IN RE: C.C., ADJUDICATED DEPENDENT CHILD. [CHRISTOPHER COOPER - APPELLANT]; IN RE: I.C., ADJUDICATED DEPENDENT CHILD. [CHRISTOPHER COOPER - APPELLANT]
CASE NOS. 9-16-07, 9-16-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
September 26, 2016
2016-Ohio-6981
PRESTON, J.
Appeals from Marion County Common Pleas Court, Juvenile Division, Trial Court Nos. 13AB0082 and 13AB0083. Judgments Affirmed.
Nathan D. Witkin for Appellant
Justin J. Kahle for Appellee
PRESTON, J.
{¶1} Appellant, Christopher Cooper (“Cooper“), appeals the January 25, 2016 judgment entries of the Marion County Court of Common Pleas, Juvenile Division, granting permanent custody of his children, C.C. and I.C., to appellee, the Marion County Children‘s Services Board (the “Agency“). For the reasons that follow, we affirm.
{¶2} C.C. and I.C. are the minor children of Cooper and Jodie Botkin (“Botkin“). (See Case No. 13AB0082, Doc. No. 42); (Case No. 13AB0083, Doc. No. 41). On May 13, 2013, the Agency filed motions “for ex parte/emergency orders with notice of hearing.” (Case No. 13AB0082, Doc. No. 1); (Case No. 13AB0083, Doc. No. 1). That same day, the trial court held a shelter-care hearing and granted the Agency temporary custody of C.C. and I.C. (Case No. 13AB0082, Doc. Nos. 2, 3); (Case No. 13AB0083, Doc. Nos. 2, 3).
{¶3} After filing multiple complaints in 2013 and 2014 that the trial court dismissed, on the Agency‘s motion, under
{¶4} On August 8, 2013, the trial court appointed counsel to represent Cooper. (Case No. 13AB0082, Doc. No. 21); (Case No. 13AB0083, Doc. No. 21).
{¶5} At multiple points since these cases commenced on May 13, 2013, the Agency submitted case plans to the trial court, which the trial court approved and incorporated into disposition entries. (See Case No. 13AB0082, Doc. Nos. 15, 44, 71, 143, 144); (Case No. 13AB0083, Doc. Nos. 15, 43, 70, 139, 140). The Agency also filed semiannual administrative reviews. (Case No. 13AB0082, Doc. Nos. 31, 51, 73, 84, 122); (Case No. 13AB0083, Doc. Nos. 31, 50, 71, 80, 118).
{¶6} On June 3, 2014, the trial court held an adjudicatory hearing as to Cooper.1 (Case No. 13AB0082, Doc. No. 67); (Case No. 13AB0083, Doc. No. 65). On August 6, 2014, the trial court filed a judgment entry adjudicating C.C. and I.C. dependent as to Cooper. (Id.); (Id.).
{¶7} On April 6, 2015, the Agency filed motions for permanent custody of C.C. and I.C. (Case No. 13AB0082, Doc. No. 82); (Case No. 13AB0083, Doc. No. 78).
{¶9} The trial court held a permanent-custody hearing on December 21, 2015. (Dec. 21, 2015 Tr. at 1).
{¶10} On January 15, 2016, Cooper filed in each case a “request for home-study and motion to stay.” (Case No. 13AB0082, Doc. No. 141); (Case No. 13AB0083, Doc. No. 137). In those motions, he requested that the trial court “order [the Agency] to conduct a home-study of Mr. Cooper‘s mother, Dorothy Abner, for possible placement of the minor children.” (Id.); (Id.).
{¶11} On January 25, 2016, the trial court filed judgment entries denying Cooper‘s motions for a home study and granting the Agency permanent custody of C.C. and I.C. (Case No. 13AB0082, Doc. No. 142); (Case No. 13AB0083, Doc. No. 138).
