In re J.M.
Christopher Bazeley, for appellant.
HENDRICKSON, P.J.
{¶ 1} Appellant, the biological father of J.M., appeals a decision of the Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of his son to appellee, the Clermont County Department of Job and Family Services (“the Agency“). For the reasons discussed below, we affirm the juvenile court‘s decision.
{¶ 3} On June 24, 2022, the Agency filed a complaint alleging that J.M. was a neglected child. The complaint indicated that on June 1, 2022, J.M., then five years old, had been found wandering around a construction area by himself for 30 to 45 minutes. Father was contacted and appeared to be under the influence. Father consented to a drug screen, which came back positive for several different illegal substances, including cocaine, methamphetamine, and fentanyl. The Agency tried to make contact with Father in the weeks following the June 1st incident, however Father was unable to be reached. On June 23, 2022, the Agency made contact with Father at his home. Father engaged in erratic and disorderly behavior and law enforcement were called to the scene. The Agency removed J.M. from Father‘s home at that time. The following day, June 24, 2022, the Agency was granted emergency custody of J.M., and the juvenile court appointed a guardian ad litem for the child.
{¶ 4} On August 18, 2022 the court held an adjudicatory hearing. The next day, following admissions made by Father, J.M. was adjudicated a dependent child. A dispositional hearing was held on September 15, 2022. In both instances, the juvenile court continued the order of temporary custody with the Agency. Father was granted weekly visitation with J.M. at the Agency‘s visitation center, which he routinely exercised until May 2023. Due to lack of attendance, Father was officially removed from the visitation list in the fall of 2023. Multiple months passed before he re-engaged in visitation
{¶ 5} The Agency created a case plan for Father‘s reunification with the child, and this plan was adopted by the juvenile court. The case plan required Father complete a substance abuse assessment and follow through with all recommended treatments, obtain and maintain stable housing and income, complete parenting education classes, and engage in case management services with the Agency. Though Father began working on case plan objectives by undergoing a drug assessment with the Clermont Recovery Center (“CRC“) and starting intensive outpatient services, he was ultimately unsuccessfully discharged from the program on May 11, 2023 due to chronic absenteeism. Father attempted treatment again later that month at CAT House, but left after 20 days. He did not seek any further treatment until April 12, 2024, when he sought to re-engage in services with CRC. Though it was recommended that Father engage in intensive inpatient program, Father declined this course of treatment. Instead, Father engaged in outpatient services. However, he was once again removed from services on May 30, 2024.
{¶ 6} The Agency requested and was granted an extension of temporary custody on August 3, 2023. On September 7, 2023, following limited progress on the case plan by Father, the Agency filed a motion for permanent custody of J.M. Five days later, September 12, 2023, Father filed a motion for custody. A hearing on the competing motions was scheduled for January 12, 2024. A week prior to that date, on January 5,
{¶ 7} The day the hearing was set to commence, Father moved for a continuance, which was granted by the juvenile court. A new hearing date was set for March 8, 2024. However, prior to this date, Father again moved for a continuance, citing his desire to continue to work on case plan objectives and the expected filing of a motion for legal custody by J.M.‘s paternal aunt (“Paternal Aunt“). On March 7, 2024, Paternal Aunt filed a motion to intervene in the case and attached to her filing a motion for legal custody of J.M. The juvenile court granted a continuance until May 31, 2024, noting that Paternal Aunt‘s motion to intervene would be addressed at the outset of the May 31st hearing.
{¶ 8} On May 28, 2024, the guardian ad litem filed an addendum to her previously filed report, once again recommending that permanent custody be granted to the Agency. A hearing before a magistrate commenced on May 31, 2024. At the time of the hearing, J.M. was seven years old.
{¶ 9} Paternal Aunt testified on behalf of her desire to intervene in the case and be granted legal custody of J.M. Paternal Aunt indicated that she had cared for J.M. for about three weeks when he was around six months old. She also occasionally cared for J.M. when Father had to go to work. Other than occasionally caring for J.M. and seeing him at holiday gatherings or at family birthday parties, Paternal Aunt recalled that there had been one occasion when she took J.M. on a week-long vacation to Tennessee. Paternal Aunt explained that she had waited until March 7, 2024 to file her motion to intervene and seek custody of J.M. because she believed Father would be able to regain custody. Paternal Aunt testified she was taking classes to become a certified foster parent.
{¶ 11} The CSEA staff attorney testified that in 2022, the Agency filed a complaint for child support against Father. Pursuant to a December 2022 order, Father was obligated to pay $115.52 in support each month, plus an additional $16.85 as cash medical and $26.47 in arrearages, for a total monthly obligation of $162.02. Since Father‘s support obligation had been determined, Father had only made three payments. Of those three payments, only an August 2023 payment had been voluntarily made. In November 2023, CSEA had intercepted $960 in lottery winnings. Then, in December 2023, CSEA obtained an involuntary assignment of $1,105.4 At the time of the permanent custody hearing, Father had an arrearage of $713.24.
{¶ 12} The Agency caseworker assigned to J.M.‘s case testified about the Agency‘s involvement, J.M.‘s placement history, and Father‘s limited progress on the case plan. The caseworker explained that J.M. was initially removed from Father‘s home on June 23, 2022 and the Agency was granted emergency temporary custody on June 24, 2022. J.M. has remained in the Agency‘s temporary custody since that date. J.M. has had
{¶ 13} The caseworker testified that J.M. and Father have a “good relationship” and that J.M. “speaks positively” of Father. The caseworker noted that Father is very attentive to J.M. during visits and the two share a “strong bond.” Father was initially very consistent in exercising his visitation with J.M. However, in May 2023, Father began missing multiple visits, purportedly due to illness and car trouble. Father missed so many visits that he was taken off the visitation log in August 2023. According to the caseworker, Father did not have any visits with J.M. from May 2023 to March 8, 2024, when visitations were restarted. Recently, Paternal Aunt started visitations with J.M., and those visits were going fine.
{¶ 14} With respect to Father‘s case plan progress, the caseworker testified that Father had suitable housing and income. Father had been residing in the same home for the pendency of the case and this home had a safe and appropriate room set up for J.M. Father purportedly worked as a painter, though there was no evidence presented as to his salary.
{¶ 15} The caseworker testified Father failed to make progress addressing his substance abuse issues, which the caseworker indicated was the “most significant” component of his case plan. Though the Agency had explained to Father that his drug
{¶ 16} On August 18, 2022, Father completed a substance abuse assessment at CRC. It was recommended that Father engage in intensive outpatient services, including individual and group therapies and medication-assisted treatment. Though Father initially engaged in services, his attendance was poor. On March 30, 2023, CRC sent a “no contact” letter. Father was ultimately discharged from CRC on May 11, 2023. After being discharged from CRC, Father briefly engaged in services at CAT House. In May 2023, he spent approximately 20 days in an inpatient drug treatment program before choosing to leave the program. He did not re-engage in any services until April 12, 2024, approximately seven months after the Agency moved for permanent custody. Though Father refused a toxicology screen, he did obtain a new assessment from CRC. CRC recommended inpatient services, but Father rejected that course of treatment. Instead, Father agreed to intensive outpatient services, which included individual and group therapies that met three times per week. Father was removed from CRC services on May 30, 2024, the day before the permanent custody hearing. The caseworker testified there had been “no measurable outcome in treatment” as Father had not attended enough sessions. When Father was last drug tested by the Agency on March 8, 2024, he tested positive for opiates, including heroin metabolite, morphine, and fentanyl.
{¶ 17} Father‘s lack of progress on treating his substance abuse issues prevented the Agency from referring him to a parenting education course. The caseworker explained that it was the Agency‘s policy to wait to recommend a 15-week parenting program through Child Focus until the Agency saw consistent substance abuse treatment. Because Father never engaged in consistent drug treatment, he never received the recommendation. Father did not complete any other parenting education programs.
{¶ 19} J.M.‘s Foster Mother testified that J.M. was placed in her home on August 8, 2023. J.M. is bonded with his foster mother and foster father. Foster Mother testified J.M. is “generally a very happy kid” who is doing “really well.” J.M. loves the family dog and his pet fish, he has numerous friends in the neighborhood with whom he plays, he enjoys the game of chess, going sailing, building things, and riding his bike alongside Foster Mother when she goes for a run.
{¶ 20} Foster Mother testified that when J.M. was first placed in her home, J.M. was very hard to understand, was behind in his language skills, and was academically behind his school peers. Testing revealed that he is likely dyslexic. Foster Mother and Foster Father have worked with J.M., obtained a private tutor to help him with his reading and decoding skills, and are consistent with his speech therapies. J.M. is now on par with his peers in math and science and is improving in his speech and literacy. Foster Mother testified that if the juvenile court were to grant permanent custody of J.M. to the Agency, she and her husband hoped to adopt him.
{¶ 21} An adoption supervisor with the Agency testified that if permanent custody of J.M. was granted, the case would be transferred to the adoption unit. Within 60 days of the transfer, the Agency would conduct meetings to match the child with adoptive families. The Agency would consider any individual interested in adopting J.M., including Paternal Aunt, so long as the interested individuals completed an application for adoption.
Upon consideration of the pertinent statutes and case law, testimony, exhibits, and case file, the Court finds that the Decision of the Magistrate is not against the manifest weight of the evidence. The Court finds the testimony presented by the Agency‘s witnesses to be credible based upon a review of the transcript. The Court finds in weighing the evidence that there is substantial credible evidence that is both clear and convincing to terminate parental rights and award permanent custody to the [Agency].
The Court further finds, having considered the relevant statutes and facts of this case regarding the best interest of the child, that there is substantial credible evidence that is both clear and convincing that it is in the best interest of the child to permanently terminate parental rights and grant permanent custody to the [Agency].
IT IS ORDERED, that the Objections to the Decision of the Magistrate hereby be overruled in their entirety.
IT IS FURTHER ORDERED, that this Court affirms the decision of the Magistrate to terminate the parental rights of Mother . . . and Father . . . and grant permanent custody of the child . . . to the [Agency].
{¶ 24} THE TRIAL COURT‘S DECISION AWARDING PERMANENT CUSTODY OF J.M. TO THE STATE IS AGAINST THE WEIGHT OF THE EVIDENCE.
{¶ 25} Father challenges the juvenile court‘s decision to grant permanent custody of J.M. to the Agency, contending the court‘s determination that permanent custody was in J.M.‘s best interest was against the manifest weight of the evidence.
{¶ 26} Before a parent‘s constitutionally protected liberty interest in the care and custody of his or her child may be terminated, the state must prove by clear and convincing evidence that the statutory standards for permanent custody have been met. In re K.W., 2015-Ohio-4315, ¶ 11 (12th Dist.), citing Santosky v. Kramer, 455 U.S. 745, 769 (1982). Under
{¶ 27} “Because
{¶ 28} With respect to the second part of the two-part permanent custody test, the
{¶ 29} The only issue remaining is whether an award of permanent custody to the Agency was in J.M.‘s best interest. When considering the best interest of a child in a permanent custody case, the juvenile court is required under
{¶ 30} The record reflects that the court considered the best interest factors set forth in
{¶ 31} Following our review of the record, we find no merit to Father‘s argument. The juvenile court‘s best interest determination is supported by clear and convincing evidence and is not against the manifest weight of the evidence. In examining J.M.‘s interaction and interrelationship with Father and his paternal family, the juvenile recognized that Father and J.M. are bonded, have a good relationship, and that J.M. “speaks positively about his father.” However, Father was not consistent in visiting J.M. Multiple months passed in the fall of 2023 without Father visiting the child. Given that more than 90 days passed without Father visiting or maintaining any contact with J.M., the juvenile court found that Father had abandoned the child, as contemplated by
{¶ 32} In addition to considering the child‘s relationship with Father and his paternal relatives, the juvenile court also considered J.M.‘s custodial history, his current living situation, his relationship with the foster family, and his wishes, as expressed through the guardian ad litem. J.M. has been in the Agency‘s custody since June 24, 2022. He was placed in three other foster homes before being placed in his current foster home on August 8, 2023. J.M. is bonded with his foster parents, who have been consistent in providing him with the structure he needs. As the juvenile court noted, “[a]s a result of [foster parent‘s] attentiveness, the child has ‘opened up’ and ‘blossomed.’ . . . The foster family has proven itself capable of providing for the tangible and intangible needs of the child in the areas where he struggles.” J.M.‘s schooling has progressed, his speech and literacy issues are being addressed through tutors and therapies, and he has found friends and activities that he enjoys within his current community. The court noted that J.M. had informed the guardian ad litem that he “would love to stay” with the foster family, and the guardian ad litem had recommended that permanent custody be granted to the Agency.
