In re A.C.B.
Judgment: Affirmed.
Shubhra N. Agarwal, 3732 Fishcreek Road, #288, Stow, OH 44224 (For Appellant, Petrina A. Bishop).
Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee, Portage County Department of Job and Family Services).
Robert E. Rosenberg and Michael D. Dailey, Rosenberg & Associates, 533 East Main Street, Ravenna, OH 44266 (For Appellees, Pamela Wise and Charles Wise).
Leonard J. Brieding, II, Guardian ad Litem, 4825 Almond Way, Ravenna, OH 44266.
DIANE V. GRENDELL, J.
{1} Appellant, Petrina Bishop, appeals from the judgment of the Portage County Court of Common Pleas, Juvenile Division, granting legal custody of her children to their grandparents, appellees Pamela and Charles Wise. The issues to be determined in this case are whether a parent can move for children‘s services to receive an extension of temporary custody, whether a grandparent can
{2} Bishop is the biological mother of A.C.B., born on October 20, 2003, and M.M.B., born on March 8, 2008.
{3} On December 1, 2014, appellee, Portage County Department of Job and Family Services (PCDJFS), filed Complaints alleging that the two children were abused, neglected, and dependent. The Complaints asserted that Bishop was arrested for Aggravated Trafficking in Drugs and Endangering Children; a recent incident of domestic violence involving Bishop and M.M.B.‘s father, David Davis, occurred in the children‘s presence; and concerns existed regarding Bishop‘s and Davis’ drug use.
{4} A shelter care hearing was held and the children were placed in the predispositional custody of PCDJFS on December 2, 2014.
{5} On January 21, 2015, the children were adjudicated dependent due to “alleged drug use; lack of parenting skills; alleged violence in the home, and the failure to protect” the children. The abuse and neglect allegations were dismissed on PCDJFS’ motion.
{6} Following a dispositional review hearing, on May 8, 2015, the children were ordered to remain in the temporary custody of PCDJFS and a case plan was adopted.
{7} PCDJFS filed a Motion for Six-Month Extension of Temporary Custody on September 22, 2015, which was granted on November 23, 2015.
{9} Pamela Wise filed Motions to Intervene and Motions for Temporary Custody and Permanent Custody on April 11, 2016.
{10} Bishop filed Motions for Six Month Extension and to Amend Case Plan on April 26, 2016, requesting that the children remain in the temporary custody of PCDJFS so she would have additional time to reunify with them.
{11} A hearing was held on May 19, 2016. Prior to hearing testimony, the trial court dismissed Bishop‘s request for a six-month extension, finding that PCDJFS was the only entity that could request such an extension. The court also granted Pamela Wise‘s Motion to Intervene. The following pertinent testimony was presented:
{12} Alexandria Bevere, a social worker for PCDJFS, testified regarding her work with Bishop and the children and attempts to reunify them. A semiannual review was conducted on April 20, 2016, during which time A.C.B.‘s father was incarcerated, M.M.B.‘s father was on probation, and Bishop was in NEOCAP, a community based corrections facility, since, in February 2016, a drug test taken in relation to her criminal charges of Child Endangerment and Possession of Drugs was positive.
{13} Bevere opined that Bishop “continues to make poor choices for herself and her children.” She expressed concerns about Bishop‘s ability to maintain sobriety, noting a positive drug test in November 2014 and the relapse in February 2016, indicating that she had tested positive for marijuana and “molly,” or ecstasy. Bishop had done well with correcting her drug issues in the first year of the case plan and did not
{14} Bishop also lost her public housing due to being in NEOCAP. While she expressed that she wanted to go to Miller House when she is released, Bevere testified that they could not guarantee when she may receive housing. Regarding Bishop‘s employment prior to entering NEOCAP, Bevere testified that Bishop said she was cleaning houses but she was unable to confirm that. Bevere noted that Bishop had been participating in counseling with the children, visited the children, and had completed the requirement to do a parenting evaluation prior to her placement in NEOCAP.
{15} Bevere testified about the children‘s “huge progress” while living with the Wises, who provide a safe home. The Wises worked with A.C.B. on completing his homework and he has improved his grades. Both kids are participating in sports and other activities. Bevere stated that “the children have made significant improvement with their trauma due to the removal” and have received therapy to deal with their past exposure to “ongoing domestic violence.” She saw no concerns with the Wises’ ability to parent the children.
{16} Pamela Wise testified that she has a good relationship with the children, they participate in activities, they have an allowance and bank accounts, and she and her husband are bonded with them and provide stability. A.C.B. is performing better in
{17} Bishop testified that she completed a drug assessment and attended parenting classes as required by the case plan. Regarding the Town Hall classes, she testified that she did not attend some due to her incarceration, although she missed a few outside of that as well. She explained that she was not convicted for Child Endangering arising from the incident leading to the removal of the children. Since November of 2014, she had been convicted of Possession of Methamphetamine and a Theft charge and tested positive for ecstasy, which led to her entering NEOCAP. While there, she had been participating in various classes, including anger management, as well as undergoing drug and alcohol treatment, and she has not tested positive for drugs. She expected to be released on June 7 and planned to go to the Miller House, which would help her “get back on [her] feet” and provide housing. She would begin looking for a job when released, as well as attend Town Hall appointments and AA meetings. She testified that she has a good relationship with her children and misses them.
{18} The guardian ad litem opined that it was in the children‘s best interest to be placed in the custody of the Wises, who provide permanence and stability, which he believed led to the children “improv[ing] dramatically.” He also noted that Bishop‘s inconsistency with counseling, relapse, and lack of housing impacted his determination.
{19} On May 20, 2016, a Magistrate‘s Decision was issued, dismissing Bishop‘s Motions for Six Month Extension and granting Wise‘s Motions to Intervene. The Decision noted Bishop‘s violent relationship, positive drug tests, charge for
{20} Bishop filed Objections to the Magistrate‘s Decision on May 31, 2016, relating to the failure to grant the extension and decision to allow Wise to intervene.
{21} The court issued a Journal Entry on September 23, 2016, finding no merit in the objections and ordering that the children be placed in the legal custody of the Wises.
{22} Bishop timely appeals and raises the following assignments of error:
{23} “[1.] The trial court committed reversible error and plain error by dismissing Mother‘s motion for six-month extension of temporary custody.
{24} “[2.] The trial court committed reversible er[r]or and plain error in granting maternal grandparents’ motion to intervene.
{25} “[3.] The trial court committed reversible error and plain error in placing the children in the legal custody of the maternal grandparents.”
{26} In her first assignment of error, Bishop argues that the trial court erred by dismissing her motion requesting that PCDJFS be granted a six-month extension of temporary custody.
{27} Appellees argue that only PCDJFS was permitted to make such a motion.
{29} Pursuant to
{30}
not later than thirty days prior to the earlier of the date for the termination of the custody order * * * or the date set at the dispositional hearing for the hearing to be held pursuant to this section, shall file a motion with the court that issued the order of disposition requesting that any of the following orders of disposition of the child be issued by the court: * * * (6) In accordance with
division (D) of this section, an order for the extension of temporary custody.
{31}
{32} Pursuant to (D)(2), prior to the end of the foregoing extension, the agency shall either move for a dispositional order under (A)(1)-(5) or for a second extension, where the court should hold a hearing to determine whether:
the additional extension is in the best interest of the child, there has been substantial additional progress since the original extension of temporary custody in the case plan of the child, there has been substantial additional progress since the original extension of temporary custody toward reunifying the child with one of the parents or otherwise permanently placing the child, and there is reasonable cause to believe that the child will be reunified with one of the parents or otherwise placed in a permanent setting before the expiration of the additional extension period.
{33}
{34} The foregoing statutes dictate the procedures to be followed by PCDJFS after it has been granted temporary custody, including the steps for extending such custody. They do not specify a procedure for another party to seek custody on PCDJFS’ behalf.
{35}
{36} Bishop argues that
{37} Bishop also contends that, pursuant to
{38} Bishop cites several Ninth District cases in which the court considered assignments of error raised by parents who have filed motions for extensions of temporary custody. In re E.T., 9th Dist. Summit No. 22720, 2005-Ohio-6087, ¶ 9 (noting, in stating the standard of review, that “[t]he trial court had the discretion, consistent with the best interests of the children, to determine whether to grant [the parents‘] motion for a six-month extension of temporary custody“); In re T.W., 9th Dist. Summit No. 21594, 2003-Ohio-7185, ¶ 11. No argument was before the court in those cases, however, regarding whether such motions were permissible under
{39} Bishop argues that the foregoing conclusion violates her Equal Protection rights, since PCDJFS was permitted to file a motion for an extension of temporary custody and she was not, and contends that she was denied procedural due process by not being permitted to have her request for an extension heard.
{41} The
{42} Presuming that the statutory language set forth above permits only children services agencies to file for an extension of permanent custody, it does not
{43} Bishop primarily focuses on her argument that she was denied procedural due process by not being permitted to be heard on her motion.
{44} In determining whether procedural due process has been satisfied, the following factors are generally considered:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 18, citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
{45} Here, Bishop has not demonstrated that procedural due process was violated. As noted above, the statute at issue provides a right for PCDJFS to file a motion for an extension of custody and, regardless, Bishop was permitted to have a hearing on the issue of custody, at which evidence was presented that related to custody, but also included testimony regarding the timeframe during which Bishop might
{46} The first assignment of error is without merit.
{47} In her second assignment of error, Bishop argues that the trial court erred in granting Pamela Wise‘s motion to intervene.
{48} “The standard of review for a motion to intervene is abuse of discretion.” State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas, Juvenile Div., 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, ¶ 21; In re Goff, 11th Dist. Portage No. 2001-P-0144, 2003-Ohio-6768, ¶ 11.
{49} Bishop contends that Wise should not have been permitted to intervene, since she did not stand in loco parentis or exercise parental control over the children.
{50} In support of her argument, Bishop cites cases that found an abuse of discretion in the denial of a grandparent‘s motion to intervene when she had assumed parental duties for the grandchildren and which held a grandparent does not have to be
{51} Bishop‘s arguments and these cases generally focus on the grandparents’ right to intervene, pursuant to
{52} Permissive intervention, on the other hand, allows intervention when “an applicant‘s claim or defense and the main action have a question of law or fact in common.”
{53} It is unnecessary to determine whether the court was required to allow Wise to intervene, as this is not at issue. The court did not find that intervention was necessary as of right, but permitted her to intervene, an exercise of the broad discretion afforded to a juvenile court in ruling on requests for intervention. See In re Byerly, 11th Dist. Portage Nos. 97-P-0096 and 97-P-0097, 1998 WL 684178, 4 (Sept. 30, 1998). Bishop fails to discuss why permissive intervention was not appropriate under
{55} The second assignment of error is without merit.
{56} In her third assignment of error, Bishop argues that the trial court committed reversible and plain error by placing the children in the Wises’ legal custody, emphasizing her compliance with the case plan and that she could have completed the remaining objectives had she been given an additional six months.
{57} Generally, “absent an abuse of discretion, an appellate court will not reverse a trial court‘s determination in a child custody matter.” In re E.B., 11th Dist. Lake No. 2013-L-077, 2014-Ohio-5764, ¶ 37. However, to the extent that Bishop takes issue with the magistrate‘s findings in relation to custody, and their adoption by the trial court, Bishop filed objections only in relation to the denial of her request for a six-month extension and the motion to intervene. “[A] party‘s failure to object to a magistrate‘s
{58} In reaching its custody decision, the lower court noted that it considered the best interest factors contained in
{59} In the present matter, the children were removed from Bishop‘s home due to domestic violence concerns as well as her arrest for Possession of Methamphetamine. Testimony was presented that although she complied with some case plan objectives after the children were removed from her custody, she was convicted of Theft and relapsed, using ecstacy, which caused her to be placed in NEOCAP, where she was living at the time of the hearing. The relapse occurred less
{60} Further, the children were doing well while with their grandparents, with A.C.B. improving in school and both involved in extra-curricular activities. The children have a good relationship with them and Pamela Wise indicated a willingness to provide appropriate visitation with Bishop. The guardian ad litem recommended granting legal custody to the Wises, as he believed that the children had improved while in their care and benefitted from the stability in that environment. All of these factors weigh in support of the court‘s custody determination.
{61} Bishop argues that she had completed many of the case plan objectives, emphasizing that until her relapse, she had negative drug screens, proper housing, and visited with and attended counseling with her children. She noted her participation in courses while in NEOCAP to handle anger management, domestic violence, and drug and alcohol issues. While there is no question that Bishop had completed some of the case plan objectives, this was properly weighed against the objectives she had not completed and the concerns that arose when she relapsed only a few months before the legal custody proceedings, especially given one of the case plan objectives for her to stay sober nine months before reunification with the children. Based on all of the evidence presented, we cannot find that it was error, plain or otherwise, for the trial court to adopt the magistrate‘s determination that it was in the children‘s best interest to be placed in the Wises’ custody.
{63} The third assignment of error is without merit.
{64} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas, Juvenile Division, granting legal custody of the children to the Wises, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.