In re L.G. , 2012 Ohio 1163 ( 2012 )

[Cite as In re L.G., 2012-Ohio-1163.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: L.G. : JUDGES:
:
: Hon. Patricia A. Delaney , P.J.
: Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
:
: Case No. 2011CA00260
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No.
2009JCV01491
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 12, 2012
APPEARANCES:
For Appellant: For Appellee:
AMANDA E. JAMES LISA A. LOUY
Stark Co. Public Defender Office Stark County DJFS
200 West Tuscarawas St., Suite 200 110 Central Plaza S., Suite 400
Canton, OH 44702 Canton, OH 44702
[Cite as In re L.G., 2012-Ohio-1163.]
Delaney, J.
{¶1} S.G. (mother) appeals from the decision of the Stark County Court of
Common Pleas, Juvenile Division, granting permanent custody of her minor child,
L.G., to the Stark County Department of Child and Family Services (appellee) for
adoption.
FACTS AND PROCEDURAL HISTORY
{¶2} L.G. was born on September 4, 2009 to mother and an unknown father.1
On November 25, 2009, appellee filed a complaint alleging dependency and neglect of
L.G., and temporary custody was granted to appellee on February 17, 2010. L.G. has
thereafter remained in appellee’s continuous custody.
{¶3} On August 26, 2011, the agency filed a motion for permanent custody.
On September 22, 2011, mother filed a motion for change of legal custody to a
relative. On September 29, 2011, the permanent custody hearing went forward as to
mother’s rights but was reset for paternity testing to be conducted on two alleged
fathers.2
{¶4} Mother has two additional children. K.G., the eldest, is in the permanent
custody of Grant County, Indiana. Mother lost custody of K.G. when she failed to
complete case plan services. T.G., the youngest, is also in appellee’s temporary
custody and resides with the same foster family as L.G. Mother has a pending case
plan in reference to T.G.
1
Two potential fathers were excluded by D.N.A. testing and appellee was unable to
locate at least one other potential father.
2
The record indicates that on October 24, 2011, a hearing was held and testimony
was taken which excluded all alleged fathers.
Stark County, Case No. 2011CA00260 3
{¶5} While L.G. was in appellee’s temporary custody, mother had a case plan
which required a parenting evaluation at Northeast Ohio Behavioral Health, a drug and
alcohol assessment at Quest Recovery Services, maintaining stable housing and
obtaining employment.
{¶6} Mother attended the initial parenting evaluation on January 23, 2010,
cancelled her appointment on April 15, 2010, failed to appear on June 8, 2010,
attended on July 1, 2010, failed to appear on July 20, 2010, and attended on October
7, 2010.
{¶7} Mother’s attendance on July 1 and October 10 was facilitated by her
transportation by appellee. After repeated no-shows and cancellations, Northeast
Ohio Behavioral Health reported that they would not schedule another appointment for
mother unless she was accompanied by appellee’s staff; therefore, her caseworker
accompanied mother to her appointments, stayed with her, and took her home.
{¶8} The recommendations from the parenting evaluation were added to
mother’s case plan and included completion of Goodwill Parenting. Testimony
showed that mother started Goodwill Parenting classes but was terminated for
repeated absences.
{¶9} Mother was enrolled in counseling at Coleman Behavioral Health and
was terminated for repeated absences.
{¶10} The case plan included urine screens, which were negative except for
March 25, 2011. Mother failed to comply with screening requests in June, July, and
August, 2011.
Stark County, Case No. 2011CA00260 4
{¶11} Mother obtained subsidized housing in June 2010 but left the state from
July through September 2010. Mother is employed “off and on” with a temporary
services agency.
{¶12} Mother has visited with L.G. under supervision. These visits go well,
although Mother occasionally needs to be redirected to care for her children.
{¶13} Mother’s caseworker testified that compelling reasons exist to grant
permanent custody of L.G. to appellee. He is two years old and has been in the same
foster placement for most of his life. He has bonded with his foster family and
responds to his foster parents as “mom” and “dad.” Moreover, mother has done
nothing to mitigate concerns regarding her parenting skills, and her caseworker does
not believe mother is capable of parenting L.G.
{¶14} Mother admitted that she had a case plan in Indiana for K.G., her eldest
child, and that she did not work the case plan there but came to Ohio instead. She
started counseling at Community Services in compliance with the Indiana case plan,
but did not complete those classes and eventually lost custody of K.G.
{¶15} Mother testified that she is aware of her case plan with L.G. She started
Goodwill Parenting, but admitted that she was terminated for too many absences.
She also admitted that she was not current in her attendance with Coleman or
Community Services. She admitted that she went to North Carolina for two months,
and then to Florida, and did not complete any counseling or parenting classes during
that period. She also had no visits with L.G. during that time.
Stark County, Case No. 2011CA00260 5
{¶16} L.G. is a healthy two-year-old with no developmental delays. He has
been in the same foster home since April 2010 and has bonded with his foster family,
who would like to adopt him.
{¶17} Maternal aunt appeared at trial and stated that she would like to have
custody of L.G. This request was initially made within a week of trial. Maternal aunt
was aware that L.G. was in foster care for two years, but never sought placement,
visits, or updates as to his welfare. She stated that mother told her not to inquire
about L.G. because she was trying to regain custody of L.G. herself. Maternal aunt is
dependent on S.S.I. and lives with her ex-husband, whose criminal history she
claimed to be unaware of. This criminal history includes a 2007 domestic violence
charge.
{¶18} On October 26, 2011, the trial court granted permanent custody of L.G.
to appellee. Mother appeals from this decision.
{¶19} Mother raises two assignments of error:
{¶20} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILD CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶21} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE CHILD WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
Stark County, Case No. 2011CA00260 6
I., II.
{¶22} Both of mother’s assignments of error challenge the trial court’s decision
to terminate her parental rights and award permanent custody to appellee.
Specifically, mother claims that appellee did not make reasonable efforts to reunify her
with L.G., and that the trial court erred in finding that L.G. could not be placed with her
or a family member in a reasonable period of time. We disagree.
{¶23} 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 finder of fact could base its
judgment. Cross Truck Equipment Co. v. The Joseph A. Jeffries Co., 5th Dist. No.
CA5758, 1982 WL 2911 (Feb. 10, 1982). 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), syllabus.
{¶24} Issues relating to the credibility of witnesses and the weight to be given
to the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evident in the
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶25} 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
Stark County, Case No. 2011CA00260 7
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.
{¶26} 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.
{¶27} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of
the child with the child’s parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the wishes
of the child as expressed directly by the child or through the child’s guardian ad litem,
with due regard for the maturity of the child; (3) the custodial history of the child; and
(4) 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.
Stark County, Case No. 2011CA00260 8
{¶28} 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, a 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.
{¶29} In this case, the trial court found by clear and convincing evidence that
L.G. has been in the temporary custody of a public children services agency for twelve
or more months of a consecutive twenty-two-month period pursuant to R.C.
2151.414(B)(1)(d). Mother does not challenge the trial court’s finding. This finding
alone, in conjunction with a best-interest finding, is sufficient to support the grant of
permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118, 2008-Ohio-5458, ¶
45.
{¶30} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should
not be placed with the parents. 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.
{¶31} The trial court determined that L.G. could not be placed with mother
within a reasonable time pursuant to R.C. 2151.414(E)(1) and (11), which require the
following findings:
Stark County, Case No. 2011CA00260 9
(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.
* * * *.
(11) The parent has had parental rights involuntarily terminated with respect to
a sibling of the child pursuant to…an existing or former law of any other
state…and the parent has failed to provide clear and convincing evidence to
prove that, notwithstanding the prior termination, the parent can provide a
legally secure permanent placement and adequate care for the health, welfare,
and safety of the child.
{¶32} A review of the record supports the trial court’s decision that L.G. cannot
be placed with mother within a reasonable time. Mother has already lost custody of
K.G., and T.G. is in appellee’s temporary custody. Mother is aware of her case plan,
and appellee has worked to enable her to complete it, but mother has been terminated
from counseling and parenting classes due to sporadic attendance. Although appellee
Stark County, Case No. 2011CA00260 10
apparently does not have concerns about substance abuse, it is noteworthy that
mother failed to comply with three requested urine screens. Mother has obtained
stable housing, and yet left the state for an extended period of time, during which she
neither visited with L.G. nor worked on her case plan. Ultimately, we agree that L.G.
cannot be placed with Mother within a reasonable period of time.
{¶33} We next turn to the issue of best interest. We have frequently noted,
“[t]he discretion which the juvenile court enjoys in determining whether an order of
permanent custody is in the best interest of a child should be accorded the utmost
respect, given the nature of the proceeding and the impact the court’s determination
will have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist. No.
2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d
309, 316, 642 N.E.2d 424 (8th Dist.1994). The trial court determined it was in the best
interest of L.G. to be placed in the permanent custody of appellee pursuant to R.C.
2151.414(D), and we agree.
{¶34} L.G. is a healthy 2-year-old with no significant developmental disabilities
or behavioral problems. He is currently placed in foster care with his sibling and his
foster family wants to adopt him. Two potential family caregivers have presented
themselves; maternal grandmother was ruled out immediately due to her marriage to a
convicted sex offender, and no home study was completed on maternal aunt because
she presented herself for the first time a week before trial.
{¶35} Some bonding has occurred between mother and L.G., but the
caseworker testified that L.G. is comfortable with mother to the same extent that he’s
comfortable with anyone. The caseworker further opined that any harm caused to
Stark County, Case No. 2011CA00260 11
L.G. by separation of mother’s parental rights is outweighed by the advantages to him
of adoption.
{¶36} L.G. deserves permanency, and adoption would benefit him. Clear and
convincing evidence supports the trial court’s conclusion that it is in L.G.’s best
interest to grant permanent custody to appellee.
{¶37} Mother argues that the agency did not make reasonable efforts to reunify
mother with L.G. or reasonable efforts to assist mother with her case plan services.
We note that mother’s caseworker actively encouraged her to attend case plan
services and provided her with transportation and bus passes, but mother was still
terminated from those services for sporadic attendance. We find that the evidence
established that mother failed in her case plan and did not comply with the
recommendations for treatment, despite having been granted reasonable time to do
so.
{¶38} Mother asserts that the trial court erred in finding that L.G. could not be
placed with a family member in a reasonable period of time. We find, however, that
the trial court could reasonably conclude that maternal aunt could not provide
appropriate placement for L.G. because she expressed no interest in custody until a
week before trial, never sought placement or visits, is financially dependent upon
S.S.I., and lives with an ex-husband whose criminal history she purports to be
unaware of.
{¶39} Upon a review of the record in light of the pertinent statutory factors, we
find the record contains clear and convincing evidence which supports the trial court’s
determination. The trial court did not err when it determined L.G. could not be placed
Stark County, Case No. 2011CA00260 12
with Mother in a reasonable time. The granting of permanent custody of L.G. to
appellee was made in consideration of the child’s best interests and was not an abuse
of discretion.
{¶40} Mother’s first and second assignments of error are overruled.
{¶41} The decision of the Stark County Court of Common Pleas, Juvenile
Division is affirmed.
By: Delaney, P. J.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
[Cite as In re L.G., 2012-Ohio-1163.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: L.G. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: Case No. 2011CA00260
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas, Juvenile Division is affirmed. Costs assessed
to appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE