IN THE MATTER OF: S.S., D.S., and L.M.
Appellate Case No. 2011-CA-07
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
November 4, 2011
[Cite as In re S.S., 2011-Ohio-5697.]
Trial Court Case Nos. 20730426, 20730427, 20730428; (Criminal Appeal from Common Pleas Court)
Rendered on the 4th day of November, 2011.
JEANNINE N. PRATT, Atty. Reg. #0064699, Miami County Prosecutor‘s Office, Miami County Safety Building, 201 West Main Street, Troy, OH 45373 Attorney for Appellee
GARY C. SCHAENGOLD, Atty. Reg. #0007144, 4 East Schantz Avenue, Dayton, Ohio 45409 Attorney for Appellant
HALL, J.
{¶ 1} This case is before the Court on a mother‘s appeal of a juvenile-court order granting permanent custody of three of her children1 to appellee, Miami County Children‘s Services. Two of the children, S.S. (daughter) and D.S. (son), are
{¶ 2} In 2007, under an agreed order, the children were adjudicated dependent, and Children‘s Services obtained protective supervision of them, though they remained with Mother in their home. But in April 2008, after two of the children were found wandering outside unsupervised, Children‘s Services removed the children from their home and received temporary custody of them. This too was done under an agreed order. Mother was convicted on two counts of endangering her children and sentenced to probation. On March 30, 2009, the day before Mother was to be released from jail (where she had been for the past month or so for violating her probation by using illegal drugs) Children‘s Services moved for permanent custody of the three children.
{¶ 3} The permanent-custody hearing was held on June 10, 2009, before a magistrate. The magistrate found that, at the time the permanent-custody motion was filed, almost a year after the children were removed, Mother had failed to make any progress on the plan that would reunite her with the children. The magistrate further found that, since they were removed, Mother had not seen the children at all because she never provided Children‘s Services with a clean urine screen. Finally, the magistrate found that, even though Mother had recently begun making progress, she would not be ready to care adequately for the children for at least another six months. Based primarily on these findings, the magistrate recommended that Children‘s Services be granted permanent custody of all three children. Mother
{¶ 4} In March 2011, the juvenile court overruled all but one of Mother‘s objections. The court again adopted the magistrate‘s recommendation, granting Children‘s Services permanent custody of the children.
{¶ 5} Mother appealed.2
A. Standard of Review
{¶ 6} A juvenile court‘s decision to grant permanent custody, and concomitantly terminate parental rights, must be supported by clear and convincing evidence. See In re L.C., Clark App. No. 2010 CA 90, 2011-Ohio-2066, at ¶ 14, citing
{¶ 7} The ultimate decision to grant permanent custody of a child to a children‘s services agency is within the court‘s discretion. See
B. A Court‘s Power to Grant Permanent Custody to a Children‘s Services Agency
{¶ 8}
C. The Determination that the Children Cannot be Placed with Mother within a Reasonable Time or Should Not be Placed with Her
{¶ 9} The condition that the magistrate determined applies here is the one described in
{¶ 10} In the first assignment of error, Mother contends that the evidence is insufficient to support the court‘s finding that she demonstrated a lack of commitment toward the children. Mother also contends that it would be reasonable to wait six months to place the children with her.
{¶ 11} Mother admits that she abused drugs for over 10 years. In 2003, she underwent in-patient drug rehabilitation, but in 2008, she was still using drugs regularly. Most often Mother used marijuana, but she also used crack cocaine, powered cocaine, and heroin. She also abused prescription medicine—some
{¶ 12} Children‘s Services became involved in 2007. At that time, under an agreed order, the children were adjudicated dependent and Children‘s Services was granted protective supervision of them, though the children remained in their home. In April 2008, two of the children were found wandering about outside unsupervised. Children‘s Services immediately removed the children and, under an agreed order, was granted temporary custody. Mother was convicted on two counts of child endangering and sentenced to 2 years of probation.
{¶ 13} Children‘s Services developed a case plan for Mother the goal of which was her reunification with the children. At the time that Children‘s Services moved for permanent custody almost a year later, Mother had failed to make any progress on the plan. The plan required Mother, in part, to participate in individual therapy and to follow all the therapist‘s recommendations; to attend weekly AA/NA meetings and provide proof of attendance; to obtain a sponsor to help her recovery; to participate in developing, and successfully complete, a budget with the help of a Children‘s Services case aide; to take the medication that she was prescribed in the amount prescribed; and to submit to random urine screens. The case plan allowed Mother to visit with the children provided that her urine screens were negative for illegal drugs.
{¶ 14} Clean drug screens were also a condition of Mother‘s probation. In November 2008, Mother was jailed after a screen was positive. Upon her release the
{¶ 15} Mother‘s problems continued after her release from jail in December. That same month she was evicted from her home. And in January 2009, Mother again failed a drug screen, which showed cocaine and was “trackable” for opiates. Mother admitted that she used heroin. On February 17, 2009, she was jailed again.
{¶ 16} On March 30, 2009, the day before Mother was to be released, Children‘s Services moved for permanent custody of the children.
{¶ 17} During the two months between Mother‘s release from jail and the June 10 permanent-custody hearing, Mother started to make some progress on her case plan. She had several clean drug-screens, began working 25-35 hours each week as a housekeeper at a hotel, and began participating in Women‘s Outreach, an intensive probation program through the Miami County Municipal Court. Mother testified that she expected to be eligible for transitional housing soon, though this would be an efficiency apartment, not large enough for the children. Mother asserted, though, that she hoped to obtain independent housing in 4-6 months, when she anticipated she would be ready to care for the children.
{¶ 18} But the caseworker and guardian ad litem were not convinced. Both
{¶ 19} Agreeing, the magistrate found that, despite her recent progress, Mother would not be able to provide an adequate permanent home for the children until late 2009 at the earliest. Given the children‘s ages and Mother‘s complete failure to make any progress during the preceding year, the magistrate found that this was not a reasonable period of time to wait. For a year, said the magistrate, Mother did not participate in individual counseling or get a job, both critical parts of her case plan. The root problem was Mother‘s continued drug use. Despite knowing that in order to see the children she needed to produce clean drug-screens, and despite the availability of a drug counselor, Mother did not stop using drugs. Consequently, Mother did not see the children for almost a year. Also, her drug use violated the terms of her probation for which Mother was twice that year jailed. The magistrate also pointed out that, though at the time of the hearing she was gainfully employed, it was the first job that she had since the children were removed.
{¶ 20} In adopting the magistrate‘s decision, the juvenile court too noted the evidence of Mother‘s recent change but said that it was simply too little, too late:
{¶ 21} “This court is not unmindful of evidence that [Mother] had recently found a job, lived at Franklin House, and had clean urine screens. However, these events come too late in a long process that gave [Mother] numerous and multiple opportunities to ‘come clean,’ become employed, visit (if clean) with her children, and comply with the rules that she agreed to in her Case Plan. Her children deserve the stability of a relationship and a chance at a positive living atmosphere. Her request
{¶ 22} Mother says that her failure to visit or communicate with the children was not because of her lack of commitment to the children. It was, she contends, Children‘s Services‘s fault because Children‘s Services failed to help her visit and communicate with the children. Mother alleges that Children‘s Services prevented her from visiting with the children by requiring her to present a drug-free urine screen first, a condition, she says, that was punitive and unfair. And, says Mother, in December 2008, when she presented a clean screen, Children‘s Services told her that she needed to present six clean screens before she could visit the children. Mother also blames Children‘s Services for her failure to make progress on her case plan. Mother claims that early on she did address her case plan and stayed in regular contact with the caseworker. But a new caseworker was assigned in July 2008 who failed to keep in contact with Mother. Soon after the new caseworker was assigned she went on maternity leave. And, when she returned two months later, the caseworker failed to contact Mother. Mother says that she finally contacted the caseworker in December 2008 to ask about visiting the children.
{¶ 23} The court said that the fault for Mother‘s failure to visit with the children lies solely with her: “she prevented visits and reintroduction attempts by her own voluntary actions.” March 2, 2011 Decision, p.4. Regarding the increase in clean screens, Children‘s Services explained that, since Mother had not made much of any progress on her case plan, it was trying to help Mother take her issues seriously and work to remedy them. It notes that Mother agreed to this modification. While six
{¶ 24} Regarding the case plan and contact with the caseworker, we agree with Children‘s Services‘s argument that Mother knew what the plan required of her. If she had questions about it, Mother could have called the caseworker or the agency. As the juvenile court succinctly said, Mother was committed but her commitment was misplaced: “It appears [Mother] was committed to wanting to visit, but not committed to meeting the requirements of her Case Plan.” March 2, 2011 Decision, p.4.
{¶ 25} A remarkable omission from Mother‘s argument is citations to evidence from before Children‘s Services moved for permanent custody. In our first opinion in this case, in dicta, we were skeptical about the relevance of Mother‘s motivational source: “It is also true that her improvement (clean urines, employment, habitation) has only come recently, or as Samuel Johnson said, ‘Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.’ Whether sobriety and responsibility are the result of coercive actions by the State or are self-motivated by the individual seems irrelevant.” In re S.S., at ¶ 31. “We are not prepared to hold,” we continued, “that addiction, or absences from one‘s children
{¶ 26} Mother also contends that waiting 4-6 months after the hearing to place the children with her was reasonable. She points out that, in March 2009, the children were removed from their foster home and placed in two separate foster homes. The children, Mother asserts, were no closer to achieving a permanent placement than they had been when they were removed. Mother points to the post-permanent-custody-motion evidence that suggests she was making progress toward being able to provide the children with a stable home: she had been drug free for the past 3 months; she had a job; and she was doing well at the family abuse shelter and had a plan to obtain independent housing. The juvenile court was unconvinced. The court pointed out that it was only after loss of permanent custody became a reality that Mother started to reform. For a year before, Mother failed to remain drug-free even though that prevented her from seeing the children. It pointed out that for a year Mother did not work on the case plan, did not seek help from a counselor, and did not get a job. Moreover, said the court, she was jailed twice.
