IN RE: A.M.
APPEAL NO. C-190027
TRIAL NO. F16-2559
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 24, 2019
2019-Ohio-2028
MOCK, Presiding Judge.
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 24, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas Varney, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Cynthia S. Daugherty, for Appellant Mother,
Treleven Law LLC and Celia Klug, Guardian ad Litem for A.M.
O P I N I O N.
{¶1} In one assignment of error, appellant Mother claims that the trial court‘s decision to grant permanent custody of her daughter A.M. to the Hamilton County Department of Job and Family Services (“HCJFS“) was based upon insufficient evidence and was contrary to the manifest weight of the evidence. We affirm the trial court‘s judgment.
Young Mother Struggles with Raising Newborn
{¶2} A.M. was born on November 10, 2015. At the time of her birth, A.M.‘s mother was 16 years old and was living in a foster home. Mother had had a troubled history up to that point, having been sexually assaulted while in the care of one of her foster families. Because Mother was in foster care, she received assistance through her caseworker from appellee HCJFS that included requirements for Mother to attend therapy, participate in her med-somatic program, attend school, stop using illegal drugs, and submit to random drug screens.
{¶3} Between the time of A.M.‘s birth until HCJFS sought protective orders for A.M. in December of 2016, Mother had not successfully completed therapy, was not consistent with her med-somatics, was not consistently attending school, had engaged in several instances of angry outbursts in her foster home, and continued to use marijuana. Between the time when HCJFS first sought protective orders through the time that HCJFS sought interim custody of A.M. in June of 2017, Mother was to follow the same case plan. But during that time, Mother again failed to consistently engage in her med-somatics, failed to consistently engage in substance-abuse treatment, continued to use marijuana, continued to be a problem in her foster home, and continued to have disciplinary issues in school. Mother‘s history continued from that point until the day of the permanent-custody trial. She
{¶4} From the time of A.M.‘s birth until the date of trial, Mother had failed to successfully complete any aspect of her case plan. At trial, Mother‘s caseworker testified that, throughout this entire timeframe, she had seen no change in Mother‘s behavior which would cause her to believe that she could safely parent a child on a long-term basis. She had no reason to believe that Mother would change given more time, and there were no additional services that could be offered to Mother that would render her an appropriate parent for A.M.
{¶5} Mother had a history of not engaging in the services offered to her designed to prepare her to be a caregiver to A.M. While she had been in therapy, she stopped going and missed the last few appointments before her Medicaid was terminated. And her Medicaid was terminated because she chose to become emancipated rather than remaining in the system with HCJFS. Her caseworker cautioned her strongly against this decision, but Mother indicated that she no longer wished to live under the rules of her foster parents and HCJFS. Mother did not engage in recommended mental-health treatment because she didn‘t think she needed it and refused to go.
{¶6} Mother‘s employment history was also sporadic. Her caseworker testified that she had had several jobs, but could not retain them. She recalled at least three instances where she had been fired after just a few months. She was fired from a McDonald‘s because of animosity between her and the owner‘s daughter, she was fired from a Wendy‘s because she repeatedly failed to come to work on time, and she was fired from a factory job for the same reason. At the time of trial, Mother testified that she had a job as a housekeeper at a hotel, but she had been there less than a month.
{¶8} Mother also had a history of anger and violent outbursts. A.M. was initially removed from Mother‘s custody because she had not been attending school regularly, was testing positive for drugs, and had had outbursts in her foster home. On several occasions, her anger had resulted in damage to the home when Mother had punched holes in the walls or doors and had thrown a chair. A.M. was present during some of these outbursts. A number of these instances resulted in the involvement of law enforcement. Her caseworker said, at that time, Mother had not been successful in dealing with her behavioral issues, that there had been a gradual increase in the level of her aggression, and that she had refused to either engage in or complete the services required of her. In 2016, she had been suspended from school a couple of times for her aggressive behavior.
