In re B.B.
In the Matter of: B.B. et al., [B.B. et al., Appellants].
In the Matter of: B.B. et al., [H.B., Appellant].
DECISION
Rendered on July 6, 2021
On brief: John T. Ryerson, for appellant J.B.
On brief: David K. Greer, for appellants B.B. et al.
On brief: William T. Cramer, for appellant H.B.
On brief: Robert J. McClaren, for appellee Franklin County Children Services.
On brief: David L. Rowland, Guardian ad Litem.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
{¶ 1} Appellants, H.B. (“Mother“), J.B. (“Father“), and their seven biological children (collectively “the children“), appeal a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, that granted appellee, Franklin County Children Services (“FCCS“), permanent custody of the children for purposes of adoption. For the following reasons, we affirm that judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The relevant background events of this case were documented previously by this court in In re M.B., 10th Dist. No. 19AP-460, 2020-Ohio-550:
On April 20, 2016, appellee, Franklin County Children Services (“FCCS“), filed two complaints with the trial court alleging the children were dependent. One complaint concerned the older four siblings (B.B., T.B., A.B., and C.B.), and other complaint concerned the three younger siblings (M.B., J.W.B., and D.B.). The complaints alleged that the school-aged children were often absent from school, the family was struggling to maintain housing, and Father had tested positive for illegal drugs.
At a preliminary hearing held on April 27, 2016, a magistrate initially granted FCCS temporary orders of custody for the children. In judgments effective June 14, 2016, the trial court adjudicated the children dependent children, and it committed the children to FCCS’ temporary custody pursuant to
R.C. 2151.353(A)(2) . In judgments effеctive April 27, 2017, the trial court granted FCCS’ motions to extend the agency‘s temporary custody of the children for an additional six months.FCCS moved for permanent custody of the children on September 19, 2017. In judgments dated April 1, 2019, the trial court denied the agency‘s motions.
Having rejected granting FCCS permanent custody, the trial court immediately turned its attention to exploring whether it was in the children‘s best interests to return the children to Mother‘s custody. In the judgments denying the motion for permanent custody, the trial court set a hearing for May 6, 2019 to “review [the] orders as to custody, and [ ] consider protective supervision, Father‘s visitation rights, and Father‘s obligation to pay child support to Mother.” (Apr. 1, 2019 Jgmt. Entries Den. Permanent Custody at 16.) The trial court ordered Mother to:
make arrangements to resume a parenting program, make arrangements for family counseling between the Children and herself, and * * * be prepared to present evidence of an executed lease for and the furnishing of housing for the Children and herself and a budget based on a realistic estimation of the expenses of her family and available financial resources. Id. In the meantime, the trial court provided that FCCS would “retain temporary custody * * * of the Children herein until further order of the Court.” Id.
The May 6, 2019 hearing occurred as scheduled. Apparently, the trial court was unsatisfiеd with Mother‘s compliance with its April 1, 2019 orders because it did not alter the existing custody arrangement after the hearing. Instead, in the May 6, 2019 orders that resulted from the hearing, the trial court imposed even more requirements on Mother: she was to perform drug screens; bar overnight visitors, Father, Father‘s brother, and her sister-in-law from her home; and bring a budget and detailed childcare plan to the next hearing.
On May 30, 2019, FCCS again moved for permanent custody of the children. FCCS represented in its motions that Mother had not complied with the trial court‘s April 1, 2019 and May 6, 2019 orders. Both Father and the children filed memoranda in opposition to the second motion for permanent custody.
Id. at ¶ 2-7.
{¶ 3} Before resolution of the merits of FCCS’ second motion for permanent custody, on June 14, 2019, Mother filed in both cases a “Reply to Post-Permanent Custody Denial Motions and Memorandums,” which questioned whether the trial court had the jurisdiction necessary to extend FCCS’ temporary custody of the children. The trial court denied that motion, and Mother, Father, and the children appealed. This court granted FCCS’ motion to dismiss the appeals for lack of a final, appealable order and noted the second permanent custody hearing was slated for later that month (February 2020). In re M.B. at ¶ 16-17. The parents and the children filed a motion to certify a conflict betweеn our decision and a case from another appellate district, In re D.J., 8th Dist. No. 107203, 2019-Ohio-1645.
