCDJFS).
{¶5} On September 3, 2021, SCDJFS filed motions seeking permanent custody of all three children. A trial was held on January 11, 2022. At the trial, Kimberly Gabel, the ongoing social work at SCDJFS who was assigned to all three of the cases, testified that Z.G. and C.G. had been in the custody of the agency for just over two years since their initial pick up on December 20, 2019 and that L.G. had been in the temporary custody of the agency since her initial pick up on May 22, 2020. She testified that the agency initially became involved in relation to Z.G. and C.G. over concerns that C.G. was being physically abused by her father, M.G., and that appellant was failing to protect the children from harm. According to her, C.G. had pretty significant bruising on her bottom. M.G. was charged with respect to the injuries and was sent to prison. Gabel testified that the agency prepared a case plan for their two cases that became the case plan for L.G.'s case once she was born. The case plan included a requirement that appellant engage in the Goodwill Parenting skills training program and that C.G. complete a trauma evaluation with Lighthouse Family Center. Gabel testified that appellant completed the parenting evaluation. The following is an excerpt from her testimony:
{¶6} Q: And were there any recommendations out of that that also were added to the case plan?
{¶7} A: Yes I just wanted to highlight that when the children did come into the temporary custody at the agency, the case plan was amended to include a parenting objective for mother to complete the evaluation and follow through with the recommendations provided as well as case management for the children as they were now in the temporary custody of the agency. Um mother did complete her parenting evaluation. Um as I had stated and mother was recommended to participate in comprehensive mental health treatment services. For her to be medication compliant. She was recommended to successfully engage in the Goodwill skills parenting training program. She was um recommended to participate in [C.G.'s] counseling when that would be appropriate. She was recommended to um seek out applying for SSI benefits. And also demonstrate the ability to provide for herself independently.
{¶8} Transcript from January 11, 2022 at 9-10.
{¶9} Gabel testified that there were concerns of ongoing domestic violence between appellant and M.G. and testified that there were police reports detailing the violence between the two of them. However, appellant admitted when confronted to having contact with M.G. despite a no contact order. Part of appellant's counseling was to address the domestic violence issues. While appellant was referred to Lighthouse Family Center for counseling in December of 2019, she did not share information with her counselor about her ongoing relationship with M.G. Towards the end of her working with her counselor, appellant had been falling asleep and missing some appointments and a paramour of appellant's had travelled with her to a counseling appointment.
{¶10} Gabel testified that appellant did not successfully complete Goodwill Parenting. There was testimony that an attempt was made to facilitate counseling with C.G. and appellant. C.G. had experienced significant trauma due to her exposure to domestic violence and due to observing sexual encounters between appellant and M.G. and appellant minimized what C.G. was experiencing. When asked, Gabel testified that she did not believe that appellant had successfully completed her case plan. She testified as follows when asked if she believed that appellant had reduced the risk that she posed to her children at the beginning of this case:
{¶11} A: I do not believe mother has reduced the overall um risk of harm posed to these children um due to not successfully completing her case plan services including and a pretty major part is, um the mental health engagement piece for herself, consistently taking her medication for her depression, following the recommendations that are provided um from her providers um to her counselor. Being equipped with the insight to be able to protect her children, to protect herself as well which is and has been a concern. Two that she would repeat the past actions and put herself in harm's way and ultimately the children in harms way as well. So due to the unsuccessful lack of case plan progress, I do not believe that these children would still be at risk.
{¶12} Transcript from January 11, 2022 at 15-16.
{¶13} Gabel testified that she observed and supervised appellant's visitation for eighteen months before the children were placed out of state on May 14, 2021 in Alabama with their paternal grandparents. She testified that the visits between appellant and the children lacked engagement on appellant's part, that there were periods of silence and that there were times when appellant appeared to be falling asleep during the visits. Appellant did not interact a lot with her children. After appellant traveled down to Alabama to see the children, their behaviors regressed. Z.G. started talking and acting like a baby and C.G. was very anxious after the visits and was chewing her hair. Gabel also testified that there were concerns with appellant being able to stay alert and awake during the visits and there were concerns that appellant was dating someone who once had a history of domestic violence.
