In re P.E.
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.
S. POWELL, P.J.
{¶ 1} Appellant (“Mother“) appeals the decision of the Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of her child, P.E., III, to appellee, Clermont County Department of Job and Family Services (“CCDJFS“).1 For the reasons outlined below, we affirm.
{¶ 2} On January 25, 2021, a complaint was filed by CCDJFS alleging P.E., a boy born on June 16, 2011, was a neglected child. The complaint was filed shortly after Mother, who was oftentimes homeless, submitted to a drug screen at CCDJFS’ request that showed Mother had dangerously high levels of methamphetamine and fentanyl in her system. The juvenile court subsequently adjudicated P.E. as a neglected child on February 23, 2021, and thereafter issued a dispositional decision granting temporary custody of P.E. to CCDJFS on March 9, 2021.
{¶ 3} On June 6, 2022, CCDJFS moved for permanent custody of P.E. The juvenile court held a hearing on CCDJFS’ motion on December 9, 2022. This hearing was held before a juvenile court magistrate. During this hearing, the magistrate heard testimony from a total of four witnesses. This included testimony from the CCDJFS caseworker assigned to P.E.‘s case. As part of her testimony, the caseworker provided the following insight into Mother‘s repeated self-admissions into inpatient drug treatment, as well as Mother‘s homelessness, as follows:
There was a pattern that every time [Mother] got a new boyfriend and that relationship broke up she would sign herself into inpatient due to being homeless. So a lot of those were her going into them on her own; however, it was due to her being homeless.
{¶ 4} Mother also testified. As part of her testimony, Mother claimed that P.E. never would have been taken from her if a different caseworker had been assigned to the case. Specifically, as Mother testified regarding who she believed was actually at fault for P.E.‘s removal:
[The caseworker has] been out to get me since day one. And I‘m not just saying that. This woman has been out to get me. I have begged her director, I have begged her supervisor to get
me a new caseworker. No one would help me. I‘ve called and called and called people to help me. No one would get me a new caseworker. She is seriously – has been out to get me. She doesn‘t want to reunite my son with me. She‘s been out to get me.
{¶ 5} This is in addition to Mother, who admittedly had just a few weeks earlier checked herself into a psychiatric ward due to her suffering suicidal ideations, testifying:
I‘m telling you, Your Honor, the woman hates me. She‘s hated me from the day one and it‘s terrible. I‘ve tried and tried and tried. I would have had my son back by now if I would have had a different caseworker. And it‘s not just my mental health. It‘s – I‘m serious. I‘ve tried to get someone to help me. No one will.
{¶ 6} On March 2, 2023, the magistrate issued its decision recommending permanent custody of P.E. be awarded to CCDJFS. In so holding, the magistrate found CCDJFS had proven by clear and convincing evidence that P.E. had been in its temporary custody for a period well over 12 months of a consecutive 22-month period. The magistrate also found CCDJFS had proven by clear and convincing evidence that it would be in P.E.‘s best interest if CCDJFS was granted permanent custody. The magistrate reached this decision based, at least in part, upon finding P.E. preferred to be adopted rather than returned to Mother‘s custody and care “due to her inconsistency, and because of the numerous men in her life [with] whom she forced [P.E.] to call ‘Dad.‘”
{¶ 7} The magistrate further found P.E.‘s relationship with Mother was “tenuous” and that Mother‘s visits with P.E. were “inconsistent,” thereby demonstrating Mother‘s “lack of commitment” to P.E. and his special needs as an autistic child with serious behavioral and mental health issues. The magistrate also found Mother had “never verified employment,” that Mother was pregnant, and that Mother was engaged to a convicted sex offender with whom she planned to live with in a one-bedroom apartment with P.E. and her “future mother-in-law” once her fiancé was released from prison. This is in addition to the magistrate noting that Mother had “agreed that prior [drug] treatment programs had been
[Mother] does not have her own housing. She has only a small period of sobriety. Her history is full of unsuccessful treatment efforts. She blames her previous failures on others, rather than taking responsibility for her own addiction. She blames her failure to reunify on others, rather than taking responsibility for the consequences of her mental health and drug problems. Since she cannot take responsibility for her own life, it is unrealistic to think she could responsibly parent her son.
{¶ 8} On March 20, 2023, the juvenile court issued a final judgment entry affirming and adopting the magistrate‘s decision recommending it grant permanent custody of P.E. to CCDJFS. Mother did not file any objections to the magistrate‘s decision either before or after the magistrate had issued its decision on March 2, 2023. Rather, on April 13, 2023, Mother filed a notice of appeal. Per this court‘s scheduling order, Mother filed an appellate brief on May 12, 2023 challenging the juvenile court‘s decision, to which CCDJFS filed an answer brief on June 12, 2023. Mother‘s appeal now properly before this court for decision, Mother has raised one assignment of error for review.
