In re J.H.
For Appellant - Grandmother
MICHAEL GROH
1938 East Wheeling Avenue
Cambridge, OH 43725
For Appellee
MELISSA WILSON
274 Highland Avenue
Cambridge, OH 43725
{¶1} Appellant-Grandmother appeals from the August 1, 2019 judgment entry of the Guernsey County Court of Common Pleas, Juvenile Division, terminating her custodial rights and granting permanent custody of J.H. to Guernsey County Children‘s Services (“GCCS“).
Facts & Procedural History
{¶2} On August 1, 2017, GCCS filed a complaint and a motion for emergency temporary custody, alleging J.H., who was born on April 21, 2011, is a neglected child pursuant to
{¶3} The trial court held a probable cause hearing on August 1, 2017. In an August 8, 2017 judgment entry, the trial court found probable cause to believe J.H. is a dependent or neglected child.
{¶5} On October 31, 2017, the trial court held a dispositional hearing. In a November 2, 2018 judgment entry the trial court added Mother to the case plan, continued the temporary custody of J.H. with GCCS, and found reasonable efforts were made by GCCS to keep the child in his own home.
{¶6} The trial court held review hearings on January 29, 2018 and April 23, 2018 and issued judgment entries on January 31, 2018 and April 25, 2018 continuing the temporary custody of J.H. with GCCS and finding reasonable efforts were made by GCCS to keep the child in his own home by looking for a kinship placement for the child, providing a safety plan, providing support services, providing mental health services, providing mental health counseling for the child, providing case management, providing financial support for the custodian, and providing visitation with the custodian. In the January 31, 2018 judgment entry, the trial court also approved the amended case plan dated January 26, 2018.
{¶7} The trial court held a review hearing on July 19, 2018 and issued a judgment entry on July 25, 2018. The trial court granted GCCS’ motion for extension of temporary custody. Further, the trial court found GCCS made diligent and reasonable efforts to finalize the permanency plan by working a reunification plan for Mother and Grandmother
{¶8} GCCS filed a motion for permanent custody on October 2, 2018. GCCS then filed a motion to dismiss the permanent custody motion, stating they were exploring recently discovered kinship options. On December 21, 2018, upon the motion of GCCS, the trial court dismissed the motion for permanent custody. GCCS filed a second motion for permanent custody on April 2, 2019. The trial court held a hearing on the motion on July 30, 2019.
{¶9} At the beginning of the hearing, the trial court noted Father failed to appear. Counsel for Father did not know his whereabouts and last had contact with him in November and thus requested the trial court continue the hearing. The trial court denied the motion to continue.
{¶10} Kendra Winland (“Winland“) is a case manager and chemical dependency counselor at Cedar Ridge who began working with Grandmother in April of 2018 when Grandmother came for an assessment. Grandmother was diagnosed with anxiety disorder and cocaine abuse. Grandmother did not complete her treatment and was discharged unsuccessfully in October of 2018 because she did not show up for her appointments or respond to the letters sent by the agency. Grandmother took three drug screens while with the agency, in April, May, and June of 2018. She failed all three screens for testing positive for cocaine. Grandmother denied using cocaine and told Winland she must have come in contact with it while cleaning and it was in her home because of her son.
{¶12} Deanne McNerney (“McNerney“), a pretrial bond officer at the Cambridge Municipal Court, monitored Grandmother when she was placed on bond through the court. The bond conditions included no alcohol, no non-prescribed drugs, and random drug screens. Grandmother took two drug screens for McNerney, both in April of 2019, and tested positive for cocaine in both screens. Grandmother failed to appear for drug screens in May of 2019. McNerney testified Grandmother denied using cocaine despite the positive drug screens.
{¶13} Kelsey Wolfe (“Wolfe“) is the kindship program coordinator at GCCS who looked into several kinship placements for J.H. Two individuals, L.M. and R.S., never responded to letters or phone calls in June of 2019. In June of 2019, T.T. expressed interest in adopting J.H. as her family owned a daycare J.H. attended. Wolfe informed
{¶14} The agency explored M.R. in October of 2018. M.R. had an extensive criminal and child welfare history. Though she reported she had made changes in her life, M.R. had a positive drug screen and thus was removed from consideration in January of 2019. B.S. was considered in August of 2018, but she would not return phone calls or letters from the agency, so she was removed from consideration in October of 2018. K.M. was considered in September of 2018, but was denied due to her criminal history and child welfare history. Also in September of 2018, the agency mailed letters to J.H. and V.H. and did not receive a response to either of the letters. In June of 2018, M.P.‘s name was provided, but she was denied due to her child welfare history. In March of 2018, J.J. asked to be considered, but ultimately felt she could not handle the child‘s behavior.
{¶15} In April of 2018, the agency considered F.H. and J.H., but there were concerns about their health, so Wolfe asked them to complete medical evaluations. They did not complete any evaluations and were then not considered when Grandmother moved in with them in June of 2018 due to Grandmother‘s drug use. The agency
{¶16} In March of 2019, the agency considered J.S., but he withdrew from the process in April of 2019 due to his wife being in jail for murder and too much family drama going on for him to take the child. J.S. also believed Mother and Father stole his daughter‘s car. Wolfe testified J.S. contacted the agency the week prior to the permanent custody hearing, but she did not contact him because he has a very extensive violent criminal history that would make it very difficult to place a child in his home. J.S.‘s last felony conviction was in 2008. Additionally, J.S. was last involved with the child welfare system in 2015.
{¶17} Wolfe testified that, as of the date of the hearing, there were no approved kinship home studies for J.H.
{¶18} Amanda Kennedy (“Kennedy“) is a caseworker at GCCS. J.H. first came into custody of the agency on August 1, 2017 when there was a drug raid at Grandmother‘s home. Since August 1, 2017, J.H. has been in the continuous custody of GCCS. Grandmother was J.H.‘s legal custodian and cared for him for most of his life.
{¶19} Kennedy testified Father basically had no involvement in this case. Kennedy saw him once when he was incarcerated. Since Father was released from prison in February, Kennedy has been trying to find him via public record searches, but has been unsuccessful. Father pled guilty to trafficking in cocaine in 2018. Kennedy has not heard from Father since his release from prison. Father was not on the case plan and did not request to be on the case plan.
{¶21} To Kennedy‘s knowledge, Mother has not completed a drug and alcohol assessment, a mental health assessment, or parenting classes. Kennedy was only able to get one drug screen for Mother in which she testified positive for amphetamines because she could not locate Mother other than when she was in jail. Mother has seen J.H. a total of three times in the last two years. Mother is currently in the Guernsey County Jail, so Kennedy has been unable to determine her housing situation. Kennedy has no knowledge of Mother ever being employed since 2017. Mother has not refrained from illegal activity, as she has received several charges including criminal trespassing, a probation violation, assault, unauthorized use of a vehicle, theft, aggravated trafficking in drugs, and aggravated possession of drugs. Mother is currently awaiting sentencing on the aggravated trafficking in drugs and aggravated possession of drug charges.
{¶22} Grandmother was also on the case plan in this case. Her case plan objectives included: complete a drug and alcohol assessment and follow all recommendations; complete a mental health assessment and follow all recommendations; random drug screening; participate in J.H.‘s mental health services at the request of the counselor; maintain physical living condition in a clean, safe, and sanitary manner free from physical hazards; maintain stable housing and enough
{¶23} Grandmother did complete a drug and alcohol and mental health assessment, however, she failed to follow all recommendations because she was noncompliant with both service providers and had failed drug screens. In addition to those testified to by the other service providers, Grandmother took drug screens for GCCS. Grandmother tested positive for cocaine on: August 17, 2017, August 25, 2017, October 23, 2017, January 10, 2018, January 22, 2018, April 4, 2018, April 17, 2018, April 23, 2018, May 31, 2018, June 25, 2018, August 1, 2018, September 4, 2018, September 18, 2018, September 24, 2018, October 22, 2018, November 13, 2018, November 27, 2018, and January 22, 2019. Grandmother also refused to take several drug screens for GCCS on July 27, 2018, January 8, 2019, January 28, 2019, February 19, 2019, April 9, 2019, April 23, 2019, and May 28, 2019, despite the fact Kennedy told her each time that a refusal to screen would be considered a positive for all substances. To Kennedy‘s knowledge, Grandmother has never tested negative for cocaine since 2017. Kennedy had several conversations with Grandmother and Grandmother denied using cocaine. When Kennedy visited Grandmother‘s home, it was cluttered and dirty and the window was busted out during the drug raids. Grandmother now lives with her parents. Grandmother was evicted from her home in May of 2018. Grandmother has not been employed since 2017.
{¶24} With regards to A.W. and the interstate compact agreement with Pennsylvania, Kennedy reached out to A.W. to collect information to complete the ICPC in November of 2018. Kennedy testified the Pennsylvania Kinship Care regulation
{¶25} Kennedy believes GCCS made reasonable and diligent efforts to locate a kinship placement for J.H. J.H. was previously in foster care for a short time as a baby. Grandmother visits J.H. regularly. J.H. is bonded to Grandmother and there are no issues with their visits.
