In re G.H.
- Reporters:
- ,
- Before:
- Klatt, Tyack, Brunner
On brief: Farlow & Associates, LLC, and Christopher L. Trolinger, for appellee A.H.
On brief: William T. Cramer, for appellee J.A.W.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
D E C I S I O N
Rendered on March 22, 2016
KLATT, J.
{¶ 1} Appellant, Franklin County Children Services (“FCCS“), appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which denied FCCS’ motion for permanent custody of G.H. and granted legal custody of G.H. to his father, appellee A.H. For the following reasons, we affirm that judgment.
{¶ 2} G.H. was born on September 19, 2009 to A.H. and J.A.W., an unmarried couple. Initially, G.H. lived with his mother, J.A.W., and his half-brother, D.A., at his
{¶ 3} In November 2010, J.A.W. approached FCCS seeking assistance. She had resorted to stealing to provide for her sons, and she was suffering from anxiety and depression. FCCS and J.A.W. entered into a voluntary custody agreement, under which FCCS temporarily cared for D.A. and G.H. while working with J.A.W. so she could resume care of her children. FCCS returned the children to J.A.W.‘s care after a short period.
{¶ 4} In April 2011, J.A.W. contacted A.H. and asked him to help her and the children move back to Virginia. J.A.W. wanted to leave Ohio because “[t]hings just got really bad” between her and her then boyfriend. (Aug. 19, 2014 Tr. 58.) A.H. assisted J.A.W. with the move.
{¶ 5} J.A.W.‘s sojourn in Virginia lasted only two weeks. When J.A.W. announced she was returning to Ohio, A.H. asked her to leave G.H. with him. J.A.W. refused. She and the boys took a bus back to Ohio, and upon arriving in Columbus, J.A.W. went to FCCS’ offices and demanded that FCCS take custody of her children. FCCS again entered into a voluntary custody agreement with J.A.W. and assumed custody of D.A. and G.H.
{¶ 6} In May 2011, FCCS filed complaints seeking to have D.A. and G.H. adjudicated dependent children. The complaints stated that the voluntary custody agreement was expiring, but J.A.W. was not in a position to adequately parent her children. J.A.W. suffered from untreated alcohol addiction and mental illness, lacked stable housing, and engaged in physically violent confrontations with her boyfriend. The juvenile court found that D.A. and G.H. were dependent children, and it granted FCCS temporary custody of both children. FCCS placed D.A. and G.H. in foster care.
{¶ 7} On January 5, 2012, FCCS transferred G.H. from foster care to his father‘s home. After G.H. arrived in Virginia, he developed purpura, which caused severe pain in G.H.‘s legs and a rash. G.H. spent approximately two days in the hospital while medical personnel tested and treated him. Soon thereafter, A.H‘s father informed A.H. that he had only six months to live. A.H. visited his father and found him in poor health.
{¶ 8} On April 13, 2012, a Virginia children service‘s caseworker arrived at A.H.‘s home for a review. The caseworker asked A.H. if he was suicidal, and A.H. answered affirmatively. The caseworker called the police, which angered A.H. and caused him to “bl[o]w up on the cops.” (May 4, 2015 Tr. 55.) A.H. wrestled with the police officers called to his home, and he was arrested. Although G.H. was in the home during this incident, he did not witness it. Ultimately, A.H. was convicted of obstruction of justice, a misdemeanor, and served six months in jail. After the incident, FCCS removed G.H. from A.H.‘s home and returned him to foster care.
{¶ 9} On September 12, 2012, FCCS moved for permanent custody of D.A. and G.H. By that point, D.A. and G.H. had been in FCCS’ custody for over 12 months of a consecutive 22-month period. With regard to J.A.W., the motion stated:
[M]other, [J.A.W.,] has failed to make any significant progress in her case plan objectives. Mother has severe chemical dependency issues she has failed to address. Despite recommendations for inpatient treatment, Mother refuses to complete any long-term drug and alcohol treatment. Mother completed a 30-day inpatient treatment program, but she was subsequently found with alcohol in her home and admitted to drinking. Mother has failed to link with a psychiatrist for her mental health issues. Mother has completed only 17 out of 29 drug screens, with 9 being positive for marijuana and 2 for methadone. She has not completed a drug screen since May 21, 2012. She has also failed to complete anger management counseling.
(FCCS’ Motion for Permanent Custody, at 4-5.) Additionally, the motion noted that A.H. was then in a Virginia jail.
{¶ 10} A.H. contested FCCS’ motion for permanent custody. Additionally, A.H. filed a motion asking the juvenile court to terminate FCCS’ temporary custody and award him legal custody of G.H.
{¶ 11} On various days beginning August 19, 2014 and ending May 26, 2015, the juvenile court held a hearing on FCCS’ motion for permanent custody and A.H.‘s motion for legal custody. On November 13, 2014, the juvenile court continued the hearing so that
{¶ 12} Throughout the custody hearing, multiple witnesses testified to the strong bond between D.A. and G.H. For most of their young lives, the two boys have lived together, and, by all accounts, they share a close relationship. The brothers’ guardian ad litem and an FCCS caseworker assigned to the brothers recommended that FCCS receive permanent custody of both boys so D.A. and G.H. could be adopted together, thus preserving their bond.
{¶ 13} During A.H.‘s May 4, 2015 testimony, he indicated that he was willing to accept custody of both boys. A.H. acknowledged that he was not D.A.‘s biological father, but he explained that he had developed a relationship with D.A. At the conclusion of the May 4, 2015 testimony, the juvenile court awarded A.H. temporary custody of both D.A. and G.H.
{¶ 14} While ideal for the boys, the placement proved unsuccessful. A.H. could not handle caring for both children, so he returned D.A. to FCCS’ custody. A.H. maintained custody of G.H.
{¶ 15} In a decision and judgment entry rendered July 13, 2015, the juvenile court denied FCCS’ motion for permanent custody of G.H. and granted A.H.‘s motion for legal custody of G.H.2 FCCS now appeals that judgment, and it assigns the following error:
FCCS proved by clear and convincing evidence that permanent custody is in the best interests of the child. The trial court‘s judgment denying the motion for permanent custody is not supported by sufficient competent and credible evidence. Therefore, the decision of the trial court denying FCCS’ motion for permanent custody and granting legal custody of G.H. to A.H. is against the manifest weight of the evidence.
{¶ 16}
(a) * * * [T]he 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 * * *.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{¶ 17} Once a juvenile court determines that one of the circumstances in
(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;
(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;
(c) The custodial history of the child, including whether 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 * * *;
(d) The child‘s need for a legally secure placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 18} In the case at bar, the juvenile court also had before it A.H.‘s motion to terminate FCCS’ temporary custody of G.H. and award him legal custody of G.H. Generally, any party to a custody proceeding may, at any time, request that the juvenile court modify or terminate a previously entered order of disposition.
{¶ 19} There is one significant difference between applying the
{¶ 20} FCCS argues that the manifest weight of the evidence supports awarding it permanent custody of G.H., rather than the granting of legal custody to A.H. In reviewing whether the juvenile court‘s judgment is against the manifest weight of the evidence, an appellate court must make every reasonable presumption in favor of the judgment and the juvenile court‘s findings of fact. In re A.B., 10th Dist. No. 15AP-105, 2015-Ohio-3849, ¶ 25. If the evidence is susceptible to more than one construction, an appellate court must give the evidence that interpretation which is consistent with the judgment. Id. With these precepts in mind, we must weigh the evidence and all reasonable inferences to determine whether the juvenile court ” ‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’ ” In re G.D., 10th Dist. No. 14AP-801, 2015-Ohio-1969, ¶ 28, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.
{¶ 21} Here, no one disputes that G.H. had been in FCCS’ temporary custody for over 12 months of a consecutive 22-month period when FCCS moved for permanent custody. Thus, FCCS satisfied the first part of the two-part test that a juvenile court applies to decide whether to grant permanent custody of a child to a public children services agency. Consequently, the juvenile court‘s resolution of both FCCS’ and A.H‘s motions turned upon its analysis of the
{¶ 22} Pursuant to the first factor, found in
{¶ 23} Despite the relatively limited contact between father and son, A.H. testified that G.H. was always excited and joyful to see him, whether in person or on the computer. An FCCS caseworker who had observed G.H. and A.H. together testified that G.H. enjoyed his father‘s company, and that G.H. and A.H. were both excited to see each other. Additionally, both A.H. and his mother testified that A.H. and G.H. had established a bond. Given this evidence, we conclude that the manifest weight of the evidence supports the juvenile court‘s conclusion that a bond between A.H. and G.H. has developed over time.
{¶ 24} With regard to D.A., the juvenile court found that the brothers share a close bond. On appeal, FCCS argues that this bond militates in favor of awarding FCCS permanent custody of both D.A. and G.H. so FCCS can place the boys in the same adoptive home. However, as the juvenile court found, the flaw in this argument is FCCS’ inability to guarantee that D.A. and G.H. will be adopted together. In response, FCCS argues that the juvenile court erred in even considering the likelihood of adoption. We disagree.
{¶ 25} Although nothing in
{¶ 26} FCCS also criticizes the juvenile court for speculating regarding the probability of a single family adopting both boys. But, in fact, the FCCS caseworker and the guardian engaged in speculation by presuming that FCCS could keep D.A. and G.H. together. The juvenile court exposed that speculation by stating that a tandem adoption was not a guaranteed outcome, but rather, just a hope for the boys. In sum, we find no error in the juvenile court‘s analysis.
{¶ 27} Pursuant to the second factor, found in
{¶ 28} Pursuant to the third factor, found in
[G.H.] was initially taken into the custody of FCCS when the Magistrate granted a [temporary order of custody] on May 13, 2011 * * *. [G.H.] was adjudicated dependent and [temporary custody] was granted to FCCS on January 9, 2012, and he remained predominately in FCCS custody continuously until May 4, 2015 when the Court ordered temporary custody to his Father[, A.H.].
(July 13, 2015 Decision and Judgment Entry, at 6-7.) The juvenile court acknowledged elsewhere in its decision that, given the facts set forth above, G.H. had been in FCCS’ temporary custody for over 12 months of a consecutive 22-month period.
{¶ 29} FCCS next argues that the juvenile court erred in not weighing the third factor in its favor. This argument wrongly assumes that, because the juvenile court awarded A.H. legal custody of G.H., the juvenile court must have determined that this factor favored such an outcome. We do not share FCCS’ assumption. No one
{¶ 30} With regard to the fourth factor, set forth in
{¶ 31} FCCS disputes A.H.‘s testimony that he receives psychological counseling once a week. Essentially, FCCS will not accept that A.H. attends counseling because he has refused to execute a release so that his counselor can discuss A.H.‘s mental health with the agency. The juvenile court found A.H.‘s testimony regarding his counseling credible, and the record shows no basis for questioning that assessment.
{¶ 32} FCCS also disparages the efficacy of A.H‘s counseling because, according to FCCS, A.H. had only been receiving counseling for a few weeks when the hearing
{¶ 33} Next, FCCS argues that A.H. failed to demonstrate that he has stable housing. FCCS bases this argument on the series of moves A.H. and his family experienced from November 2014 to March 2015. Unlike FCCS, we do not infer instability from the changes in A.H.‘s address. A.H. explained the reasons for the moves: a new job in a different city, bedbugs infesting the apartment where A.H. planned to reside, and a short-notice search for alternative housing. A.H. and his family now live in a two-bedroom apartment, for which A.H. signed a 15-month lease. Consequently, the evidence shows that A.H. has stable housing.5
{¶ 34} Finally, FCCS contends that A.H. cannot provide G.H. with a permanent home because he admittedly smokes marijuana on a weekly basis and has no plans to stop. Frankly, A.H.‘s drug use is a serious concern. A.H. testified that he does not smoke in front of his children and he does not believe that his marijuana use lessens his parenting ability. Nevertheless, smoking marijuana is illegal (both in Ohio and Virginia) and impairs the user‘s judgment.
{¶ 35} Despite A.H.‘s marijuana use, the juvenile court found multiple factors weighed in favor of placing G.H. in A.H.‘s home: A.H. has adequate and appropriate housing, A.H. has the financial means to care for G.H., G.H. will share A.H.‘s home with his step-mother and his half-sister, and G.H.‘s maternal and paternal grandmothers live near A.H. and can assist A.H. with his parenting obligations. Weighing all the evidence, the juvenile court concluded that A.H. could provide a secure permanent placement for G.H.
{¶ 37} Finally, FCCS attacks the juvenile court‘s conclusion, set forth in its consideration of other relevant factors, that A.H. substantially completed his case management plan. Ultimately, assigning a degree to which A.H. completed his case management plan—whether substantially, partially, or minimally—is of little importance. The juvenile court considered the issues addressed in the case management plan, including A.H.‘s mental health, housing, and drug use, in its consideration of the fourth factor. We have reviewed the juvenile court‘s consideration of each of those issues. We thus decline to resolve a quibble over the degree to which A.H. completed the case management plan.
{¶ 38} In the final analysis, the juvenile court “gave significant weight to the ability to be raised with a sibling and by [a] natural parent with other relatives that are available to assist [G.H.‘s] transition” to A.H.‘s home. (July 13, 2015 Decision and Judgment Entry, at 10.) FCCS would rather have had the juvenile court give greater weight to keeping G.H. and D.A. together. However, as the juvenile court pointed out, FCCS cannot guarantee the same adoptive home for both D.A. and G.H. On the other hand, the juvenile court could guarantee G.H.‘s ongoing relationship with his father, half-sister, and extended maternal and paternal family by granting A.H. legal custody. Facing a difficult decision, the juvenile court determined that granting legal custody to A.H. was in G.H.‘s best interest. The manifest weight of the evidence supports this determination.
{¶ 39} For the foregoing reasons, we overrule FCCS’ sole assignment of error, and we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
TYACK and BRUNNER, JJ., concur.