Case Information
*1
[Cite as
In re K.P.
,
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY
IN RE: : CASE NO. CA2021-11-016
K.P. : O P I N I O N 4/22/2022 :
:
:
: APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 20193047
The Hobbs Law Office, and H. Steven Hobbs, for appellant.
Martin P. Votel, Preble County Prosecuting Attorney, and Sean Brinkman, Assistant Prosecuting Attorney, for appellee.
M. POWELL, P.J.
Appellant ("Mother") appeals a decision of the Preble County Court of
Common Pleas, Juvenile Division, granting permanent custody of her son, K.P., to the
Preble County Job and Family Services, Children's Services Division (the "Agency"). K.P.'s
father ("Father") is not a party to this appeal.
[1]
Father and Mother were never married to
1. Father separately appealed the juvenile court's decision granting permanent custody of his son, K.P., to
the Agency. On April 5, 2022, we upheld the juvenile court's decision and permanent termination of Father's
parental rights.
In re K.P.
, 12th Dist. Preble No. CA2021-11-017,
one another.
Facts and Procedural History
{¶ 2} The Agency became involved with Mother on June 28, 2019, the day K.P. was born, when it received a referral that Mother reported she had used marijuana and amphetamines two months prior to giving birth, heroin a few days before K.P. was born, and Suboxone on the day K.P. was born, and that K.P. was exhibiting withdrawal symptoms. Four days after K.P. was born, his cord blood tested positive for fentanyl, buprenorphine, morphine, naloxone, amphetamines, benzodiazepines, mеthamphetamines, and cocaine. At the time of K.P.'s birth, Father was incarcerated on drug charges and was set to be released in December 2021. On July 3, 2019, the Agency filed a complaint alleging that K.P. was a dependent and abused child. The juvenile court granted emergency temporary custody of the child to the Agency; the child was placed in foster care. A CASA was appointed as the guardian ad litem for K.P. pursuant to R.C. 2151.281. On August 22, 2019, the juvenile court adjudicated K.P. a dependent and abused child. Bifurcation of the adjudicatory and dispositional hearings was waived and the juvenile court ordered that K.P. be placed in the temporary custody of the Agency. A case plan was established for both parents. The case plan required Mother to complete a drug and alcohol assessment, engage in drug and alcohol treatment, follow all recommendations from her treatment, undergo a psychological assessment, and remain clean and sober. The case plan also required Mother to obtain and maintain employment and stable housing. In February 2020, K.P. was placed with his current foster family; he was seven
months old. In July 2020, the Agency moved the juvenile court for an extension of its temporary custody order. On July 24, 2020, the juvenile court extended temporary custody of K.P., finding that Mother "completed treatment through Sojourner and Full Circle. Mother did relapse in March 2020. She is now engaged in substance abuse treatment at Bright View in Cincinnati. Mother is now testing negative for all substances. Mother is employed. Mother attends visits consistently." In December 2020, the Agency moved the juvenile court for a second extension of its temporary custody order. In support of its motion, the Agency stated that
There has been significant progress on the Child's case plan.
Mother completed treatment through Sojourner and Full Circle.
Mother relapsed in March 2020, but engaged in additional treatment at Bright View in Cincinnati. Mother is employed at Marathon. Mother obtained a new two-bedroom apartment with a co-worker[.] Mother has been inconsistent with visits due to transportation issues. Based on the progress, the Agency submits that a second extension of temporary custоdy is in the Child's best interest. Furthermore, there is reasonable cause to believe that the Child will be reunified with one of the parents, or otherwise permanently placed within the period of extension.
Father remains incarcerated with an anticipated release date of June 21, 2021.
On February 17, 2021, the juvenile court once again extended temporary custody of K.P. During the proceedings, Mother's visits with K.P. initially occurred on a weekly basis. Mother's visits were subsequently transitioned to being off the Agency's grounds, then to overnight visits, and then to weekends at Mother's home. Eventually, a home visitation trial began on April 2, 2021. However, the 30-day home trial terminated on April 19, 2021, after the Agency received a referral that Mother was smoking marijuana in K.P.'s presence, leaving K.P. with other individuals at all hours of the night, and not providing care for the child. On May 28, 2021, the Agency moved for permanent custody of K.P. Both
Mother and Father objected to the Agency's request for permanent custody. On June 23, 2021, the CASA filed a report recommending that permanent custody be granted to the Agency. In support of her recommendation, the CASA noted that temporary custody of K.P. could no longer be extended, that Mother had failed to maintain an adequate home, that Mother had been inconsistent in her visits with K.P., and that Mother could not provide a stable home for the child during her upcoming incarceration. At the time of the CASA's report, Mother was facing pending incarceration in Indiana on drug charges that occurred after K.P.'s birth. The CASA's report further stated that the recent home trial visitation did not end well and that when K.P. subsequently returned to his foster family from the home trial, he was "extremely emotional," "would cry at everything and was very weary [sic.] of [the foster father] for about two weeks." A permanent custody hearing was held in September 2021. The juvenile
court heard testimony from several witnesses, including Mother, the foster father, a caseworker, Mother's parents, and a family friend. Father was given the opportunity to testify on his own behalf but declined to do so. At the time of the hearing, Mother was incarcerated in Indiana on the drug charges referred to above and was not set to be released until January 16, 2022. Regarding Mother's substance abuse history and drug treatments, testimony
at the hearing showed that when K.P. was born in June 2019, Mother had used heroin a few days prior to and Suboxone on the day K.P. was born and that she was on probation on drug charges. Shortly after K.P.'s birth, Mother incurred new drug charges which eventually led to her incarceration in Indiana from July 29, 2021, to January 16, 2022. As a result of her new 2019 drug charges, Mother attended a detoxification program at Sojourner in Eaton, Ohio. She then attended an inpatient addiction recovery program at Full Circle in Dayton, Ohio, starting on August 26, 2019. She successfully completed the program on March 4, 2020. Nonetheless, she relapsed later that month by operating a vehicle while under the influence of drugs or alcohol. In December 2020, Mother obtained a medical marijuana card but did not notify the Agency. The Agency learned about the medical marijuana card in late April 2021 after the home visitation trial. Mother next attended an outpatient recovery management program at CRC
(Clermont Recovery Center), starting on January 20, 2021, and successfully completing it on June 4, 2021. Desрite the certificate of completion, narratives from CRC were contradictory as to Mother's progress during treatment. The Agency presented evidence that Mother had not attended a group session since May 6, 2021, and that prior to that date, her attendance was spotty. Mother conceded her attendance had been spotty but stated she "did the best [she] could." During the CRC treatment program, Mother was regularly tested for 12 different drugs. After obtaining her medical marijuana card, Mother regularly tested positive for marijuana; she further tested positive for cocaine on April 27, 2021. Mother denied consuming marijuana or being intoxicated around K.P., denied using cocaine, and surmised the positive test for cocaine was a false positive. Mother asserted she was clean since January 2020 save for her OVI relapse in March 2020. Regarding Mother's employment and housing, testimony at the hearing
showed that Mother shared a two-bedroom apartment with a roommate during the home trial, an individual Mother suggested as a potential placement for K.P. during Mother's inсarceration in Indiana. However, Mother and the roommate had a falling out and the Agency never heard from the roommate. Mother then moved in with her mother ("Maternal Grandmother") in New Paris, Ohio for a few months until her incarceration. The caseworker testified that Maternal Grandmother's home was not appropriate for K.P. due to safety concerns, including Maternal Grandmother's prior drug use. Mother testified she intended to get her own home upon release but acknowledged she had no housing set up. The record shows that before her incarceration, Mother was working for a company in Blue Ash, Ohio, selling subscriptions for satellite radio and earning $13 an hour. Mother testified she took a leave of absence from her job because of her incarceration but asserted she would return to that job once she was released.
{¶ 11} Regarding Mother's visits with K.P. during the proceedings, testimony at the hearing showed that Mother visited K.P. weekly while she was attending her inpatient treatment program at Full Circle. In March 2020, the visits were temporarily suspended due to COVID-19. Thereafter, Mother's work schedule, her transportation issues, and the lack of personnel to monitor the visits prevented Mother from resuming visitation in August- September 2020. Once visitation transitioned to overnight visits in January-February 2021, and then to weekend visits, Mother consistently visited with K.P. A home trial followed on April 2, 2021, but was terminated on April 19, 2021, following a referral Mother was smoking marijuana in K.P.'s presence. Following the termination of the home trial, Mother did not visit K.P. for six weeks because of her transportation issues. The record shows that Mother was only able to attend one visitation between the termination of the home trial in April 2021 and her incarceration in July 2021. The record further shows that the foster family encouraged Mother to video chat with K.P. in addition to visitation; however, Mother video chatted with K.P. only three times between February 2020 and July 2021. The Agency presented evidence that K.P. had been living with his current
foster family since February 2020, that he is very bonded with the foster family and that his foster family is meeting his needs, and that the foster family would like to adopt him. The caseworker testified about how Mother's positive test for cocaine following the completion of two substance abuse programs and while attending a third treatment program, Mother's marijuana use and failure to notify the Agency she had a medical marijuana card, Mother's present incarceration in Indiana and her resulting inability to care for K.P. until her release in January 2022, and Mother's lack of appropriate housing for K.P. prevented K.P.'s reunification with Mother. On October 21, 2021, the juvenile court granted permanent custody of K.P.
