IN RE: K.B.
CASE NO. CA2012-03-063
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/11/2013
[Cite as In re K.B., 2013-Ohio-858.]
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2009-0090
John D. Treleven, 810 Sycamore Street, 2nd Floor, Cincinnati, Ohio 45202, for appellant
Fred Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for appellee, Virginia Sharp
Michael T. Gmoser, Butler County Prosecuting Attorney, Shannon Haferkamp, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Department of Job and Family Services, Children Services Division
Heather Felerski, P.O. Box 181342, Fairfield, Ohio 45018, for Misty Paul
Richard Koehler II, 205 Society Bank Building, 6 South Second Street, Hamilton, Ohio 45011-2729, for Misty Paul
OPINION
M. POWELL, J.
{1} Appellant, J.B. (Father), appeals a decision of the Butler County Common
{2} K.B. was born in June 2006. At the time, her parents were married to one another. They separated in September 2007 and subsequently co-parented K.B. In July 2008, following an incident during which Father “slammed” Mother against a wall and K.B.‘s “hair got pulled out,” Father was charged with domestic violence. The charges were dismissed when, according to Mother, the police officer did not appear for the hearing. Mother subsequently obtained a Civil Protection Order (CPO). It is in effect until July 28, 2013. The CPO initially forbade any contact between Father on one hand and Mother and K.B. on the other hand. However, in September 2009, Father successfully moved to remove K.B. from the CPO. The child‘s parents were divorced in July 2009.
{3} Mother has a long history of mental health and substance abuse issues. As a result, in September 2008, Mother and K.B. went to live with Sharp so that Mother could get back on her feet and take care of K.B. The child was 27 months old when she came to live with Sharp and Sharp‘s mother.
{4} On March 26, 2009, the Butler County Department of Job and Family Services, Children Services Division (the Agency), filed a complaint alleging that K.B. was a dependent child. The Agency filed the complaint because of Mother‘s serious and unresolved mental health issues, including suicidal ideation and attempts, and her substance abuse issues. The complaint also stated that physical abuse of K.B. had been indicated in 2008 as a result of domestic violence between Father and Mother, and referred to the CPO in place “preventing [Father] from having contact with [K.B.] and [Mother].” By ex parte order, the juvenile court granted temporary custody of K.B. to Sharp. K.B. was two and one-half years old.
{5} On March 30, 2009, Father moved for legal custody of his daughter but withdrew his motion in November 2009. K.B. was adjudicated a dependent child in April
{6} On November 7, 2011, the magistrate issued a decision awarding legal custody of K.B. to Sharp and granting visitation to Mother and Father. The magistrate found that:
[T]he court finds it is in [K.B.‘s] best interest to be placed in the legal custody of Virginia Sharp. Mother has recognized that she is not in a position to care for [K.B.] at this time, and therefore supports Ms. Sharp in her request for custody.
Father‘s circumstances are concerning to the court. On one hand, the court finds that father has the potential to become a full time parent for [K.B.]. Father and [K.B.] clearly are bonded. [K.B.] loves her visits with father, and has a good relationship with father‘s girlfriend. Father co-parented [K.B.] with mother when [K.B.] was younger. However, father has lived in four or five separate residences during the two and half years this case has been open. Father was unemployed until June 2011, over two years after this case started; and his job is with a temporary service with the possibility of a permanent hire at the end of his probationary period. His job evaluation shows only average performance levels. Finally, and most troubling, father has shown a lack of insight into his behavior that has resulted in domestic violence charges being filed by three separate women. Nevertheless, father should be and remain actively engaged in [K.B.‘s] life.
[K.B.] is still an emotionally fragile child. She has been diagnosed with Attachment Disorder. Her counselor testified repeatedly that [K.B.] needs consistency and stability in her life. [K.B.] has been in the custody of Ms. Sharp for two and a half years in her five years of life. The court finds that Ms. Sharp is best able at this time to provide [K.B.] with the consistency and stability [K.B.] needs.
{7} Father appeals, raising one assignment of error:
{8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, FATHER, WHEN IT AWARDED CUSTODY OF THE CHILD TO APPELLEE, WHO IS A LEGAL STRANGER TO THE CHILD.
{9} Father argues the juvenile court abused its discretion when it granted legal custody of K.B. to Sharp, a nonrelative. Specifically, Father argues the juvenile court (1) improperly considered mere allegations of domestic violence against Father, (2) did not give sufficient weight to the fact he remedied all the conditions brought forth by the dependency complaint, (3) ignored Sharp‘s tenuous financial situation, and (4) failed to address the fact Father is K.B.‘s blood relative, whereas Sharp is not.
{10}
{11} A juvenile court‘s custody determination under
{13} Before we address Father‘s arguments under his assignment of error, we must first determine whether he has waived them.
{14}
{15} “This court previously ruled that unless the appellant argues a ‘claim of plain error,’ the appellant has waived the claimed errors not objected to below.” In re K.P.R. at ¶ 10, citing, inter alia, In re D.R. at ¶ 30 (appellant did not specifically object to the magistrate‘s
{16} Although Father filed objections to the magistrate‘s decision, he did not specifically raise the issues of Sharp‘s financial situation or Father‘s blood relationship (and Sharp‘s lack of same) to K.B. Further, Father does not claim plain error here. He is therefore precluded from raising these issues on appeal.
{17} We now address Father‘s remaining two issues. Father first argues that the juvenile court erred when it considered mere allegations of domestic violence against Father in its analysis of the best interest factors under
{18} In Clark, Karen Clark repeatedly kicked Darin Clark in the groin on March 27, 2003. In discussing the incident under
The eighth factor involves the determination of whether either party has been convicted of a criminal offense involving child abuse or of domestic violence.
R.C. 3109.04(F)(1)(h) . Karen‘s actions on that day do not weigh against her under this factor because the language of the statute requires a conviction. Sinceshe was not convicted (a complaint was never filed), this factor is inapplicable.
Clark at ¶ 46. The appellate court held, however, that the trial court was not limited to considering only the factors in
{19} A review of the juvenile court‘s decision shows that in its analysis of the factor under
{20} In its analysis of the
{21} It is undisputed that Father was never convicted of domestic violence. The record shows, however, and Father admitted during the custody hearings, that over the years, three different women – Mother, a former wife, and the mother of one of his sons – filed protection orders against Father.2 The CPO filed by Mother is in effect until July 28, 2013, and was in place during the proceedings below. Nonetheless, Father testified that all the protection orders, including the CPO filed by Mother, were based on false allegations. Father also touted the fact he had never been convicted of domestic violence, and denied
{22} The record shows that Father successfully completed a batterer‘s intervention program and that he participated in individual counseling. However, Father testified that the batterer‘s program taught him he was the victim in the relationships and “the one being abused.” Further, he did not benefit from the counseling because he did not need counseling. A caseworker from the Agency testified that Father‘s participation in the batterer‘s program was minimal, Father gained little insight from the program, and Father refused to accept responsibility for any violent actions on his part because he denied ever committing domestic violence.
{23} In light of the foregoing, we find the juvenile court did not err in considering the several allegations of domestic violence made against Father in determining what was in the best interest of K.B. See Heilman v. Heilman, 3rd Dist. No. 6-12-08, 2012-Ohio-5133 (citing
{24} Father next argues the juvenile court did not give sufficient weight to the fact he remedied all the conditions set forth in the dependency complaint. Father asserts that because he is employed, has lived in the same residence for over a year, and has successfully completed the batterer‘s program, all requirements under his case plan, he has successfully remedied all the problems that resulted in the filing of the dependency complaint. We disagree.
{25} It is well-established that a parent‘s completion of case plan services does not equate to, or compel a finding that the parent has substantially remedied the conditions that caused the removal of the child from the home. In re E.B., 12th Dist. Nos. CA2009-10-139 and CA2009-11-146, 2010-Ohio-1122, citing In re Mraz, 12th Dist. Nos. CA2002-05-011 and CA2002-07-014, 2002-Ohio-7278. “A parent can successfully complete the requirements of a case plan, but not substantially remedy the conditions that caused the children to be removed, as the case plan is ‘simply a means to a goal, but not the goal itself.‘” In re E.B. at ¶ 30, quoting In re C.C., 8th Dist. Nos. 94013 and 94014, 2010-Ohio-780, ¶ 25.3
{26} The record shows, and the juvenile court found, that Father and K.B. are clearly bonded, love one another, and enjoy their visits. The record also shows, however, that while Father is employed and has a residence, these goals were only recently reached. This case began in March 2009. Since then, Father has lived in four separate residences. While he has been renting his current apartment since August 2010, he did not have any furniture until March 2011 and as a result, had been living with his girlfriend. In her September 2011 final report, the child‘s guardian ad litem noted that while the apartment has a bedroom for K.B. with a bed, toys, and clothes, the toys were not age-appropriate and the clothes no longer fit as they appeared to be primarily the clothes and toys K.B. had before March 2009.
{27} During the August 16, 2011 hearing, Father testified he was employed in a “temp-to-hire job” as a machine operator, started the job on June 13, 2011, and was hoping to be permanently hired at the end of his probationary period. However, his job evaluation showed only average performance levels in the areas of job ability, productivity, and safety. Father testified that between March 2009 and June 2011, he was unemployed most of the time and was doing odd jobs here and there. During the March 2011 hearing, the caseworker for the Agency testified that to her knowledge, Father did not have any disability that would prevent him from working.
{29} K.B.‘s therapist testified that consistency and structure were the most important things in K.B.‘s life. K.B. has been in the temporary custody of Sharp since March 2009 and has continuously lived with her since September 2008. The record shows that Sharp has consistently met all of K.B.‘s needs and has provided stability, structure, and consistency in K.B.‘s life. K.B. and Sharp have a bonded relationship and K.B. is quite attached to Sharp‘s mother who resides with Sharp and K.B. K.B. is well-adjusted in Sharp‘s home.
{30} Father‘s love and desire to parent K.B. is apparent. Nonetheless, upon thoroughly reviewing the record, we find no abuse of discretion by the juvenile court in granting legal custody of K.B. to Sharp rather than to Father. Leaving K.B. in the care of Sharp minimizes the disruption to the child and allows her to maintain the strong bond she has forged with Sharp and Sharp‘s mother for the last two and one-half years, while also allowing her to maintain the bond she has with Father. As noted earlier, a grant of legal custody does not terminate the parent-child relationship. In re M.M., 2011-Ohio-3913 at ¶ 7. In the present case, Father‘s parental rights were not terminated. He has retained residual parental rights and responsibilities with K.B., including contact and visitation and a duty to support. Id.
{31} Father‘s assignment of error is accordingly overruled.
{32} Judgment affirmed.
HENDRICKSON, P.J. and S. POWELL, J., concur.