Mother‘s Single Assignment of Error
{¶ 9} THE TRIAL COURT‘S DECISION TERMINATING [MOTHER‘S] PARENTAL RIGHTS IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶ 10} In her single assignment of error, Mother challenges the juvenile court‘s decision to grant permanent custody of P.E. to CCDJFS. However, as noted above, Mother never objected to the magistrate‘s March 2, 2023 decision recommending the juvenile court grant CCDJFS’ motion for permanent custody. Mother instead filed a notice of appeal. “By failing to object to the magistrate‘s decision in a case involving termination of parental rights,” such as the case here, “an appellant waives the right to assign as error on appeal the trial court‘s adoption of any finding of fact or conclusion of law.” In re Stephens, 12th Dist. Butler Nos. CA2001-01-018 and CA2001-01-021, 2001-Ohio-8711, 2001 Ohio App. LEXIS 4451, *4 (Oct. 1, 2001). The Rules of Juvenile Procedure similarly “provides that, except for a claim of plain error, a party waives the right to assign error on appeal with respect to the juvenile court‘s adoption of any factual finding or legal conclusion ‘unless the party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).‘” In re M.R., 12th Dist. Butler Nos. CA2018-07-145 thru CA2018-07-147, 2018-Ohio-5047, ¶ 16, quoting
{¶ 11} “This rule ‘embodies the long-recognized principle that the failure to draw the trial court‘s attention to possible error when the error could have been corrected results in a waiver of the issue for purposes of appeal.‘” In re R.A., 8th Dist. Cuyahoga No. 110541, 2021-Ohio-4126, ¶ 23, quoting In re Etter, 134 Ohio App.3d 484, 492 (1st Dist.1998) (“[t]he waiver under
{¶ 12} Nowhere within Mother‘s brief does she assert a claim of plain error. “This court has previously ruled that unless the appellant argues a claim of plain error, the appellant has waived claimed errors not objected to below.” In re K.S., 12th Dist. Butler No. CA2022-09-081, 2023-Ohio-1951, ¶ 34. Therefore, under normal circumstances, Mother would ordinarily be precluded from challenging the juvenile court‘s permanent
Mother‘s Argument and Analysis
{¶ 13} To support her single assignment of error, Mother argues the juvenile court erred by finding a grant of permanent custody to CCDJFS was in P.E.‘s best interest. This is because, according to Mother, the juvenile court‘s decision was not supported by sufficient evidence and was against the manifest weight of the evidence. We disagree.
Sufficiency and Manifest Weight Standards
{¶ 14} “An appellate court‘s review of a juvenile court‘s decision granting permanent custody is generally limited to considering whether sufficient credible evidence exists to support the juvenile court‘s determination.” In re D.P., 12th Dist. Butler No. CA2020-07-074, 2020-Ohio-6663, ¶ 13. That is to say, the juvenile court‘s decision to grant permanent custody must be supported by sufficient evidence. See In re S.W., 12th Dist. Preble Nos. CA2022-08-013 and CA2022-08-014, 2023-Ohio-118, ¶ 26. “However, even if the juvenile court‘s decision is supported by sufficient evidence, ‘an appellate court may nevertheless conclude that the judgment is against the manifest weight of the evidence.‘” In re C.S., 12th Dist. Clinton No. CA2020-04-006, 2020-Ohio-4414, ¶ 15, quoting In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19.
{¶ 15} In determining whether a juvenile court‘s decision is against the manifest weight of the evidence, this court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the
The Applicable Two-Party Permanent Custody Test
{¶ 16} The state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met before a natural parent‘s constitutionally protected liberty interest in the care and custody of her child may be terminated. In re R.K., 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio-3074, ¶ 14, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982).
{¶ 17} The juvenile court in this case reviewed and considered each of the best interest factors set forth in
{¶ 18} Despite this, Mother argues the juvenile court‘s decision to grant permanent custody to CCDJFS was an error when considering her testimony “that she believes she has a strong relationship with P.E.,” as well as her testimony that she and P.E. talk “a lot” and are “very bonded.” However, even assuming the record supported Mother‘s claims, “it is well established that permanent custody is not contrary to a child‘s best interest simply because a parent loves their child and the two share a strong bond.” In re G.A., 12th Dist. Clermont No. CA2022-11-079, 2023-Ohio-643, ¶ 27. This is instead “one factor to be considered when determining the best interest of a child in a permanent custody proceeding.” In re G.W., 12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 48. This
{¶ 19} Mother also argues the juvenile court‘s decision to grant permanent custody of P.E. to CCDJFS was an error when considering her testimony that she had been in an inpatient drug treatment program “for almost one month” prior to the permanent custody hearing. Mother further argues the juvenile court‘s decision was an error because she testified “that she is meeting with a psychologist and a mental health counselor to help with her mental health issues.” Mother argues that this is in addition to her testimony “that there are multiple employment opportunities within walking distance of her home,” which included several fast food restaurants and a gas station, thereby negating any concerns the juvenile court may have had regarding her status as an unemployed, non-college educated woman with no driver‘s license or car.
{¶ 20} But, even assuming Mother was able obtain one of those jobs, that does not negate the fact that Mother had only just recently regained her sobriety after repeatedly testing positive for drugs during the pendency of this case. It also does not negate the fact that Mother, who has been diagnosed with bipolar disorder, anxiety, ADHD, and PTSD, was at that time pregnant and engaged to a convicted sex offender with whom she planned to live in a one-bedroom apartment with P.E. and her “future mother-in law” upon her fiancé‘s release from prison. “The key concern in a permanent custody proceeding is ‘whether the parent has substantially remedied the concerns that caused the child‘s removal from the parent‘s custody.‘” In re D.B., 12th Dist. Warren Nos. CA2019-06-065 thru CA2019-06-067, 2019-Ohio-4514, ¶ 11, quoting In re S.M., 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 24. The record in this case firmly establishes that Mother did not remedy the concerns that led to P.E.‘s removal from her care, let alone substantially remedy those concerns. This remains true despite Mother having nearly 19 months to do so.
{¶ 22} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.