IN RE: L.T.
CASE NOS. CA2016-03-048
CA2016-03-058
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
8/5/2016
[Cite as In re L.T., 2016-Ohio-5272.]
M. POWELL, P.J.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2012-0458
Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for appellant, J.T.
Seth A. Cantwell, 240 East State Street, Trenton, 45067, for appellant, C.A.S.
Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Dawn Garrett, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249, for T.N.G.
OPINION
M. POWELL, P.J.
{1} Appellant, J.T. (“Father“), appeals from the judgment of the Butler County Court of Common Pleas, Juvenile Division, awarding permanent custody of his minor child, L.T., and L.T.‘s half-sister, N.G., to the Butler County Department of Job and Family Services (“the Agency“). Appellant, C.S. (“C.S.“), who is Father‘s mother, L.T.‘s paternal grandmother, and
{2} N.G. was born in 2008 and is the child of T.G. (“Mother“) and D.W.1 L.T. was born in 2010 and is Father‘s biological child. Although N.G. is not Father‘s biological daughter, they enjoy a father-child relationship.
{3} On September 1, 2012, the Agency removed N.G. and L.T. from Mother‘s home because the home was without electricity and food and was infested with bugs, and Mother had reported she was bi-polar and learning-disabled. The Agency filed a complaint alleging the children were neglected and dependent. The children were placed in the temporary сustody of C.S. and began living in her home where Father was also living. On February 19, 2013, the children were adjudicated dependent after Mother and Father stipulated to the facts in the Agency‘s complaint.
{4} Several case plans were adopted for the children‘s parents throughout the pendency of the case. Father did not initially participate in the case plan services because he sought to have custody granted to C.S. However, on January 7, 2014, the order granting C.S. temporary custody of the children was terminated and the children were placed in the temporary custody of the Agency. Subsequently, the Agency placed the children with a foster family, where they have remained for the duration of the case. Temporary custody with C.S. was terminated due to a series of incidents indicating that C.S.‘s home was not a safe environment. These incidents consisted of (1) N.G. sustaining a half-inch cut on her scalp when C.S.‘s other son, and Father‘s half-brother, J.S., threw a cigarette lighter, striking N.G.; (2) N.G. sustaining swelling and bruising to her face and a black eye when J.S. threw a
{5} Relative placements were investigated and home studies were ordered on those potential placements. However, none of the relatives who had home studies performed on their residences moved for legal custody of N.G. and L.T.
{6} After temporary custody with C.S. was terminated and the children were placed in foster care, Father sought custody of the children and began utilizing case plan services. Under the case plan services, Father was required to complete a psychological evaluation and comply with the recommendations stemming from the evaluation, complete parenting classes, and join a father‘s support group if he were to obtain custody of the children. A caseworker for the Agency assigned to the family also recommended that Father undergo individual counseling, but Father refused, saying that he did not need it.
{7} Father visited with the children regularly and consistently and the visits went well. Father engaged in and completed the Development of Living Skills (“DLS“) parenting program, attending 58 sessions between April 2014 and March 2015. The DLS instructor expressed the opinion that Father was a capable parent for the children. However, the instructor also testified she was concerned about the fact that Father did not maintain independent housing and “relied upon other people for income at times[.]” The instructor estimated that the percentage of time Father relied on other people for his income was “probably in the high nineties.”
{9} The Agency moved for permanent custody of the children in September 2014 but later withdrew its motion. C.S. moved for legal custody of the children in November 2014. Thereafter, the Agency moved for permanent custody of the children on February 9, 2015. Hearings were held on the Agency‘s motion for permanent custody and C.S.‘s motion for legal custody between March 30, 2015, and July 6, 2015. During one of the hearings, Mother testified she was no longer seeking custody of N.G. and L.T. and that she wanted legal custody to be awarded to either Father or C.S.
{10} On September 15, 2015, the magistrate issued a decision recommending that the Agency be awarded permanent custody of the children and that C.S.‘s motion for legal custody be denied. The magistrate determined that C.S. was not an appropriate placement for the children because the incidents that occurred at her home while she was the children‘s temporary custodian indicated she was unable to protect the children. The magistrate also determined that Father was not an appropriate custodian for the children because he resides in C.S.‘s home and has not demonstrated a current ability to parent the children.
{11} Father and C.S. filed objections to the magistrate‘s decision. On February 25, 2016, the juvenile court overruled the objections and adopted the magistrate‘s decision as the order of the court.
{12} Father now appeals from the judgment of the juvenile court and assigns the following as error:
{13} Assignment of Error No. 1:
{15} Assignment of Error No. 2:
{16} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY PURSUANT TO
{17} C.S. appeals from the same judgment and assigns the following as error:
{18} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY AND DISMISSING APPELLANT‘S LEGAL CUSTODY MOTION WHERE THAT DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{19} 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. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). “Clear and convincing evidence” is evidence that will produce in the mind of the trier-of-fact a firm belief or conviction as to the facts sought to be established. Cross v Ledford, 161 Ohio St. 469, 477 (1954). An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to considering whether sufficient credible evidence exists to support the juvenile court‘s determination. In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. A reviewing court will reverse a finding by the juvenile court that the evidencе was clear and convincing only if there is a sufficient conflict in the evidence presented. Id.
{20} Pursuant to
{21}
[T]he court shall consider all relevant factors, including, but not limited to the following:
(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 сhild 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.
{22} In his first assignment of error, Father argues the juvenile court erred by granting permanent custody of N.G. and L.T. to the Agency because the decision was not in the children‘s best interest and there were “legally secure placement alternatives” to awarding the Agency permanent custody, including reunifying the children with him or awarding C.S. legal custody of the children. Although Father acknowledges he appealed the juvenile court‘s decision only with regard to L.T., his biological child, he requests that we consider his arguments on appeal as applying to N.G. as well, because the evidence establishes that a close father-child relationship exists between him and N.G. even though he is not N.G.‘s biological father.
{23} Initially, as to both of Father‘s assignments of error, Father lacks standing with regard to N.G. becаuse he is not her biological father, he did not seek legal custody of N.G., and he has appealed only the grant of permanent custody relating to L.T. See In re J.P., 12th Dist. Butler Nos. CA2015-08-160 and CA2015-08-161, 2016-Ohio-7, ¶ 8 (nonparent who seeks legal custody of a child must file a motion for legal custody pursuant to
{24} As to the best-interest factor in
{25} The children were in C.S.‘s temporary custody from September 1, 2012, until January 7, 2014. During that time, the children and Father lived together in C.S.‘s home, and Mother regularly visited with the children. The record shows that L.T. and N.G. are bonded with Mother, Father, and C.S. There were a number of other relatives living in C.S.‘s home during this period, including C.S.‘s other son and Father‘s half-brother, J.S. J.S. is developmentally delayed and consequently receives income from Social Security.
{26} In the fall of 2013, J.S. became angry at C.S. and threw a cigarette lighter that struck N.G. in the head, causing a half-inch cut on the child‘s scalp. Emergency service personnel had to be called to treat the wound. On another occasion, J.S. threw a cup that ricocheted off a wall and struck N.G. in the face, causing swelling in the child‘s face and leaving the child with a black eye. In November 2013, the Agency recommended that J.S. live elsewhere, but C.S. rejected the idea because if J.S. left and took his social security income with him, the family would not be able to maintain their current residence.
{27} On January 2, 2014, one of C.S.‘s nieces who was staying at C.S.‘s home, overdosed on drugs. When the family‘s caseworker heard about this, she came to C.S.‘s home to investigate. C.S. told her that the children had not witnessed the overdose. However, the caseworker later learned that in the summer of 2013, another one of C.S.‘s nieces had become drunk and passed out at C.S.‘s house, and that the children had witnessed that incident. No one had ever told the caseworker about this incident prior to the overdose incident.
{28} On January 6, 2014, one of C.S.‘s nephews, who was also living at C.S.‘s home at the time, and four of his friends, one of whom was his girlfriend, attacked C.S. with a knife in the driveway of her house. C.S. was slashed on her head and hand. J.S. came to C.S.‘s
{29} The Agency was concerned that C.S. was abusing her prescription medications. When the caseworker asked C.S. for permission to do a pill count of C.S.‘s medications, C.S. refused, telling the caseworker that she had flushed all of her medications down the toilet three days earlier. During the permanent and legal custody hearing, C.S. testified that she is prescribed Xanax and Percocet and that she drank alcohol over New Year‘s Weekend. When C.S. was asked by her attorney if her positive drug test was the result of her prescription medication or alcohol, C.S. answered that she did not know.
{30} After the children were removed from C.S.‘s residence, Father and Mother visited the children at the Agency‘s visitation facility, where they also received family counseling. The visits and counseling took place under the supervision of the Children‘s Diagnostic Center (“CDC“). During the visits, the children were happy to see Father and Father demonstrated he was bonded to the children. Father visited the children regularly and was focused on the children during the visits. Additionally, the parenting skills of both Mother and Father reportedly improved after they engaged in parenting education.
{31} However, the CDC supervisor noted that Father had difficulty in handling both children at the same timе and that when Father and Mother were visiting the children together, they did not work well as co-parents as Mother tended to control the visit and Father acquiesced. The CDC supervisor also noted that Father had difficulty implementing appropriate consequences for bad behavior. For example, Father did not understand the inappropriateness of putting hot sauce or soap in the children‘s mouths as a punishment when the children misbehaved, and the supervisor believed that Father would continue to
{32} Lastly, the record shows that N.G. and L.T. are bonded to each other, and all parties agree that it is in the children‘s best interests that they remain together.
{33} As to the best-interest factor in
{34} As to the factor in
{35} As to the factor in
{36} There is also clear and convincing evidence to support the juvenile court‘s determinations that neither C.S. nor Father are appropriate placements for the children. The incidents at C.S.‘s home which led to the children‘s removal from that home show that C.S. is unable to protect the children, because she has a history of allowing several relatives into her home who have cаused problems, including her nephew and her two nieces as detailed above. There are also troubling indications that C.S. may have a substance abuse problem with alcohol or prescription drugs. These same problems show that Father is also not an appropriate placement for the children as Father resides with C.S.
{37} Father argues that in considering the “legally secure permanent placement” factor in
{38} Father contends that he completed all of the requirements of his case plan, and points out that a DLS therapist testified she believes Father has the ability to parent the children independently provided he has the financial resources to do so. However, a case plan is a means to an end, and not an end itself. In re A.R., 12th Dist. Butler No. CA2015-08-143, 2016-Ohio-4919, ¶ 18. Additionally, Father refused to follow the casеworker‘s advice to engage in independent counseling because he believed he did not need such counseling. Moreover, the evidence as to Father‘s ability and commitment to parent the children and provide for them is somewhat contradictory.
{39} Father began engaging in case plan services in earnest only when the children‘s temporary custody placement with C.S. was terminated in January 2014. Prior to that time, Father appeared content to forfeit any right he had to the children‘s custody and allow C.S. to have custody of the children. After the children were placed in the temporary custody of the Agency, Father certainly has demonstrated some competence in his ability tо parent L.T, but problems remain, such as his over-dependence on others for help and his failure to grasp appropriate disciplinary strategies.
{40} Furthermore, the evidence as to Father‘s financial stability is equivocal. For instance, while the evidence shows that Father is currently employed on a nearly full-time basis earning $8.85 per hour as a forklift operator at Menard‘s, Father did not obtain this job until April 17, 2015, which was shortly after the permanent custody hearing commenced. Historically, Father has not maintained a stable and independent income, but rather has depended upon others. Although Father‘s recent employment is a positive development, it must be weighed with some caution based upon Father‘s historical record of lacking financial stability and independence.
{41} However, Father‘s parenting ability is not the only concern. A paramount concern is that Father resides with C.S. and has expressed his intention to continue to reside with her despite abundant evidence that her home is not appropriate for children. This caused the juvenile court to conclude, correctly, that Father lacked independent, stable housing.
{42} There was never a home study approving C.S.‘s and Father‘s current home. Of
{43} During the hearing, Father acknowledged that it was very important for the Agency to examine his and C.S.‘s home where he intended to live with the children if he were to be granted custody. Father was then questioned as to why he continually refused to meet with workers from the Agency at this residenсe. Father essentially said that his work schedule would not allow it. When Father was asked if the Agency could inspect his current residence that day, Father again said his work schedule would not allow it. When Father was asked if C.S. could be at their current residence for an inspection, Father said that C.S. would not be able to meet with them either because of her work schedule. Father was unable to explain how he was able to find the time to meet with these same workers at places
{44} Because Father was insistent on remaining in C.S.‘s home, he failed to provide a stable home for L.T. and therefore it was not appropriate to place L.T. with Father. Since the children have been in custodial limbo since September 2012, it was necessary to resolve any issue as to their ultimate placement expeditiously. Therefore, consideration of the best interest factor in
{45} Finally, as to the best-interest factor in
{46} A review of all the evidence in the record shows there was clear and convincing evidence presented to support the juvenile court‘s determination that granting the Agency permanent custody was in the children‘s best interest. Therefore, Father‘s first assignment of error is overruled.
{47} In his second assignment of error, Father contends the juvenile court erred by
{48} As we indicated earlier,
{49} Here, Father acknowledges that, at first glance, the facts of this case seemingly show that the Agency complied with the 12 of 22 rule, as N.G. and L.T. were removed from C.S.‘s temporary custody on January 7, 2014, and placed in the Agency‘s temporary custody at that time, and the Agency waited to file its motion for permanent custody more than 12 months later on February 9, 2015. Father contends, however, that a “plain reading” of
{50} Initially, Father did not raise a specific objection to the magistrate‘s decision on this ground, as required by
{51} The last sentence of
{52} Father contends the children were removed “from home” for purposes of
“Temporary custody” means legal custody of a child who is removed from the child‘s home, which custody may be terminated at any time at the discretion of the court or, if the legal custody is granted in an agreement for temporary custody, by the person who executed the agreement.
(Emphasis added.)
{53} By definition, temporary custody includes the concept that a child has already been removed from the “child‘s home.” Termination of a relative‘s temporary custody of a child is not a removal of the child from the “child‘s home.”
{54}
{55} The children were actually removed “from home” on September 1, 2012, when they were removed from Mother‘s home and placed in the temporary custody of C.S. The children were adjudicated dependent, pursuant to
{56} Furthermore, even if we assume, for the sake of argument, that the children were removed “from home” on January 7, 2014, Father‘s argument still cannot prevail. For purposes of
{57} Given the foregoing, the juvenile court did not err by finding that the children have been in the Agency‘s temporary custody for more than 12 months of a consecutive 22-month period, for purposes of
{58} In her assignment of error, C.S. argues the juvenile court erred by awarding the Agency permanent custody and dismissing her motion for legal custody of the children. Specifically, she asserts the juvenile court erred by failing to properly apply the best-interest
{59} ”
{60} A juvenile court must base its custody determination under
{61} An appellate court reviews a juvenile сourt‘s custody determination under an abuse-of-discretion standard. In re C.A., 2015-Ohio-1410 at ¶ 15. A juvenile court abuses its discretion when it acts unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The juvenile court‘s exercise of its discretion in custody matters is entitled to the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned. In re C.A. at 15. Thus, an appellate court will afford deference to the juvenile court‘s findings regarding the credibility of the witnesses. Id.
{62} In considering a claim that the juvenile court‘s decision is contrary to the manifest weight of the evidence, “a reviewing court must determine whether the finder of fact, in resolving conflicts in the evidence, clearly lost his way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.” In re X.B., 12th Dist. Butler No. CA2014-07-168, 2015-Ohio-1174, ¶ 21. The reviewing court is guided by the presumption that the juvenile court‘s findings are correct. Id. Thus, where an award of custody is supported by a substantial amount of credible and competent evidence, the reviewing court will not reverse the juvenile court‘s custody determination on the grounds that it is contrary to the manifest weight of the evidence. Id.
{63} As indicated above, C.S.‘s home was not an appropriate placement for the children and C.S. was not an appropriate custodian of the children, since there was clear and convincing evidence she was unablе to protect them. C.S.‘s home was identified in January 2014 as one that was not a safe environment due to the drug use and violence that occurred at the home, and as a result, the children were removed from C.S.‘s home at that time. There is no evidence that the conditions that led to the children‘s removal from C.S.‘s home in January 2014 have changed. There was never a home study performed approving C.S.‘s current residence, and C.S. and Father restricted the Agency access to the home in the months immediately prior to the commencement of the permanent custody hearing.
{64} Further, C.S. and Father were both unable to provide a plausible explanation as to why they refused to allow the Agency tо inspect their current residence. While C.S asserts
{65} In light of the foregoing, C.S.‘s assignment of error is overruled.
{66} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.