In re K.A. , 2016 Ohio 7911 ( 2016 )

[Cite as In re K.A., 2016-Ohio-7911.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
K.A. : CASE NO. CA2016-07-140
: OPINION
11/28/2016
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2013-0362
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services
Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Children
Services
Amy Ashcraft, P.O. Box 172, Seven Mile, Ohio 45062, guardian ad litem
Heather A. Felerski, P.O. Box 181342, Fairfield, Ohio 45018, for appellant, Mother
Michael O. Finnigan, 9475 Kenwood Road, Suite 12, Cincinnati, Ohio 45242, guardian ad litem for
appellant, Mother
RINGLAND, J.
{¶ 1} Appellant, the biological mother of K.A. ("Mother"), appeals a decision of the Butler
County Court of Common Pleas, Juvenile Division, granting permanent custody of K.A. to appellee,
the children services division of the Butler County Department of Job and Family Services ("agency").
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For the reason detailed below, we affirm.
{¶ 2} In July 2013, the agency filed a dependency complaint and requested temporary custody
of K.A., who was then two days old. The complaint alleged that K.A. tested positive for
benzodiazepines the day he was born. Later testing indicated that K.A. also tested positive for
marijuana. The complaint alleged that the agency was seeking permanent custody of K.A.'s three
siblings, who had previously been adjudicated as neglected and dependent and were in the temporary
custody of the agency.
{¶ 3} The juvenile court granted temporary custody of K.A. to the agency and placed him in
foster care. The court later adjudicated K.A. an abused and dependent child, named Mother the
perpetrator of the abuse, and continued temporary custody with the agency. K.A. lived with the same
foster family for two years while this case was pending.
{¶ 4} Mother's case plan for reunification included continuing therapy to treat her significant
mental health and behavioral issues. A psychologist diagnosed Mother with a mood disorder, post-
traumatic stress disorder, and bipolar disorder. Mother has a long history of combative, and aggressive
behavior, especially towards employees of the agency.
{¶ 5} Mother's case plan called for her to maintain stable housing and income. The case plan
further required that K.A. would participate in an assessment by "Help Me Grow," which is an
organization that performs developmental screenings on children. However, Mother struggled with
various aspects of her case plan. In December 2014, approximately 18 months after K.A.'s birth, the
agency moved for permanent custody.
{¶ 6} At the permanent custody hearing, the agency introduced the testimony of numerous
witnesses, including the social worker assigned to the case and other agency staff, a psychologist who
assessed Mother, staff at Help Me Grow, and K.A.'s foster parent. Mother testified in support of her
case and also called her therapist and sister to testify, both of whom stated that Mother should be
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granted custody. K.A.'s guardian ad litem prepared a written report in which she recommended
permanent custody be granted to the agency.
{¶ 7} The juvenile court magistrate rendered a decision finding that it was in K.A.'s best
interest to be placed in the permanent custody of the agency. Mother filed objections, which the
juvenile court overruled. Mother now appeals the juvenile court's decision granting permanent custody
to the agency, raising one assignment of error for our review:
{¶ 8} THE TRIAL COURT'S DECISION TO PLACE [K.A.] IN THE PERMANENT
CUSTODY OF BUTLER COUNTY WAS NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE.
{¶ 9} Mother argues the juvenile court's decision granting permanent custody of K.A. to the
agency was not in K.A.'s best interest. Mother contends that the decision was not supported by
sufficient clear and convincing evidence and was otherwise against the manifest weight of the
evidence. After a thorough review of the record, we find Mother's assignment of error is without merit.
{¶ 10} Before a natural parent's constitutionally protected liberty interest in the care and
custody of her 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. Santosky v. Kramer, 455 U.S. 745,
769, 102 S. Ct. 1388 (1982); R.C. 2151.414(B)(1). An appellate court's review of a juvenile court's
decision granting permanent custody is limited to whether sufficient credible evidence exists to support
the juvenile court's determination. In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and CA2014-06-
131, 2014-Ohio-5009, ¶ 6. A reviewing court will reverse a finding by the juvenile court that the
evidence was clear and convincing only if there is a sufficient conflict in the evidence presented. Id.
{¶ 11} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and award
permanent custody to a children services agency if it makes findings pursuant to a two-part test. In re
G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. First, the court must find that the
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grant of permanent custody to the agency is in the best interest of the child, utilizing, in part, the factors
of R.C. 2151.414(D). Id. Second, the court must find that any of the following apply: (1) the child is
abandoned; (2) the child is orphaned; (3) the child has been in the temporary custody of the agency for
at least 12 months of a consecutive 22–month period; (4) where the preceding three factors do not
apply, the child cannot be placed with either parent within a reasonable time or should not be placed
with either parent; or (5) the child or another child in the custody of the parent from whose custody the
child has been removed, has been adjudicated an abused, neglected, or dependent child on three
separate occasions. R.C. 2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033,
2015-Ohio-3709, ¶ 10. Only one of those findings must be met for the second prong of the permanent
custody test to be satisfied. Id.
