IN THE MATTER OF: A.J.
CASE NO. CA2018-08-063
COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
2/19/2019
2019-Ohio-593
RINGLAND, P.J.
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Cаse No. 2017JC04962
Dever Law Firm, Scott A. Hobert, 9146 Cincinnati-Columbus Road, West Chester, Ohio 45069, for appellant
RINGLAND, P.J.
{¶ 1} Appellant, the mother of A.J. (“Mother“), appeals from the decision of the Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of her daughter to appellee, the Clermont County Department of Job and Family Services (“CCDJFS“). For the reasons outlined below, we affirm the juvenile court‘s permanent custody determination.
Facts and Procedural History
{¶ 2} On April 11, 2017, CCDJFS filed a complaint alleging A.J., born December 1,
{¶ 3} While investigating the reports regarding the family‘s home and Father‘s illegal drug use, CCDJFS conducted a drug screen on Fathеr. The drug screen came back positive for 6-Monoacetylmorphine (6-MAM) and morphine, the metabolites of heroin. Following his positive drug screen, Father agreed to cooperate with CCDJFS regarding the care of A.J. A safety plan was then established removing A.J. from Father‘s care. Father was then admitted into an inpatient rehabilitation facility to address his substance abuse problems.1
{¶ 4} Unfortunately, after being removed from Father‘s care, CCDJFS learned that A.J.‘s then foster family would be unable to continue caring for her. As a result, due to the uncertainty regarding the health and well-being of both A.J. and Father, CCDJFS moved the juvenile court for emergency temporary custody. The juvenile court granted CCDJFS‘s request later that same day. The juvenile court then appointed A.J. with a guardian ad litem.
{¶ 5} On June 1, 2017, a juvenile court magistrate adjudicated A.J. a dependent child. The juvenile court adopted the magistrate‘s decision adjudicating A.J. a dependent child on June 19, 2017. Approximately three weeks later, on July 11, 2017, the magistrate issued a dispositional decision granting temporary custody of A.J. to CCDJFS. The record indicates Father consented to the magistrate‘s dispositional decision placing A.J. in CCDJFS‘s temporary custody. On July 31, 2017, the juvenile court adopted the magistrate‘s decision granting temporary custody of A.J. to CCDJFS.
{¶ 6} On August 17, 2017, the juvenile court held a hearing on the matter. Following this hearing, the juvenile cоurt issued an entry noting that Father had overdosed on heroin and died sometime after the magistrate issued its dispositional decision on July 11, 2017. The record indicates Father died on July 14, 2017, three days after the magistrate issued its dispositional decision granting temporary custody of A.J. to CCDJFS.
{¶ 7} In addition to these findings, the juvenile court noted that Mother was still in prison with an anticipated release date of November 2019. The juvenile court also noted that A.J. was then in the process of being placed with her paternal second-cousin and his wife. Concluding, the juvenile court noted that a home study of the cousin‘s home had passed with “no other family members appropriate or suitable. They want to be licеnsed as foster to adopt parents. [A.J.] doing well and started grief counseling[.]”
{¶ 8} On December 14, 2017, the juvenile court held another hearing on the matter. Following this hearing, the juvenile court issued an entry noting that CCDJFS was planning on moving for permanent custody of A.J. The juvenile court also noted that A.J. had since been placed with her paternal second-cousin and his wife. The juvenile court further noted that A.J. likes her current placement with her cousin, that A.J. had been attending grief counseling to address any issues resulting from her Father‘s overdose death, and that A.J. had made a few new friends since being placed with her cousin.
{¶ 9} On February 12, 2018, CCDJFS moved for a six-month extension of temporary custody. In support, CCDJFS noted that Mother was still incarcerated but had an early potential judicial release date of February 10, 2019. CCDJFS also noted that Mother had not been placed on a case plan and had not otherwise engaged in any case plan services. CCDJFS further noted that A.J. was “doing well” in her current placement with her paternal second-cousin and his wife who were “in the process of becoming licensed to adopt and would like to adopt A.J.” The guardian ad litem filed a similar report noting that A.J. “likes her home and her room” and “appeared to be very happy and well adjusted in her current situation.”
