Opinion
CA2023-03-002
07-18-2023
IN RE: J.B., et al.
Kirsten Knight, for appellant. Martin P. Votel, Preble County Prosecuting Attorney, and Sean Brinkman, Assistant Prosecuting Attorney, for appellee, Preble County Children Services. Ryan Agee, for appellee, Father.
APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 2021 3083 and 2021 3097
Kirsten Knight, for appellant.
Martin P. Votel, Preble County Prosecuting Attorney, and Sean Brinkman, Assistant Prosecuting Attorney, for appellee, Preble County Children Services.
Ryan Agee, for appellee, Father.
OPINION
BYRNE, J.
{¶ 1} Mother appeals from a judgment of the Preble County Court of Common Pleas, Juvenile Division, that granted permanent custody of her children, Jennifer and Gina, to Preble County Job and Family Services, Children's Services Division ("Agency"). For the reasons discussed below, we affirm the permanent-custody judgment.
"Jennifer" and "Gina" are pseudonyms, adopted in this opinion for purposes of privacy and readability. See In re D.P., 12th Dist. Clermont Nos. CA2022-08-043 and CA2022-08-044, 2022-Ohio-4553, ¶ 1, fn.1.
I. Facts and Procedural History
{¶ 2} Jennifer was born on June 5, 2020. The Agency had protective supervision of her until December 2020. The following year Mother overdosed on illegal drugs in her car. Jennifer was with Mother in the car at the time, and Mother was pregnant with a second girl, Gina. Mother was taken to the hospital where she overdosed again in her hospital room by injecting illegal drugs into her hospital IV. She later told the hospital staff that she had overdosed trying to induce labor because she was tired of being pregnant. When Gina was born in early September, 2021, she was addicted to opioids and fentanyl. Gina remained in the hospital through a period of withdrawal.
{¶ 3} On August 26, 2021, shortly before her sister was born, Jennifer was placed in the Agency's temporary custody. Gina was placed in temporary custody on September 24, 2021, after she was released from the hospital. The girls were placed together in a foster home, and a court appointed special advocate (CASA) was appointed for them. That October, Jennifer was adjudicated dependent and Gina was adjudicated abused and dependent. A case plan was developed for both children and their parents. Both parents had a drug problem, and the case plan called for them both to get treatment and stop using drugs. Neither parent stopped.
{¶ 4} The Agency moved for permanent custody of the children in July of 2022. In August, the CASA filed a report recommending that permanent custody be granted to the Agency. At an annual review held that month, the juvenile court found that Mother had inconsistently participated in substance-abuse treatment and had relapsed five times since the case had been opened. There were also concerns about her mental health. Mother had reported being in and out of hospitals and switching mental-health-care providers. As for Father, the court found that he had completed substance-abuse treatment but had relapsed a couple of months before and had not re-engaged in treatment. He had been fired from his job for using drugs at work.
{¶ 5} A hearing on the permanent-custody motion was held on January 10 and February 6, 2023, at which two Agency caseworkers and the CASA testified. The caseworkers testified about the parents' failure to remedy the conditions that caused the children to be removed and their failure to meet their case-plan objectives, which included substance-abuse treatment, maintaining appropriate housing and income, and visiting regularly with the children. Mother had been uncommitted to visiting the children, said the caseworkers, and did not make treatment a priority. While she had participated in some treatment programs, it had not changed her behavior. The testimony also showed that Mother was not gainfully employed and did not have child-appropriate housing. The parents' drug use was the primary reason for the children's removals and continued to be the agency's primary concern. Mother often ignored the caseworkers' drug-test requests, and the tests that were conducted were usually positive. Neither parent had addressed their drug problems, and neither parent appeared to be equipped to care for the children. The caseworkers and the CASA testified that the children were doing well in their foster home and that the Agency intended to keep them there if it was granted permanent custody. The children were bonded to their foster family, and the foster family wanted to adopt them.
{¶ 6} At the end of the first day of the hearing, the court ordered both parents to undergo a drug test. The results were positive for both parents. Neither parent attended the second day of the hearing or bothered to give the court or their attorneys a reason for their absence.
{¶ 7} On February 28, 2023, the juvenile court entered judgment ordering that parental rights be terminated and that permanent custody of the children be granted to the Agency. In addition to permanent custody legal findings discussed below, the court found that Mother and Father had failed continuously and repeatedly to substantially remedy the conditions that caused the children to be removed, that the parents lacked commitment to the children, and that there was little bond between the parents and the children. The parents' continued drug use had caused the children's removal and had continued unabated right up until the hearing. The court said that the children needed the stability and permanency that permanent custody would provide.
{¶ 8} Mother appealed, raising one assignment of error. Father did not appeal and is not a party to this appeal.
II. Analysis
{¶ 9} Mother's sole assignment of error states:
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO PREBLE COUNTY CHILDREN'S SERVICES BECAUSE ADDITIONAL TIME COULD HAVE ALLOWED MOTHER TO ADDRESS THE AGENCY'S SUBSTANCE ABUSE CONCERNS.
{¶ 10} While the section of Mother's appellate brief labeled "Argument" spans three pages, most of that section is devoted to describing the applicable law. Mother devotes only two short paragraphs to her actual argument. Those two paragraphs simply state:
In this case the trial court granted permanent custody to Preble County Children's Services despite the fact that Mother had made significant progress on her caseplan and the only issue left of concern to the Agency was substance abuse. Mother had been through multiple treatment programs and although she had relapsed, her actions show a clear effort to work on her sobriety. Even the caseworker testified that it was possible that with additional time Mother could resolve the substance abuse concerns.
Based upon the foregoing, the trial court erred when it granted
permanent custody to the agency without providing Mother additional time to address the substance abuse concerns.
{¶ 11} We will address the merits of Mother's argument after describing the applicable law regarding permanent custody and our standard of review.
A. Applicable Law and Standards of Review
{¶ 12} The United States Supreme Court has recognized that parents' interest in the care, custody, and control of their children "is perhaps the oldest of the fundamental liberty interests recognized" by the Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054 (2000). Parents who are suitable persons have a "paramount" right to the custody of their minor children. In re Perales, 52 Ohio St.2d 89, 97 (1977).
{¶ 13} "Before a natural parent's constitutionally protected liberty interest in the care and custody of his child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met." (Citation omitted.) In re M.G., 12th Dist. Brown No. CA2022-11-010, 2023-Ohio-1316, ¶ 44; R.C. 2151.414(E). Under R.C. 2151.414(B)(1), the juvenile court may terminate parental rights and award permanent custody of a child to a children services agency if the court makes findings pursuant to a two-part test. In re K.P., 12th Dist. Preble No. CA2021-11-016, 2022-Ohio-1347, ¶ 17. First, R.C. 2151.414(B)(1) provides that the juvenile court must find that the grant of permanent custody to the agency is in the "best interest" of the child. In re M.H., 12th Dist. Clermont Nos. CA2021-08-047, CA2021-08-048, and CA2021-08-049, 2022-Ohio-48, ¶ 35. Second, the juvenile court must find that one of the circumstances set forth in R.C. 2151.414(B)(1)(a) to (e) apply. In re R.B., 12th Dist. Butler Nos. CA2022-01-003 and CA2022-01-004, 2022-Ohio-1705, ¶ 31. Those circumstances include, but are not limited to: (1) the child is abandoned, R.C. 2151.414(B)(1)(b); (2) the child is orphaned, R.C. 2151.414(B)(1)(c); (3) the child has been in the temporary custody of one or more public children services agencies for 12 or more months of a consecutive 22-month period, R.C. 2151.414(B)(1)(d); and (4) none of the previous three circumstances applies, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the parents, R.C. 2151.414(B)(1)(a). Only one of these circumstances need apply to satisfy the second prong of the two-part permanent custody test. In re C.S., 12th Dist. Clinton No. CA2020-04-006, 2020-Ohio-4414, ¶ 16.
R.C. 2151.414(D) provides a list of "relevant factors" a court should consider when determining permanent custody. Those relevant factors include, but are not limited to: "(a) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers, * * * and any other person who may significantly affect the child; (b) the wishes of the child, as expressed directly or through the guardian ad litem, with due regard for the maturity of the child; (c) the custodial history of the child * * *; [and] (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 * * *." R.C. 2151.414(D)(1).