{¶12} On February 24, 2016, Cooper filed notices of appeal. (Case No. 13AB0082, Doc. No. 145); (Case No. 13AB0083, Doc. No. 141). He raises five assignments of error for our review. We will address Cooper‘s first, second, third, and fourth assignments of error together, followed by his fifth assignment of error.
The case plans in this matter did not meet the requirements of R.C. 2151.412 because they excluded appellant as biological father of the minor children herein.
Assignment of Error No. II
Marion County Children Services did not have the authority to file a motion for permanent custody under R.C. 2151.413(D)(3)(B) and the trial court committed plain error by granting the motion.
Assignment of Error No. III
The trial court abused its discretion in this matter by finding that Marion County Children Services made reasonable efforts to reunify the family in this matter.
Assignment of Error No. IV
The case plans in this matter did not follow the general goals and priorities of R.C. 2151.412(H) .
{¶13} In his first assignment of error, Cooper argues that, by not including him in the case plans for C.C. and I.C., the Agency failed to satisfy the requirements of
{¶14}
(A) Each public children services agency and private child placing agency shall prepare and maintain a case plan for any child to whom the agency is providing services and to whom any of the following applies:
(1) The agency filed a complaint pursuant to section 2151.27 of the Revised Code alleging that the child is an abused, neglected, or dependent child;
(2) The agency has temporary or permanent custody of the child;
(3) The child is living at home subject to an order for protective supervision;
(4) The child is in a planned permanent living arrangement.
{¶16} “Agencies have an affirmative duty to diligently pursue efforts to achieve the goals in the case plan.” In re T.S. at ¶ 27, citing In re Evans at *3. “‘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.‘” Id., quoting In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 10. “‘“‘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.‘” In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re M.A.P., 12th Dist. Butler Nos. CA2012-08-164 and CA2012-08-165, 2013-Ohio-655, ¶ 47. “We also note that the statute provides that in determining whether reasonable efforts were made, the child‘s health and safety is paramount.” In re T.S. at ¶ 27, citing
An agency shall not file a motion for permanent custody under division (D)(1) or (2) of this section if any of the following apply:
* * *
(b) If reasonable efforts to return the child to the child‘s home are required under section 2151.419 of the Revised Code, the agency has not provided the services required by the case plan to the parents of the child or the child to ensure the safe return of the child to the child‘s home.
{¶17}
(H) In the agency‘s development of a case plan and the court‘s review of the case plan, the child‘s health and safety shall be the paramount concern. The agency and the court shall be guided by the following general priorities:
(1) A child who is residing with or can be placed with the child‘s parents within a reasonable time should remain in their legal custody even if an order for protective supervision is required for a reasonable period of time;
(2) If both parents of the child have abandoned the child, have relinquished custody of the child, have become incapable of supporting or caring for the child even with reasonable assistance, or have a detrimental effect on the health, safety, and best interest of the child, the child should be placed in the legal custody of a suitable member of the child‘s extended family;
(3) If a child described in division (H)(2) of this section has no suitable member of the child‘s extended family to accept legal custody, the child should be placed in the legal custody of a suitable nonrelative who shall be made a party to the proceedings after being given legal custody of the child;
(4) If the child has no suitable member of the child‘s extended family to accept legal custody of the child and no suitable nonrelative is available to accept legal custody of the child and, if the child temporarily cannot or should not be placed with the child‘s parents, guardian, or custodian, the child should be placed in the temporary
custody of a public children services agency or a private child placing agency * * *.
