In Re C.J.P., 08ap-665 (3-31-2009)
- Reporters:
- ,
- Before:
- Brown, Bryant, Sadler
OPINION
{¶ 1} H.P. (“mother“), appellant, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in which the court granted the motion of Franklin County Children Services (“FCCS“), appellee, for permanent court commitment (“PCC“) with regard to C.J. P., aka C.J. W.
{¶ 2} Mother has four children, one of which, C.J. P. (“child“), is the subject of the present matter. The child, a son, was born on August 16, 2004. On January 21, 2006, mother was arrested for felonious assault with a firearm in Hamilton County, Ohio. The
[I.] The trial court erred by granting permanent custody of the minor child to the appellee when it had failed to comply with
R.C. 2151.414 .[II.] The trial court erred by granting permanent custody of the minor child to the appellee when FCCS made minimal efforts to reunify with this family since the case was filed and managed in the wrong venue.
{¶ 3} Before addressing mother‘s assignments of error, we must first address FCCS‘s contention that the appeal should be dismissed because mother filed the appeal in an untimely manner. Pursuant to
(B) Service: how made
Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or party shall be made by delivering a copy to the person to be served, transmitting it to the office of the person to be served by facsimile transmission, mailing it to the last known address of the person to be served or, if no address is known, leaving it with the clerk of the court. The served copy shall be accompanied by a completed copy of the proof of service required by division (D) of this rule. “Delivering a copy” within this rule means: handing it to the attorney or party; leaving it at the office of the person to be served with a clerk or other person in charge; if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion then residing in the dwelling house or usual place of abode. Service by mail is complete upon mailing. Service by facsimile transmission is complete upon transmission.
{¶ 4} The record herein reveals the clerk served mother‘s counsel notice only via interoffice mail service on July 7, 2008. Leaving the judgment in the courthouse mailbox of mother‘s attorney is not a prescribed method of service required by
{¶ 5} We will address mother‘s assignments of error together, as they are related. With regard to mother‘s first assignment of error, mother argues that the trial court‘s decision regarding the best interest factors in
{¶ 6} A decision to award permanent custody requires the trial court to take a two-step approach. First, pursuant to
(a) The child is not abandoned or orphaned or 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 ending on or after March 18, 1999, 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. (b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(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 ending on or after March 18, 1999.
{¶ 7} Once the trial court finds that one of the circumstances in
{¶ 8} With regard to the first step of the PCC analysis, mother does not contest that the trial court correctly determined that the child had been in the custody of FCCS for 12 months or more of a consecutive 22-month period prior to the hearing. Thus,
{¶ 9} However, mother contests the trial court‘s findings regarding the best interest factors.
{¶ 10} With regard to the first factor — the interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers, out-of-home providers, and any other person who may significantly affect the child — the trial court found that the child was “acquainted” with mother based upon 19 visits between them; he was not acquainted with his siblings; he had no bonds to his relatives, and he was very bonded to his foster caregivers. On this issue, mother testified at trial that, although she was to
{¶ 11} Nicole Durham, a caseworker for FCCS, testified after mother was released from jail in June 2006, one-hour-per-week visitations with the child were arranged. Mother participated in visitations for several months, but after she missed three in a row, she told Durham that she was not attending because of outstanding warrants. FCCS filed a motion to terminate visits in September 2007 because mother had missed four to five months of visits. Mother attended a total of 19 visits, which Durham said was not substantial compliance with the case plan.
{¶ 12} Durham further testified that the child was not bonded with mother, and the child has had no contact with mother since March 2007. Durham stated that the child and mother interacted well during visitations, and the child knew mother, called her “mom,” and was happy to see her. She never saw the child cry when mother left the visitations. Durham also stated that the child is bonded with his foster parents and siblings, with whom he has lived since April 2006. At the foster home, the child is able to interact freely, shows no signs of fear or withdrawal, is engaged while talking, seeks the comfort of his foster parents, and eats meals with them.