{¶ 14} "An appellate court's review of a juvenile court's decision granting permanent custody is generally limited to considering whether sufficient credible evidence exists to support the juvenile court's determination." (Citation omitted.) In re A.S., 12th Dist. Butler Case Nos. CA2019-05-071 thru CA2019-05-073, 2019-Ohio-4127, ¶ 19. However, "[e]ven if there is sufficient evidence to support the juvenile court's decision, an appellate court may nevertheless reverse a permanent custody judgment if it finds the judgment to be against the manifest weight of the evidence." In re G.A., 12th Dist. Clermont No. CA2022-11-079, 2023-Ohio-643, ¶ 18, citing In re F.S., 12th Dist. Fayette Nos. CA2020-08-011 and CA2020-08-012, 2021 -Ohio-345, ¶ 61. In determining whether a juvenile court's judgment is against the manifest weight of the evidence, an appellate 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 trial ordered.'" In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. The presumption in weighing the evidence favors the finder of fact, which we are especially mindful of in custody cases. In re R.K., 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio-3074. Therefore, if the evidence is susceptible to more than one construction, the reviewing court is bound to give it the interpretation that is consistent with the verdict and judgment. In re D.S., 12th Dist. Clinton Nos. CA2021-10-030 and CA2021-10-031, 2022-Ohio-998, ¶ 63.
B. First Part of the Permanent Custody Test: Best Interest Analysis
{¶ 15} Mother does not challenge the juvenile court's finding under R.C. 2151.414(B)(1) that "[i]t is in the children's best interest to have permanent custody placed with the Agency." Nor does Mother challenge the specific factual findings that the juvenile court made in support of its best interest finding, including but not limited to its findings that the children "are doing well and have all of their regular and special needs met in their foster home" and that "[t]he parents have not addressed their actions or inactions that are suspect and do not appear to be equipped to parent the children."
{¶ 16} Because Mother does not challenge the juvenile court's best interest finding, we need not review this first part of the permanent custody test further. In re G.A. at ¶ 43 (declining to review the second part of the permanent custody test when appealing parent failed to challenge that part of the juvenile court's analysis on appeal); In re J.N.L.H., 12th Dist. Butler No. CA2022-06-063, 2022-Ohio-3865, ¶ 26 (same); In re L.G., 8th Dist. Cuyahoga No. 110789, 2022-Ohio-529, ¶ 55, fn.11 (stating that "[b]ecause Mother does not specifically challenge the juvenile court's best-interest determination" the court would not specifically address those findings). Mother effectively concedes that the trial court's best interest finding was not erroneous. Nevertheless, we have reviewed the juvenile court's best interest findings and conclude that they are supported by competent, credible evidence. See In re L.J., 12th Dist. Clermont No. CA2007-07-080, 2007-Ohio-5498, ¶ 33 ("While appellant does not challenge the magistrate's best interest findings, we have reviewed these findings and find that they are supported by competent, credible evidence").
Even if we were to generously interpret Mother's argument-which focuses on her assertion that the trial court erred because it granted permanent custody "without providing Mother additional time to address the substance abuse concerns"-as challenging the juvenile court's best interest finding, based on our thorough review of the record, we find that the juvenile court's best interest finding was not erroneous. We reach this finding for the same reasons discussed below with respect to the juvenile court's R.C. 2151.414(B)(1)(a) finding.
C. Second Part of the Permanent Custody Test: "Reasonable Time" Analysis
{¶ 17} The juvenile court did not explicitly state-by citing the statute-which of the circumstances concerning the second part of the permanent custody test set forth in R.C. 2151.414(B)(1) applied to the children's situation. However, the court made two findings which, when viewed in context, appear to be the findings contemplated by R.C. 2151.414(B)(1)(a). That provision states:
The child is not abandoned or orphaned, has not 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 * * * 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.
We will review the juvenile court's findings with respect to this provision in turn.
{¶ 18} First, the juvenile court found that "[Jennifer] has been in the Agency's temporary custody since August 26, 2021, and [Gina] has been in the Agency's temporary custody since September 24, 2021." Because the agency filed its permanent custody motion in July of 2022, a review of a calendar and simple arithmetic reveal that by making this finding, the trial court found that the children "ha[ve] not 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." (Emphasis added.) This is part of the circumstance described in R.C. 2151.414(B)(1)(a) above. Mother does not challenge the juvenile court's finding in this respect, so we do not need to review this aspect of the court's decision further.