{¶ 4} The conflict motion was not resolved, however, because on February 25, 2020, FCCS filed a new complaint in the trial court asserting the children are dependent
{¶ 5} The complaint discusses FCCS’ previous motion for permanent custody and the trial court‘s April 2019 denial of that motion and retention of temporary custody of the children with associated new orders. The ordеrs cited in the complaint include those requiring Mother “to resume a parenting program, make arrangements for family counseling between the children and herself, and be prepared to present evidence of an executed lease and the furnishing of housing for the children and herself, and to present a realistic budget“; and additional orders on May 6, 2019 requiring “mother and father to comply with an instant drug screen, maintain[] all previous orders from the April 1, 2019 Judgment Entry, maintain[] all case plan orders, and * * * Mother to resume parenting and arrange family counseling[,] * * * bring a detailed childcare plan and budget to the next hearing[,] * * * [and] complete urine screens three times per week.” (Compl. at 2.)
{¶ 6} The complaint states the Father, Father‘s brother, and sister-in-law were ordered to not to be in the home, and on May 24, 2019, during an unannounced home visit, the caseworker observed the sister-in-law in the home and “also observed [Father‘s] shoes and belongings in the home” and notes that the caseworker “has not been permitted in the home since May 24, 2019.” (Compl. at 2.) The complaint states that Mother‘s address is listed for Father in each of the cases and “[i]t is believed parents are still residing together.” (Compl. at 2.)
{¶ 7} Regarding drug abuse, the complaint states although Mother did not have a current prescription for buprenorphine (suboxone), “[o]n May 30, 2019 mother tested positive for buprenorphine“; “[o]n May 31, 2019, mother tested positive for buprenorphine
{¶ 8} The complaint concluded that, in accordance with
{¶ 9} After the new complaint was filed, the trial court issued a temporary order of custody of the children under a new case number (20JU-2288) pending an adjudication hearing. (Mar. 3, 2020 Order at 1.) The order allowed Mother and Father supervised visits with the children and ordered both Mother and Father to complete mental health assessments, alcohol/drug assessments, and random drug screens. Father was ordered to resolve his outstanding warrants.
{¶ 10} A few days later, on March 9, 2020, the trial court dismissed the 2016 dependency complaints “at complainant‘s request.” (Mar. 9, 2020 Entries of Dismissal at 1.) The entry of dismissal remarks: “orders issued under 20 JU 2288.” (Mar. 9, 2020 Entries of Dismissal at 1.)
{¶ 11} On July 20, 2020, the children filed a motion in limine requesting that evidence from the 2016 dependency cases, “including case plans, orders and judgment entries on those case numbers, and alleged lack of compliance in those cases, be excluded from consideration in the adjudication of [the newly filed 2020] case.” (July 20, 2020 Mot. in Limine at 1.) The children believed that “the decision by FCCS to file a new complaint,
{¶ 12} An adjudication hearing on the children‘s dependency was then held in late July 2020. Mother and Father, who were present and represented by counsel, testified. Additional testimony was provided by the caseworker and the guardian ad litem (“GAL“). During the hearing, Father, Mother, and the children objected to the use of evidence from the dismissed cases to adjudicate the children dependent; the trial court overruled the objections, finding such evidence of the children‘s custodial history to be relevant to the present dependency action. On August 10, 2020, the trial court overruled the children‘s motion for limine and adjudicated them to be dependent pursuant to
{¶ 13} At the dispositional hearing, Mother and Father were again present and represented by counsel. Mother, the caseworker, and the GAL testified; Father did not testify. The trial court judge also conducted an in-camera interview of six of the seven children as to their wishes on custody; one of the children did not wish to be interviewed. The children at the time of the hearing ranged from six years old to sixteen years old.
