IN THE MATTER OF: K. H., ALLEGED NEGLECTED AND DEPENDENT CHILD, [AMBER HIGGINBOTHAM - APPELLANT].
CASE NO. 5-10-06
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
August 16, 2010
2010-Ohio-3801
Judgment Affirmed
APPEARANCES:
Nicole M. Winget for Appellant
Mark C. Miller and Benjamin E. Hall for Appellee
{¶1} Mother-Appellant, Amber Higginbotham, appeals the judgment of the Court of Common Pleas of Hancock County, Juvenile Division, granting permanent custody of her child, K.H., to the Hancock County Job and Family Services, Children Protective Services Unit (hereinafter “CPSU“). On appeal, Mother contends that the trial court‘s judgment granting CPSU permanent custody was against the manifest weight of the evidence; that the trial court erred by not making a finding on the record as to K.H.‘s wishes and not appointing him separate counsel; that the trial court erred in granting CPSU permanent custody because it was not in K.H.‘s best interest; that the trial court‘s finding that Mother abandoned K.H. was not supported by clear and convincing evidence; and, that CPSU failed to use reasonable case planning and diligent efforts to achieve reunification. Based upon the following, we affirm the judgment of the trial court.
{¶2} In February 2009, CPSU filed a complaint alleging that K.H. was a neglected child pursuant to
{¶4} In April 2009, CPSU submitted a case plan, which the trial court approved. The case plan recommended that Mother participate in home-based therapy to develop her parenting skills and knowledge; that Mother report to Century Health and participate in a life skills group; that Mother provide a safe and stable home for K.H.; that Mother undergo a mental health and substance abuse assessment; and, that K.H. receive counseling services.
{¶5} In August 2009, the trial court conducted a semiannual case plan review. The CPSU case progress review provided that Mother had made insufficient progress towards developing additional life skills because she had not participated in the group at Century Health as required; that Mother had made insufficient progress towards receiving mental health and substance abuse assessments because she had not participated in these assessments as required; that K.H. had made significant progress toward receiving counseling services, as he had been working with a therapist and taking medication; that Mother had made insufficient progress towards acquiring parenting knowledge and skills as she had
{¶6} In November 2009, CPSU filed a motion for permanent custody of K.H. pursuant to
{¶7} In January 2010, the trial court held a hearing on the motion for permanent custody, at which the following testimony was heard.
{¶8} Robin Brown, a mental health therapist at Century Health, testified that she had never met with Mother; that Century Health received a notice in February 2009 that Mother was ordered to attend services at that agency; that, since that time, neither she nor anyone else at Century Health had been contacted by Mother to begin services; that Century Health had not conducted a mental health or substance abuse assessment on Mother; that Mother also never contacted Century Health to begin the Life Skills program; and, that Mother also never began the substance abuse program at Century Health. On cross-examination,
{¶9} Mark Olthouse, a caseworker at CPSU, testified that he had been K.H.‘s caseworker since February 2009, when he came into the agency‘s custody; that the agency attempted to identify K.H.‘s father by administering paternity tests to several men alleged by Mother to be the father, which excluded those men as the father, and by contacting the putative father registry; that, despite notification via publication, no one presented himself as K.H.‘s father; that Mother never identified any other potential fathers to him; that Mother had not visited K.H. since June 12, 2009, or made any phone calls or sent gifts; that, on the date K.H. was removed from his grandmother‘s home, Mother could not be located; that Mother later appeared at a court hearing; that the agency was concerned with placing K.H. back in Mother‘s custody because she had little involvement with him according to several relatives, because she had no permanent residence and had been living in Illinois and New York, and because she told him directly that she could not care for him; that he conducted a home visit with Mother at the grandmother‘s home in March 2009, at which Mother indicated she could not
{¶10} On cross examination, Olthouse testified that K.H.‘s current foster parents had expressed that they would not adopt him because they had a newborn child in the home; that he did not give Mother any literature about the Hope House; that he did not tell her where to send any potential correspondence to K.H.; and, that Mother left him a voice message on April 15, 2009, informing him that she had an appointment scheduled with Robin Brown at Century Health, but had to cancel it because she had no transportation.
{¶11} Mother testified that she had not visited K.H. since June 2009; that, two weeks prior to the hearing, she went to the visitation center, but she had not called prior to arriving so K.H. was not there or available for visitation; that she had not visited with K.H. for months when she lived in Findlay because it was “a long walk” and she had no other transportation; that Olthouse gave her ten bus tickets, but she ran out and was unable to get more; that she moved to the Dayton area in August 2009 and was not able to visit K.H. because the visitations were scheduled on Fridays when her boyfriend was working and was unable to drive her; that she did not follow through with the mental health/substance abuse counseling objective because of transportation issues; that she had attempted to create a safe and stable living environment for K.H. by moving into her
{¶12} Mother testified on cross-examination that she gave birth to K.H. when she was incarcerated for drug trafficking; that, even after being released from prison, she was unable to care for K.H.; that her mother, K.H.‘s grandmother, cared for him; that she had never cared for K.H. for an extended period of time; that, when she was living in Findlay, she did not ask Olthouse for more bus tickets or tell him that she could not afford bus tickets to transport her to visitations with K.H.; that she did not think it was CPSU‘s fault that she did not inform them about her transportation issues; that she had moved multiple times between different relatives and visiting a friend in Chicago; that she and her boyfriend began dating in August 2009, which is when she moved in with him; that she did not think it would be harder to see K.H. once she moved to Dayton because her boyfriend had transportation; that she did not ask Olthouse to schedule the visitations on a date and time when her boyfriend could drive her; that, she understood that K.H. was not kept at the visitation center and that she needed to call to let the foster parents know to take him for the visitation, but that she did not call when she attempted to visit two weeks prior to the hearing; that she had been “calling around” to see if there was an agency offering parenting classes in Dayton for about three or four
{¶13} James Kelly testified that he had served as K.H.‘s GAL from March 2009 until the point of the hearing; that he prepared a report for the trial court; that he recommended the trial court award permanent custody of K.H. to CPSU; and, that he did not believe CPSU could have done more to achieve reunification of Mother with K.H.
{¶14} Additionally, the GAL submitted a report and recommendations to the trial court, including, in part, a section entitled “Wishes of the Child,” stating that, “[t]his child is only four years of age. He has bonded with his foster care parents and the foster care extended family. [K.H.] rarely spoke and never expressed himself during any of my visits with him. I believe the wishes of this child would be to remain with these foster care parents or to be placed into adoption with loving and caring adoptive parents or adoptive parent.” (Report and Recommendations of CASA/GAL, p. 5). Further, the report provided that K.H.
{¶15} Thereafter, the trial court found pursuant to
Assignment of Error No. I
THE JUDGMENT OF THE TRIAL COURT TO GRANT HANCOCK COUNTY JOB AND FAMILY SERVICES PERMANENT CUSTODY WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. II
THE TRIAL COURT ERRED BY NOT MAKING A FINDING ON THE RECORD AS TO THE WISHES OF THE CHILDREN [SIC] AND NOT APPOINTING THEM SEPARATE COUNSEL.
Assignment of Error No. III
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY FOR THE CHILD BECAUSE IT WAS NOT IN HIS BEST INTEREST.
Assignment of Error No. IV
THE TRIAL COURT‘S FINDING OF ABANDONMENT IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
Assignment of Error No. V
THE HANCOCK COUNTY JOB AND FAMILY SERVICES FAILED ITS DUTY TO USE REASONABLE CASE PLANNING AND DILIGENT EFFORTS AND REUNIFICATION WITH THE PARENT.
Standard of Review
{¶18} Our review of a grant of permanent custody begins by noting that “[i]t is well recognized that the right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re Murray (1990), 52 Ohio St.3d 155, 157. Parents have a fundamental liberty interest in the care, custody, and upbringing of their children. Murray, 52 Ohio St.3d at 157; Santosky v. Kramer (1982), 455 U.S. 745, 753. However, a natural parent‘s rights are not absolute. In re Thomas, 3d Dist. No. 5-03-08, 2003-Ohio-5885, ¶7. “It is plain that the natural rights of a parent are not absolute, but are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.” In re Cunningham (1979), 59 Ohio St.2d 100, 106 (citation omitted).
{¶19} Permanent custody determinations made under
{¶20} In her first assignment of error, Mother argues that the trial court‘s grant of custody to CPSU was contrary to the manifest weight of the evidence. Specifically, Mother contends that CPSU‘s evidence that Mother had not made efforts towards establishing a proper living environment for K.H. was contradicted by Mother‘s testimony that she found a stable housing environment and created support for K.H. In her fourth assignment of error, Mother argues that the trial court‘s finding of abandonment was not supported by clear and convincing evidence. Specifically, Mother argues that
{¶21} “Once a child has been adjudicated dependent, neglected, or abused and temporary custody has been granted to a children services agency, the agency may file a motion for permanent custody[.]” In re Esparza, 3d Dist. Nos. 9-06-25, 9-06-27, 2007-Ohio-113, ¶25. The trial court‘s analysis consists of two prongs. First, the trial court must determine if any conditions enumerated in
{¶22} The first prong of analysis requires consideration of
[T]he court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(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, 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, 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.
{¶23} Here, Mother essentially argues that the trial court abused its discretion in finding that the conditions in
{¶24}
(E) In determining * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing * * * that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:
(1) 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.
* * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
* * *
(10) The parent has abandoned the child.
{¶25} Here, the trial court found that “many factors included in
{¶26} CPSU presented evidence at the hearing that Mother‘s caseworker had personally referred her for services for mental health, substance abuse treatment, life skills, home-based therapy, parenting skills, and visitation; that, despite these referrals, Mother never began mental health or substance abuse treatment, the life skills program, or parenting classes; that Mother had not visited with K.H. physically or by telephone since June 2009; that Mother‘s caseworker referred her to a transitional facility for job training and temporary housing, but
{¶27} Mother did present evidence that she did not visit K.H. even when she lived in Findlay because she had “transportation issues” and ran out of CPSU-provided bus tickets; however, she then testified on cross-examination that she did not inform CPSU of her transportation issues or ask her caseworker for help purchasing bus tickets. Further, testimony was heard from the caseworker that Mother also did not visit with K.H. via telephone or make contact with him by sending gifts. Additionally, Mother testified that she then moved to Dayton, although, incredibly, she testified that she did not believe this would affect her ability to visit K.H. Further, although Mother testified that the visitations were scheduled at a time when she was unable to access transportation, she admitted that she had not requested that CPSU change the visitations to a time when she could secure transportation. Mother additionally testified that she had attempted to create a safe and stable living environment by moving in with her boyfriend in Dayton; however, she also testified that she had not contacted CPSU so that they could evaluate the home. Finally, although Mother testified that she would love to take parenting classes and had been “calling around” in Dayton to find classes, she admitted that she had been calling around for three or four months, but had not
{¶28} Accordingly, we overrule Mother‘s first and fourth assignments of error.
Assignments of Error Nos. II and III
{¶29} In her second assignment of error, Mother argues that the trial court erred by failing to make a finding on the record as to K.H.‘s wishes and failing to appoint K.H. separate counsel. Specifically, Mother argues that, although K.H. was only four years old at the time of the permanent custody hearing, the trial court should have inquired into his maturity level or ability to express his desires as to custody. Additionally, in her third assignment of error, Mother argues that the trial court‘s granting of custody to CPSU was not in K.H.‘s best interest. Specifically, Mother argues that placement was not in K.H.‘s best interest because the record demonstrated that the foster parents would not be able to adopt K.H., requiring him to eventually be moved to a different home.
{¶30} After finding that one of the
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child * * *
(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency[.] * * *
{¶31} This Court has previously found that clear and convincing evidence did not support a trial court‘s finding that a child was too young to express her wishes and conclusion that permanent custody was in the child‘s best interest pursuant to
{¶32} In contrast, this Court has previously found that clear and convincing evidence supported a trial court‘s finding that permanent custody was in the best interests of the children even though the GAL failed to question the children regarding their wishes and the trial court apparently failed to consider
{¶33} Here, Mother specifically argues that the trial court failed to make a finding on the record as to K.H.‘s wishes and/or inquire into his ability to express his desires as to custody. However, the trial court‘s judgment entry specifically provided that it considered K.H.‘s “wishes * * * by way of recommendation from his CASA.” (Jan. 2010 Judgment Entry, p. 3). Additionally, the GAL report
{¶34} We find that this evidence is sufficient to demonstrate that the trial court considered K.H.‘s wishes pursuant to
{¶35} Next, we turn to Mother‘s argument that the trial court erred in failing to appoint counsel on behalf of K.H. pursuant to In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500. In Williams, supra, the Supreme Court of Ohio held
{¶36} Accordingly, we overrule Mother‘s second assignment of error.
{¶37} Next, we turn to Mother‘s third assignment of error, which argues that the trial court‘s granting of custody to CPSU was not in K.H.‘s best interest. Specifically, Mother argues that placement was not in K.H.‘s best interest because the record demonstrated that the foster parents were not willing to adopt K.H., requiring him to eventually be moved to a different home.
{¶38} Here, the trial court‘s judgment entry specifically reflects that it considered all of the relevant factors in
{¶39} Accordingly, we overrule Mother‘s third assignment of error.
Assignment of Error No. V
{¶40} In her fifth assignment of error, Mother contends that CPSU failed in its duty to provide reasonable case planning and diligent efforts to reunify her with K.H. Specifically, Mother argues that she was not given ample opportunity to complete the case plan; that less than eight months passed from the time CPSU obtained temporary custody until CPSU filed for permanent custody; that CPSU did nothing to address her transportation issues; that CPSU did not provide Mother with information about counseling and other services outside of the Hancock County area; that CPSU was not diligent in attempting to identify and locate K.H.‘s biological father; and, that CPSU failed to conduct appropriate visits of the home to measure Mother‘s progress in creating a safe environment.
{¶42} Initially, Mother argues that she was not given enough time to complete the case plan, as only eight months passed between K.H.‘s removal from the home and CPSU‘s filing for permanent custody. However, Mother‘s argument ignores the fact that testimony at the hearing established she had not made significant progress in any case plan objective, and had not made any effort towards accomplishing the majority of the case plan objectives. Further, Olthouse, the parties’ caseworker, testified that he did not believe a six-month extension of temporary custody would change Mother‘s compliance with the case plan. Finally, we note that Olthouse stressed K.H.‘s need for permanency and emphasize again that, despite the natural rights of a parent, the ultimate welfare of the child is the controlling principle in a permanent custody case. See Cunningham, 59 Ohio St.2d at 106.
{¶43} Next, Mother argues that CPSU did nothing to address her transportation issues, insinuating that this was the cause of her failure to visit with
{¶44} Next, Mother contends that CPSU was not diligent in attempting to identify and locate K.H.‘s biological father. Initially, we note that it is questionable whether Mother has standing to make this argument on the biological father‘s behalf, as it pertains to the rights of a non-party. See In re M.K., 10th Dist. No. 09AP-1141, 09AP-1142, 2010-Ohio-2194, ¶19, citing In re A.C., 10th dist. No. 03AP-348, 2003-Ohio-5344, ¶7. See, also, In re T.R., 5th Dist. No. 2009 CA 00235, 2010-Ohio-429, ¶¶27-28. Nevertheless, we find that, even if Mother had standing to raise this argument, testimony was heard that two men identified by Mother as possible fathers were given paternity tests; that Mother did not identify to CPSU any other men as K.H.‘s possible father; that CPSU consulted the putative father registry; and, that K.H.‘s unknown father was notified of the
{¶45} Finally, Mother argues that CPSU did not provide her with information about counseling and other services outside of the Hancock County area and failed to conduct home visits of her boyfriend‘s apartment to determine whether she had created an appropriate environment for K.H. However, Olthouse testified that, due to Mother‘s transient lifestyle, he requested that she inform him of any changes of address, which she did not do, and he was uncertain of where she was living from April through July 2009; that, in August 2009, he learned through the grandmother that Mother was living in Dayton, Ohio; that he left, at a minimum, monthly voice messages at the phone number provided to him by the grandmother; and, that Mother did not return his phone calls. Additionally, Mother admitted that she did not call CPSU to see if they could assist her with financing classes and services in Dayton; that she had not asked them to evaluate her boyfriend‘s apartment in Dayton to see if it was appropriate for K.H.; and, that she did not even inform CPSU of her Dayton address until after they filed for permanent custody.
{¶46} In light of the preceding, we do not find that CPSU failed in its duty to provide reasonable case planning and diligent efforts to reunify her with K.H.
{¶48} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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