The time periods described in R.C. 2151.414(B)(1)(a) are calculated at the time a public children service agency moves for permanent custody. In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, ¶ 24 ("'[A] motion for permanent custody must allege grounds that currently exist.'"), quoting In re K.G., 9th Dist. Wayne Nos. 03CA0066, 03CA0067, and 03CA0068, 2004-Ohio-1421, ¶ 13; In re A.W., 9th Dist. Summit Nos. 29888 and 29900, 2021-Ohio-2095, ¶ 15 (stating that "[r]elevant case law has held that the '12 of 22' month period must exist at the time the agency files its motion for permanent custody," and consequently determining that the applicable 22-month period in the case was between the date of the child's adjudication and the date that the children services agency filed the motion for permanent custody).
Mother does not challenge the trial court's R.C. 2151.414(B)(1)(a) finding on the basis that the juvenile court did not address the remaining conditions described in R.C. 2151.414(B)(1)(a). That is, Mother does not challenge the juvenile court for failing to find that the children were not abandoned, for failing to find that the children were not orphaned, or for failing to find that the children were in the custody of a public children services agency for less than 12 months of a consecutive 22-month period. Because Mother does not challenge the juvenile court on this basis, we decline to analyze whether the juvenile court's failure to mention these findings was error. While the better practice is to explicitly address each condition, in this case, there is no indication in the record that the children were abandoned or orphaned.
{¶ 19} Second, the juvenile court found that "[Jennifer] and [Gina] cannot be placed with either parent within a reasonable period of time or should not be placed with their parents * * *." On appeal, Mother challenged only this specific portion of the juvenile court's R.C. 2151.414(B)(1)(a) analysis; that is, Mother challenged the court's finding that the children "cannot be placed with either of the child[ren]'s parents within a reasonable time or should be placed with the child[ren]'s parents."
{¶ 20} The parental-placement question in R.C. 2151.414(B)(1)(a) is governed by statute. In 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 court must consider "all relevant evidence." R.C. 2151.414(E). The court must find that the child cannot be placed with either parent within a reasonable time or should not be placed with the parents if the court determines, by clear and convincing evidence, that at least one of the circumstances listed in the statute exists, including:
(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. * * *
(2) Chronic * * * chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing * * *;
* * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
* * *Id. For the reasons set forth below, all three of these circumstances are satisfied here based on the facts found by the juvenile court and the evidence in the record.
{¶ 21} The juvenile court's decision relied heavily on the parent's failure to remedy the condition that caused the children to be removed-drug use. Drug use was the primary reason for the children's removal and continued to be a serious problem. Mother and Father either could not or would not stop using illegal drugs. Mother persisted in illegal drug use even after she, while pregnant with Gina, overdosed with Jennifer in the car, after Mother attempted to induce Gina's birth by injecting illegal drugs into her hospital IV, and after Gina was born addicted to opioids and fentanyl. Meanwhile, the children were stable and happy in their foster home and bonded to their foster family, which wanted to adopt them both. The court wanted to give the children the stability and permanency that only permanent custody could provide.
{¶ 22} The court's decision was supported by sufficient evidence and was not against the manifest weight of the evidence. The Agency presented clear and convincing evidence that the children could not be returned to either parent within a reasonable time (and that granting permanent custody to the Agency was in the children's best interests). The testimony of the two caseworkers and the CASA showed that both parents had failed to meet their case plan objectives or to make reasonable efforts toward that goal, that the parents were not bonded with the children, and that the children were doing very well with the foster family. The witnesses all agreed that the children's best interests would be served by granting permanent custody to the Agency.
{¶ 23} The family's first caseworker testified that Mother had tried about five different substance-abuse treatment programs but completed only one. But following that one successful completion Mother began using drugs again. The caseworker said that Mother had admitted using drugs throughout the case and that she had admitted overdosing. The caseworker further testified that Mother had attended some scheduled visits with the children but was not consistent. During visits, Mother struggled with Gina and admitted that she did not have a connection with the child. The Agency was also concerned that Mother was sometimes under the influence of drugs at visits, as staff would have to awaken her. At times, staff was concerned that Mother would drop the child she was holding, and they would ask her to sit down. Mother was swaying in a manner that led agency staff to believe she was under the influence.
