In re K.J.M.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 19, 2023
Roger W. Kirk, for Appellant Mother,
Pro Kids and Jeffrey A. McCormick, for Appellee Guardian ad Litem for K.J.M.,
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Taryn J. Brown, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services.
{¶1} Appellant mother appeals the judgment of the juvenile court terminating her parental rights and awarding permanent custody of her child K.J.M. to the Hamilton County Department of Job and Family Services (“HCJFS“). For the reasons that follow, we affirm.
Background
{¶2} HCJFS‘s involvement with K.J.M. began shortly after his birth on March 22, 2022, because K.J.M. was born with cocaine and marijuana in his system. HCJFS filed a motion for temporary interim custody of K.J.M., and a motion with the court under
{¶3} At the permanent-custody hearing, the HCJFS caseworker testified that mother had tеsted positive for drugs during prenatal screenings, that K.J.M. had tested positive for drugs upon birth, and that mother previously lost custody of five children. The record indicates that mother has a history of mental-health issues and substance-abuse problems, as well as homelessness. The caseworker scheduled several supervised visits between mother and K.J.M., which mother did not attend. HCJFS had attempted to contact father without success and father had never attempted to contact HCJFS. Mother attended part of the permanent-custody
{¶4} The magistrate granted HCJFS‘s motion for permanent custody. Mother filed objections out of time, which the juvenile court permitted. The juvenile court entered an order finding that K.J.M. could not be placed with either parent within a reasonable time, or should not be placed with either parent. The juvenile court also determined that granting permanent custody of K.J.M. to HCJFS was in K.J.M.‘s best interest.
{¶5} Mother appeals.
Permanent Custody
{¶6} In her sole assignment of error, mother argues that the trial court erred in granting permanent custody of K.J.M. to HCJFS.
{¶7} Under
{¶8}
[T]he court may grant permanent custody of a child to a movant if the court determines at the hearing * * * 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, * * * 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.
{¶9} To determine whether a child cannot or should not be placed with either parent under
(1) Following the placement of the child outside the child‘s home and notwithstanding reasonablе 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 placеd 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 mаde 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 hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 оf the Revised Code; (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} In this case, the juvenilе court found that mother had failed to remedy the conditions that caused K.J.M.‘s removal because mother had untreated substance abuse and mental-health issues, which led to the involuntary termination of her parental rights with respect to five older children and led to positive drug screens whilе pregnant with K.J.M. Mother also failed to participate in substance-abuse services offered as part of her prenatal care. Both mother and K.J.M. had illicit substances in their systems at K.J.M.‘s birth. Mother also had not engaged in mental-health services. Finally, mother failed to attend scheduled visits with K.J.M. аt the Family Nurturing Center.
{¶11}
(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, including whether 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 * * *;
(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶12} The juvenile court found that K.J.M. had been in the same foster family since two days after birth, that mother had not engaged in visitation with K.J.M., and that K.J.M. was bonded to the foster family and also had the ability to seе his siblings in the foster placement. See
{¶13} Mother argues that she never had a chance to parent K.J.M., and that HCJFS never assisted mother in accomplishing reunification. Mother argues that HCJFS failed to present new evidence regarding her mental health or drug abuse, and that the state presented only sparse evidence regarding mother‘s housing, income, and visitation. Because mother had five other children that had been involuntarily removed from her custody, HCJFS was not required to use reasonable efforts to reunify mother and K.J.M. under
{¶14} The record supports the juvenile court‘s findings rеgarding the best interest factors, and the juvenile court‘s decision to award permanent custody is supported by clear and convincing evidence. See In re W.W., 1st Dist. Hamilton No. C-110363, 2011-Ohio-4912, ¶ 46. Mother‘s mental-health needs and substance-abuse issues remain a barrier to providing a safe and secure placement fоr K.J.M.
{¶15} We overrule mother‘s assignment of error.
Conclusion
{¶16} Having overruled mother‘s assignment of error, we affirm the judgment of the juvenile court.
Judgment affirmed.
BERGERON, P.J., concurs.
KINSLEY, J., concurs separately.
{¶17} I write this separate concurrence specifically for parents like A.M. who face losing their children because of addiction.
{¶18} The law in this area is filled with language about the parents’ failures. See, е.g.,
{¶19} Second, I acknowledge the additional suffering our decisions create for parents who are already in tremendous physical and emotional pain. Addiction is an unforgiving disease. See Dawinder S. Sidhu, Criminal Law x Addiction, 99 N.C.L. Rev. 1083, 1094-1096 (2021) (describing impacts of addiction on the brain and the body).1 It can cause pаrents to take actions that we regard as uncaring, neglectful, or undesirable. Often parents like A.M. who struggle with drug addiction and its physical manifestations are faulted for not visiting a child or for missing a court appearance. But these behaviors may come from avoidance of pain аnd self-preservation, rather than lack of care for a child. See Richard C. Boldt, Evaluating Histories of Substance Abuse in Cases Involving the Termination of Parental Rights, 3 J. Health Care L. & Pol‘y 135, 137 (1999).
{¶20} Some might say that A.M. has not been the most physically present mother, either in the first few months of K.J.M.‘s life or in court. But, on this record,
{¶21} Third, I want to convey a message of hope that sobriety is possible. The disease of addiction can be overcome with sustained support and an understanding community. Sadly, the resources necessary to attain lasting sobriety are far too lacking for many people, as appears to be the case for A.M. here.
{¶22} The law is structured to require very specific outcomes for children who are born to parents suffering from addiction, particularly where those parents have already lost custody of older children or have not seen improvement through earlier case planning. See
{¶23} A 1999 report to Congress by the Department of Health and Human Services called attention to this pattern, in which children are taken from their parents one by one on the basis of addiction alone without any support for the parents. See Department of Health and Human Services, Blending Perspectives and Building
{¶24} Contrary to the сonclusions our laws require, research shows that, with support, parents suffering from addiction can effectively parent their children. See, e.g., Susan C. Boyd, Mothers and Illicit Drugs: Transcending the Myths, 14-16 (1999) (reviewing 14 studies demonstrating that women who use illegal drugs can be fit parents); Christina White, Federally Mandated Destruction of the Black Family: The Adoption and Safe Families Act, 1 Nw. J.L. & Soc. Pol‘y 303, 321 (2006). Research also shows that children born to drug-addicted mothers can actually fare better when placed with their biological parents rather than in foster care, in large part due to the damaging impacts of forced separation on an infant. See Melanie Fridl Ross, To Have and to Hold: University of Florida Shows Cocaine-Exposed Infants Fare Better with Their Biological Mothers, Science Daily, (May 2, 1998), available at http://www.sciencedaily.com/releases/1998/05/980505092617.htm (accessed July 11, 2023). Nevertheless, drug-dependent mothers often avoid seeking help for their addictions out of fear that doing so will cause them to lose their children. See Emily N. Neger & Ronald J. Printz, Interventions to Address Parenting and Parental Substance Abuse: Conceptual and Methodological Considerations, 39 Clinical Psych. Rev. 71-82 (July 2015).
{¶25} And so they continue to suffer in silence, and we continue to rеmove their children. This need not be the case. Our policy-makers can, and should, do better.
{¶27} To A.M., and parents like A.M. who are struggling with addictive disorders, I want you to know that you matter. To the amazing children who will carry your spark into the world. To your friends and family. And to me. Please don‘t give up.
Please note:
The court has recorded its own entry on the date of the release of this opinion.