IN RE: B.P. (1), DEPENDENT CHILD; IN RE: B.P. (2), DEPENDENT CHILD
CASE NO. 8-15-07; CASE NO. 8-15-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
December 28, 2015
2015-Ohio-5445
Appeals from Logan County Common Pleas Court Family Court - Juvenile Division Trial Court Nos. 14-CS-0017 and 14-CS-0018 Judgments Affirmed
Alison Boggs for Appellant
Natasha R. Wagner for Appellee
{¶1} Mother-appellant, Gayleen P., appeals the July 10, 2015 judgments of the Logan County Family Court overruling her Motion for Custody of her two teenaged daughters, and granting the Motion for Legal Custody filed by Logan County Children Services (the “Agency“) designating Gayleen‘s adult daughter and son-in-law as the legal custodians of the minor children. On appeal, Gayleen claims the Agency failed to use reasonable efforts throughout the case to reunify her with the children, and she further argues that the trial court‘s judgment was not supported by the manifest weight of the evidence.
Facts and Procedural History
{¶2} On February 18, 2014, the Agency filed complaints alleging BP(1) and BP(2), twin girls born in 1998, to be dependent children as defined by
{¶3} The same day, the Agency filed a motion for temporary orders requesting the trial court designate Cristen and Chad as the children‘s temporary legal custodians and grant Gayleen parenting time. The children were appointed a guardian ad-litem (“GAL“) and the Agency submitted a case plan pending the trial court‘s review of the complaints and motion for temporary orders. The case plan provided for objectives addressing Gayleen‘s mental health issues and limiting the children‘s contact with Mr. Noble.
{¶4} The trial court conducted an evidentiary hearing on the Agency‘s motion and heard the testimony from numerous witnesses. Based on the evidence submitted, the trial court determined that there were serious concerns with respect to Gayleen‘s mental health and concluded it was in the children‘s best interest to remain in the temporary custody of Cristen and Chad. Accordingly, in its April 2, 2014 judgment entry, the trial court granted the Agency‘s motion to designate Cristen and Chad as the children‘s temporary legal custodians. Gayleen was granted parenting time as approved and arranged by the Agency. The trial court
{¶5} On April 9, 2014, the trial court held an adjudicatory hearing on the complaints filed by the Agency and heard the testimony of several witnesses. The trial court found by clear and convincing evidence the children to be dependent pursuant to
{¶6} On April 23, 2014, the GAL filed his report recommending the children remain in the temporary legal custody of Cristen and Chad. He also stated reunification should be considered delete if Gayleen took the appropriate
{¶7} On May 14, 2014, the trial court held a dispositional hearing where the testimony of several witnesses was presented. At the conclusion of the evidence, the trial court informed Gayleen that she needed to address her mental health issues before it would consider reunification. Accordingly, in its May 16, 2014 judgment entry, the trial court continued the designation of Cristen and Chad as the children‘s temporary legal custodians and awarded Gayleen parenting time as arranged by the Agency. The trial court also approved the Agency‘s case plan and the objectives addressing the concerns with Gayleen‘s mental health and plans for treatment. The trial court further found that the Agency continued to use reasonable efforts to prevent the removal and/or to return the children to their home with Gayleen. Specifically, the trial court noted the Agency had made the appropriate referrals for Gayleen and had arranged to pay the expense of her initial psychological evaluation.
{¶8} On May 27, 2014, Gayleen completed a psychological evaluation. In his forensic opinion, the reviewing psychologist found that Gayleen suffered from “significant mental health problems primarily in the form of difficulties with boundaries, relationships, and emotional regulation.” (Hrinko Rpt. June 17, 2014 at 10). He further concluded that Gayleen had “significant problems being able to
{¶9} On August 7, 2014, Gayleen filed a “Motion for Reallocation of Parental Rights and Responsibilities and to Terminate Legal Custody.”
{¶10} The trial court held an evidentiary hearing on Gayleen‘s motion where several witnesses testified. The testimony revealed that even though Gayleen appeared to have terminated her relationship with Mr. Noble, she had failed to take the steps necessary to complete the objectives in the case plan addressing her mental health. The evidence indicated that Gayleen had completed the psychological evaluation but had only sporadically attended scheduled counseling sessions. Gayleen had also expressed her resistance to completing a psychiatric evaluation based on her belief one was not warranted.
{¶12} On April 6, 2015, the Agency filed a “Motion for Order Pursuant to Sections 2151.353 and 2151.42,” requesting the trial court designate Cristen and Chad as the children‘s legal custodians. As a basis for the motion, the Agency argued Gayleen had failed to remedy the conditions causing the children‘s removal from her home—i.e., her untreated mental health issues which impaired her ability to parent the children and her continued contact with Mr. Noble.
{¶13} On May 28, 2015, Gayleen filed a second “Motion for Reallocation of Parental Rights and Responsibilities and to Terminate Legal Custody.” In her motion, Gayleen claimed that she had substantially complied with the case plan objectives but could not complete the psychiatric evaluation due to “reasons beyond her control.” (Doc. No. 104).
{¶14} On July 9, 2015, the trial court conducted a hearing on both the Agency‘s and Gayleen‘s motion for custody. Several witnesses testified, including the Agency‘s ongoing caseworker, the GAL, Cristen and Chad, and Gayleen. The trial court also conducted an in-camera interview with the children. At the conclusion of the evidence, the trial court announced its decision to award
{¶15} In its July 10, 2015 judgment entries, the trial court journalized its decision to overrule Gayleen‘s motion for custody and to grant the Agency‘s motion designating Cristen and Chad as the legal custodians of BP(1) and BP(2). The trial court further found that the Agency had made reasonable efforts towards reunification throughout the case by attempting to assist Gayleen with completing the case plan objectives. The trial court also terminated Gayleen‘s right to receive any social security death benefits distributed on the children‘s behalves.
{¶16} Gayleen filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT‘S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. APPELLEE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE COURT SHOULD GRANT ITS MOTION TO GIVE LEGAL CUSTODY OF THE MINOR CHILDREN TO APPELLANT‘S OLDER DAUGHTER AND SON-IN-LAW.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR CUSTODY WHEN IT PRIMARILY FOCUSED ON APPELLANT‘S MENTAL HEALTH AND RELIED ON THAT
AS THE BASIS FOR DEPRIVING APPELLANT CUSTODY OF HER MINOR CHILDREN.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED IN FINDING APPELLEE USED REASONABLE EFFORTS FOR REUNIFICATION THROUGHOUT THE CASE.
Discussion
First and Second Assignments of Error
{¶17} Gayleen‘s first and second assignments of error address the evidence relied upon by the trial court to overrule her motion for custody and to grant the Agency‘s motion to designate Cristen and Chad as the children‘s legal custodians. Due to the fact these assignments of error are intertwined, we elect to address them together.
Evidence Supporting the Trial Court‘s Decision
{¶18} At the outset we note that the award of legal custody is “not as drastic a remedy as permanent custody.” In re L.D., 10th Dist. No. 12AP-985, 2013-Ohio-3214, ¶ 7. See also In re N.F., 10th Dist. No. 08AP–1038, 2009-Ohio-2986, ¶ 9. This is because the award of legal custody does not divest parents of their residual parental rights, privileges, and responsibilities. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 17. Since the granting of legal custody does not divest a parent of his or her fundamental parental rights, the parent can generally petition the court for a custody modification in the future. In re L.D. at ¶ 7.
{¶20} In considering a disposition of legal custody,
{¶21} The trial court‘s decision to grant or deny a motion for legal custody is within its sound discretion and will not be reversed absent an abuse of discretion. In re M.S., 9th Dist. Summit No. 22158, 2005-Ohio-10, ¶ 11. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶22} The record establishes that there were two primary concerns underlying the initial removal of BP(1) and BP(2) from Gayleen‘s home. The first was Gayleen‘s tumultuous relationship with Mr. Noble and the second involved concerns regarding Gayleen‘s mental health. The Agency included objectives in its case plan to assist Gayleen with remedying these issues, in particular it attempted to provide Gayleen with services and support to seek counseling and treatment so she could be reunited with BP(1) and BP(2).
{¶23} With regard to her mental health, the record demonstrates that the Agency‘s primary concern stemmed from a pattern of erratic behavior and unstable temperament exhibited by Gayleen. In its judgment entry adjudicating
{¶24} Gayleen‘s long-time counselor also provided testimony discussing Gayleen‘s diagnosis of Anxiety Disorder, Post-Traumatic Stress Disorder, and Borderline Personality Disorder. Her counselor further stressed that Gayleen was in need of extensive counseling to address her ongoing mental health issues. BP(1) and BP(2) also reported similar bizarre behavior by Gayleen to service providers. Each girl independently relayed repeated accounts of argument and conflict with Gayleen and provided specific examples of Gayleen “getting in their face” in an effort to provoke them to hit her so she could send them to the juvenile detention center.
{¶25} The record demonstrates that throughout the case, Gayleen showed reluctance in taking the necessary steps to address the concerns prompting the
{¶26} The psychologist recommended that Gayleen be evaluated by a psychiatrist and begin “intensive” individual therapy and eventually participate in family therapy with BP(1) and BP(2). The primary goal of these recommendations was to assist Gayleen in recognizing the negative effects of her relationship with Mr. Noble and to help her repair her relationship with BP(1) and BP(2). However, months passed with Gayleen only sporadically attending counseling sessions and with Gayleen continuing to have contact with Mr. Noble. Gayleen was also adamant throughout the case about her resistance to taking any psychotropic medication which contributed to her refusal to be even evaluated by a psychiatrist. Notably, the case plan only required Gayleen to follow the treatment recommendations which included submitting to a psychiatric evaluation to explore the “possibility” of psychotropic medication. There was never any specific requirement in the case plan that Gayleen be placed on medication.
{¶28} It should be noted that Gayleen focuses on this issue on appeal by arguing that the trial court‘s decision was erroneous due to her claim that she “completed” all the case plan objectives with the exception of submitting to a psychiatric evaluation. However, even though Gayleen appeared to heed the trial court‘s warnings to show compliance with the case plan objectives regarding her mental health concerns, there were signs that Gayleen‘s genuine willingness to address the situation was questionable. Gayleen‘s counselor reported to the GAL that Gayleen was often very agitated at the therapy sessions. The counselor described Gayleen as only focused on “venting” during the sessions and seldom taking her advice, therefore undermining the effectiveness of the treatment.
{¶29} The ongoing case worker provided similar testimony at the final hearing regarding his interactions with Gayleen. He described conversations with Gayleen which revolved around her discussing incidents that occurred ten years ago and were of no consequence to the case. He recalled that in these conversations Gayleen often characterized herself as a perpetual victim. He also recalled Gayleen admitting to seeing Mr. Noble in May of 2015, two months before the final hearing, and acknowledging the negative impact he had on her. However, Gayleen told the caseworker that she continued the relationship simply because she was lonely. (7/9/15 Hrg., Tr. at 39).
{¶30} Throughout the case there was also evidence that the conduct underpinning the concerns with Gayleen‘s mental health had appeared to escalate rather than ameliorate. According to reports from law enforcement, the ongoing caseworker, the GAL, and her counselor, Gayleen continued to exhibit a pattern of bizarre behavior which appeared to be premised on her belief that someone was breaking into her home and/or car to move or steal her possessions or to leave threatening items. She also made accusations that someone had entered her home
{¶31} Contrary to Gayleen‘s claims on appeal, the evidence and the trial court‘s decision was not solely focused on her mental health issues. During the approximately eighteen-month period the case was pending, the record reveals that Gayleen demonstrated a pattern of placing the case as a low priority to other things in her life. Gayleen‘s attorney twice filed a motion to withdraw from her representation citing Gayleen‘s refusal to meet with her and generally being uncooperative in assisting her with the case.1 Counsel informed the court on the record that Gayleen claimed not to have time to meet with her. Counsel also reported exchanges with Gayleen during which Gayleen commanded counsel to do things that were ethically suspect and when counsel refused Gayleen responded by yelling at counsel telling her that she must do what Gayleen says as the client.
{¶33} The GAL, who was assigned to the case from the beginning and who had numerous contacts with Gayleen and the children, observed the apparent discrepancy with Gayleen‘s ability to prioritize her life to attend school and earn a degree during the eighteen-months that the case was pending with her inability to find the time to meet with her attorney, to show meaningful compliance with the case plan objectives, and to regularly exercise visitation with BP(1) and BP(2). Specifically, the GAL characterized Gayleen‘s noncompliance with the case plan
{¶34} The trial court echoed the GAL‘s observation when it made its findings of fact on the record after the presentation of the evidence at the final hearing. Specifically, the trial court stated that it did not appear BP(1) and BP(2) were a priority in Gayleen‘s life and noted it was “appalled” that Gayleen “did not bend over backwards to assist her attorney” in preparing the case. (7/9/15 Hrg., Tr. at 149-50).
{¶35} With respect to the children‘s placement with Cristen and Chad the evidence established that the girls were thriving in their home. The record further demonstrated that Cristen and Chad complied with the case plan objectives and assisted the children in attending biweekly counseling sessions. At the time of the final hearing, the children were approaching their seventeenth birthdays and able to drive themselves to visitations with Gayleen. Both girls expressed a desire to remain with Cristen and Chad and to continue to see Gayleen on a regular basis. Specifically, they relayed to the caseworker that they did not “trust they would be safe or remain safe if they were returned to their mother.” (7/9/15 Hrg., Tr. at 44). As a result, BP(1) and BP(2) indicated to individuals involved in the case that they wanted to continue visitations for a few hours a week and were not opposed to
{¶36} Even though Cristen admitted to having a strained mother-daughter relationship with Gayleen, she repeatedly stated throughout the case that she believed it was important to foster BP(1)‘s and BP(2)‘s relationship with Gayleen. The record demonstrated that Cristen followed through with this sentiment by ensuring the girls arrived at their visitations with Gayleen. As previously discussed, it was Gayleen who was inconsistent with exercising her visitations with the girls. Notably, Gayleen expressed no concerns with Cristen facilitating her visitations with BP(1) and BP(2) without the involvement of Children Services or a court order. Moreover, she acknowledged that she and Cristen would be capable of creating a visitation schedule despite their differences.
{¶37} In sum, the evidence before the trial court established that BP(1) and BP(2) were in need of a legally secure permanent placement and that Gayleen was not able to provide them with a stable home. Several witnesses testified about the suitability of Cristen and Chad as legal custodians and their willingness to provide the children with a permanent home. Consequently, we find that the trial court reasonably concluded, by a preponderance of the evidence, that it was in the best interests of the children to be placed in the legal custody of their sister and brother-in-law. Accordingly, we cannot find that the trial court abused its
Third Assignment of Error
{¶38} In her third assignment of error, Gayleen asserts the trial court erred in finding that the Agency made reasonable efforts to reunify her with BP(1) and BP(2).
{¶39}
{¶40} ” ‘Reasonable efforts means that a children‘s services agency must act diligently and provide services appropriate to the family‘s need to prevent the child‘s removal or as a predicate to reunification.’ ” In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re D.A., 6th Dist. Lucas No. L–11–1197, 2012–Ohio–1104, ¶ 30. ” ‘Reasonable efforts’ does not mean all available efforts. Otherwise, there would always be an argument that one more additional service, no matter how remote, may have made reunification possible.” Id., quoting In re M.A.P., 12th Dist. Butler Nos. CA2012-08-164 and CA2012-08-165, 2013-Ohio-655, ¶ 47. ” ‘Nevertheless, the issue is not whether there was anything more that [the agency] could have done, but whether the [agency‘s] case planning and efforts were reasonable and diligent under the circumstances of this case.’ ” In re A.M.A., 3d Dist. Crawford No. 3-13-02, 2013-Ohio-3779, ¶ 29, quoting In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 10. “We also note that the statute provides that in determining whether reasonable efforts were made, the child‘s health and safety is paramount.” Id., citing
{¶41} In the instant case, the trial court made numerous findings throughout the case after pertinent hearings that the Agency had made reasonable efforts to prevent the removal and/or to return the children to their home with Gayleen. Specifically, the trial court found that the Agency made the appropriate referrals for Gayleen, paid the expense of her psychological evaluation, and assisted the family with scheduling parenting time and visitation. Nevertheless, it was Gayleen‘s conduct and unwillingness to complete the case plan and to take the appropriate steps to alleviate the concerns causing the removal of the children from her home which led to the trial court‘s determination that granting legal custody to Cristen and Chad was in the children‘s best interest. Based upon our review, we conclude that the record supports the trial court‘s findings that the
{¶42} For all these reasons, the judgments of the Logan County Family Court are affirmed.
Judgments Affirmed
ROGERS, P.J. and PRESTON, J., concur.
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