In re B.K.
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Stephen D. Long, for appellant.
Bruce D. McLaughlin, for appellee.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, B.K. (“mother“), appeals a January 27, 2010 judgment of the Lucas County Court of Common Pleas, Juvenile Division, terminating parental rights to her son, B.K, and granting permanent custody of the child to Lucas County Children Services (“L.C.C.S.“) The father of the child, J.K. (“father“), did not personally appear at trial court proceedings and has not filed an appeal. Mother and father are married. For the following reasons, we affirm.
{¶ 3} Father and mother reported to hospital staff in Toledo that mother lost custody of K.K. in Kentucky due to allegations that the child was sexually abused by mother‘s paternal grandfather. Mother, father, and K.K. resided with the paternal grandfather in Kentucky at the time of the alleged abuse. Mother and father also reported to hospital staff that they had purposely moved to Ohio from Kentucky to avoid also losing custody of the newborn, B.K., to Kentucky.1
{¶ 4} On June 26, 2007, L.C.C.S. filed a complaint in dependency regarding B.K. The trial court awarded L.C.C.S. temporary custody at a shelter care hearing on June 26, 2007. After a hearing on November 7, 2007, the trial court adjudicated B.K. to be a dependent child and awarded temporary custody of the child to L.C.C.S.
{¶ 5} On May 28, 2009, the trial court ordered a change of custody of B.K. to mother. B.K. remained in mother‘s custody for less than 24 hours when temporary custody with L.C.C.S. was restored. L.C.C.S. filed a complaint in these proceedings for dependency and seeking permanent custody of B.K. on June 25, 2009. Trial proceeded for adjudication of dependency on November 30, 2009, and disposition on November 30, 2009, December 1, 2009, and January 4, 2010. In a judgment filed on January 27, 2010,
{¶ 6} Mother asserts three assignments of error on appeal:
{¶ 7} “Assignments of Error
{¶ 8} “A. The trial court‘s adjudication of the child as ‘dependent’ by clear and convincing evidence is against the manifest weight of the evidence and not supported by the substantial weight of the evidence.
{¶ 9} “B. The trial court‘s award of permanent custody to the agency is against the manifest weight of the evidence and not supported by the substantial weight of the evidence.
{¶ 10} “C. Mother was denied due process of the law as guaranteed by the United States Constitution where the trial court granted permanent custody of her child without a showing of parental unfitness.”
{¶ 11} The allegations of the original complaint in dependency centered on the fact that mother lost custody of her older son, K.K., in Kentucky due to allegations of sexual abuse by mother‘s paternal grandfather and a claimed failure to protect the child. Both mother and father stated that they each observed mother‘s paternal grandfather masturbating while K.K. was in the bed at the time. The court finding in Kentucky was that K.K. was neglected.
{¶ 12} While a juvenile, father was convicted of delinquency by reason of gross sexual imposition. He pled to the offense. Father was age 17 at the time of the offense.
{¶ 13} L.C.C.S. provided case plan services to assist the mother and father to remedy the conditions that caused B.K. to be placed in the temporary custody of L.C.C.S. Services included casework management, referrals for diagnostic assessments, mental health services and counseling, and assistance with housing and parenting. Sex offender treatment was offered father.
{¶ 14} A significant concern of the L.C.C.S. caseworker from the beginning was the need of father for sexual offender treatment and a concern as to the relationship between mother and father when he refused. The L.C.C.S. caseworker made direct recommendations to father that he undergo sex offender treatment. Father refused. He said he did not believe he needed treatment. As the caseworker persisted, the issue became contentious between them.
{¶ 15} Ultimately, father did attend parent counseling from September 2007 until February 2008 and requested a diagnostic assessment. The diagnostic assessment was completed in March 2008. The diagnostic assessment resulted in a recommendation for father to receive sexual offender treatment. Father again refused. After the recommendation, father did not participate in any further mental health services. Specifically, he did not pursue sex offender treatment.
{¶ 17} After father refused sex offender treatment, L.C.C.S. staff consistently explained to mother the importance of protecting B.K. from sexual abuse by maintaining a lack of any contact with father. On April 30, 2008, mother filed for divorce from father.2 Ultimately mother claimed that she had discontinued any relationship with father. She told L.C.C.S. staff that her last contact with father was in February 2009.
{¶ 18} Subsequently, L.C.C.S. filed a motion to have B.K. reunified with his mother. The trial court awarded custody to mother on May 28, 2009. The order returning custody required mother to have no contact with the father. The order required L.C.C.S. to provide protective supervision of mother‘s home effective the day of the order.
{¶ 19} Telephone and email records secured by L.C.C.S. disclosed that the assertions of lack of contact with the father were false. The trial court found:
{¶ 20} “Prior to the court hearing returning custody to the mother, the L.C.C.S. staff informed the mother that records were being requested as a means of verifying no contact between the mother and father. Contrary to the mother‘s statements that she
{¶ 21} These records include an email by mother in November 2008, indicating that she planned to move with B.K. to Arizona (where father resided) once custody of B.K. was restored to her by Children Services.
Dependent Child
{¶ 22} Under Assignment of Error A, mother argues that the trial court‘s determination that B.K. is a dependent child is against the manifest weight of the evidence. Adjudication that a child is abused, neglected, or dependent must be supported by clear and convincing evidence.
{¶ 23}
{¶ 24} “(A) Who is homeless or destitute or without adequate parental care, through no fault of the child‘s parents, guardian, or custodian;
{¶ 26} “(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child‘s guardianship;
{¶ 27} “(D) To whom both of the following apply:
{¶ 28} “(1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or any other child who resides in the household is an abused, neglected, or dependent child.
{¶ 29} “(2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.”
{¶ 30} The trial court stated its findings with respect to dependency from the bench. It concluded that L.C.C.S. had proved, by clear and convincing evidence, that B.K. is a dependent child on two grounds. First, the court found that under
{¶ 31} Under Assignment of Error A, mother argues that the trial court reunified B.K. with mother at the request of L.C.C.S. on May 28, 2009, but then, approximately 24
{¶ 32} L.C.C.S. argues that the child did not become dependent in 24 hours. Within 24 hours of reunification, L.C.C.S. became aware through telephone records including emails and texts that mother never had any intention of preventing contact between B.K. and father. L.C.C.S. argues that “inability to protect the child, coupled with her pattern of deceit, very clearly put the child at risk if permitted to remain in her care.”
{¶ 33} In a civil case, “[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279 at syllabus; State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. Accordingly, we consider whether there was competent, credible evidence to support the trial court‘s determination that L.C.C.S. proved by clear and convincing evidence that B.K. is a dependent child.
{¶ 34} The unwillingness of a mother to sever ties with a father who presents a danger to their child can present an environment requiring state intervention to protect the
{¶ 35} The Supreme Court of Ohio considered in the case the mother‘s assertion of her right to remain married “to a pedophile who has not made meaningful progress in therapy” while maintaining custody of their children. In re K.H. at ¶ 54. The court held the right of a mother to remain married and her parental right to child custody are not absolute: “The state has the right to intervene when the exercise of her rights presents a safety or health hazard to her children. (Citations omitted.)” In re K.H. at ¶ 54.
{¶ 36} At the time of trial, father was age 25 or 26. He was convicted of gross sexual imposition of an 11-year-old girl when age 17. B.K. was born on June 19, 2007. L.C.C.S first took temporary custody of B.K. within days of birth. Father refused to pursue sex offender treatment despite continued and persistent requests from L.C.C.S. staff. L.C.C.S. made the requests for sex offender treatment from when it first secured custody of B.K.
{¶ 37} Father completed a sex offender treatment assessment in March 2008. It also resulted in a recommendation for sex offender treatment. The father refused treatment. He moved out of state in May 2008, without ever securing sex offender treatment.
{¶ 39} We find appellant‘s Assignment of Error A, asserting that the trial court‘s determination that B.K. is a dependent child is against the manifest weight or the substantial weight of the evidence, not well-taken.
Award of Permanent Custody
{¶ 40} Under Assignment of Error B, mother asserts that the trial court‘s award of permanent custody to L.C.C.S. is against the manifest weight of the evidence and is not supported by the substantial weight of the evidence.
{¶ 41} A parent‘s right to raise his or her children is a fundamental right. Troxel v. Granville (2000), 530 U.S. 57, 66; In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28. The interest in the care, custody, and control of one‘s children is “one of the oldest of the
{¶ 42} In order to award permanent custody to a public children‘s services agency, a court must find under
{¶ 43}
Findings under R.C. 2151.414(E)
{¶ 45} With respect to mother, the trial court found, by clear and convincing evidence, that
{¶ 46}
{¶ 47} The trial court found that L.C.C.S. had provided numerous case plan services to mother. L.C.C.S. attempted to reunify B.K. with mother in May 2009 based in part upon assurances mother was no longer involved with father, a convicted sex offender. The court also found that “when the L.C.C.S. caseworker obtained information
{¶ 48} The trial court also found that mother started attending her mental health counseling services sporadically beginning immediately before the reunification hearing. Mother was transported to Rescue Crisis for mental health treatment due to suicidal thoughts in June 2009. Although referred to Unison for mental health services, mother failed to engage in any mental health services from June 2009 until late September 2009. Mother was prescribed medication for mental health issues but failed to follow up with necessary appointments to maintain her medication. Mother was hospitalized at Flower Hospital in October 2009 due to mental health problems.
{¶ 49} With respect to housing, the trial court concluded that “mother‘s housing stability has been an ongoing concern throughout the case.” The court also found that mother has had “a chronic history of unstable housing.”
{¶ 50} At the time of attempted reunification, mother lived with her mother. That housing became unavailable after a family dispute involving a confrontation with one of mother‘s sisters. Later mother lived with an aunt. Ultimately her aunt also requested that she leave. Mother resided in a YWCA homeless shelter as of January 4, 2010, the date of the final hearing on disposition. The trial court concluded that mother‘s instability with housing “is due, in part, to her inability to live with others for long periods of time.”
{¶ 52} We find that there is competent, credible evidence in the record supporting the trial court‘s determination that
{¶ 53}
{¶ 54} The trial court detailed at length appellant‘s struggle with mental and emotional health issues in its analysis under
{¶ 55} After attempted reunification, mother received treatment in June 2009 at Rescue Services on an emergency basis. She was hospitalized at Flower Hospital in October 2009. Mother was diagnosed in October 2009 with major depressive disorder, recurrent, severe with psychotic features. The psychotic features were identified as the fact that she saw shadows and conversed with relatives who were deceased.
{¶ 57} “* * * the court finds that pursuant to
{¶ 58} We find competent, credible evidence in the record supporting the trial court‘s findings, by clear and convincing evidence under
{¶ 59}
{¶ 60} “* * * pursuant to
{¶ 61} The L.C.C.S. caseworker testified at trial as to concerns raised by the telephone, email and text records disclosing that mother had not terminated contacts with father:
{¶ 62} “There were many concerns. You know, one being ongoing contact between her and the father going so far as to forward him her work schedule in December of last year. The most concerning – there were two that were most concerning, one where she was looking for plane tickets to go to Phoenix, which is where he is, and the other one was inquiring about apartments. And she stated for her and her husband because her and her family are looking to move within the next year. So those told me, again, no intention of protecting. Still, despite a solid year and then some counseling, no progress made on the issues of protection, and that said a lot.”
{¶ 63} Jeremiah A. Hoffer, an attorney, was the guardian ad litem of B.K. He testified at trial. He recommended that permanent custody of B.K. be granted L.C.C.S. Hoffer testified:
{¶ 64} “I feel that were * * * [mother] * * * to get back with the dad, that she would be totally subservient to him and that she‘s not learned the necessary self esteem to
{¶ 65} Mother argues that continued contact with father does not present a basis to terminate parental rights. Mother argues that “any threat presented by the father of the child is obviated by his demonstrated lack of interest in the child and the sheer physical distance between himself and the child.” In response, L.C.C.S. contends that this case presents an issue of child protection where a parent is unwilling to sever a relationship with a person who “presents a danger to their child.”
{¶ 66} The Supreme Court of Ohio in the case of In re K.H. recognized that among the protections a parent must afford his or her child is protection from sexual abuse. The court considered the issue under
{¶ 67} “(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.”
{¶ 68} In that case the Ohio Supreme Court considered the father‘s lack of significant progress in the treatment of his pedophilia, the inability of the mother to protect their children from the father, and the possibility of the father reoffending. In re
{¶ 69} The Ohio Supreme Court recognized in the In re K.H. decision that the right to marry and the right to have custody of one‘s children are not absolute. “The state has the right to intervene when the exercise of * * * [a mother‘s rights] * * * presents a safety or health hazard to her children.” In re K.H. at ¶ 54.
{¶ 70} We find competent credible evidence in the record supports the trial court‘s determination by clear and convincing evidence of the existence of a risk of sexual abuse to B.K. through mother‘s continued relationship with father, an untreated sexual offender, given father‘s refusal to seek sex offender treatment, his dominance of their relationship, and mother‘s questionable ability either to recognize the risk of sex abuse to B.K. from father or to protect B.K. from it. Accordingly, whether denominated as a finding under
{¶ 71}
{¶ 72} The record establishes that father moved from Ohio in May 2008. The court found that since that time father had not visited B.K. The court found that the father failed to regularly support, visit, or communicate with B.K. when able to do so and that father failed to follow through with mental health services as recommended by mental health assessments, including a failure to pursue sex offender treatment. The court also found that father failed to maintain contact with B.K. after leaving Ohio, failed to maintain regular contact with the L.C.C.S. caseworker, and when last in contact with the caseworker showed no interest in the child.
{¶ 73}
{¶ 74} Mother has not disputed the trial court‘s findings under
Best Interest of the Child
{¶ 75} The trial court considered
{¶ 76} The trial court concluded mother loves her son, B.K, and that she has visited him regularly. The court found that “mother cannot provide a safe environment for the child” and that a permanent placement can only be achieved through an award of permanent custody to L.C.C.S. The court found that B.K. has been in foster care for over two years and is in need of permanent placement.
{¶ 77} The court also found that B.K. “bonded to his foster caregivers, interacts and relates to them well.” B.K. has been in the temporary custody of L.C.C.S., except for a 24 hour period, from the day he left the hospital after his birth.
{¶ 78} The trial court also found that father has abandoned B.K., that an adoptive home had been identified, and that the prospect of adoption is excellent. The court found that B.K. has done well in foster placement and that his needs, including special needs have been met.
{¶ 79} The court found that B.K. is too young to directly express his wishes as to placement. The guardian ad litem recommended permanent custody, concluding that it is in the child‘s best interests.
Claimed Unconstitutionality of 2151.414(B)(1)(d)
{¶ 81} Under Assignment of Error C, mother argues that she has been denied her constitutional right to due process of law, asserting that the trial court judgment was not based upon a determination that she was an unfit parent. Mother argues that the judgment was alternatively based upon a finding that B.K. had been in the temporary custody of a public children‘s services agency for more than 12 months in a 22 month consecutive period pursuant to
{¶ 82} We decline to reach this issue as it is not necessary to render judgment in this appeal. The trial court determined the award of permanent custody both under full
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
JUDGE
Mark L. Pietrykowski, J.
Thomas J. Osowik, P.J.
JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.