In re D.K.
Rendered on November 10, 2020
On brief: David K. Greer, for appellant A.K.
On brief: Furniss Stewart & Wagner, LLC, and Evan N. Wagner, for appellant F.R.
On brief: Robert J. McClaren, for Franklin County Children Services.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
{¶ 1} Appellants, F.R. (“mother“) and A.K. (“father“), appeal from two decisions and judgment entries of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, terminating their parental rights and placing D.R., D.K., and F.K. (collectively “the three minor children“) in the permanent custody of appellee, Franklin County Children Services (“FCCS“). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Mother is the mother to all three minor children, D.R., D.K., and F.K. Father is the father of D.K. and F.K., while the alleged biological father of D.R. is deceased. D.R. was born April 15, 2013. D.K. was born March 31, 2015. F.K. was born June 25, 2016. Additionally, between 2011 and 2018, the trial court previously terminated mother‘s parental rights and granted permanent court custody (“PCC“) for three additional children.
{¶ 3} Beginning in 2017, FCCS has maintained a series of complaints related to mother and father with respect to the three minor children. In August 2017, FCCS filed initial complaints to find the three minor children to be dependent children. Those cases were refiled a second time in 2017. FCCS filed the current complaints before the court, the third refiled complaints, on January 24, 2018, alleging abuse, neglect, and dependency. Specifically, the complaints alleged D.R. was abused, neglected, and dependent, while the allegations as to D.K. and F.K. were dependency and neglect.
{¶ 4} As the most recent complaints noted, mother and father have a history of domestic violence, and mother has a history of substance abuse and mental health concerns. The complaint detailed a July 21, 2017 incident in which, during an argument between mother and father, mother held D.R. believing it would calm father down, but father instead swung at mother, striking D.R. Father then strangled mother to the point of unconsciousness, causing mother to have a seizure. D.R. threw water on mother to wake her. During the incident, father punched seven holes in the wall. D.K. and F.K. were upstairs as this all unfolded. After the altercation, mother refused to let FCCS interview D.R.
{¶ 5} The third refiled complaint additionally states that mother and father have a history of domestic violence, beyond the July 21, 2017 incident, in which both parties have been the aggressors. Mother was on probation at the time of the third refiling, father‘s exact
{¶ 6} The three minor children have been in the temporary custody of FCCS and in foster care since the filing of the first complaint in August 2017. On January 25, 2018, the trial court issued a temporary order of custody to FCCS. The trial court adjudicated the three minor children dependent following a March 20, 2018 hearing, and FCCS filed an amended case plan for both father and mother on March 26, 2018. The trial court issued an order of temporary court commitment (“TCC“) and adopted the case plan on March 28, 2018.
{¶ 7} Subsequently, on July 6, 2018, FCCS filed a motion requesting permanent custody of the three minor children. During the trial, held September 16 and 18, 2019, father testified that at the time FCCS removed the children from their home, he was serving time in jail for failure to register as a sex offender. He stated he has since completed sex offender treatment. Father testified he lives with mother in a two-bedroom apartment that would be suitable for the children.
{¶ 8} Father‘s case plan objectives included (1) completing a domestic violence assessment and following all recommendations; (2) complying with all court orders and probation requirements; (3) signing all necessary releases of information for FCCS; (4) obtain legal income and provide verification of income; (5) completing an alcohol and other drug (“AOD“) assessment and follow all recommendations; and (6) submitting to random drug screens. At the time of trial, father stated he had submitted to an AOD assessment and was halfway through the recommended classes.
{¶ 9} Father remained on probation for his domestic violence convictions, of which mother was the victim. His probation cannot terminate until he completes domestic violence classes and does not test positive for drug use. Father has continued to test positive for marijuana use. Though father did not see the children while incarcerated, he has visited them on a consistent basis since being released. Father testified he works at Popeyes restaurant, was recently hired for a second job as a security officer, and that he receives Social Security disability payments in the amount of $693 per month.
{¶ 11} At trial, mother testified that she has maintained independent housing with father for approximately one year. She stated she shares expenses with father using the $750 per month that she receives in Social Security disability payments. She also receives food stamps. Mother said she stopped working a month before trial so she could participate in the mental health court program through Franklin County Municipal Court.
{¶ 12} Further, mother testified she completed an AOD assessment about one year ago and that she is engaging in services and counseling for ongoing AOD issues every other week. Mother admitted to past use of crack cocaine and that she continues to smoke marijuana and use alcohol. Additionally, she admitted to testing positive for cocaine during one of her random drug screens. The mental health court program in which mother is enrolled has four phases; at the time of trial, mother stated she was still in phase one. Mother testified she recently proceeded through a revocation hearing due to her ongoing use of marijuana, but she entered a guilty plea and was allowed to remain in the mental health court program.
{¶ 13} Mother testified that she has been prescribed various psychiatric or psychotropic medications since she was eight years old and that she struggles with the side effects of those medications. She testified she has been diagnosed with Post Traumatic Stress Disorder (“PTSD“), bipolar disorder, and depression, and has previously been in residential treatment for her mental health struggles. Further, mother testified she completed a parenting class and has attended visitations with the children on a consistent basis.
{¶ 14} The FCCS caseworker, who has been involved with the three minor children since August 2017, testified that mother has had the same case plan objectives since 2014. The caseworker testified mother completed only 22 of the requested 83 drug screens and noted her admissions that she continues to use marijuana, alcohol, and cocaine. She
{¶ 15} The caseworker further testified that mother‘s visits with the children have always been supervised, and that while the children appear bonded to mother, there is some strain in that bond. The caseworker noted that the children‘s behavior has declined, and they have shown less of an interest in attending visits with mother. One child has been physically aggressive toward mother. FCCS has offered mother counseling with the children, but mother failed to appear for the appointments to start that counseling. The caseworker also testified mother occasionally demonstrated some unpredictable behavior during visits, and the foster mother expressed feeling threatened by mother.
{¶ 16} As to father, the caseworker testified that father has completed the AOD assessment but has not completed the accompanying services. The caseworker further stated father has not been compliant with drug screens, completing only 39 of 125 drug screens. The caseworker discussed father‘s criminal history, noting he was currently on probation for a domestic violence conviction and that he is a registered sex offender following a 2008 conviction of unlawful sexual conduct with a minor. The caseworker testified father interacts well with the children and appears bonded to them.
{¶ 17} The three minor children have been placed together in the same foster home since December 15, 2017. The caseworker testified the three minor children are very bonded to the foster parents and express affection for them, and the foster parents are a potential adoptive placement for the children. The children receive counseling and are in treatment for PTSD.
{¶ 18} The caseworker testified FCCS filed for permanent custody three months after the trial court accepted and adopted the case plan because services have been in place for mother since 2014 and father had been on the case plan before court approval since August 2017. The caseworker testified mother cannot meet the case plan goals long term, and father demonstrated insufficient case plan progress to warrant the filing of an extension of temporary custody as opposed to permanent custody. Additionally, the
{¶ 19} The guardian ad litem for the three minor children testified that the three minor children demonstrate a desire to stay with the foster parents. He testified he did not think any of the three minor children understood the concept of adoption due to their young ages. The guardian ad litem recommended the court grant the motion for permanent custody, citing his concern with mother‘s mental health and substance abuse issues, and concerns with ongoing domestic violence issues with both mother and father. He also did not recommend moving the three minor children from their current foster home placement. The guardian ad litem testified both mother and father had an opportunity to complete services and that FCCS made reasonable efforts to assist mother and father.
{¶ 20} At the end of the trial, mother engaged in a profanity-laced outburst requiring the trial court to summon a deputy.
{¶ 21} Following the trial, the trial court granted the motion for PCC, thereby terminating mother‘s and father‘s parental rights. The trial court journalized its decision in a November 12, 2019 decision and judgment entry. Mother and father timely appeal. Father‘s appeal relates to D.K. and F.K. while mother‘s appeal relates to all of the three minor children.
II. Assignments of Error
{¶ 22} Father assigns the following errors for our review:
- [1.] The trial court‘s “reasonable efforts” finding was not supported by clear and convincing evidence with respect to the father, who had been working on his case plan, given that FCCS filed for permanent custody less than four months after the case plan was approved.
- [2.] The trial court committed prejudicial error and denied appellant due process of law in considering alleged lack of progress on prior case plans which were neither adopted nor journalized by the court.
- [1.] The juvenile court‘s findings, pursuant to
R.C. 2151.414(B)(1)(a) andR.C. 2151.414(E)(1) , are not supported by legally sufficient evidence. - [2.] The juvenile court‘s finding(s), pursuant to
R.C. 2151.414(B)(1)(a) andR.C. 2151.414(E)(2) , is not supported by legally sufficient evidence. - [3.]
R.C. 2151.414(E)(11) , is facially unconstitutional underU.S. const. amend. V andXIV . - [4.] The juvenile court‘s decision is incomplete, and therefore, the matter must be remanded to the trial court in order for the court to furnish a complete decision.
III. Standard of Review
{¶ 23} “In reviewing a judgment granting permanent custody to FCCS, an appellate court ‘must make every reasonable presumption in favor of the judgment and the trial court‘s findings of facts.’ ” In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8, quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. ” ‘[I]f the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court‘s verdict and judgment.’ ” In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988).
{¶ 24} “Judgments are not against the manifest weight of the evidence when all material elements are supported by competent, credible evidence.” J.T. at ¶ 8. “Pursuant to
{¶ 25} In his first assignment of error, father argues the trial court‘s finding that FCCS made reasonable efforts to reunify father with the children was not supported by competent and credible evidence.
{¶ 26} Here, the trial court made findings that FCCS made reasonable efforts both to prevent or eliminate the need for removal of the children and to return the children to the care of father. The trial court noted father‘s failure at that time to complete his AOD treatment recommendations, preventing him from moving on to the domestic violence classes portion of his case plan. The trial court also noted father continued to test positive for marijuana and that he remained on probation for his domestic violence convictions, of which mother was the victim. Further, the trial court found the FCCS caseworker made reasonable efforts to assist mother and father in linking them for services necessary to complete their case plans. These findings satisfy the reasonable efforts finding requirement under
{¶ 27} Despite this finding, father argues the trial court erred in finding FCCS made reasonable efforts to facilitate reunification because FCCS filed for permanent custody less than four months after the trial court‘s determination of dependency. Specifically, the trial court adjudicated the children dependent and adopted the case plan on March 28, 2018 and FCCS then moved for permanent custody on July 6, 2018. Father asserts that the short window of time between the adoption of the case plan and FCCS‘s motion for permanent
{¶ 28} While father argues that FCCS filed its motion for permanent custody too quickly, we note that
{¶ 29} Much of father‘s argument that FCCS needed to make reasonable efforts to facilitate reunification relies on the requirement in
(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, 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, 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.
{¶ 31} Further, to the extent father argues he was not involved in the formation of the case plan, we note that the trial court adjudicated the children dependent, issued the temporary custody order, and adopted the case plan on March 28, 2018. That judgment entry constituted a final appealable order, but father did not appeal from that ruling. In re E.C., 10th Dist. No. 18AP-878, 2019-Ohio-3791, ¶ 17 (“[a]n adjudication that a child is dependent followed by a disposition awarding temporary custody to a public children services agency pursuant to
{¶ 32} Ultimately, father argues the trial court erred in granting FCCS‘s motion for permanent custody because he was not given enough time to complete the case plan. For the reasons we outlined above, the evidence at trial does not support father‘s argument that he did not have enough time to comply with the case plan. Moreover, father‘s argument ignores his own lack of compliance with the case plan. See, e.g., In re S.T., 10th Dist. No. 19AP-24, 2019-Ohio-4341, ¶ 25 (rejecting father‘s argument that FCCS did not make reasonable efforts toward reunification where, even though FCCS did not implement a specific portion of father‘s case plan, the reason for FCCS‘s failure to implement that portion of the case plan was father‘s own lack of progress on previous steps of the case plan).
V. Father‘s Second Assignment of Error – Prior Case Plans
{¶ 34} In his second assignment of error, father argues the trial court erred in considering evidence of prior case plans. More specifically, father asserts that to the extent the trial court purported to consider father‘s lack of compliance with any alleged prior case plan without that case plan being a part of the record, the trial court erred.
{¶ 35} The basis for father‘s argument under this assignment of error is the trial court‘s statement in its November 12, 2019 decision and entry that “Mother and father had been aware and working on their case plan objectives for these children since August 2017.” (Emphasis sic.) (Decision & Entry at 7.) Father argues that because FCCS never moved to admit this alleged prior case plan as evidence, the trial court could not rely on it.
{¶ 36} We agree with father‘s general premise that the trial court was limited to considering the evidence in the record before it in making its decision on FCCS‘s motion for permanent custody. See, e.g., In re K.B., 12th Dist. No. CA2006-03-077, 2007-Ohio-1647, ¶ 24. However, we do not agree with father that the trial court was barred from considering FCCS‘s history of involvement with mother and father unless FCCS moved to admit copies of prior case plans. Here, the FCCS caseworker testified that it has had ongoing involvement with father since August 2017. Nothing in the permanent custody statutes prohibits the trial court from considering such testimony. To the contrary,
{¶ 37} Additionally, we note that father‘s argument takes the trial court‘s statement about prior case plan objectives out of context. When read in context, the trial court‘s statement about the 2017 case plan related to the timing of FCCS‘s motion for permanent custody. The trial court did not rely on father‘s lack of compliance on the 2017 case plan in making its decision on permanent custody; instead, its determination of best interest of the
VI. Mother‘s First Assignment of Error – Consideration of Evidence After Filing PCC Motion
{¶ 38} In her first assignment of error, mother argues the trial court erred in considering evidence of circumstances that occurred after the date that FCCS filed the motion for permanent custody in deciding whether a child cannot or should not be placed with a parent under
{¶ 39} Mother concedes she did not raise this argument at trial, and FCCS thus urges us to deem the issue waived. “Generally, this court will not in the first instance consider errors that the appellant could have called to the trial court‘s attention.” In re J.L., 10th Dist. No. 15AP-889, 2016-Ohio-2858, ¶ 59, citing In re Pieper Children, 85 Ohio App.3d 318, 328 (12th Dist.1993). However, in limited circumstances, we may apply the doctrine of plain error to review an issue that otherwise we would deem to have been waived. In re J.L. at ¶ 59, citing In re Johnson, 10th Dist. No. 03AP-1264, 2004-Ohio-3886, ¶ 14.
{¶ 40} “In the context of civil appeals, the plain error doctrine is not favored.” In re J.L. at ¶ 60, citing Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. “[R]eviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.” Goldfuss at 121. “An error is prejudicial if it ‘impacted the party‘s “substantial rights” by affecting the outcome of the trial.’ ” J.L. at ¶ 60, quoting In re C.C., 10th Dist. No. 04AP-883, 2005-Ohio-5163, ¶ 27.
{¶ 41} Here, mother argues the trial court plainly erred in considering evidence of circumstances indicating that the children could not or should not be placed with her that
{¶ 42} Accordingly, we overrule mother‘s first assignment of error.
VII. Mother‘s Second Assignment of Error – Expert Opinion
{¶ 43} In her second assignment of error, mother argues the trial court erred in finding, under
{¶ 44} In relevant part,
(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent: * * *
(2) Chronic mental illness, chronic emotional illness, intellectual disability, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code[.]
{¶ 45} Despite mother‘s argument that FCCS needed to introduce expert testimony to make a finding pursuant to
{¶ 46} We overrule mother‘s second assignment of error.
VIII. Mother‘s Third Assignment of Error – Constitutionality of R.C. 2151.414(E)(11)
{¶ 47} In her third assignment of error, mother argues that
IX. Mother‘s Fourth Assignment of Error – Specificity of Trial Court‘s Findings
{¶ 48} In her fourth and final assignment of error, mother argues the trial court erred in rendering its findings under
{¶ 49} In its decision, the trial court lists and considers the statutory factors, including those under
X. Disposition
{¶ 50} Based on the foregoing reasons, the trial court did not err in granting FCCS‘s motion for permanent custody and terminating the parental rights of both mother and father. Having overruled father‘s two assignments of error and mother‘s four assignments of error, we affirm the judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgments affirmed.
BROWN and BEATTY BLUNT, JJ., concur.