In re J.M.
K. Danielle Whitt, Hillsboro, Ohio, for Appellant.1
Anneka P. Collins, Highland County Prosecuting Attorney, and James Roeder, Assistant Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee.
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
{¶1} This is an appeal from a Highland County Common Pleas Court, Juvenile Division, judgment that granted Highland County Job and Family Services Agency, Children Services Division, appellee herein, permanent custody of four minor children: (1) thirteen-year-old J.M.; (2) eleven-year-old S.M.; (3) eight-year-old D.M.; and (4) six-year-old B.M.
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY TO THE AGENCY IS WAS [SIC] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS CONSTITUTES REVERSABLE [SIC] ERROR.”
SECOND ASSIGNMENT OF ERROR:
“THE AGENCY DID NOT USE REASONABLE EFFORTS TO PREVENT REMOVAL OR TO REUNITE THE CHILDREN TO MOTHER-APPELLANT.”
{¶3} In August 2019, J.M. disclosed to school friends that her father had sexually abused her. An agency caseworker visited the school to speak with J.M. and she stated that her “father was doing inappropriate things to her and that [appellant] was aware of the allegations.” J.M. informed the caseworker that J.M. “drew pictures of her and her father and that [appellant] hid them.”
{¶4} When a caseworker spoke with appellant, she admitted to “knowing in her gut that something happened.” Appellant did not, however, ask the father to leave the home or report her suspicions to anyone. Appellant advised the caseworker that appellant “didn’t think she could raise the kids on her own and chose to ignore the allegations.”
{¶6} On October 18, 2019, appellant and the father admitted to the allegations contained in the complaint and waived their right to an adjudicatory hearing. The trial court adjudicated the children dependent, dismissed the abuse and neglect allegations, and based upon the parties’ agreement, the court placed the children in appellee’s temporary custody for one year. The court also found that appellee used reasonable efforts to prevent the children’s removal from the home.
{¶7} On February 4, 2021, appellee filed a motion for permanent custody. Appellee asserted that the children have been in its temporary custody for at least 12 of the past 22 months and that placing the children in its permanent custody is in the children’s best interests.
{¶8} On April 9, 2021, appellee filed a motion that asked the trial court to suspend appellant’s visits with the children. Appellee alleged that the three youngest children’s foster parents “experienc[ed] an increase with emotional/behavioral issues with the children in the past month.” The motion stated
{¶9} To support its motion, appellee attached a letter from the three younger children’s therapist that stated that visits with appellant are not “health[y] or productive” for the children. The therapist’s letter also outlined, in more detail, the children’s worsening behavioral issues, along with the children’s concerns raised regarding their visits with appellant. Subsequently, the court granted the motion to suspend visits.
{¶10} On June 4, 2021, the trial court held a hearing to consider appellee’s permanent custody motion. At the hearing, the parties presented evidence. Family Advocacy Center visitation monitor Delores Colville testified that appellant attended most of her scheduled visits with the children, interacted appropriately with the children and noted that the children seemed bonded to appellant.
{¶12} Souther further related that the case plan recommended that all four children receive psychological evaluations and engage in counseling, and the children remain in counseling. Souther reported that, after the children had been removed from appellant’s home, the children had been placed with relatives. Approximately four weeks later, however, J.M. entered a residential facility and remained until September 2020 when the agency placed J.M. in a therapeutic foster home. In January 2021, J.M. was removed from the home and placed in respite. Between January 2021 and April 2021, J.M. was placed in two foster homes. In April 2021, the agency placed J.M. in L.N.’s home, and J.M. has remained in L.N.’s home since that time.
{¶14} After D.M.’s removal from the relative’s home, appellee placed him in a therapeutic foster home. In July 2020, appellee placed D.M. with the same foster family as S.M. and B.M. Shortly thereafter, D.M. was removed and placed with another foster family. D.M. has remained with this foster family since that time.
{¶15} Souther testified that the agency eventually determined that reunifying the children with appellant is not possible:
Throughout the life of this case, the children have struggled with their behaviors, trained foster parents have struggled to manage those behaviors. And at the beginning of the case, [appellant] did state that she hadn’t think [sic] that she was able to manage them. She has not said that to me since then, but I have a concern for her ability to be able to manage these behaviors with these four children.
{¶16} C.C., a foster parent, stated that S.M. and B.M. have lived in her home since February 2020. C.C. explained that, when S.M. first entered her home, S.M. was domineering and “had a lot of issue with behavior and attitude and not wanting to listen or comply with rules.” C.C. reported that, at one point,
{¶17} C.C. testified that B.M. “was very aggressive” when the child first entered her home. She explained that B.M. “would kick, scream, pull [the foster mother’s] hair, yell at [the foster mother], * * * and throw herself to the ground.” C.C. further indicated that B.M. had behavioral issues at school and had “to transfer her classroom multiple times until B.M. was placed with a teacher she felt “comfortable with.”
{¶18} C.C. stated that neither child slept through the night, and B.M. “had terrible, terrible nightmares.” C.C. also testified that both children displayed sexualized behavior and see a trauma-based therapist. Since the children stopped visiting appellant, however, their behaviors have improved. Once visits stopped, S.M. improved her grades and finished the school year with As and Bs. C.C. further explained that, since visits stopped, B.M. has not had nightmares. C.C. stated that she “would love to be able to adopt” B.M. and S.M.
{¶19} C.C. further related that D.M. lived in her home for 17 days and spent four of those days in the hospital. She explained that D.M. broke a bed and tried to tip over a dresser.
{¶20} D.M.’s current foster parent, Cl.C. testified that D.M. moved into her home in July 2020 following a hospital stay. Cl.C. stated that when D.M. arrived, he was “bubbly” and “started exploring” the house. Cl.C. related that the next day, D.M. started to call her and her husband “mom and dad.” For the first six weeks, D.M. did not display aggressive behavior, but after six weeks she noticed “a lot of aggression.” He hit, kicked, bit, pinched, and threw things. He also tried to run away. Cl.C. stated that she eventually placed a camera in D.M.’s room because he tried to break out the window and run away.
{¶21} L.N., J.M.’s foster parent, testified that J.M. has been in her home since April 17, 2021. L.N. stated that J.M.’s behavior with L.N.’s husband is “borderline inappropriate,” because J.M. tries “to tickle him often,” “tries to cuddle with him on the couch,” and acts “a little bit flirtatious.”
{¶22} Appellant testified upon cross-examination and indicated that she lives in Mansfield and works at Morrow Manor. She explained she moved to Mansfield because she “wanted a fresh
{¶23} Appellant stated that she attends counseling every two weeks to help treat PTSD, anxiety, and depression, and that she takes four prescribed medicines to treat her conditions. Appellant acknowledged that she admitted the children are dependent, and that she stated that she did not believe that she could raise the four children on her own, but she denied that she admitted that she chose to ignore the sexual abuse allegations.
{¶24} Appellant presented several witnesses to testify on her behalf. Amanda Meeker, appellant’s best friend, stated that the children did not have behavioral issues before appellee removed them from appellant’s custody. Meeker further indicated that she did not have any concerns about appellant’s parenting skills.
{¶25} Deborah Britt, the children’s great-aunt, testified that, when the agency first removed the children from appellant’s custody, the agency placed J.M. and S.M. in her home and placed D.M. and B.M. in Britt’s daughter’s home. Britt explained that the agency later determined that the children needed counseling and, due to her work schedule it would have been difficult to ensure that the children could attend all of
{¶26} Appellant also presented testimony from her father and sister, who likewise stated that they have no concerns about appellant’s parenting abilities.
{¶27} On June 7, 2021, the trial court awarded appellee permanent custody of the four children. The court first determined that the children have been in appellee’s custody for 12 or more months of a consecutive 22-month period. The court next considered the children’s best interests and noted that although appellant attended most of the visits with the children and the visits “went well,” the court expressed concern with appellant’s admission that she believed “in her gut something had happened,” yet did nothing. The court thus found that appellant “violated her most basic and fundamental role as a parent by failing to protect her children and most specifically J.M. from being raped by [the father].” The court also noted that appellant remained married to the father.
{¶28} The trial court also found the foster parents’ testimony “both compelling and heartbreaking.” The court
{¶29} The trial court concluded that the parents’ “actions as well as inactions” show that the children cannot achieve a legally secure permanent placement without granting appellee permanent custody. The court additionally observed that the children’s guardian ad litem recommended that the court place the children in appellee’s permanent custody.
{¶30} Consequently, the trial court determined that the children’s placement in appellee’s permanent custody is in their best interests and granted appellee permanent custody of the four children. This appeal followed.
I
{¶31} In her first assignment of error, appellant asserts that the trial court’s decision to grant appellee permanent custody is against the manifest weight of the evidence.
{¶32} In particular, appellant contends that the evidence shows that appellee should have attempted to reunify the family. Appellant claims that she (1) complied with her case plan and continued to engage in recommended counseling, (2) consistently
A
{¶33} Generally, a reviewing court will not disturb a trial court’s permanent custody decision unless the decision is against the manifest weight of the evidence. E.g., In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
“Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’”
{¶34} When an appellate court reviews whether a trial court’s permanent custody decision is against the manifest weight of the evidence, the court “‘“weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”’” Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶¶ 23-24. We further observe, however, that issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact. As the court explained in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):
The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view
Moreover, deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well (Emphasis sic).” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). Accord In re Christian, 4th Dist. No. 04CA 10, 2004-Ohio-3146, ¶ 7.
{¶35} The question that an appellate court must resolve when reviewing a permanent custody decision under the manifest weight of the evidence standard is “whether the juvenile court’s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. “Clear and convincing evidence” is:
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986). In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will
{¶36} Thus, if a children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm belief that permanent custody is warranted, the court’s decision is not against the manifest weight of the evidence. In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 62 (4th Dist.); In re R.L., 2nd Dist. Greene Nos. 2012CA32 and Greene Nos. 2012CA33, 2012-Ohio-6049, ¶ 17,
{¶37} Once a reviewing court finishes its examination, the judgment may be reversed only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court should find a trial court’s permanent custody decision against the manifest weight of the evidence only in the “‘exceptional case in which the evidence weighs heavily against the [decision].’” Id., quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717; accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
B
{¶38} We recognize that “parents’ interest in the care, custody, and control of their children ‘is perhaps the oldest of
{¶39} A parent’s rights, however, are not absolute. In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11. Rather, “‘it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.’” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). Thus,
{¶40} Before a court may award a children services agency permanent custody of a child,
C
{¶41} A children services agency may obtain permanent custody of a child by (1) requesting it in the abuse, neglect or dependency complaint under
{¶42}
(a) The child is not abandoned or orphaned or has not 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 ending on or after March 18, 1999, and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(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 ending on or after March 18, 1999.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{¶43} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
{¶44} In the case at bar, appellant does not dispute the trial court’s finding that the children have been in the agency’s temporary custody for 12 or more months of a consecutive 22-month period. Therefore, we do not address the court’s
{¶45}
{¶46} Courts that are determining whether a grant of permanent custody to a children services agency will promote a child’s best interest must consider “all relevant [best interest] factors,” as well as the “five enumerated statutory factors.” C.F. at ¶ 57, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G., 9th Dist. Summit Nos. 24097 and Summit Nos. 24099, 2008-Ohio-3773, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and Franklin Nos. 07AP-591, 2008-Ohio-297, ¶ 19. However, none of the best interest factors are entitled to “greater weight or heightened significance.” C.F. at ¶ 57. Instead, the trial court considers the totality of the circumstances when making its best interest determination. In re K.M.S., 3rd Dist. Marion Nos. 9-15-37, 9-15-38, and Marion Nos. 9-15-39, 2017-Ohio-142, ¶ 24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶ 46. In general, “[a] child’s best interest is served by placing the child in a permanent situation that fosters growth, stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and Lawrence Nos. 15CA19, 2016-Ohio-916, ¶ 66, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
{¶48} We first note that, although appellant’s first assignment of error recites the best-interest factors, she does not explain how any of those factors show that granting permanent custody of the children is not in their best interests. Instead, the best interest argument contained beneath appellant’s first assignment of error focuses solely upon her conduct, her case plan compliance, and her current situation. However, the argument contained beneath appellant’s second assignment of error does contain a short argument regarding the best-interest factors. Appellant asserts that she and the children share “a clear bond” and that appellant consistently visited the children. Although appellant did not raise her best-interest argument within the corresponding assignment of error, we nonetheless will consider whether the trial court’s best interest determination is against the manifest weight of the evidence.
Children’s Interactions and Interrelationships
{¶49} The evidence adduced at the hearing reveals that the four children enjoy visiting with one another, generally enjoyed
{¶50} Furthermore, in April 2021, the trial court terminated appellant’s visits with the children due to concerns that the visits were no longer healthy for the children and seemed to cause the children’s behavioral issues to worsen. Thus, the evidence indicates that the children do not share a positive, healthy relationship with appellant. Instead, the evidence illustrates that appellant’s conduct, and her failure to protect her children, has caused the children to suffer serious emotional trauma.
{¶51} Additionally, foster families are providing the children with a healthy environment, along with the support that the children need. S.M. and B.M.’s foster parents would like to adopt the two children. Appellee, however, did not present any clear evidence regarding D.M.’s and J.M.’s foster parents’ intentions. The evidence does show that all the foster parents are making admirable and commendable efforts to help these
Children’s Wishes
{¶52} The court stated that the children’s wishes are “outlined within the Guardian Ad Litem report” and noted that the guardian ad litem recommended the court grant appellee permanent custody of the children.
Custodial History
{¶53} Before their August 2019 removal from the home, the children lived with appellant and their father. Since their removal, the children have remained in appellee’s temporary custody. When appellee filed its February 2021 permanent custody motion, the children had been in appellee’s temporary custody for more than 12 months.
Legally Secure Permanent Placement
{¶54} “Although the Ohio Revised Code does not define the term, ‘legally secure permanent placement,’ this court and others have generally interpreted the phrase to mean a safe, stable, consistent environment where a child’s needs will be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL 925423, *9 (Aug. 9, 2001) (“legally secure permanent placement” means a “stable, safe, and nurturing environment”); see also In
{¶56} In the case at bar, appellant did not notify anyone about her suspicions that the father had sexually abused J.M. Appellant did admit that she knew “in her gut that something happened,” yet did nothing. Instead, appellant remained silent because she did not believe that she could raise the children on her own. Appellant thus failed in one of her essential duties as a parent – to protect her children from abuse. Consequently, appellant’s failure to report her suspicions raises serious doubts about her protective capacity and her ability to provide the children with a safe environment.
{¶57} Moreover, all of the children have serious behavioral issues that require counseling. The stability and routines that the foster homes have given the children allow the children to
“* * * [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. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child’s present condition and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * 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 W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, ¶ 48, quoting In re Bishop, 36 Ohio App.3d 123, 126, 521 N.E.2d 838 (5th Dist.1987).
{¶58} Moreover, even if appellant complied with every part of the case plan, as we have observed in the past, a parent’s case plan compliance may be a relevant, but not necessarily
{¶59} In the case sub judice, as we noted above, we believe that the record contains ample clear and convincing evidence that placing the children in appellee’s permanent custody is in their best interests. Although we do not discount appellant’s compliance with the case plan, her case plan compliance does not override the children’s best interests.
{¶60} Accordingly, based upon the foregoing reasons, we overrule appellant’s first assignment of error.
II
{¶61} In her second assignment of error, appellant asserts that the trial court erred by granting appellee permanent custody of the children due to appellee’s alleged lack of reasonable efforts to reunify the family. Appellant contends that appellee should have instead filed for a six-month
{¶62} We note, however, that the argument that appears beneath appellant’s second assignment of error does not assert that appellee failed to use reasonable efforts. Instead, within her second assignment of error appellant contends that the trial court’s best-interest determination is against the manifest weight of the evidence. Because appellant does not raise any specific argument regarding appellee’s alleged failure to use reasonable efforts, we will not construct this argument for her. See generally State v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 43-44, quoting State v. Palmer, 9th Dist. Summit No. 28303, 2017-Ohio-2639, ¶ 33 (appellate court does not have a duty to construct argument on an appellant’s behalf and stating that this court will not address “‘undeveloped arguments’”). We further note that
{¶63} In the case sub judice, appellant’s appeal does not originate from one of the types of hearings specifically listed in
{¶64} Accordingly, based upon the foregoing reasons, we overrule appellant’s second assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed. Appellee shall recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.