IN RE: P. & H. CHILDREN
APPEAL NOS. C-190309 C-190310
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 4, 2019
2019-Ohio-3637
CROUSE, Judge.
TRIAL NO. F11-1573x
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 4, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patrick Stapp, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Jeffrey McCormick, for Appellee Guardian ad Litem for D.H. and Z.P.,
Christopher Kapsal, for Appellant Mother,
Constance Murdock, In re Williams Attorney for Appellants D.H. and Z.P.
{¶1} Mother and children D.H. and Z.P. have appealed from the Hamilton County Juvenile Court’s judgment granting permanent custody of D.H. and Z.P. to the Hamilton County Department of Job and Family Services (“HCJFS”).
{¶2} Mother argues in one assignment of error that the juvenile court erred and abused its discretion in finding that permanent custody was in the best interests of the children, when that finding was not supported by sufficient evidence and was against the manifest weight of the evidence, and when the best-interest analysis was not properly applied. D.H. and Z.P. argue in one assignment of error that the court erred as a matter of law by granting HCJFS’s motion for permanent custody. We consider the assignments of error together, overrule both, and affirm the court’s judgment.
Factual Background
{¶3} D.H. and Z.P. were fathered by different men, neither of whom is involved in the lives of D.H. or Z.P. Both alleged fathers failed to establish paternity as ordered by the court and thus are deemed to have abandoned their children. They are not parties to these appeals.
{¶4} On March 1, 2017, D.H. and Z.P. were placed in the interim custody of HCJFS after mother called HCJFS and reported that she and the children had nowhere to stay and no food, and that she was depressed and wanted to hurt herself. On June 12, 2017, D.H. and Z.P. were adjudicated dependent pursuant to
{¶5} On February 1, 2018, HCJFS moved for permanent custody. On November 8, 2018, the juvenile court magistrate granted the motion for permanent
Standards of Review
{¶6} In a case involving the termination of parental rights, an appellate court reviews the record and determines whether the juvenile court’s decision was supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton No. C-110363, 2011-Ohio-4912, ¶ 46. Clear and convincing evidence is evidence sufficient to “produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Where some competent and credible evidence supports the court’s decision, this court will not substitute its judgment for that of the juvenile court. In re W.W. at ¶ 46.
{¶7} A review of the sufficiency of the evidence is different than a review of the weight of the evidence. In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310 2015-Ohio-3247, ¶ 15. To determine if there was sufficient evidence upon which to terminate parental rights, the court determines whether some evidence exists on each element. It is a test for adequacy, and is a question of law. Id. at ¶ 15. When conducting a weight-of-the-evidence review in permanent-custody cases, the appellate court must
weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving conflicts in the evidence, the [juvenile] court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed.
The Permanent-Custody Determination
{¶8} When children have been previously adjudicated dependent and temporary custody has been granted to HCJFS, HCJFS may move for permanent custody of the children pursuant to
{¶9} This case presents a similar situation as our recently decided case In re A.M., 1st Dist. Hamilton No. C-190027, 2019-Ohio-2028, ¶ 37, in which we complained of a “poorly drafted” magistrate’s decision. Prior decisions of this court have “strongly encourage[d] the juvenile court’s discussion of each statutory factor.” Id. at ¶ 26, citing In Re: K.T.1, 1st Dist. Hamilton No. C-180335, 2018-Ohio-4312, ¶ 46. In this case, the magistrate often cited to irrelevant facts in support of her findings or did not cite any facts at all. Furthermore, several of the conditions that the magistrate found to be satisfied were not supported by sufficient evidence. The trial court subsequently adopted the magistrate’s decision without providing further analysis or addressing these deficiencies.
{¶10} Because terminating a parent’s right to raise his or her own children is the family-law equivalent of the death penalty, the parents, the children, and society should have confidence in the fairness of the proceedings and in the courts’ decisions. In order to instill such confidence, the courts should attempt to thoroughly and correctly evaluate each relevant factor as required by the permanent-custody statute.
{¶12} The magistrate and the juvenile court found that the 12-in-22 condition was satisfied. But the record shows that the 12-in-22 condition was not satisfied, because HCJFS filed its motion for permanent custody nine months after being given temporary custody. The children were removed from the home on March 1, 2017, and adjudicated dependent on June 12, 2017, so the start date of the 12-in-22 clock was May 1, 2017, 60 days after the children had been removed from the home. HCJFS filed the motion for permanent custody on February 1, 2018. The relevant time period for the 12-in-22 condition was the nine-month period from May 1, 2017, to February 1, 2018.
{¶13} However, an error on the 12-in-22 determination is not outcome-determinative when the juvenile court made
{¶14} The
following the placement of the child outside the child‘s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
In support of its (E)(1) finding, the magistrate cited to mother’s sporadic visitation record, which is not relevant to (E)(1), but rather (E)(4). Nevertheless, the magistrate did make findings of fact in other sections of her decision which supported her determination that (E)(1) was satisfied.
- Complete mental health assessments and follow all recommendations;
- Complete random toxicology screens;
- Obtain and maintain sobriety and shall not test positive for opiates, alcohol, or any other illegal substances. A missed toxicology screen is deemed a positive screen;
- If an assessment recommends drug treatment, parent shall complete treatment and recommended aftercare, including AA or NA meetings and obtaining a sober living sponsor;
- Obtain and maintain stable income and stable housing;
- Complete parenting classes that includes coaching;
- Satisfy all warrants.
After completing mental-health and dependency assessments, mother failed to follow up with individual therapy or medication management. Also, mother was ordered to submit to random toxicology screens. She failed to attend the six screens for which she was referred. At trial, she admitted that if she were tested that day she would test positive for marijuana.
{¶16} Mother claims that her work schedule and transportation difficulties interfered with her ability to make appointments and screens. But the HCJFS caseworker testified that HCJFS had scheduled mother’s appointments around her work schedule and had provided her with bus passes. When asked at trial about her failure to complete parenting classes, mother testified that she was unaware that she
{¶17} Mother further argues that she remedied the main reasons for which the children were initially removed from the home, because she had stable housing and was working. She testified that she worked full time at a fast food restaurant, and that she had moved into her grandmother’s house in May 2018. Both the magistrate and the juvenile court expressed concerns about the stability of mother’s employment and housing.
{¶18} The Guardian ad Litem (“GAL”) for D.H. and Z.P also testified. She went to the home on July 9, 2018, to conduct a home assessment. The home itself was safe and contained no hazards. Children’s maternal grandmother lived with mother. Mother told the GAL that grandmother was just visiting because the children’s great-grandmother, who owned the home, was in the hospital. However, the GAL learned that grandmother had been living with mother at the house since May, when great-grandmother had died, and that grandmother was now a co-owner of the home. When the GAL confronted mother with information that great-grandmother had died on May 24, 2018, mother said that was the first she had heard of it.
{¶19} The HCJFS caseworker also went to the home in early July to conduct her own home assessment. Mother told the caseworker during that visit that she had moved into the home the day great-grandmother died on May 24, 2018. The caseworker then attempted to contact grandmother in order to complete background checks and drug screens for HCJFS. She called and went to the home, but received no response.
{¶21} The record contains clear and convincing evidence that mother failed to substantially remedy several of the problems that had initially caused D.H. and Z.P. to be placed outside the home. Of the orders issued by the court pertaining to mother’s reunification plan, she only possibly satisfied one—that she obtain stable income—although the juvenile court expressed concern over the stability of her income. The stability of her housing was demonstrably questionable because of grandmother’s presence. And mother failed to follow through on her mental-health treatment, to complete toxicology screens, to maintain sobriety, and to complete parenting classes.
{¶22} Also, after weighing the credibility of the witnesses and all reasonable inferences, we cannot say that the court clearly lost its way in finding that the
{¶23} The
{¶24} The magistrate cited, as satisfying (E)(2), mother’s failure to follow up on individual therapy or medication management or to attend her toxicology screens. Mother argues that not completing therapy and medication management do not alone mean that her mental condition was so severe that she could not have provided an adequate home now or within one year. There was limited testimony about the severity of mother’s mental-health concerns and drug dependency. The children were initially removed from the home in part because mother was depressed and wanted to hurt herself. Mother completed a diagnostic assessment regarding her mental health and substance abuse. She was ordered to take medication and participate in therapy, but she failed to do so. She also continued to use marijuana and skipped all of her drug screens.
{¶25} Thus, the record provides clear and convincing evidence that mother’s mental illness and chemical dependency were so severe as to prevent her from providing now or within one year an adequate permanent home. Nor was the court’s finding against the manifest weight of the evidence. Mother failed to adequately explain why she had missed all of her drug screens, had continued to use drugs, and had failed to follow up with therapy or medication.
{¶26} The
{¶28} Thus, the record provides clear and convincing evidence that mother demonstrated a lack of commitment to the children. She did not visit with D.H. and Z.P. for over a year, even when she had the ability to do so. Then, once visits resumed, she missed two out of the five scheduled visits.
{¶29} And while mother’s phone calls with the children demonstrated some commitment, the calls were not so substantial as to lead us to conclude that the magistrate clearly lost her way in finding an overall lack of commitment. Accordingly, the finding is not against the manifest weight of the evidence.
{¶30} The
{¶31} Nothing in the record suggests that D.H. and Z.P. were the victims of physical, emotional, or sexual abuse or neglect. Regarding basic necessities, to find
{¶32} In her decision, the magistrate merely said, “[P]arents have not provided for the children throughout these proceedings.” D.H. and Z.P. were initially placed in the care of HCJFS in part because mother told HCJFS that she could not provide basic necessities for the children. The HCJFS caseworker testified that mother had not provided basic necessities during the proceedings, except possibly bringing food to share with the children during the visitations. This evidence is insufficient to establish that mother, when she had custody of her children and was able to provide basic necessities, had been unwilling to do so. Therefore, it was error for the magistrate to find that
{¶33}
{¶34} There was insufficient evidence to support the juvenile court’s findings that
{¶35} Second prong—
- the child’s relationships with the parents, siblings, foster caregivers, and any other person who may significantly affect the child,
- the wishes of the child, with consideration granted for their maturity,
the custodial history of the child, including whether the child has been in the custody of a public child services agency for 12 or more months in a consecutive 22 month period, - the child’s need for a legally secure permanent placement, and
- whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
No single factor is given greater weight or heightened significance. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
{¶36} The magistrate found that
{¶37} In support of her finding that
{¶38} Mother testified that the children wished to be reunited with her. Also, the court appointed an In re Williams attorney for D.H. and Z.P. because their wishes conflicted with the recommendation of the GAL. D.H. and Z.P. appealed the court’s decision and filed an appellate brief arguing that mother should be given more time to complete her case plan so they can be reunited with her. At the time of trial, D.H. was seven years old and Z.P. was four years old. With due consideration given to their ages, the
{¶39} The magistrate found that
{¶40} The magistrate found that
{¶41} As discussed under
{¶42} Also, a legally secure permanent placement “is more than a house with four walls. Rather, it generally encompasses a stable environment where a child will live in safety with one or more dependable adults who will provide for the child‘s needs.” Matter of K.W., 2018-Ohio-1933, 111 N.E.3d 368, ¶ 87 (4th Dist.2018); see In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 95 (parents were unable to provide legally secure permanent placement where mother lacked physical and emotional stability and father lacked grasp of parenting concepts). Mother’s failure to comply with her case plan, along with the presence of grandmother at the home, provided clear and convincing evidence that mother was unable to provide a legally secure permanent placement. The finding was not against the manifest weight of the evidence. Accordingly,
{¶43} When analyzing
{¶44}
{¶45}
{¶46}
{¶47} Even if a parent is unable to engage in visitations, the parent can maintain contact with the children so as to avoid abandoning them by communicating with them through phone calls, letters, or cards. In Matters of A.R., B.R., W.R., 5th Dist. Stark Nos. 2018CA00091, 2018CA00097 and 2018CA00098, 2019-Ohio-389, ¶ 28; Matter of S.M., 12th Dist. Warren No. CA2018-08-088 through CA2018-08-097, 2019-Ohio-198, ¶ 22.
{¶48} Mother testified that she called the children every day between May 2017 and the trial date. Because mother maintained contact with D.H. and Z.P., and so had not abandoned them, the
{¶49} The
the parent had parental rights involuntarily terminated with respect to a sibling of the child pursuant to this section or section
2151.353 or2151.415 of the Revised Code, * * * and the parent has failed to provide clear and convincing evidence to prove that, notwithstanding the prior termination, the parent can provide a legally secure permanent placement and adequate care for the health, welfare, and safety of the child.
The magistrate found that an older sibling, A.S., had been adjudicated dependent and placed in the temporary custody of HCJFS in 2011, before being placed in the permanent custody of a relative. However, mother voluntarily terminated her parental rights with respect to A.S., and so
{¶51} The
{¶52} “Although the termination of the rights of a natural parent should be an alternative of ‘last resort,’ such an extreme disposition is nevertheless expressly sanctioned [under
{¶53} Both prongs of the
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.