In re L.H.
- Reporters:
- ,
- Before:
- Mark L. Pietrykowski, Thomas J. Osowik, Christine E. Mayle
Decided: September 16, 2022
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Bradley W. King, for appellee.
Adam H. Houser, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} This is аn appeal from the judgment of the Lucas County Court of Common Pleas, Juvenile Division, which awarded permanent custody of the minor children, L.H. and N.H., to appellee, Lucas County Children Services (“LCCS“), thereby terminating the parental rights of mother-appellant, J.A.1 For the reasons that follow, we affirm.
{¶ 2} The present case began on June 4, 2020, when LCCS filed a complaint in dependency and neglect, alleging ongoing issues involving mother‘s drug abuse and concerns of domestic violenсe. On July 20, 2020, mother consented to a finding of dependency and neglect, and the children were placed with a maternal aunt. Mother was provided with case plan services to address her issues of drug abuse; domestic violence services were expected to be provided once mother had established progress on her substance abuse services.
{¶ 3} Prior to the disposition hearing, the maternal aunt indicated that she could no longer care for the children. LCCS then identified paternal relatives in Arizona that might be interested in taking the children. At the disposition hearing, mother consented that temporary custody of the children should be awarded to LCCS pending an interstate review of the paternal relatives in Arizona.
{¶ 4} On December 7, 2020, the trial court held a reasonable efforts review hearing. Based on the testimony of the LCCS caseworker, Danielle Stroble, the trial court found that mother had been sporadically attending substance abuse treatment, was unsuccessfully discharged from Racing for Recovery, and was in the process of seeking treatment through the Zepf Center.
{¶ 5} At the annual review hearing on June 3, 2021, Stroble testified that mother had made very little progress regarding her substance abuse issues. Stroble also testified
{¶ 6} On June 24, 2021, LCCS moved for permanent custody of L.H. and N.H., and a pretrial hearing was scheduled for August 13, 2021. Summons was sent by certified mail to mother‘s address, and an entry showing that it was successfully delivered was entered on August 5, 2021. At the August 13, 2021 pretrial hearing, mother‘s attorney noted that mother had sent her a message stating that mother could not be at the pretrial hearing because she had a scheduled medical appointment. The matter was then set for the permanent custody hearing on October 6, 2021.
{¶ 7} Prior to the October 6, 2021 hearing, mother retained a new attorney, and the permanent custody hearing was ultimately rescheduled to January 26, 2022. Notice of the January 26, 2022 hearing date was sent to mother‘s attorney.
{¶ 8} At the start of the January 26, 2022 permanent custody hearing, mother‘s counsel moved for a continuance beсause mother was not at the hearing. Counsel relayed that mother had moved and changed her phone number, and that mother claimed that she did not receive notice of the hearing. Counsel informed the court, however, that he had spoken with mother and told her that the hearing was on January 26, 2022, and that he had mailed notice of the hearing to mother shortly after the hearing date was set several weeks earlier. Counsel statеd that he spoke with mother that morning, and learned for the
{¶ 9} At the permanent custody hearing, Stroble testified that she first began working with the family in May 2019, when the agency received allegations of abuse or neglect. Stroble worked with the family in a non-custody manner, offering case plаn services for substance abuse, mental health, and domestic violence. Stroble testified that the complaint was filed in June 2020 because mother was not engaging in case plan services, she was not consistently providing drug screens when requested, and she was not following through with treatment.
{¶ 10} Stroble explained that throughout her involvement with the case, mother has been linked to ten different substance abuse treatment providers. Mother rеceived a mental health and substance abuse diagnosis from Harbor and worked with them in July 2019 for about one month. Mother‘s performance at Harbor was not consistent, and Harbor discontinued her services. In September 2019, mother went to the Zepf Center, and again received a mental health and substance abuse diagnosis. Mother did not consistently meet with the therapist, and as things began moving to video therapy with the onset of Covid-19, mothеr felt like the Zepf Center was not a good provider for her. Mother next went to Midwest Ohio Treatment center, and completed a dual diagnostic assessment in March 2020, which again resulted in a mental health and substance abuse diagnosis. Mother was discharged from Midwest Ohio Treatment in April 2020 due to
{¶ 11} As to the children, Stroble testified that L.H. and N.H. were originally placed with a maternal aunt, with the goal of awarding legal custody to the aunt. However, on the day of the disposition hearing, the aunt deсided that she could no longer
{¶ 12} Following the disruption of the placement with the paternal aunt and uncle, Stroble spoke with a different maternal aunt, the maternal grandfather, the paternal grandparents, and a friend of mother, but nonе of them were able to take care of L.H. and N.H. Late in the process, Stroble also spoke with two female friends of father. Stroble informed the two friends that because the agency had already made the determination to seek permanent custody, the friends would have to become licensed foster parents to express interest in adopting the children. At the time of the permanent custody hearing, one of thе friends, “Kim,” had engaged in and completed the foster parenting classes, but Stroble was unaware of where Kim was at as far as the rest of the process, including things like home studies, fingerprinting, and fire inspections.
{¶ 13} Stroble also testified regarding how the children were doing in their placements. Stroble testified that since the children were separated, the younger child,
{¶ 14} L.H., unfortunately, has struggled and has a lot of behavioral issues. L.H. has been diagnosed with ADHD, ODD, and PTSD. L.H. has been consistent in counseling and was scheduled for a follow up psychiatric evaluation in February 2022. L.H. has been in several placements since returning from Arizona beсause of her behavior, which has included being violent toward animals, sexually acting out, being verbally or physically abusive to other younger or disabled children, and lacking empathy. Stroble testified that L.H. has also had a lot of behavioral issues at school as a kindergartner. Stroble stated that L.H. was a very smart little girl, and she could speak about a lot of things that she has witnessed throughout her life.
{¶ 15} The only other witness to testify was the guardian ad litem, Robin Fuller. Fuller testified that she does not believe that mother has accepted that she is a drug addict, and has not made a commitment to sobriety. Fuller recommended that permanent custody to LCCS was in the children‘s best interests, and testified that she could not think of any realistic alternative to permanent custody.
{¶ 16} Following the hearing, on March 1, 2022, the juvenile court entered its judgment awarding permanent custody of the children to LCCS. The court first found
II. Assignments of Error
{¶ 17} Mother has timely appealed the juvenile court‘s March 1, 2022 judgment terminating her parental rights, and now asserts two assignments of error for our review:
- The trial court‘s decision was against the manifest weight of the evidence as it was not in the best interest of the child to grant permanent custody of the child to Lucas County Children Services.
- The court violated appellant‘s due process as she has never received notice of the permanent custody hearing.
A. Manifest Weight
{¶ 18} In her first assignment of error, mother argues that the juvenile court‘s decision was against the manifest weight of the evidence.
{¶ 19} In order to terminate parental rights and award permanent custody of a child to a public services agency under
{¶ 20} “A trial court‘s determination in a pеrmanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence.” In re A.H., 6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. We recognize that, as the trier of fact, the trial court is in the best position to weigh the evidence and evaluate the testimony. Id., citing In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Thus, “[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 21}
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.
{¶ 22} Because only one factor is needed to support the trial court‘s conclusion under
{¶ 23} The factor stated in
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, рsychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
{¶ 24} Here, the record demonstrates that despite mother‘s consistent referral to drug counseling and treatment, she has continuously and repeatedly fаiled to successfully complete any of those services, oftentimes being discharged for noncompliance. Therefore, we hold that the trial court‘s determination under
- 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;
- 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;
- The custodial history of the child, including whether the child has 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 consеcutive twenty-two month period * * *;
- 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;
- Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 26} In support of her assignment of error, mother argues that the trial court failed to follow guidelines under Ohio lаw to look into the possibility of legal custody to
{¶ 27} Upon review, we do not find that the juvenile court‘s decision that permanent custody was in the best interests of the children was against the manifest weight of the evidence. Here, the record reflects that Stroble made numerous efforts to find a suitable familial placement for the children. Late in the process, after LCCS had already moved for permanent custody, Kim expressed interest in obtaining custody of the children. At the time of the hearing, Kim was not approved through the foster care process, and it was not clear when she would be approved. After 15 months of placements, the trial court determined that the children needed permanency, and we cannot disagree. Furthermore, the record contains no evidence regarding Kim‘s relationship with the children, whether the children are close to her, or whether they even know who she is. In contrast, the record reflects that at least N.H. knows her current foster parents and is thriving with them. Therefore, we hold that the trial court‘s finding—that permanent custody to LCCS was in the best interest of the children—is not against the manifest weight of the evidence.
{¶ 28} Accordingly, mother‘s first assignment of error is not well-taken.
{¶ 29} In her second assignment of error, mother argues that her due process rights were violated in that she was not provided notice of the permanent custody hearing.
{¶ 30} “[D]ue process requires both notice and an opportunity to be heard.” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13 (2007). “In accordance with this requirement, the government must attempt to provide actual notice to interested parties if it seeks to deprive them of a protected liberty or property interest.” (Emphasis sic.) Id. at ¶ 14. “However, due process does not require that an interested party receive actual notice.” (Emphasis sic.) Id.
{¶ 31} “When a permanent custody motion is filed and a permanent custody hearing is scheduled, notice is to be given as set forth in
{¶ 32} “For proper service, the parents must be notified of the permanent custody motion аnd the initial permanent custody hearing by one of three methods: personal service, service by certified or registered mail * * *, or—if both those methods fail—by publication.” In re Keith Lee P. at ¶ 8, citing
{¶ 33} Here, the permanent custody motion was served upon mother‘s attorney by electronic mail in accordance with
{¶ 34} Accordingly, mother‘s second assignment of error is not well-taken.
IV. Conclusion
{¶ 35} For the foregoing reasons, we find that substantial justice has been done the party complaining and the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
L-22-1078
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J. ____________________________
Christine E. Mayle, J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.