{¶ 14} Following the dispositional hearing, the trial court issued on October 13, 2020 a decision and judgment granting permanent custody of the children to FCCS for purposes of adoption. In doing so, the trial court first incorporated the findings of fact issued for the adjudicatory hearing and noted it had ruled at the adjudicatory hearing that the parents’ compliance or noncompliance with the case plans and other orders of the now dismissed cases, as well as orders issued under the instant case number, were all relevant to the issue before the court at the disposition hearing: “Should the Court grant the Agency permanent custody or an alternative disposition allowed by
{¶ 15} In answering that question, the trial court first determined, in accordance with
{¶ 16} The trial court then determined, in accordance with
{¶ 17} Mother, Father, and the children filed timely appeals. Those appeals were consolidated for review.
II. ASSIGNMENTS OF ERROR
{¶ 18} Mother submits two assignments of error:
[1.] The evidence and filings from the prior case numbers, and the current motion for permanent custody, were all barred by res judicata.
[2.] The juvenile court‘s judgment terminating parental rights and granting permanent custody to the agency is not supported by clear and convincing evidence.
{¶ 19} Father submits four assignments of error:
- The Court below erred in admitting evidence from two previous cases that were actually litigated and decided that held that the FCCS’ motion for permanent custody should be overruled and denied.
- The Court below erred in finding that the children, although arguably Dependent, could not be returned to Mother‘s custody within a reasonable amount of time.
- The Court erred in failing to consider adopting a reunification case plan, and giving the parents the usual one year period to comply with the requirements of the reunification case plan.
- The Court below erred in specifically failing to consider other available dispositional alternatives, and failing to make a separate finding of fact concerning why they were not considered, even though on the record the Court said it would do so.
{¶ 20} The children submit three assignments of error:
[1.] The trial court erred in allowing the agency to relitigate facts from the former dependency cases, which had been dismissed with prejudice.
[2.] The trial court erred in relitigating the disposition of permanent custody.
[3.] Permanent custody was not proven by clear and convincing evidence because the trial court had less drastic dispositional options available.
III. STANDARD OF REVIEW
{¶ 21} “A trial court‘s determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence.” In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 13, citing In re Andy-Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312. In a permanent custody case, the court of appeals “will not overturn a permanent custody order when it is supported by competent, credible evidence.” (Citations omitted.) In re C.W., 10th Dist. No. 19AP-309, 2020-Ohio-1248, ¶ 51. The
IV. ANALYSIS
{¶ 22} A parent has a “fundamental liberty interest * * * in the care, custody, and management of [his or her] child.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). The Supreme Court of Ohio has noted “[p]ermanent termination of parental rights has been described as ‘the family law equivalent of the death penalty in a criminal case.’ * * * [P]arents ‘must be afforded every procedural and substantive protection the law allows.’ ” In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991). “However, the parent‘s rights are not absolute.” In re Shifflet, 4th Dist. No. 06CA13, 2006-Ohio-3576, ¶ 20. “[I]t is plain that the natural rights оf a parent * * * are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.” (Internal quotation omitted.) In re Cunningham, 59 Ohio St.2d 100, 106 (1979). “Parental interests must be subordinated to the child‘s interest in determining an appropriate disposition of any petition to terminate parental rights.” Id. “Consequently, the state may terminate parental rights when the child‘s best interest demands such action.” In re Shifflet at ¶ 20.
{¶ 23} “In Ohio, there are two methods by which a child may be committed to the permanent custody of a public children services agency.” In re Swisher, 10th Dist. No. 02AP-1408, 2003-Ohio-5446, ¶ 27, citing In re Ament, 142 Ohio App.3d 302 (12th Dist.2001). “Under one method, an agency may first obtain temporary custody of the child and then file a motion seeking permanent custody pursuant to
{¶ 25} In considering a complaint requesting permanent custody pursuant to
{¶ 26} Furthermore,
{¶ 27} Here, the appellants’ assignments of error can be distilled into four main issues: (1) whether evidence and orders from the dismissed 2016 cases could be used to support FCCS’ 2020 complaint for dependency and permanent custody; (2) whethеr the
A. Evidence and Orders From Dismissed 2016 Cases
{¶ 28} The children argue the trial court erred in allowing the agency to relitigate facts from the former dependency cases, which the children assert was dismissed with prejudice, and erred in allowing the disposition of permanent custody to be relitigated considering that issue was adjudicated in the prior cases. Specifically, the children believe because the entries of dismissal did not specify whether the dismissals were with or without prejudice, and the trial court had denied previously FCCS permanent custody of the children, the 2016 cases were dismissed with prejudice pursuant to
{¶ 29} Mother joins in the children‘s arguments, specifying that where a prior dependency case is dismissed “with prejudice” after the court denied permanent custody, FCCS cannot refile the same complaint and relitigate permanent custody on the same facts. (Mother‘s Brief at 34.) Similarly, Father argues res judicata barred the trial court from utilizing evidence from the 2016 cases to “partially justify” its dispositional entry granting permanent custody. (Father‘s Brief at 12.) He believes that since this case is a “separate, brand new filing,” it was legally incorrect and fundamentally unfair to the parents to “bootstrap” previous evidence from 2016 through 2018 to justify the award of permanent custody to FCCS. (Father‘s Brief at 14; Father‘s Reply Brief at 7.)
{¶ 30} FCCS counters that the prior cases were dismissed without prejudice and notes that the trial court in the dismissal entries expressly incorporated orders from the 2016 cases into the new case number. FCCS additionally contends that even if those cases were dismissed with prejudice, it would have no legal effect since the case was tried based
{¶ 31} We agree with FCCS’ position. Generally, res judicata dоes not “bar[] the trial court from awarding permanent custody of [children at issue]” even where the trial court previously denied the agency permanent custody of the children. In re Ament, 142 Ohio App.3d at 310. While appellants argue the instant adjudication and disposition is different since those determinations were, in their view, wholly based on evidence previously litigated in their favor under the 2016 case numbers, this premise is not supported by the record. Both the hearing on the adjudication and the disposition did include “current events” as of the respective hearing dates. (See Children‘s Brief at 15.) At those hearings, testimony was provided on the current stability of housing, compliance with the March 3, 2020 court order relating to drugs screens, mental and alcohol and drug assessments and recommended treatments, and Father‘s progress on resolving his warrants, for example. The appellants agree that current events serve as a proper basis for a permanent custody determination.
{¶ 32} Furthermore, the trial court‘s consideration of these current events within the greater context of the children‘s custodial history, which spanned over four years and multiple case numbers, was not barred by res judicata or otherwise in error. Res judicata “operates to bar litigation of all claims which were or might have been litigated in a first lawsuit.” (Internal quotations omitted.) Kelm v. Kelm, 92 Ohio St.3d 223, 227 (2001). As pointed out by the children, res judicata is not entirely inapplicable in the context of the juvenile law. See, e.g., In re A.R., 10th Dist. No. 16AP-482, 2017-Ohio-1575 (finding res judicata barred the state‘s second motion to relinquish jurisdiction over defendant juvenile and bind him over to the common pleas court under
{¶ 34} This court has adopted this position. ” ‘[N]othing prohibits a court from basing a permanent custody decision upon a parent‘s past history with a children services agency. In fact, courts have recognized that a parent‘s past history is one of the best predicators of future behavior.’ ” In re M.W., 10th Dist. No. 19AP-769, 2020-Ohio-5199, ¶ 48, quoting In re West, 4th Dist. No. 05CA4, 2005-Ohio-2977, ¶ 28. In re M.W. expanded at length on this concept:
[A] parent‘s “past parenting history and her ability to comply with prior reunification plans regarding her other children [are] relevant considerations in the juvenile court‘s dispositional determination to commit [mother‘s current child] to the permanent custody of the Department.” In re Brown, 60 Ohio App.3d 136, 139, 573 N.E.2d 1217 (1st Dist.1989). See In re Vaughn, 4th Dist. No. ooCA692, 2000 Ohio App. LEXIS 5938 (Dec. 6, 2000) (noting that “[t]o further the interests of the children, the court must consider any evidence available to it, including a parent‘s pattern of conduct,” as “[s]ome of the most reliable evidence for the court to consider is the past history of the children and the parents“); In re J.B., 6th Dist. No. S-14-005, 2015-Ohio-460, ¶ 96 (holding that “[i]nformation about the family‘s history with children services,” including testimony about “past referrals regarding the family which were unrelated to this case,” were “relevant and admissible in a permanent custody action“); In re T.W., 10th Dist. No. 10AP-897, 2011-Ohio-903, ¶ 28 (holding that appellant‘s “failure to complete case plan objectives with respect to T.W.1, T.W.2, T.J., and N.H. [was] clearly relevant to the determination of whether appellant ha[d] remedied the problems that caused [her youngest child] C.H.‘s removal“).
{¶ 35} Moreover, the relevancy and importance of the full custodial history of the children, including parents’ compliance with case plans issued under other case numbers, is expressed statutorily and supports the overriding goal of such actions to reach a disposition that is in the children‘s “best interests.” In re Cunningham, 59 Ohio St.2d at 105-06. See
{¶ 36} Considering all the above and having assessed the particular arguments of each party, we conclude in this case: the trial court did not err in determining the current complaint for dependency and permanent custody was not barred by its prior denial of permanent custody in the dismissed 2016 cases; and the trial court did not err in admitting and basing its determinations, in part, on testimony concerning the family‘s history with FCCS, including the events and circumstances surrounding the 2016 cases, and orders from those cases.
{¶ 37} Accordingly, Mother‘s first assignment of error, Father‘s first assignment of error, and the children‘s first and second assignments of error are overruled.
R.C. 2151.414(E) and the Lack of A New Case Plan
{¶ 38} As provided in the legal framework explained above, in considering a complaint requesting the disposition of permanent custody, a juvenile court must determine, in accordance with
In determining * * * for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, * * * for the purposes of division (A)(4) of section 2151.353 of the Revised Code that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:
(1) Following the placement of the child outside the child‘s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
* * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child.
{¶ 39} Mother argues the trial court‘s findings under
{¶ 40} First, the trial court‘s finding that both parents have demonstrated a lack of commitment toward the children is supported by competent, credible evidence. Mother believes she demonstrated commitment to the children by regularly visiting and communicating with the children, maintaining a strong bond with them, and making progress on her case plans. Regarding the case plans, Mother asserts that after the children were removеd, she completed a parenting class and “worked on her drug issue” through multiple providers. (Mother‘s Brief at 43.) She notes the trial court‘s prior denial of permanent custody and her progress since that time: even with COVID-19 related challenges, such as being laid off, she has “found a way to maintain an income[,] stay in the same house,” and maintain her visits and bond with the children. (Mother‘s Brief at 43.) Father adds that Mother “substantially complied” with the prior case plans. (Father‘s Brief at 16.)
{¶ 41} Mother‘s contentions about her consistently visiting and communicating with the children and maintaining bonds with them is not in dispute. The caseworker and the GAL confirmed her account in this regard. Whether Mother completed a parenting class is questionable: she testified to completing the parenting class but did not provide a certificate or other proof of compliance to her caseworker.
{¶ 42} More importantly, however, is that Mother‘s assertions of her demonstrated commitment to the children avoid the main concerns of the trial court, namely: her actions showing an unwillingness to provide an adequate permanent home for the children. Mother has not demonstrated her ability to independently maintain stable housing or remove drug-related concerns from her home. Mother did show that, after years of living
{¶ 43} Beyond the financial concerns for Mother‘s ability to provide housing, the record shows instability and safety concerns related to the people Mother allows access to the home, including Father and her brother-in-law and sister-in-law. Record evidence overwhelmingly shows Father has an unresolved and very serious drug addiction: he admitted to being addicted to drugs since he was 15, was recommended but never completed inpatient treatment, tested positive in May 2019 for cocaine, marijuana, amphetamines, and buprenorphine, and has refused to test to support his claims he is sober, including refusing to screen at the hearings. Father suffers from seizures which may be in part due to his drug addictions and has told Mother he has tried to kill himself.
{¶ 44} The trial court found that Father lives at the home and “will continue to do so until they are evicted for nonpayment of rent” and, as such, “[t]he home is not suitable for
{¶ 45} Mother also has not effectively set boundaries with her brother-in-law and sister-in-law, who also are addicted to drugs. The sister-in-law lived with Mother at the house for three months before Mother made her leave because the caseworker saw her there, and the court order said she could not be in the home. Mother testified her brother-in-law would “come and go” from the house and would also break into her house and steal from her. (July 16, 2020 Tr. at 114; Aug 27, 2020 Tr. at 201-07.) In one instance, her in-laws broke the front door window, opened the door, and “stole everything that they could get their hands on.” (Aug. 27, 2020 Tr. at 201-02.) The caseworker testified at an unannounced August 2020 home visit, Mother and Father did not come to the door, but she observed a front bedroom window that was completely missing glass, and she smelled marijuana coming from the window. Mother later blamed her brother-in-law, who she said was frequently breaking into the home. Mother also blames her in-laws for introducing Father to “meth,” which led to at least one argument at Mother‘s house where she “basically [got] physical with the sister-in-law because they were using meth and giving it to [Father].” (Aug. 27, 2020 Tr. at 214-15.) Despite these issues, Mother was unclear about whether she ever filed charges against her in-laws and then asked her brother-in-law to assist her in
{¶ 46} Mother‘s stance on her own history of drug use also caused the caseworker concern. While Mother tested negative on a drug screen administered the day of the adjudication hearing, Mother admitted to using more Xanax than prescribed in the past (2016), using marijuana approximately one year before the hearing, being put on two suboxone programs by health practitioners, and not following the latest recommendation of her doctor to take suboxone. Despite this history, Mother does not think she currently has a drug or alcohol issue and believes she has never had a drug or alcohol issue in the past. (Aug. 27, 2020 Tr. at 183, 188, 226.) She blames FCCS for removing her kids and a parent mentor for her prior issue with Xanax. Furthermore, while recognizing she needs help with her mental health due to the “damage from losing [her] kids” (she also was diagnosed prior to having kids with “Bipolar and Manic Depression“), Mother has not been proactive in getting that help leading up to the custody hearings. (Aug. 27, 2020 Tr. at 178.) At the time of the hearing, Mother was not on medication to treat her mental health issues, last attended counseling other than with her pastor in 2018, and had a mental health assessment scheduled after the custody proceedings.
{¶ 47} Furthermore, even though Mother moved into the home in March 2019, she had not yet readied the home to accommodate seven children when the dispositional hearing arrived in August 2020. Mother testified she had removed the stacked clutter in the bedrooms the caseworker described as “hoarding” and “physical hazards,” and there are now four beds and most of the dressers available for the kids in the three bedroom home. (July 22, 2020 Tr. at 92.) The remaining beds and dressers remain in a storage unit she describes as being located across the street; Mother does not have a license and had trouble arranging help to move the additional furnishings to the house. Mother‘s description of the home could not be confirmed by the caseworker since the caseworker‘s multiple attempts to schedule a visit to the home preceding the custody hearing were unsuccessful.
{¶ 48} Overall, we cannot agree with Mother and Father that they demonstrated commitment to their children when clear and convincing record evidence of their actions showed “an unwillingness to provide an adequate permanent home for the child[ren].”
{¶ 49} In an argument relevant to the issue of the trial court‘s findings under
{¶ 50} Initially, we note that appellants do not argue that FCCS erred by using the procеdure of requesting permanent custody pursuant to
{¶ 51} Furthermore, we disagree with Father and children that the lack of a court-ordered reunification case plan under this case number requires reversal here. In the case sub judice, FCCS filed a complaint for dependency also requesting a disposition of permanent custody pursuant to
{¶ 52} Regardless, we do not find appellants were prejudiced by the lack of a formally ordered case plan under the new case number here. Contrary to Father‘s position, the testimonies of Mother and Father showed they were fully aware that, to reunite with their children, they needed to remedy the conditions that led to their removal, needed to follow the previous case plans prior to the March 9, 2020 dismissals, and understood they needed to follow other court orders, including the March 3, 2020 orders under the new case number. As previously discussed, the trial court in this case was not limited to considerations of just current case plans but appropriately considered “all relevant evidence,” including the parents’ compliance or noncompliance with the previous case plans and orders in addition to new orders issued under the instant case number.
{¶ 54} On appeal of that order, this court, in relevant part, first found that “failure by [the agency] to file a comprehensive reunification plan does not bar its action for immediate permanent commitment under
Even though a juvenile court does have the alternative immediately to grant permanent custody to an appropriate state agency upon determination that a child is abused, neglected or dependent under
R.C. 2151.353(A)(4) , permanent custody should only be granted at the initial disposition hearing under extreme situations where reunification is not possible. Specifically, a court cannot reach the determination underR.C. 2151.353(A)(4) that “the child will continue to be a child without adequate parental care if a reunification plan were prepared” where there has been no good faith effort to reunite the child with his parents or evidence that such an effort to reunite would be futile.
Id. Therefore, this court reversed the trial court order and, in doing so, emphasized the fact that the visitations set up by the agency demonstrated a lack of good faith and that the agency social worker admitted the agency had never made a serious attempt to reunite the child with her natural mother. We remanded the cause “with instructions to modify its dispositional order to provide for temporary commitment and a reasonable reunification plan.” Id. at 36.
{¶ 55} The instant case is easily distinguishable from In re Smart. We first note that In re Smart was decided under the former language of
{¶ 56} Accordingly, Father‘s second and third assignments of error are overruled. To the extent Mother‘s second assignment of error and each of the children‘s assignments of error incorporate this issue, those assignments of error are overruled.
C. Best Interest of Child
{¶ 57} A juvenile court considering an agency‘s request for permanent custody as part of its original abuse, neglect, or dependency complaint must also determine whether permanent custody is in the child‘s best interest pursuant to
- 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;
- 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;
- The custodial history of the child * * *;
- 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;
- Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 59} Mother also argues it is not in the best interest of the children to grant permanent custody to FCCS for the purposes of adoption where, “mother has maintained stable housing and demonstrated sobriety, the family unit is strongly bonded, and the children all wish to be returned to their parents.” (Mother‘s Brief at ii, 44.) Children make similar assertions in their third assignment of error.
{¶ 60} Specifically, Mother believes that under
{¶ 61} As to the wishes of the children, the trial court acknowledged the children generally wished to be returned to their parents but noted the oldest child felt that by returning home she could help her Mother care for her Father and siblings, that one of the children expressed a desire to stay in their current school district and was under the impression her parents would try to move there, and that the youngest children were not very communicative. The trial court also noted the caseworker and GAL, even while acknowledging the bonds and wishes of the children, ultimately recommended permanent custody be granted to FCCS.
{¶ 63} For the many reasons we previously detailed in relation to the trial court‘s findings under
{¶ 64} Moreover, our review of the record supports a determination under
{¶ 66} The record does not show, as Mother and children argue, that Mother has established a stable home with adequate provisions for the children, that she is financially stable, and that she has demonstrated her sobriety. Mother admits that “father may still have a drug problem” but does not argue on аppeal that Father will be kept away from the children. (Mother‘s Brief at 42.) Rather, she thinks the older children, who are aware of Father‘s drug problem, will simply be able to “watch for that.” (Mother‘s Brief at 47.) Contrary to Mother‘s assertion, the record demonstrates Father is addicted to drugs and his addiction is of a very serious nature. He admitted to being addicted to drugs since he was 15, was recommended but never completed inpatient treatment, tested positive in May 2019 for cocaine, marijuana, amphetamines, and buprenorphine, and has refused to submit to drug screens to support his claims he is sober. The trial court concluded Father lived at the home despite Mother‘s contentions otherwise. Mother admitted to allowing Father frequent access to the home, including staying there on a weekly basis. She is his caretaker. Mother testified she would never keep the children away from Father, would not rule out Father living with her in the future, and did not believe she needed to monitor the children with Father closely but, rather, she could just watch Father for signs he was using drugs and have the children report back to her on his behavior. She testified she was “never worried” about Father‘s drug use around the children or Father “being [inebriated] to the point that he couldn‘t parent.” (Aug. 27, 2020 Tr. at 236, 237.) Mother was worried about the children being alone with Father if he had a seizure.
