IN THE MATTER OF: I.B.
CASE NO. CA2014-12-244
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/6/2015
[Cite as In re I.B., 2015-Ohio-1344.]
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2011-0319
Mary Lou Kusel, 6 South Second Street, Suite 720, Hamilton, Ohio 45011, Guardian Ad Litem
Nicole Stephenson, 30 North D Street, Hamilton, Ohio 45013, for appellant
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
O P I N I O N
S. POWELL, P.J.
{¶ 1} Appellant, the biological mother of I.B., appeals from a decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of her daughter to appellee, the Butler County Department of Job and Family Services, Children
{¶ 2} On July 19, 2011, BCDJFS filed a complaint alleging I.B., appellant‘s then ten-year-old daughter, was a dependent child. It is undisputed that at the time the complaint was filed both the child‘s mother and father were incarcerated. I.B. was then placed in the temporary custody of her paternal relatives, during which time she was adjudicated a dependent child by stipulation of her father. Thereafter, on November 18, 2011, the juvenile court‘s temporary custody decision was modified, wherein temporary custody of I.B. was changed to BCDJFS.
{¶ 3} After BCDJFS was granted temporary custody, and once appellant was released from prison, the juvenile court adopted a case plan relative to appellant. However, although initially complying with her required case plan services, on January 10, 2013, appellant, an admitted recovering heroin addict who has been diagnosed as bipolar, was sentenced to serve 18 months in prison after she pled guilty to third-degree felony robbery. Several days later, on January 16, 2013, I.B.‘s father passed away due to a heart condition. Besides an additional six-month placement with her paternal relatives, I.B. remained in the temporary custody of BCDJFS at all times. This includes several unsuccessful foster placements, one of which was disrupted due to a later unsubstantiated claim of sexual abuse, as well as at least two extended hospitalizations due to I.B.‘s expressed suicidal ideation.
{¶ 4} Because the matter had been pending for some time, on February 6, 2014, BCDJFS filed a motion requesting permanent custody of I.B. A three-day permanent custody hearing on the matter was then conducted before a juvenile court magistrate. As part of this hearing, the magistrate heard extensive testimony from appellant, the child‘s guardian ad litem, as well as several case workers. The magistrate also conducted an in camera interview with I.B. Following this hearing, the magistrate issued its decision finding it was in
{¶ 5} Appellant now appeals from the juvenile court‘s decision granting permanent custody of her daughter to BCDJFS, raising three assignments of error for review. For ease of discussion, appellant‘s first and second assignments of error will be addressed together.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING [BDJFS‘S] MOTION FOR PERMANENT CUSTODY.
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING THE STATE‘S MOTION FOR PERMANENT CUSTODY.
{¶ 10} In her first and second assignments of error, appellant argues the juvenile court‘s decision granting permanent custody of her daughter to BCDJFS was not in the child‘s best interest when considering the factors provided under
{¶ 11} 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. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 11, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to whether sufficient credible evidence exists to support the juvenile court‘s determination. In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6; In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). Thus, a reviewing court will reverse a finding by the juvenile court that the evidence was clear and convincing only if there is a sufficient conflict in the evidence presented. In re S.U., 12th Dist. Clermont No. CA2014-07-055, 2014-Ohio-5748, ¶ 10. Clear and convincing evidence is “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 12} Pursuant to
{¶ 13} In this case, the juvenile court found by clear and convincing evidence that I.B.
{¶ 14}
[T]he court shall consider all relevant factors, including, but not limited to the following:
(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 permanent 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.
{¶ 15} With respect to
{¶ 16} In consideration of “the emotional ride that [I.B. has] been on and the almost constant changing of living arrangements over the past three years has to have been difficult for her and certainly has affected her thinking.”
{¶ 17} With regard to
{¶ 18} In addition, in consideration of “[h]er plan for the future is to live in the home of a friend, go to school, and work part time if she can find a job.”
The juvenile court also noted that no suitable relative had indicated a desire to take custody of I.B., and that, pursuant to
{¶ 19} Based on these findings, the juvenile court determined that it was in I.B.‘s best interest to grant permanent custody to BCDJFS. In reaching this decision, the juvenile court concluded by stating, in pertinent part, the following:
It might theoretically be possible for mother [to] address her mental health issues, her substance abuse issues, her parenting issues, and her housing and income issues and become, at some time in the future, a parent who is able to provide for the safety and stability of her child. However, mother has been absent from this child‘s life for at least 23 of the last 35 months of this child‘s life. Mother has just been released from prison, she has no home of her own, no job, no car, and cannot offer any stability for [her daughter]. Mother did not complete all of the case plan services which were developed in order to assist [her] in addressing the issues that brought this case to the court in the
first place. Mother has not shown this [court] that she is able to provide for this child now, and based on mother‘s history, it is not likely that mother will be able to do so in the foreseeable future.
{¶ 20} After carefully reviewing the record in this case, we find the juvenile court‘s findings are supported by sufficient, credible evidence and are otherwise not against the manifest weight of the evidence. Nevertheless, appellant argues the juvenile court‘s decision was not in her daughter‘s best interest when considering the strong bond between them. However, although we agree that a strong bond between appellant and her daughter may very well exist, that is but one factor to be considered when determining the best interest of a child in a permanent custody proceeding under “R.C. 2151.414(D) does not give one factor ‘greater weight than the others.‘”
In re C.G., 10th Dist. Franklin Nos. 13AP-632 and 13AP-653, 2014-Ohio-279, ¶ 37, quoting In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56; In re D.R., 12th Dist. Butler No. CA2009-01-018, 2009-Ohio-2805, ¶ 14.
{¶ 21} Again, just as the juvenile court found, the record firmly establishes that appellant has had minimal contact with her daughter due to her recurring incarceration during the nearly three years this case had been pending. This includes an 18-month prison stint following appellant‘s guilty plea to third-degree felony robbery. The record also indicates appellant, an admitted recovering heroin addict who has been diagnosed as bipolar, did not complete her required case plan services, has no residence of her own, is unemployed, and has no car or valid driver‘s license. Therefore, after a thorough review of the record, we find no error in the juvenile court‘s decision finding it was in I.B.‘s best interest to be placed in the permanent custody of BCDJFS. Accordingly, appellant‘s first and second assignments of error are overruled.
{¶ 22} Assignment of Error No. 3:
{¶ 23} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
{¶ 24} In her third assignment of error, appellant argues the juvenile court erred by admitting the social summaries prepared by BCDJFS at the permanent custody hearing because the documents contained prejudicial hearsay. This court, however, has already rejected this exact argument finding no error where “the trial court determined that the summaries contained hearsay and specifically stated it would disregard this hearsay.” “admitted subject to not considering any hearsay contained therein.”
In re A.F., 12th Dist. Butler No. CA2011-12-233, 2012-Ohio-2958, ¶ 33; In re K.B., 12th Dist. Butler Nos. CA2014-02-042, CA2014-02-043, and CA2014-02-044, 2014-Ohio-3654, ¶ 83; In re J.G.G., 12th Dist. Butler No. CA2014-10-215, 2015-Ohio-822, ¶ 12. Such is the case here as the juvenile court explicitly stated on the record that the social summaries would be
Therefore, because the juvenile court specifically stated that it would disregard any hearsay information that may be part of the social summaries prepared by BCDJFS, we find the juvenile court did not err by admitting the social summaries into evidence. Appellant‘s third assignment of error is overruled.
{¶ 25} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.