IN THE MATTER OF: B.L., et al.
CASE NOS. CA2017-09-147 CA2017-09-148
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
2/12/2018
[Cite as In re B.L., 2018-Ohio-547.]
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2014-0268
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Adolfo Olivas, 10 Journal Square, Suite 300, Hamilton, Ohio 45011, guardian ad litem
Dawn S. Garrett, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, for appellant
{¶ 1} Father, the biological father of B.L.1 and B.L.2, appeals the decisions of the Butler County Common Pleas Court,
{¶ 2} On July 14, 2014, the Butler County Department of Job and Family Services (“JFS” or “the agency“) filed a complaint alleging that B.L.1, age one, and B.L.2, age six months, were neglected, abused, and dependent children. The complaint alleged that the children‘s parents had a history with JFS dating back to 2007 with concerns of physical abuse and neglect. The complaint alleged that B.L.1 was observed lying in a crib with feces. B.L.2 was in a “bouncy seat” or car seat and could barely move. There was no food in the home other than a few canned goods. Both parents admitted to abusing drugs and Mother appeared to be under the influence at the time police removed the children.1
{¶ 3} The complaint requested that the court grant temporary custody of the children to JFS. The court held an emergency ex parte hearing on the same day and granted JFS temporary custody. JFS placed the children in foster care.
{¶ 4} JFS created a case plan for reunification. The case plan required Mother and Father to refrain from substance abuse, submit to random drug tests, and seek treatment for substance abuse. Mother and Father were also required to obtain and maintain stable housing and complete a parenting program.
{¶ 5} In August 2014, following JFS’ request, the court transferred temporary custody of the children to their maternal aunt. In September 2014, the court adjudicated the children neglected, abused, and dependent. In April 2014, after the maternal aunt informed the agency she could no longer care for the children, the court placed the children back in the agency‘s temporary custody. JFS placed the children in foster care.
{¶ 6} The parents made some progress towards reunification. Father made some of this progress while in jail, as he was incarcerated from the time of removal through January 2015. After his release from jail, Father did not test positive for illegal narcotics and established stable housing for nine months. Eventually, the agency began to liberate the parents’ visits with their children, going so far as to allow overnight unsupervised visitation and weekend visits. However, by the summer of 2016, Mother and Father relapsed. Neither parent appeared for a July 2016 hearing. After the relapse, both parents minimally participated in recommended substance abuse treatment and then ceased communication with the agency. The agency then moved to restrict visitations to supervised visits only.
{¶ 7} In October 2016, the court held a review hearing wherein it found that neither parent was participating in case plan services and both were avoiding drug screens. JFS then moved for permanent custody. In November 2016, the agency removed Mother from the case plan for failure to participate in case plan services and communicate with the agency for several months.
{¶ 8} In April 2017, Father filed a “brief on interstate placement of children when interstate home study is denied as applied to custody proceedings” (“brief on ICPC“). In the brief, Father stated that shortly after the children‘s removal in 2014, JFS requested that a Texas children services agency conduct an interstate home study
{¶ 9} Sometime after the agency filed the permanent custody motion, Father‘s brief alleged that he and Mother requested the agency place the children with the grandmother in lieu of permanent custody. The agency then requested a second home study.2
{¶ 10} The Texas agency did not approve the second home study. Of primary concern, the Texas agency indicated that the grandmother did not believe that the children should have been removed from Mother and Father. Grandmother also exhibited poor decision-making skills. Several relatives expressed concern to the Texas agency concerning the grandmother‘s suitability. Overall, the agency was concerned that the grandmother demonstrated an inability to provide the children with a structured environment and to protect the children.
{¶ 11} Father argued that the second home study significantly conflicted with the findings of the first home study and he therefore wished to challenge the second home study. The ICPC required Father to appeal the Texas home study decision through available appellate remedies in Texas. However, Texas did not allow appeal of failed home studies. Accordingly, Father argued that his inability to appeal the Texas agency‘s decision amounted to an unconstitutional denial of his due process rights. Father requested that the court permit him to present evidence as to why the grandmother was an appropriate legal custodian.
{¶ 12} The court held a hearing and denied the brief on ICPC on the basis that Ohio was an inappropriate forum to challenge a Texas policy or law. The court also indicated it would not hear any evidence on placement with the grandmother. Father did not proffer any evidence.
{¶ 13} In May 2017, the juvenile court held the hearing on permanent custody. The court heard testimony from the JFS caseworker assigned to the case and from Father. Mother did not appear for the hearing or otherwise defend against the permanent custody motion.3
{¶ 14} At the hearing, the caseworker testified that she was assigned to the case in November 2014. Initially, Mother and Father made progress on their case plan for reunification. Both completed a program on “living skills” and initially maintained stable housing and employment. Father also completed an out-patient drug treatment program. However, following Mother‘s and Father‘s drug relapse in or around the summer of 2016, Father stopped participating in case services and only had sporadic communication with the caseworker, including gaps of months between communication. At the time of the permanent custody hearing, Father did not have stable housing and was living with a friend. Father exercised visitation and the visits went well, although the caseworker did not observe a bond between Father and the children.
{¶ 15} Father testified that he was in jail from the time of the children‘s removal in July 2014 through January 2015. Father was also incarcerated in February 2017 for
{¶ 16} Father admitted testing positive for marijuana in February 2016. Father admitted testing positive for oxycodone in June 2016 although he claimed he had a prescription for the drug. Father said he last used drugs in February 2017 and was currently seeking treatment for substance abuse and would be participating in an assessment after the hearing. Father had been speaking to someone at a counseling agency on the phone after being released from jail. Father admitted that he did not have housing but was working as a delivery driver for a subcontractor of Sears. Father conceded that he was not prepared to receive custody of his children but would be ready to do so in two to three months.
{¶ 17} After hearing the testimony and considering the exhibits that were entered into evidence, including a social summary containing the agency‘s progress notes on Father‘s participation in the case plan for reunification, the magistrate issued a decision finding that the children had been in the agency‘s temporary custody for 12 or more months of a consecutive 22-month period and that a grant of permanent custody to the agency was in the children‘s best interest. Father filed objections, which were subsequently overruled by the trial court. Father appeals, raising two assignments of error.
{¶ 18} Assignment of Error No 1.
{¶ 19} THE COURT‘S REFUSAL TO PERMIT FATHER TO SUBMIT EVIDENCE ON THE APPROPRIATENESS OF A POSSIBLE RELATIVE CUSTODIAL PLACEMENT OR CONSIDER THAT PLACEMENT AND THE COURT‘S SUBSEQUENT DECISION AND ORDER OF PERMANENT CUSTODY VIOLATED THE FATHER‘S CONSTITUTIONAL RIGHTS BECAUSE THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN ADOPTED BY OHIO AS O.R.C. [§ 5103.20] IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED IN THIS [MATTER AS] IT AFFECTS SUBSTANTIAL LIBERTY RIGHTS AND PROVIDES NO DUE PROCESS VENUE OR OPPORTUNITY FOR HEARING OR APPEAL.
{¶ 20} Father challenges the constitutionality of the ICPC, codified at
{¶ 21} The ICPC provides that when an Ohio agency requests that another state (“the receiving state“) perform a local assessment or home study for a child and the receiving state does not approve the placement, there is no right to judicial review of that determination in Ohio.
{¶ 22} Father posits that there is no right to appeal a denied home study in Texas. The state did not challenge this claim. Accordingly, this court will presume, for purposes of this opinion only, that Father, or any other interested party, lacked any ability to appeal or obtain a hearing challenging the Texas home study.5
{¶ 23} This court would be concerned if it were true that an Ohio law had effectively incorporated Texas law or policy precluding judicial review of an administrative agency‘s decision. Nonetheless, we need not address that issue today because Father‘s due process argument necessarily presumes that the juvenile court could have granted legal custody to the grandmother.
{¶ 24} Pursuant to
{¶ 25} The children‘s grandmother was never a party to the proceedings. She did not intervene and file a motion for legal custody. Father also did not move the juvenile court to appoint the grandmother legal custodian. Arguably, the juvenile court might construe Father‘s brief on ICPC as a motion to appoint grandmother custodian. Even if it did so, Father failed to attach, otherwise file, or proffer the required statement of understanding. This court has consistently held that the requirements for seeking nonparent legal custody under
{¶ 26} In this case, the grandmother‘s only connection to the case and to the court has been through out-of-state home studies. The requirement of a signed statement of understanding promotes the policy embodied throughout the child protective services statutes and regulations to expeditiously obtain permanency for a child. The statement is a confirmation that a person identified as a legal custodian is, indeed,
{¶ 27} This court is aware that we have previously indicated that a statement of understanding may not be a technical requirement in the context of a motion for legal custody brought under
{¶ 28} In sum, Father‘s due process argument with respect to the ability to appeal the adverse Texas decision, and his argument that the court erred in refusing to allow him to submit evidence of the appropriateness of placement with the grandmother fail because the juvenile court could not have granted legal custody to the grandmother in the absence of her own motion or a signed statement of understanding. This court overrules Father‘s first assignment of error.
{¶ 29} Assignment of Error No. 2:
{¶ 30} THE COURT‘S DECISION AND ORDER OF PERMANENT CUSTODY VIOLATED THE PARENTS’ CONSTITUTIONAL RIGHTS, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT‘S FINDINGS BECAUSE THE AGENCY FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE BEST INTEREST OF THE CHILDREN REQUIRES AN AWARD OF PERMANENT CUSTODY.
{¶ 31} Father challenges the juvenile court‘s decisions to award permanent custody of the children to JFS. Father argues that the evidence showed he attended visitation regularly, that he was reengaged in substance abuse treatment, that he was working, and that he would have been able to reunify with the children if allowed another two or three months to prepare.
{¶ 32} “The rights to conceive and to raise one‘s children have been deemed ‘essential,‘***.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972), quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923). “Despite the fact that we have found that parents who are suitable have a paramount right to raise and care for their children, it is equally well settled that ‘[t]he fundamental interest of parents is not absolute***.‘‘’ (Citations omitted.) In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 40. “The constitutional right to raise one‘s children does not include a right to abuse, exploit,
{¶ 33} The state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met before a natural parent‘s constitutionally protected liberty interest in the care and custody of his or her child may be terminated. In re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388 (1982). Clear and convincing evidence is that which will produce in the trier of fact a firm belief or conviction as to the facts sought to be established. Cross v. Ledford, 161 Ohio St. 469, 477 (1954). An appellate court‘s review of a juvenile court‘s decision granting permanent custody is generally limited to considering whether sufficient credible evidence exists to support the juvenile court‘s determination. In re H.D., 12th Dist. Warren No. CA2016-11-098, 2017-Ohio-1333, ¶ 14. An appellate court will not reverse a finding by the juvenile court that the evidence was clear and convincing absent sufficient conflict in the evidence. In re L.W., 12th Dist. Warren Nos. CA2017-05-066 thru CA2017-05-069, 2017-Ohio-8433, ¶ 29. “However, even if the juvenile court‘s decision is supported by sufficient evidence, ‘an appellate court may nevertheless conclude that the judgment is against the manifest weight of the evidence.‘” In re H.D. at ¶ 14, quoting In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19.
{¶ 34} In determining whether a decision is against the manifest weight of the evidence, an appellate court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. The presumption in weighing the evidence is in favor of the finder of fact, which we are especially mindful of in custody cases. In re S.M., 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 10; In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, ¶ 25. As a result, “[i]f the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.” Eastley at ¶ 21.
{¶ 35} Pursuant to
{¶ 36} With respect to the second prong of the permanent custody test, the court found that the children had been in the agency‘s temporary custody for at least 12 months of a consecutive 22-month period. Father does not challenge this finding, but instead argues against the juvenile court‘s determination that it is in the children‘s best interest to grant permanent custody to the agency.
{¶ 37}
(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 * * *;
(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.
{¶ 38} In awarding permanent custody to JFS, the juvenile court considered each of the best interest factors in light of the evidence presented at the hearing. With respect to
{¶ 39} Mother and Father then ceased participating in case plan services and stopped or reduced visiting with their children. The visits Father exercised after relapsing have gone well, and Father exhibited a loving bond with his children. However, Father had at times allowed more than 90 days to elapse since visiting with his children.
{¶ 41} As for
{¶ 42} With respect to
{¶ 43} Regarding
{¶ 44} Finally, concerning
{¶ 45} After thoroughly reviewing the record, we find that sufficient credible evidence supported the juvenile court‘s determination regarding the best interest of the children. This court does not dispute that Father loves his children. However, Father‘s decision to continue to abuse illegal narcotics and violate the law – decisions which repeatedly resulted in him serving jail time and being unable to visit his children or participate in his case plan for reunification – precluded him from establishing the stability necessary to regain custody. Early in the case Father made some progress towards bettering his life and possibly reunifying with his young children. He did not test positive for illegal narcotics throughout 2015 and was able to maintain stable housing when he was not incarcerated. Nonetheless, Father repeatedly demonstrated that he was incapable of maintaining his sobriety or staying out of jail even though custody of his children was in jeopardy. B.L.1 and B.L.2 were in foster care for over two years before the agency moved for permanent custody, thus Father had ample time to work his case plan. The children in this case need and deserve care and permanence. Fortunately, they are receiving stable care and support in their foster arrangement, with a foster family that wishes to adopt them.
{¶ 46} Accordingly, this court concludes that the juvenile court‘s findings are supported by sufficient credible evidence and are otherwise not against the manifest weight of the evidence. The juvenile court did not err in finding it was in the children‘s best interest to be placed in the permanent custody of JFS. Father‘s second assignments of error is, therefore, overruled.
{¶ 47} Judgment affirmed.
RINGLAND and M. POWELL, JJ., concur.
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