In re E.M.D.R.E.
C.G., 220 South Ninth Street, Hamilton, Ohio 45011, appellant, pro se
Leslie Kennedy, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, guardian ad litem for E.E.
Paul A. Becker, 1733 S. Breiel Blvd., Middletown, Ohio 45044, guardian ad litem for L.E.
Robin N. Piper III, Butler County Prosecuting Attorney, Daniel G. Eichel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Department of Jobs and Family Services
OPINION
HENDRICKSON, J.
{¶1} The mother and maternal grandmother of E.M.D.R.E. appeal a decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent
{¶2} E.M.D.R.E. was born on May 31, 2006. In February 2007, the child was removed from her home and a complaint was filed alleging that she was neglected and dependent. On June 5, 2007, the child was adjudicated dependent and placed in the temporary custody of the BCDJFS. The agency moved for permanent custody of the child on February 1, 2008. The mother filed a motion requesting custody of the child, or in the alternative for custody to the maternal grandparents2. The maternal grandmother also filed a pro se motion for legal custody of the child.
{¶3} A hearing on the motions was conducted over several dates, beginning in July 2008 and ending on March 9, 2009. In a decision issued April 28, 2009, the magistrate granted permanent custody of the child to the agency. The mother and grandmother filed objections to the decision. After a hearing, the trial court overruled the mother and grandmother‘s objections and adopted the magistrate‘s decision.
{¶4} The child‘s mother and grandmother now appeal, each raising several assignments of error for our review. Essentially, these assignments of error challenge the trial court‘s determinations regarding the best interest of the child and the sufficiency of the evidence. As these assignments of error are interrelated, for ease of discussion, we will address them together.
{¶5} Before a natural parent‘s constitutionally protected liberty interest in the care and custody of her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. Santosky v. Kramer (1982), 455 U.S. 745, 759, 102 S.Ct. 1388. An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to
{¶6}
{¶7} In this case, the trial court made findings that it was in the best interest of the child to grant permanent custody to the agency and that the child could not be placed with either parent within a reasonable time or should not be placed with either parent. As mentioned above, in their assignments of error, the mother and grandmother challenge various aspects of these findings.
{¶8} At the hearing, numerous witnesses testified regarding the family‘s involvement with the agency, the mother‘s progress on the case plan, and the grandparents’ suitability as a custody placement. Witnesses included: the child‘s mother, a clinician at a drug treatment facility, a counselor at another drug treatment facility, the director of a drug treatment aftercare program, a behavioral health case
{¶9} The evidence revealed that BCDJFS became involved with the mother and child in November 2006 because of concerns involving substance abuse by the mother, the hygiene of the child, and conditions of the grandmother‘s home where the child was living. The agency began working with the family to remedy these problems, but had ongoing concerns which eventually led to the child‘s removal from the home in February 2007. These concerns included criminal charges against the mother for carrying a concealed weapon and possession of marijuana, the condition of the home, which did not have a working furnace, and the continuing poor hygiene of the child.
{¶10} BCDJFS also had concerns due to the fact that the agency had previous significant involvement with the grandmother and mother dating back to 1993, when the mother was a child. As a child, the mother was removed from the grandmother‘s home in 1993. She was in agency custody until emancipation in 2001 and during that time, evidenced psychological issues.
{¶11} A case plan was prepared that required substance abuse treatment, mental health treatment, parenting classes, stable housing and employment. With regard to substance abuse treatment, the mother had attempted but failed treatment programs prior to the child‘s removal from the home. In February 2007, she completed an evaluation with the Sojourner program, but was required to complete a psychological evaluation before starting the program. The mother completed the psychological
{¶12} In July 2007, the mother entered Sojourner‘s residential program. She was placed on restrictions for failing to follow facility rules and was also having problems getting along with the other residents. In late July, she was placed on a “behavior contract” which was her last chance at the facility. On August 23, she signed herself out of the facility because she did not get a weekend pass. The mother was court-ordered3 to go back into residential treatment, and spent the next months trying to get into another facility, but refused to go back to First Step. After not being able to get into other facilities, she eventually was admitted back to First Step in November 2007 and almost immediately began having problems. She was caught smoking several times and told she would be discharged if she was caught again. In December, she left the facility for a few days due to problems with the residents and staff. The mother told caseworkers she was going to get into treatment several times over the next few months, but it took her several months to follow through and she again complained about the programs and was not compliant. She attended Horizons in March 2008 and
{¶13} The director of Community Behavioral Health Care, an aftercare program the mother attended, testified that the mother‘s attendance was not good and he was concerned with her bipolar condition and the fact that she was not taking her medication. He also had concerns with the mother‘s current romantic relationship, which he described as “dysfunctional.” The director stated that the mother “doesn‘t appear to have a great deal of insight into what it would take to stay clean and sober.” He explained that she shows desire and verbalizes, but does not seem to be internalizing and her prognosis for the future is poor.
{¶14} With regard to the mental health requirement, the mother was to have an assessment, a treatment plan and counseling. The mother had been prescribed medication for her mental health problems at Sojourner, but stopped taking them when she left the facility because she said they made her tired. The mother did not initially perform the evaluation and let a period of time elapse before she followed through on this requirement. At the time of her evaluation she was prescribed Seroquel, which she did not take, and Lithium. Her counselor explained that the bipolar condition was “severe” and she need to take her medication. Not taking the medication would make the mother prone to anger outbursts, which would affect her parenting ability. At an April 2008 review, the mother stated that she did not feel she needed counseling. She stated that she did not think weekly counseling was necessary, nor did she feel that the bipolar
{¶15} The mother was also required to complete in-home parenting classes. She began classes in October 2007, covering food and nutrition, home safety and sanitation, money management, development of personal resources, and child development and parenting. The instructor stated that from a parenting standpoint, the mother is not ready to have her children back. She also stated that the mother had a hard time with money management and paying bills and relies on the grandmother and boyfriend for support. As an example of poor money management, the instructor explained that the mother put off purchasing her medication and having a mammogram because of money problems, but still purchased cigarettes. The instructor stated that the mother had “reached her saturation point” with the lessons and her motivation to do well had gone down. When the services expired, the mother said she had enough of the lessons and that she had been doing them for a year and thought that was enough.
{¶16} Stable housing was also a requirement of the case plan. At the start of the case plan, the mother was living on and off with the grandmother. During the time the case was pending, she lived in a number of places. The caseworker stated that in the 17 months the agency had been working with the mother, she had lived in seven places. Some of these were the homes of friends and some were motels. The mother was evicted from a number of these places.
{¶17} The mother was also required to obtain stable employment, but at the first hearing she stated that her only work during the case has been with a temporary
{¶18} According to the caseworker, there were other issues with the mother, including a lack of medical care at times, as she was on and off Medicaid. She was also arrested in January 2007 for failing to pay fines, and arraigned on nonpayment of child support charges, but failed to appear at a hearing on those charges. The mother also had previously had a son who tested positive for marijuana when he was born. The mother testified that the child was “signed over” to an aunt for care and the agency was not involved with this child.
{¶19} After the grandmother requested custody of E.M.D.R.E., a home study was performed to determine her suitability as a custodian for the child. The grandmother was given the information in February 2007, but did not contact the investigator to schedule a visit until February 2008. Each time the completion of the home evaluation was questioned, the grandmother would respond that the home was “almost ready.” The first date set by the grandmother was rescheduled a few days prior at the request of the grandmother who said the home was again not ready. When the home was eventually examined, it did not pass because of safety and cleanliness concerns. Between hearings, the grandparents made repairs and at a later date, the home passed a safety audit.
{¶20} However, the home study evaluator stated that even with improvements to the home, the grandparents’ home study would still be denied because of other concerns. She explained that in 1988, the grandmother had problems in Franklin County, Indiana with severe neglect of her two children and her parental rights to these two children were terminated in 1990. In 1991, BCDJFS received referrals about the grandmother concerning her parenting of the mother as a child. In 1993, the mother was removed from the grandmother‘s home and the grandmother never regained custody. There were also concerns regarding the grandmother‘s past drug use and that fact that the grandmother had previous convictions for drug-related charges.
Best Interest Determination
{¶21} With regard to the best interest determination, the mother and grandmother argue that permanent custody was not the only means of providing permanency for the child as she could have been placed with the mother or grandmother. They also argue that permanent custody is not in the child‘s best interest as the mother has completed major case plan objectives.
{¶22}
{¶23} “(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;
{¶24} “(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;
{¶25} “(c) The custodial history of the child, including whether the child has been
{¶26} “(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;
{¶27} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶28} With respect to
{¶29} With respect to
{¶30} With respect to
{¶31} With respect to
{¶32} The court determined that the larger issue for the grandmother was her background and previous history with the agency. These factors included the fact that the grandmother lost permanent custody of two children in Indiana, BCDJFS was involved with the grandmother for a long period of time and that the mother herself was in foster care from approximately the ages of ten to 18. Based on these facts, the court
{¶33} The juvenile court examined the facts presented regarding the mother and found that her progress on case plan services was inconsistent and incomplete. Although she participated in parenting classes, at the end of the program, the mother had reverted to old practices, had reached her “saturation point” and was terminated from services. All areas of the curriculum remained of concern because of an inability to retain information from the lessons. The mother failed to complete an inpatient substance abuse program as required by the case plan and there were issues and concern regarding the treatment the mother did obtain regarding her ability to maintain sobriety. The mother also failed to complete the mental health requirements of the plan and concerns remained regarding her ability to parent with severe bipolar disorder. The court also noted that the mother had not obtained stable employment or housing as ordered under the case plan. We find no error with the juvenile court‘s determination that it was in the best interest of the child to grant permanent custody to the agency, as sufficient, credible evidence supports the findings and the determination is not against the manifest weight of the evidence.
{¶34} The grandmother argues that it was error for the court to fail to address her motion for permanent custody, but it is apparent that the court did, in fact, consider whether the grandmother should be granted custody. The court specifically stated that it was not in the child‘s best interest for the grandmother to be granted custody, which is the proper standard in considering a motion for legal custody. See In re D.R., 153 Ohio App.3d 156, 2003-Ohio-2852. In addition, the court‘s findings regarding the grandmother are also supported by the record. The grandmother permanently lost
{¶35} Both the grandmother and mother present arguments relating to the mother‘s ability to remain drug-free and to her completion of “major case plan services.” However, the evidence supports the trial court‘s findings that despite her involvement in case plan services, the mother did not complete many of the objectives, including inpatient substance abuse treatment. Despite the arguments that the mother is “cured” of drug abuse, the professionals involved in her treatment still have concerns with her ability to maintain sobriety, along with concerns regarding her bipolar disorder.
{¶36} Finally, the mother and grandmother argue that the court erred in failing to consider the mother‘s request regarding custody to the grandfather4. The trial court found that the issue was ruled on by the magistrate when he found that the grandmother was not a viable placement, as she resides with the grandfather. We find no error in the trial court‘s decision on this issue. The possibility of placement with the grandfather could not be severed from placement with the grandmother. Moreover, the evidence revealed that when the child resided with the grandparents, the grandmother was the caretaker and that it was contemplated this arrangement would continue if legal custody were granted to the grandparents.
R.C. 2151.414(E) Factors
{¶37} The court also examined the factors in
{¶38} This section lists factors for determining whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. The section also states that if the court determines, by clear and convincing evidence, one or more of the factors listed 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.
{¶39} As relevant to this case, the court determined that: “[f]ollowing the placement of the child outside the child‘s home and notwithstanding reasonable 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.”
{¶40} In making this determination, the court found that the mother‘s case plan required her to successfully complete an in-home parenting program, successfully complete substance abuse treatment, address her mental health issues, including psychological and psychiatric evaluations and individual counseling, maintain employment and stable housing. The court determined that the mother has not completed case plan services, particularly she has not maintained stable housing or
{¶41} The court then concluded that notwithstanding reasonable efforts on the part of the agency to assist the mother to remedy the problems that caused the child‘s removal, the mother had failed continuously and repeatedly to remedy the problems that initially caused the child to be placed outside the home. This finding is supported by the record, as evidence was presented to show the mother‘s failure to utilize the services provided to remedy the problems that caused the child‘s removal.
{¶42} The trial court also found that pursuant to
{¶43} With regard to the court‘s finding that the child cannot be placed with either parents or should not be placed with either parent, the mother and grandmother both present arguments relating to the mother‘s reported ability to avoid substance abuse without completing the residential program required by the case plan. As these arguments have been addressed above, we find no error in the court‘s conclusions regarding its finding that the child could not be placed with her mother and should not be placed with her within a reasonable time.
{¶44} In discussing the standard for granting permanent custody, the trial court stated: “Pursuant to
{¶45} After making a best interest determination and a finding that the child could not be placed with either parent pursuant to
{¶46} However, more precisely,
{¶47} The prepositional phrase, “with respect to a motion made pursuant to division (D)(2) of section
{¶48}
{¶49} Therefore, under
{¶50} In this case, the trial court did not make a finding pursuant to
{¶51} As discussed above, we find no error in the court‘s determination that it is in the child‘s best interest to grant permanent custody to the agency or in the court‘s determination that the child cannot be placed with either parent or should not be placed with her parents. However, once those findings were made, the court erroneously determined that it was required to grant permanent custody under the “shall grant” language in
{¶52} Judgment reversed and remanded.
BRESSLER, P.J., and POWELL, J., concur.