{¶ 12} In this case, the juvenile court found by clear and convincing evidence that K.A. had
been in the temporary custody of the agency for more than 12 months of a consecutive 22-month period
as of the date the agency filed for permanent custody. Mother does not dispute this finding. Rather,
Mother contests the juvenile court's finding that granting permanent custody of K.A. to the agency was
in his best interest.
{¶ 13} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a
permanent custody hearing:
[T]he 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, including whether the child has 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 * * *;
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(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.
{¶ 14} In granting the motion for permanent custody, the juvenile court considered each of the
best interest factors in light of the evidence presented at the hearing. With respect to R.C.
2151.414(D)(1)(a), the juvenile court found that K.A had been in the custody of the agency since three
days after his birth and his only interactions with Mother were through periodic visitations. Nearly all
visitations occurred in a facility setting and were closely supervised. Mother consistently visited with
K.A. twice a week and for the most part her behavior at these visits was appropriate. Moreover, reports
of the visits demonstrated that Mother and K.A. were bonded. But during some of these visits Mother
lost the ability to control her anger, which would distract her from K.A. Any number of matters could
lead to angry outbursts, including the dietary restrictions imposed by K.A.'s physician, the supervisor of
the visitation facility, and the appearance of the agency director at the facility. Still, the juvenile court
did not find that Mother's anger had a "meaningful effect" on the relationship between her and K.A.
The juvenile court also found that K.A. has a loving relationship with his foster family, who was
meeting all of his medical and therapeutic needs.
{¶ 15} In consideration of R.C. 2151.414(D)(1)(b), the juvenile court indicated that due to
K.A.'s age it did not conduct an in camera interview. The guardian ad litem recommended that custody
be permanently granted to the agency. The guardian noted that while Mother had made great strides in
her ability to control her anger, she remained in the same environment that triggered her uncontrollable
fits of anger. Moreover, Mother still had frequent contact with the police, had a temporary restraining
order filed against her by her sister, and lived in five separate residences during the pendency of the
custody case. Mother also continued to deny any wrongdoing in the case, including the presence of
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drugs in her newborn baby. In sum, the guardian surmised that while Mother had made some
improvements, they were not enough to merit placing K.A. into Mother's chaotic world.
{¶ 16} In considering R.C. 2151.414(D)(1)(c), the juvenile court reviewed K.A.'s custodial
history. The juvenile court found K.A. was adjudicated abused and dependent and had been in the
temporary custody of the agency for 12 or more months of a consecutive 22-month period.
{¶ 17} With respect to R.C. 2151.414(D)(1)(d), the juvenile court found K.A. is in need of a
legally secure placement, the agency can provide the necessary legally secure placement, and such
placement is the only way K.A.'s needs can be achieved.
{¶ 18} The juvenile court noted that K.A., who was then two and one-half years old, had never
lived in the physical custody of either his mother or father and had spent his entire life in foster care,
but fortunately all with the same foster family.
{¶ 19} Mother's case plan required her to continue therapy to treat her mental health problems.
The juvenile court noted that the therapist's reports indicated that Mother was improving at socially
appropriate behavior. However, the therapist's descriptions of Mother's positive interactions with those
involved in her custody cases were based on Mother's self-reporting. The court also noted that it
appeared that the therapist was unaware of the extent of Mother's numerous and regular contacts with
the police in the two years following K.A.'s birth.
{¶ 20} The juvenile court further noted that Mother's case plan required her to participate in a
psychological evaluation. Initially, she refused. Five months after the juvenile court filed the case
plan, Mother relented and submitted to an evaluation. The treating psychologist diagnosed Mother
with numerous personality disorders. His report indicated that mother could become "belligerent,
voicing irrational but interconnected delusions of a persecutory, grandiose, or jealous nature. Her
mood may usually be hostile, and she may be quick to feel picked on and mistreated. * * * [She] may
sometimes exhibit signs of disturbed thinking and ideas of reference."
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{¶ 21} The juvenile court observed that Mother also completed a psychiatric evaluation. The
assessment concluded that Mother's mental health issues did not preclude her from performing her
parental responsibilities. But the juvenile court noted that Mother had not provided the evaluator with
accurate information concerning her history. For instance, the report described her legal history as
having a felonious assault charge in 2011 but no further "incidents of violence" that time. But in fact,
Mother had an extensive history of being involved in assaultive conduct since 2011, and most recently
in May of 2015.
{¶ 22} The juvenile court found that Mother had technically complied with the requirements
in her case plan to improve her mental health by attending therapy sessions, although the percentage of
sessions she missed (28%) was concerning. However, the juvenile court found that Mother's mental
health issues that were present before removal still existed and were significant.
{¶ 23} The juvenile court noted that Mother participated in the "Wraparound" program, but
her involvement was terminated because of her anger and belligerence toward the service provider's
representatives.
{¶ 24} The juvenile court noted that in the two and one-half years since K.A.'s birth, Mother
had lived in five residences. The court also found that Mother's monthly income from social security
and food stamps was about $886. Based on Mother's testimony, the juvenile court found that Mother's
monthly expenses exceeded her income.
