In re I.D., E.D., C.D., L.D.
Court of Appeals No. L-13-1162
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
January 23, 2014
[Cite as In re I.D., 2014-Ohio-238.]
Trial Court No. JC 10206631
Decided: January 23, 2014
* * * * *
Adam H. Houser, for appellant.
Bradley W. King and Jeremy G. Young, for appellee.
* * * * *
JENSEN, J.
{¶ 1} Defendant-appellant, Cr.D., mother of I.D., E.D., C.D., and L.D. (“the children“), appeals the June 18, 2013 decision of the Lucas County Court of Common Pleas, Juvenile Division, terminating her parental rights and vesting plaintiff-appellee, Lucas County Children Services (“LCCS“), with permanent custody of her children. For the reasons that follow, we affirm the trial court‘s decision.
{¶ 2} I.D. (born March 24, 2004), E.D. (born February 19, 2005), C.D. (born July 24, 2006), and L.D. (born December 31, 2007), are the children of Cr.D. and Ed.D. (“the parents“). LCCS received reports indicating that Ed.D. was using heroin, that there was substantial traffic in and out of the home, that there was no food in the home, and that E.D. was able to demonstrate IV drug use. There were reports, although unconfirmed, that the family home was filthy, with human feces spattered and smeared throughout the house, and I.D. and E.D. exhibited significant speech delays that were not being addressed. LCCS had learned that C.D. and L.D. were previously removed from the home by Henry County Children Services and were placed in the temporary custody of their maternal grandmother, J.R., who returned the children to their parents without authorization to do so. LCCS obtained an ex parte order on July 16, 2010, to remove the children from their parents’ custody and place them into shelter care.
{¶ 3} On August 19, 2010, the parents agreed to a finding of dependency and neglect and the children were placed in the temporary custody of LCCS with a case plan goal of reunification. Under the terms of that case plan, Cr.D. and Ed.D. were expected to secure stable housing; successfully complete parenting classes; learn and demonstrate age-appropriate supervision; closely supervise the children at all times and make appropriate alternative arrangements for their care when they were unavailable; undergo diagnostic assessments and follow any resulting recommendations including counseling, medication, etc.; ensure that the children‘s basic needs were being met; and make necessary medical,
{¶ 4} Cr.D. successfully completed the LCCS parenting program. She attended a diagnostic assessment and was referred to individual counseling, which she completed. Ed.D. underwent an assessment and was referred for intensive outpatient (“IOP“) treatment at Unison. He received individual counseling, completed IOP treatment, was in aftercare services, and provided negative drug screens. He was attending individual parenting classes through LCCS. Cr.D. and Ed.D. obtained housing together through assistance from Treatment Accountability for Safer Communities (“TASC“) and availed themselves of TASC case management services. The children were provided speech therapy and I.D. successfully completed individual counseling. Because of this progress, LCCS recommended, and the court ordered on June 14, 2012, that the children be returned to their parents with protective supervision.
{¶ 5} On September 11, 2012, the family‘s LCCS caseworker, Kari Vebenstad, made an announced visit to the family home. She found Ed.D. home alone with L.D. while Cr.D. was out getting dinner and picking up the three other children from the Boys and Girls Club. Vebenstad observed that Ed.D. was visibly under the influence of drugs. She was extremely concerned that Cr.D. had left L.D. home with Ed.D. when he clearly
{¶ 6} Following this incident, Ed.D.‘s service provider at Unison expressed to Vebenstad that he was concerned because Ed.D. did not have sober support in the form of a sponsor, a home group, or AA. Vebenstad also learned that Ed.D. had not been complying with the TASC program requirements. Vebenstad recommended that Ed.D. participate in LCCS‘s drug court program, but he resisted. Unison also recommended that Ed.D. participate in eight more weeks of IOP treatment with at least six weeks of aftercare treatment.