{¶ 24} The second caseworker (who took over the case in August 2022) testified that Mother had tried multiple in-patient treatment programs but did not complete any. The caseworker said that Mother had not completed any mental-health treatment programs either. She said that Mother had been meeting with her regularly until November 2022 when Mother suddenly disappeared. The caseworker finally reached Mother by telephone the following month and offered visits with the children, which Mother accepted. The caseworker observed Mother at one of her visits with the children and became concerned for one child's safety when Mother began swaying unsteadily while holding her.
{¶ 25} As to Mother's current situation, the caseworker testified that the Agency had ongoing concerns about drug abuse, Mother's mental health, and the safety of her home. While the caseworker acknowledged that Mother could improve with time, her confidence that this would occur was tempered by Mother's long-standing substance-abuse problems and Mother's frank admissions that she was still using drugs. When asked about what the Agency could do to get mother treatment, the caseworker replied that Mother had not recently asked for treatment. The caseworker further said that Mother had been refusing drug tests. When asked about giving Mother more time to clean up her life, the caseworker replied that Mother had a pattern of relapse and treatment and that waiting was not in the children's best interest.
{¶ 26} Because Mother had refused to submit to drug tests, the juvenile court ordered testing following the first day of the permanent-custody hearing. Mother tested positive for amphetamines. She then failed to appear for the second day of the hearing and failed to provide an explanation for her absence.
{¶ 27} On the second day of the hearing, a month later, the caseworker testified that Mother had not attended any scheduled visits with the children after the first hearing date. The caseworker further said that she had made an unannounced visit to Mother's home to discuss the positive drug-test results with her, but Mother would not even engage in a discussion about treatment.
{¶ 28} As for the children's situation, the caseworker testified that they had progressed beyond needing many of the developmental services that they had been receiving. The children had been together in the same foster home since they were removed. The foster parents and their children lived in a country home, and the relationship between the foster parents and the two girls was described as "mother and father; parent and child" and "very close." The foster parents were meeting both children's needs, and the foster family was interested in adopting them. The Agency had no concerns regarding the foster family. The caseworker noted that there was no possibility that a relative could care for the children.
{¶ 29} The CASA testified that she too had observed the parents' visits with the children. Mother took an interest and interacted with them, said the CASA, but sometimes it was a "long hour." The CASA said that the children were "so attached" to the foster parents and were excited to see the foster father when he came in from work. While the children were too young to express their feelings or wishes, the CASA asked Jennifer where she liked to sleep and she took the CASA to her bed in the foster home. The foster parents already treat the girls like their own, said the CASA. She believed that granting permanent custody to the Agency would be in the children's best interest and hoped that the foster family would be permitted to adopt them.
{¶ 30} In sum, the evidence as it relates to Mother shows that the children were removed because of her drug use and that she was still using drugs at time of the permanent-custody hearing. Mother failed to visit with the children consistently, and when she did, there were concerns about children's safety. The Agency had further concerns about Mother's housing and income. To top it all off, Mother inexplicably missed visits during the final permanent-custody hearing and failed to show up for the hearing's final day. The children were doing very well in their foster home, and the foster parents wanted to adopt them both.
{¶ 31} A court is not required to continually delay permanency in the hope that someday a parent will stop using drugs, particularly when neither parent has shown any progress toward that goal. In this case, the evidence belies Mother's claim that she was making progress on her drug problem. She showed zero improvement since the case began-she even tested positive for amphetam ines after the first day of the final permanent-custody hearing-and there was no evidence that change would come anytime soon. It was clear that Mother had not come close to remedying the serious condition that caused her children's removal. See In re M.B., 8th Dist. Cuyahoga No. 109187, 2020-Ohio-1391, ¶ 29 (the issue is whether the parent has substantially remedied the conditions that caused the child's removal). And there was no evidence suggesting that Mother would do so within any reasonable period of time.
{¶ 32} We can speculate that Mother might one day resolve her drug problem, but the juvenile court did not err by refusing to make her children exchange a distant and speculative hope for stability and permanency now. The record supports the juvenile court's R.C. 2151.414(B)(1)(a) finding that Jennifer and Gina could not be placed with either parent within a reasonable time or should not be placed with their parents. Mother's argument to the contrary is without merit.
III. Conclusion
{¶ 33} For the reasons discussed above, we find no merit to Mother's claim alleging that the juvenile court erred in deciding to grant the Agency permanent custody of her children. Mother's assignment of error lacks merit and is overruled.
{¶ 34} The juvenile court's judgment is affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.