{¶14} On cross-examination, Gabel testified that M.G. was sentenced to prison for eighteen months for the domestic violence against Z.G. and C.G. She testified that throughout the two years of this case, appellant had been employed and maintained her own independent living. Gabel had recommended that appellant go on SSI because there were concerns with her working midnights and her depression. She testified that appellant was physically present for local visits despite working midnights and that appellant had gotten a civil protection order (CPO) against M.G. in January of 2021 and had divorced him in March of 2021. He was released to a half-way house in November of 2020 and released from there in March of 2021. Gabel testified on redirect that the reports that she received from Alabama after appellant's visits were consistent with what she personally observed here namely, the falling asleep and lack of engagement. She testified that appellant did not go and get the CPO and divorce until after she confronted appellant. Gabel, when asked, testified that she did not believe that appellant had internalized and put into practice what she had learned. She testified that appellant had been in counseling with Lighthouse from the end of 2019 until the summer of 2021 and that that was "a substantial amount of time for her to not have made the changes necessary that we are looking to be able to say the overall risk of harm has been reduced for the children." Transcript from January 11, 2022 at 25.
{¶15} Gabel also testified that appellant, who had been diagnosed with major depression, was not in compliance with her mental health medication on a consistent basis. On recross-examination, Gabel testified that appellant was attending counseling at Coleman. Appellant had been going to Coleman since August of 2021 and her counselor had reported to Gabel that as of the day before the trial, they were still in the rapport building stage and had not been able to work on the underlying traumas yet.
{¶16} Dr. Aimee Thomas, a licensed psychologist and professional clinical counselor with Lighthouse Family Center, testified that she completed a parenting evaluation regarding appellant dated May 5, 2020. She testified that she was concerned with appellant's ability to parent after appellant told her that agency representatives had intervened after C.G, was physically abused by M.G. and that she herself was the victim of domestic violence on multiple occasion involving M.G. She voiced concerns that appellant had exposed her children to domestic violence and was unable to protect them. Thomas testified that appellant described M.G. as a good father and did not foresee his ability to harm the children. She testified that a report prepared by C.G.'s assessor indicated concerns with lack of emotional attachment to C.G. Thomas testified that during her evaluation of appellant, appellant, who was then 24 years old, indicated that she had put up with her dysfunctional relationship with M.G. since appellant was 17 years old.
{¶17} Thomas testified that testing of appellant indicated that she was functioning at the lower extreme of intellectual ability and functioned at the level of a nine year old with regard to verbal skills and an eight year old with respect to non-verbal skills. Appellant had problems learning new information and required additional structure, support and oversight. Thomas testified that appellant feared criticism, was shy, was inclined to tolerate unhealthy romantic relationships and she diagnosed appellant with major depressive disorder recurrent severe and dependent personality disorder. She testified that children who have mothers who struggle with depressive symptoms are at a higher risk of being physically, emotionally and sexually abused. Thomas testified that she recommended that appellant participate in comprehensive mental health services, participate in a psychiatric evaluation, successfully complete Goodwill Parenting classes, engage in counseling with C.G., and apply for SSI benefits based on her intellectual disabilities and mental health disorders. She stated that appellant must fully engage and successfully complete her total case plan goals.
{¶18} Jennifer Fire, a supervisor at the Goodwill Parenting Program, testified that appellant started the program in 2019 and was discharged to allow her to engage in counseling before attempting the program again. Appellant received a certificate of attendance which was not considered a successful completion. Fire testified that there were concerns about appellant's ability to supervise and engage with all three children at the weekly visits. She testified that appellant was disengaged, had a flat affect, was gruff and lacked empathy or understanding for her children and that appellant did not appear to be bonded and did not demonstrate signs of that on a consistent basis. Fire further testified that appellant did not let them know that she believed fully that C.G. was actually physically injured and that appellant was still wanting to be in a relationship with M.G. She testified that she learned that appellant was having contact with M.G. while he was in prison after denying doing so up to that point. Appellant showed very little improvement between her pre-test and post-test and showed very little improvement. Fire testified that appellant was unable to independently identify a healthy relationship and that no recommendations were made for appellant to reunify or even have unsupervised visits with her children. She testified that appellant had a problem staying awake during classes.
{¶19} The next witness to testify was Carrie Schnirring, a psychology assistant at Lighthouse Family Center who conducted sexual abuse assessment and trauma evaluations. She testified that she evaluated C.G. in late 2019 and that C.G. was very traumatized, very angry and was hostile and demanding. At the time, C.G. was four years old. Schnirring testified that in the twenty years of assessing thousands of children, C.G. was the angriest child that she had ever seen. She further testified that she had a session with appellant and that several things concerned her during her interview with appellant. Appellant spoke about multiple episodes of domestic violence that C.G. had been exposed to and complained about how C.G. behaved. Appellant kept referring to the child as crazy because of her behavior. Appellant, according to Schnirring, did not understand that C.G. acted the way that she did because of the violence that she had been exposed to and did not take any responsibility for how C.G. was acting and the trauma and the abuse that she had suffered. Schnirring testified that appellant was detached from C.G. She testified that she diagnosed C.G. with post traumatic stress disorder and an adjustment disorder with disturbance of emotions and conduct. She recommended trauma focused therapy with someone who specialized in specific play therapy modality. Schnirring testified that C.G. needed an environment where people were not modeling the angry and violent behaviors of the past and she voiced concerns over the fact that appellant did not believe that C.G. was traumatized and continued communicating with M.G. and lying about it while he was in prison for assaulting C.G. According to Schnirring, she was aware that there was a no contact order between appellant and M.G. prior to the incident involving C.G., but it was broken.
{¶20} Appellant testified at the trial that she was employed and had maintained housing. She testified that she worked nights often so was exhausted at Goodwill Parenting. She admitted that she had not taken her medication as prescribed in the beginning and that she broke the no contact order and engaged in phone conversations with M.G. when he was in prison despite being told not to do so.
{¶21} Kim Gabel testified again at the best interest portion of the permanent custody trial. She testified that C.G. came into care as an angry and very aggressive child who would curse and/or flip people off. The child was engaged in trauma focused counseling for two years and was making strides. She testified that C.G. was very smart but sometimes let her emotions get the best of her. C.G. was placed with her siblings with a relative in Alabama and was doing well. Gabel testified that L.G. was developmentally on target and was a happy and healthy little girl with no intellectual delays. According to her, all of the children were adjusting to their placement in Alabama and were thriving and doing very well. Gabel testified that they were placed with family and that the paternal grandparents wanted to adopt them.
{¶22} Gabel testified that after appellant visited the children in Alabama, Z.G. would regress to baby talk and crawling and C.G. experienced a high level of anxiety and was chewing on her hair. She testified that when she observed visits between appellant and the children before they went down to Alabama, she did not see a strong attachment between them. She stated that she believed the benefit of permanent custody outweighed any harm of breaking any bond between appellant and the children. She testified that M.G. had not visited the children in ninety days, was in prison before that, and that there was no bond between the children and their father. When asked, Gabel testified that she did not believe that appellant had successfully completed her case plan to reduce the risk that she posed to the children and that she believed it was in their best interest that permanent custody be granted for the purpose of adoption. The following is an excerpt from the testimony at trial:
{¶23} A: I think that because these children have been involved with the agency for over two years and these children deserve permanency. They are placed with relatives that are willing and able to provide them with that permanency that they can continue to flourish and development and meet all their milestones and live normal typical lives. These children deserve to have permanency.
{¶24} Q: And is it true that um adoption by the relatives gives a level of protection to these children?
{¶25} A: Yes.
{¶26} Q: And mother has not been able, has not demonstrated over the course of these last two years that she is able to provide that protections for these children?
{¶27} A: Correct.
{¶28} Transcript from January 11, 2022 at 72.
{¶29} Attorney Cole Bond, the Guardian ad Litem, made a statement to the court. He stated that appellant had a lot of work to do before she would be able to safely parent the children and that the children were doing great in Alabama with their paternal grandparents. He stated that the paternal grandparents wanted to adopt primarily to protect the children from appellant and M.G. The Guardian ad Litem was in favor of permanent custody.
{¶30} At the conclusion of the trial, the trial court took the matter under advisement. On March 22, 2022, the trial court issued its findings of fact granting permanent custody of the children to SCDJFS and terminating appellant's parental rights.
{¶31} Appellant now appeal, raising the following assignments of error on appeal:
{¶32} "I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILDREN CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
{¶33} "II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTEREST OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
I, II
{¶34} Appellant, in her two assignments of error, appeals the decision of the Stark County Court of Common Pleas, Family Court Division, granting appellee, Stark County Department of Job and Family Service's Motion for Permanent Custody and finding that the grant of permanent custody was in the best interest of the children.