{¶ 13} Viewing the above testimony, we agree with the trial court that mother has some bonding with the child, given mother had custody of the child for approximately the first 18 months of his life, and did participate in some visitations after FCCS gained custody. However, mother has had no contact with the child for well over half of his life while she has been incarcerated, and, even while she was out of prison, her visitations were limited. The period of incarceration has been extremely detrimental to her bonding with the child and is a result of her own actions. The evidence also demonstrates the child is very bonded to the foster family. This factor, therefore, weighs in favor of granting FCCS‘s motion for PCC. For these reasons, we cannot find the trial court erred in its analysis under
{¶ 14} With regard to the second factor — the wishes of the child, as expressed directly by the child or through the child‘s GAL, with due regard for the maturity of the child — the trial court found that the child‘s wishes were not expressed because of tender years, as the child was three and one-half years old, but the GAL supported the motion for PCC. Therefore, this factor weighs in favor of granting PCC to FCCS.
{¶ 15} With regard to the third factor — the custodial history of the child — the trial court found that the child had been in mother‘s custody from birth to January 23, 2006, and then in the custody of FCCS from January 23, 2006 until the present. As the child has been in the custody of FCCS/the foster family for most of the child‘s life, this factor weighs in favor of granting PCC.
{¶ 16} With regard to the fourth factor — 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 — the trial court found that the child needed a
{¶ 17} As discussed above, mother also testified she was to participate in visitation with the child, but was unable since she was in jail from January until June 2006. She stated she completed approximately 25 visits with the child before she returned to jail in
{¶ 18} Mother also testified she was on a waiting list for a parenting program and family life skills program. She stated she was eligible to apply for transitional control in a few months and, if she were to receive it, she would be able to visit the child. After her release from prison, a coordinator from the jail would help with aftercare, and she was number 33 on the waiting list for an apartment in Akron. Mother testified that she had made a lot of mistakes over the past two years, and she knows they have been detrimental to the child. She said she wanted the child to be safe, happy, and comfortable, and she did not want to lose him. The Tapestry program made her realize her mistakes. However, mother specifically testified there was “a lot” of her case plan that she did not complete. Durham concluded the child was in need of a legally secure placement and recommended PCC be granted to FCCS.
{¶ 19} Although mother argues that she substantially complied with the case plan, we find the above testimony demonstrates she failed to comply with the case plan objectives. Mother did undergo a psychological evaluation, but she failed to seek any drug counseling consistent with the recommendation included in the evaluation. Mother also failed to substantially comply with the drug screening, as she only completed 6 of 19 screenings. Further, mother did not fully participate in visitations because she was imprisoned for much of the period under review.
{¶ 20} However, in mother‘s second assignment of error, mother contends the fact that she never resided in Franklin County made completing case plan impossible because all of the services offered by FCCS had to be completed in Franklin County. Thus, mother claims FCCS made minimal efforts to reunify her and the child. We disagree. Durham, the caseworker for FCCS, explained that the case was filed in Franklin County because, at the time the case commenced, the child was picked up in Clermont County and then transported to live at his maternal grandmother‘s home, which was in Columbus. Durham stated that, because mother lived in Clermont County, she placed courtesy requests with that county in an attempt to get services for mother locally. Although those counties were unable to assist mother, they gave Durham a list of phone numbers and referrals for treatment. When Netcare in Franklin County indicated it could not complete a drug and alcohol assessment on mother, because she did not live in the county, Durham referred mother to the Clermont recovery center and Hamilton recovery center, but mother never completed an assessment. Furthermore, FCCS provided gas and Greyhound passes for mother to travel from Clermont County to her visitations in Franklin County. Durham testified she specifically explained the difficulties to mother that she would face receiving services if she chose to live in Clermont County. Therefore, we cannot say that FCCS put forth substandard efforts in trying to reunify mother and the child.
{¶ 21} It is difficult to discern from the written transcript the level of sincerity and credibility in mother‘s contention that she has learned lessons while in jail and realized the impact her poor decisions have had on the child. The trial court was in the best position to view her demeanor and was apparently not sufficiently convinced that extending FCCS‘s
{¶ 22} With regard to the fifth factor — whether any of the factors in
{¶ 23} It is clear from the above analysis that all of the factors weigh in favor of granting PCC to FCCS. Mother‘s claims to the contrary, the evidence does not support a conclusion that mother is or will be capable of providing the child‘s health and safety needs. Mother failed to take the necessary actions, pursuant to the case plan objectives to be reunited with her child, both because she served periods of incarceration and because she voluntarily failed to seek and obtain services required for completion of the objectives. As a result of her incarceration, she has little bonding with the child, while the
{¶ 24} Accordingly, mother‘s first and second assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed.
Judgment affirmed.
BRYANT and SADLER, JJ., concur.