In re K.B.
Patrice Butler, 2282 North Alameda Drive, Baton Rouge, LA 70815, appellant, pro se
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee, Clermont County Department of Job and Family Services
Ginn & McClain, LLC, Lauren McClain, 8595 Beechmont Avenue, Suite 103, Cincinnati, Ohio 45255 and Fred S. Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011, for appellees, E.W. and C.W.
Ryan DeBra, 4914 Ridge Avenue, Cincinnati, Ohio 45209, guardian ad litem
O P I N I O N
RINGLAND, J.
{¶ 1} Appellants, Kenneth B. (Father) and Patrice B. (Grandmother), appeal pro se from the decision of the Clermont County Court of Common Pleas, Juvenile Division, denying
{¶ 2} K.B. was born on July 20, 2011. On July 22, 2011, DJFS filed a complaint alleging K.B. was an abused child. The complaint stated that K.B. tested positive for opiates at birth and was showing signs of withdrawal. Additionally, the complaint stated that K.B.‘s biological mother (Mother) had admitted to using Vicodin, and that attempts to contact Father, a resident of Louisiana, had failed.
{¶ 3} The juvenile court ordered that K.B. be placed in the emergency temporary custody of DJFS. On August 11, 2011, K.B. was discharged from the hospital and placed with Foster Parents, who also had K.B.‘s half-sister (Sister) in their care.1 In October 2011, K.B. was adjudicated an abused child, and the court issued a dispositional order granting temporary custody to DJFS.
{¶ 4} Almost three years later, in May 2014, DJFS moved for permanent custody of K.B., and a hearing was held on October 10, 2014.2 The first witness was Mother, who testified that she visits K.B. on a weekly basis at Foster Parents’ home, and that she has observed a strong bond between Foster Parents and K.B., and between K.B. and Sister. Mother stated that she believed it was in K.B.‘s best interest for the court to award permanent
{¶ 5} Next, the juvenile court heard the testimony of Nichole McClure, K.B.‘s former case manager. In addition to providing a brief overview of K.B.‘s history with DJFS, McClure discussed Father‘s contacts with DJFS throughout K.B.‘s case. She noted that Father‘s first contact with DJFS was soon after K.B.‘s birth in July 2011, when DJFS contacted Father to inform him of K.B.‘s condition and Mother‘s issues with opiates. At that time, Father told the agency he wanted K.B. placed with the maternal grandmother, declined DJFS‘s offer to develop a case plan for him, and provided no information about any other relatives with whom K.B. could be placed.
{¶ 6} After the initial contact, DJFS did not hear from Father until January 2, 2012, when he left a message with DJFS requesting a visitation while he was in the state for a paternity test with respect to K.B. McClure stated that she spoke with Father on January 3, 2012, and told him that she would have to get approval by her supervisor for the visitation. After obtaining the necessary approval for a visitation later that same week, McClure attempted to call Father several times, but he did not answer and she was unable to leave a message because his voicemail was not set-up.
{¶ 7} McClure then called Mother to inform her that Father‘s visitation with K.B. had been approved, but Mother called back to inform McClure that Father would be unable to visit because he had already left the state. Father left another message for McClure in late January 2012, but he did not respond when she returned his call. McClure testified that DJFS did not hear from Father again until August 2012, over one year after K.B.‘s birth.
{¶ 8} McClure noted that she did not know of Grandmother‘s existence until February
{¶ 9} McClure stated that as K.B.‘s case manager, she had observed K.B. with Foster Parents “[m]any, many times,” and believed that K.B. was comfortable in Foster Parents’ home, which is the only home K.B. has ever known. She noted that K.B. had experienced significant medical issues during her withdrawal from opiates, and that Foster Parents had provided “appropriate necessary extra special care” to meet her needs. She also noted that K.B. had developed a strong bond with Sister and Foster Parents. For these reasons, McClure believed it was in K.B.‘s best interest to award permanent custody to DJFS.
{¶ 10} Following McClure‘s testimony, the juvenile court heard from Anita Bechmann, K.B.‘s guardian ad litem from July 2011 to summer 2014. GAL Bechmann testified as to the reasons she believed it was in K.B.‘s best interest to award permanent custody to DJFS. She noted that she had observed K.B. interacting with Foster Parents, and that Foster Parents provided appropriate guidance, discipline, and therapy for K.B., they have an efficient, clean home, and love very deeply all of their children, including Sister and K.B.
{¶ 11} By contrast, GAL Bechmann observed that Father did not respond to her attempts to contact him by mail soon after K.B.‘s birth. She noted that “if a parent knows that the other parent is struggling with housing and serious drug issues * * * to just say * * * I‘ll leave it to that other parent to make it to me is not, not [sic] good parenting.” GAL Bechmann
{¶ 12} Next, the juvenile court heard the testimony of Foster Mother. Foster Mother recalled that K.B. had come into her home with severe opiate-withdrawal and severe colicky behavior in August 2011, and had spent the first seven months “all day screaming and yelling, screaming and yelling.” Nevertheless, after those first difficult months were over, Mother stated that the familial relationship “has blossomed as the years have gone on,” and noted that “we‘re the only parents [K.B.] knows * * *.” Foster Mother also testified that she and Foster Father are licensed for adoption, and that they would pursue the adoption of K.B. if DJFS were granted permanent custody.
{¶ 13} The juvenile court then heard the testimony of Ryan DeBra, who was appointed guardian ad litem in place of GAL Bechmann in summer 2014. GAL DeBra filed a report a few days before the permanent custody hearing in which he recommended that permanent custody of K.B. be awarded to DJFS. At the hearing, he affirmed his recommendation, and emphasized K.B.‘s strong bond with Foster Parents and Foster Parents’ other children, as well as the severe disruption that removing K.B. from Foster Parents’ home would cause the child.
{¶ 14} GAL DeBra also noted his concern about financial difficulties Grandmother had experienced, which he discovered independently, that Grandmother had failed to disclose during the home study conducted in 2014. In particular, he stated that a Louisiana court had recently ordered a sheriff‘s sale of Grandmother‘s home, that she had responded by filing for bankruptcy, and that Grandmother admitted to her difficulties only after he directly questioned her about them.
{¶ 15} Although Father was present throughout the hearing, he did not testify. In her testimony, Grandmother stated her belief that it was in K.B.‘s best interest to award legal
{¶ 16} Grandmother also stated that she was financially able to provide for K.B., and that her pending bankruptcy was due to the large legal bills that had resulted from the custody battles for K.B. She noted that her house would be protected under bankruptcy laws, and that in addition to earnings from her work as a substance-abuse counselor, her monthly income from the Veteran‘s Administration and Father‘s child support payments would adequately support K.B. Grandmother stated that the only reason she did not disclose her financial troubles during the home study was that nobody asked.
{¶ 17} Appellants also presented the testimony of Loretta Hill, a licensed social worker in the state of Louisiana. Hill‘s only knowledge of K.B.‘s case came from discussions with Grandmother, but she had extensive prior experience working with children and adolescents. Hill testified that children taken from a foster home at a young age are able to adjust to a new home with time and therapy, and that the children can form new bonds after their initial adjustment period. She also noted that biracial children often have identity issues, and she has observed throughout her career that children have an urge to know their biological family.
{¶ 18} On December 12, 2014, the juvenile court filed its decision terminating the parental rights of both Father and Mother, denying Grandmother‘s motion for legal custody, and granting permanent custody to DJFS.
{¶ 19} Appellants now appeal, raising three assignments of error. For ease of discussion, we address the first two assignments together.
{¶ 20} Assignment of Error No. 1:
{¶ 21} THE TRIAL COURT ERRED IN ITS FINDING AS TO THE “BEST INTEREST”
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT ERRED IN APPLYING
{¶ 24} Appellants’ first assignment of error appears to present three distinct arguments. Appellants seem to contend the juvenile court erred by (1) failing to discharge K.B.‘s guardian ad litem, GAL DeBra, for negligent representation of K.B.‘s interests, (2) terminating Father‘s parental rights despite his compliance with
K.B.‘s Guardian Ad Litem
{¶ 25}
{¶ 26} The juvenile court must require the guardian ad litem to “faithfully discharge” his duties.
{¶ 27} After a thorough review of the record, we find no indication that GAL DeBra failed to faithfully discharge his duties. Indeed, the GAL‘s report and testimony indicate a thorough investigation into K.B.‘s situation that included a review of numerous relevant documents, and interviews with all relevant parties to the proceedings. Additionally, the conclusions reached by GAL DeBra were consistent with the conclusions drawn by several other witnesses who testified at the permanent custody hearing.
{¶ 28} For instance, appellants claim GAL DeBra failed to thoroughly investigate a problem with pornography that Foster Father self-reported in Foster Parents’ 2010 home study.4 However, the GAL‘s report indicates GAL DeBra interviewed several people prior to the permanent custody hearing, including Foster Father himself, Foster Mother, and GAL Bechmann. The report also notes GAL DeBra “reviewed in detail the issue regarding [Foster Father‘s] pornography addiction,” and concluded that the pornography use never involved child pornography, and that the investigation led GAL DeBra to believe Foster Father‘s past struggle with viewing pornography did not have any impact on Foster Father‘s ability to care for K.B.
{¶ 29} GAL DeBra‘s conclusions were consistent with the other evidence in the record. GAL Bechmann testified that she had investigated Foster Father‘s self-disclosed problem
{¶ 30} Thus, appellants’ implication that the juvenile court abused its discretion by failing to remove GAL DeBra is without merit.
R.C. 3107.07(A)
{¶ 31} Appellants’ argument regarding
R.C. 2151.414(B)(1)
{¶ 32} The right to parent one‘s children is a fundamental right. Troxel v. Granville, 530 U.S. 57, 66 (2000); In re Hayes, 79 Ohio St.3d 46, 48 (1997). Thus,
{¶ 33} As stated,
(a) The child is not abandoned or orphaned, 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, * * *, 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 “12 of 22” rule:] 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 * * *.
(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.
{¶ 34} In a best interest analysis under
{¶ 35} When the degree of proof required to sustain an issue is “clear and convincing,” a reviewing court must examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. In re L.J., 12th Dist. Warren No. CA2014-10-124, 2015-Ohio-1567, ¶ 22 citing Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Hence, 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 to warrant setting the judgment aside as contrary to the weight of the evidence. In re Rodgers, 138 Ohio App.3d 510, 519-520 (12th Dist.2000), citing Cross at 479.
{¶ 36} After reviewing the entire record, weighing inferences, and examining the credibility of witnesses, we find that sufficient credible evidence existed to support the juvenile court‘s determination that granting permanent custody to DJFS was in K.B.‘s best interest. Further, appellants’ argument that the juvenile court erred by relying upon the “12 of 22” rule in
{¶ 37} The juvenile court heard extensive testimony from Mother, McClure, GAL Bechmann, GAL DeBra, and Foster Mother about K.B.‘s strong bonds with Foster Parents, Sister, and Foster Parents’ other children. The evidence clearly indicates that Foster Parents are the only parents that K.B. has ever known, and that they have consistently provided
{¶ 38} K.B. was too young to express her wishes, but both of the guardian ad litems involved in her case believed it was in K.B.‘s best interest to award permanent custody to DJFS, with the potential for adoption by Foster Parents. In addition, the juvenile court found K.B. was in need of a secure, permanent placement, and that Foster Parents want to adopt K.B., but cannot do so unless DJFS is first awarded permanent custody.
{¶ 39} With respect to K.B.‘s custodial history, the record shows that Father and Grandmother had virtually no contact with K.B. during the first two years of her life, and that Foster Parents are the only parents the child has ever known. DJFS was granted emergency temporary custody of K.B. in July 2011, DJFS placed K.B. in the care of Foster Parents when she was discharged from the hospital in August 2011, and K.B. has remained in the care of Foster Parents since that time. In other words, K.B. has been in the temporary custody of one or more public children services agencies for far more than twelve months of a consecutive twenty-two-month period, and the “12 of 22” rule has been satisfied.
{¶ 40} In addition, the court found “by clear and convincing evidence that [K.B.] should not be placed with either parent.”
{¶ 41} In the present case, the juvenile court found that Father abandoned K.B.
{¶ 42} Pursuant to
{¶ 43} In short, the juvenile court‘s award of permanent custody of K.B. to DJFS was supported by sufficient credible evidence. Therefore, appellants’ first and second assignments of error are overruled.
{¶ 44} Assignment of Error No. 3:
{¶ 45} THE TRIAL COURT ERRED IN TERMINATING FATHER‘S PARENTAL RIGHTS AS THE AGENCY FAILED TO PREPARE A CASE PLAN AFTER THE MOTHER‘S CASE PLAN FAILD. [SIC] NOR DID THE AGENCY IN A GOOD FAITH EFFORT IN THE BEST INTEREST OF K.B. MAKE ANY ATTEMPTS TO UNIFYING K.B. WITH HER BIOLOGICAL FATHER. [SIC]
{¶ 46} In their third assignment of error, appellants seem to argue that DJFS did not make reasonable efforts to reunite K.B. with Father. In particular, appellants contend DJFS should have developed a case plan for Father, and that DJFS “thwarted [Father‘s] attempt to
{¶ 47} “[T]he decision to award permanent custody is often said to be the family law ‘equivalent to the death penalty.‘” In re J.S., 12th Dist. Butler No. CA2006-07-172, 2007-Ohio-1223, ¶ 13, quoting In re Hayes, 79 Ohio St.3d at 48. Hence, except for some narrowly-defined statutory exceptions, the state must demonstrate that it has made reasonable efforts to reunify the family during the child-custody proceedings prior to the termination of parental rights. In re C.F., 113 Ohio St.3d 73 at ¶ 43. An agency seeking permanent custody bears the burden of proving its case by clear and convincing evidence. In re Schmidt, 25 Ohio St.3d 331, 333 (1986).
{¶ 48} While there is ample evidence in the record that DJFS exercised reasonable efforts to reunite K.B. with Father prior to the termination of his parental rights, there is no evidence to suggest that DJFS intentionally “thwarted” Father‘s attempts to visit K.B. and gain custody.6 In the immediate aftermath of K.B.‘s birth addicted to opiates, DJFS contacted Father and asked if he wanted a case plan; Father declined. Around the same time, GAL Bechmann attempted to contact Father by mail to arrange to discuss K.B.‘s situation, and to get Father‘s input on potential placements for K.B.; Father did not respond to the letters.
{¶ 49} Four months later, Father contacted DJFS and attempted to schedule a visitation with K.B. on short notice; DJFS caseworker McClure quickly arranged the visitation for Friday of that same week, but Father failed to return her calls and he left the state before the visitation could occur. Following his failed attempt at a visitation, Father did not attempt to contact K.B. or DJFS until August 2012.
{¶ 50} We are unaware of any authority imposing an affirmative duty on a children
{¶ 51} Appellants’ third assignment of error is overruled.
{¶ 52} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.