{¶ 25} Mother's case plan required K.A. to participate in the Help Me Grow program and to
follow all recommendations. The juvenile court noted that Mother consented to the initial program
screening. The screening indicated K.A. was delayed in four of five test areas. As a result, Help Me
Grow recommended further evaluation and a referral to other providers. However, Mother refused
these services and revoked her consent. Later, Mother provided consent and Help Me Grow performed
a second assessment. But when a Help Me Grow employee called to discuss K.A.'s need for services,
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Mother verbally abused and threatened the employee. She then refused to allow K.A. to participate in
any further services with Help Me Grow.
{¶ 26} The juvenile court noted that the Help Me Grow assessment identified some issues
with stiffness in K.A.'s legs, vision problems, and possible cerebral palsy. K.A.'s foster mother and the
agency's social worker were ensuring that K.A. saw the appropriate medical professionals, including a
pediatrician, rehabilitation specialist, and ophthalmologist.
{¶ 27} The juvenile court found that K.A. was diagnosed with certain food allergies. Mother
disputed this diagnosis and tried to feed K.A. in violation of his dietary restrictions during the
supervised visits. Attempts to enforce K.A.'s dietary restrictions by visitation employees were met with
anger and aggressive behavior by Mother
{¶ 28} The juvenile court noted that a "recurring theme" in Mother's visitations with K.A. was
her anger and aggression. At the visitations, Mother repeatedly demonstrated an inability to control her
emotions. Any number of issues would trigger an inappropriate response by Mother, including her
disagreements concerning K.A.'s dietary restrictions, the manner in which K.A. was being cared for,
and K.A.'s medical issues. The court noted that these concerns and Mother's reactions went beyond
normal parental concerns. Still, the juvenile court noted that many of the visits were positive
experiences and took place without incident.
{¶ 29} The juvenile court found that Mother's issues with anger and belligerence had caused
other problems in her reunification plan. For instance, the agency stopped making home visits to
Mother's residences because of its employees' concerns of being assaulted. And Mother's own family
members took out restraining orders against her. Ultimately, the juvenile court found that Mother's
anger was of such a "pervasive" and "unpredictable" nature that it would interfere with all aspects of
her life and her ability to provide a safe and stable environment in which to raise K.A.
{¶ 30} The juvenile court noted that four individuals requested home studies to determine if
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K.A. could be placed with them. But the agency found none of the applicants appropriate. No other
relative or person filed a motion for custody.
{¶ 31} The juvenile court found that the agency could provide the necessary legally secure
permanent placement for K.A. The court noted that it was "theoretically possible" that Mother could
fully commit to her mental health treatment to change her aggressive behavior and maintain stable
income and housing for K.A. Nonetheless, the juvenile court observed that Mother had been in therapy
for over five years and her behavior issues had not significantly reduced. During that span of time,
Mother lost custody of three of K.A.'s older siblings.1 Accordingly, the juvenile court concluded that it
was unlikely that Mother could resolve her issues in the foreseeable future.
{¶ 32} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court found that Mother
had her parental rights terminated with respect to one of K.A.'s older siblings in August 2013.
{¶ 33} We have carefully and thoroughly reviewed the evidence in this case and find that the
juvenile court's determination regarding the best interest of K.A. was supported by
1. The juvenile court granted permanent custody of one of K.A.'s siblings to the agency and legal custody of two
other siblings to relatives. This court affirmed the decision. In re K.B., 12th Dist. Butler Nos. CA2014-02-042,
CA2014-02-043 and CA2014-02-044, 2014-Ohio-3654.
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clear and convincing evidence and was not against the manifest weight of the evidence. Mother and
K.A. are bonded and Mother has complied with the case plan to an extent. There is also no evidence in
the record that Mother ever directed her angry outbursts at K.A. during a supervised visit.
{¶ 34} However, the record indicates that Mother has long-standing, persistent, and still
unresolved mental health issues involving fits of rage and uncontrollable anger that prevent her from
providing a stable environment in which to raise K.A. Mother also appears to be in denial concerning
her behavior, the reason the agency assumed custody of her child, her numerous encounters with police,
and her criminal convictions. Mother also demonstrated that she has dangerous delusions concerning
her son's health and dietary restrictions. Mother has had three other children removed from her
custody, including one for whom she has had her parental rights terminated. In the present case, there
are compelling reasons to weigh the best interest factors in favor of granting permanent custody to the
agency.
{¶ 35} The evidence showed that K.A. is bonded with his foster family and shares a strong
bond with his foster sister, who is also a foster child and is about the same age. The foster mother and
K.A.'s caseworker have seen to his medical needs. And the foster parent testified that she would be
willing to adopt K.A. Therefore, we find the juvenile court's decision was supported by the evidence
and we find no error in the juvenile court's decision to grant permanent custody to the agency. Mother's
sole assignment of error is overruled.
{¶ 36} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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