{¶18} We will now address Cooper‘s assignments of error in the following order: first, third, second, and fourth. We begin by addressing Cooper‘s argument, under his first assignment of error, that the Agency failed to satisfy its case-plan obligations under
{¶19} Even were we to address the merits of Cooper‘s argument, we would reject it because Cooper ignores the efforts the Agency undertook to contact him and include him in case planning. He suggests that the Agency‘s decision not to include him in the case plan was based purely on his being incarcerated. This suggestion is belied by the record. The case plans reference Cooper‘s incarceration in Kentucky. (See Case No. 13AB0082, Doc. Nos. 15, 44, 71); (Case No. 13AB0083, Doc. Nos. 15, 43, 70). The semiannual administrative reviews elaborate on the efforts of the Agency to communicate with Cooper and potential kinship placements. (See Case No. 13AB0082, Doc. Nos. 31, 51, 73, 84, 122); (Case Nos. 13AB0083, Doc. Nos. 31, 50, 71, 80, 118). The semiannual administrative review filed on November 4, 2013 provides:
The father of [C.C.] and [I.C.] lives in Kentucky. He got out of jail in July after serving 22 months for burglary charges. His name is
Christopher Cooper and he is not eligible to have the children based on his previous history. * * * The agency has sent out kinship letters to Kentucky for [C.C.] and [I.C.] to their father‘s kin. The [Interstate Compact on the Placement of Children (“ICPC“)] packet was sent in September. The agency is waiting to hear from Kentucky regarding the ICPC results. There is no available kin in Ohio.
(Case No. 13AB0082, Doc. No. 31 at 5); (Case No. 13AB0083, Doc. No. 31 at 5). The semiannual administrative review filed on May 2, 2014 provides:
The agency has completed ICPC with kin in Kentucky. The ICPC placement was denied. No other kin have been identified at this time.
* * *
Please note that ICPC kinship placement options were explored as an optional plan for the boys for reunification—however, the agency has received verbal denial of the relative ICPC for Kentucky. The father of [C.C.] and [I.C.], Christopher Cooper, lives in Kentucky. He got out of jail in July 2013 after serving 22 months for burglary charges. He has not expressed interest in placement and his previous history is of concern. Father, Christopher Cooper, does not have a relationship with the children. He was sent a letter by certified mail asking for a
response by January 31, 2014 to be added to the case plan and a response was not received by the agency.
(Case No. 13AB0082, Doc. No. 51 at 5-6); (Case No. 13AB0083, Doc. No. 50 at 5-6). The semiannual administrative review filed on October 31, 2014 reflects that Cooper contacted the Agency once in June 2014:
The boys’ father, Christopher Cooper, was recently released, but was re-arrested. He had not expressed interest in placement until late June when he was again released. At that time he said he was visiting relatives in Florida and hopes to move to Marion and to seek custody at that time. There has been no recent contact with/from him.
* * *
[Cooper] had not expressed an interest in placement until June 26 when he called to say he will move to Marion and seek custody at that time. His previous history is of concern. Father, Christopher Cooper, does not have a relationship with the children.
(Case No. 13AB0082, Doc. No. 73 at 6-7); (Case No. 13AB0083, Doc. No. 71 at 6-7). The semiannual administrative review filed on May 1, 2015 documents the Agency‘s ongoing efforts to identify a kinship placement: “Agency continues to request Kinship options. When Kinship options come available caseworker checks background and may complete a homestudy if preliminary background check is
The boys’ father, Christopher Cooper, is in and out of trouble with law enforcement. He had not expressed interest in placement until late June 2014 when he was again released. At that time he said he was visiting relatives in Florida and hopes to move to Marion and seek custody at that time. The agency has received no recent contact with/from him since Summer 2014.
(Case No. 13AB0082, Doc. No. 122 at 6); (Case No. 13AB0083, Doc. No. 118 at 6).
{¶20} In addition to these semiannual administrative reviews, which the Agency filed with the trial court, the ongoing caseworker for the Agency, Corina Pryor (“Pryor“), testified to the Agency‘s limited success in communicating with Cooper. (See Dec. 21, 2015 Tr. at 71-76). The Agency mailed letters and documents to the address it had on file for Cooper, and that correspondence was not returned. (Id. at 112-114, 116-117). According to Pryor, she last heard from Cooper in June 2014, when he came to the Agency in person after a court hearing. (Id. at 71, 80, 86, 108). When asked about the content of that meeting, Pryor testified, “It was more of he wasn‘t going to be appropriate to have the children and he had like
{¶21} The Agency looked into the potential kinship placements suggested by Cooper, but none proved to be viable options. (Id. at 71-74, 107-110). This included exploration of ICPC kinship placement options in Kentucky; however, those requests were denied.2 (Id. at 72-73). The Agency also explored placement with Cooper‘s mother and stepfather; however, according to Pryor, the Agency determined that placement to be inappropriate because “the fingerprints came back inappropriate * * * on some criminal history that was on ‘em.” (Id. at 73-74). The Agency sent letters to three other potential kinship placements that were suggested to the Agency, but the Agency did not hear back from them. (Id. at 74, 109).
