IN RE: S.H.
CASE NOS. CA2020-02-023, CA2020-02-024
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
6/29/2020
2020-Ohio-3499
S. POWELL, J.; HENDRICKSON, P.J., and RINGLAND, J., concur.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2019-0064
Amy R. Ashcraft, 284 N. Fair Ave., Hamilton, Ohio 45011, for CASA
The Search Law Firm, Lorraine M. Search, 6 S. Second Street, Suite 309, Hamilton, OH 45011, for appellant, father
Garrett Law Offices, Dawn S. Garrett, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, for appellant, mother
Legal Aid of Southwest Ohio, LLC, Tracy A. Jackson, 10 Journal Square, Third Floor, Hamilton, Ohio 45011, guardian ad litem
O P I N I O N
S. POWELL, J.
{¶ 1} Appellants, the biological parents of S.H. (“mother” and “father” individually), appeal the decision of the Butler County Court of Common Pleas, Juvenile Division,
{¶ 2} On May 2, 2018 BCCS filed a complaint against appellants alleging that S.H. — eight years old at the time — was an abused, neglected, and dependent child. The basis for the complaint was appellants’ failure to provide medical treatment and management for S.H.‘s type I diabetes which led to her suffering a near-fatal health crisis that required intensive care in the hospital. The juvenile court granted an emergency order to remove S.H. from appellants’ home and place her in BCCS‘s temporary custody. From May to August, appellants had supervised visitation with the child. However, in August 2018, the juvenile court suspended mother‘s visitation privileges because of her repeated violations of visitation policy. Around this time, appellants were indicted on several felony offenses including, among other things, child endangering, a third-degree felony. The criminal charges stemmed from the same events that triggered the abuse, neglect, and dependency complaint and the child‘s removal from her parents’ home. As a result of the pending criminal charges, the juvenile court ordered appellants to have no contact with S.H.
{¶ 3} On February 12, 2019, BCCS filed a new complaint, alleging that S.H. was an abused, neglected, and dependent child based on the same allegation in the former complaint and an additional allegation that appellants failed to provide for S.H.‘s appropriate educational development.1 In the complaint, BCCS sought permanent custody of the child. BCCS further moved, ex parte, for a renewed no-contact order between appellants and S.H because of the pending criminal charges. That same day, the juvenile court granted the
{¶ 4} This matter proceeded to an adjudicatory hearing on August 6, 2019, wherein appellants stipulated that S.H. was abused and dependent. Based on the stipulations, the juvenile court adjudicated S.H abused and dependent. Appellants moved the court for a reinstatement of visitation privileges with S.H. BCCS and the guardian ad litem opposed the motion, arguing that because BCCS sought permanent custody as the original disposition, it would not be in the child‘s best interest to grant appellants interim visitation privileges. In a written decision, the juvenile court further ordered that visitation may be “liberalized.”
{¶ 5} Subsequently, at the dispositional hearing on September 30, 2019, the magistrate heard testimony from both appellants, the assigned case worker from BCCS, and S.H.‘s foster mother. The juvenile court also received into evidence several documentary exhibits including certified copies of court records for the criminal case, including the judgments of conviction for both mother and father. Following this hearing, on October 30, 2019, the magistrate issued its written decision granting permanent custody of S.H. to BCCS. Appellants filed objections to the magistrate‘s decision and the juvenile court overruled those objections in a decision entered on January 16, 2020.
{¶ 6} Appellants now appeal. Mother assigns two errors for review and father assigns one error for review. For ease of analysis we will discuss the assigned errors out of order and appellants’ similar assigned errors together.
{¶ 7} Mother‘s Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT‘S DECISION TO DENY PARENTING TIME DURING THE CASE AND TO GRANT THE AGENCY PERMANENT CUSTODY OF THE CHILDREN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE FOR THE FOLLOWING REASONS: (1) THE
{¶ 9} Father‘s Assignment of Error:
{¶ 10} THE JUVENILE COURT‘S JUDGMENT GRANTING THE MOTION FOR PERMANENT CUSTODY TO BUTLER COUNTY CHILDREN SERVICES (“BCCS“) WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 11} In their respective assignments of error, appellants essentially present two issues. Initially, they assert that BCCS failed to make reasonable efforts as required by
Reasonable Efforts
{¶ 12} Mother contends that she was not given an opportunity to reunify with S.H., in part because a case plan was not adopted by the court. A public children services agency “shall prepare and maintain” a case plan when it files a complaint alleging abuse, neglect, or dependence; or has temporary or permanent custody of the child.
{¶ 13} Appellants together argue that the magistrate erred when it found that BCCS made reasonable efforts to “reunify” the family pursuant to
[t]he court shall not issue a dispositional order pursuant to
division (A) of this section [that is, R.C. 2151.353 ] that removes a child from the child‘s home unless the court complies with section2151.419 of the Revised Code and includes in the dispositional order the findings of fact required by that section.
Pursuant to
{¶ 14} In the dispositional order, the magistrate made the findings of fact required by
{¶ 15} After our review of the record, the magistrate‘s findings as to the reasonableness of BCCS‘s efforts are supported by the record. Appellants testified generally of their understanding of the requirements of the case plan. While their testimony implied that they did not fully appreciate the case plan requirements, it was clear that the
{¶ 16} Moreover, the case worker testified about her fruitless efforts to contact appellants multiple times between September 2018 and January 2019. The case worker further testified that while appellants were eventually removed from the agency‘s prior case plan due to their lack of involvement, the agency reinstated appellants in the case plan when the instant case was initiated. Moreover, the case worker testified that in order to resume visitation with S.H. appellants had to demonstrate to the agency that they understood and accepted the reasons for the child‘s removal. Nevertheless, appellants failed to communicate with BCCS to demonstrate their understanding of the situation or their progress on case plan requirements. Appellants also did not request to use the agency‘s resources. This lack of communication persisted even after appellants resolved their criminal cases. Considering these facts, the magistrate did not err in finding that BCCS made reasonable efforts in this matter.
Permanent Custody Determination
{¶ 17} A public children services agency may seek permanent custody of a child in an abuse, neglect, or dependency proceeding in one of two ways. It may either request in the complaint that the juvenile court grant permanent custody as the original dispositional order or the agency may later seek permanent custody after an initial dispositional order granted that agency temporary custody. In re T.K.K., 12th Dist. Butler No. CA2012-01-008, 2012-Ohio-3203, ¶ 22; In re C.S., 12th Dist. Warren No. CA2018-07-080, 2018-Ohio-4786, ¶ 21. In this case, BCCS sought permanent custody in its complaint as the original dispositional order, therefore the statutory provision of
{¶ 18} Pursuant to
{¶ 19} On review, an appellate court is generally limited to determining whether sufficient, credible evidence exists to support the decision to grant permanent custody. In re W.J.T., 12th Dist. Butler No. CA2019-03-047, 2019-Ohio-3051, ¶ 22. Nevertheless, an appellate court may review the judgment as to whether it is against the manifest weight of the evidence. In re A.A., 2016-Ohio-2992 at ¶ 7, citing In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19. To determine whether the judgment is against the manifest weight of the evidence, an appellate court will weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. In re T.P. at ¶ 19, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.
{¶ 20} As to the first prong,
{¶ 21} Here, the magistrate determined that S.H. could not be placed with either parent within a reasonable time because several of the
{¶ 22} Regarding the seriousness of the health crisis, the magistrate found that
{¶ 23} The magistrate further found that appellants did not adequately provide for S.H.‘s educational and academic development. At the time the child entered the foster home, S.H. should have performed at a third-grade level based on her age. Unfortunately, S.H. functioned at a pre-school level when the foster family enrolled her in school. Therefore, S.H. required substantial remedial efforts. S.H. made significant progress to catch up, nevertheless she remains two years behind the age-appropriate school level. Therefore, the magistrate found that
{¶ 24} Finally, the magistrate determined that
{¶ 25} After our review of the record, there is sufficient, credible evidence to support the magistrate‘s findings pursuant to
{¶ 26} Regarding the other factors, the foster mother testified that S.H.‘s diabetes required continuous supervision throughout the day and night and that the foster family utilized sophisticated medical equipment to manage her health. Despite this constant need, S.H. had not suffered a serious health issue while in the foster home and was presently in good health. Furthermore, many of the adverse effects from the health crisis had subsided. Meanwhile, neither parent sought out BCCS‘s resources or dedicated training by medical professionals, although they attended support and information groups regarding diabetes.
{¶ 27} Appellants’ testimonies demonstrated that they had a limited understanding of how to care for and manage S.H.‘s health needs. When S.H. was first diagnosed, mother admitted that the hospital required her to receive training on the proper methods to manage S.H.‘s diabetes and provided a nurse to visit them at home. Nevertheless, mother blamed the health crisis on the hospital for failing to adequately train her. Moreover, mother acknowledged that between the initial diagnosis and the manifestation of the health crisis, she took S.H. to an urgent care facility on two occasions because of S.H.‘s deteriorating health but did not tell those medical providers about S.H.‘s diabetic condition. Neither parent offered any further explanation for why they failed to manage S.H.‘s health.
{¶ 28} Regarding S.H.‘s education development, the foster mother testified that S.H.‘s lower-than-normal academic performance does not stem from any developmental disabilities but is merely the result of not receiving appropriate schooling. The foster mother testified that S.H. had progressed academically while living in the foster home, but she still remained two years behind the normal grade level for her age. Again, neither appellant
{¶ 29} Consequently, it is apparent from the record that there was sufficient evidence to satisfy the first prong of the
{¶ 30} Turning to the second prong of the test, the magistrate determined that it was in S.H.‘s best interest to grant BCCS permanent custody. Pursuant to
(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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code , the child was previously in the temporary custody of an equivalent agency in another state;(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.
In considering the child‘s best interest, no one factor is given greater weight than the others.
{¶ 31} The magistrate found that it was in S.H.‘s best interest to grant BCCS permanent custody. Each of the
{¶ 32} Again, after our review of the record, there was sufficient, credible evidence to support the magistrate‘s findings as to S.H.‘s best interest to satisfy the second prong of the
{¶ 33} Appellants specifically contest the magistrate‘s determination that S.H.‘s
{¶ 34} Based on the foregoing, and after carefully reviewing the record in this case, there was sufficient credible evidence to grant permanent custody to BCCS. Furthermore, the juvenile court did not clearly lose its way in weighing the evidence and deciding to grant permanent custody. Therefore, the decision was not against the manifest weight of the evidence. Accordingly, mother‘s second of assignment of error and father‘s sole assignment of error are overruled.
{¶ 35} Mother‘s Assignment of Error No. 1:
{¶ 36} THE TRIAL COURT‘S DECISION TO DENY PARENTING TIME DURING THE CASE WAS AN ABUSE OF DISCRETION WHICH PRECLUDED PARENTS FROM WORKING TOWARD REUNIFICATION
{¶ 37} In her first assignment of error, mother argues that the juvenile court erred by not allowing visitation of S.H. during the pendency of the case because this necessarily undermined reunification prospects.
{¶ 38} “While regular and frequent visitation between children and parents is
{¶ 39} The record shows that mother‘s visitation privileges were initially suspended in August 2018 because of her repeated violations of the visitation center‘s rules. One of the noted violations was mother surreptitiously brought scissors into the visitation center and cut S.H.‘s hair, despite being told by the staff not to cut her hair. Another violation was mother discussed inappropriate topics with S.H., such as, asking S.H. where the foster family lived, downplaying the seriousness of S.H.‘s medical condition, and casting suspicion on S.H.‘s safety in an upcoming vacation trip with the foster family.
{¶ 40} Then, in September 2018, the juvenile court ordered appellants to have no contact with S.H. as a result of their pending criminal charges. This no-contact order was continued in February 2019 when BCCS filed its complaint in the instant matter, however, on February 14, 2019 the magistrate issued a written order in which the court allowed for
{¶ 41} After review of the record, it was not an abuse of discretion, much less plain error, for the juvenile court to limit visitation as it did. When the visits were initially suspended, mother was found to have violated the visitation center‘s rules of conduct. While mother argues that the initial reasons for suspending visitation were essentially trivial, she does not deny that she violated the visitation center‘s rules. Neither does mother contest the juvenile court‘s grounds for issuing the no-contact order. Furthermore, the record establishes that the juvenile court provided that visitation may be “liberalized” should appellants demonstrate to BCCS that they could safely and appropriately conduct themselves during a visit. Mother has not pointed to anything in the record to show she contacted the agency to so demonstrate her ability to appropriately conduct herself. Therefore, the juvenile court did not err when it initially suspended and then limited mother‘s visitation privileges. Accordingly, mother‘s first assignment of error is overruled.
{¶ 42} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.