In re J.G. , 2016 Ohio 896 ( 2016 )

[Cite as In re J.G., 2016-Ohio-896.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF: : OPINION
J.G., NEGLECTED CHILD. :
CASE NO. 2015-L-102
:
:
Civil Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case
No. 2013 NG 01020.
Judgment: Affirmed.
Christopher J. Boeman, P.O. Box 583, Willoughby, OH 44096 (For Appellant-Father).
Karen L. Hummel, Hummel Law, LLC, 401 South Street, #2-B, Chardon, OH 44024
(For Appellant-Mother).
Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building,
105 Main Street, P.O. Box 490, Painesville, OH 44077, and Stephanie G. Snevel,
Special Prosecutor, P.O. Box 572, Wickliffe, OH 44092 (For Appellee).
DIANE V. GRENDELL, J.
{¶1} Appellant, Robert Grimes, appeals the Judgment Entry of the Lake County
Court of Common Pleas, Juvenile Division, granting appellee, Lake County Department
of Job and Family Services’, Motion for Permanent Custody. The issue before this court
is whether it may be determined that it is in a child’s best interests that parental rights
be terminated despite some improvement in the parents’ abilities to parent the child and
compliance with the case plan. For the following reasons, we affirm the decision of the
court below.
{¶2} On May 28, 2013, the Lake County Department of Job and Family
Services filed a Complaint, alleging J.G., age six (dob December 2, 2006), to be
neglected and dependent as defined in R.C. 2151.03(A)(2) and 2151.04(C),
respectively.
{¶3} On May 30, 2013, Attorney Paul E. Miller was appointed guardian ad litem
for J.G.
{¶4} On July 1, 2013, J.G. was found dependent with the consent of the
parties.1 The juvenile court granted Job and Family Services protective supervision of
J.G.
{¶5} On November 26, 2013, Job and Family Services moved for and was
granted emergency temporary custody of J.G. The sunset date for termination of the
temporary order was established as November 26, 2014. See R.C. 2151.353(G).
{¶6} On December 4, 2013, Job and Family Services filed a Motion for
Temporary Custody.
{¶7} On February 7, 2014, Job and Family Services was awarded temporary
custody of J.G. with the consent of the parties.
1. The dependency adjudication was based on the following factual findings: “On or between the 6th day
of April, 2013, and the 16th day of May, 2013, in the City of Willoughby, Lake County, State of Ohio, said
child’s condition or environment was such as to warrant the state in the best interest of the child, in
assuming the child’s guardianship; specifically, on April 6, 2013, 911 was contacted three times regarding
substance abuse issues for Mother, Jessica Sundberg, and Mr. Grimes. On April 6, 2013, Ms. Sundberg
directed JG to contact 911 after Mr. Grimes acted strangely in the home and then walked down the street.
After 911 was called, Ms. Sundberg stated she consumed 11 prescription pills, passed out on a coffee
table and urinated on herself. Ms. Sundberg drinks alcohol regularly and becomes out of control when
she is intoxicated. Ms. Sundberg has given JG some of Mr. Grimes’ prescription medication. On May 1,
2013, Ms. Sundberg was intoxicated and assaulted Mr. Grimes. As a result, Ms. Sundberg was charged
with disorderly conduct.”
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{¶8} On October 22, 2014, Job and Family Services filed a Motion to Extend
Temporary Custody.
{¶9} On December 10, 2014, Job and Family Services’ temporary custody of
J.G. was extended for six months, until May 26, 2015, with the consent of the parties.
{¶10} On May 22, 2015, Job and Family Services filed a Motion for Permanent
Custody.
{¶11} On July 2, 2015, the guardian ad litem filed an Emergency Motion to
Appoint Attorney for Minor Child, upon the belief that “a conflict has arisen between the
Guardian’s obligations as Guardian ad Litem and attorney,” and “to avoid any potential
conflict from this point forward in the proceedings.”
{¶12} On July 8, 2015, the juvenile court appointed counsel to represent J.G.
{¶13} On August 4, 2015, the Report of the Guardian ad Litem was filed.