{¶26} Kennedy does not believe J.H. could be placed with Father within a reasonable amount of time because he has not had any involvement. Kennedy does not believe J.H. could be placed with Mother within a reasonable amount of time because she had very little involvement with J.H. and she is currently facing felony charges. Kennedy does not believe J.H. can be placed with Grandmother within a reasonable amount of time because she has between 45-50 drug screens in the past two years that have all been positive for cocaine. Neither Mother nor Grandmother has successfully completed their case plan objectives. Kennedy believes GCCS has made reasonable and diligent efforts to finalize a permanency plan for J.H., including referrals for services, case management, visitation, and searches for kinship placement.
{¶27} Kennedy is aware of three drug raids at Grandmother‘s home, but is not aware that Grandmother has been charged with anything. J.H. is upset that he can‘t live
{¶28} Randolph White (“White“) has known Grandmother for fifteen years. J.H. attended church with Grandmother at White‘s church. White observed a bond between J.H. and Grandmother.
{¶29} Grandmother testified she lives with her parents. Grandmother stated she is trying to do the right thing, including taking care of her parents and making sure J.H. has what he needs. Grandmother has a strong bond with J.H. and visits him every week. Grandmother has not been charged as a result of the drug raids. Grandmother does not have any financial resources right now because her stepfather is ill. Grandmother never had any problems with J.H. while he was in her care.
{¶30} Grandmother stated she stopped going to drug and alcohol counseling because she was hurt and was being defiant. However, she believes she would be cooperative at this point and believes it is in J.H.‘s best interest to continue to have contact with her based upon the bond she has had with him.
{¶31} On cross-examination, Grandmother testified at the beginning of the case, she did use cocaine. As to the positive test in April of 2019, Grandmother stated she was in the hospital with pneumonia and, upon being released from the hospital, completed a drug test, so she does not know how she tested positive for cocaine. Grandmother testified she has made plans to go back to counseling and plans on working.
{¶32} Ruthellen Weaver (“Weaver“) has been J.H.‘s guardian ad litem since she was appointed on August 3, 2017. She filed a report with the court on July 23, 2019. In
{¶33} Weaver did not hear any testimony at the hearing that would cause her to change the recommendation contained in her report. Weaver believes it is in the best interest of J.H. to be placed with GCCS for purposes of adoption. As to the exploration of kinship placements, Weaver feels the agency sufficiently explored kinship options for J.H. Weaver has never before been involved in a case with such a long list of kinship placements that were contacted and the permanent custody first filed in this case was withdrawn so relatives could be pursued before the current permanent custody motion was filed.
{¶34} B.J. Yates (“Yates“), the court appointed special advocate, filed a report on July 23, 2019. She did not hear anything during the hearing that would change her recommendation that granting permanent custody to GCCS is in the best interest of J.H. In her report, Yates recommends permanent custody be granted to GCCS because: adequate time has been given to all parties involved to successfully complete their case plan; Grandmother has been non-compliant with her case plan, as she habitually uses drugs; Mother is frequently incarcerated and fails to work on her case plan; and Father has not been actively involved and after incarceration made no effort to reunify.
{¶35} The trial court issued a judgment entry on August 1, 2019 granting the motion for permanent custody. The trial court first stated that Father was not present and counsel for Father was not aware of his whereabouts and had not had any recent contact with him, despite repeated attempts to contact him. The trial court denied counsel for Father‘s motion to continue the hearing, noting that Father is not a participant on the
{¶36} As to Grandmother, the trial court found she has consistently tested positive for cocaine throughout the case, even though she continually denies using cocaine. While she claims she must have ingested the drug while cleaning her home and also blamed Father for the positive drug tests despite the fact he was in prison, Grandmother has taken over twenty-six different drug screens and all have been positive for cocaine. She refused to take drug screens eight times with the understanding that a refusal would be considered a positive. The trial court further found Grandmother has not completed any part of her case plan.
{¶37} As to Mother, the trial court found she has not complied with her case plan because she: obtained a drug and alcohol assessment but never returned for counseling; failed to stay in contact with the agency; has not completed a mental health assessment or any parenting classes; has no stable housing; has visited J.H. only twice at the agency in the last two years; continues to involve herself in illegal activities; and is currently incarcerated in the Guernsey County Jail.
{¶38} The trial court found Father has been incarcerated for much of the last two years, did not ask to be placed on the case plan, and has not seen the child at any time in the last two years. The trial court found Mother and Father abandoned the child.
{¶39} The trial court then considered the best interest factors as required by
{¶40} The trial court noted J.H. has been in the same foster home since August 1, 2017 and, while the child has expressed that he wants to live with Grandmother, she has not taken the necessary steps to even consider returning the child to her. While there was much testimony regarding kinship options, the agency has explored over fourteen kinship options in two years and none of the options have been appropriate or approved by the agency.