to the Agency. The juvenile court found that it was in K.P.'s best interest to grant the Agency permanent custody, that K.P. had been in the temporary custody of the Agency for at least 12 months of a consecutive 22-month period (commonly referred to as the "12 of 22" provision), and that despite reasonable efforts by the Agency to prevent the need for placement of K.P. outside the home, K.P. could not and should not be placed with Mother or Father within a reasonable amount of time.
Appeal
{¶ 14} Mother now appeals the juvenile court's decision granting permanent custody of K.P. to the Agency, raising two assignments of error.
Permanent Custody Standard of Review Before a natural parent's constitutionally protected liberty interest in the care
and custody of his or her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. In re R.K. , 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio- 3074, ¶ 14, citing Santosky v. Kramer , 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Therefore, "[a]n appellate court's review of a juvenile court's decision granting permanent custody is generally limited to considering whether sufficient credible evidence exists to support the juvenile court's determination." In re R.K. at ¶ 13. This court will thus reverse a juvenile court's decision to grant permanent custody only if there is a sufficient conflict in the evidence presented. Id. However, even if the juvenile court's decision is supported by sufficient evidence, an appellate court may nevertheless conclude that the judgment is against the manifest weight of the evidence. Id. In determining whether a juvenile court's decision to grant a motion for
permanent custody is against the manifest weight of the evidence, an appellate 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 trial ordered.'"
In re T.P.
, 12th Dist. Butler No. CA2015-08-164, 2016-
Ohio-72, ¶ 19, quoting
Eastley v. Volkman
, 132 Ohio St.3d 328,
Two-Part Permanent Custody Test Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental
rights and award permanent custody of a child to a children services agency if the court
makes findings pursuant to a two-part test.
In re R.K.
,
the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant factors. This includes, but is not limited to, (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-town providers, and any other person who may significantly affect the child; (2) the wishes of the child, as expressed directly by the child or through the child's guardian ad litem; (3) the custodial history of the child; (4) the child's need for a legally secure permanent placеment and whether that type of placement can be achieved without a grant of permanent custody to the agency; and (5) whether any of the factors listed in R.C. 2151.414(E)(7) to (11) apply in relation to the parents and child. In re R.K. at ¶ 18.
{¶ 19}
"R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss
each of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e). Consideration is all
the statute requires."
In re A.M.
, Slip Opinion No.
Analysis Assignment of Error No. 1: THE APPLICATION OF R.C. 2151.414(B)(1)(d) TWELVE MONTHS OF A
CONSECUTIVE TWENTY-TWO MONTH PERIOD WHEN NUMEROUS AND LENGTHY DELAYS ARE OCCASSIONED BY THE WORLD-WIDE PANDEMIC VIOLATES THE MOTHER'S RIGHT TO DUE PROCESS. (sic.)
{¶ 22} As stated above, the juvenile court found that K.P. had been in the temporary custody of the Agency for more than 12 months of a consecutive 22-month period at the time the Agency filed its motion for permanent custody. This finding is supported by the record, as K.P. has been in the temporary custody of the Agency since August 2019.
{¶ 23} Mother does nоt dispute the juvenile court's time calculation. Instead, she argues that the juvenile court erred in terminating her parental rights based on a strict application of the 12 of 22 provision because COVID-19 health restrictions curtailed the Agency's ability to provide, and Mother's ability to engage in, reunification services. Mother asserts that "delays occasioned in large part due to the Agency restricting it[s] caseworkers from field work, the drug treatment programs going virtual, [and] the Court delaying in person hearings due to the global pandemic" violated her due process rights. On March 9, 2020, the governor of Ohio issued Executive Order 2020-01D
declaring a state of emergency in Ohio in response to COVID-19. A national emergency
was declared by the president of the United States on March 13, 2020. "There is no dispute
that COVID 19 restrictions affected how case plans could be approached. The ability to
utilize in-person services, such as visitation, was significantly restricted for a limited time."
In re K.R.
, 3d Dist. Shelby Nos. 17-21-12 and 17-21-13,
COVID-19 pandemic began in March 2020, Mother attended and completed two substance abuse treatment programs, including Full Circle as an inpatient, only to have an OVI in March 2020, and visited K.P. on a weekly basis. Once the COVID-19 pandemic began and safety precautions were put in place, the record reveals that Mother (1) was able to attend the CRC treatment program remotely but admitted her attendance had been spotty, (2) tested positive for cocaine during the CRC treatment program, (3) was unable to resume visits in August-September 2020 due her work schedule, her transportation issues, and a lack of personnel to monitor the visits, (4) consistently visited K.P. once visitation transitioned to overnight visits and weekends, (5) only once visited K.P. between April 2021 and her incarceration in July 2021 in part due to her transportation issues, and (6) video chatted with K.P. only three times between February 2020 and July 2021. Based upon the record before this court, we find that Mother was not deprived
of her ability to be reunified with K.P. because of a strict application of the 12 of 22 provision
or because of the COVID-19 pandemic, but rather, due to her own actions and choices.
Mother has failed to demonstrate that COVID-19 restrictions prevented her from having a
meaningful opportunity to work on the case plan for more than 12 months of a consecutive
22-month period. Therefore, Mother was not denied due process when the juvenile court
considered whether, and subsequently found that, K.P. had been in the temporary custody
of the Agency for more than 12 months of a consecutive 22-month period at the time the
Agency filed its motion for permanent custody.
In re K.R.
,
under R.C. 2151.414(B)(1)(d) does not or should not apply here, the second prong of the
permanent custody analysis is nevertheless established. In additiоn to its "12 of 22" finding,
the juvenile court also found that K.P. cannot be placed with Mother within a reasonable
period of time or should not be placed with Mother, a finding Mother does not challenge on
appeal. As stated above, only one of the findings under R.C. 2151.414(B)(1)(a) to (e) must
be met to satisfy the second prong of the two-part permanent custody test.
In re R.K.
, 2021-
Ohio-3074 at ¶ 16. Accordingly, the juvenile court's finding that K.P. cannot be placed with
Mother within a reasonable period of time or should not be placed with Mother is another
statutory basis upon which the juvenile court appropriately awarded permanent custody to
the Agency.
In re M.K.
, 12th Dist. Preble No. CA2011-07-003,
{¶ 28} Mother's first assignment of error is overruled.
{¶ 29} Assignment of Error No. 2:
{¶ 30} THE TRIAL COURT ERRED WHEN IT DETERMINED IT WAS IN THE CHILD'S BEST INTEREST TO AWARD THE AGENCY PERMANENT CUSTODY.
{¶ 31} Mother argues the juvenile court erred in finding it was in K.P.'s best interest to grant permanent custody to the Agency. To support this claim, Mother argues that the evidence does not support the grant of permanent custody to the Agency considering Mother's "significant nurturing relation" with K.P. which eventually progressed into a "thirty- day [home] trial period," Mother's "significant strides in the agency's case plan," and the fact Mother "affords [K.P.] and has afforded him [an] opportunity" for a legal secure placement by suggesting her roommate and then a family friend as potential caregivers during Mother's incarceration. Mother asserts she "consistently visited" with K.P. once she "finished her treatment, once her truck was repaired, [and] when the agency accommodated her work schedule[.]" Mother's argument implicates the juvenile court's consideration of K.P.'s
interaction and interrelationship with Mother and whether K.P.'s need for a legally secure permanent placement can be achieved without a grant of permanent custody, two best- interest factors under R.C. 2151.414(D)(1)(a) and (d). Mother also cites her case plan progress, presumably as an unenumerated best-interest factor improperly weighed by the juvenile court. Mother achieved significant progress in satisfying her case plan's
benchmarks. However, "[t]he key concern is not whether the parent has successfully
completed the case plan, but whether the parent has substantially remedied the concerns
that caused the child's removal from the parent's custоdy."
In re S.M.
, 12th Dist. Clermont
No. CA2015-01-003,
successfully completing two of them during the proceedings, Mother nevertheless had an OVI in March 2020, the same month she completed the Full Circle treatment program, and tested positive for cocaine in April 2021 while attending the CRC treatment program. Mother's submission of drug test results in conjunction with her CRC treatment program shows that Mother regularly uses marijuana since obtaining her medical marijuana card in December 2020. There is no evidenсe or verification of Mother's sobriety during the three- month period between her June 2021 completion of the CRC treatment program, her third substance abuse treatment, and the September 2021 permanent custody hearing. As for visitation, the record shows that throughout the proceedings, Mother alternated periods of consistent visitation with periods of missed visitation, in part due to her transportation issues. Further, the 30-day home trial abruptly ended after 17 days following a referral that Mother was smoking marijuana in K.P.'s presence and leaving him with other individuals at all hours of the night. Throughout the proceedings, the Agency explored possible placements for
K.P., but was unable to locate a suitable alternative arrangement. In the separate case involving Father, the juvenile court granted permanent custody of K.P. to the Agency, finding that K.P. could not be placed with Father within a reasonable time because Father had no relationship with K.P. during most of K.P.'s life due to Father's incarceration on drug charges, and Father was subsequently unable to establish a significant relationship with K.P. аnd a stable period of sobriety during the three-month period between Father's release and the permanent custody hearing. As stated above, Mother suggested her then roommate but the two subsequently had a falling out and were no longer speaking, and the Agency thereafter never heard from the roommate. Following the failed April 2021 home trial, Mother then suggested the family friend; however, the family friend had never met K.P. and never moved for legal custody of K.P.
{¶ 37} In addition to the arguments Mother advances on appeal, the dissent asserts that the juvenile court committed reversible error by failing to address K.P.'s wishes in determining his best interest pursuant to R.C. 2151.414(D)(1)(b). As indicated above, Mother does not assign this as error or contend that the juvenile court erred by failing to consider K.P.'s wishes in awarding permanent custody to the Agency. On the contrary, Mother concedes that K.P.'s wishes are not an appeal issue because K.P. "is too young to express his wishes regarding custody and not mature enough to appreciate anything he expresses." App.R. 16(A)(7) provides that an appellant's brief shall сontain "[a]n argument
containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions[.]" App.R. 12(A) provides that an appellate court "may disregard an assignment of error * * * if the party * * * fails to argue the assignment separately in the brief as required by App.R. 16(A)." Notwithstanding, a court of appeals has discretion to review an unassigned error:
Our rules require that appellate courts "[d]etermine [an] appeal on its merits on the assignments of error set forth in the briefs under App.R. 16." App.R. 12(A). We have recognized, however, that while a court of appeals "need not pass on errors which were not assigned or argued, this power is discretionary." State v. 1981 Dodge Ram Van ,36 Ohio St.3d 168 , 170 (1988).
When a court does so, it "should * * * give the parties notice of its intention and an opportunity to brief the issue." Id .
State v. Moore
,
consider all relevant factors, including the factors enumerated in R.C. 2151.414(D)(1), in
determining whether permanent custody is in a child's best interest. We also recognize that
the juvenile court must do so. We further emphasize that, notwithstanding the Ohio
Supreme Court's recent holding that a juvenile court's duty to consider the factors does not
include the duty to "expressly discuss" them, the better practice is for the juvenile court to
discuss them so there can be no question that each factor was considered.
See In re A.M.
,
Slip Opinion No.
relieve a juvenile court of the duty to consider a child's wishes in a permanent custody case. We hold no such thing. We merely recognize that K.P.'s age is a factor in this case upon which we rely in declining to exercise our discretion to review an issue that was neither assigned as error nor otherwise argued on appeal. Citing my dissenting opinion in State v. Collins , 12th Dist. Warren No.
CA2014-11-135,
qualifies for temporary custody under R.C. 22151.415(D); K.P. does not meet the
requirements for a planned permanent living arrangement under R.C. 2151.353(A)(5); and
prior to the permanent custody hearing, no relative or other interested person had filed a
motion for legal custody of P.K. By contrast, K.P. has been living in his foster home since
February 2020, is bonded with his foster parents, and is doing very well. K.P.'s foster
parents have indicated their desire to adopt K.P. It is the best interest of the child, not a
parent's preferred outcome, that is controlling.
In re K.M.
, 12th Dist. Butler No. CA2019-01-
015,
the necessary stability to permit K.P. to return home during the 22-month period between the time of K.P.'s removal from Mother's care and the filing of the permanent custody motion resulted in K.P.'s integration into his foster family's home. K.P. was only seven months old when he was placed with his current foster family. By the time the permanent custody motion was filed, K.P. had been with his foster family for 15 months. K.P.'s foster family has provided for all of his needs and wants to adopt him. By contrast, by the time of the permanent custody hearing, K.P. could still not return home with Mother because she was incarcerated. Even upon Mother's release from incarceration, significant uncertainty remained regarding her housing, employment, and transportation.
{¶ 46} In this case, the R.C. 2151.414(D)(1)(a) best-interest factor favors an award of permanent custody based upon K.P.'s interaction and interrelationship with his foster family. The R.C. 2151.414(D)(1)(c) best-interest factor also favors an award of permanent custody based upon the 22-month pendency of this case where K.P. was in the Agency's temporary custody and рlaced with his foster family for the last 15 months of that time. Finally, the R.C. 2151.414(D)(1)(d) best-interest factor favors an award of permanent custody because there is no other viable dispositional alternative providing permanency to K.P. The foregoing best-interest factors predominate in this case and support the award of permanent custody.
Conclusion
{¶ 47} In light of the foregoing, we find that the juvenile court's decision was supported by clear and convincing evidence and was not against the manifest weight of the evidence. Therefore, the juvenile court did not err by granting permanent custody of K.P. to the Agency.
{¶ 48} Mother's second assignment of error is overruled. Judgment affirmed.
S. POWELL, J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting. While I respect and understand the foregoing opinion of my colleagues, I
5102. The majority misperceives that they have the discretion to decide when a juvenile court's failure to consider a best interest factor is contrary to the statute. Majority opinion at ¶ 38-40 (majority declines to "exercise [their] discretion"). Ironically, the majority addresses the factor which the juvenile court failed to consider and dеtermines, for the first time on appeal, that it is "futile" to consider the factor either because of the child's age or because Mother has waived or forfeited consideration of the factor.
{¶ 54} The Ohio Supreme Court recently discussed in detail the statutory framework of R.C. 2151.414(D)(1)(a)-(e). In the majority opinion (with a dissent not much different from what the majority "strongly encouraged"), the supreme court articulated that "all" of the statutory best interest factors must be considered when considering an award of permanent custody. In re A.M. at ¶ 42. The requirement that all the factors are reflected in the record as being considered is not discretionary. The supreme court noted that a detailed written discussion or factual findings
were not statutorily required; however, the record nevertheless must demonstrate the juvenile court did, in fact, consider, or reflect upon, each statutory factor. Id . at ¶ 31. The supreme court noted a preference for at least some discussion of each factor in order to aid appellate review and, importantly, solidify public сonfidence in the judicial process involving children and "this most important area of parental rights." Id . at ¶ 32, 42. Ohio's highest court determined that to "consider" the factors means "to reflect
on: think about with a degree of care or caution."
Id
. at ¶ 25. The majority opinion "strongly
encouraged" "the best practice" of specifically addressing each factor.
Id
. at ¶ 32. Even
In
re A.M.
's dissent would appear to have no disagreement since it advocates that the juvenile
court provide "an adequate basis" as to the application of each factor.
Id
. at ¶ 49. While
the juvenile court's decision contained "generic language not tailored to the facts of [the]
case," the supreme court ultimately found the juvenile court's decision sufficiently reflected
upon the factors such that it "obviously" considered all the factors.
Id
. at ¶ 34-35.
See also In re K.P.
, 8th Dist. Cuyahoga No. 107577,
Consideration Of Factors In The Record In weighing the best interest of a child in permanent custody proceedings,
R.C. 2151.414(D)(1)(b) requires consideration of "[t]he wishes of the child, as expressed
directly by the child or through the child's guardian ad litem, with due regard for maturity of
the child." There must be clear and convincing evidence in the record that there was an
investigation into the wishes of the child in order to support a determination that the juvenile
court "considered" the wishes of the child.
In re H.M.
, 3rd Dist. Logan Nos. 8-13-11 thru 8-
13-13,
parents in his "toddler language," evidencing his close relationship with them. Despite his
ability to communicate "well" in his "toddler language," there is no mention from the Court
Appointed Special Advocate ("CASA") as to K.P.'s desires or communications with, or
regarding, Mother. Nor does the record reveal what communication efforts K.P.'s advocate
attemрted with K.P. nor what K.P.'s communication capabilities are. The failure to address
Ohio-5513, ¶ 56 ("The court
must
consider
all
of the elements in R.C. 2151.4141(D) as well
as other relevant factors") (Emphasis added.);
In re C.F.
,
determine reversal is "futile" because statutory compliance is unneсessary in their opinion
and not all best interest factors must be considered by the juvenile court despite the clear
and unambiguous language in the statute. Above at ¶ 39.
[6]
The majority opinion gives no
guidance as to how far our court might go in deciding when, and under what circumstances,
a best interest factor need not be considered.
See In re Swisher
,
6. The majority opinion is in conflict with other appellate districts, which have held that a trial court commits
reversible error when it fails to consider one of the mandatory best-interest factors of R.C. 2151.414(D)(1).
See, e.g., In re B/K Children
, 1st Dist. Hamilton No. C-190269,
re D.W.
, 12th Dist. Clinton Nos. CA2018-10-018 and CA2018-10-019,
imposed on trial courts; rather, "it is incumbent on the trial court to follow the plain meaning
of the statute."
See State v. Banks
, 8th Dist. Cuyahoga Nos. 102360 thru 102363, 2015-
Ohio-5413, ¶ 30. Here, "[Mother] did not need to bring the matter to the attention of the
[juvenile] court as the [juvenile] court's attentiоn is directed to the matter by [statute]," or in
other words, by operation of law.
Collins
,
Weighing The Evidence
{¶ 65} In evaluating the best interest factors, Mother argues her initial unavailability of housing, her efforts toward substance abuse recovery, her temporary vehicle inoperability, and her incarceration for an offense which occurred shortly after K.P.'s removal, should not weigh against her. Mother proposes that during her pеriods of difficulty there were placements available which did not necessitate the continued placement with the foster family. Mother emphasizes her participation in the case plan was positive despite her struggles and concludes the juvenile court lost its way in determining permanent custody to the Agency was in K.P.'s best interest. Upon reviewing the record, I agree. K.P. was taken away at birth because of Mother's use of illegal substances during her pregnancy. [8] The Agency and CASA emphasizes that K.P. is bonded to the foster parents, which is a surprise to no one. An infant baby boy growing into a 2-year-old is naturally going to be bonded to the people nurturing him for two years – feeding him, playing with him, teaching him to walk, reading to him, bathing him, teaching him to talk, and putting him to bed. While a consequence of her own past failure, Mother was reduced to a distant "visitor" from the beginning. [9] Maternal Grandmother was proposed as a family placement, which would
have permitted frequent, in depth, contact with Mother, but this was rejected by the Agency demonstrate all the factors were considered . See In re A.M . While my conclusion in Collins was opposite my colleague, the reasoning he offered therein remains poignant.
8. Regretfully, according to 2017 data from the Heathcare Cost and Utilization Project, 80 newborn babies are diagnosed with Neonatal Abstinence Syndrome (NAS), a type of opiate withdrawal, in the United States every day. This equates to approximately one baby being diagnosed with NAS every 19 minutes. Center for Disease Control and Prevention, Pregnancy Data and Statistics (July 16, 2021), https://www.cdc.gov/pregnancy/opioids/data.html (accessed Apr. 13, 2022).
9. In fact, Mother complained that her biweekly visits with K.P. were too infrequent. Her time for bonding was too short.
due to undocumented "suspicions" Maternal Grandmother might use drugs. Yet the record contains no evidence, clear and convincing or otherwise, that such "suspicions" are founded in established facts. Home investigation for placement purposes is the Agency's responsibility and usually would take place routinely – but not here. Once Maternal Grandmother was rejected, a family friend was suggested for
placement. The Agency summarily gave no consideration to the family friend because he had never met K.P. аnd K.P. was already living with the foster parents. Admittedly, at the time Mother suggested placement with the family friend, the Agency was already seeking permanent custody of K.P. with plans for an adoption. Nothing in the record reveals, clear and convincing or otherwise, that placement with the family friend was ill suited or otherwise required disqualification. K.P.'s advocate, at least as reflected from the advocate's report and the record in general, had no contact with Maternal Grandmother or the family friend. Yet a CASA volunteer is to fulfill the responsibilities and duties of a guardian ad litem. R.C. 2151.281(H); Sup.R. 48.03. A CASA volunteer may be trained by, or in association with, the Agency, yet the advocate's duties are to be exercised independently. R.C. 2151.281(J)(2); Sup.R. 48.03(A)(2) The juvenile court found the reason for the initial removal was not remedied
by Mother. Such is an impossibility. Mother's lack of protecting her unborn baby during pregnancy can never be remedied. The poor judgment Mother exercised during pregnancy should forever be upon her conscience, but while Mother cannot change the past, she has shown prоgress toward correcting the future. Mother's commitment, despite difficulties, displays a significant effort to remedy her past lifestyle. The record documents Mother has made "significant progress" following through with the case plan. Mother's isolated fall with drug use (which she denies) is no different than a recovering alcoholic. Some who slip up, get up. If every graduate of Drug Court was terminated for a slipup, most would never reach graduation.
{¶ 70}
Mother's resiliency in participating in treatment signals growth from past
immaturity in order to provide a safe and stable family environment for K.P. Mother's
responses are unlike those in
In re J.P.
, 8th Dist. Cuyahoga No. 107849,
simultaneously acknowledging she had made "significant progress." The Agency also referenced Mother's "regression" for marijuana while acknowledging it did not know Mother had a medical marijuana card. The inconsistencies and uncertainties threaded throughout the record reveal "sufficient conflict." Nevertheless, it is the best interest of K.P. that is being considered, and the
little one's need for stability remains paramount. A parent's constitutionally protected interest in raising his or her child is not absolute and is always subject to the ultimate welfare of the child. And indeed Mother, like most parents, is not mistake free. But the record is not clear and convincing in establishing that a stable, safe environment is incapable of being and be raised by, his natural mother, was established by clear and convincing еvidence. The evidence was not clear and convincing in establishing Mother cannot provide a stable environment in which to raise K.P. I would reverse because the grant of permanent custody in these circumstances was contrary to the manifest weight of the evidence. interest factors to preserve the issue for appeal.
Notes
[2] However, preserving the issue for appeal
does not guarantee review unless the issue is assigned as error and argued on appeal.
Simply because a trial court has a mandatory duty to do something does not relieve a party
from raising on appeal the trial court's failure to observe that duty as required by the
appellate rules.
Finally, the dissent cites
In re Swisher
, 10th Dist. Franklin Nos. 02AP-1408
and 02AP-1409,
perceive the weight of the evidence differently than they ultimately determine.
[3] Beyond
disagreeing in how the evidence is weighed, my efforts are aimed at examining the
majority's rationale and reasoning which, in my opinion, significantly diverges from what the
law requires.
{¶ 51}
Mother argues there was not clear and convincing evidence contained in the
record supporting the award of permanent custody. The argument challenges the juvenile
court's determination as being against the manifest weight of the evidence regarding K.P's
best interest. Mother believes her constitutional parental right to raise her child was unfairly
terminated and that it would be in K.P.'s best interest to be raised by Mother. Appellate
review requires the juvenile court's consideration of the statutory best interest factors.
An appellate court reviewing the record will reverse the granting of permanent
custody if there is sufficient conflict in the evidence.
In re R.K.
, 12th Dist. Warren Nos.
CA2021-03-027 and CA2021-03-028,
this best interest factor is reversible error.
[4]
See, e.g.
,
In re E.H.
, 12th Dist. Preble No.
CA2021-11-012,
produced by Mother.
[10] While the Agency approves of adoption by the foster parents because it is a better home – there is always potentially a better home. Mother's incarceration for a misdeed committed shortly after K.P.'s birth and prior to Mother's case plan successes should not be used to diminish the positive changes she has made and seeks to make in the future. Mother "admitted" her behavior that led to removal, has since then participated in parenting classes, completed treatment at Sojourner, Full Circle, and the Clermont Recovery Center, and sought treatment after an isolated relapse in March 2020. Mother participated in pursuing a GED and has completed her incarceration that stemmed from behavior shortly after K.P.'s removal. Mother evidently has a support system in place as well – she lived with Maternal Grandmother prior to her incarceration and both parents testified on her behalf at the hearing. Conclusion The evidence is not clear and convincing in establishing that it is in K.P.'s best interest to be separated from his family via permanent custody and a planned adoption. Mother is correct in suggesting the statutes permitting temporary custody, case plans, supervision, extensions, and the like, are aimed at achieving the reunification of families, not at dividing them. I have immense empathy, and admiration, for the foster parents wanting to adopt a baby, yet K.P. is Mother's child. It is a mistake to continuously focus on past misdeeds with a blind eye to the accumulating corrective efforts toward building a positive, stable future. Although I understand the foster parents are eager to adopt a baby, I see no reason that time was of the essence in this particular case, especially with a child so young. Neither Mother's inability to raise her own child nor K.P.'s inability to bond with, 10. If removed at age two from the foster parents, disruption to K.P's environment would be little and not lasting at such a young age. A little more assistance in facilitating Mother in correcting past frailties would have gone a long way in serving the fuller, more noble, purpose of reunification.