{¶ 10} On March 1, 2018, CCDJFS moved for permanent custody of A.J. In support of its motion, CCDJFS alleged Mother had abandoned A.J. by not having had any face-to-face contact with A.J. for nearly two years. CCDJFS also noted that Mother “has been in prison since March of 2016 and is currently serving a three year mandatory prison sentence in Clermont County Court of Common Pleas case No. ___ -CR- ___ consecutively with a 12 month prison term in Clermont County Court of Common Pleas case No. ___ -CR- ___.”2 Concluding, CCDJFS alleged that A.J. cannot and should not be placed with Mother within a reasonable period of time and that A.J.‘s best interest would be served by an award of permanent custody. The matter was then scheduled for a hearing on CCDJFS‘s motion for permanent custody on May 4, 2018.
{¶ 11} On March 30, 2018, Mother moved for a continuance of the permanent custody hearing due to her then pending motion for early judicial release. Anticipating that she would be granted early judicial release, Mother made this request in hopes that CCDJFS would place her on a case plan and allow her to start receiving case plan services.
{¶ 12} On May 4, 2018, a hearing on CCDJFS‘s motion for permanent custody was held before the juvenile court magistrate. As part of this hearing, the magistrate heard testimony from Mother (who was conveyed from prison to testify at the hearing), as well as A.J.‘s paternal second-cousin and his wife. The magistrate also heard testimony from an ongoing caseworker from CCDJFS and an adoption coordinator. This testimony indicated A.J. was doing very well and making great progress now that she was under the care of her cousin and his wife, who the record indicates A.J. refers to as “mom” and “dad.”
{¶ 13} Specifically, as A.J.‘s cousin testified when asked how A.J. was doing in he and his wife‘s care:
Fantastic. She‘s blossoming, learning. She seems like a completеly different child than the one that came to live with us, as far as her social interactions go and conversations that she has. * * * She was very sheltered, anxious. She seemed distrustful of a lot of people. And since then she seems very comfortable and she gets very excited to spend family time with my family and [my wife‘s] family. She enjoys doing things like going to dance and making friends and going to school events.
A.J.‘s cousin also testified that he and his wife were taking the necessary steps to adopt A.J., that they are 100% bonded to her, and that they would “love” to adopt A.J. if given the opportunity.
{¶ 14} Following this hearing, the magistrate issued a detailed 13-page decision granting CCDJFS‘s motion for permanent custody. Of note, the magistrаte stated:
Mother estimates she needs at least three months [upon her release from prison] to be ready to care for [A.J.] Three months
is overly optimistic. Mother‘s job history is remote. Her felony record will impair her employability. She has no financial resources and cannot drive. She needs to complete drug treatment and demonstrate solid sobriety outside of prison. Her sobriety is not guaranteed. Mother is out of time. The Magistrate is unwilling to gamble [A.J.‘s] present need for permanency against Mother‘s mere promise of future stability.
{¶ 15} On July 6, 2018, Mother filed an objection to the magistrate‘s decision claiming the magistrate‘s decision granting CCDJFS‘s motion for permanent custody was not in A.J.‘s best intеrest. After reviewing the pertinent statutory provisions, case law, testimony, exhibits, and case file, the juvenile court found the magistrate‘s decision was supported by sufficient evidence and not against the manifest weight of the evidence. In so holding, the juvenile court found “the testimony presented by the agency‘s witnesses to be credible based upon a review of the transcripts.” The juvenile court also found that “in weighing the evidence that there is substantial credible evidence that is both clear and convincing to terminate parental rights and to award permanent custody to the Clermont County Department of Job and Family Services.”
Appeal
{¶ 16} Mother now appeals from the juvenile court‘s decision granting CCDJFS‘s motion for permanent custody. In support, Mother raises a single assignment of error arguing the juvenile court‘s decision to grant permanent custody was not supported by sufficient evidence. Mother also argues in her single assignment of error that the juvenile court‘s decision was against the manifest weight of the evidence. Under these circumstances, this court applies the following standard of review.
Standard of Review
{¶ 17} Before a natural parent‘s constitutionally protected liberty interest in the care and custody of his or her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have beеn
{¶ 18} As with all challenges to the manifest weight of the evidence, in determining whether a juvenile court‘s decision is against the manifest weight of the evidence in a permanent custody case, an appellate court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.‘” In re S.M., 12th Dist. Case Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. The presumption in weighing the evidence is in favor of the finder of fact, which we are especially mindful of in custody cases. In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, ¶ 25. Therefore, “[i]f the evidence is susceptible to more than one construction, the reviewing cоurt is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.” Eastley at ¶ 21.
{¶ 19} Pursuant to
Reasonable Time
{¶ 20} As it relates to the second part of the two-part permanent custody test, the juvenile court found A.J. could not be placed with Mother within a reasonable time due to the fact she was then in prison serving a four-year prison term. Mother disputes this finding claiming A.J. could be placed with her within a reasonable time since her anticipated release
{¶ 21} The motion for permanent custody was filed by CCDJFS on March 1, 2018. The record indicates Mother now has an anticipated release date from prison on November 9, 2019. This is a difference of 20 months and eight days. Because Mother will presumably still be in prison 18 months after CCDJFS‘s motion for permanent custody was filed, the juvenile court was required by
{¶ 22} In so holding, we note that contrary to Mother‘s claim,
Best Interest of the Child
{¶ 23} Turning now to the first part of the two-part permanent custody test, the juvenile court found it was in A.J.‘s best interest to grant permanent custody to CCDJFS. Mother disputes this finding by arguing the juvenile court‘s decision was not supported by sufficient evidence. Mother also argues the juvenile court‘s decision was against the manifest weight of the evidence. We disagree.
{¶ 24} When considering the best interest of a child in a permanent custody case, the juvenile court is required under
{¶ 25} Initially, with respect to A.J.‘s relevant interactions and relationships with those who may significantly impact her young life, the juvenile court fоund Mother, an admitted heroin addicted, started using heroin shortly after giving birth to A.J. This is confirmed by Mother‘s own testimony elicited at the permanent custody hearing, wherein Mother testified:
[THE STATE]: So have you been sober at any point since your daughter has been born?
[MOTHER]: When she was born, I was sober the whole time. I mean when I was pregnant. And then for not quite a year I was sober, but then I started using pretty bad.
{¶ 26} As a result of her heroin addiction, the juvenile court found Mother has now spent over half of A.J.‘s life in prison after she was convicted of grand theft auto, fleeing and eluding, burglary, and tampering with evidence. Once again, this is confirmed by Mother‘s testimony. As Mother testified:
[MOTHER‘S TRIAL COUNSEL]: Okay. So the first time you went to prison, how long was that for?
[MOTHER]: Fourteen months.
[MOTHER‘S TRIAL COUNSEL]: And then you got out for four months, roughly, and then –
[MOTHER]: I was using again within probably two months. And I – I burglarized a house and I got put back in prison.
Thereafter, when asked by the state if she had either been strung out on heroin or in prison since A.J. was born, Mother responded, “Yes.”
{¶ 27} The juvenile court also found that while Mother had sent letters to A.J., A.J. did not respond to Mother‘s letters and generally appeared to have little to no interest in doing so. The juvenile court further found that Mother had not seen A.J. face-to-face since
{¶ 28} In addition to these findings, the juvenile court found A.J.‘s paternal grandfather and his wife have visited with A.J. However, as it relates to A.J.‘s maternal grandmother, the juvenile court found nothing to indicate she had a relationship with A.J. or that maternal grandmother had even visited A.J. during the pendency of this case. The juvenile court also found that most of A.J.‘s half-siblings, except one, had not maintained any contact with A.J. since she was placed in the temporary custody of CCDJFS. This is true even though one of A.J.‘s half-siblings was present as an observer at the hearing on CCDJFS‘s motion for permanent custody.
{¶ 29} Turning to A.J.‘s interaction and relationship with her paternal second-cousin and his wife, the juvenile court found A.J. had been in their cаre since August 17, 2017. The juvenile court also found A.J. to be bonded to them. This includes, as noted above, A.J. referring to her cousin and his wife as “mom” and “dad.” The juvenile court further found that since being placed in her cousin‘s care that A.J. has “become more open in her social interactions.”
{¶ 30} The record indicates that A.J. has also had the opportunity to engage in activities with her extended family since being placed in her cousin‘s care. The record further indicates that A.J. had become involved in dance classes and was improving academically since being removed from Father‘s care and placed with her cousin. The juvenile court finally noted that A.J.‘s cousin was “receptive to A.J. visiting with relatives, including the mother upon her release, as long as it is in A.J.‘s best interest.”
{¶ 31} Next, regarding A.J.‘s wishes, the juvenile court relied on the guardian ad litem‘s report and recommendation that permanent custody of A.J. should be granted to
The child expressed to this GAL that “she loves her placement family very much and she wants to stay with them forever.” AJ states she loves grandma and grandpa tоo.4 AJ reports she believes her dad (now deceased) brought her to this family so she would be loved and cared for. AJ states she loves having a “family.” AJ asked this GAL to tell the Judge that she feels safe and secure with her current family. These are AJ‘s wishes.
The guardian ad litem also noted that A.J. remembers very little about Mother – except for Mother doing laundry – and that A.J. reported that “my Mom is in jail because she does bad things.”
