In re K.M.
Decided: April 12, 2013
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James J. Popil, for appellant.
Angela Y. Russell, for appellee.
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YARBROUGH, J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas, Juvenile Division, terminating the parental rights of K.M. (“mother“), K.M. (“father“), and the legal custodian, B.H., and awarding permanent custody of the minor children K.M. and M.M. to appellee, Lucas County Children Services (“LCCS“). For the reasons that follow, we affirm.
{¶ 2} The minor children K.M. and M.M. were born to mother and father in 2000 and 2001, respectively. In 2005, LCCS received a police report that K.M. was left home alone. Apparently, K.M. was being watched by mother‘s then boyfriend, when the boyfriend left the home. The police subsequently found mother walking down the street looking for the boyfriend, while the five-year-old child was home unattended. In addition, there were other allegations that domestic violence was occurring in the home, and that the home was unkempt. A safety plan was put in place that the boyfriend would be asked to move out because of the domestic violence allegations. However, when a caseworker came to do a home visit, the caseworker learned that mother was still leaving K.M. in the care of the boyfriend.
{¶ 3} K.M. was removed from the home in August 2005, and case plan services were offered to mother, consisting of mental health counseling and parenting classes. In December 2005, mother stated that she was not interested in completing her case plan, and consented to B.H. obtaining legal custody of K.M. At the time, B.H. was already taking care of M.M.
{¶ 4} LCCS again became involved with the family in December 2010, when it received a referral that B.H. had been arrested for a probation violation, and thus was not able to be home when the children returned from school. Further, there were allegations concerning the conditions of the home and B.H.‘s drug abuse. B.H. had tested positive for opiates, cocaine, and marijuana, and when officers executed an unrelated search warrant on the home, they found needles and other drug paraphernalia.
{¶ 6} Regarding B.H., the case plan called for her to complete a diagnostic assessment to determine counseling needs. B.H. never completed the assessment. In addition, although she expressed initial interest in establishing visitation, B.H. has not seen the children since LCCS has become involved. Robin Powell, the ongoing caseworker, testified that she has not had contact with B.H. as part of the case since January or February 2011. Furthermore, at the time of the termination hearing in October 2012, B.H. was in Marysville prison with an expected release date of August 2014. B.H. did not respond to her attorney‘s attempts to contact her, and B.H. did not appear at the termination hearing.
{¶ 7} Father also failed to complete a diagnostic assessment as part of his case plan. Throughout the course of this case, father has failed to maintain any visitation or contact with the children. Father did not appear at the termination hearing, but his attorney related that father wished for LCCS to be awarded permanent custody of the children.
{¶ 8} As to mother, the case plan requested a diagnostic assessment to determine mental health counseling needs, a substance abuse assessment, random urine screens, parenting training, and for mother to locate stable and independent housing.
{¶ 10} Regarding substance abuse, no recommendations were made following mother‘s substance abuse assessment. However, random drug screens were incorporated as part of her case plan. Mother was requested to screen five times between September 2011 and September 2012, but only complied with the requests once. Mother stated that she could not provide the screens because she had problems providing screens in front of other people. An accommodation was made, and mother was requested to go to a doctor‘s office on October 3, 2012, for a blood test. Mother went to the doctor‘s office the next day instead. All of mother‘s drug screenings have come back negative.
{¶ 11} In addition to the mental health services and drug screenings, mother was asked to complete a parenting class because she had not been the primary caregiver for
{¶ 12} Finally, mother was asked to locate stable and independent housing. The testimony revealed that mother initially was living with her grandmother, but that housing was inappropriate for permanent placement of the children because it was too small. Additionally, mother‘s brother had access to the home and would steal the grandmother‘s prescriptions. Mother then moved to a shelter in January 2012, at LCCS’ suggestion. Through the shelter, mother obtained independent housing under the FOCUS program. In March 2012, mother signed a one-year lease, with the first three months paid for by FOCUS. After those three months, though, mother left, claiming that the home was falling apart and that the landlord failed to fix anything. Mother then moved to another home, where she stayed for two months before leaving. Mother again claimed the landlord failed to fix the home, and also complained that there was a problem with mice. At the time of the termination hearing, mother had moved to another location.
{¶ 13} Throughout the proceedings, the parties were moving towards reunification of the children with mother. The children desired reunification, and it is clear that mother loves her children. In March 2012, mother was granted unsupervised visitation. As part of the visitation, no other individuals were permitted to be around the children unless they had first been cleared through LCCS. After the first visitation, though, one of the children indicated that a person named Rob spent the night. The child relayed that Rob brought his dog over, and was there when the child went to bed at night and when she
{¶ 14} In addition to Rob, the caseworker expressed concern over mother‘s judgment because of a relationship mother had with Doug. In late 2011, mother was dating Doug, and was excited that the two were going to get married. However, the relationship ended in December 2011. In April 2012, LCCS received a referral concerning Doug. Doug reportedly had gone to jail for raping mother when she was 11 or 12 years old and he was 22 years old, and had allegedly told the referral source that he was going to take M.M.‘s virginity in the same way. Doug was no longer involved with mother when the unsupervised visitations began.
{¶ 15} Finally, the caseworker expressed concern that mother allowed her cousin to temporarily live with her at the housing through the FOCUS program. The cousin had already lost custody of her own three children. When the caseworker confronted mother, mother denied it. However, the cousin‘s name was on the mailbox, and mother did eventually admit that the cousin lived there.
{¶ 16} On March 26, 2012, as the case progressed, LCCS filed a motion to terminate temporary custody and award permanent custody of K.M. and M.M. to mother. A hearing was set for April 26, 2012, on LCCS’ motion. Following the filing of the
{¶ 17} On October 15, 2012, the trial court held a termination hearing on LCCS’ motion for permanent custody. At the hearing, the caseworker testified that awarding permanent custody to LCCS was in the children‘s best interest. She spoke to the children‘s need for stability and permanency, and how the children have been receiving tutoring and have been doing better in school since they were placed in foster care. The caseworker testified that K.M.‘s behavior has improved, and that he no longer lashes out as much. The caseworker also testified, though, that M.M.‘s behavior has gotten worse, that she is very defiant and disrespectful. However, the caseworker stated those behaviors occurred around the time of the planned reunification with mother, and that since being informed that LCCS was filing for permanent custody, M.M. is doing better, although it is still not perfect. Finally, the caseworker expressed concern that mother would not follow through on the children‘s counseling services in light of her own inconsistency with counseling.
{¶ 18} The guardian ad litem echoed many of the observations regarding the children. The guardian ad litem also expressed concern that, although mother loves her children very much, she would not be able to provide a stable environment for them
{¶ 19} After the hearing, the trial court conducted an in-camera interview with the children. The court then entered its judgment on November 7, 2012, awarding permanent custody of the children to LCCS. The trial court found that the children cannot be placed, and should not be placed, with either of the parents within a reasonable period of time.
{¶ 20} The court found, pursuant to
{¶ 21} The trial court also considered all of the required factors in
{¶ 22} Finally, the trial court found that LCCS has made reasonable efforts to avoid the continual removal of the children form the home, and that it has provided reasonable services to the family to address the family‘s issues.
B. Assignments of Error
{¶ 23} Mother and B.H. have appealed from the trial court‘s November 7, 2012 judgment entry. B.H., however, does not raise any independent legal issues, but rather supports the legal arguments raised by mother. Father has not appealed. Mother asserts two assignments of error:
I. The trial court erred in finding that appellee Lucas County Children Services Board had made a reasonable effort to reunify the minor child with appellant K.M.
II. The trial court erred in granting appellee Lucas County Children Services Board‘s motion for permanent custody as it was against the manifest weight of the evidence.
II. Analysis
{¶ 24} To terminate parental rights and award permanent custody of a child to a public services agency, the juvenile court must find, by clear and convincing evidence, two things: (1) that one of the enumerated factors in
{¶ 25} “A trial court‘s determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence.” In re A.H., 6th Dist. No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th Dist. Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. We recognize that, as the trier of fact, the trial court is in the best position to weigh the evidence and evaluate the testimony. Id., citing In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Thus, “[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the
{¶ 26} Here, under the first prong, the trial court found that
{¶ 27}
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.
{¶ 29} We believe the record supports a finding that LCCS made reasonable efforts. Mother was referred to counseling for her mental health issues. In February 2012, the caseworker contacted mother‘s new therapist and explained some of LCCS’ concerns, including mother‘s inability to engage in healthy relationships. The therapist responded that they would address those issues in the individual counseling sessions. At the time of the planned reunification and overnight unsupervised visits, it appeared that mother was taking advantage of the counseling services and was addressing her issues. It was not until later that LCCS learned that mother, in fact, was not participating in counseling, despite her representations to the contrary. Furthermore, the record is clear that mother was not forthcoming with the nature of her relationships, and that the threat to the children‘s safety posed by mother‘s judgment regarding the men in her life was not
{¶ 30} Accordingly, mother‘s first assignment of error is not well-taken.
{¶ 31} In her second assignment of error, mother argues that the trial court‘s findings were not supported by the manifest weight of the evidence. We disagree. First, the court‘s finding that mother failed to remedy the conditions causing removal, specifically, her lapses of judgment and her inability to provide stable housing, is supported by the testimony regarding her relationships with Rob and Doug, and the fact that she has lived in five different houses during the course of this case. Second, the court‘s finding that mother has a chronic mental illness that makes her unable to provide an adequate permanent home for the children is supported by the testimony that she has been diagnosed with bipolar disorder with psychosis, post traumatic stress disorder, depression, and anxiety. Furthermore, it is supported by the testimony illustrating that mother is inconsistent in receiving counseling. Finally, the court‘s finding that awarding permanent custody of the children to LCCS is in the children‘s best interest is supported by the testimony of the caseworker and guardian ad litem that, although not perfect, the children have improved educationally, behaviorally, and mentally since being placed in the foster home. Therefore, because competent and credible evidence exists in the record to support the trial court‘s findings, we hold that the findings are not against the manifest weight of the evidence.
III. Conclusion
{¶ 33} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellants, mother and B.H., are liable for the costs of the appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, P.J.
JUDGE
Stephen A. Yarbrough, J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.