{¶22} Pryor testified that Cooper did not make any attempts to contact or visit C.C. and I.C., which would have had to have occurred through the Agency. (Id. at 74). When asked if Cooper ever indicated that he wanted to be included in the case plan, Pryor testified, “I mean, at one point, you know, he thought that he would maybe try to come up here and work the Case Plan.” (Id. at 75).
{¶23} Based on this record, we reject Cooper‘s argument, under his first assignment of error, that the Agency failed to satisfy its case-plan obligations under
{¶24} Furthermore, the version of the rule on which Cooper relies,
{¶25} Cooper relies heavily on In re S.R.; however, that case is distinguishable. 9th Dist. Summit No. 27209, 2014-Ohio-2749. In In re S.R., “Father‘s name is not included on any of the case plans in this case, and no written explanation is given for his failure to sign in agreement or participate in the planning process.” Id. at ¶ 44. In these cases, Cooper‘s name is included in the case plans, and written explanations appear in the records concerning Cooper‘s failure to sign in agreement or participate in the case-planning process. In In re S.R., “Father contacted the intake caseworker via telephone within days of receiving the complaint, he had continual telephone conversations with the intake and ongoing caseworkers during the pendency of this case, and he expressed his desire to have S.R. live with him.” Id. at ¶ 8. In these cases, despite its efforts, the Agency had
{¶26} The arguments Cooper makes under his second and third assignments of error are related in part to the one he makes under his first assignment of error. We reject Cooper‘s argument, under his third assignment of error, that the Agency “did not make reasonable efforts to reunify the minor children with [Cooper]”
{¶27} Next, we reject Cooper‘s argument, under his second assignment of error, that
{¶28} Finally, we reject Cooper‘s argument, under his fourth assignment of error, that the Agency failed to attempt to find family-placement options before attempting foster care, contrary to the requirements of
{¶29} Cooper‘s first, second, third, and fourth assignments of error are overruled.
Assignment of Error No. V
The trial court abused its discretion by finding that Marion County Children Services satisfied both prongs of the permanent custody test by clear and convincing evidence.
{¶30} In his fifth assignment of error, Cooper argues that the trial court abused its discretion in finding that the Agency satisfied
{¶31} When considering a motion for permanent custody of a child, the trial court must comply with the statutory requirements set forth in
may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, * * * and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.
* * *
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period * * *.
{¶32} “[T]he findings under
[T]he court shall consider all relevant factors, including, but not limited to, the following:
(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.
{¶34} “Clear and convincing evidence is more than a preponderance of the evidence but not as much evidence as required to establish guilt beyond a reasonable doubt as in a criminal case; rather, it is evidence which provides the trier of fact with a firm belief or conviction as to the facts sought to be established.” In re H.M.K., 2013-Ohio-4317, at ¶ 42, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122 (1991). “Upon review, an appellate court ‘must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.‘” Id. at ¶ 43, quoting In re Meyer at 195, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985). “A reviewing court will not reverse a trial court‘s determination unless it is not supported by clear and convincing evidence.” Id., citing In re Meyer at 195, citing In re Adoption of Holcomb at 368 and In re Adoption
{¶35} In this case, although the findings under
{¶37} Finally, Cooper offers no argument concerning the trial court‘s determination that granting permanent custody of C.C. and I.C. to the Agency is in the children‘s best interests. Therefore, we will not address that prong of the
{¶39} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr