IN RE: L.L., ALLEGED ABUSED, NEGLECTED AND DEPENDENT CHILD. [BRANDY JOHNSON - APPELLANT]
CASE NO. 5-19-33
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
April 20, 2020
2020-Ohio-1565
PRESTON, J.
Appeal from Hancock County Common Pleas Court Juvenile Division Trial Court No. 20183001. Judgment Affirmed.
Alison Boggs for Appellant
Wesley R. True for Appellee
{1} Appellant, Brandy Johnson (“Johnson“), appeals the August 26, 2019 judgment of the Hancock County Court of Common Pleas, Juvenile Division granting permanent custody of Johnson‘s daughter, L.L., to the Hancock County Department of Job and Family Services Children‘s Protective Services Unit (“CPSU“). For the reasons that follow, we affirm.
{2} Johnson and Zachary Lanning (“Lanning“) are the biological parents of L.L. When L.L. was born on January 27, 2018, she tested positive for opiates and cocaine. (Doc. No. 1). On January 30, 2018, CPSU filed a complaint alleging that L.L. was an abused, neglected, and dependent child. (Id.). That same day, CPSU filed a motion requesting that the trial court grant emergency temporary custody of L.L. to CPSU. (Id.). Following a hearing on February 1, 2018, the trial court granted CPSU‘s motion, and L.L. was placed in the emergency temporary custody of CPSU. (Doc. No. 11). On February 13, 2018, the trial court appointed a guardian ad litem (“GAL“) for L.L.1 (Doc. No. 13).
{3} At a hearing on March 15, 2018, L.L. was adjudicated abused, neglected, and dependent. (Doc. No. 17). Following a dispositional hearing on April 12, 2018, the trial court determined that L.L. would remain in the temporary custody of CPSU. (Doc. No. 20).
{5} Beginning in May 2018, Johnson was repeatedly hospitalized for a number of health issues, including endocarditis. (Aug. 16, 2019 Tr. at 116). In July 2018, Johnson was required to undergo open-heart surgery. (Id. at 56, 131). Following her surgery, Johnson was admitted into a nursing home, where she remained until September 2018. (Id. at 39, 133-134). Johnson attributed her health problems to her previous use of intravenous drugs. (Id. at 104, 117).
{6} Due in part to Johnson‘s hospitalizations, a hearing on CPSU‘s motion for contempt was not held until October 4, 2018, at which time the trial court found Johnson to be in contempt of court. (Doc. No. 50). On November 20, 2018, Johnson, having failed to purge the contempt, was committed to the Hancock County Justice Center for 30 days. (Doc. No. 58). In addition, in late November 2018, Johnson began serving a 180-day jail sentence in the Hancock County Justice Center for a theft charge from 2017. (Aug. 16, 2019 Tr. at 43-44, 80, 134). Johnson was released from jail in late May 2019. (Id. at 117).
{7} On February 1, 2019, CPSU filed a motion for permanent custody of L.L. (Doc. No. 64). The GAL filed her report on June 21, 2019. (Doc. No. 84). A permanent custody hearing was held on August 16, 2019. (Aug. 16, 2019 Tr. at 1);
{8} On September 18, 2019, Johnson filed a notice of appeal.2 (Doc. No. 95). She raises three assignments of error for our review. Because her assignments of error concern related issues, we will address them together.
Assignment of Error No. I
The trial court‘s decision granting permanent custody was against the manifest weight of the evidence and amounted to an abuse of discretion.
Assignment of Error No. II
The agency failed to use reasonable efforts to reunify Miss Johnson with her daughter.
Assignment of Error No. III
The agency did not prove by clear and convincing evidence that Miss Johnson abandoned her child, as contemplated by the statute.
{9} In her assignments of error, Johnson argues that the trial court erred by awarding permanent custody of L.L. to CPSU. Specifically, in her first assignment of error, Johnson argues that clear and convincing evidence does not support either the trial court‘s determination that one or more of the
{10} The right to raise one‘s child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court
{11} ”
may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to [
R.C. 2151.414(A) ], by clear and convincing evidence, that it is in the best interest of the childto grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: (a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, * * * and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.
(b) The child is abandoned.
{12} As relevant to the resolution of this case,
In determining at a hearing held pursuant to [
R.C. 2151.414(A) ] * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, thecourt shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to [ R.C. 2151.414(A) ] * * * that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:(1) Following the placement of the child outside the child‘s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
{14} “Under
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody 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 * * *; (d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{15} If the trial court makes these statutorily required determinations, a reviewing court will not reverse a trial court‘s decision unless it is not supported by clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985) and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence is that which is sufficient to produce in the mind of the trier of fact a firm belief or
{16} For ease of discussion, we will consider Johnson‘s assignments of error out of order, beginning with her third assignment of error. In her third assignment of error, Johnson argues that clear and convincing evidence does not support the trial court‘s determination under
{17} With respect to whether Johnson abandoned L.L., the trial court found:
[Johnson] has, on two occasions, met the abandonment standard outlined in
R.C. §2151.011(C) . [Johnson] failed to visit with [L.L.] in April, May, June, July, and August 2018. Likewise she failed to visit with [L.L.] in October, November, [and] December 2018 and [in]January, February, March, April and May of 2019. Much argument was made by [Johnson‘s] counsel that she was unable to visit due to medical issues and being in jail. Even if the Court were [to] accept this argument, there were many months when she was not ill and not in jail and still failed to visit the child. [Johnson] testified that her illness was a result of drug use. When she was released from the hospital, she did not immediately go to reinitiate visits, she instead began again using drugs. Furthermore, her jail time was imposed as a result of wrongdoing on her part. * * * When her sentence was completed, she, again, did not reinitiate visits. She instead used cocaine and eventually entered residential treatment after it was suggested by her adult probation officer. The Court finds by clear and convincing evidence that [L.L.] is abandoned * * *.
(Doc. No. 89).
{18} After reviewing the record, we conclude that clear and convincing evidence supports the trial court‘s determination that L.L. is abandoned. The record
{19} Though Johnson appears to acknowledge that CPSU produced enough evidence to raise the presumption of abandonment, she argues that she rebutted the presumption of abandonment because evidence was presented establishing that the gaps in visitation and contact were attributable to her poor health, hospitalizations, and incarceration—none of which, according to Johnson, demonstrates that she intended to abandon L.L. (Appellant‘s Brief at 20-24). In addition, concerning the gap in visitation Johnson imputes to her poor health and hospitalizations, she contends that her “actions of reaching out to the agency when she was able * * *
{20} Johnson‘s arguments are without merit. Even assuming that Johnson‘s limited contacts with CPSU caseworkers during her hospitalizations and nursing home stay are sufficient to rebut the presumption of abandonment created by her failure to visit or maintain contact with L.L. from April 2018 through August 2018, insufficient evidence was presented to rebut the presumption of abandonment raised by Johnson‘s failure to visit or maintain contact with L.L. from October 2018 through May 2019. First, the record reflects that Johnson‘s failure to visit or contact L.L. during this period was not caused entirely by her incarceration. During the approximately two-month period between September 2018, when she was discharged from the nursing home, and late November 2018, when she was incarcerated, Johnson was completely free to visit or contact L.L. and healthy enough to do so. Yet, rather than attempting visitation or contact with L.L., Johnson testified that after visiting with L.L. in September 2018, she resumed some of her old habits. (Aug. 16, 2019 Tr. at 132-134). Thus, Johnson‘s incarceration cannot account for her failure to visit or contact L.L. for the entirety of October 2018 and most of November 2018. Furthermore, the record does not contain any evidence that Johnson requested visitation with L.L. during her incarceration or that she otherwise tried to maintain contact, and by itself, Johnson‘s incarceration, the
{21} Next, we consider Johnson‘s second assignment of error, in which she argues that CPSU failed to prove that it used reasonable efforts to reunify her with L.L. At the outset, we note that while Johnson repeatedly uses the phrase “reasonable efforts” throughout her second assignment of error, she continually cites to
{22} However, in light of our resolution of Johnson‘s third assignment of error, we need not consider whether the trial court‘s
{23} Moreover, to the extent that Johnson argues in her second assignment of error that the grant of permanent custody was improper because CPSU failed to demonstrate that it used “reasonable efforts” as required by other sections of
removes a child from the child‘s home or continues the removal of a child from the child‘s home, the court shall determine whether the public children services agency * * * has made reasonable efforts to prevent the removal of the child from the child‘s home, to eliminate
the continued removal of the child from the child‘s home, or to make it possible for the child to return safely home.
{24} In this case, the trial court made reasonable-efforts findings on three occasions prior to the permanent-custody hearing: at the hearing before CPSU was granted emergency temporary custody of L.L., at the dispositional hearing, and in a March 29, 2019 judgment entry specially finding that CPSU used reasonable efforts. (Doc. Nos. 11, 20, 79). Johnson does not argue that the trial court‘s previous reasonable-efforts findings are unsupported by the record. (See generally
{25} Finally, we address Johnson‘s first assignment of error. In her first assignment of error, Johnson argues that clear and convincing evidence does not support the trial court‘s determinations under
{26} With respect to L.L.‘s best interest, the trial court found:
The Court has considered the interaction and interrelationship of [L.L.] with [L.L.‘s] parents, siblings, relatives and foster caregivers. [L.L.] has been in the same foster home since she was released from
the hospital after birth. [L.L.] has an established relationship with her sister, C.W., due to the efforts of the foster mother in continuing visits with the family that is raising C.W. [L.L.] has no established relationship with [Johnson] * * * due to the lack of visits attended by [Johnson] * * * over the past many months. Karmen Lauth [(“Lauth“)] testified that [L.L.] is in need of a legally secure and permanent placement which cannot be achieved unless permanent custody is granted. Also, * * * the Court has considered that the factors outlined in R.C. 2151.414(E)(10) and (11) exist in this case. Accordingly, the Court finds by clear and convincing evidence that it is in [L.L.‘s] best interest to grant CPSU‘s motion for permanent custody.
(Doc. No. 89).
{27} After reviewing the record, we conclude that clear and convincing evidence supports the trial court‘s determination that it is in the best interest of L.L. to grant permanent custody of L.L. to CPSU. First, it is clear that, pursuant to
{28} In addition, the record establishes that Johnson does not have a strong relationship with L.L. While the testimony showed that Johnson‘s few visitations with L.L. were “appropriate,” Lauth remarked that L.L. “does not know [Johnson] as her mother.” (Id. at 18-19, 60, 182). She stated that Johnson made “[v]ery little” progress in developing a relationship and forming a bond with L.L. (Id. at 53-54). Therefore, the trial court‘s findings about L.L.‘s interaction and interrelationship
{29} Although the trial court did not make any specific findings under
{30} Regarding
{31} Next, we consider whether the trial court‘s findings under
{33} CPSU also presented evidence that Johnson would likely be unable to provide L.L. with safe, stable housing. Lauth testified that, to her knowledge,
{35} Finally, the record supports the trial court‘s finding that two of the factors in
{36} Moreover, there is clear and convincing evidence supporting the trial court‘s determination that
{38} Johnson‘s first, second, and third assignments of error are overruled.
{39} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J., concurs.
/jlr
WILLAMOWSKI, J., concurring separately.
{40} I am writing separately because although I concur with the conclusion of the majority, I fully agree with the reasoning of the majority except as to part of the third assignment of error upholding the finding that the child was abandoned. The record is clear that for a portion of the time that Johnson did not have contact with the child, she was in a hospital for treatment. Although the trial court found that the hospitalization was due to Johnson‘s voluntary drug usage, I would not