{¶ 32} In addition, as it relates to A.J.‘s custodial history, the juvenile court found A.J. had been in the temporary custody of CCDJFS since April 11, 2017. Mother does not dispute this finding.
{¶ 33} Furthermore, when considering A.J.‘s need for a legally secure placement, the juvenile court found A.J.‘s need for a legally secure permanent placement could not be achieved without a grant of permanent custody to CCDJFS. In support, the juvenile court noted that A.J. was fearful that if Mother regained custody of her that Mother would soon “become incarcerated again.” The juvenile court also noted that “[A.J.] is also afraid of being taken from the home in which she is currently residing and being placed otherwise.” The juvenile court further found that there was no way to predict when, or even if, Mother would be able to maintain her parental duties upon her release from prison. The juvenile court based its decision on the following:
Upon mother‘s release from prison, she will have an uphill battle
to put her life bаck together in a number of areas. She will need to obtain and maintain housing, which will be difficult due to a lack of financial resources. She also has outstanding obligations stemming from her criminal offenses. She will need to secure and maintain a job, which may prove difficult because she has not held a job since 2014. She will need to establish a track record which proves that she can remain drug-free outside prison walls. She will need to re-establish a relationship with A.J., if possible, and would be required to engage in “one-on-one” parenting classes. The Court is not willing to gamble on the child‘s future in order to give the mother an indefinite period of time to accomplish these goals.
{¶ 34} The juvenile сourt then reiterated that A.J.‘s paternal second-cousin and his wife had expressed their desire to adopt A.J. if she became available for adoption. The juvenile court also noted the following in regard to the impact A.J.‘s current placement had on her development:
In their home, the child can feel the security which she has been deprived of for far too long. If she were to be adopted by her caregivers, then she could have the much-needed security of knowing that she has a stable home and enduring relationship with her caregivers. The child has improved her reading skills in the current household. She receives the therapy she needs and has a chance to socialize with extended family. It appears that the current caregivers are meeting all her present needs, whether they be physical, educational, or emotional.
On the other hand, as it relates to any other potential familial placements, the juvenile court found none of A.J. relatives had moved the juvenile court to obtain legal custody.
{¶ 35} Finally, with respect to any of the factors contained in
Analysis
{¶ 36} After a thorough review of the record, we find the record fully supports the juvenile court‘s decision to grant CCDJFS‘s motion for permanent custody. Mother nevertheless disputes the juvenile court‘s decision. In support, Mother initially argues that, rather than granting permanent custody, it was in A.J.‘s best interest continue the case until
{¶ 37} This case was opened after CCDJFS filed a complaint alleging A.J. was a dependent child on April 11, 2017. A.J. was placed in the emergency temporary custody of CCDJFS later that same day. The record indicates Mother‘s anticipated release date from prison is November 9, 2019. This, as noted above, is a difference of 20 months and eight days. Although we presume unintentionally, Mother is essentially arguing that the juvenile court should have disregarded the General Assembly‘s mandate as set forth in
{¶ 38} Moreover, even assuming there had been sufficient time to extend temporary custody until after Mother was releasеd from prison, the juvenile court has authority to extend temporary custody only if it found by clear and convincing evidence that: (1) the extension was in A.J.‘s best interest; (2) there had been “significant progress” on Mother‘s case plan services; and (3) there was “reasonable cause to believe” A.J. would be reunited with Mother or otherwise permanently placed within the period of extension. See
{¶ 40} Children are entitled to have stability in their lives by being placed in a legally secured permanent placement. See In re J.B., 12th Dist. Butler No. CA2018-08-175, 2018-Ohio-5049, ¶ 35; see also In re S.M., 2019-Ohio-198 at ¶ 37. A child‘s life is not an experiment that can be left to chance. Therefore, contrary to Mother‘s claim otherwise, A.J. сannot simply wait idly by in hopes that Mother will not relapse upon her release from prison. Such concerns are further exacerbated by the fact Mother admittedly relapsed only two months after first being released from prison. Of further concern is Mother‘s lack of employment, income, savings, driver‘s license, functioning vehicle, and housing, as well as the fact Mother still owes fines, costs, and $4,591 in restitution resulting from her most recent conviction for burglary and tampering with evidence.
{¶ 41} Mother claims she would be back on her feet within three months of her release from prison. This, according to Mother, was due to her involvement with the various services being provided to her in prison. However, “simрly because [Mother] claims that, while imprisoned, she has substantially remedied the conditions that led to the child‘s removal does not mean that the [juvenile] court was required to afford [Mother] a reasonable time to prove that she would be able to properly care for the child upon her release.” In re M.M., 4th Dist. Meigs No. 14CA6, 2014-Ohio-5111, ¶ 33. Mother‘s past behavior is a better indicator than her current promises that she would maintain her sobriety upon her release from prison. Considering Mother admittedly relapsed only two months after first being
{¶ 42} “A juvenile court ‘is not required to deny [a] permanent custody motion simply based upon the groundless speculation that the mother might successfully complete her drug treatment * * * and remain drug-free.‘” In re E.F., 12th Dist. Clinton Nos. CA2016-03-003 thru CA2016-03-007, 2016-Ohio-7265, ¶ 36, quoting In re J.C., 4th Dist. Adams No. 07CA834, 2007-Ohio-3783, ¶ 25. This is because, as this court has stated previously, “when dealing with the life of a young child, such as the case here, the juvenile court cannot, and should not, blindly accept one‘s claims of self-healing without some type of verification.” In re J.C., 12th Dist. Brown No. CA2017-11-015, 2018-Ohio-1687, ¶ 29. Mother‘s claim otherwise lacks merit.
{¶ 43} Nevertheless, even if we were to find reasonable Mother‘s claim that it would take her only three months to get back on her feet, simply because Mother may have the ability to provide for A.J. does not mean it would be in the child‘s best interest to be placed in Mother‘s care. The juvenile court, just like this court, must act in a manner that places A.J.‘s best interests above all else. “‘A child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security.‘” In re D.E., 12th Dist. Warren Nos. CA2012-03-035 and CA2018-04-038, 2018-Ohio-3341, ¶ 60, quoting In re Keaton, 4th Dist. Ross Nos. 04CA2785 and 04CA2788, 2004-Ohio-6210, ¶ 61. The juvenile court‘s decision to grant permanent custody to CCDJFS in this case does just that. Therefore, because A.J. is now thriving in a stable and secure environment with her paternal second-cousin and his wife, the juvenile court‘s decision to grant permanent custody in this case was proper.
{¶ 44} Mother next argues it was improper for the juvenile court to grant permanent custody to CCDJFS when considering she “was not provided any services by the agency
{¶ 45} In so holding, we note that due to Mother‘s current incarceration, there is only so much that CCDJFS could provide to Mother. The efforts towards reunification undertaken by CCDJFS in this case were certainly reasonable and in no way indicative of a lack of commitment to A.J. or Mother when considering A.J.‘s best interest. CCDJFS should not be expected to go to any greater lengths to help Mother than it would any other parent who was not incarcerated. This is true even though Mother was, at least arguably, not directly at fault in creating the circumstances that led to A.J. being removed from the family home while under Father‘s care. Mother was in prison due to her actions and her аctions alone, not for anything that could in any way be attributed to CCDJFS. Mother must deal with the repercussions of her actions both inside and outside of prison. That includes the possibility of losing custody of A.J. permanently.
{¶ 46} Mother finally argues the juvenile court erred by granting permanent custody to CCDJFS rather than “seeking a relative placement prior to permanent commitment.” This court is confounded by Mother‘s argument considering A.J. was – and presumably still is – in the care of her paternal second-cousin and his wife. But, even setting aside this confusion, the record is clear that none of A.J.‘s relatives moved the juvenile court for legal
Conclusion
{¶ 47} The juvenile сourt did not err in its decision to grant CCDJFS permanent custody of A.J. This is because, as discussed more fully above, the juvenile court‘s decision to grant permanent custody was supported by sufficient evidence and was not against the manifest weight of the evidence. As this court has stated previously, a parent is afforded a reasonable, not an indefinite, period to remedy the conditions causing the children‘s removal. In re A.W., 2014-Ohio-3188 at ¶ 23. Given the fact that Mother faces significant hurdles upon her release from prison, the juvenile court properly found that it was in A.J.‘s best interest to grant CCDJFS‘s motion for permanent custody.
{¶ 48} In reaching this decision we note that Mother herself testified she can make no guarantees that she will not revert back to using heroin upon her release from prison. As Mother testified, “I can‘t guarantee it, no. I would be silly to sit up here and say, I can guarantee I‘ll never use when that might not be true.” Under these circumstances, rather than gambling on Mother‘s success or failure upon her release from prison, adoption is the best chance for A.J. to achieve the stable family home that she needs. Therefore, finding
{¶ 49} Judgment affirmed.
S. POWELL and PIPER, JJ. , concur.