IN THE MATTER OF: E.S., D.H., and K.H.
Appellate Case No. 2016-CA-36
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
January 20, 2017
[Cite as In re E.S., 2017-Ohio-219.]
WELBAUM, J.
Trial Court Case Nos. 2015-459, 2015-460, and 2015-461 (Appeal from Domestic Relations Court)
Rendered on the 20th day of January, 2017.
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502 Attorney for Appellee-Clark County Department of Job and Family Services
JENNIFER S. GETTY, Atty. Reg. No. 0074317, 7501 Paragon Road, Dayton, Ohio 45459 Attorney for Appellant-J.D.
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} Mother has three children, nine-year old E.S., six-year-old D.H., and four-year-old K.H. The record indicates that E.S.‘s father is incarcerated in California and was not involved in any of the custody proceedings at issue. At all relevant times, except for a brief period between November 2015 and January 2016, Mother was in a relationship with D.H. and K.H.‘s father (“Father“). Mother and Father resided together in Springfield, Ohio, and were engaged to be married. Father, however, died sometime after the juvenile court entered its judgment granting permanent custody of E.S., D.H., and K.H. to CCDJFS. Father‘s cause of death is not apparent from the record.
{¶ 3} CCDJFS first became involved with E.S., D.H. and K.H. in August 2013, when officers from the Springfield Police Department found E.S., who was five years old at the time, attempting to cross South Limestone Street by himself in his pajamas. E.S. reported to the officers that he was looking for food for his family because he was hungry. Upon returning E.S. home, the officers found that he and his family lived in poor conditions. Specifically, the officers observed that there was very little food in the house, the house was in disarray, there was no furniture, stove or refrigerator, and that two of
{¶ 4} Due to the condition of the home and that of the children, on August 16, 2013, the trial court granted an emergency removal of the children from Mother and Father‘s home. The removal was extended in September 2013, after Mother and Father agreed to the children being put in the temporary custody of CCDJFS.
{¶ 5} After their removal, the children were assessed at the Rocking Horse Community Health Center (“Rocking Horse“) where it was discovered that they all had developmental delays and medical conditions. Specifically, E.S. had a mild cognitive delay, was underweight, and was diagnosed with ADHD, post-traumatic stress, and reactive attachment disorder. D.H. was determined to have severe global developmental delay, which affected his speech, motor skills, and cognitive ability. At four years of age, D.H. could not walk on stairs, nor was he potty trained. K.H., who was 14 months old at the time, had similar developmental delays as D.H. K.H. could not crawl and he was diagnosed with macrocephaly (enlarged head), which was attributable to neglect. In addition, all three children had severe vision problems.
{¶ 6} Following their removal from Mother and Father‘s home, the children were placed in foster care for 15 months, during which time they received extensive professional treatment. E.S. received mental health therapy at Rocking Horse, medication for his various mental health disorders, and was also enrolled in the Perrin
{¶ 7} While the children were in foster care, Mother and Father participated in programs at Rocking Horse to help them understand and address the needs of their children, including individual and family therapy. Father specifically worked on addressing his issues with anger. On December 15, 2014, the children were returned to Mother and Father for a 30-day visitation period. Thereafter, legal custody was returned to Mother and Father on January 15, 2015, and the case was closed.
{¶ 8} Approximately one month later, during an unannounced home visit on February 27, 2015, a CCDJFS caseworker discovered that the condition of Mother and Father‘s home had declined and that Mother and Father had regressed to previous patterns of behavior. The caseworker observed that the home was a “disaster” with “trash all over the place.” Trial Trans. Vol. II (Apr. 21, 2016), p. 29. Father blamed the condition of the home on the children and was very angry that the caseworker had visited. The caseworker also learned that E.S. had missed eight days of school while in his parents’ care.
{¶ 10} CCDJFS also learned that Mother had not been filling the children‘s prescriptions and giving them their medication regularly. The children were also found to be without their glasses, which caused their eyesight to again worsen. The children‘s behaviors and developmental strides were also regressing, particularly E.S., who was kicked out of school regularly due to his bad behavior.
{¶ 11} On April 13, 2015, four months after being returned to Mother and Father, the children were once again removed from Mother and Father‘s home after the family therapist at Rocking Horse reported that Father had physically abused the children. It was reported that Father became angry and struck K.H. in the mouth, busting his lip, and choked E.S. with a necklace he was wearing. The juvenile court granted an order for temporary shelter and care to CCDJFS, and the children returned to foster care. A guardian ad litem (“GAL“) was appointed to the children shortly thereafter on April 16, 2015. Counsel was appointed to Mother on April 30, 2015. After a hearing on the matter, temporary custody was once again granted to CCDJFS on May 20, 2015.
