In re K.J.
Dated: January 16, 2019
CALLAHAN, Presiding Judge.
{1} Appellant Mother appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her child K.J., and placed the child in the permanent custody of Summit County Children Services Board (“CSB” or “the agency“). This Court affirms.
I.
{2} Mother is the biological mother of K.J. (d.o.b. 7/23/09). Father voluntarily relinquished his parental rights to the child, and he is not a party to this appeal.
{3} Mother was the legal custodian of K.J. until Mother was placed on probation for a criminal offense. Because it was uncertain whether she would ultimately have to serve prison time for the offense, Mother‘s probation officer had her execute a document placing the child in the temporary custody of Father. Father had physical possession of the child for the three years preceding her removal from the home.
{5} CSB filed a complaint, alleging that K.J. was an abused, neglected, and dependent child. At adjudication, both Mother and Father waived their rights to a hearing. The magistrate adjudicated the child abused, neglected, and dependent as alleged in the complaint. Neither parent filed objections. The juvenile court adopted the magistrate‘s decision on adjudication. Thereafter, Mother and Father both waived their rights to a dispositional hearing before the magistrate and stipulated that K.J. would be placed in the temporary custody of CSB. The juvenile court adopted the dispositional order without objection. The agency‘s case plan was adopted as the order of the court.
{6} At the first review hearing three months later, both parents stipulated that the child would remain in CSB‘s temporary custody. Mother and Father were to have supervised visitation with K.J. as the parties might agree. The magistrate held two additional review hearings, maintaining the child in the agency‘s temporary custody and the parents’ supervised visitation, after hearing the testimony of the CSB caseworker.
{8} Immediately prior to the commencement of the permanent custody hearing, Father surrendered his parental rights. The hearing proceeded as to the agency‘s and Mother‘s motions. At the conclusion of the hearing, the juvenile court issued its judgment, granting CSB‘s motion for permanent custody and terminating Mother‘s parental rights. Mother filed a timely appeal in which she raises three assignments of error for review. This Court addresses some assignments of error out of order to facilitate review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN GRANTING PERMANENT CUSTODY AS THE TRIAL COURT FAILED TO COMPLY WITH R.C. 2151.28(L), WHEN IT ISSUED ITS DEPENDENCY ORDERS.
{9} Mother argues that the juvenile court erred by failing to comply with the requirements of
{10}
Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Juv.R. 40(D)(3)(a)(ii) , unless the party has objected to that finding or conclusion as required byJuv.R. 40(D)(3)(b) .
In the criminal context, plain error does not exist unless it can be said that but for the error, the outcome of the trial would have been different and that reversal is necessary to prevent a manifest miscarriage of justice. State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 57. The civil plain error standard may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.
(Internal quotations omitted.) In re S.G., 9th Dist. Summit No. 27428, 2015-Ohio-2503, ¶ 11.
{11} This Court has not yet determined whether the criminal or civil plain error standard applies in dependency, neglect, and abuse cases. In re K.C., 9th Dist. Lorain No. 17CA011135, 2017-Ohio-8779, ¶ 29, citing In re S.G. at ¶ 11. As Mother cannot prevail here under either standard, we decline to make that determination in this case.
{12}
{13} Both Mother and Father waived their rights to an adjudicatory hearing at which CSB would have had the burden of proving the allegations in the complaint by clear and convincing evidence. See In re T.C., 9th Dist. Wayne Nos. 18AP0021 and 18AP0022, 2018-Ohio-4369
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT TERMINATED MOTHER‘S PARENTAL RIGHTS AS THE EVIDENCE WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{14} Mother argues that the juvenile court‘s award of permanent custody of K.J. to CSB was against the manifest weight of the evidence. This Court disagrees.
{15} In considering whether the juvenile court‘s judgment is against the manifest weight of the evidence, this 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 [hearing] ordered.” (Internal quotations and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{16} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
{17} In its motion for permanent custody, CSB alleged as its sole first-prong ground that K.J. could not be placed with her parents within a reasonable time or should not be placed with her parents pursuant to
{18} After the permanent custody hearing, the juvenile court found that CSB had met its burden of proving that K.J. could not be reunified with Mother within a reasonable time or that the child should not be returned to Mother. The lower court premised its first-prong conclusion on findings that Mother had failed to substantially remedy the conditions that led to the child‘s removal, and that Mother continued to suffer from chronic mental health and chemical dependency issues, the severity of which rendered Mother unable to provide K.J. with an adequate permanent home in the foreseeable future.
{19}
In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code 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 held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code 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 by 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. (2) Chronic mental illness, chronic emotional illness, intellectual disability, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the [permanent custody] hearing * * *[.]
{20} Although K.J. was removed from Father‘s home, Mother and her boyfriend had also been living in that home for three months at the time of the child‘s removal. Neither Mother nor her boyfriend was named on the lease, and Mother had not provided a home for the child for three years. The home was “deplorable,” lacking a kitchen, sink, refrigerator, and working toilet and bathtub. The inhabitants used a bucket for a toilet. The child was filthy and infested with lice. She had rarely attended school since Mother joined the household. There was a history of domestic violence between Father and Mother, with Mother being the physical aggressor. Both Mother and her boyfriend had threatened home inhabitants with physical violence. Mother admitted to having diagnosed mental health issues which she addressed, in part, with marijuana. Mother was growing marijuana in the home. At the time of the child‘s removal, there were pending warrants for Mother‘s arrest based on theft and drug paraphernalia charges.
{21} CSB established a case plan to help Mother address the issues that hindered her ability to provide a safe and stable home for K.J. Under the terms of the case plan that the juvenile court adopted as its order, Mother was required to (1) obtain a chemical dependency assessment and follow all recommendations for treatment, including attending AA or NA meetings, counseling, intensive outpatient treatment, inpatient treatment, drug screens, and a mental health assessment; (2) obtain a psychological/parenting assessment or mental health
{22} Mother argues that CSB failed to meet its obligation to implement reasonable case planning, i.e., to tailor Mother‘s case plan objectives to address the conditions that initially gave rise to the removal of K.J. from the home. In addition, Mother argues that CSB failed to use diligent efforts to assist her by failing to allow her adequate time to address her issues. Specifically, Mother argues that CSB prematurely filed its motion for permanent custody after Mother had only had eight months to work on her case plan objectives.
R.C. 2151.414(E)(1) requires that children services agencies engage in reasonable case planning and diligent efforts to remedy the concerns at issue. In addition to setting appropriate case plan goals for parents engaged in custody actions, children services agencies must, in good faith, provide services and engage in efforts that are reasonable calculated to succeed in reunifying parents and their children. See, e.g., In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 23 [and] 33. * ** In addition, it is fundamental that parents must be afforded a reasonable amount of time to accomplish their goals.***
Case plans are the tools that children services agencies use to set forth the goals of parents to allow for the return of children to their parents. In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 15. Their central purpose is to remedy the problems that caused the children‘s removal and to accomplish the reunification of parents and children. In so doing, the agency must take into consideration the individual circumstances of each case.
In re M.P., 9th Dist. Lorain No. 14CA010678, 2015-Ohio-2226, ¶ 30 and 48.
{23} With regard to Mother‘s argument that CSB did not properly tailor her case plan objectives to allow her to remedy the conditions that resulted in the child‘s placement outside the home, this Court has found no objection by Mother below to the juvenile court‘s adoption of the
{24} As to Mother‘s argument that CSB did not use diligent efforts because the agency did not allow her a reasonable time to accomplish her objectives, this Court disagrees. In addition to the eight months Mother had to work on remedying the conditions that led to the removal of the child, she had another four-and-a-half months prior to the commencement of the permanent custody hearing in which to try to accomplish her objectives. Mother does not claim that CSB stopped providing services to her after the agency filed its motion for permanent custody. In fact, the record evidences the ongoing services provided to Mother, as well as the caseworker‘s accommodations to allow Mother to work with providers with whom she had already established a relationship. Accordingly, CSB facilitated Mother‘s participation in services designed to help her remedy the concerns regarding Mother‘s ability to parent the child appropriately and for a reasonable period of time.
{25} Substantively, the clear and convincing evidence adduced at the permanent custody hearing supported the juvenile court‘s finding that Mother continuously failed to substantially remedy the conditions that caused the child to be placed outside her home. She does not dispute that she has suffered from mental health issues throughout much of her life. Mother reported that she was diagnosed with bipolar disorder. She suffers from major
{26} Although Mother made efforts to attend appointments and was generally cooperative with her service providers when she did attend, the testimonial consensus was that Mother continued to lack insight into her mental health issues, her aggressive behaviors, and the insensitivity she exhibited in her relationship with K.J. Although Mother attended every scheduled visitation with the child, K.J. requested that telephone communication between her and Mother cease because it was too stressful for the child who was afraid that Mother would call her names or make inappropriate comments to her. The child‘s counselor discussed the severe trauma the child suffered while in her parents’ care, but Mother evidenced little understanding of the effect that environment had on K.J.
{27} Mother self-reported episodes of intense anger to her service providers. She admitted ongoing anger with the CSB caseworker, who testified that she ceased making home visits to Mother‘s home after Mother threatened her with physical violence. Mother‘s clinical psychologist expressed current concerns regarding Mother‘s inability to manage her anger,
{28} Mother‘s counselor at Greenleaf Family Center echoed the concerns of the other mental health professionals. After performing a diagnostic assessment, the counselor determined that Mother needed to develop appropriate parenting skills, substance use skills, and anger management skills. Because of Mother‘s anxiety and general irritability around other people, the counselor worked individually with Mother. The counselor testified that it became futile to attempt to address Mother‘s parenting and substance abuse issues when Mother reported that there were no problems in her relationship with K.J. and that she had no desire to stop using marijuana. Accordingly, the counselor focused efforts on Mother‘s anger issues. Nevertheless, the counselor reported little success because Mother blamed Father and CSB for any problems. Moreover, Mother‘s boyfriend/fiancé always attended all of Mother‘s appointments at her insistence, even though the counselor‘s notes indicated that she told Mother that it would be helpful to meet with her alone.
{29} A CSB social services aide who supervised some of Mother‘s visitations with the child testified regarding some inappropriate behavior by Mother. For example, Mother would engage in “pretty extensive” tickling of the child. Mother disregarded the child‘s pleas that Mother stop the tickling. In addition, although the agency told Mother to bring reasonably sized, healthy meals for the child because she was obese, Mother continued to bring heavy, starchy foods in portions more suitable for a grown man. The aide reported that Mother let the child eat a piece of cake that was large enough for three adults to share. Mother also engaged in inappropriate conversations with the child, including telling the child about Mother‘s pregnancy in the early stages and her subsequent miscarriage. Finally, Mother consistently brought her
{30} The CSB caseworker testified that Mother had not made sufficient progress on her case plan objectives. Mother lived in three or four residences during the case. The caseworker had not visited Mother‘s most recent home due to Mother‘s multiple threats of violence against her, but Mother reported that she had no furniture in the home. Mother continued to live with her boyfriend/fiancé who she asserted posed no threat to the child despite his extensive criminal history, including acts of violence; a history of substance abuse; suspected mental health issues; as well as Mother‘s assertion that she would never leave the child alone with her boyfriend/fiancé, although she refused to explain why not. The child had expressed fear of Mother‘s boyfriend/fiancé based on instances of domestic violence between Mother and the man, and certain acts by the boyfriend/fiancé that made the child feel uncomfortable. Even though Mother denied any incidents of domestic violence, she admitted to the caseworker that she sleeps with a hammer under her pillow and that both she and her boyfriend/fiancé regularly carry weapons.
{31} Mother claimed to have four jobs during the pendency of the case, but she failed to provide any documentation to the caseworker to substantiate her claim that she was currently employed. Mother continues to struggle to maintain employment because she becomes easily frustrated and angry with people.
{32} The caseworker concluded that Mother has not complied with her case plan objectives. Despite attending appointments for services, Mother continues to demonstrate a lack of insight regarding her mental health and substance abuse issues, and she has not been able to implement skills to control her anger. The guardian ad litem echoed the concerns of the
{33} Based on clear and convincing evidence establishing ongoing concerns about Mother‘s ability to provide a nurturing, safe, and healthy environment for K.J, notwithstanding the agency‘s reasonable case planning and diligent efforts, Mother failed continuously and repeatedly to substantially remedy the conditions which caused the child to be placed outside Mother‘s home. See
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN GRANTING PERMANENT CUSTODY BASED, IN PART, UPON AN IN-CAMERA HEARING WITH THE CHILD IN VIOLATION OF MOTHER‘S DUE PROCESS RIGHT OF CONFRONTATION.
{34} Mother argues that the juvenile court erred by relying on information received during an in camera interview with the child. This Court disagrees.
{35} As an initial matter,
{36} Mother challenges the use of information gleaned from the juvenile court‘s interview with the child on several bases. First, she argues that the court could not rely on that information to support its first-prong finding that K.J. could not be returned to Mother within a reasonable time or should not be returned to her. A close reading of the judgment, however, indicates that the juvenile court did not rely on the child‘s statements to substantiate its first-prong finding. Instead, the juvenile court relied on testimonial evidence of Mother‘s failure to substantially remedy the conditions that caused K.J. to be placed outside the home and Mother‘s severe, chronic mental illness and chemical dependency. The juvenile court‘s statement that the child noted behaviors by Mother that supported the testimony of the various witnesses is merely anecdotal.
{37} Second, Mother argues that the juvenile court embellished the child‘s statements regarding Mother‘s behaviors as having been as a result of Mother‘s mental health and drug use
{38} Third, Mother argues that the juvenile court violated Mother‘s due process right to confront a witness against her when it “rel[ied] upon the ex parte statements the child made at the in-camera hearing[.]” (Emphasis in original.) She argues that she should have been permitted to cross-examine the child. Mother ignores the fact that it was she who requested that the juvenile court conduct an in camera interview with the child. Mother did not subpoena the child to testify at the hearing. The juvenile court did not place the child under oath, but rather engaged in informal conversation with her, as is typical of an in camera interview. Unlike the right of an accused in a criminal prosecution to confront witnesses against him or her, the Confrontation Clause of the
III.
{39} Mother‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
HENSAL, J.
SCHAFER, J.
CONCUR.
LYNNE S. CALLAHAN
FOR THE COURT
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
ANTHONY COSTELLO, Attorney at Law, for Appellee.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney,
TONY PAXTON, Guardian ad Litem.