In re M.O.
Jeffery E. Richards, 147 Miami Street, P.O. Box 536, Waynesville, Ohio 45068, for appellant, S.O.
Lauren L. Clouse, 20 South Main Street, Springboro, Ohio 45066, for appellant, C.M.
Jeffrey A. McCormick, 122 South Main Street, Washington C.H., Ohio 43160, guardian ad litem
PIPER, J.
O P I N I O N
{¶1} Appellants, the biological parents of M.O. (Mother and Father), appeal the decision of the Warren County Court of Common Pleas, Juvenile Division, granting
{¶2} Mother, who was already married to another man, married Father and the two resided together. M.O. was born issue of this relationship. Mother‘s sister, with whom Father and Mother were living, asked Father to move out of the house when she discovered he hаd been incarcerated for credit card theft. Father then moved to Virginia to be near his other children and family.
{¶3} WCCS became involved with M.O. when it received information that Mother, M.O.‘s only caregiver, had been incarcerated on drug charges. On January 16, 2009, WCCS filed a complaint alleging that M.O. was dependent after she had been removed from Mother‘s custody and placed into emergency shelter care. M.O., who was two years old at the time of her removal, was placed in foster care with Amy and Joe McReynolds.
{¶4} On March 16, 2009, Father returned to Ohio from Virginia аnd moved for legal custody of M.O. On March 17, 2009, M.O. was adjudicated dependent as alleged in WCCS‘s complaint. A dispositional hearing was held, and M.O. was placed in the temporary custody of WCCS. After WCCS was granted extensions of temporary custody, Father withdrew his motion for legal custody. On August 6, 2010, the statе moved for permanent custody, and Father renewed his motion for legal custody on August 31, 2010.
{¶5} At various times since M.O. was adjudicated dependent, Father has had several visitation schedules including supervised visits, unsupervised day visits, and overnights. However, Mother has never had unsupervised visitations due tо her substance abuse problems. WCCS worked with Mother and Father to develop a case plan, which called for clean drug screens, mental health assessments, as well as stable employment and housing. Neither Father nor Mother has been able to maintain the employment and housing called for in the plans.
{¶6} After WCCS moved for permanent custody, the juvenile court held a three-day hearing during which it heard testimony from Mother, Father, Amy McReynolds, and children‘s therapist Deborah Joy, as well as case workers from WCCS, the children‘s guardian ad litem (GAL), and two witnesses who tеstified to Father‘s past housing and employment situations. The juvenile court granted permanent custody to WCCS and terminated all of Mother and Father‘s parental rights and responsibilities. Mother and Father filed separate appeals, raising the following assignments of error.
{¶7} Father‘s Assignment of Error No. 1:
{¶8} “THE COURT ERRED IN GRANTING PERMANENT CUSTODY OF THE CHILD TO WARREN COUNTY CHILDREN‘S SERVICES.”
{¶9} Mother‘s Assignment of Error No. 1:
{¶10} “THE TRIAL COURT ERRED IN FINDING, BY CLEAR AND CONVINCING EVIDENCE, THAT THE BEST INTEREST OF THE CHILD, PURSUANT TO THE FACTORS SET FORTH IN R.C. 2151.414(D), WAS REACHED BY GRANTING PERMANENT CUSTODY TO WARREN COUNTY CHILDREN SERVICES.”
{¶11} In their first assignmеnt of error, Mother and Father argue that the juvenile court erred in granting custody to WCCS. This argument lacks merit.
{¶12} Before natural parents’ constitutionally protected liberty interest in the care and custody of their child may be terminated, the state is required to prove by clear and сonvincing evidence that the statutory standards for permanent custody have been met. Santosky v. Kramer (1982), 455 U.S. 745, 759, 102 S.Ct. 1388. An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to whether sufficient credible evidence exists to support the juvenile court‘s determinаtion. In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶16. A reviewing court will reverse a finding by the juvenile court that the evidence was clear and convincing only if there is a sufficient conflict in
{¶13} Pursuant to
{¶14} The juvenile court found by clear and convincing evidence, and Mother and Father do not deny, that M.O. has been in the temporary custody of WCCS for more than 12 months of a consecutive 22-month period as of the date WCCS filed the permanent custody motion. However, Mother and Fаther dispute the juvenile court‘s finding that granting permanent custody of M.O. to WCCS is in the child‘s best interest.
{¶15}
{¶16} “(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;
{¶17} “(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;
{¶18} “(с) The custodial history of the child, including whether the child has been in
{¶19} “(d) The child‘s neеd for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
{¶20} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶21} With respect to
{¶22} The record indicates that M.O. has rapidly progressed since the time she entered the foster family‘s care two years ago. When M.O. first arrived at the McReynolds, she was recovering from dental surgery in which 10 of her baby teeth were removed, and two teeth were unsuccessfully capped. After the two capped teeth were removed, M.O. was left with eight of her 20 baby teeth. Upon her arrival with the McReynolds, M.O. was also sickly, scared, and clingy, and vomited and had a watery diarrhea. M.O. knew only a few words, and was forced to use nonverbal communication techniques with her foster family.
{¶23} Since her time with the McReynolds, M.O. has developed rapidly. She is now potty trained, speaks very well, and attends preschool where she is doing well socially and academically. M.O. also responds well to discipline and correction from the McReynolds, and behaves well for them. M.O. has also benefited from weekly sessions with children‘s therapist, Deborah Joy.
{¶24} The record also indicates that M.O. has responded negatively tо visitation with
{¶25} Amy McReynolds testified that M.O.‘s behavior after returning from visits was often “chaotic” and that she would demonstrate angry or aggressive behavior such as hitting the family‘s dogs, kicking the seats of Amy‘s van, squeezing her baby doll‘s head, or fighting with her foster siblings. After one visit, M.O. punched the van window with her fist after Mother hugged her and shut the door. M.O. also pointed to angry or sad faces during her sessions with Deborah Joy when asked to point to the face that describes her feelings after visits.
{¶26} After returning from visits, M.O. would also exhibit signs of regressive behavior such as being “clingy” with Amy, speaking “baby talk,” wanting to be held like a baby, having nightmares, or purposely moving her bowls on the bathroom floor instead of using the toilet. Amy also testified that Mother and Father would return M.O.‘s clothes after their visits and that they would oftеn be wet with urine or smelling heavily of smoke.
{¶27} With respect to
{¶28} According to the reсord, M.O.‘s GAL testified at the hearing and recommended that the juvenile court grant permanent custody to WCCS because Mother and Father are unable to provide for M.O.‘s needs and have not shown the stability necessary to support M.O. The GAL also stated that M.O. has thrived with her foster family and that removing her
{¶29} With respect to
{¶30} With respect to
{¶31} According to the record, M.O. repeatedly questions her situation as it relates to Mother and Father, and needs constant reassurance of her position. During the first therapy session, Deborah Joy explained to M.O. that she was placed with the McReynolds because Mother and Father were unable to care for her. M.O., who refers to thе explanation as “the sad story,” asks Joy and the McReynolds to tell her the sad story and questions why she was not born to the McReynolds instead of Mother and Father. Amy McReynolds testified that even though she and her husband encouraged M.O. to call them by the names Mi-Mi and Dew, she refers to them as Mоmmy and Dad the majority of the time.
{¶32} The juvenile court also considered Mother and Father‘s inability to maintain stable housing and employment, and that they move frequently and change jobs on a regular basis. At the time of the hearing, the record indicates that Mother and Father had been еffectively homeless for several periods during the pendency of the case, have been evicted from homes, and that they were residing in a hotel room at the time of the hearing.
{¶33} Similarly, neither party is able to maintain stable employment. Due to Mother‘s
{¶34} The juvenile court found that the factors in divisions (E)(7) to (11) of
{¶35} After reviewing the record, we find sufficient credible evidence to support the juvenile court‘s determination that granting WCCS permanent custody is in M.O.‘s best interest. Mother‘s and Father‘s first assignments of error are overruled.
{¶36} Father‘s Assignment of Error No. 2:
{¶37} “THE COURT ERRED IN RELYING ON OHIO REVISED CODE §2151.414(D)(2) IN MAKING ITS DECISION ON PERMANENT CUSTODY.”
{¶38} In his second assignment of error, Father claims that
{¶39} Initially, we note that Father did not assert this argument to the juvenile court, and has therefore waived this argument on appeal. “The failure to raise at the trial court level the constitutionality of a statute or its application, when the issue is apparent at the time of trial, waives the issue and deviates from this state‘s orderly procedure. The issue therefore
{¶40} Even so, Father‘s argument that
{¶41} As stated in In re Workman, “inherent within
{¶42} Prior to WCCS instituting a permanent custody proceeding under
{¶43} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.