In re A.S.
Judgment: Affirmed.
Matthew W. Weeks, Carl P. Kasunic Co., L.P.A., 4230 State Route 306, Building I, Suite 300, Willoughby, OH 44094 (For Appellant).
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee).
Christopher J. Boeman, 3537 North Ridge Road, Perry, OH 44081 (Guardian ad litem).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Andrew Sanders appeals from a judgment of the Lake County Court of Common Pleas, Juvenile Division, which terminated his parental rights and granted permanent custody of his daughters, A.S. and K.S., to the Lake County Department of Job and Family Services (LCDJFS). For the following reasons, we affirm the judgment of the trial court.
{¶2} In late April 2010, Kristyne Fye brought her youngest daughter, A.S., to the emergency room at Rainbow Babies and Childrens Hospital, because A.S. was having continuous seizures. A.S. was admitted to the intensive care unit for extensive treatment after a CAT scan revealed a subdural hematoma, as well as other brain injury. Further injuries were noted during treatment, including a wrist fracture and retinal detachment. Her injuries were consistent with physical abuse.
{¶3} Neither Ms. Fye nor Mr. Sanders, A.S.s father, were able to explain to the hospital social workers how A.S.s injuries had occurred. Despite Mr. Sanders efforts to identify the culprit by speaking with his family, the parents were unable to identify the perpetrator. Neither Mr. Sanders nor Ms. Fye were charged with causing A.S.s injuries, but A.S.s injuries were inconsistent with the history they had provided to the hospital staff.
{¶4} On March 5, 2010, LCDJFS filed two complaints; one alleging A.S. was an abused child and the second alleging K.S. was a dependent child. A Motion for Emergency Temporary Custody, regarding A.S. (d.o.b. 11/3/2009) and K.S. (d.o.b. 12/18/2008) was also filed. The girls were initially placed with their maternal grandmother, Roberta Sakal, but they were removed to a foster home on April 23, 2010, based on new injuries that A.S. had sustained. Efforts to place the girls with other relatives were unsuccessful.
{¶5} On May 5, 2010, Ms. Fye and Mr. Sanders admitted to the allegations set forth in the complaints. A dispositional hearing was held on June 1, 2010, during which
The Case Plan
{¶6} The case plan adopted by the trial court required Ms. Fye and Mr. Sanders to undergo mental health assessments and follow the recommendations from those assessments. Mr. Sanders was required to undergo a drug and alcohol assessment and follow any resulting recommendations. Further, both parents were obligated to complete parenting education, and provide safe, secure and stable housing for the girls, as well as meet all of their medical needs. At the same time, A.S. began therapy at the Cleveland Sight Center to address improving her balance, sensory systems, handling, fine motor development, right arm limitations as a result of the wrist fracture, feeding difficulties, right peripheral visual field loss, and visual processing difficulties.
{¶7} Until late 2011, the family was participating in supervised visitation at LCDJFS. The family then progressed to supervised, home-based visitation. This, however, did not prove effective, and the visits were returned to the agency in January 2012. Ms. Fye and Mr. Sanders did not make every scheduled visit, even those that took place at their own home.
Motion for Permanent Custody
{¶8} After several extensions of temporary custody, and a November 23, 2011 show cause hearing at which Mother admitted to the allegations and the motion against father was dismissed, LCDJFS filed a motion for permanent custody on January 31, 2012. The guardian ad litem (GAL) filed a supplemental report recommending that
{¶9} Specifically, the GAL found that Mother and Father have not demonstrated that they can provide a legally secure permanent placement for AS and KS because, even without having AS and KS to care for on a day to day basis for approximately two years, Mother and Father have not been able to secure steady employment or housing. Mother and Father also have not shown that they have (1) secure transportation and the ability to attend appointments consistently, (2) the support of extended family, or (3) a permanent and lasting relationship with each other. The GAL concluded that Mother and Father have had approximately two years to prepare themselves for the return of their children but have not adequately done so.
{¶10} A trial was held on the matter in April 2012.
Permanent Custody Hearing
{¶11} LCDJFS presented 19 witnesses during its case in chief. While some witnesses offered discrete facts related to the parents lifestyle and credibility, others testified extensively about A.S. and K.S.s needs, experiences, limitations and best interests, as well as their observations of Ms. Fye and Mr. Sanders regarding their ability to achieve reunification.
