IN THE MATTER OF: H.M., E.M., B.M., Jr., L.M. and W.M.
C.A. CASE NO. 2017-CA-42
T.C. NO. N46373
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
March 16, 2018
[Cite as In re H.M., 2018-Ohio-989.]
DONOVAN, J.
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O P I N I O N
Rendered on the 16th day of March, 2018.
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NATHANIEL LUKEN, Atty. Reg. No. 87864, 61 Greene Street, Xenia, Ohio 45385 Attorney for Greene County Children Services
BEN SWIFT, Atty. Reg. No. 65745, P.O. Box 49637, Dayton, Ohio 45449 Attorney for Mother
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DONOVAN, J.
{¶ 1} Appellant R.B. (hereinafter referred to as “Mother“) appeals a decision of the Greene County Court of Common Pleas, Juvenile Division, terminating her parental rights with respect to her five minor children, H.M., E.M., B.M., L.M., and W.M. (hereinafter
{¶ 2} The record establishes that H.M. was born in June of 2009. E.M. was born in November of 2011. B.M. was born in November of 2012. L.M. was born in December of 2013. W.M. was born in December of 2014. Father and Mother are the biological parents of all five children. At the time GCCS became involved with the family, Mother was the legal custodian and residential parent of the children, and they all lived together with Father at a residence in Fairborn, Ohio.
{¶ 3} Based upon a report that Father had threatened to harm W.M. and then kill himself, GCCS filed a complaint on March 18, 2015, alleging that the children were neglected and dependent. Shortly thereafter on March 24, 2015, GCCS requested and was granted an ex parte order of emergency custody of all of the children, with the sole exception of W.M. who had been taken from Mother and hospitalized for failure to thrive. A shelter care hearing was held on March 25, 2015, and GCCS was awarded interim custody of H.M., E.M., B.M., and L.M. On May 14, 2015, GCCS filed another complaint alleging that W.M. was neglected and dependent. On June 10, 2015, GCCS was awarded interim custody of W.M. after she was released from the hospital.
{¶ 4} At a hearing on October 8, 2015, the parties stipulated that the children were neglected and dependent, and the trial court awarded temporary custody to GCCS in an
{¶ 5} On June 21, 2016, GCCS filed a motion for permanent custody of the children. On August 1, 2016, the children‘s paternal grandparents filed a motion for legal custody. On September 16, 2016, a review hearing was held, and GCCS was awarded a second and final extension of temporary custody.
{¶ 6} On October 16, 2017, and December 27, 2016, hearings were held on GCCS‘s motion for permanent custody as well as the paternal grandparents’ motion for legal custody. On July 3, 2017, the juvenile court issued a decision granting GCCS‘s motion for permanent custody, thereby terminating the parental rights of Mother and Father. The juvenile court also denied the paternal grandparents’ motion for legal custody of the children.2
{¶ 7} It is from this decision that Mother now appeals.
{¶ 8} Mother‘s sole assignment is as follows:
{¶ 10} In her sole assignment, Mother contends that the juvenile court erred when it granted permanent custody of the Children to GCCS. Specifically, Mother argues that GCCS failed to establish by clear and convincing evidence that it was in the best interest of the children to terminate Mother and Father‘s parental rights and be placed in the permanent custody of GCCS.
The “12 of 22” Determination
{¶ 11} Initially, Mother argues that the while the children were in the custody of GCCS for more than twelve months, those twelve months were not within a consecutive twenty-two month period when GCCS filed its motion for permanent custody. Essentially, Mother contends the children could not have been in the custody of GCCS for twelve out of twenty-two consecutive months because a twenty-two month period had not yet elapsed between the onset of the case and filing of the motion for permanent custody.
{¶ 12} The “12 of 22” provisions set forth in
{¶ 13} In light of the Court‘s holding in In re C.W., the GCCS argues that it was not required to wait until twenty-two months had passed before filing its motion for permanent custody as long as the children had been in its custody for at least twelve consecutive months when the motion for permanent custody was filed. See In re J.R., 5th Dist. Stark No. 2016CA00018, 2016-Ohio-2703, ¶ 49. “[A]n agency can file for permanent custody any time after the child has been in the agency‘s continuous custody for at least twelve months.” In re Vann, 5th Dist. Stark No. 2005CA00127, 2005-Ohio-4398, ¶ 18, citing In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 23.
{¶ 14} In In re T.B., 9th Dist. Summit No. 21124, 2002-Ohio-5036, ¶ 23, a child was placed in the temporary custody of the agency in March 2000. At a sunset hearing in April 2001, the court granted a six-month extension of temporary custody. The agency filed a motion for permanent custody in September 2001. The mother argued on appeal that
There is nothing in the plain language of the statute that requires a public agency to wait until a child has been in its custody for twenty-two months before filing a motion for permanent custody. The statute requires only that
the child must have been in the custody of a public agency for twelve or more months of a consecutive twenty-two month period. This might include a situation where a child had been in temporary custody for six months on one occasion, was briefly out of agency custody, and then returned to temporary custody for another six months -- all within a consecutive twenty-two month period. It may also include a situation where a child has been in the temporary custody of an agency for twelve consecutive months. In either event, once a child has been in temporary custody for at least twelve months out of twenty-two consecutive months, the second prong of the two-part test set forth in R.C. 2151.414(B)(1) is met. In this case, T.B. was in custody for over fifteen consecutive months. Accordingly, Appellant‘s argument is without merit.
Id. at ¶ 23.
{¶ 15} Recently, however, the Sixth District Court of Appeals held that while “[a]n agency may file for permanent custody at any time for another other reason set forth in
The purpose of the “12 of 22 consecutive months” clause is clear when it is read in conjunction with
R.C. 2151.413(D) , which provides that the agency who has had temporary custody of a child for 12 months of a 22-month consecutive period must file a motion for permanent custody. When sucha motion is filed, the basis for awarding permanent custody is R.C. 2151.414(B)(1)(d) . The General Assembly has determined that it is in the best interest of the parties that custody issues be resolved within 24 months. SeeR.C. 2151.353(G) (temporary custody orders terminate after one year);R.C. 2151.415(D)(4) (temporary custody can be extended for no more than two, six-month extensions). If the 22-consecutive months does not mean 22 months of agency involvement, there was no need to set forth that number in the statute. Instead, the statute would have required permanent custody to have been sought after 12 months of temporary custody had expired, regardless of whether temporary custody was intermittent or continuous.
Id. at ¶ 48. We note that while the In re K.L. court found the trial court erred in finding that
{¶ 16}
{¶ 17} In the instant case, the record establishes that GCCS was awarded interim custody of H.M., E.M., B.M., and L.M. on March 25, 2015. Sixty days after that date was May 24, 2015. On April 20, 2015, W.M. was removed from the parents’ home for failure to thrive and brought to the hospital. Sixty days after that date was June 19, 2015. On June 21, 2016, GCCS filed a motion for permanent custody of the children. By that time, all of the children had been in the custody of GCCS for at least twelve months.
{¶ 18} Therefore, it is undisputed that at the time that the motion for permanent custody was filed on June 21, 2016, all of the children had been in the custody of GCCS for over twelve months. Even when it is read in conjunction with
Best Interests of the Children Determination
{¶ 19} In this section of her assignment, Mother argues that the juvenile court erred when it found that awarding permanent custody to GCCS was in the children‘s best interest.
{¶ 20}
{¶ 21}
{¶ 22} At the time of the permanent custody hearing, the foster mother testified that she, her husband, and their granddaughter had a developed a significant bond with the children. The foster mother testified that the children have also exhibited that they have a very close bond with one another. Significantly, the evidence also established that the children are adoptable, and that at the time of the hearing, the foster family expressed their desire to adopt all of the children. The foster mother also testified that
{¶ 23} Tasha Nguyen, Mother‘s current GCCS caseworker, testified that throughout the duration of the case, Mother has always been on supervised visitation, such that an employee always has to be in the room when she is interacting with her children. Nguyen also testified that Mother‘s weekly visits with the children should have increased, both in the amount of visits and the duration of said visits. However, Nguyen testified that when she asked Mother if she would like to increase her visits, Mother declined. In fact, Mother has only exercised one supervised visitation per week for the duration of the case.
{¶ 24} Additionally, at the visitations with the children, all of the GCCS caseworkers who testified agreed that Mother was passive and did not interact with the children in any significant way. The foster mother testified that the younger children, B.M., L.M. and W.M., exhibited reluctance to enter the visitation center when they had meetings with Mother. Although she was provided the foster mother‘s contact information (phone number, etc.), Mother rarely called the children. The foster mother also testified that Mother has not attended any of the children‘s medical or educational appointments since
{¶ 25} Furthermore, the record establishes that Mother has ongoing mental health problems that she has failed to properly address. Dr. Richard Bromberg testified that he conducted two psychological evaluations and parenting assessments on Mother in May of 2015 and June of 2016, respectively. In the first evaluation, Dr. Bromberg observed Mother interact with the children. Dr. Bromberg observed that Mother was passive towards the children and did not set any limits with respect to their behavior. Dr. Bromberg also diagnosed Mother with personality disorder with features from several personality disorder types, including schizoid avoidant, obsessive compulsive dependent, passive aggressive, and anti-social behavior. Dr. Bromberg also administered a global assessment of functioning to Mother. Dr. Bromberg testified that Mother received a score of forty-eight on the assessment, where any score below fifty represents the existence of serious psychological impairment. In the evaluation, Dr. Bromberg gave Mother the following recommendations: 1) supervised visitation with the children; 2) psychotropic medication; 3) weekly dialectical behavior therapy for a minimum of two years in both individual and group settings; 4) parenting skills training; 5) anger management classes; and 6) domestic violence education programming.
{¶ 26} Dr. Bromberg testified that the purpose of the second evaluation approximately one year later was to gauge Mother‘s progress. After observing Mother with the children again, Dr. Bromberg reported that Mother still exhibited the same passive behavior and failed to set any limits regarding the children‘s behavior. Dr. Bromberg described the scene as chaotic. Furthermore, Dr. Bromberg testified that the second evaluation that he administered was hampered by Mother‘s tendency to respond
{¶ 27} The record further establishes that Mother has failed to provide adequate housing for the children. Mother specifically testified at the permanent custody hearing that she did not have her own residence where the children could live with her. Two of Mother‘s GCCS caseworkers, Amanda Ray and Allison Hull, both testified that Mother refused to provide GCCS with the address of where she was currently living. GCCS caseworker Olivia Dean testified that Mother provided her with an address where she was living in Kentucky. However, when Dean traveled to the address provided, she could not locate Mother nor confirm that she lived there.
{¶ 28} With respect to the wishes of the children, H.M., the oldest child, expressed through her Court Appointed Special Advocate / Guardian ad Litem (GAL) that she wanted to remain with her foster family and that the best place for all of the children is with the foster family. Finally, the GAL indicated that the children‘s best interests would
{¶ 29} A juvenile court‘s decision on termination “will not be overturned as against the manifest weight of the evidence if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established.” (Citations omitted). In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. Furthermore, “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.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33.
{¶ 30} Our review of the record, transcript, and exhibits establishes that there is clear and convincing evidence which supports the juvenile court‘s decision finding that the statutory elements for termination under
{¶ 32} Mother‘s sole assignment of error having been overruled, the judgment of the juvenile court is affirmed.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies mailed to:
Nathaniel Luken
Christopher Green
Ben Swift
April Moore
Mari McPherson
Hon. Adolfo A. Tornichio