Attorney Miller recommended that Job and Family Services be awarded permanent
custody of J.G. With respect to J.G.’s wishes, Miller believed that they had been
accurately described as “ambivalent”: “[J.G.] says he would like to return to his parent’s
[sic] home. Yet [he] appears to be thriving in his Foster Parent’s home. [J.G.] doesn’t
really appear to appreciate the situation but has said on several occasions that he
would like to return home. That is why this Guardian asked that he be appointed an
attorney. [J.G.] has also expressed to the social worker, this Guardian and the Foster
Parent that he would be happy staying with the Foster Parent.”
{¶14} On August 18, 19, and 20, 2015, trial was held on the Motion for
Permanent Custody and other pending matters. The following testimony was presented
at trial:
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{¶15} Jennifer Mix, an ongoing social worker with Lake County Department of
Job and Family Services, testified that, in November 2007 (J.G. was eleven-months-
old), she was assigned to work with J.G.’s family due to “concerns of some instability in
the home regarding substance abuse issues and mental health issues.” Jessica was
abusing alcohol and Robert was abusing prescription medication in addition to
demonstrating “bizarre” behaviors. J.G. was adjudicated dependent in December 2007
and, in April 2009, Job and Family Services was awarded temporary custody of J.G.
{¶16} Job and Family Services had custody of J.G. for about fourteen months.
Despite some relapses with regard to substance abuse, Jessica and Robert were
generally case plan compliant. J.G. was returned to his parents’ custody in June 2010,
and, in September 2010, the case was closed.
{¶17} Doug Battisti began providing counseling services to the family in October
2013. His “goals were to identify triggers and such for [J.G.’s] anger and aggression in
the home and figure out what needed to happen in the home to adjust the home
experience to * * * teach him coping skills, what we call soothing skills.” He testified that
Jessica and Robert accused each other of substance abuse and were indifferent to the
efforts of Crossroads (a community-based service organization for children) to provide
instruction. He noted J.G.’s ability to play his parents off against each other. In August
2014, he ceased working with the family as it was determined that progress could not
be made until the parents addressed their mental health and substance abuse issues.
{¶18} Rochelle Davis, a case manager with Crossroads, testified that she
assisted Jessica and Robert in dealing with J.G.’s behaviors in the home. After J.G.’s
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removal from the home in November 2013, Davis continued working with the foster
mother.
{¶19} Davis described J.G.’s behavior upon removal thus: “He was physically
aggressive towards his foster mom, destructive [of] property, unsafe in the community,
meaning he would run off [from] his foster mom, he was lying, attempting to be
manipulative, could not tolerate the word ‘no,’ was not following directions, would not be
redirected, huge emotional meltdowns.” A behavioral system of rewards and
consequences, with an emphasis on consistency, was developed and implemented in
the foster home, with the result that J.G.’s behavior became manageable.
{¶20} Davis noted that J.G.’s behavior is influenced by his interaction with his
parents. A disappointing visit with his parents or anxiety over his custody triggers
negative behaviors while positive interaction with his parents improves his behavior.
{¶21} Donna Scott, an early childhood clinical coordinator with Crossroads,
testified that she began working with J.G. (then age four) and his family in 2011. At the
time, J.G. was in a therapeutic preschool program with symptoms of withdrawal,
anxiety, and anger. Individual counseling for J.G. and family therapy services were
provided until the fall of 2013, when Job and Family Services took custody of J.G.
{¶22} In November 2014, Scott again began working with the family. She noted
that neither Jessica nor Robert were able to effectively engage J.G. or respond to his
needs. She encouraged the parents to provide J.G. with structure and to communicate
with him as ways of lessening his anxiety. She also impressed upon Jessica and
Robert the need to work together as parents in order to redirect and/or set limits on
J.G.’s behaviors. J.G. continues to show aggressive and agitated behaviors as a result
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of the chronic stressors in his life and has been diagnosed with adjustment disorder with
mixed emotions and conduct.
{¶23} Scott testified that both Jessica and Robert have shown recent progress in
their parenting abilities, responding to J.G.’s “cues” and, in particular, working together
as parents. However, they have not demonstrated as much progress as she believes is
necessary to parent J.G. effectively.
{¶24} Joseph Weber, a community psychiatric support treatment supervisor at
Beacon Health, began treating Jessica in December 2014 for depression and anxiety.