{¶ 7} Ed.D. missed an IOP appointment almost immediately because he was scheduled to appear in court. Vebenstad checked the Toledo Municipal Court website and learned that Ed.D. had been arrested for an August 28, 2012 incident where he was found unconscious at the intersection of Starr Avenue and Main Street with an IV needle in his pocket. He had apparently overdosed. Police transported him to St. Vincent Hospital.
{¶ 8} Vebenstad confronted Cr.D. with the information about Ed.D.‘s arrest and hospitalization, but Cr.D. denied knowing about the incident. She said that Ed.D. had left the home and had been staying with someone else for the last two weeks. Ed.D. arrived at the home during that visit. When Vebenstad questioned him about his arrest, he was evasive and denied that he had overdosed. Vebenstad was incredulous that Cr.D. could
{¶ 9} Vebenstad told Cr.D. and Ed.D. that LCCS was going to file a motion to show cause with the juvenile court in an effort to place Ed.D. into drug court. She tried to schedule home visits during October and November, but the family canceled those visits. In November, she made an unannounced visit and found Ed.D. sleeping on a mattress in the living room. He allowed Vebenstad into the house, but lay back down, claiming he did not feel well. He said nobody was home, but within 30 seconds, Cr.D. walked in from the kitchen and C.D. walked out from a bedroom. Cr.D. claimed that the family was ill, so Vebenstad could not complete her visit.
{¶ 10} On November 19, 2012, Ed.D. appeared in court on the motion to show cause concerning potential drug court placement. The hearing could not go forward, however, because Ed.D. was visibly under the influence. LSSC continued to work with Unison and TASC with respect to Ed.D.‘s compliance with the case plan. LSSC‘s parent educator was asked to monitor the home and the stability of the plan to reunify the family. Announced and unannounced home visits continued and Vebenstad spoke with the couple on multiple occasions, encouraging Ed.D. to engage in treatment and make the right decision for his family.
{¶ 12} On November 26, 2012, LCCS filed a motion to change disposition orders and requested an emergency hearing. During the hearing, Vebenstad testified about all that had transpired over the last several months. She conceded that the children had never been harmed and had never required hospital care. She also conceded that Ed.D.‘s toxicology screens were negative from the time the children returned until September 12, 2012. But since the positive screen on September 12, 2012, Ed.D. had refused to submit to additional screens, saying that he had already been caught anyway. Vebenstad talked about the safety plan that would theoretically keep Ed.D. away from the children. Nevertheless, Vebenstad told the court that that she remained concerned about Cr.D.‘s ability to protect the children.
{¶ 13} The court concluded that Ed.D. posed an immediate danger to the children and Cr.D. was not capable of protecting them.2 The court discussed the potential dangers
{¶ 14} At some point after the hearing, Cr.D. became involved with Al-Anon. She reported that Ed.D. had left the family home. Vebenstad conducted unannounced home visits and observed nothing to suggest that Ed.D. was still residing there. LCCS made no further recommendations for services to be completed by Cr.D. Nevertheless at a January 28, 2013 hearing on LCCS‘s motion to change disposition,3 the court found that it was in the best interest of the children that they remain in the temporary custody of LCCS with visitation by the parents as directed by LCCS and the children‘s guardian ad litem (“GAL“).4
{¶ 15} LCCS moved for permanent custody on March 6, 2013, and the case proceeded to trial on June 10, 2013. Only Vebenstad and the children‘s GAL, Michael
{¶ 16} Vebenstad testified that she believed that Cr.D. continued to maintain contact with Ed.D. despite the previous agreement that he would vacate their home and avoid contact. Her belief was based on the fact that she had received a voicemail message, inadvertently left by Cr.D., where she could hear a conversation between Cr.D. and Ed.D.. She also indicated that she had received reports from different individuals that Cr.D. and Ed.D. continued to be together, that the children made a video and pictures for Ed.D., and that Ed.D. recorded a story for the children to listen to. Cr.D. told Vebenstad that she would not choose her husband over her children and would do whatever it took to ensure her children‘s well-being. Vebenstad believed, however, that the reports of Cr.D. and Ed.D. being seen together evidenced that this was not true.
{¶ 17} Vebenstad also addressed Cr.D.‘s housing arrangements. Cr.D.‘s housing with TASC was obtained through Ed.D. and had expired. Since then, Cr.D. had been
{¶ 18} Vebenstad provided her opinion that it was in the children‘s best interest to be permanently removed from their parents’ custody because of Ed.D.‘s severe addiction, his inability to maintain sobriety, his lack of willingness to actively treat his addiction, Cr.D.‘s supposed inability to detect when her husband is under the influence, Cr.D.‘s apparent unwillingness to sever her relationship with Ed.D., and Cr.D.‘s inability to secure appropriate housing.
{¶ 19} Bryant also testified. Although he informed the court that the children wanted to return to their mother, he was skeptical of Cr.D.‘s ability to protect them. He too had concerns that Cr.D. did not seem to recognize the signs exhibited by a person who is under the influence of drugs, despite being educated about those signs through the various services that were provided to her. Bryant also had information that Cr.D. and
{¶ 20} On June 12, 2013, the court announced its decision terminating Cr.D.‘s and Ed.D.‘s parental rights and granting permanent custody of the children to LCCS. It issued a judgment entry on June 18, 2012. Cr.D. appeals from this decision, assigning the following error for our review:
The Termination of Appellant‘s Parental Rights was Against the Manifest Weight of Evidence as Appellant had Completed All of Her Case Plan Services and Lucas County Children Services had Failed to Provide Services to Remedy the Removal of the Children[.] [Capitalization sic.]
II. Standard of Review
{¶ 21} A trial court‘s determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence. In re A.H., 6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11. The factual findings of a trial court are presumed correct since, as the trier of fact, it is in the best position to weigh the evidence and evaluate the testimony. In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Moreover, “[e]very reasonable presumption must be made in favor of the judgment and the findings of facts [of the trial court].” Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988). Thus, judgments supported by some competent, credible evidence going to all essential elements of the case are not against the manifest weight of the evidence. Id.
III. Analysis
{¶ 22} Cr.D. claims that the termination of her parental rights was against the manifest weight of the evidence. She raises two arguments with respect to the trial court‘s decision: (1) contrary to the requirements of
{¶ 23} Because courts recognize a parent‘s right to raise his or her children as an essential basic civil right and have deemed a parent‘s right to custody of their children to be “paramount,” parents are afforded procedural and substantive protection when termination of their parental rights is threatened. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). Those protections are contained within
{¶ 24}
{¶ 25} If the court finds that
{¶ 26} If the court finds that
{¶ 27} All of the court‘s findings under
{¶ 28} In support of her assignment of error, Cr.D. argues that LCCS failed to make diligent efforts to assist her in remedying the problems that led to the placement of the children outside the home, thus the court improperly used
{¶ 29} As previously explained,
Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(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 * * *.
{¶ 31} It is undisputed that the children were in the temporary custody of a public children services agency for 12 or more months of a consecutive 22-month period. The children were removed from the home July 16, 2010. Temporary custody was granted to LCCS on October 21, 2010, and the children remained in the custody of LCCS through June 14, 2012. Approximately five months later, on November 26, 2012, the children were again placed in LCCS‘s temporary custody. LCCS moved for permanent custody on March 6, 2013, and the children remained in LCCS‘s custody through the date the judgment entry was issued on June 18, 2013. We, therefore, agree with the trial court‘s conclusion that
In determining the best interest of a child at a hearing held pursuant to division (A) of this section * * *, the 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 * * *.
{¶ 33} Consistent with the recommendations of Vebenstad and Bryant, the only two witnesses who testified, the trial court determined that it was in the best interest of the children that LCCS be awarded permanent custody. The court considered a number of facts in reaching that conclusion.
{¶ 34} Concerning factor (a), the court noted the mutual love between Cr.D. and the children and the bond shared between the siblings. Concerning factor (b), the court acknowledged the children‘s desire to be returned to their mother. Concerning factor (c), the court observed that both Lucas County and Henry County‘s children‘s services agencies had found it necessary to seek temporary custody of the children. The older children had been removed from their parents’ home twice and the two youngest had been removed three times. The amount of time the children spent in the temporary custody of these agencies exceeded two years. And concerning factor (d), the court found that the children needed legally secure, permanent placement and it was persuaded that neither Cr.D., Ed.D., nor any of the children‘s other relatives could provide security and permanency. Factor (e) was inapplicable.
{¶ 35} The court considered additional information as well. Specifically, it articulated its concern with the behavioral issues exhibited by the children. The three youngest children had been acting out. Two of the children had on occasion defecated in inappropriate places and one once smeared feces on a bathroom wall. The youngest boy
{¶ 36} The trial court‘s factual findings were fully explained and were undisputed. We, therefore, agree that there was competent credible evidence supporting the trial court‘s findings under
{¶ 37} Although our analysis could cease at this point, because the court analyzed LCCS‘s motion under both
{¶ 38} The court found that there was clear and convincing evidence of the factors set forth in
{¶ 39} There were two primary factors that caused the court to draw these conclusions. First, there was undisputed evidence that Cr.D. maintained contact with Ed.D. despite the fact that LCCS, as part of a safety plan, made clear that to protect her children, she needed to shield them from their father‘s drug-abusing behavior. The court
{¶ 40} In this way, this case is very much like In re Jose P., Jay P., Ju. P., Jac. P., Josh P., 6th Dist. Lucas No. L-12-1294, 2013-Ohio-1834. In that case, it was the children‘s mother who abused drugs. Although the children‘s father had completed the services recommended under the case plan, he continued to leave the children alone with their mother. He promised to sever ties with the mother, but the evidence established that they continued to see each other when they were not supposed to be in contact. Despite the potential of the father parenting the children alone, he repeatedly established that he could not sever ties to the mother. We, therefore, agreed with the trial court that he had failed to remedy the conditions that led to the children‘s removal from the home.
{¶ 41} “The unwillingness of a mother to sever ties with a father who presents a danger to their child can present an environment requiring state intervention to protect the child.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 54. See also
{¶ 42} Second, although the court acknowledged that Cr.D. had successfully completed the majority of the services set forth in the case plan, it focused on Cr.D.‘s failure to secure appropriate housing. The housing that she and Ed.D. had previously secured was provided through Ed.D.‘s drug treatment service providers and was not available to Cr.D. Since losing that housing, Cr.D. had been going back and forth between her mother‘s apartment and a friend‘s home. Her mother‘s apartment lacked sufficient space for Cr.D. and her children and LCCS did not consider Cr.D.‘s friend‘s home to be a viable option. The court was aware that Cr.D. was appealing a denial of social security benefits, but currently had no income to pay for housing and was precluded from securing housing through LMHA due to a $500 fine she owed.
{¶ 43} There is no evidence in the record to suggest that Cr.D. made any attempt to secure a suitable home after losing TASC housing. Although the fine she owed to LMHA provided a roadblock to her obtaining housing, there is simply no evidence that she made any additional effort on her own or that she sought any further assistance from her caseworker despite being aware of what avenues were available to her. We, therefore, find that the trial court correctly concluded that the
{¶ 45} For these reasons, we find Cr.D.‘s assignment of error not well-taken.
IV. Conclusion
{¶ 46} We find that the judgment of the Lucas County Court of Common Pleas, Juvenile Division, was supported by competent, credible evidence going to all essential elements of the case. We, therefore, find Cr.D.‘s assignment of error not well-taken and affirm the trial court‘s June 18, 2013 decision terminating Cr.D.‘s parental rights and vesting LCCS with permanent custody of I.D., E.D., C.D., and L.D. The costs of this appeal are assessed to appellant pursuant to
Judgment affirmed.
Arlene Singer, J. _______________________________ JUDGE
Thomas J. Osowik, J. _______________________________ JUDGE
James D. Jensen, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.