In re K.M.
Brian N. Gernert for Appellant
Michael J. Wiener for Appellee
{¶1} Appellant, Christina Lively (“Lively“), appeals the April 11, 2018 decisions of the Crawford County Court of Common Pleas, Juvenile Division, awarding permanent custody of her minor children, K.M. and D.M., to Crawford County Job and Family Services (the “agency“). For the reasons that follow, we affirm.
{¶2} K.M. and D.M. are the children of Lively and Brandon Milligan (“Milligan“). On February 3, 2017, the agency filed complaints in case numbers C-2175023 and C-2175024 alleging K.M. and D.M., respectively, to be neglected children; the agency also filed a motion for a shelter-care hearing. (See Case No. F-2185023, Doc. No. 1); (See Case No. F-2185024, Doc. No. 1).1 On March 10, 2017, Lively admitted that K.M. and D.M. are neglected children, and the trial court found K.M. and D.M. to be neglected children and committed them to the temporary custody of the agency. (Id.); (Id.). That same day, the trial court approved and adopted the case plans prepared by the agency. (Id.); (Id.).
{¶4} On May 8, 2018, Lively filed notices of appeal.2 Lively‘s appeals were subsequently consolidated for purposes of briefing and argument. She raises one assignment of error.
Assignment of Error
Clear and convincing evidence did not exist to justify a finding that it was in the best interests [sic] of the minor children to terminate parental rights and award permanent custody of the minor children to Crawford County Department of Job and Family Services.
{¶5} In her assignment of error, Lively argues that the trial court erred by concluding that clear and convincing evidence supports that it is in the best interest of K.M. and D.M. to grant permanent custody of K.M. and D.M. to the agency. In particular, Lively argues, “Based upon the testimony and evidence provided, the
{¶6} The right to raise one‘s child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.
{¶7} ”
may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to [
R.C. 2151.414(A) ], 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 * * *:(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.
{¶8}
In determining at a hearing held pursuant to [
R.C. 2151.414(A) ] * * * 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 [R.C. 2151.414(A) ] * * * 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 thе 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[.]
{¶9} “If the trial court determines that any provision enumerated in
(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 оf 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.
{¶11} If the trial сourt makes these statutorily required determinations, a reviewing court will not reverse a trial court‘s decision unless it is not supported by clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985) and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence is that which is sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re S.G., 2015-Ohio-2306, at ¶ 10, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶12} At this point, we note that Lively does not argue that the trial court erred by determining that one of the provisions of
{¶13} We further note that many of the trial court‘s factual findings relate to its conclusion under
{¶15} In support of its conclusion that it is in the best interest of K.M. and D.M. to award permanent custody of K.M. and D.M. to the agency, the trial court found that a “presenting problem” that resulted in K.M. and D.M.‘s removal from Lively‘s custody was “parental substance abuse” and that “[Lively] had lost her job the previous July and was essentially homeless and was suffering depression and anxiety over the situation.” (Id.); (Id.). The trial court found that, to remedy these problems, the agency instituted a case plan requiring Lively to complete mental-health and substance-abuse evaluations, together with any recommended counseling, submit to random drug screens, and have drug-free screens for a minimum period of six months. (Id.); (Id.). The trial court also found that the case plan required Lively to obtain and maintain a suitable source of income and secure an “appropriate, independent, clean and hazard free home with working utilities for a minimum of ninety days.” (Id.); (Id.).
{¶17} In addition, the trial court found that “[Lively‘s] visitations [with K.M. and D.M.] have been somewhat sporadic” and that Lively missed seven visitations and arrived late to or left early from others. (Id.); (Id.). The trial court also noted that Lively failed to appear at the permanent-custody hearing “as she was incarcerated in the Huron County Jail and not at liberty to appear.” (Id.); (Id.).
{¶19} Clear and convincing evidence supports the trial court‘s conclusion that it is in K.M.‘s and D.M.‘s best interest to grant permanent custody of K.M. and D.M. to the agency. With respect to the
{¶20} Next, Brook Rachel (“Rachel“), an ongoing caseworker with the agency, testified that K.M.‘s and D.M.‘s cases were initially opened when “crack pipes [were] found in [D.M.‘s] coat pockets.” (Id. at 9-10). She noted that Lively had a “drug use/substance abuse issue.” (Id.). Rachel testified that the case plan put in place to remedy those issues required Lively “to complete a mental health assessment and follow recommendations, complete an [Alcohol and Other Drug (“AOD“)] assessment and follow recommendations, [and obtain] stable housing and income.” (Id.). Rachel testified that Lively completed the mental-health assessment and that there were no recommendations; she also testified that Lively completed
{¶21} Rachel also testified that, as part of her case plan, Lively was required to maintain a “period of sobriety.” (Mar. 26, 2018 Tr. at 12-13). Rachel stated that the agency “complete[d] monthly drug screens or ma[de] attempts to try to get drug screens from [Lively]” in order to monitor her compliance with the sobriety requirement. (Id. at 12). She testified that while “[Lively was directed] to test clean for six months,” “[s]he [was] unable to do that.” (Id.). Rachel identified State‘s Exhibit 6 as Lively‘s drug screen results. (Id. at 13). (See State‘s Ex. 6). The drug screen results reflect that Lively tested positive for tetrahydrocannabinol (“THC“), an active chemical in marijuana, on February 22 and February 27, 2017, positive for cocaine on March 28 and August 28, 2017, and positive for cocaine and fentanyl on January 18, 2018. (See State‘s Ex. 6). Rachel also testified that, at the time of the
{¶22} Rachel testified that Lively secured employment with Carton Services as required by the terms of the case plаn. (Id. at 14). However, she testified that Lively was fired from Carton Services in November 2017 and that, to the best of her knowledge, Lively had not been employed since November 2017. (See id.). While Rachel stated that Lively had secured an apartment, she testified that she had not been inside Lively‘s apartment since August 2017 despite “many, many attempts, three attempts a month usually.” (Id.). Rachel remarked that she did not know the then-present condition of Lively‘s residence. (Id. at 15).
{¶23} Rachel then testified about Lively‘s visitations with K.M. and D.M. (See id.). Rachel testified that Lively‘s visits with K.M. and D.M. had “been somewhat sporadic” and that “some visits [went] very well, and some visits [did not] happen. Some visits [were] inaрpropriate. There was one incident where * * * [Lively] ended up leaving early, but [K.M. and D.M.‘s] foster parent felt that [Lively] was under the influence based on her behaviors during the visit.” (Id.). Rachel noted that Lively “missed * * * seven visits total” and that there was
{¶24} Finally, State‘s Exhibits 1 and 2, certified copies of Lively‘s child support payment records, reflect that Lively paid child support on an irregular basis between March 2017 and February 2018 and that as of February 28, 2018, Lively was $3,185.08 in arrears. (See id. at 7-8). (See also State‘s Exs. 1, 2).
{¶25} Therefore, as to the
{¶26} With respect to
{¶27} In regard to
{¶28} Concerning
{¶29} As to
{¶30} Rachel testified that K.M. and D.M. had been in temporary custody since February 2017. (Mar. 26, 2018 Tr. at 20). She testified that the agency had initially considered placing K.M. and D.M. with Lively‘s mother and Lively‘s mother‘s boyfriend, but that placement with the couple was ultimately deemed inappropriate due to concerns over alcohol and substance abuse. (Id.). Rachel also testified that Stumbo, one of Lively‘s friends whom she met while working at Carton Services, contacted the agency concerning the possibility of placing K.M. and D.M. with him. (Id. at 16-17). She testified that, as of the March 26, 2018 hearing, the agency had not completed Stumbo‘s home-study evaluation and he had not yet provided his fingerprints. (Id. at 16). Rachel stated that Stumbo self-reported that “he had had three DUIs,” the most recent of which occurred 13 years
{¶31} Next, Rachel testified about her contacts with Milligan and the viability of long-term placement with Milligan or members of Milligan‘s family. (See id. at 18-20). Rachel testified:
I * * * had a phone call with [Milligan] in March of [2018] * * *. There was an aunt of [K.M. and D.M.] * * * [whose] name was also given for kinship, but she couldn‘t be approved because of her past history. And I asked about the father, [Milligan], and she had stated
that he was not able to be reached at [that] time. About a week later, [Milligan] called me, and he had just gotten out of prison.
(Id. at 18). Rachel then described Milligan‘s efforts to be included on the case plan and to influence K.M. and D.M.‘s placement:
| [The State]: | Have you had contact with [Milligan] about services to be added to the case plan for him or placement of the girls? |
| [Rachel]: | [Milligan] stated that he would be at the hearing today, and he would be requesting a court appointed attorney to get the girls back. I told him, at that point, if he wanted to be on the case plan, we would have to do so some [sic] services in order to get the girls into his home. |
| [The State]: | Did he request them? |
| [Rachel]: | No. |
| [The State]: | Did he show up today? |
| [Rachel]: | No. |
| [The State]: | Has he had any visitation with [K.M. and D.M.] since they‘ve been in placement? |
| [Rachel]: | No. |
{¶32} On cross-examination, Rachel testified that Stumbo voluntarily submitted to a drug screen and that the screen showed that he “was negative” for drugs. (Id. at 21). She testified that she had been to Stumbo‘s house and that his house was “cluttered.” (Id.). She described Stumbo‘s home as containing “one bedroom,” and she noted that he “[did] not have any beds at [that] time fоr [K.M. and D.M.]” (Id.). However, Rachel admitted that Stumbo‘s house would be “appropriate” “[i]f he were to unclutter it.” (Id. at 22). Rachel testified that Stumbo was still employed by Carton Services. (Id.). She confirmed that Stumbo disclosed his three DUIs and noted that although DUIs were “not on [the agency‘s] list of exclusions, * * * [the agency] * * * can take into [account] other considerations.” (Id.). She acknowledged that DUI convictions were not “per se” exclusions and that the determination of whether a placement is suitable despite DUI convictions is a “county-by-county decision.” (Id.). Rachel testified that she ran Stumbo “through the SACWIS Program” and that he did not have any prior involvemеnt with Children Services that would automatically exclude him from accepting a placement through the agency. (Id. at 22-23). Finally, she testified that Stumbo did everything
{¶33} Next, K.M. and D.M.‘s GAL questioned Rachel regarding her knowledge of Lively and Stumbo‘s relationship. (See id. at 25-26). Rachel testified that she did not know whether Lively and Stumbo‘s relationship predated Lively‘s employment at Carton Services and that, because K.M. and D.M. had been in the temporary custody of the agency the entire time that Lively worked at Carton Services, it was unlikely that Stumbo had an opportunity to meet K.M. and D.M. (Id. at 26). The GAL asked Rachel whether “[K.M.] has some issues involving learning problems,” to which Rachel responded, “Yes.” (Id.). She agreed that K.M. requires “additional care than what a normal child might need” and testified that from “[t]he information that [she received] from [Stumbo],” Stumbo did not demonstrate “any history of * * * knowing how to * * * work with children that have learning disabilities.” (Id. at 26-27). Rachel testified that D.M. has “some behavioral issues or attitude towards the foster parents” and that she did not know of any “history of [Stumbo] even dealing with children.” (Id. at 27). Rachel also testified that Stumbo was told that “if he were approved for [K.M. and D.M.] to come live with him, that [Lively] would not be able to reside in the home.” (Id.). Shе testified that Stumbo “seemed shocked at the fact that [Lively] could not live there.” (Id.). Finally, when commenting on whether placement with Stumbo would
{¶34} On re-direct examination, Rachel testified that it was “correct” that, if given more time, the agency could continue to explore a kinship placement. (Id.). She testified that an extension would be required to furthеr pursue a potential kinship placement. (Id. at 29). However, Rachel agreed that “[Lively] [had not] done anything to demonstrate to [the agency] that [she had] substantially progressed on the terms and conditions of the case plan” such that an extension was warranted. (Id.).
{¶35} Finally, the trial court questioned Rachel regarding the agency‘s efforts toward finding a kinship placement. (See id. at 29-30). Rachel testified that the agency explored the possibility of placing K.M. and D.M. with Lively‘s mother but that the agency “wasn‘t able to approve her.” (Id. at 30). She stated that Lively‘s mother then recommended placement with Lively‘s brother and Lively‘s brother‘s wife, who is Milligаn‘s sister. (Id.). Rachel testified that “[Milligan‘s sister] and [Lively‘s brother] * * * were interested” in being considered as a placement for K.M. and D.M. (Id.). However, she testified that the agency “ran SACWIS checks” on the couple, and “they were not able to be approved.” (Id.).
{¶37} Finally, with respect to
{¶38} Accordingly, based on the totality of the circumstances, the trial court‘s conclusion that it is in the best interest of K.M. and D.M. to award permanent custody of K.M. and D.M. to the agency is supported by clear and convincing evidence. Thus, the trial court did not err by awarding permanent custody of K.M. and D.M. to the agency.
{¶39} Lively‘s assignment of error is overruled.
{¶40} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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