Jessica currently takes Zoloft and Buspar. Jessica self-reports that her depression is
improving but that there is still anxiety.
{¶25} Erica Patfield, a dual diagnosis counselor at Beacon Health, has been
Jessica’s therapist since December 2014. Patfield testified that there has been a
reduction of Jessica’s symptoms of depression and anxiety. She also noted that
Jessica has self-reported as being sober since July 2014.
{¶26} Alf Bergman, a psychiatrist and medical director at Beacon Health, began
treating Robert in February 2015 for depression and attention deficit hyperactivity
disorder (ADHD). Robert currently takes Prozac and Ritalin to treat his conditions. Dr.
Berman describes Robert as “mildly ill” and his condition as stable.
{¶27} David Zavasky, a dual diagnosis counselor at Beacon Health, has been
Robert’s therapist since March 2014, when Robert was referred for drug, alcohol, and
mental health evaluations. Zavasky testified that Robert began abusing
benzodiazepines at an early age. In November 2014, Robert admitted taking a “benzo”
while staying at Project Hope for the Homeless and that “he felt he did not have all the
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skills or tools to say ‘no,’ if it was directly offered to him.” The therapy focused on
understanding the causes of Robert’s anxiety and learning coping skills to address
those situations. Zavasky described Robert’s progress in therapy as significant and
believes that Robert has not abused drugs since the incident in November.
{¶28} Jamie Mapes, a community psychiatric support treatment supervisor at
Beacon Health, began working with Robert in November 2014 and has been his case
manager since February 2015. In November 2014, Robert was observed acting
strangely at Beacon Health and claiming that he was stressed from being at a homeless
shelter. Mapes took Robert for a drug screen at Lake West and he tested positive for
benzodiazepines. Mapes was aware that a person named Troy, whom they met at the
homeless shelter, was staying with Robert and Jessica. Robert has asked Mapes for
money and Troy was supposed to help pay living expenses. Mapes advised Robert that
Troy should not be living with him in light of the possibility that J.G. returns home.
{¶29} Stacy DeLeone, an ongoing social worker with Job and Family Services,
has supervised visits between J.G., Robert, and Jessica since February 2015. These
supervised visits occurred twice a week either at Job and Family Services or, for a time,
at the library in Painesville. The visits at Job and Family Services were observed
through a one-way mirror.
{¶30} DeLeone testified about Robert’s bizarre behavior, particularly a tendency
to speechify, that is, to speak about various subjects at random that do not have any
relevance to the immediate situation. Robert also breaks into song or repeats over and
over certain phrases. J.G. and Jessica typically respond by ignoring Robert, although
on occasion they will ask him to stop.
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{¶31} DeLeone reported a peculiar incident that took place during visitation at
the library. A man called “Mr. Bobo” apparently bicycled to the library from Fairport
Harbor with a large army bag containing a stereo speaker which he gave to Robert. Mr.
Bobo was introduced to J.G. DeLeone described the encounter as “extremely
awkward.” On another occasion, Robert wanted to wrestle with J.G. at the library,
which DeLeone pointed out was not appropriate.
{¶32} DeLeone noted that J.G.’s aggressiveness has increased as the date of
the permanent custody hearing approached. J.G. has insulted DeLeone without any
consequence being imposed by Jessica or Robert.
{¶33} DeLeone monitors Robert’s prescriptions by counting his pills, although he
does not always bring all his medication to the visits.
{¶34} Jamie Higginbotham, an ongoing social worker with Job and Family
Services, has supervised both of J.G.’s cases. The concerns in the 2007 case were
Jessica’s alcohol use and Robert’s abuse of prescription drugs and mental health
issues.
{¶35} Higginbotham again became involved with the family in June 2013 when
Jessica was arrested for domestic violence and disorderly conduct. Again, the
concerns were Jessica’s alcohol use and Robert’s abuse of prescription drugs and
mental health issues. J.G. was removed in November 2013 after being struck in the
head with a cell phone during an altercation between Jessica and Robert. Jessica was
going to be arrested and Robert was deemed unable to care for J.G. after consuming a
large number of pills.
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{¶36} Beginning in May 2014, Job and Family Services began to allow Jessica
and Robert to have unsupervised visitation with J.G. with the goal of reunifying the
family. Job and Family Services began working with Joshua Sundberg, J.G.’s maternal
half-brother, to help monitor the situation in the household. In June 2014, Jessica took
J.G. to Joshua’s house because Robert had taken an excessive number of pills and
was acting aggressively and irrationally. Ultimately, Robert was hospitalized at
Laurelwood. In July 2014, there was an incident where Jessica was intoxicated.
Thereafter, unsupervised visitation was terminated. Supervised visitation resumed once
per week, later increased to twice per week, and was eventually moved to the library.
After the encounter with Mr. Bobo in April 2015, visitation only occurred at Job and
Family Services and the permanent custody motion was filed.
{¶37} Jessica and Robert are consistent in utilizing the services made available
to them. The concern is that they do not actively participate or follow through and little
progress is made. Jessica initially completed several alcohol programs yet continued to
drink and “hasn’t been in a program currently.” Robert was terminated from a parenting
program because his behaviors made it impossible to accomplish anything. Jessica
and Robert also have issues in dealing with J.G. appropriately. They expose him to
situations and conversations that are not age appropriate which noticeably stresses
him. At a recent visit they were discussing corporal punishment and Robert’s
colonoscopy with J.G., who took off his belt and began snapping and swinging it at
people and things. At one point, J.G. ran out of the room. These behaviors were
allowed to continue for about a half hour before Jessica took the belt from him. J.G. has
an individualized education program (IEP) at school because of his behaviors.
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Higginbotham believes the trauma he experiences with Jessica and Robert exacerbate
his behaviors and that they do not know how to manage him.
{¶38} Higginbotham acknowledges that Jessica and Robert have benefited from
the treatment they have received from Beacon Health and that they are in compliance
with Beacon Health’s treatment recommendations. She also acknowledges that there
has been no evidence of Jessica drinking since July 2014 when she claims to have quit.
The parents, however, have been struggling with the same issues for almost J.G.’s
entire life and he needs permanency and stability to address his own issues.
Higginbotham notes that none of the current service providers presently recommend
unsupervised visitation.
{¶39} Joy Biggs, an ongoing social worker with Job and Family Services, was
assigned to J.G.’s case in May 2013. At the time, the family resided in an apartment at
34188 Euclid Avenue, Willoughby. The case plan goals were for Jessica and Robert to
have drug/alcohol and mental health assessments and to complete a parenting
program. They were to follow all recommendations. Also, J.G. was to have a mental
health assessment.
{¶40} Jessica completed a drug and alcohol program in 2013 but continued
drinking. In 2014, she was receiving mental health counseling at Signature Health. In
October 2014, Jessica quit her job and lost her health insurance, which interrupted her
counseling. In December 2014 she was assessed by Beacon Health and has used their
services since that time. Jessica claims to have quit drinking in July 2014. She has had
no positive screens since that time, but has not completed all screens as requested by
Job and Family Services.
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{¶41} Robert began services with Beacon Health in January 2014 and has
continued with them since then. In December 2014, Robert tested positive for
benzodiazepines which, it was reported, he received while staying at a homeless
shelter. Job and Family Services filed a motion to show cause and Robert admitted to
being in contempt. Robert has not had any positive drug screens since December
2014.
{¶42} Jessica and Robert twice received parenting services from Crossroads
(Battisti and Davis) which were terminated twice due to the substance abuse issues.
Thereafter, Scott worked with them doing individual parenting counseling.
{¶43} J.G. was removed from his parents’ custody in November 2013, after
being struck in the head with a cell phone during a domestic altercation between
Jessica and Robert. Jessica was intoxicated and arrested and Robert’s behavior was
abnormal to a degree that it was determined he could not care for J.G. Job and Family
Services’ efforts to return J.G. to Jessica’s and Robert’s custody were frustrated by the
incidents in the summer of 2014 (Jessica’s intoxication and Robert’s hospitalization) and
by Robert’s positive drug screen in December 2014. Library visitation was suspended
after the incident with Mr. Bobo in May 2015.
{¶44} Biggs learned that Jessica and Robert met Mr. Bobo at the homeless
shelter and that he had been living with them. Jessica and Robert were upset that she
had learned this but wanted him to leave because he did not contribute to rent or food.
{¶45} Patrolman Shane Rahz of the Willoughby Police Department testified that,
on October 27, 2013, he went to an apartment at 34188 Euclid Avenue, from which
dispatch had received a silent call. Rahz found Jessica leaning over and yelling at
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Robert with J.G. (age six) in the room. J.G. explained the situation to Rahz. Jessica
was intoxicated and had choked Robert, who had red marks about his neck. Rahz
charged Jessica with domestic violence, to which she later pled guilty.
{¶46} Patrolman Matthew Scott Jackson of the Willoughby Police Department
testified that, on June 12, 2014, he responded to a dispatch on Euclid Avenue. He
encountered Robert, who was looking for his son. At Robert’s request, Jackson drove
him to the hospital.
{¶47} Patrolman Paul Sciarrino of the Willoughby Police Department testified
that, on June 14, 2014, he responded to a dispatch at the Trenton Place Apartments on
Euclid Avenue. A man had called and reported that someone had kidnapped his son.
Sciarrino encountered Robert who was totally incoherent. Sciarrino was able to
determine that J.G. was with Joshua. Sciarrino took Robert to Lake West for a
psychiatric evaluation (he “pink slipped” him).
{¶48} Jennifer Adams, J.G.’s foster mother, testified regarding the difficulties in
controlling J.G.’s behavior when he was first placed in her home. Adams notes that
J.G. is very aware of his parents’ substance abuse issues. She also testified that a
consistent daily routine helps reduce his anxiety. Adams would be interested in
adopting J.G. if the permanent custody motion is granted and would be open to allowing
him to have continuing contact with his parents.
{¶49} John Kinsel, an infant and early childhood intervention specialist, testified
as an expert in child development and parent-child relationships. He performed a
parenting assessment on Jessica and Robert in September 2014, and again in April
2015. He observed that Jessica regularly brought snacks, toys, and books to the
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visitations which J.G. liked and looked forward to, although she kept the toys and books
until J.G. could return home. Kinsel felt that Jessica’s relationship with J.G. functioned
reasonably well and that there were no impediments to developmental progress. He
characterized the relationship as “perturbed,” meaning that its functioning was less than
optimal largely due to inconsistency. Jessica complained that she felt that she was
detaching from J.G. due to the limited visitation, a phenomenon Kinsel observed.
{¶50} Kinsel observed that Robert wanted to engage with J.G., but lacked the
skill or psychological presence to do so effectively. While J.G. engaged with Jessica,
he tended to ignore Robert. Kinsel observed that persons with significant mental illness
tend to focus on themselves making engagement with others more difficult. He
characterized the relationship between J.G. and Robert as “disordered,” meaning that
their interactions were rigidly maladaptive and did not promote the social or emotional
development of the child.
{¶51} Kinsel also noted that there was very little verbal communication between
Jessica and Robert and a lack of affection between the family members. Neither
Jessica nor Robert was effective in setting limits for J.G., who was able to control the
dynamic of the family’s interactions.
{¶52} Kinsel recommended that J.G. remain in his current placement for at least
six months before considering a return to home visitation, provided Jessica and Robert
continue to progress. If Job and Family Services was granted permanent custody,
Kinsel recommended that J.G. be allowed continued contact with his parents.
{¶53} Joshua Sundberg, J.G.’s maternal half-brother (age twenty-eight at the
time of hearing), testified to Jessica’s decades-long struggle with alcohol. Although
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Joshua considered having J.G. live with him, he believes that J.G. is “where he needs to
be” with his foster mother. Joshua speaks with the foster mother “at least once a week”
and visits J.G. once or twice a month. Joshua noted that J.G. used to be “kind of a
violent kid,” but, since he has been with his foster mother, he is “a way different child.”
The foster mother and J.G. interact as “mother and son,” although J.G. knows she is not
his mother and she does not present herself as his “new mom.”
{¶54} In July 2014, J.G. was being transitioned back into Jessica’s custody
(Robert had been hospitalized the previous month). On July 4, 2014, Joshua left J.G.
with Jessica that afternoon and would return that evening to take him to see fireworks.
When he returned, Jessica was intoxicated. Joshua has not had contact with Jessica
since that time and feels strongly that she should not regain custody of J.G.
{¶55} Jessica Sundberg testified that she currently lives at 3845 Oakhill Lane in
Willoughby with Robert, whom she has been with for ten years. She is not currently
employed. J.G. is their only child, but she has three other children. She described J.G.
as a very active child who needs a routine and to be entertained. J.G. did not begin to
be destructive until he went to school. He struggles with schoolwork.
{¶56} Jessica testified that she was drinking in October 2013, when J.G. was
removed. She drank because of the stress of her work (managing a Wendy’s) and
because of Robert’s abuse of prescription drugs. Drinking was a way for her to self-
medicate. She did not drink constantly and had periods of sobriety. When she lost her
job in October 2014, she also lost her insurance and car. The treatment she has
received at Beacon Health, both counseling and medicine, has helped her with her
drinking.
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{¶57} Jessica admitted that she was drinking on July 4, 2014, but claimed that it
was only one or two drinks and that she was not intoxicated.
{¶58} Jessica testified that she missed visitation with J.G. on Christmas Eve,
2014, because she could not afford a bike that he wanted and was feeling guilty. At this
time, she and Robert lost their apartment on Euclid Avenue. They were at Project Hope
for a month before renting their present apartment. Troy Bobo lived with them from
December 2014 until about a week before the permanent custody hearing began
(August 18-20).
{¶59} Jessica admitted to missing screens. On one occasion, the weather was
too cold for her to travel to the lab by bus. On another occasion, she was not aware
that a screen had been requested. On another occasion, she was only given a few
minutes’ notice that transportation would be arriving to take her to a screen, and she did
not think this was a reasonable request.
{¶60} Jessica does not believe the problems with J.G. are due to her parenting
skills but, rather, her personal issues. She is now more serious about regaining custody
of J.G., and this will keep her sober.
{¶61} Robert Grimes testified that he currently lives with Jessica and has not
worked since June 2014. At this time, he suffered a massive “manic attack,” which he
believes was caused by the Wellbutrin he was taking to quit smoking. He also admitted
to taking Ambien at this time. He admitted taking Valium while staying in the shelter at
the end of 2014. After forty-seven years, he is now properly diagnosed and only takes
Ritalin and Prozac.
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{¶62} Robert testified that drinking and pills have caused the present situation
and, without them, his would be a normal household. Robert testified that Jessica has
not had a drink since July 2014 and that he has been clean since leaving the shelter.
He has been “scared straight on this permanent custody issue,” loves J.G., and asked
the court to “not take him away.”
{¶63} On August 25, 2015, the juvenile court rendered its judgment, granting
Job and Family Services’ Motion for Permanent Custody.
{¶64} On September 15, 2015, Robert filed a Notice of Appeal.2
{¶65} On appeal, Robert raises the following assignment of error:
{¶66} “[1.] The trial court erred, and abused its discretion, when it granted
permanent custody to the Department pursuant to O.R.C. §2151.414(B)(1), because the
trial court’s analysis of the best interest factors set forth in O.R.C. §§2151.414(D)(1)(a)
through (e) was clearly in error and unsupported by the evidence.”
{¶67} A parent’s right to raise his or her child is an “essential” and “basic civil
right.” (Citation omitted.) In re Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169
(1990). In recognition of the fundamental importance of the natural parental
relationship, the termination of parental rights has been described as “the family law
equivalent of the death penalty.” (Citation omitted.) In re Williams, 11th Dist. Geauga
Nos. 2003-G-2498 and 2003-G-2499, 2003-Ohio-3550, ¶ 35.
{¶68} Upon the motion of a public children services agency requesting
permanent custody of a child pursuant to R.C. 2151.413, the juvenile court may grant
the motion “if the court determines at the hearing held pursuant to [R.C. 2151.414(A)],
2. Jessica was included in the Notice of Appeal, but has not filed a brief or otherwise participated in the
appeal.
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by clear and convincing evidence, that it is in the best interest of the child to grant
permanent custody of the child to the agency that filed the motion for permanent
custody and * * * [t]he child has been in the temporary custody of one or more public
children services agencies * * * for twelve or more months of a consecutive twenty-two-
month period.” R.C. 2151.414(B)(1)(d); In re C.W., 104 Ohio St. 3d 163, 2004-Ohio-
6411, 818 N.E.2d 1176, ¶ 8-22.
(1) In determining the best interest of a child * * *, 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;
(b) 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;
(c) The custodial history of 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
R.C. 2151.414(D).
{¶69} The Ohio Supreme Court “has defined clear and convincing evidence as
‘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
17
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.’” In re K.H., 119 Ohio St. 3d
538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶70} In the present case, the juvenile court made the following findings with
respect to J.G.’s best interests:
[(a)] Historically, [J.G.] has had consistent visits with Mother and
Father while in the custody of the Department. [J.G.] has contact
with his adult sibling as it is arranged through [his] foster mother.
The Child has a good relationship with the foster mother who
provides a safe and adequate home for the child.
[(b)] [J.G.] has expressed ambivalence and loyalty toward both his
foster mother and his biological parents when discussing
permanent custody. [J.G.] has shown concern with the idea of
unsupervised contact with Mother and Father. He has expressed a
desire to go home and a desire to stay with his foster mother.
[(c)] [J.G.] has been in the temporary custody of the Department
since November 26, 2013.
[(d)] [J.G.] is in great need of legal and permanent placement. This
type of placement cannot be achieved without permanent custody
being awarded to the Lake County Department of Job and Family
Services. There are no relatives who can care for [J.G.] or provide
him with a permanent placement. Mother and Father have failed to
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adequately satisfy case plan goals and adequately remedy the
situations that brought [J.G.] into the temporary custody of the
Department despite extensive intervention by the agency and
outside service providers.
[(e)] The Court finds that none of the factors in R.C. 2151.414(E)(7)
to (11) apply.
{¶71} Robert contends the evidence does not support the juvenile court’s
determination regarding J.G.’s best interests. He asserts that there can be no
ambivalence with respect to J.G.’s wishes as he “clearly did not wish to have his
parents permanently severed from his life.” Appellant’s brief at 31. Moreover, when a
child is represented by counsel, “it is axiomatic that the Trial Court must consider that
the minor child’s attorney is speaking directly for the minor child when arguing the
case.” Appellant’s brief at 32.
{¶72} On the contrary, although J.G. desired to return to his parents’ custody,
there was also evidence that J.G. appreciated their shortcomings and the necessity of
his permanent removal. Davis (the family’s case manager at Crossroads) reported that
J.G. was aware that he would return home if his parents were “doing good,” but, if not,
he would stay with his foster mother where he would be “safe.” According to
Higginbotham (case supervisor for Job and Family Services), J.G. was concerned that
things would “get bad again” if he returned home. Higginbotham recognized that J.G.
was in a difficult position as he unquestionably loves his parents and that the situation
exacerbated his behavioral issues. Finally, Attorney Miller (the guardian ad litem)
testified in his report and at the permanent custody hearing that J.G. had alternatively
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expressed a desire to be with his parents and remain with his foster mother. J.G.’s
divided loyalty is wholly understandable. The fact that the guardian requested an
attorney to advocate for J.G. a position that he could not recommend does not alter the
fact that J.G.’s feelings regarding his custody were ambivalent. It is the role of the
attorney to zealously represent J.G. for the purpose of vindicating his desire to remain
with his parents. The guardian, on the other hand, must advocate for J.G.’s best
interests. In re Baby Girl Baxter, 17 Ohio St. 3d 229, 232, 479 N.E.2d 257 (1985). At
law, these interests may be efficiently divided between guardian and counsel. In reality,
there is no reason to suppose that these, at times, conflicting interests should not
manifest themselves in the wishes of the young persons who are the subjects of these
proceedings. In re Lattimer, 3rd Dist. Logan Nos. 8-02-34, et al., 2003-Ohio-3690, ¶ 16
(“[i]t is natural and expected that * * * children would miss and want to reunite with their
parents[,] [b]ut this alone cannot be the sole basis on which to determine the best
interest of the children”).
{¶73} Robert also challenges the juvenile court’s finding that he has failed to
adequately satisfy the case plan goals. Robert notes that Job and Family Services
never filed a show cause motion against Jessica and that Robert’s last positive drug
screen occurred eight months before the permanent custody hearing. Several
witnesses, including Jessica and Robert, testified that they have benefited from the
parenting classes and other services provided to them and are able to apply what they
have learned. In particular, Jessica and Robert have learned to work together in
parenting J.G. and Robert has striven to be more engaged with J.G. Finally, Robert
contends that the issues that led to J.G.’s removal from the home – domestic violence
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and alcohol and drug abuse – have been remedied. There have been no reported
incidents of violence or abuse since the beginning of 2015.
