In re A.B.
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.
The Law Office of Wendy R. Calaway Co., LPA, and Wendy R. Calaway, for appellant.
OPINION
M. POWELL, P.J.
{1} Appellant (“Father“) appeals a decision of the Clermont County Court of Common Pleas, Juvenile Division, granting legal custody of his daughters, Anniе and Katie, to the girls’ maternal aunt and uncle (collectively “Aunt“). The girls’ biological mother (“Mother“) is not a party to this appeal. As pertinent to this appeal, Father and Mother also have a biological son, Reed, who was born in 2004.1
{3} Annie and Katie were adjudicated dependent on December 8, 2020, and December 22, 2020, respectively. Following a dispositional hearing in February 2021, the juvenile court granted temporary custody of the girls to the Agency. Later that month, the girls were placed with Aunt, where they have remained for the duration of the case and where they are thriving. Aunt lives two to two and one-half hours away from Clermont County. Father was released in February 2021.
{4} A case plan was initially established for Mother; Father was included in the case plan upon his release. The case plan for Mother and Father was prepared with the goal of reunification. Among other requirements, the case plan required Mother to participate in a substance abuse assessment and follow all recommended treatments, and Father to participate in a substance abuse assessment and complete an anger
{5} On July 13, 2021, the Agency moved the juvenile court to award legal custody of Annie and Katie to Aunt. In support of its motion, the Agency stated that Mother was not participating in drug or mental health treatment, that there was “an active TPO in place due to sexual abuse allegations and [Reed] is not allowed to have contact with his siblings and therefore they cannot be in the same home,” that both Annie and Katie expressed fear of returning to their parents and a desire to stay with Aunt, and that nеither girl had participated in visitation “due to severe anxiety that is triggered by having contact with parents.” Mother and Father separately moved for legal custody of the girls. Father also moved the juvenile court to hold the Agency‘s motion in abeyance.
{6} On September 21, 2021, a hearing on all three custody motions was held before a magistrate. Four witnesses testified during the hearing: an ongoing caseworker with the Agency, the girls’ guardian ad litem, Aunt, and Annie. Testimony revealed that Annie and Katie both experienced neglect and abuse in their parents’ care, that they were exposed to drug abuse, domestic violence, and alcohol abuse, and that they were further abused by Reed. Mother disbelieved the sexual abuse allegations regarding Reed and neither parent was able to protect the girls from Reed. The caseworker and guardian ad litem both testified that Annie and Katie were very bonded with Aunt, were well cared for
{7} Annie‘s testimony was compelling. Annie testified that in 2020 alone, her parents neglected hеr, gave her drugs, let her drink, and failed to allow her to receive adequate medical care, including after her neck was injured during a fight with Reed. Annie testified that she had a “really bad” childhood, that she witnessed numerous instances of domestic violence between her parents and was then forced to lie to hospital medical рersonnel, that she observed Father physically abusing Katie, and that Father failed to stop Reed from sexually abusing her. Annie recounted accidentally seeing Reed in the courthouse a month before the custody hearing, causing her to have a panic attack and vomit. Father has repeatedly denied past instancеs of domestic violence, causing Annie to fear he would certainly be violent again and reoffend. Annie stated she was open to considering family counseling with Father but stated she was not ready because every time they communicate, they get into an argument and one hangs up on the other. She recounted a recent instance when Father threatened to have “an army of people” go against her and bring in polygraph evidence after the girls told him they did not want to talk to him.
{8} Annie testified that since living with Aunt, she is no longer neglected, she is much happier, relaxed, and more self-confident, and she no longer feels she has to be a mother to Katie and instead can simply be a child. Nonetheless, were Katie to return to Father, Annie would go with her to protect her and make sure Katie had the childhood Annie did not have. Since living with Aunt, Annie is closer to Katie who has opened up about past
{9} On September 22, 2021, the magistrate issued a decision finding it was in the best interest of Annie and Katie to grant legal custody to Aunt. The magistrate noted that desрite his compliance with the case plan, Father could not be awarded legal custody of the girls at this time because Reed resided with him; family counseling for Mother and the girls would have been very beneficial in addressing the trust issues at the heart of the case and should have been initiated by the Agency early on in the case; given the magnitude of the family‘s need for counseling to properly address the serious impact of substance abuse, domestic violence, and the lack of basic trust on the family, “the severely damaged family relationship will likely take a long time to repair“; and “[i]t is, however, unquestionable in the best interest of the [girls] to have permanencе; which [Aunt] can clearly provide.”
{10} Father filed objections to the magistrate‘s decision, arguing the magistrate erred in granting legal custody to Aunt. Father asserted that the Agency‘s legal custody motion should have been held in abeyance until the Agency provided him with sufficient family counseling services so that he could improve his relationship with Annie and Katie. Father noted that at the time of the custody hearing, he only had one session of family counseling and very limited visitation with the girls.
{11} On March 28, 2022, the juvenile court overruled Father‘s objections and granted legal custody of Annie and Katie to Aunt. The juvenile court found that it was in the girls’ best interest to grant legal custody to Aunt and that the Agency‘s servicеs and planning were reasonable under the circumstances of the case. As pertinent to Father, the court
The trust issues in this family still remain unresolved. Even if the son moved out of his father‘s home, it is entirely unknown how long it would take before the daughters are even able to face their father without being anxious or scared. The children were so traumatized that there is no way of predicting whether and when they could live with their father again. The Court does not believe that a reunification with either one of the parents could take place within a six-month extension period.
{12} Father now appeals, raising one assignment of error:
{13} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN ADOPTING THE MAGISTRATE‘S DECISION AWARDING LEGAL CUSTODY.
{14} Father argues the juvenile court erred in awarding legal custody of Annie and Katie to Aunt. Father asserts that the Agency did not make reasonable efforts to reunify him with Annie and Kаtie because it did not initiate family counseling earlier.
{15} A juvenile court enjoys broad discretion in custody proceedings. In re K.G., 12th Dist. Clinton No. CA2020-11-017, 2021-Ohio-2154, ¶ 19. A juvenile court‘s custody determination will not be reversed absent an abuse of that discretion. Id.
{16} Pursuant to
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{18} What constitutes “reasonable efforts” requires consideration of the nature of a case plan and varies with the circumstances. In re S.M., 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 31; In re L.G. at ¶ 62. In determining whether the agency made reasonable efforts to reunify the family during the custody proceedings, the issue is not whether the agency could havе done more, but whether it did enough to satisfy the reasonableness standard under the statute. In re S.U., 12th Dist. Clermont No. CA2014-07-055, 2014-Ohio-5748, ¶ 16. “Reasonable efforts” does not mean all available efforts. Otherwise, there would always be an argument that one more additional service, no matter how remote, may have made reunification possible. Id. “In determining whethеr reasonable efforts were made, the child‘s health and safety shall be paramount.”
{19} Upon a thorough review of the record, we find the Agency made reasonable
{20} When this case began, Father was incarcerated for dоmestic violence against Mother. Father‘s incarceration was the first obstacle to reunification. See In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-916. Upon his release, Father was added to the case plan which he promptly completed. Although the Agency originally planned to reunify Reed with Mother and Annie and Katie with Father, Father‘s prompt completion of his case plan combined with Mother‘s failure to address her drug abuse resulted in Reed being reunited with Father in August 2021. However, because of the no contact order between Reed and the girls, Reed‘s presence in Father‘s home stands as a major obstacle to Father‘s reunification with Annie and Katie and cannot be overcоme by family counseling. Id. While Father told the caseworker that Reed would probably not live in Father‘s home once he turned 18 in January 2022, such was only a possibility, not a certainty.
{21} Other obstacles preventing reunification between Father and Annie and Katie are Father‘s repeated denials he ever committed domestic violence against his family, causing fear and anxiety in Annie that he will reoffend, and his inability to properly handle conflict with Annie and Katie when confronted with their refusal or reluctance to communicate with him. Annie recounted a recent instance when Father threatened to have “an army of people” go against her and bring in polygrаph evidence after the girls told him they did not want to talk to him. Another incident occurred when Katie had her first family
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{24} In light of the foregoing, the juvenile court did not abuse its discretion in granting legal custody of Annie and Katie to Aunt. Father‘s assignment of error is overruled.
{25} Judgment affirmed.
PIPER and BYRNE, JJ., concur.