{¶ 12} After unsuccessfully searching for a relative to place the children with, on January 28, 2016, CCDJFS filed a motion for permanent custody of the children pursuant to
{¶ 13} Mother now appeals from the juvenile court‘s judgment granting permanent custody to CCDJFS and terminating her parental rights, raising five assignments of error for review.
First and Second Assignments of Error
{¶ 14} For purpose of clarity and convenience, Mother‘s First and Second Assignments of Error will be addressed together. They are as follows:
- THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING THAT PERMANENT CUSTODY TO THE CLARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WAS IN THE BEST INTEREST OF THE CHILDREN AS SAID FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
- THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING THAT ALL RIGHTS AND DUTIES OF THE MOTHER OF THE CHILDREN BE TERMINATED AS SAME WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 15} Under her First and Second Assignments of Error, Mother contends that the
{¶ 16} “In a proceeding for the termination of parental rights, all the court‘s findings must be supported by clear and convincing evidence.” In re E.D., 2d Dist. Montgomery No. 26261, 2014-Ohio-4600, ¶ 7, citing
{¶ 17} We have also stressed that “issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 22. The “‘rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.‘” Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶ 19} ”
{¶ 20} Here, Mother only challenges the juvenile court‘s finding that granting permanent custody to CCDJFS was in the best interest of her children, as the record is clear that E.S., D.H., and K.H. had been in the temporary custody of CCDJFS for 12 or
{¶ 21} Concerning a child‘s best interests, ”
1. Interaction and Interrelationship of Children with Parents and Foster Parents
{¶ 23} While the record does contain testimony indicating that Mother bonded with her children and had positive interactions with them, there is also evidence indicating that said bond and interactions are limited to simple activities such as playing games and eating. The record further indicates that Mother‘s relationship with her children is consistently difficult due to her inability to address their emotional needs and manage their behavior.
{¶ 24} The visitation specialist testified that it was typical for the children to get upset and cry during visitations, and in response, Father would get agitated and occasionally leave the room, while Mother would get frustrated and call for a CCDJFS staff member to help her manage the children. The visitation specialist estimated that Mother required help during 30 out of the 40 visits she observed, even for minor issues, and noted that Mother requires more assistance than other visiting families. The visitation specialist also testified that Mother gets overwhelmed with her children and has difficulty addressing their emotional concerns and misbehaviors.
{¶ 25} The visitation specialist further testified that during the past few months, Mother and Father have become less engaged during visitations. According to the
{¶ 26} During the majority of the April 16, 2016 visit, the interactions between the parents and children were not very meaningful, as the children appeared more interested in independent play. The video showed that Father was agitated and abrasive during most of the visit and that Mother spent most of her time sitting at a table either eating with the children or doing a craft project, which she continued to work on even after the children lost interest. At one point, two of the children began to cry and Mother responded by remaining silent and continuing to work on the craft project. As the children cry, Father gets upset at Mother and said: “More worried about that than the kids huh?” Exhibit O—Job and Family Services Visitation DVD (April 16, 2016). Father then began to shout at Mother in front of the children because he felt he was the one blamed whenever something went wrong during the visitations. Mother remained passive throughout the ordeal and let CCDJFS staff intervene to diffuse the situation.
{¶ 27} The visitation specialist testified that during the April 16, 2016 visit, E.S. told mother he wanted to be adopted, which prompted Mother to cry. The GAL indicated that E.S. has not really bonded with Mother, has no bond with Father, and has told Mother that he hated her. Moreover, the visitation specialist indicated that D.H. usually keeps to himself during visitations, and both the visitation specialist and GAL testified that Father interacted and bonded with K.H. the most, but did not have a bond or interact much with the older children.
{¶ 28} The CCDJFS caseworker testified that the children are bonded to their
{¶ 29} Based on the foregoing testimony, we find there is clear and convincing evidence in the record supporting the juvenile court‘s finding that the children lack a harmonious relationship and strong emotional bond to Mother and Father, and have a positive relationship with their foster parents.
2. The Children‘s Wishes
{¶ 30} Regarding the children‘s wishes, the juvenile court deferred to the GAL‘s recommendation that the motion for permanent custody to CCDJFS be granted, as the GAL testified that reunifying the children with Mother and Father would be harmful for them.
{¶ 31} We note that
{¶ 32} While there is testimony in the record indicating that E.S. and D.H. told the GAL they wanted to go home to Mother and Father, the GAL explained that the children were not mature enough to fully understand their situation. For example, the GAL
3. Custodial History
{¶ 33} Regarding custodial history, the juvenile court observed in its decision that all three children had been in CCDJFS‘s temporary custody ever since they were removed from Mother and Father‘s home in August 2013, with the exception of the four month period between December 15, 2014 and April 13, 2015.
4. Children‘s Need for Legally Secure Permanent Placement
{¶ 34} As for the children‘s need for a legally secure permanent placement, the juvenile court found that there is no probability that Mother will be able to provide a safe, secure and appropriate home for her children. Although the juvenile court found that
{¶ 35} The record indicates that Mother is limited in how she can interact with her children due to her extensive health problems, including morbid obesity, lupus, epilepsy, arthritis, seizures, depression, and a severe heart problem for which she will be receiving surgery. There is testimony in the record indicating that Mother‘s health issues are so severe that Father was concerned about leaving Mother home alone. The record also indicates that Mother tends to neglect her medical appointments and has failed to take her seizure and antidepressant medication.
{¶ 36} The record further indicates that when the children were in Mother‘s care between January and April 2015, Mother failed to fill the children‘s prescriptions and failed to ensure they were taking their medications regularly. During that time, the children were also not wearing their glasses, and as a result, they suffered significant deterioration in their vision causing them to need eye patches again. Moreover, it was reported that Mother and Father were not taking K.H. to his appointments at Early Head Start for his developmental delays. The caseworker from CCDJFS testified that Mother advised that she had stopped taking K.H. to Early Head Start because she felt K.H. no longer needed the treatment; although the record is clear that said treatment is pivotal to K.H.‘s development.
{¶ 37} The record further indicates that Mother‘s mental challenges present a barrier to her being an effective parent who can provide a secure home. On the witness
[Mother] does have some difficulty with being able to identify needs, mobilize skills and resource, and proactively meet the needs of her children. Her own difficulty with moods and depression often interfere with her ability to perform these responsibilities. When she is monitored and supported, she is able to follow directions and meet the needs of her children. However, when left to her own devices, she fails to recognize the need to continue her own supports, identify the needs of her children, or to act proactively to meet the needs of her children.
State‘s Exhibit H – Psychological Evaluation (Sept. 27, 2015), p. 7.
{¶ 38} At trial, Dr. Hrinko opined that Mother has difficulty grasping the long-term consequences of her failure to make sure her children get the necessary treatment for their developmental delays. Given that Mother has not made substantial changes in her behavior between 2014 and 2016, Dr. Hrinko indicated that he is pessimistic Mother would ever make the necessary changes to be an appropriate parent and believed it was unlikely that her behavior would change in the future.
{¶ 40} The visitation specialist at CCDJFS further testified that while Mother understands things such as feeding her children, she does not understand her children‘s emotional concerns. As previously noted, the visitation specialist testified that Mother gets overwhelmed during visitations because she cannot handle her children‘s behaviors and needs CCDJFS staff to assist her with her children on a regular basis. Similarly, the family therapist at Rocking Horse also expressed concerns that Mother is too “hands off” with her children, lacks discipline, and that she had unrealistic expectations of her children‘s abilities.
{¶ 41} The CCDJFS caseworker testified that she did not believe the children could safely be reunified with Mother. Despite Mother showing the caseworker that she could provide the children with food and shelter, the caseworker testified that there are too many barriers for Mother to consistently meet her children‘s needs on her own. Although the caseworker believes that Mother truly loves her children, she also believes that Mother does not comprehend the importance of the skills that CCDJFS puts in place, and that Mother fails to understand how important the developmental programs are for her children.
{¶ 42} In addition to the specific factors set forth in
{¶ 43} Although Mother argues that she has a loving relationship with her children, was able to provide them with food and shelter, and actively participated in her case plan, this does not change the fact that the juvenile court‘s best interest findings are clearly and convincingly supported by the record. Moreover, contrary to Mother‘s claim otherwise, Father‘s death has no effect on the juvenile court‘s permanent custody decision, as Father‘s various issues with anger and abusive behavior were not the only problems in the household that led to the permanent custody decision. The juvenile court clearly found Mother to be troublesome as well, concluding that “the passive, docile, unfortunate, and unhealthy mother does not have the means or ability to provide for the children now or at any time in the reasonably near future.” Judgment Entry (May 5, 2016), Clark County Juvenile Court Case Nos. 2015-459, 2015-460, 2015-461, Docket Nos. 63, 49, 45, p. 5.
{¶ 44} For the foregoing reasons, we find that the juvenile court weighed the relevant factors in
{¶ 45} Mother‘s First and Second Assignments of Error are overruled.
{¶ 46} Mother‘s Third Assignment of Error is a follows:
THE TRIAL COURT ERRED IN FAILING TO APPOINT AN ATTORNEY FOR THE CHILDREN WHEN THE CASA‘S [GUARDIAN AD LITEM‘S] RECOMMENDATION FOR PERMANENT CUSTODY WAS INCONSISTENT WITH THE CHILD‘S WISHES.
{¶ 47} Under her Third Assignment of Error, Mother contends that the juvenile court should have appointed independent counsel for her children because the GAL‘s recommendation that permanent custody be granted to CCJFS was inconsistent with the children‘s wishes. In support of this claim, Mother relies on the GAL‘s testimony that E.S. and D.H. advised her that they wanted to go home to Mother and Father when she asked about their preferred placement. We disagree with Mother‘s claim.
{¶ 48}
{¶ 49} “Courts applying Williams have noted that ‘there is no need to consider the
{¶ 50} In Williams I, the Eleventh District explained that:
A juvenile court need only consider a child‘s wishes regarding a motion for permanent custody after giving due regard to the child‘s maturity.
R.C. 2151.414(D)(2) . Similarly, there is no need to consider the appointment of counsel based upon a child‘s occasional expression of a wish to be with a parent or because of a statement made by an immature child.* * *
Indeed, in most cases, a child of tender years will probably lack the maturity to understand the situation and consequences involved in a permanent custody case. We are not requiring that legal counsel be appointed every time a child states a desire to remain with a parent. However, when a child consistently expresses a desire to be with a parent, then a juvenile court should investigate, giving due regard to the child‘s maturity and understanding of the proceedings, and make a ruling about whether an attorney should be appointed to represent the child‘s interest and expressed wishes.
{¶ 51} In In re J.W., we addressed a situation similar to the present case wherein the parents contended that the trial court should have appointed counsel for their children because the GAL‘s recommendation to grant permanent custody to CCDJFS was inconsistent with the children‘s wishes to return home. We concluded that the trial court did not err in failing to appoint counsel for the children since the children‘s references to wanting to return home were only “occasional” and not repeatedly and consistently expressed. In so holding, we also considered the fact that the children did not regress in behavior after they were removed from their parents’ home, but improved significantly in foster care. In re J.W. at ¶ 47-48.
{¶ 52} In this case, the record does not indicate that E.S., D.H. or K.H. repeatedly expressed a desire to return home to their parents. Rather, the GAL testified that she had asked E.S. and D.H. what their wishes were and that they had told her they wanted to go home to Mother and Father. The GAL did not ask K.H. the question because he was only four years old, and in her opinion, too young to understand. The GAL testified that she thought eight-year-old E.S. and six-year-old D.H. also lacked the maturity to completely grasp what she was asking them. As previously discussed, the GAL demonstrated this by explaining that when she initially asked the eldest sibling, E.S., where he wanted to live, he responded “Heaven.” Trial Trans. Vol. I (Apr. 7, 2016), p. 173. From his response, the GAL gathered that E.S. did not fully understand the situation and lacked the maturity to state his wishes.
{¶ 53} Furthermore, during an April 16, 2016 visitation with his parents, E.S. told his Mother “I want to be adopted.” See Trial Trans. Vol. II (April 21, 2016), p. 68.
{¶ 54} Also, as in In re J.W., the children‘s behavior in this case did not regress after they were removed from their parents’ home. Rather, the record indicates that the children exhibited significant improvements while in foster care and regressed when they were returned home between December 2014 and April 2015.
{¶ 55} Given that the children did not make repeated requests to go home and given the children‘s age, lack of maturity, and improvement in foster care, we find that the juvenile court did not err in failing to appoint independent counsel for the children. Accordingly, Mother‘s Third Assignment of Error is overruled.
Fourth Assignment of Error
{¶ 56} Mother‘s Fourth Assignment of Error is as follows:
THE TRIAL COURT ERRED AND ABUSED IT‘S DISCRETION BY FINDING THAT CLARK COUNTY CHILDREN SERVICES MADE REASONABLE EFFORTS TO INVESTIGATE AND/OR LOCATE ALTERNATIVE RELATIVE OR NON-RELATIVE PLACEMENTS FOR THE CHILDREN.
{¶ 57} Under her Fourth Assignment of Error, Mother contends that there is evidence in the record establishing that there are relatives and local individuals who would have taken custody of her children and that CCDJFS failed in its duty to investigate alternative placement with these individuals. As a result, Mother claims the juvenile court
{¶ 58} The CCDJFS caseworker testified that after the children were removed from Mother and Father‘s home for the second time in April 2015, Mother and Father provided potential relatives to CCDJFS and that CCDJFS tried to contact those individuals, but none of them were viable. Specifically, the CCDJFS caseworker provided the following testimony:
Q: Okay. Have—were there any other reasonable efforts the agency offered with respect to relative placements?
A: We did. We did—we—well, the first go around we asked for a list of relatives, declaration of relatives, and we were told most of the time no, none of my relatives are appropriate, you know, I‘m not going to send them to my dad; I don‘t want to do that, I don‘t want to do this. They did give us one relative, but they never contacted us back. And so then when they came back into care, all the sudden there were a ton of relatives. So we did an ICPC on [Mother‘s] dad, and they denied that immediately. ICPC is interstate compact, and so we have to allow the other state to determine that. They immediately declined that. There were some local people that stepped forward, but they never did follow through. There was an aunt and uncle that stepped forward, but they didn‘t—Bethany contacted them several times and sent them letters, but they never
Q: And those were the people from Texas?
A: Yes. They were supposed to come up and visit, and they never did. They had a business that was kind of interfering with that.
Q: So really the agency exhausted all relative options with respect to anyone they provided?
A: That‘s the reason it took so long to file [for permanent custody].
Trial Trans. Vol. II (Apr. 21, 2016), p. 42-43.
{¶ 59} Based on the foregoing testimony, we find the trial court‘s finding that the CCDJFS made all reasonable efforts to investigate relative placements was not an abuse of discretion. Regardless, we note that the juvenile court was not required to consider placing the children with a relative before awarding permanent custody to CCDJFS:
[T]he [permanent custody] statute does not require a juvenile court to consider relative placement before granting [a] motion for permanent custody. [See In re Dyal, 4th Dist. Hocking No. 01CA11, 2001 WL 925379 (Aug. 9, 2001)] * * *. In other words, a juvenile court need not find, by clear and convincing evidence, that a relative is an unsuitable placement option prior to granting the permanent custody request. Id. Relatives seeking
the placement of the child are not afforded the same presumptive rights that a natural parent receives as a matter of law, and the willingness of a relative to care for the child does not alter the statutory factors to be considered in granting permanent custody. [See Dyal; In re Jefferson, 9th Dist. Summit Nos. 20092 and 20110, 2000 WL 1587010 (Oct. 25, 2000); In re Davis (8th Dist. Cuyahoga No. 77124, 2000 WL 1513767 (Oct. 12, 2000)]. Rather, a juvenile court is vested with discretion to determine what placement option is in the child‘s best interest. * * * The child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security. [In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991)]. Therefore, courts are not required to favor a relative if, after considering all the factors, it is in the child‘s best interest for the agency to be granted permanent custody. [See In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 64; see, also, In re Dyal; In re Lewis, 4th Dist. Athens No. 01CA20, 2001 WL 1468861 (Nov. 7, 2001); In re Wilkenson, 1st Dist. Hamilton Nos. C-010402, C-010408, 2001 WL 1220026 (Oct. 12, 2001) * * *.
In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-5595, ¶ 44. Accord In re J.K., 4th Dist. Ross No. 11CA3269, 2012-Ohio-214, 30.
{¶ 60} Mother‘s Fourth Assignment of Error is overruled.
Fifth Assignment of Error
{¶ 61} Mother‘s Fifth Assignment of Error is as follows:
{¶ 62} Under her Fifth Assignment of Error, Mother contends that she was indigent and entitled to have an attorney appointed to her during the proceedings that involved the initial removal of her children in 2013. She also claims she was entitled to have the adjudicatory and dispositional proceedings from the 2013 case bifurcated. The 2013 case, however, was closed after legal custody was returned to the parents in January 2015. As a result, Mother cannot raise an issue concerning the 2013 case in an appeal from the instant 2015 case. The record of the proceedings in the 2013 case is not a part of the record on appeal. Furthermore, the record of the instant case indicates that on April 30, 2015, the juvenile court found that Mother was indigent and appointed her counsel before the custody determinations at issue were made. Accordingly, Mother‘s claims have no merit with respect to the present case.
{¶ 63} Mother‘s Fifth Assignment of Error is overruled.
Conclusion
{¶ 64} Having overruled all five assignments of error raised by Mother, the judgment of the juvenile court granting permanent custody of E.S., D.H., and K.H. to CCDJFS is affirmed.
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Copies mailed to:
Megan M. Farley
Jennifer S. Getty
Hon. Joseph N. Monnin