{¶9} In addition to her own anger issues, there was an issue of violence between Mother and A.M.‘s father. There was one incident in which the father
{¶10} The record reflects that A.M. has a strong bond with her mother. Mother‘s caseworker acknowledged, “[f]rom the times that I have observed [Mother and A.M.] have a really good relationship * * * [t]hat has never been a question * * * [t]hey are very closely bonded.” Mother‘s therapist also vouched for the fact that Mother had been making progress, until she stopped coming to her therapy sessions.
{¶11} But the record does not reflect that Mother‘s affection for A.M. had effectively translated to a determination to change her behavior. Mother had been told repeatedly by her caseworker that her failure to comply with her case plan could result in A.M. being permanently taken from her. But Mother‘s conduct did not change. Mother‘s initial period of visitation from February to June of 2017 was terminated due to her lack of participation. Visitation began again in January of 2018, but again ended in June because of her lack of participation. Her visitations began again in July. Her visits between that point and the trial date at the beginning of September had been consistent except for one occasion. In August of 2018, she told her caseworker that she could not attend a visit because she had to go to orientation for parenting classes, but the caseworker later learned she did not attend the orientation.
{¶12} While she did take some parenting classes, she was terminated from that program for lack of participation. While she did attend some counseling, she stopped going and then she allowed her Medicaid to expire so she could not return.
{¶13} At the time of trial, A.M. was thriving in her foster care placement. The foster parent had been working with her on improving her speech, making her say the names of things rather than point to them, and reading to the child. A.M. was healthy, attending daycare, and had no medical or developmental issues. Mother‘s caseworker testified that A.M. began to recognize the building where the visitation occurred, and knew that it was her time to be with her mother. And when Mother failed to show up for the visit, A.M. would be devastated and inconsolable for some time.
The Case Below
{¶14} Procedurally, this case began on December 1, 2016, when HCJFS filed a complaint, affidavit, and motion for interim custody of A.M. The motion was subsequently modified to seek only interim protective orders. The parties agreed to the interim protective order at the initial hearing the next day. On February 10, 2017, A.M. was adjudicated dependent and the magistrate issued an order allowing A.M. to remain with mother under the protective supervision of HCJFS. On June 14, 2017, HCJFS filed a second complaint, affidavit, and motion for interim custody of A.M., to which the parties agreed. The magistrate again adjudicated A.M. dependent and granted temporary custody to HCJFS. On March 22, 2018, HCJFS filed a motion to modify the temporary custody to permanent custody. The permanent-custody hearing was held on August 6 and August 8, 2018. The magistrate issued a decision on September 17, 2018, granting permanent custody of A.M. to HCJFS and
The Permanent-Custody Determination
{¶15} In one assignment of error, Mother argues that the trial court erred by granting HCJFS‘s motion for permanent custody when it “concluded by clear and convincing evidence that permanent custody to HCJFS was in the best interest of the child when that decision lacked sufficient evidence and was against the weight of the evidence.”
{¶16}
whether some evidence exists on each element. It is a test of adequacy, and whether the evidence is sufficient to sustain the judgment is a question of law. Our review for weight asks whether the evidence on each element satisfies the burden of persuasion, which in this case was a clear and convincing standard.
(Citations omitted.) In re A.B., 1st Dist. Hamilton No. C-150307, 2015-Ohio-3247, ¶ 15. Related to but distinguishable from sufficiency of the evidence, the weight-of-the-evidence standard requires an evaluation of all the evidence, weighing the evidence and reasonable inferences, and considering the credibility of the witnesses, to determine whether the court lost its way in resolving conflicts in the evidence, which resulted in a manifest miscarriage of justice. Id. at ¶ 16; Eastly v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23 (noting the distinction between sufficiency and weight-of-the-evidence standards).
The R.C. 2151.414(B)(1) Factors
{¶18} While Mother only addressed the best-interest determination in the language of her assignment of error, her argument addresses both the best-interest determination as well as the trial court‘s decision regarding the
{¶19} The magistrate determined that A.M. could not be placed with Mother within a reasonable time or should not be placed with Mother. See
{¶21} In her analysis, the magistrate cited three provisions under
{¶22} The magistrate also noted Mother‘s mental-health and substance-abuse issues. See
{¶23} The magistrate also noted that Mother had done little to support A.M. See
A.M.‘s Best Interest
{¶25} Having determined that the record supported the decision below that A.M. could not be returned to the custody of Mother in a reasonable time or should not be returned to her, we are left to consider whether the record supports the conclusion that granting permanent custody of A.M. to HCJFS was in A.M.‘s best interest. To determine the best interest of the child, the court must consider all relevant factors within
In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised Code, 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, 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, or 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 and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(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.
The factors listed in
and the parent had failed to provide clear and convincing evidence that the parent can provide a legally secure permanent placement and adequate care for the health, welfare and safety of the child.
In re M., 1st Dist. Hamilton No. C-170008, 2017-Ohio-1431, ¶ 24, citing
{¶26} Mother argues that “the magistrate‘s decision refers to
This court, however, has never held that the juvenile court must “discuss” each of the best-interest factors to meet the mandate that it “consider” all the elements of
R.C. 2151.414(D) when making the best-interest determination. In re K.T.1 I, [1st Dist. Hamilton Nos. C-170667, C-170687, C-170701 and C-170702, 2018-Ohio-1381, ¶ 14]. During the initial appeal of this case, this court reversed for the reason that the juvenile court had omitted a reference to the mandatoryR.C. 2151.414(D)(1)(e) factors in its opinion, and had not otherwise provided any indication in its opinion that those factors had been considered. Id.We strongly encourage the juvenile court‘s discussion of each factor, but we cannot find error in the juvenile court‘s failure to discuss each factor if the record otherwise indicates that all of the necessary factors were considered. See id.
Here, the juvenile court in its June 2018 judgment specified that it had considered all of the statutory best-interest factors when disposing of the pending motions affecting the parental rights of Mother and W.A. And, as discussed more fully below, it also stated findings that were relevant to its analysis. Thus, while the juvenile court did not discuss each best-interest factor, it was not required to do so in light of this record.
In re K.T.1 II, 1st Dist. Hamilton No. C-180335, 2018-Ohio-4312, ¶ 45-47. This is not a case where the trial court failed to reference the statutory provisions it had considered. The magistrate simply failed to discuss the factor further.
{¶27} The dissent agrees with Mother‘s position, citing a number of cases supporting its conclusion that there was “no evidence that the court actually considered it in its best-interest analysis.” In In re W Children, 1st Dist. Hamilton No. C-180620, 2019-Ohio-690, ¶ 51, this court did say that the record must indicate that the court considered all of the factors, but we also said that “the court does not need to specifically discuss each of the best-interest factors in its decision.” In In re Allbery, 4th Dist. Hocking No. 05CA12, 2005-Ohio-6529, ¶ 14, the court did say that a decision should be reversed when there is no evidence that the trial court engaged in the proper analysis, but in that case the trial court had done no analysis relating to the mother‘s custody rights and simply mentioned the father once before terminating the mother‘s parental rights. In In re Q.R., 12th Dist. Clinton No. CA2017-11-020, 2018-Ohio-4785, ¶ 13, the court did say that the trial court‘s decision did not provide for the opportunity for meaningful appellate review because the decision was devoid of any reasoning or analysis, but that case involved a dispute over parenting time between parents and whether the trial court properly rejected a stipulation by the parties related to that issue. While In re A.T., 12th Dist. Butler Nos. CA2018-06-115
{¶28} As in In re K.T. 1 II, the record in this case demonstrates that the trial court considered all the relevant statutory factors and it also stated findings that were relevant to its analysis. Mother had a good relationship with A.M., but she frequently failed to attend visitations, and refused to make changes to her lifestyle, which prevented her reunification with her daughter. On the other hand, A.M. has thrived while in foster care, with the only disruptions of note in the record being the occasions when Mother failed to show up for visitation. See
{¶29} Mother argues that the decision was contrary to the manifest weight of the evidence because she and A.M. shared a bond, she had been “consistently visiting in 2018,” and she could complete her case plan if given more time. But Mother had repeatedly failed to complete any of the aspects of her case plan, does
{¶30} The dissent also asserts that the decision must be reversed because, while referencing the factors outlined in
{¶31} But the cases cited by the dissent here are again inapplicable. In In re E.T., 9th Dist. Summit No. 22720, 2005-Ohio-6087, the court concluded that the trial court had improperly determined that the children at issue had been in the temporary custody of the agency for at least 12 of the preceding 22 months, when the children had been in state custody for less than nine months. The appellate court determined that it could not, on its own, make a determination that one of the other
{¶32} And in In re N.E., 12th Dist. Butler No. CA2009-12-300, 2010-Ohio-1815, the trial court was under the mistaken belief that it was required to grant permanent custody to the children‘s services agency pursuant to
{¶33} Both of these cases stand for the proposition, with which no one can disagree, that if the trial court referenced the wrong statutory section and that mistake leads the trial court to misunderstand its role and level of discretion, this is an error that requires reversal. These are errors of law that cause the trial court to be misdirected in its fundamental analysis. Our case, where the magistrate simply listed the wrong facts under the wrong subsection, does not rise to this level.
{¶34} The remaining cases cited by the dissent are likewise distinguishable. In In re J.M., 12th Dist. Clermont No. CA2006-11-096, 2007-Ohio-4219, ¶ 11, the court said that “the trial court‘s failure to make the necessary findings and to support its conclusions amounts to prejudicial error.” But in that case, the appellant had requested findings of fact and conclusions of law pursuant to
{¶35} The dissent simplifies the above by asserting that this court‘s accepted standard might lead to a future affirmance of a decision below “just citing the statute and declaring ‘you lose.’ ” But that is an oversimplification of the widely-accepted standard that we have applied. As the Fourth Appellate District wrote, “in the absence of findings of fact and conclusions of law, we generally must presume that the trial court applied the law correctly and must affirm if some evidence in the record supports its judgment.” Matter of S.S., 4th Dist. Jackson No. 16CA7, 2017-Ohio-2938, ¶ 131, citing Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007-Ohio-2019, ¶ 10. Thus, “we must affirm the trial court‘s permanent custody decision as long as the evidence reasonably supports it and as long as the record indicates that the court indeed considered the appropriate factors.” Id. A record that would not support such a conclusion should not be affirmed by any court.
{¶36} The dissent concludes that this court‘s determination could result in a certification of a conflict with “the other districts that I have cited above.” But the
{¶37} The magistrate referenced the appropriate statutory provisions and concluded that it was in the child‘s best interest for permanent custody to be awarded to HCJFS. While it cannot be argued that the magistrate‘s entry is anything other than poorly drafted, our task is to review the decision below, determine whether the trial court applied the correct law, and then determine if the record and the law support its decision. The trial court applied the correct law, and its decision is supported by the record and the appropriate law.
{¶38} No one would say that Mother did not have a difficult childhood. Mother is young, she has been the victim of an unspeakable violation of her person, and she does not have much outside support. And it is certainly possible that, one day, Mother may reach the point where she could provide a loving and safe home for a child. But, as of the time of trial, that day had not come, and Mother‘s caseworker could not foresee a circumstance where that day would come anytime soon. But this case is not about how unfair Mother‘s upbringing has been. The trial court was
Conclusion
{¶39} The decision of the trial court to terminate Mother‘s parental rights was based on sufficient evidence and was not contrary to the manifest weight of the evidence. We overrule her sole assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, J., concurs.
BERGERON, J., dissents.
IN RE: A.M.
APPEAL NO. C-190027
TRIAL NO. F16-2559
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 24, 2019
2019-Ohio-2028
BERGERON, J., dissenting.
{¶40} We often say, perhaps so much so that we have trivialized the phrase, that parental-termination cases are the family-law equivalent of the death penalty. But if we mean that—if we truly mean that—then we would insist that the trial courts making these decisions appropriately apply the governing test. That did not happen here. The magistrate‘s order (adopted by the juvenile court) only presented required findings on three of the five obligatory best-interest factors, and committed a legal error on the final factor. I would accordingly reverse the judgment below.
I.
{¶41} The crux of my problem with the underlying order is the magistrate and juvenile court‘s collective failure to actually explain their decisions, particularly when the glimpses we have of their reasoning are punctuated with errors. The majority provides quite a thorough recitation of the facts here, but in doing so, it does the work of the lower courts for them (without the benefit of the ability to judge
{¶42} Beyond the majority’s factual findings, it is worth pointing out that the foster system failed both Mother and her child. Mother had been in foster care since early in her life and at one point she was raped by one of her foster parents. A.M. likewise suffered abuse at the hands of her foster parents and had to be removed from that environment. No one in a foster setting (or any setting, for that matter) should have to endure something like that.
{¶43} Testimony also established that Mother and A.M. have a very strong, loving bond. Mother’s caseworker acknowledged, “[f]rom the times that I have observed [Mother and A.M.] have a really good relationship * * * [t]hat has never been a question * * * [t]hey are very closely bonded.” Mother’s therapist also vouched for the fact that Mother was making progress. And Mother testified that she had matured and was now better able to control some of her anger issues.
{¶44} I do not mean to suggest that Mother was a model parent, and indeed, evidence of her failures exists in the record, much of which has been chronicled above by the majority. But Mother’s flaws here pale in comparison to what she and her child experienced from the foster care system. Regardless, when the evidence is contradicted, it magnifies the need for the trial court to issue findings that sort
II.
{¶45} Errors permeated the magistrate’s order, which the juvenile court adopted, deeming it “well-reasoned.” Let’s start with the “best interest” analysis, which is where I would find reversible error. The statute obligates a court to consider at least five enumerated best-interest factors. Mother first draws our attention to the magistrate’s failure to consider
{¶46} Other than reciting this factor, I see no evidence that the court actually considered it in its best-interest analysis. See In re Belanger, 11th Dist. Ashtabula No. 2002-A-0047, 2002-Ohio-4956, ¶ 32, quoting In re Bailey, 11th Dist. Geauga No. 2001-G-2340, 2001 WL 824390, *5 (July 20, 2001) (“[T]he record must show that the juvenile court considered all of the factors enumerated in
{¶47} This factor also assumes significance in light of the record at hand. HCJFS’s witnesses acknowledged a strong bond between Mother and A.M. and much love between them. That is an important fact, and one that should have been weighed by the trial court. In short, the court had before it evidence on this score but offered us no factual findings that we can review.
{¶48} And recall, the magistrate was purporting to issue findings of fact and conclusions of law—at least that is how she denominated the critical portion of her order. These determinations are meant to express the rationale of the court and to aid the reviewing court in determining the basis for the lower court’s decision. See Matter of Adoption of Aiken, 2d Dist. Montgomery No. 12522, 1991 WL 116666, *3 (June 24, 1991) (finding the trial court’s findings of fact and conclusions of law insufficient because the court did not explain the grounds on which it based its decision). Findings of fact should be ” ‘clear, specific and complete without unrealistic and uninformative generality on the one hand, and on the other without an unnecessary and unhelpful recital of non-essential details of evidence.’ ” Id.,
{¶49} My colleagues in the majority say this is ok, but consider the ramifications of the rule they appear to endorse—if a trial court simply copied the statute and said “parental rights should be terminated,” are we prepared to uphold that? I would hope not, and I believe the better practice is that required by our sister districts, which is actually to require some modicum of discussion of the relevant factors. As a parent myself, I can’t imagine my child being seized from me behind a veil of secrecy. It is not too much to ask for some minimal explanation, and to that point, I find no fault with the magistrate’s one or two sentence findings concomitant to sections (B)(1)(b) through (d).
{¶50} The majority endeavors to distinguish some of the cases I’ve cited because they contained a request for findings of fact and conclusions of law (see ¶ 34) and by featuring cases that did not actually involve findings of fact and conclusions of law. See Matter of S.S., 4th Dist. Jackson No. 16CA7, 2017-Ohio-2938, ¶ 131, citing Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007-Ohio-2019, ¶ 10 (“[I]n the absence of findings of fact and conclusions of law, we generally must presume that the trial court applied the law correctly* * *.“) (Emphasis added) This is not, however, a situation in which there is a complete absence of findings of fact and conclusions of law—the magistrate’s order (adopted by the juvenile court) labels itself as “Findings of Fact and Conclusions of Law.” Although the magistrate
{¶51} Further underscoring these problems, the magistrate’s discussion of
{¶52} Compounding the two errors identified above, the magistrate’s order fails to engage in any sort of evaluation or balancing of the “best interests” evidence. We simply do not know how either the magistrate or the juvenile court balanced the best-interest factors because neither elucidates the point. Belanger, 11th Dist. Ashtabula No. 2002-A-0047, 2002-Ohio-4956, at ¶ 24 (“[W]e are unable to conclude that the court found, by clear and convincing evidence, the existence of one or more of the [
{¶53} Last year, this court reversed a parental-termination decision when the trial court failed to list the required
{¶54} The majority, however, features the second appeal from K.T., In re K.T.1, 1st Dist. Hamilton Nos. C-180335, C-180376 and C-180390, 2018-Ohio-4312, for the proposition that the trial court need not “discuss” each specific factor, and this prompts several reactions. First, as explained above, I find fault in the magistrate’s failure to analyze each specific section and her failure to explain her
III.
{¶55} Next, the majority concedes that the juvenile court erred in its finding of “12 of 22” under the statute.
{¶56} I’ll leave aside the instances where the magistrate lists the statutory criteria but then fails to apply it because there is simply no way to evaluate whether the magistrate actually intended to make findings under these sections. The child-abuse example particularly stands out—no evidence exists in the record of any parental abuse of the child, but the magistrate nevertheless tosses that in the mix. I’ll also not address examples where the magistrate references the father because this appeal concerns Mother’s rights.
{¶57} Removing those instances from the equation leaves us with
{¶58} The same rings true for the magistrate’s analysis of (E)(14). That provision allows the court to consider whether “[t]he parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities[.]” (Emphasis added) Here, the magistrate faults Mother for not “provid[ing] consistently for the necessities” of A.M. Yet again, the magistrate engages in a rewriting of the statute, transforming an inability into an unwillingness. The statute, to me, does not seem designed to punish a parent for their poverty. Now, however, under the majority’s interpretation, it does exactly that.
IV.
{¶59} This litany of errors spanning both the magistrate’s and juvenile court’s decisions should give anyone pause. Upholding these decisions in the face of such errors does not instill confidence given the gravity of the matter at hand.
{¶60} And that brings me back to where I started. The right to raise one’s own children is an essential civil right and termination of that right has been likened to ” ‘the family law equivalent of the death penalty[.]’ ” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54 (6th Dist.1991)In re Donnell F., 6th Dist. Lucas No. L-04-1308, 2005-Ohio-4175, ¶ 22, then due process demands that the court actually (and correctly) evaluate each relevant factor as the statute commands. It is not too much to require some explanation by the juvenile court so that a losing parent understands why he or
{¶61} I respectfully dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.