{¶35} As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr, 54 Ohio St.2d 279, 376 N.E.2d 578(1978).
{¶36} R.C. 2151.414 sets forth the guidelines a trial court must follow when deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court schedule a hearing and provide notice upon the filing of a motion for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child or has placed the child in long term foster care.
{¶37} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to grant permanent custody of the child to the public or private agency if the court determines, by clear and convincing evidence, it is in the best interest of the child to grant permanent custody to the agency, and that any of the following apply: (a) 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; (b) the child is abandoned; (c) the child is orphaned and there are no relatives of the child who are able to take permanent custody; or (d) the child has been in the temporary custody of one or more public children services agencies or private child placement agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999.
{¶38} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial court must apply when ruling on a motion for permanent custody. In practice, the trial court will usually determine whether one of the four circumstances delineated in R.C. 2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding the best interest of the child.
{¶39} In her first assignment of error, appellant argues that the finding that her children could not or should not be placed with her within a reasonable time was against the manifest weight of the evidence.
{¶40} However, the trial court also determined, pursuant to R.C. 2151.414(B)(1)(d), that the children had been in the temporary custody of the agency for a period of time in excess of twelve of the prior twenty-two consecutive months. As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are alternative findings, each is independently sufficient to use as a basis to grant the motion for permanent custody. In re Dalton, 5th Dist. Tuscarawas No. 2007 AP 0041, 2007-Ohio-5805, ¶ 88. This finding alone in conjunction with a best interest finding is sufficient to support the grant of permanent custody. In re Calhoun, 5th Dist. Stark No. 2008 CA 00118, 2008-Ohio-5458, ¶ 45.
{¶41} According to the record, L.G. was found to be a dependent child and was placed in the temporary custody of SCDJFS on July 1, 2020, C.G. was found to be abused and was placed in the temporary custody of SCDJFS on March 12, 2020 and Z.G. was found to be dependent and was placed in the temporary custody of SCDJFS on March 12, 2020. The children were in temporary custody continuously when SCDJFS filed its motions for permanent custody on September 3, 2021.
{¶42} Because appellant has not challenged the twelve of twenty-two-month finding, we do not need to address the merits of her claim with regards to the trial court's determination that the two children could not or should not be placed with appellant within a reasonable time.
{¶43} However, even if we consider appellant's argument, we find that the trial court did not commit error in determining the children cannot be placed with appellant at this time or within a reasonable period of time. Under R.C. 2151.414(E), the trial court must consider all relevant evidence before making this determination. The trial court is required to enter such a finding if it determines, by clear and convincing evidence, that one or more of the factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the child's parents.
{¶44} There was testimony at the hearing that appellant did not successfully complete the Goodwill Parenting Program, continued having contact with M.G. even after he was in prison for abusing C.G., and that she had not successfully completed her case plan. There was testimony that appellant had not reduced the risk that she posed at the start of the cases and there was concern that appellant did not apply what she had learned. We find that the trial court's finding that the children could not and should not be placed with appellant within a reasonable period of time was not against the manifest weight of the evidence..
{¶45} Appellant also challenges the trial court's finding that it was in the children's best interest for permanent custody to be granted. There was testimony at the hearing that the three children had been placed with relatives in a home in Alabama and that the relatives wanted to adopt the. The children were bonded with the foster parents and each other. There was testimony that the children were all doing well in foster care. Gabel testified that after appellant visited the children in Alabama, Z.G. would regress to baby talk and crawling and C.G. experienced a high level of anxiety and was chewing on her hair. She testified that when she observed visits between appellant and the children before they went down to Alabama, she did not see a strong attachment between them. She stated that she believed the benefit of permanent custody outweighed any harm of breaking any bond between appellant and the children. The Guardian ad Litem also recommended that permanent custody be granted to SCDJFS.
{¶46} Based on the foregoing, we find that a review of the record supports the trial court's conclusion that the children cannot be placed with appellant within a reasonable time and that it was in their best interest for permanent custody to be granted.
{¶47} Appellant's two assignments of error are, therefore, overruled.
{¶48} Accordingly, the judgment of the Stark County Court of Common Pleas, Family Court Division is affirmed.
Baldwin, J. Gwin, P.J. and Wise, John, J. concur.