{¶41} The trial court found a legally secure placement for J.H. cannot be achieved without a grant of permanent custody to GCCS because of: the inability of Mother, Father, or Grandmother to parent the child; the drug use of Grandmother and Mother; lack of follow through with counseling by Mother and Grandmother; lack of stable, safe, and secure housing by Mother and Grandmother; abandonment of J.H. by Father; general lack of cooperation by Mother and Grandmother with GCCS and other service providers; and no appropriate kinship options are available.
{¶43} Grandmother appeals the August 1, 2019 judgment entry of the Guernsey County Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶44} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING PERMANENT CUSTODY TO GCCS.”
I.
Permanent Custody
{¶45} “[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.
{¶46} 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
{¶47} 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).
{¶48}
{¶49} Following the hearing,
{¶50} Therefore,
Reasonable Time
{¶51} In the first portion of her assignment of error, Grandmother contends the trial court erred in finding J.H. could not be returned to her within a reasonable time because she indicated she would cooperate with her case plan through Guernsey County Alcohol and Drug and she is now willing to comply with her case plan.
{¶52} We first note the trial court determined that, pursuant to
{¶53} However, with regards to J.H. and even if we considered Grandmother‘s argument with regards to J.H., the trial court did not commit error in determining the child cannot be placed with Grandmother at this time or within a reasonable period of time.
{¶55} 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 court 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. * * *
{¶56} A review of the record supports the trial court‘s conclusion that J.H. cannot be placed with Grandmother within a reasonable time. Winland testified Grandmother did not complete her treatment and did not show up for appointments. Despite testing positive for cocaine three times while working with Winland, Grandmother denied using cocaine. McIntire stated Grandmother failed to attend counseling appointments and tested positive for cocaine in all her drug screens, the latest being in March of 2019. Despite these positive screens, Grandmother denied using cocaine. McIntire found this
{¶57} Grandmother has not successfully completed her case plan. Kennedy testified Grandmother tested positive for cocaine when screening for GCCS eighteen times between August of 2017 and January of 2019 and also refused to take drug screens from July of 2018 to May of 2019, despite the fact Kennedy told her each time that a refusal to screen would be considered a positive for all substances. To Kennedy‘s knowledge, Grandmother has never tested negative for cocaine since 2017 and continues to deny using cocaine. Additionally, Grandmother was evicted from her home in 2018 and has not been employed since 2017.
{¶58} While Grandmother states she would now cooperate with the case plan, during the permanent custody hearing, she denied using cocaine despite a positive test in April of 2019. As this Court has previously stated, “* * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * parent an opportunity to prove [her] suitability * * * The law does not require the court to experiment with the child‘s welfare to see if he will suffer great detriment or harm.” In re Chestnut Children, 5th Dist. Guernsey No. 05 CA 39, 2006-Ohio-684. The concerns that the agency had at the outset of the case with regards to Grandmother still remain.
{¶59} We find there is competent and credible evidence to support the trial court‘s finding that J.H. cannot be placed with Grandmother within a reasonable amount of time.
{¶60} In the second portion of her assignment of error, Grandmother argues the trial court erred in finding an award of permanent custody to GCCS was in the best interest of J.H. Specifically, Grandmother contends that, because of her bond with J.H., permanent custody should not be granted to GCCS.
{¶61} We have frequently noted, “[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994).
{¶62} In determining the best interest of the child at a permanent custody hearing,
{¶64} The court must consider all of the elements in
{¶65} The focus of the “best interest” determination is upon the child, not the parent, as
{¶67} Kennedy testified it is in the best interest of J.H. for GCCS to have permanent custody of J.H. While J.H. is bonded to Grandmother and is upset he cannot live with her, Kennedy stated J.H. has adjusted well to the foster home and any behavioral issues are being addressed in counseling. Kennedy does not believe Mother or Grandmother can be a secure placement within a reasonable amount of time because: Mother has had very little involvement with J.H. and is currently facing felony charges; and Grandmother has had between 45-50 drug screens in the past two years that have all been positive for cocaine.
{¶68} Weaver testified and stated in her report that granting permanent custody of J.H. to GCCS is in the best interest of J.H. Yates recommends permanent custody be granted to GCCS because: adequate time has been given to all parties involved to successfully complete their case plan; Grandmother has been non-compliant with the case plan, as she habitually uses drugs; Mother is frequently incarcerated and fails to work on her case plan; and Father has not been actively involved.
{¶69} We find the trial court properly considered and weighed the factors in
{¶71} The August 1, 2019 judgment entry of the Guernsey County Court of Common Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur