IN RE: G.P., K.P. AND L.P.
Case No. 2013CA00126, 2013CA00127
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 21, 2013
2013-Ohio-4692
Hоn. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2012-JCV-00086. JUDGMENT: Affirmed.
For Plaintiff-Appellee
JAMES B. PHILLIPS
SCJFS
221 Third Street S.E.
Canton, OH 44702
For Defendant-Appellant P.R.
AARON KOVALCHIK
116 Cleveland Avenue N.W., Ste. 808
Canton, OH 44702
For Defendant-Appellant E.P.
STACY M. ZIPAY
Stark County Public Defender
201 Cleveland Avenue S.W., Ste. 104
Canton, OH 44702
{¶1} Appellants P.R. (“Mother“) and E.P. (“Father“) appeal from the May 29, 2013 judgment entry of the Stark County Common Pleas Court, Family Court Division, terminating their parental rights and granting permanent custody of G.P., K.P., and L.P. to Stark County Department of Job and Family Services (“SCDJFS“).
Facts & Procedural History
{¶2} P.R. is the mother of G.P., born October 14, 2009, K.P., born October 15, 2010, and L.P., born November 1, 2011. E.P. is the father of G.P., K.P., and L.P., as confirmed by genetic testing in February of 2013. On January 20, 2012, SCDJFS filed a complaint of neglect and dependency with regard to G.P., K.P., and L.P., and Mother‘s four older children. E.P. is not the father of Mother‘s four older children. The complaint alleged, in part, that Mother failed to supervise the children at a domestic violence shelter where they resided, and Mother and Father failed to provide for the basic needs of the children. Further, that there were allegations of domestic violence between Mother and Father. Father was charged with domestic violence against Mother, but the charge was no-billed when Mother refused to testify against Father.
{¶3} G.P., K.P., and L.P. were placed in the temporary custody of SCDJFS on January 25, 2012. SCDJFS filed an amended complaint on February 6, 2012 to add Father to the case plan. On February 14, 2012, G.P., K.P., and L.P. were adjudicated dependent children after Mother and Father stipulatеd to a finding of dependency. Also on February 14, 2012, SCDJFS orally moved to remove the allegation of neglect against Mother and Father.
{¶5} In the case plan Father was ordered to: (1) secure and maintain independent housing with adequate supplies for all of the children; (2) complete a parenting evaluation and comply with all recommendations made; and (3) submit random urine screens, complete a substance abuse assessment, and comрlete any subsequent treatment as recommended. After Father completed the parenting evaluation, his case plan was amended to include the following: (1) complete Goodwill parenting and (2) complete a mental health assessment and comply with all treatment recommendations. After Father addressed his mental health issues, SCDJFS intended to refer him to Melymbrosia due to ongoing concerns of domestic violence between Mother and Father.
{¶6} At a case review hearing on July 2, 2012, the trial court indicated Mother needed more time to complete case plan services, Father‘s whereabouts were unknown but he tested pоsitive for cocaine when he was last tested, and both parents needed to
{¶7} At the trial, Stacy Senff (“Senff“), the ongoing case worker from SCDJFS, testified she had been involved with the family on a non-court basis since December of 2011 because of homelessness and domestic violence issues. Senff and SCJDFS became involved with the family on a court-basis on January 20, 2012, due to concerns about domestic violence, failure to supervise, and failure to provide for basic needs of the children.
{¶9} Mother visited G.P., K.P., and L.P. regularly when the case began through the spring of 2012. However, after the spring of 2012, the visits declined and Mother‘s last visit with G.P., K.P., and L.P. was August 14, 2012. Senff‘s last communication with Mother was in August of 2012. While Mоther appeared for court hearings, Mother has not provided Senff with a permanent phone number or address, though Senff has
{¶10} Senff stated Father completed a parenting evаluation and went to Quest for substance abuse issues, but subsequent to the Quest program, he continued to test positive for cocaine. Father contacted Senff in December of 2012 and Senff again referred him to Quest for substance abuse counseling. Though Father did have a few negative drug screens throughout the pendency of the case, Father was unsuccessfully discharged from Quest in February of 2013 due to his positive cocaine tests and Father has not completed any drug treatment since that date. Father started the Goodwill Parenting program, but was discharged from the program due to positive cocaine tests. Senff referred Father to Coleman Behavioral Health (“Coleman“) for mental health issues. Father told Senff he went to Coleman, but Senff was unable to verify his attendance because Father failed to sign a release for her to view the records from Coleman. Senff intended to refer Father to Melymbrosia after his mental health issues were addressed because he was incarcerated for domestic violence at the beginning of the case. However, Senff could not make the referral to Melymbrosia because Father had not completed mental health treatment. Further, if Father successfully completed Goodwill parenting, Senff would have referred him to the Intensive Parеnt Child/Interaction Program. Senff testified Father last visited G.P., K.P., and L.P. in May
{¶11} Senff testified that Father and Mother are currently in Wisconsin, living from hotel to hotel, and that neither of the parents is currently employed. Senff stated Father and Mother could not maintain stable housing when they lived in Stark County and, when the case was initiated by SCDJFS, G.P., K.P., and L.P. were living in a domestic violence shelter with Mother. Senff does not have a working phone number for either parent. Senff does not believe SCDJFS should оbtain an extension of temporary custody because the parents have failed to visit since May and August of 2012, the visits the parents had with the children did not go well, the parents are not residing in Ohio, they were not able to comply with services in Stark County, and their past behavior is an indicator of future behavior and thus the pattern of domestic violence and homelessness will likely continue.
{¶12} When Senff testified in the best interest portion of the hearing, she stated G.P., K.P., and L.P. have no medical concerns and have been in the same foster home since February of 2013. One of Mother‘s older children, Z.T., is placed in a separate foster home in Stark County. Mother‘s three оldest children are placed with their paternal grandmother in Wisconsin. G.P., K.P., and L.P. are bonded to their foster parents and are comfortable in their home. Senff stated the children do not have a bond with Mother or Father because of their lack of visitation and the young age of the children. Senff testified Luce contacted her in August of 2012 about obtaining custody of G.P., K.P., and L.P. Senff initially expressed her concerns to Luce because Luce
{¶13} Mother testified that when she left Ohio, she initially went to Minnesota and there she completed parenting classes through the Young Dad‘s Program and completed an eight-week angеr management program. Mother testified about certificates of completion for both programs, but the certificates were not offered into evidence. Mother also stated she gave Senff proof she attended Phoenix Rising programs when she was in Stark County. Mother currently lives in Wisconsin and has no permanent housing, but resides in an extended-stay hotel where she pays in advance. The hotel does not have a bedroom for G.P., K.P., and L.P. Mother last met with Senff in August 2012 and did not call Senff when she returned to Ohio. Mother testified she did not tell Senff she completed services in Minnesota or provide Senff with information to verify her completion of these services in Minnеsota. Mother verified she has not visited G.P., K.P. and L.P. since August of 2012. Mother stated she did talk to the children on the phone by calling the foster parents, but more than three months had
{¶14} Luce testified she contacted SCDJFS in August of 2012 and Senff told her there would likely be issues with Luce obtaining custody of the children because Luce‘s live-in boyfriend had a criminal record. Luce moved to Wisconsin and is currently living near the paternal grandmother who has temporary custody of three of Mother‘s older children. However, Luce has only had a few visits with the older children becausе the therapist of one of the children felt there should be no further visits with Luce. Luce does not currently have independent housing where G.P., K.P., and L.P. could sleep, but Luce testified she could obtain independent housing where the children could reside. Luce stated she did not request to visit G.P., K.P., and L.P. because Senff would not return her calls. Luce testified Mother does not live with her and Luce would not permit Mother to live with her. Luce believes SCDJFS has hindered her ability to bond with G.P., K.P., and L.P. However, she did not request a visit with them when she decided she was attending the trial. Luce is employed at a factory and stated she has had custody of Mother‘s other children in the past and thus previously completed a home study and background check. Luce admitted to smoking marijuana with Mother years ago when Mother was a teenager. Luce does not approve of some of Mother and Father‘s actions, but does not feel Mother and Father pose a risk to G.P., K.P., and L.P.
{¶15} Bernard Hunt (“Hunt“), the Guardian Ad Litem (“GAL“) for G.P., K.P., and L.P., submitted his report stating he feels it is in the best interest of the children for permanent custody to be granted to SCDJFS. Hunt indicated in his report he was unable to contact Father because the phone number provided was not in service and,
{¶16} Pursuant to a judgment entry filed on May 29, 2013, the trial court terminated Mother‘s and Father‘s parental rights and granted permanent custody of G.P., K.P., and L.P. to SCDJFS. The trial court found G.P., K.P., and L.P. could not be placed with either parent at this time or within a reasonable amount of time and that G.P., K.P., and L.P. were abandoned based upon the lack of contact for more than ninety (90) days by Mother and Father. The trial court further found it is in the best interest of G.P., K.P., and L.P. that permanent custody be granted to SCDJFS.
{¶17} Mother appealed from the trial court‘s May 29, 2013 judgment entry and raises the following assignments of error on appeal:
{¶18} “I. THE JUDGMENT OF THE TRIAL COURT THAT APPELLANT ABANDONED THE MINOR CHILDREN WAS AGAINST THE MANIFEST WEIGHT AND THE SUFFICIENCY OF THE EVIDENCE.
{¶19} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILDREN CANNOT BE PLACED WITH APPELLANT AT THIS TIME OR WITHIN A
{¶20} “III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶21} Mother‘s case has been assigned Case No. 2013 CA 00126.
{¶22} Father also appealed from the trial court‘s May 29, 2013 judgment entry and raises the following assignments of error:
{¶23} “I. THE TRIAL COURT‘S DECISION THAT [G.P., K.P., AND L.P.] CANNOT AND SHOULD NOT BE PLACED WITH MOTHER OR FATHER WITHIN A REASONABLE PERIOD OF TIME WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶24} “II. THE TRIAL COURT‘S DECISION THAT IT WAS IN THE BEST INTEREST OF THE MINOR CHILDREN TO TERMINATE PARENTAL RIGHTS AND PLACE THE [MINOR] CHILDREN IN THE PERMANENT CUSTODY OF THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”
{¶25} Father‘s case has been assigned Case No. 2013 CA 00127.
{¶26} For purposes of judicial economy, we will address the two cases together.
Permanent Custody
{¶27} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must be based on clear and convincing evidence.
{¶28} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of facts 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). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477. If some competent, credible evidence going to all the essential elements of the case supports the trial court‘s judgment, an appellate court must affirm the judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶29} Issues relating to the credibility of witnesses and the weight to be given to the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evidence in the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶30}
{¶32} Therefore,
Mother‘s First Assignment of Error
{¶33} Mother argues the trial court‘s finding that she abandoned G.P., K.P., and L.P. pursuant to
{¶34} For purposes of
{¶35} Mother contends her statement that she was allowed to have phone calls with the children “until I told them that everything would be okay, then I was told not to call them anymore because I was lying to them” demonstrates thаt SCDJFS prevented her from contacting the children. However, Mother failed to present any evidence as to when SCDJFS prevented her from calling the children and failed to provide any evidence as to who told her not to call the children. Further, Mother testified she stopped calling more than ninety days prior to the permanent custody trial, stated she never contacted Senff to let her know when she traveled to Stark County, and admitted the last time she visited G.P., K.P., and L.P. was in August of 2012. Luce testified she called Senff to inquire about obtaining custody of G.P., K.P., and L.P. only after she discovered Mother had stopped visiting them, in approximately July or August of 2012. Senff testified Mother last visitеd G.P., K.P., and L.P. on August 14, 2012 and failed to contact her to set up a visit after that date. As the statute defines “abandonment” as failure to make contact for more than ninety days, the trial court‘s finding that Mother abandoned G.P., K.P., and L.P. is not against the manifest weight of the evidence. Mother‘s first assignment of error is overruled.
Mother‘s Second Assignment of Error and Father‘s First Assignment of Error
{¶36} Both Mother and Father contend the trial court erred in finding that G.P., K.P., and L.P. cannot be placed with them at this time or within a reasonable period of time. We disagree.
(1) 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 cоurt 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. * * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child; * * *
(10) The parent has abandoned the child.
{¶38} A review of the record supports the trial court‘s conclusion that G.P., K.P., and L.P. cannot be placed with Mother or Father within a reasonable time. Senff
{¶39} Mother stated she completed a parenting class and anger management class in Minnesota and testified tо her certificates of completion. However, these certificates of completion were not admitted into evidence. While Senff testified some of these programs might qualify if equivalent to those in Mother‘s case plan, Senff also stated she would have to verify the content of the programs and Mother‘s attendance at the programs. Mother failed to communicate with Senff to notify her she was receiving services in Minnesota or provide Senff with information to verify the content of the programs and Mother‘s attendance. Senff continually had problems communicating with both Mother and Father as neither of them called her and she did not have a valid address or phone number for Mother or Father.
{¶41} Despite Mother and Father‘s compliance with parts of the evaluation portion of the case plan, each failed to follow through on the balance of the assessments and recommendations, continually failed to communicate with Senff to verify any program participation or to receive assistance with services, failed to visit the minor children, and failed to provide a stable home for G.P., K.P., and L.P. Accordingly, we find there is competent, credible evidence to support the trial court‘s finding that the minor children cannot be placed with either parent within a reasonable amount of time because the failure to substantially complete the case plan objectives and the failure of the parents to reduce the risks posed when the children were removed are directly attributable to the actions and inaction of Mother and Father. Mother‘s second and Father‘s first assignment of errors are overruled.
Mother‘s Third Assignment of Error and Father‘s Second Assignment of Error
{¶42} Both Mother and Father allege the trial court erred in finding it is in the best interest of G.P., K.P., and L.P. for permanent custody to be granted to SCDJFS. Mother and Father argue it is in the best interest of the children to be placed with Luce
Best Interest
{¶43} In determining the best interest of the child at a permanent custody hearing,
{¶44} We find the trial court did not err in finding that granting permanent custody to SCDJFS is in the best interest of G.P., K.P., and L.P. As detailed above, Mother and Father failed to make significant progress on their case plans and failed to visit G.P., K.P., and L.P. While G.P., K.P., and L.P. will lose the minimal bond they have with Mother and Father and it will be more difficult for them to see their siblings in Wisconsin, this harm is outweighed by the benеfits of permanency and stability. G.P.,
{¶45} Luce testified she sought custody of the children beginning in August of 2012. While Luce contacted Senff in August of 2012, Luce lived with her boyfriend who had a criminal record. When Luce moved to Wisconsin, she requested a home study which was initiated. However, on the date of the trial, Senff had not received notification that Luce had passed the home study and Senff received indications that the individuals in Wisconsin were having difficulty obtaining access to Luce and her home. Luce testified that while she can obtain independent housing and is employed, she currently does not have independent housing and her current living situation does not include bedrooms for G.P., K.P., and L.P.
{¶46} Senff testified Luce never requested visitation with G.P., K.P., and L.P. during the pendency of the case and that the children do not know Luce or have a bond with her. Luce confirmed she never requested visitation, but stated it was because Senff would never call her back if she called her to ask her something. When Senff left Luce a message requesting an in-person interview when Luce came to town prior to the trial date, Luce did not return her call. Luce stated her visits with Mother‘s older children in Wisconsin did not go well and one of the children‘s therapists recоmmended a suspension of visitation with Luce. Both Senff and Hunt testified they were concerned by the close contact between Mother and Luce. Though Luce testified she was not living with Mother and would not let Mother live with her, Luce also testified she did not think Mother or Father posed a risk to the children. Luce admitted to smoking marijuana with Mother many years ago when Mother was a teenager.
{¶48} Based on the foregoing, we find the trial court properly considered and weighed the factors in
Father‘s Motion for Six-Month Extension
{¶49} Father argues the trial court erred when it denied his motion for a six month extension of temporary custody to SCDJFS. Father contends both he and Mother have complied with portions of the case plan and are working towards reunification. We disagree. A trial court‘s decision to grant or deny an extension of temporary custody is a discretionary one. See
{¶50} We find Father has failed to demonstrate an abuse of discretion by the trial court in denying his motion for six-month extension. The testimony reflects that because of Mother‘s and Father‘s decisions in failing to visit G.P., K.P., and L.P. since May and August of 2012, failing to secure independent housing, failing to complete the recommendations made after their parenting evaluations, Father‘s continued positive drug tests throughout the case, and both parents’ consistent failure to communicate with the caseworker, Mother and Father have failed to make significant progress in their case plan. Further, based on the evidence presented, there is not clear and cоnvincing evidence that a reasonable likelihood of reunification exists in six months. Mother and Father are unemployed, are living in an extended-stay hotel, and have not addressed the concerns present since the beginning of the case such as domestic violence, mental health concerns, and substance abuse. As indicated by the trial court, Mother and Father are not able to remedy the initial problems that existed at the beginning of the case in the foreseeable future. As set forth more fully above, the evidence before the trial court supports the conclusion that an extension of temporary custody is not in G.P., K.P., and L.P.‘s best interests, but, rather, their interests are best served by an award of permanent custody to SCDJFS. Father‘s third assignment of error is overruled.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
HON. CRAIG R. BALDWIN
WSG:clw 1001
IN RE: G.P., K.P. AND L.P.
CASE NO. 2013CA00126
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
2013-Ohio-4692
For the reasons stated in our accompanying Memorandum-Opinion, the May 29, 2013 judgment entry of the Stark County Common Pleas Court, Family Court Division, is affirmed. Costs to appellants.
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
HON. CRAIG R. BALDWIN
IN RE: G.P., K.P. AND L.P.
CASE NO. 2013CA00127
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the May 29, 2013 judgment entry of the Stark County Common Pleas Court, Family Court Division, is affirmed. Costs to appellants.
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
HON. CRAIG R. BALDWIN