{¶ 68} Mother and children believe there is no other real possibility of placing the children together due to the size of the group and the “reluctan[ce]” of the foster parents. (Mother‘s Brief at 46.) However, “although ‘the likelihood that a child will be adopted may be considered in determining the child‘s best interest,’ the statutory provisions ‘governing permanent custody simply do not require an agency to prove that adoption is likely.’ ” In re K.R., 2019-Ohio-2192, at ¶ 91, quoting In re V.B.-S., 10th Dist. No. 13AP-478, 2013-Ohio-5448, ¶ 51. In this case, adoption by the foster family is still possible, and it‘s undisputed the children are doing well in the foster home and in their new school district, where some of the children take advantage of extracurricular activities. The caseworker testified the children love school and are bonded to the foster parents, and the foster parents love the children, want to be able to keep them together, and were still considering adopting the children. Furthermore, the caseworker testified that should adoption by the current foster
{¶ 69} The “overriding concern” in any child custody case is to reach a disposition that is in the child‘s best interests. In re Hitchcock, 120 Ohio App.3d 88, 102 (8th Dist.1996). In this case, while the children are bonded with the parents and they desire to return to their parents’ custody, the children need a legally secure permanent placement, and this record clearly shows that such a placement cannot be achieved without a grant of permanent custody to FCCS. After our review of the case at bar, we believe that ample competent and credible evidence supports the trial court‘s decision that it is in the best interest of the children pursuant to
{¶ 70} Accordingly, Mother‘s second assignment of error and the children‘s third assignment of error are overruled to the extent they challenge the trial court‘s best interest of the child determination.
D. Whether the Trial Court Was Obliged to Consider and Make Findings of Fact on Options Other Than Granting Permanent Custody to FCCS
{¶ 71} The children contend since FCCS filed a new complaint, the trial court had every dispositional option open under
{¶ 72} First, contrary to appellants’ position, the triаl court did expressly consider alternative dispositions: the trial court in its decision framed the issue before it as “to wit: Should the Court grant the Agency permanent custody or an alternative disposition allowed by
{¶ 73} Second, Father‘s argument that the trial court failed to make promised, specific findings is both against the record and unsupported by law. Father appears to argue reversible error occurred because the trial court went back on what Father frames as a promise to “make a finding of fact concerning the available dispositional alternatives available * * * and explain why he had not chosen” an alternative disposition. (Father‘s Brief at 20.) Our review of the record cited by Father shows the trial court did not make that promise. Instead, the trial court promised to “consider” two alternative dispositions offered by the children (temporary custody to FCCS or custody to Mother with supervision) and to render a legal conclusion in its decision “[i]f the Court feels legally constrained in doing a TCC to the Agency” and/or “[i]f the Court feels that it does not have the jurisdictional or legal authority to do a TCC to the Agency on this new filing.” (Aug 27, 2020 Tr. at 279, 282.) There is no indication the trial court felt legally (or jurisdictionally) constrained from ordering a TCC; rather, the trial court found a permanent court commitment was warrаnted in this case.
{¶ 74} Moreover, Father does not cite any legal authority requiring the trial court to make findings or “explain why” alternative dispositions available under
{¶ 75} Lastly,
{¶ 76} In this case, the trial court exercised its discretion in finding it is in the children‘s best interest to award permanent custody to FCCS for purposes of adoption in accordance with
{¶ 77} Accordingly, we overrule Father‘s fourth assignment of error and the children‘s third assignment of error. Mother‘s second assignment of error is overruled to the extent it incorporates this issue. (See Mother‘s Brief at 46.)
V. CONCLUSION
{¶ 78} Having addressed and overruled Mother‘s two assignments of error, Father‘s four assignments of error, and the children‘s three assignments of error, we affirm the
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.