IN RE: L.G. AND K.G., DEPENDENT CHILDREN.
Case No. 20 BE 0006
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY
December 4, 2020
[Cite as In re L.G., 2020-Ohio-6831.]
BEFORE: Cаrol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
Civil Appeal from the Court of Common Pleas, Juvenile Division of Belmont County, Ohio Case No. 18 JC 613, 18 JC 614. JUDGMENT: Affirmed.
Atty. Daniel P. Fry, Belmont County Prosecutor, Atty. Rhonda L. Greenwood, Assistant Prosecutor, 147 A West Main Street, St. Clairsville, Ohio 43950, for Appellee.
{¶1} Appellant (the mother) appeals the decision of the Belmont County Common Pleas Court, Juvenile Division, which granted permanent custody of two children to Appellee Belmont County Department of Job and Family Services (the agency). The mother contends the court erred in finding there was clear and convincing evidence showing the children could not be placed with her within a reasonable time or should not be placed with her. The mother also argues the court erred in finding there was clear and convincing evidence showing a grant of permanent custody was in the children’s best interests. For the following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On November 3, 2018, two Belmont County children were placed in emergency shelter care after their parents were arrested in Pennsylvania. Child A had recently turned five years old, and Child B was just under two years old. Upon the agency’s November 5, 2018 dependency complaint, the court granted emergency shelter care to the agency. The children were placed in foster care with foster parents who wished to adopt them.
{¶3} At the January 30, 2019 adjudicatory hearing, the court found thе children dependent. The court granted temporary custody to the agency after finding reasonable efforts were made to eliminate the need for removal from the children’s home. (1/31/19 J.E.). The case plan initially had a reunification goal and required the mother to obtain safe housing and employment, enroll in certain parenting classes, receive an evaluation at a named psychological provider, comply with any resulting recommendations such as counseling, and cooperate with any services provided to the children. The case plan, however, noted the mother was in jail and was prohibited by a criminal court order from contacting the children if released on bail. (She was not releаsed on bail and remained in jail throughout the criminal proceedings.)
{¶4} On May 20, 2019, the father pled guilty to two second-degree felony charges of pandering sexually oriented matter involving a minor in violation of
{¶5} On September 17, 2019, the agency filed a motion for permanent custody on the grounds the children cannot be placed with either parent within a reasonable time or should not be placed with either parent, citing
{¶6} A detective testified about receiving a report from Facebook that child pornography was being shared on a related website. This led the police on a hunt for John Garwon who was living with the mother, the father, and the children at their residence in Belmont County. On October 11, 2018, the police executed a search warrant and seized evidence at that residence, while the children and their father were present. (Tr. 30, 34).
{¶7} As the police waited for Garwon to get off work, they began reviewing the seized computers and realized the children’s father was also involved in committing child pornography offenses. (Tr. 31). The police returned to the residence 20 to 30 minutes after their initial visit, but the father had fled with the children.
{¶8} When the police attempted to locate the mother, they learned she abruptly left the group home where she worked (leaving clients unsupervised) after the father appeared there. (Tr. 32-33, 38). The detective called and texted her cell phone. The last time her phone communicated with a cell tower was in Washington County, Pennsylvania; it was then powered off. (Tr. 34). The news outlets began issuing alerts that day. (Tr. 39).
{¶9} Three weeks later, using the mother’s bank records, the United States Marshals Service located the mother, the father, and the children at a hotel in Washington County, Pennsylvania. The room was rented in the mother’s name. (Tr. 36). During an interview, the mother told the detective there was a video camera in the hotel room which contained a video of Garwon sexually assaulting her son. (Tr. 43).
{¶10} The agency’s intake caseworker testified the children were taken to the hospital for examinations. Child B had an orange hue which was eventually attributed to eating too much orange baby food; this testimony was confirmed by the children’s physician. (Tr. 18, 51). This intake caseworker met with the mother twice in the county
{¶11} The mother told this caseworker she watched the video of her son being sexually assaulted. She initially claimed the father showed her the video on the day of their arrest before the Marshals arrived. (Tr. 58). She said the father had cameras set up in their house because he was suspicious of Garwon. She then admitted she knew the video was filmed for about a year. When asked why they continued to let Garwon live in the home, she said they needed Garwon’s rent money. (Tr. 59-60, 65).
{¶12} The mother seemed nervous and suggested she had a further piece of information to share. She eventually told the caseworker she blacked out a year ago after the father gave her a pill while she was drinking and smoking marijuana. She said she was afraid something may have happened while she was in this altered state. The caseworker asked if she meant that she may be on video doing something to the children, and the mother responded by saying she was not sure аnd she was afraid. (Tr. 41-41). The mother reported: she was not afraid of the father; she did not feel threatened when she fled with him; and she financially supported the family by working while the father stayed home with the children. (Tr. 63-64).
{¶13} The caseworker assigned after the intake caseworker’s function was complete in January 2019 met the mother after a court hearing and did not thereafter visit the mother in jail or in prison. She said there was no point to monitor her case plan progress as the specific items on the case plan could not be completed while incarcerated. (Tr. 115). It was noted that the agency was approaching the one year temporary custody deadline when the permanent custody motion was filed and the mother had to be making substantial progress on the case plan in order for the agency to seek a six-month extension of temporary custody. (Tr. 116, 139). The caseworker indicated the jail had no classes and did not know what classes the prison offered. (Tr. 115, 124). The caseworker visited the foster home every month. (Tr. 120). She said the foster parents had custody of the children since their second night in agency custody and wished to adopt both children. (Tr. 119).
{¶14} The guardian ad litem filed a report and testified at trial. She exchanged letters with the mother and spoke to her on the phone. The guardian ad litem opined
{¶15} The guardian ad litem testified the mother knew the father was a sex offender but the mother rationalized that his prior conviction resulted from a misunderstanding. (Tr. 131). As for his most recent sex offenses, the mother said she had no knowledge of what the father and Garwon were doing until she saw the video of her son. (Tr. 133). The mother claimed fаther was very controlling of her. (Tr. 137). The guardian ad litem believed the caseworker should have kept the mother informed about the children but did not believe there would have been a reason to visit the mother in prison. (Tr. 138).
{¶16} The children’s physician testified she first saw the children on June 5, 2018. Child A was reported by the father to be hyperactive and acted in such manner in the office; he also seemed socially delayed. (Tr. 9-10). Child B was delayed in development and had poor muscle tone; she could barely sit up and weighed only 19 pounds when she was more than 18 months old. (Tr. 8). Referrals for therapy were provided to the parents.
{¶17} Two weeks later, the father reported Child B’s refusal to eat or drink, and the physician requested an immediate appointment or an emergency room visit due to dehydration concerns. The child was not seen until July 16, by which point she had lost a significant amount of weight. (Tr. 10). The child was directly admitted to the hospital by the physician after the parents again failed to bring the child to the emergency room as requested. (Tr. 13). The child was evaluated and found to have severe constipation. A test showed the child had a chromosomal problem which could have contributed to poor muscle tone and delayed development. (Tr. 16).
{¶18} The next time the physician saw the children was soon after they were placed in foster care in November 2018. Child B could not pull herself to stand at nearly two years old. A month after that, the child’s orange hue was gone, she was еating solid
{¶19} At a February 2019 visit, Child A seemed less hyperactive than at prior visits and had improved social development. (Tr. 19). The physician emphasized the rapid improvement in both children after leaving their parents’ care and expressed a regression concern for the children if they were placed into a home with a barrier to ensuring the children attended all appointments. (Tr. 27-28).
{¶20} The children’s counselor testified the children have progressed and need continued therapy. (Tr. 100-102). When she first saw Child A at age five, it did not appear he knew his last name. (Tr. 106). He refused to speak about any history prior to life with the foster family. (Tr. 104). An occupational therapy assistant testified she worked with each child once per week. (Tr. 73). Child B began therapy in July 2018, when the father brought the child upon referral for eating and motor issues. Child A started occupational therapy to work on fine motor and food/texture issues. (Tr. 76). Both children were expected to continue with these sessions. (Tr. 75-76).
{¶21} A physical therapist began treating Child B for gross motor delay in November 2018. (Tr. 81, 83). She testified the child was making great progress but needed to continue her therapy. (Tr. 82-85). The foster mother regularly completed the exercises sent home with the child. (Tr. 85). The speech therapist for Child B met the child in October 2018 and said she seemed like a different child weeks later when she arrived with the foster mother. (Tr. 89-90). The foster mother ensured the child attended her weekly speech therapy. (Tr. 90). An early intervention specialist testified to her weekly visits with Child B in the foster home until the child turned three. She witnessed great social and motor progress and said the foster mother followed through with all requests. (Tr. 95).
{¶22} After the agency rested its case, the mother testified she pled guilty to an amended attempt charge in order to avoid a higher sentence for obstruction of justice. (Tr. 143). She said she worked 60 to 70 hours per week because the father said they needed money and he could not obtain a job due to his felony conviction. (Tr. 144-145).
{¶23} She said the father was controlling. She confirmed leaving her workplace when the father arrived and said she had to leave for an emergency. (Tr. 145). She claimed she was unaware of the news reports on her family while staying at the hotel for three weeks. (Tr. 152). The mother noted she was lying on the bed when the Marshals knocked and the Marshals broke open the door when they refused to answer the knock. (Tr. 146, 152). She said she was afraid of the father at that particular time. (Tr. 153).
{¶24} The mother attempted to explain away what she told the intake caseworker. The mother testified the father showed her the video of their son only “an hour or so before” the Marshals arrived at the hotel. (Tr. 146). She said she asked the father why he failed to show her the video earlier and he responded by saying they needed Garwon’s rent money. (Tr. 147). She knew the father set up cameras in their house but claimed she thought he used them to record any potential intruder. She then testified the father suspected Garwon acted inappropriately with the children. When asked why she did not worry about leaving her children there while she worked all day, she said the father told her to go to work. (Tr. 154).
{¶25} In the more than six months she had been in prison, she completed web design classes. She said she was on a waiting list for a family class and a money management class and was waiting for a response to her request for a mentаl evaluation so she could start counseling. (Tr. 147-148). She claimed she did not write to the children from prison because she believed she was not permitted to do so. (Tr. 148). She anticipated being released from prison in April 2020 and planned to get a job and a residence and to complete her case plan. (Tr. 149).
{¶26} After trial, the court allowed written summations to be filed. The mother’s summation set forth an argument on whether the agency used reasonable efforts to prevent the continued removal of the children from their home, citing
{¶27} The agency replied by noting there was no point to meet if the case plan was not being worked on due to incarceration and cited
{¶28} On February 19, 2020, the juvenile court granted permanent custody to the agency in a judgment containing findings of fact and conclusions of law. In response to the mother’s argument on the adequacy of the agency’s efforts, the court criticized the second caseworker but found the agency’s efforts were reasonable under the circumstances. In any event, the court pointed to its prior finding of reasonable efforts to prevent removal (in the temporary custody order) and noted
{¶30} As to the mother, the court found the children cannot be placed with her within a reasonable time nor should be so placed with her because her conviction was essentially an offense she committed against the children under
{¶31} Soon after the mother’s timely notice of appeal, the pandemic tolling rule was issued by the Ohio Supreme Court. Appellant thereafter received a briefing extension, as did the agency. The briefing schedule closed on November 6, 2020, when the time for filing a reply brief expired. At that time, the case was submitted to the court for the issuance of a judgment within 30 days. See App.R. 11.2(C)(4)-(5).
ASSIGNMENT OF ERROR ONE: GROUNDS FOR PERMANENT CUSTODY
{¶32} The mother sets forth two assignments of error on appeal. Her first assignment of error alleges:
“THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE BELMONT COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES [AS THE AGENCY] FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶33} As the mother emphasizes, a parent’s right to raise his or her child is a fundamental right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However,
{¶34} An appellate court reviews the juvenile court‘s decision on a motion for permanent custody under an abuse of discretion standard of review. Id. at ¶ 48. An abuse of discretion occurs if the court‘s decision is unreasonable, arbitrary or unconscionable; it involves more than an error of judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). The trial court is best able to judge the credibility of the witnesses and to weigh the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674 N.E.2d 1159 (1997) (the court does not abuse its discretion if there was competent, credible evidence to support the decision).
{¶35} Clear and convincing evidence is that amount of proof which can “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be еstablished.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. The standard “does not mean clear and unequivocal.” Cross, 161 Ohio St. at 477. The clear and convincing standard requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard applicable to criminal cases. Id.
{¶36} Where a child is not orphaned or abandoned and has not been in temporary custody for 12 months of a 22-month period at the time the permanent custody motion is filed, the court can grant permanent custody to the agency if it finds by clear and convincing evidence: (1) the child cannot be placed with either parent within a reasonable time or should not be placed with the parents and (2) it is in the child’s best interеst to grant permanent custody to the agency.
{¶37} In determining 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.
{¶38} For instance, as the juvenile court pointed out with regard to the father, division (E)(6) applied as the father was convicted of a statute specified in that division and the child or the child’s sibling was a victim. See
{¶39} Rather, the juvenile court agreed with the agency’s arguments on the applicability of divisions (E)(5) and (E)(16). Pursuant to division (E)(5), thе court “shall find the child cannot be placed with either parent within a reasonable time or should not be placed with either parent” if the court finds by clear and convincing evidence: “(5) The parent is incarcerated for an offense committed against the child or a sibling of the child.”
{¶40} The mother states that although she was incarcerated for attempted obstruction of justice for her acts while the police were attempting to arrest the father for pandering child pornography, division (E)(5) did not apply as she was not the party who committed a sex offense against the children. Essentially, she argues she did not commit the offense of attempting to obstruct justice “against” the children when she fled with them and their father and rented a hotel room in which to hide while law enforcement searched for the father for pandering child pornography and searched for the children to ensure their safety. (While in hiding, the father possessed a video recorder containing a video showing Garwon sexually assaulting her son, and he showed the video to the mother.)
{¶41} After the father pled to two second-degree felonies, the mother pled guilty to attempted obstruction of justice in violation of
{¶42} The mother’s original offense would have been a third-degree felony because the crime committed by the person aided was a second-degree felony and the mother knew or had reason to believe the crime committed by the person aided was such an offense.
{¶43} The agency attached the parents’ sentencing entries to the motion for permanent custody, and the court’s judgment memorialized the parties’ agreement allowing the court to take notice of the convictions. The mother’s sentencing entry said prison was necessary as the harm to the victims was so great. The juvenile court found the father’s offenses were committed against a child or sibling, and this is not contested. The mother’s offense was based on attempting to assist him from being apprehended for his offenses for which one of the subject children (who was the sibling of the other child) was a victim. (And, the children wеre with them while she was attempting this.)
{¶44} In any event, the juvenile court found the entirety of the situation called for the application of division (E)(16), which can be used when the court’s decision is based on “[a]ny other factor the court considers relevant.” See
{¶45} The mother argues the placement of the children with her within a reasonable time was not out of reach. She notes her anticipated release date was three months after the hearing (and a month later if she did not get credit for good time). She suggests she could comрlete her case plan within six months of her release and characterizes this additional time of nine or ten months as reasonable. Yet, the children had already been out of her care for over a year. It was within the court’s discretion to
{¶46} Regardless, the test asks whether the children cannot be placed with the mother within a reasonable time or should not be placed with her (without regard to the timing of any future consideration of placement). That is, the latter option does not refer to a reasonable time in the future but essentially statеs: regardless of what she may accomplish within a reasonable time, the children should not be placed with her due to an event or the entirety of the situation. See
{¶47} The mother entered a relationship with a known sex offender who previously committed a felony offense against a minor. She then had two children with him. She left her children home with him as the primary caretaker while she was the breadwinner. She let another man (Garwon) move into the residence and stay with her children alone at times. This man eventually sexually assaulted her four-year-old son. The mother knew there were cameras set up inside her house. There was child pornography on computers in her house. She saw a video showing Garwon sexually assaulting her son. The mother made reference to needing the rent money Garwon paid to live at her house, while also claiming she worked 60 to 70 hours per week. The father possessed the video for a year. The intake caseworker received the impression from the mother’s changing statements that she knew about the video long before she claimed. This witness also relayed the mother’s extremely disturbing statement, wherein she fearfully pondered whether there may exist an inappropriate video featuring herself with the children, which may have been filmed when she was under the influence of some unknown pill.
{¶48} A reasonable trier of fact could easily conclude the mother’s testimony claiming she only learned of the video an hour before the Marshals arrived at the hotel (where the family had been hiding for three weeks) was not credible. Credibility is a question for the trier of fact who occupies the best position from which to judge demeanor, voice inflection, gestures, eye movements, nervousness, and other signs of untruthfulness as a witness is testifying. Davis, 77 Ohio St.3d at 418-419 (these indicators do not translate well onto the written page).
{¶49} Furthermore, with the police at her residence seeking to arrest the father and to protect the children, the mother abruptly left her workplace because the father said it was an emergency. She then drove with him to a location in another state which was more than an hour away from their residence. Witnesses saw the bulletin on the news asking for assistance in loсating the family. The police called and texted the mother. She turned her phone off, rented a hotel room, and supported the family from her bank account while in hiding. The mother lacked credibility when she testified she did not know she was hiding from law enforcement officers for three weeks, who were seeking to arrest the father for child sex offenses and who wanted to ensure the children’s safety.
{¶50} Then, when the Marshals knocked on her hotel room door, the mother did not let them in, resulting in them breaking open the hotel door in the children’s presence. Additionally, she knew her youngest child had medical issues and was missing important services while they were in hiding. Apparently during the hotel stay, this child, who was only weeks from her second birthday, was being fed mainly orange baby food, so much that her skin turned an orange hue. The child could not even bring herself to a standing position.
{¶51} However, this child quickly learned new skills after removal from the parents. Both children had issues which began to rapidly diminish after the foster family intervened in their lives, provided them a nurturing home, and ensured they received regular therapy of various types. The children continue to need a committed guardian who can ensure the children attend their appointments and practice their skills at home. There is no indication the mother could properly execute this role for children with these needs. The father was the children’s primary caretaker during their unsatisfactory early upbringing, and the mother failed to protect the childrеn in many ways.
{¶52} In sum, the trial court reasonably found the facts surrounding the children’s lives, the fleeing, and the mother’s conviction and imprisonment combined to establish a relevant factor under
ASSIGNMENT OF ERROR TWO: BEST INTERESTS
{¶53} The mother’s second assignment of error, corresponding to the second part of the permanent custody test, provides:
“THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE BELMONT COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES [AS THE AGENCY] FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILDREN TO GRANT PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶54} Upon finding a child cannot be placed with either parent within a reasonable time or should not be placed with a parent, the court cannot grant permanent custody to the agency unless it also finds by clear and convincing evidence that it is in the child’s best interest.
{¶55} This is a non-exhaustive list of factors the court must consider. In re A.M., __ Ohio St.3d __, 2020-Ohio-5102, __ N.E.3d __, ¶ 19. The court is encouraged but not required to expressly discuss each of these best interest factors. Id. at ¶ 31-32. Here, the juvenile court discussed the relevant factors in its judgment granting permanent custody to the agency.
{¶56} As for the significant relationships in the children’s lives, the father was considered to be the children’s primary caretaker prior to the arrest of the parents. The mother was viewed as someone who was unable to protect her children. She had no contact with her children after her arrest. Therе was a no contact order when her criminal case was pending, and she claimed she thought she was still prohibited from sending
{¶57} Although the children had not yet been in the agency’s temporary custody for 12 months when the September 17, 2019 motion for permanent custody was filed (and this ground was not used under the first prong of the test), the children had been out of the mother’s care for almоst 14 months by the time of the December 23, 2019 hearing. They were with the same foster parents the entire time (after the first night). See
{¶58} The children were still young: Child A was six years old at the time of the hearing, and Child B was three years old. At the time of removal from the parents’ care, Child A was five years old, and Child B was under two years old. They did not see their mother thereafter. Their guardian ad litem believed permanent custody was in the children’s best interests for various reasons. See
{¶59} The children were clearly in need of a legally secure placement, and it was not unreasonable to find that a legally secure placement could only be achieved by granting permanent custody to the agency. See
{¶60} As the trial court indicated, the children had a traumatic experience, and at least one of the children experienced a “horrific” life in the year before removal. The
{¶61} Considering all of the relevant factors, there was sufficient evidence presented to allow the trial court to clearly and convincingly find that the grant of permanent custody to the agency was in the children’s best interests, and the court’s decision was not contrary to the manifest weight of the evidence. Accordingly, this assignment of error is overruled.
{¶62} For the foregoing reasons, the trial court’s judgment granting permanent custody to the agency is affirmed.
Donofrio, J., concurs.
D’Apolito, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.