{¶74} As a factual matter, the record before this court supports the juvenile
court’s conclusion that, while Jessica and Robert may have satisfied the case plan
goals, they have not adequately satisfied those goals so as to be able to provide J.G. a
secure placement. The present case had been pending for over twenty-six months at
the time of the permanent custody hearing. As of December 2014 (eighteen months
into the case), Jessica and Robert were staying in a homeless shelter, Robert was
abusing drugs, and Jessica had just begun working with the therapists at Beacon
Health. Both Jessica and Robert have demonstrated progress with their personal
issues and parenting skills since that time. However, the progress has not been to such
an extent that reunification was possible or even recommended at the time of the
permanent custody hearing.
{¶75} Scott (an early childhood clinical coordinator working with the family since
2011) felt that Jessica and Robert had not made as much progress as she would have
hoped given the time and resources provided to the family. Higginbotham testified that,
at the time of the permanent custody hearing, none of the service providers working
with the family were recommending the resumption of unsupervised visits. Kinsel (an
infant and early childhood intervention specialist) opined that Job and Family Services
should maintain custody of J.G. for at least six months before considering J.G.’s return
to Jessica’s and Robert’s custody. These concerns with returning J.G. to their custody
do not solely stem from domestic violence and substance abuse issues (although they
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continue to be legitimate concerns), but also from questions regarding their ability to
parent J.G. effectively in light of his behavioral issues and other needs.
{¶76} In light of the parents’ limited progress, a few points should be made.
“Once a child has been found to be ‘dependent’ as defined in R.C. 2151.04, the ‘best
interests’ of the child are the primary consideration in determining whether an award of
permanent custody is justified pursuant to R.C. 2151.353(D).” In re Cunningham, 59
Ohio St. 2d 100, 106, 391 N.E.2d 1034 (1979), syllabus.
[T]he fundamental or primary inquiry at the dispositional phase of
these juvenile proceedings is not whether the parents of a
previously adjudicated ‘dependent’ child are either fit or unfit. The
mere fact that a natural parent is fit, though it is certainly one factor
that may enter into judicial consideration, does not automatically
entitle the natural parent to custody of his child since the best
interests and welfare of that child are of paramount importance.
(Emphasis sic.) Id. at 106; In re M.S., 11th Dist. Lake No. 2014-L-036, 2014-Ohio-3184,
¶ 59 (the mother’s “effort[s] to address her mental health and substance abuse issues,
while commendable, are only one factor to consider in the dispositional phase of
juvenile proceedings”); In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶
103 (“[w]hile the parents’ progress is measured in part by their completion of the case
plan goals, the case plan is not the only measure by which a court determines whether
to grant a motion for permanent custody”).
{¶77} Also, it was the General Assembly’s purpose in establishing the present
procedures for the termination of parental rights “to prevent children from lingering in
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foster care.” In re B.W., 9th Dist. Medina No. 12CA0016-M, 2012-Ohio-3416, ¶ 44; In re
S.L., 3rd Dist. Defiance Nos. 4-10-09 and 4-10-10, 2010-Ohio-6380, ¶ 58 (“the best
interests of children include not having to linger in foster care awaiting their mother to
become a responsible parent”). The present case had already exceeded the original
sunset date by six months when the decision was made to move for permanent
custody.
{¶78} Considering all relevant factors, particularly the length of time the case
has been pending, the parents’ limited progress in addressing their personal and
parenting issues, and J.G.’s own needs, the evidence of record clearly and convincingly
favors the grant of permanent custody to Job and Family Services.
{¶79} The sole assignment of error is without merit.
{¶80} For the foregoing reasons, the Judgment of the Lake County Court of
Common Pleas, Juvenile Division, granting Lake County Department of Job and Family
Services’ Motion for Permanent Custody, is affirmed. Costs to be taxed against
appellants, Robert Grimes and Jessica Sundberg.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.
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