IN RE: L.D.
APPEAL NO. C-190470
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 6, 2019
2019-Ohio-4990
TRIAL NO. F17-914z
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 6, 2019
Anzelmo Law and James A. Anzelmo, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jonathan Halvonik, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services.
{¶1} Mother has appealed from the trial court‘s entry granting permanent custody of her child L.D. to the Hamilton County Department of Job and Family Services (“JFS“). In one assignment of error, she argues that JFS failed to establish by clear and convincing evidence that it should be awarded permanent custody of L.D. We overrule mother‘s assignment of error and affirm the judgment of the juvenile court.
Procedural Background
{¶2} JFS was granted interim custody of L.D. on March 28, 2017, after mother‘s boyfriend overdosed in the home and concerns arose about the safety of L.D. Mother admitted to using methamphetamine, opiates, and marijuana at the time. L.D. also tested positive for amphetamine and phentermine at birth. On June 29, 2017, L.D. was adjudicated “abused and dependent,” and JFS was granted temporary custody. On December 4, 2017, JFS filed a motion to award custody to mother‘s sister, but later withdrew the motion. On January 22, 2019, JFS moved for permanent custody. After a hearing, the magistrate ordered that mother‘s parental rights be terminated with respect to L.D., and that L.D. be placed in the permanent custody of JFS. Mother filed objections to the magistrate‘s decision. After a hearing, the juvenile court overruled mother‘s objections and adopted the decision of the magistrate.
{¶3} Mother‘s sole assignment of error is that the state failed to meet its burden of establishing by clear and convincing evidence that permanent custody of L.D. should be awarded to JFS.
{¶4} In a case involving the termination of parental rights, an appellate court reviews the record and determines whether the juvenile court‘s decision was supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton No. C-110363, 2011-Ohio-4912, ¶ 46. Clear and convincing evidence is evidence sufficient to “produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” Id.; Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Where some competent and credible evidence supports the court‘s decision, this court will not substitute its judgment for that of the juvenile court. In re W.W. at ¶ 46.
{¶5} “Although the termination of the rights of a natural parent should be an alternative of ‘last resort,’ such an extreme disposition is nevertheless expressly sanctioned [under
{¶6} When a child has been previously adjudicated dependent and temporary custody has been granted to JFS pursuant to
{¶7} The first prong can be satisfied by any one of five conditions.
{¶8} In the present case, the 12-in-22 clock started on May 27, 2017, which is 60 days after L.D. was removed from the home. The clock stopped on January 22, 2019, when JFS filed the motion for permanent custody. L.D. was in the custody of JFS during this entire time period; therefore, the 12-in-22 condition was met.
Second Prong—R.C. 2151.414(D)(1)
{¶9} Under the second prong, the trial court must determine whether granting permanent custody to the agency is in the best interest of the child. See
{¶10} No single factor is given greater weight or heightened significance. In re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 35, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57. The magistrate found that all of the factors in
{¶11} The JFS caseworker, Rachel Kennedy, testified that L.D. is bonded with the foster family, the foster family provides for L.D., he is emotionally well-adjusted to the home, and the family wants to adopt L.D. There was clear and convincing evidence to support the magistrate‘s finding that
{¶12} In support of her finding that
{¶13} L.D.‘s attorney and his GAL both agreed with JFS that permanent custody should be given to the agency. However, there was no testimony regarding L.D.‘s wishes. Since he was only three and half years old at the time of the permanent-custody hearing, his wishes would not be given much weight anyway. Nevertheless, there is not clear and convincing evidence to support the magistrate‘s finding that L.D. wished to be with the foster family over his mother.
{¶15}
{¶16} A legally secure permanent placement “is more than a house with four walls. Rather, it generally encompasses a stable environment where a child will live in safety with one or more dependable adults who will provide for the child‘s needs.” In re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 42, quoting Matter of K.W., 2018-Ohio-1933, 111 N.E.3d 368, ¶ 87 (4th Dist.2018). Incarceration during the pendency of the case, persistent drug use, failure to complete case-plan services, and the lack of an appropriate family member to take custody of the child all indicate a parent‘s inability to provide a legally secure permanent placement. See In re A.M.Z., 1st Dist. Hamilton Nos. C-190292, C-190317 and C-190326, 2019-Ohio-3499, ¶ 9.
{¶18} Kennedy testified that mother completed a diagnostic assessment for substance abuse and was referred to Talbert House for counseling. Mother did not start counseling until January 2019, the same month JFS moved for permanent custody. Mother was also ordered to complete toxicology screens. Kennedy referred mother for three toxicology screens, one in September 2018, and two in February 2019. Mother did not attend any of the screens. Also, other caseworkers referred mother for additional toxicology screens in 2018, which she did not attend. Moreover, mother testified that she had used methamphetamine as recently as January 2019.
{¶19} Mother testified that she completed ten out of the 14 classes in the Confidence to Change course, which targets substance abuse. She testified that she stopped going to the classes because JFS would not accept the assessments from Confidence to Change due to the fact that the course was based in a different county. Kennedy‘s testimony refuted this claim. She testified that she told mother to send JFS documentation of her assessments from the Confidence to Change program, but mother never did so. Also, mother admitted on cross-examination that one of the reasons she stopped going to the classes was because she thought her sister was going to get custody of L.D.
{¶21} Mother did complete some of her case-plan requirements. She was ordered to maintain stable housing and employment. Kennedy testified that mother‘s home was “appropriate,” and that mother has maintained employment throughout the case. Mother was ordered to complete parenting education classes. Dawn Merritt worked with mother in her parenting education course, and testified that mother successfully completed the course in February 2019.
{¶22} Although two relatives filed motions with the court requesting permanent custody of L.D., both motions were dismissed when the relatives did not appear in court. Additionally, father has not complied with any of the juvenile court‘s orders, and has not visited L.D. at all during the pendency of the case.
{¶23} Mother made some progress on her case plan, and had positive visits with L.D., but that is not enough to overcome her continued drug use and failure to complete any sort of drug treatment. Her incarceration also cuts against her ability to provide a secure home. There is clear and convincing evidence to support the magistrate‘s finding that L.D. is in need of a legally secure permanent placement, which cannot be achieved without granting permanent custody to JFS.
{¶25}
the parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times * * *.
{¶26} The magistrate found (E)(9) satisfied, stating that mother was offered drug treatment, multiple toxicology screens, and a chemical-dependency assessment, but that she failed to follow through with any drug-related services and admitted to using methamphetamine in January 2019. L.D. was born with drugs in his system, which demonstrates one incident of being placed at substantial risk of harm due to mother‘s drug use. See In re J.D., 7th Dist. Mahoning No. 14 MA 33, 2014-Ohio-5726, ¶ 50. Also, mother‘s boyfriend overdosed in her home. This incident initiated the investigation by JFS, which led to L.D. being removed from the home.
{¶27} There is no doubt that mother failed to complete any sort of drug-treatment program. She completed part of the Confidence to Change course, but dropped out. Mother failed to take any substantial steps to remedy her drug problem, and even admitted to using methamphetamine as recently as January 2019. However, there was no testimony as to whether mother enrolled and dropped out of drug treatment a second time, or refused to go back into treatment. See In re N.P., 3d Dist. Marion Nos. 9-15-22 and 9-15-23, 2015-Ohio-4912, ¶ 17 (mother began
{¶28} Without evidence that mother rejected or refused to participate in treatment two or more times, there is not clear and convincing evidence to support the magistrate‘s finding that
{¶29} In order for
{¶30} Although not a part of the enumerated factors of the best-interest analysis, the magistrate found that
{¶31} The magistrate‘s findings regarding the conditions in
Conclusion
{¶32} Both prongs of the
Judgment affirmed.
MOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.