In re M.P.
Rendered on December 2, 2010
Robert J. McClaren, for appellee Franklin County Children Services.
Yeura R. Venters, Public Defender, and Allen V. Adair, guardian ad litem.
David A. Sams, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
BRYANT, J.
{¶1} Appellant, D.P, mother of M.P. and N.P., appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting the permanent custody motion of appellee, Franklin County Children Services (“FCCS“), and terminating appellant‘s parental rights regarding M.P. and N.P. (“the children“). Appellant assigns a single error:
THE JUVENILE COURT ERRED IN GRANTING PERMANENT CUSTODY TO FRANKLIN COUNTY CHILDREN SERVICES
Because the trial court did not err in granting FCCS’ motion for permanent custody and terminating appellant‘s parental rights, we affirm.
I. Facts and Procedural History
{¶2} On October 18, 2002, FCCS filed a complaint that alleged the children were neglected and dependent children, resulting in the children‘s removal from appellant‘s home and FCCS’ obtaining temporary custody of the children. In October of 2004, the trial court awarded legal custody of the children to a maternal aunt and uncle who relinquished legal custody in July 2005. FCCS once again obtained temporary custody of the children.
{¶3} FCCS filed a motion for permanent custody on May 18, 2007 but subsequently amended the motion to one requesting a Planned Permanent Living Arrangement (“PPLA“) pursuant to
{¶4} The trial court conducted a trial on the motion over the three-day period from March 8 to March 10, 2010 during which the Franklin County Public Defender served as guardian ad litem for the children, while separate counsel represented the children. At the hearing, FCCS presented testimony from Lisa Chakroff, a counselor in the treatment foster care department at Star Commonwealth Hannah Neil Center for Children. The trial court qualified Chakroff as an expert in the field of counseling and child therapy.
{¶6} Each child also had an Individualized Education Plan (“IEP“) at school. N.P.‘s plan focused on his “severe” emotional disturbance and the behavioral issues that accompanied it, while M.P.‘s plan focused on his “cognitive delays.” (Tr. Vol. I, 32.) Chakroff testified she discussed the children‘s special needs with appellant but appellant‘s response was “erratic,” so that “sometimes [appellant] would comfort and nurture them” but “other times she would become hostile and volatile, yelling at them, becoming very agitated and anxious and the session had to be ended.” (Tr. Vol. I, 33.) Eventually, Chakroff discontinued the counseling sessions with appellant because the children were not benefitting from them.
{¶7} Chakroff testified she saw little progress in the children until the fall of 2009. They then began to respond positively to their foster parents, and their behavior in the home stabilized, even though they continued to act out at school. The children were on “a
{¶8} In Chakroff‘s opinion, the children had “a connection” to appellant and recognized she is their mother, but they did not have a connection “in terms of day-to-day interactions and in a sense that she can meet their emotional and behavior needs.” (Tr. Vol. I, 38-39.) Chakroff did not believe appellant could meet the children‘s day-to-day needs because appellant was inconsistent with her attendance and “erratic in her ability to understand and hear what they say when they verbalize concerns or when behavioral issues arise.” (Tr. Vol. I, 39.) Chakroff recommended permanency for the children and supported FCCS’ motion for permanent custody.
{¶9} FCCS also presented the testimony of the various caseworkers assigned to the children‘s case. Tia Goodlett, the FCCS caseworker between October 27, 2006 and September 11, 2009, testified FCCS provided appellant with a case plan to reunify appellant with her children. Goodlett explained the case plan objectives to appellant on various occasions, including the need to complete random drug screens and maintain sobriety, complete a psychological evaluation and comply with the recommendations, participate in a parenting education program, and maintain housing and income sufficient for the basic needs of her family.
{¶10} According to Goodlett, appellant‘s compliance with the case plan was lacking. While appellant completed parenting classes in 2008, appellant did not comply with the recommendations from her psychological evaluation, completed only eight of 32 drug screens, did not comply with drug treatment, and failed to complete individual counseling despite Goodlett‘s referrals to various counseling providers. As late as June 2,
{¶11} According to Goodlett, she discussed adoption with the children, and they “seem[ed] eager to have permanency.” (Tr. Vol. II, 53.) Goodlett did not believe appellant understood the children‘s problems and needs, and Goodlett supported FCCS’ motion for permanent custody.
{¶12} Tuong-Vi Vo is the ongoing caseworker who received the case on August 9, 2009, after FCCS filed its permanent custody motion. Vo discussed the case plan with appellant, but appellant did not complete individual counseling, did not implement what she learned from parenting classes, and was unable to nurture and reassure the children. Vo described an incident in which appellant caused M.P. to cry when she told the children it was not her fault they could not go home. Vo described another incident in which appellant not only told M.P. she did not believe the allegations he made against her but told him he should take a lie detector test, again causing M.P. to cry.
{¶13} According to Vo, appellant continued to miss IEP meetings at the school, despite FCCS’ arranging for transportation for her, and in doing so demonstrated a lack of understanding of the children‘s special needs. Vo did not feel visitation could be increased with appellant or the children could be returned to appellant‘s care. Ultimately, Vo testified she favors adoption for the children after FCCS obtains permanent custody,
{¶14} The children‘s lay guardian ad litem since 2002, Elizabeth Jukubiak, testified that when she first met the children in appellant‘s home, “they were some of the most out of control kids” she had ever seen. (Tr. Vol. II, 119.) Jukubiak stated she has “seen a remarkable growth in the children” that she attributed to the “enormous structure” provided by their foster home, as well as the consistent medication and counseling provided since FCCS opened their case. (Tr. Vol. III, 9.) Jukubiak also described a visit on October 5, 2009 in which “it was sort of startling” to see “how much the children had gained insight,” with M.P. in particular “coming to grips in his own mind with the fact that his mother wasn‘t able to parent him.” (Tr. Vol. II, 123.) During that same visit, appellant demonstrated an inability to understand her son‘s emotional state.
{¶15} Jukubiak testified the children‘s wishes have changed over time. Jukubiak testified the children have a bond with their mother but it is a dysfunctional one. While they at first may have wished for reunification, by the time of the hearing they had “finally come to terms with the idea of not being reunified with their mom” and “they are ready to move on” and “very much wish to have a forever family.” (Tr. Vol. III, 17.) She stated the children understood the difference between their foster home and a forever family. As a result, Jukubiak supported FCCS’ motion for permanent custody.
{¶16} Peter Chimbidis, the attorney guardian ad litem, testified that returning the children to appellant would be “absolutely unacceptable.” (Tr. Vol. III, 38.) He stated the children want the motion for permanent custody to be granted so they may be placed for
{¶17} Appellant also testified at the hearing. Much of her testimony was confusing, was hard to follow, and contained many statements stricken as non-responsive to the question. Appellant, however, testified the children were removed from her care in 2002 when one of her older children brought marijuana to school. At the time of the hearing, appellant was not employed and her only income was Social Security in the amount of $675 per month and an additional $200 per month in food stamps.
{¶18} When asked about her children‘s special needs, appellant testified that all her children needed to address their special needs was “comfort, love.” (Tr. Vol. I, 96.) She testified she understood the children have IEPs to control “their anger and their temper and their emotions.” (Tr. Vol. I, 99.) Appellant, however, stated the medication given to her children made them look like zombies, though she did not know what kind of medicine they were taking. She also acknowledged that her children had significant behavioral issues and needs with which she was not familiar. Appellant also repeatedly alleged she had completed various portions of the case plan but that someone lost her paperwork. Appellant nonetheless agreed she did not complete enough of the case plan to allow her children to return home.
{¶19} The trial court conducted separate in camera interviews with the children to ascertain their wishes. The court reported the children wanted to be adopted.
{¶20} Following the hearing, the trial court issued a decision and judgment entry filed on April 19, 2010. The trial court concluded FCCS demonstrated, by clear and convincing evidence, “that granting permanent custody of [the children] to the agency is
II. Analysis
{¶21} In her sole assignment of error, appellant asserts the trial court erred in granting permanent custody of the children to FCCS. More specifically, appellant asserts the trial court erred in converting a PPLA into permanent custody. Appellant further contends the trial court erred in finding permanent custody to be in the best interest of the children.
A. Permanent Custody after PPLA
{¶22} Appellant first asserts the trial court erred in converting the children‘s living arrangement from a PPLA to permanent custody with FCCS when the status quo served the goals of
{¶23} Initially, appellant cites no authority for her contention that a child who qualifies for PPLA cannot eventually qualify for permanent custody. Secondly, clear
{¶24} Ohio courts also recognize the evolving nature of such custody cases, granting motions for permanent custody where the children were previously in a PPLA. See, e.g., In re K.R., 5th Dist. No. 2009 CA 00061, 2009-Ohio-4350 (affirming trial court‘s grant of permanent custody where agency filed motion for permanent custody while child was in a PPLA); In re Hess, 5th Dist. No. 2007CA00262, 2008-Ohio-1920 (affirming trial court‘s grant of permanent custody to agency where child had previously been in a PPLA); In re J.I., 12th Dist. No. CA2005-05-008, 2005-Ohio-4920, ¶15 (affirming trial court‘s grant of permanent custody to agency where child was in a PPLA at time of motion for permanent custody, and noting “[w]hether a child is in a PPLA or in an agency‘s temporary custody, the agency can institute a permanent-custody action under
{¶25} Appellant next argues the trial court erred in granting FFCS’ motion for permanent custody because “FCCS did not use [its] best efforts to maintain the status quo.” (Appellant‘s brief, 5.) Appellant essentially challenges the manifest weight of the evidence.
{¶26} In order to terminate appellant‘s rights, FCCS was required to demonstrate by clear and convincing evidence that (1) one of the four factors enumerated in
{¶27} On appellate review, permanent custody motions supported by the requisite evidence going to all the essential elements of the case will not be reversed as against the manifest weight of the evidence. In re Brown, 10th Dist. No. 03AP-969, 2004-Ohio-3314, ¶11, citing In re Brofford (1992), 83 Ohio App.3d 869, 876-77; Abram at ¶9. Further, in determining whether a judgment is against the manifest weight of the evidence, the reviewing court is guided by the presumption that the findings of the trial court are correct. Brofford at 876, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and
{¶28}
{¶29} Here, the trial court found the children had been abandoned within the meaning of
{¶30} The trial court also found FCCS retained temporary custody of the children for a continuous period of greater than 22 months. The evidence at the hearing established that, following termination of the relative placement in 2005, the children were with their then current foster family for almost three consecutive years. No relatives were able to take permanent custody of the children. The evidence at the hearing thus supported the necessary finding under
{¶32} The trial court specifically addressed each of the factors set forth in
{¶33} Evidence at the hearing established the children are extremely bonded to one another and, although they also have a bond with their mother, they recognize she is unable to care for them on a day-to-day basis. They also are bonded with their foster family, expressed their wishes to be adopted, and demonstrated an understanding of the significance of the decision. The trial court also noted the children, ages 10 and 12 at the
{¶34} Appellant nonetheless suggests the trial court employed the incorrect statute in assessing the children‘s best interests. Appellant asserts the trial court should have conducted the best interest analysis under
{¶35}
{¶36} Based on the foregoing, we overrule appellant‘s single assignment of error.
III. Disposition
{¶37} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BROWN and CONNOR, JJ., concur.
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