{¶ 33} The juvenile court also considered Father‘s progress on case plan services, J.M.‘s need for a legally secure placement, whether such placement could be achieved without a grant of permanent custody to the Agency, and whether the conditions that led to the Agency‘s involvement had been remedied. The record reflects that Father made some progress on case plan services but was ultimately unable to remedy the conditions that led to the Agency‘s involvement. On June 1, 2022, J.M. was found wondering unsupervised through a construction site when he was five years old. Father tested positive for cocaine, methamphetamine, and fentanyl at that time. When the Agency
{¶ 34} Though Father obtained a substance abuse assessment and briefly engaged in outpatient drug treatment through the CRC, his attendance was poor and he was unsuccessfully discharged from the program in May 2023. He then attended 20 days of inpatient services through CAT House, but he chose to leave the program without completing it. Father was not receiving any substance abuse treatment from May 2023 until April 12, 2024, when he restarted services at CRC. However, Father did not dedicate himself to substance abuse treatment at that time. Rather, Father refused a toxicology screening, rejected inpatient services, and was unsuccessfully discharged from the program on May 30, 2024.
{¶ 35} The record, therefore, supports the juvenile court‘s finding that “Father has failed to complete the most important aspect of his case, i.e., substance abuse treatment.” The record further supports the juvenile court‘s finding that Father tested positive for illegal substances or refused to be tested throughout the pendency of the case. As late as March 8, 2024, Father was still testing positive for heroin metabolite, morphine, and fentanyl on drug screenings. Father‘s lack of progress in treating his substance abuse issues impacted his ability to complete another case plan service—parenting classes. The Agency had not provided a referral for parenting classes as Father had not demonstrated a consistent dedication to drug treatment.
{¶ 37} “A child‘s life is not an experiment that can be left to chance.” In re G.W., 2019-Ohio-1586, ¶ 52 (12th Dist.). “‘The law does not require the court to experiment with [a] child‘s welfare to see if [the child] will suffer great detriment or harm.‘” In re B.C., 2018-Ohio-2673, ¶ 30 (12th Dist.), quoting In re R.S.-G., 2015-Ohio-4245, ¶ 53 (4th Dist.). Father has not demonstrated that he is willing to prioritize J.M.‘s health, safety, and stability over his desire to use illegal substances. As the juvenile court found, Father “appears to be unable to make a solid commitment to his treatment for any length of time. . . . He does not appear committed to making a lasting change. . . . As long as the Father‘s sobriety is questionable, there will be doubts as to whether the child is getting the proper attention and guidance he needs in order to grow and remain safe.”
{¶ 38} J.M. is in need of legally secure permanent placement. He has been in the Agency‘s temporary custody since June 24, 2022. Despite reasonable efforts by the Agency to assist Father in meeting case plan objectives to reunify with the child, Father has not demonstrated that he is capable of maintaining sobriety or providing a safe and stable environment for J.M. As this court has previously recognized, “‘[a] child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security.‘” In re I.C., 2022-Ohio-3101, ¶ 45 (12th Dist.), quoting In re D.E., 2018-Ohio-3341 at ¶ 60. The juvenile court‘s decision granting permanent custody to the Agency provides this for the child as it offers J.M. the opportunity to be adopted by his current foster family or another loving family. Accordingly, we find that the juvenile court‘s
{¶ 39} Judgment affirmed.
BYRNE and SIEBERT, JJ. concur.