{¶12} Representatives from the various service agencies involved with the Fye/Sanders family testified regarding Ms. Fye and Mr. Sanders parenting skills, consistency or lack thereof in attending visitations, medical appointments, and therapy sessions, ability to maintain employment and stable housing, and attachment levels with both of their daughters. The picture that emerged from the significant amount of
Erin St. Dennis - Occupational Therapist
{¶13} Erin St. Dennis, an occupational therapist with the Cleveland Sight Center, described A.S.s therapeutic regimen designed to address complications and limitations stemming from the subdural hematoma, detached retina, and wrist fracture. She provided her observations of A.S., as well as Ms. Fye and Mr. Sanders, and A.S.s interactions with both of them. She was also able to speak to A.S.s relationship with the foster mother, Lisa Haffa, who had attended and continues to attend every therapy session of A.S.s. Ms. St. Dennis expressed concerns relating to Ms. Fye and Mr.
Francesca Toomey - Early Interventional Specialist
{¶14} Francesca Toomey, the Early Intervention Specialist at the Cleveland Sight Center, confirmed that the parents had missed a number of therapy sessions. She stated that, between April 20, 2010 and April 24, 2012, A.S. had 81 therapy sessions at the center. Ms. Fye missed 42 of those sessions and Mr. Sanders missed 21.
Sharen Bowen - Support Group Facilitator
{¶15} The Cleveland Sight Centers facilitator of the parent support group, Sharen Bowen, explained that Ms. Haffa, Ms. Fye, and Mr. Sanders attend the group; Ms. Fye participates, but Mr. Sanders does not. Ms. Bowen reported that Ms. Fye participates by talking about herself and her own issues more than most parents, and
{¶16} Ms. Bowen has also had opportunities to observe A.S. with her parents and Ms. Haffa. She testified that A.S. sucks her thumb as a method of self-soothing when distressed. She has not observed A.S. suck her thumb with Ms. Hafffa, but she has observed her do it with Mr. Sanders on occasion, and always sees her doing it with Ms. Fye. Ms. Bowen explained that when A.S. sucks her thumb she is essentially unavailable for any other activity or interaction; she shuts down and is not available for learning.
Donna Scott - Early Childhood Clinical Coordinator
{¶17} Donna Scott, the early childhood clinical coordinator at Crossroads, testified regarding her dual role with the Sanders family. Ms. Scott worked with Ms. Fye and Mr. Sanders on parenting issues, and she conducted a mental health diagnostic assessment of both A.S. and K.S.. She diagnosed A.S. with Post Traumatic Stress Disorder and Depression, and K.S. with an Adjustment Disorder with Mixed Emotions and Conduct. She noted that both girls, as a result of the ongoing issues in their lives, present attachment risk factors and that they need sensitive care-giving, developmental guidance, support in coping, strong structure, and active involvement by their care-givers.
{¶18} As to the parenting aspect, Ms. Scott noted that both parents need to learn how to appropriately read and respond to the non-verbal cues the girls give them. Ms. Fye, in particular, does not read the cues well and fails to respond appropriately. She did note that Mr. Sanders generally does a good job of reading and responding to
Christie Marshall - Early Head Start Home Visitor
{¶19} Christie Marshall, an Early Head Start home visitor from Crossroads, supervised the weekly visits between Ms. Fye and Mr. Sanders and the girls. Despite describing how Ms. Fye and Mr. Sanders had made some efforts to make their visits with the girls special, including throwing a birthday party for K.S. and hiding eggs for the girls to find around Easter-time, she expressed substantial concerns about their ability to properly meet the girls needs.
{¶20} Ms. Marshall specifically expressed concerns about the parents failure to properly address A.S.s special needs and limitations as a result of her injuries. Ms. Marshall described how the parents do not require A.S. to wear her eye glasses, despite her considerable visual impairment. She expressed particular concern
{¶21} Ms. Marshall also discussed the parents failure to make all of the scheduled visits, testifying that between August 2011 and February 2012, Ms. Fye had attended 14 of 20 possible visits, and Mr. Sanders had attended 16. She also expressed concern because Ms. Fye and Mr. Sanders missed the two most recent individual family service plan meetings, where the future goals for the children were to be discussed. Finally, she pointed out the fact that the family had never progressed to unsupervised visitations, which was concerning to her.
Marlena Adamic - Safe Family Access Program Supervisor/Coordinator
{¶22} Marlena Adamic, supervisor and coordinator of the Safe Family Access Program at Crossroads, also testified regarding the parents failure to attend all of the available visits, despite their consistent unemployment or underemployment. She stated that between early April 2011 and mid-August 2011, of 36 possible visitation dates, Ms. Fye attended 27 and Mr. Sanders attended 25.
John Kinsel - Professional Clinical Counsel/Child Development Expert
{¶23} John Kinsel, a professional clinical counselor and expert in child development, was asked to do an attachment assessment of K.S. and A.S. in early
Lisa Haffa - Foster Mother
{¶24} Lisa Haffa, the foster mother to both A.S. and K.S., testified that she has cared for the girls for over two years, meeting all of their basic needs. She consistently attends all of A.S.s therapeutic sessions, and provides for both girls substantial medical needs. She stated that should permanent custody be granted to LCDJFS, she intends to adopt both girls.
LaShawn Tindall - Social Worker
{¶25} LaShawn Tindall, a social worker with the Cuyahoga County Department of Children and Family Services (CCDCFS), testified regarding the parents third child,
LCDJFS Social Workers
{¶26} Two social workers from LCDJFS, Jaime Higgenbotham and Joy Biggs, testified regarding the ongoing parenting support that had been provided to Ms. Fye and Mr. Sanders. They described how the parents had participated in a number of parenting classes over the last two years, and, yet, the service providers still felt that additional parenting support was needed. Ms. Biggs specifically noted that the Sanders/Fye family had received more services than most similarly situated families, but their progress had been slower. She observed most of the supervised visits between the parents and A.S. and K.S., and expressed substantial concern related to the parents conduct during those visits.
The Parents
{¶27} Mr. Sanders and Ms. Fye both testified. They acknowledged that they were currently pursuing reunification as a couple, but had broken up at times throughout the past two years and had lived apart for some of that time as well. Both expressed feeling bonded to their daughters, and a wish to reunify the family, but they also acknowledged their failure to make all of the scheduled visits and therapy appointments. Mr. Sanders did acknowledge that he allows Ms. Fye to dominate during visitations, and that he had not seriously considered whether staying together as a couple was in the best interest of K.S. and A.S.
Christopher Boeman - Guardian Ad Litem
{¶29} He expressed particular concern about Ms. Fyes trustworthiness; he described an incident in which she prevailed upon the trial court to order weekend visitation to accommodate what she stated was a 9 to 5 job during the work week. However, she did not hold this position for long, and then did not tell LCDJFS that her circumstances had changed. The agency had gone to great efforts and expense to accommodate the weekend visitation schedule. Further, Mr. Sanders and Ms. Fye failed to disclose the third pregnancy, which was of concern.
The Trial Courts Decision
{¶30} The trial court issued a 13-page decision, which carefully outlined the evidence presented and analyzed the required factors under
{¶31} In its opinion, the trial court stated that it found in consideration of the testimony presented, the arguments of counsel, and the recommendation of the Guardian Ad Litem, that reasonable efforts have been made to avoid the continued
{¶32} Mr. Sanders filed a timely notice of appeal, and now brings the following assignments of error:
{¶33} [1.] The trial court erred, and abused its discretion, when it granted permanent custody to the Department pursuant to
{¶34} [2.] The trial courts finding regarding the interaction and interrelationship between the girls and parents pursuant to
{¶35} [3.] The trial courts findings regarding the girls need for a legally secured placement pursuant to
{¶36} [4.] The trial court abused its discretion by granting permanent custody to the Department under the authority of
{¶37} Because assignment of error one encompasses assignments of error two and three, we will analyze them together.
{¶38} In his first three assignments of error, Mr. Sanders challenges the trial courts findings generally, and under
Standard of Review
{¶39} This court stated in In re N.T., 11th Dist. No. 2010-A-0053, 2011-Ohio-650:
{¶40}
{¶41} (a) The child is not abandoned or orphaned, has not 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 the child cannot be placed with either of the childs parents within a reasonable time or should not be placed with the childs parents.
{¶42} (b) The child is abandoned.
{¶44} (d) 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 * * *.
{¶45} This two-prong analysis required by
{¶46} * * *
{¶47} * * *
{¶48} Assuming the juvenile court ascertains that one of the four circumstances listed in
{¶49} The juvenile court may terminate the rights of a natural parent and grant permanent custody of the child to the moving party only if it determines, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody to the agency that filed the motion, and that one of the four circumstances delineated in
{¶50} Clear and convincing evidence is more than a mere preponderance of the evidence; it is evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. Krems at ¶36, citing In re Holcomb (1985), 18 Ohio St.3d 361, 368 * * *.
{¶51} An appellate court will not reverse a juvenile courts termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence. Krems at ¶36, citing In re Jacobs (Aug. 25, 2000), 11th Dist. No. 99-G-2231, 2000 Ohio App. LEXIS 3859, *8. (Parallel citation omitted.) Id. at ¶51-62.
The Trial Courts Determination is Supported by Clear and Convincing Evidence
{¶52} Mr. Sanders attacks the manifest weight of the trial courts determination to grant permanent custody of his daughters to LCDJFS. He does so by challenging the trial courts findings of fact and conclusions of law under two specific best interest
First Prong - Triggering Circumstances
{¶53} It is undisputed that the first prong of the analysis has been established: at the time LCDJFS filed for permanent custody of K.S. and A.S., the girls had been in the custody of the agency for at least 12 out of the previous 22 months. In fact, K.S. and A.S. have been in the custody of LCDJFS since March 5, 2010; that constitutes over 22 months of consecutive custody by the agency at the time the motion for permanent custody was filed on January 31, 2012.
Second Prong - Best Interests of the Children
{¶54} After establishing that prong one of the permanent custody analysis had been met, the trial court then engaged in a thoughtful review of the
{¶55} A review of the record reveals the following important factors in considering whether a permanent grant of custody was clearly and convincingly in the best interest of K.S. and A.S.: (1) both parents had failed to secure and maintain reliable transportation; (2) both parents had failed to secure and maintain stable housing; (3) both parents had failed to secure and maintain stable employment; (4) the relationship between mother and father was unstable, and they continued to struggle around coordination, communication, and cooperation, despite pursuing reunification as a couple; (5) both parents missed a notable number of doctors appointments, therapy sessions, and scheduled visitations, despite the fact that neither was employed on a
{¶56} Mr. Sanders argues that LCDJFS did not make diligent efforts to assist him and Ms. Fye to remedy the problems that initially caused the girls to be placed outside the home and to achieve reunification. However, it is clear from the record that LCDJFS made substantial efforts to assist them in their efforts. Ms. Biggs, in particular, testified that the agency had provided services to the parents in excess of those provided to similarly situated families. Despite these additional services, Ms. Fye and Mr. Sanders made less progress than other families towards the goal of reunification.
{¶57} It is not lost on this court that Mr. Sanders, in particular, has made some demonstrable improvements over the course of the last two years, and has shown great efforts at times to work the case plan. We are also not blind to the fact that K.S. and A.S. have a recognizable bond with their parents, and Mr. Sanders in particular.
{¶58} Clear and convincing evidence exists in the record to support the trial courts findings under every prong of the
{¶59} In addition to a more general attack on the manifest weight of the trial courts determination, Mr. Sanders specifically challenges the trial courts findings and analysis under two of the four
R.C. 2151.414(D)(1)(a) – Interaction and Interrelationship of the Girls with their Parents
{¶60} Under
{¶61} The trial court examined each of the
{¶62} The trial court did, in fact, discuss the various sources of evidence relating to the interrelationship and interaction of the Fye/Sanders family, including, but not limited to: (1) Mr. Kinsels attachment assessment in which Mr. Sanders relationship, in particular, was commended for having achieved adapted status; (2) Ms. St. Dennis observations of Mr. Sanders and A.S., in which she described the sweet, affectionate and appropriately playful bond between them; and (3) Ms. Scotts observations that Mr. Sanders has demonstrated particular improvement in reading the cues of his daughters, responding appropriately, and connecting with the girls in a meaningful way.
{¶63} This evidence of positive interactions and interrelationships, however, was clearly overshadowed by the concerns expressed by all of LCDJFSs witnesses, particularly Donna Scott, Christie Marshall, Sharon Bown, Jamie Higgenbotham, and Joy Biggs, relating to the generally strained relationships between the girls and the parents. Further, the trial court specifically noted that Ms. Fye had not achieved the same positive attachment with her daughters that Mr. Sanders had, and that Ms. Fye was unfortunately domineering within the household, limiting Mr. Sanders positive
{¶64} Ultimately, the trial court found that the parents have limited supervised relationship with the girls. The parents have been given every opportunity to develop a relationship with these girls. If they had worked the case plan the children would have been returned. This conclusion is more than supported by clear and convincing evidence, which the trial court diligently reviewed throughout the first 11 pages of its judgment entry.
R.C. 2151.414(D)(1)(d) – The Girls Need for a Legally Secure Permanent Placement
{¶65}
{¶66} In support of its ultimate conclusion that Ms. Fye and Mr. Sanders were not able to provide legally secure permanent placement for K.S. and A.S. within any reasonable or foreseeable amount of time, the trial court made substantial findings of
{¶67} The Department has investigated relative placement to no avail.
{¶68} Although not directly preceding its determination, pursuant to
{¶69} Substantial evidence exists in the record to support the trial courts grant of permanent custody to LCDJFS. A review of the record reveals no abuse of the
Grant of Custody Pursuant to R.C. 2151.414(B)(2)
{¶70} In his fourth assignment of error, Mr. Sanders challenges the trial courts grant of permanent custody to LCDFJS pursuant to
{¶71} We note, initially, that the trial court made a grant of permanent custody to LCDJFS under both
{¶72} Pursuant to
{¶73}
{¶74} We need only to look so far as subsection E(1) to find the subsection under which the trial court clearly made its
{¶75} While the trial court did not specifically identify this subsection as the subsection under which it had found that a grant of custody was justified pursuant to
{¶76} It is clear from the record that, although Ms. Fye and Mr. Sanders have been provided with various and meaningful support services in an effort to achieve reunification, they have not changed their conduct substantially enough to allow them to resume and maintain parental duties.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.