{¶ 27} We conclude that sufficient competent, credible evidence exists to support the court‘s firm belief or conviction that placing the children with Mother is not appropriate. While Mother started to reform, whether she successfully completes a reformation is speculation. See In re J.C., Adams App. No. 07CA834, 2007-Ohio-3783, at ¶ 25
{¶ 28} “[A parent] is afforded a reasonable, not an indefinite, period of time to remedy the conditions causing the children‘s removal.” In re L.M., Ashtabula App. No. 2010-A-0058, 2011-Ohio-1585, at ¶ 50. Ohio courts uniformly hold that “[n]on-compliance with a case plan is grounds for termination of parental rights.” In re Campbell (2000), 138 Ohio App.3d 786, 793 (Citation omitted.); see, e.g., In re W.A., Franklin App. Nos. 06AP-485, 06AP-486, 2006-Ohio-5750, at ¶ 17 (“Failure to complete significant aspects of a case plan, despite opportunities to do so, is grounds for terminating parental rights.“) (Citations omitted.); In re Brofford (1992), 83 Ohio App.3d 869 (“[n]on-compliance with the case plan is a ground for termination of parental rights“). As one court explained, non-compliance is a serious failure because “the case plan‘s objectives are geared toward remedying the conditions that
{¶ 29} Mother failed to take advantage of the counselors and advisors ready and willing to help her follow the plan to reunify with the children. Even though mother was employed at the time of the hearing, she had been working less than two months, and the job was her first since the children were removed a year before. Her failure to get a job sooner was likely at least one reason that she was evicted from her home. This evidence suggests an unwillingness to provide an adequate permanent home for the children. Combined with Mother‘s failure to work on the case plan, the court‘s firm belief was reasonable that the evidence demonstrates the children‘s need for secure placement that only permanent custody can provide. See In re L.M., at ¶ 49-50.
{¶ 30} The first assignment of error is overruled.
D. The Determination that Permanent Custody to Children‘s Services is in the Children‘s Best Interest
{¶ 31} ”
{¶ 32} In determining best interest,
{¶ 33} Here the magistrate found, by clear and convincing evidence, that it was in the children‘s best interest to grant Children‘s Services permanent custody, after considering several aspects of the children‘s relationships. The magistrate found that the children have no ongoing relationships with extended family and no extended-family members had asked that the children be placed with them. The magistrate also found that none of the parents has maintained any consistent contact with the children. Mother, of course, had not seen the children in almost a year. And the caseworker testified that none of the children had showed any interest in seeing her. The magistrate found that the children lack any apparent ties to their (respective) parents and found that S.S.‘s, D.S.‘s, and L.M.‘s most significant relationships are with each other.
{¶ 34} For almost a year the children were living in the same foster home. In March 2009, D.S. had to be separated because of his behavior toward S.S. But the magistrate found that Children‘s Services was addressing D.S.‘s behavior problems. The agency‘s intent is to place S.S. and L.M. into D.S.‘s foster home. Children‘s Services hopes that this home will become the children‘s adopted home (if it obtains permanent custody).
{¶ 36} Mother contends that it was in the children‘s best interest to extend temporary custody for 6 months. This would give Mother an opportunity to continue to work on the case plan, on which she had recently made significant advances. And, says Mother, an extension would give her a chance to prove that she could complete the plan. The magistrate was unmoved by the recent positive evidence, being troubled by Mother‘s drug-use history and her attempts to justify her use of drugs and her relapse: “Given the total lack of progress on case plan services, the seriousness of the consequences for failing to become and remain drug free, including loss of contact with her children and incarceration, these statements [Mother‘s testimony that she used drugs only on the weekends and that relapse is simply part of recovery] are worse than self serving. They show a failure to grasp the impact of her addiction and choices on her children. The children‘s best interest demands that their parent and custodian make decisions with them uppermost in
{¶ 37} Supporting the magistrate‘s decision was testimony from the caseworker and the guardian ad litem. Both said that they believe permanent custody is in the children‘s best interest. The guardian ad litem said that she initially considered the option of extending temporary custody but ultimately decided that it would not be in the children‘s best interest to do so.
{¶ 38} We conclude that sufficient competent, credible evidence exists to support the court‘s firm belief or conviction that granting permanent custody to Children‘s Services is in the children‘s best interest.
{¶ 39} The second assignment of error is overruled.
E. The Finding that Children‘s Services Made Reasonable Reunification Efforts
{¶ 40} In the third assignment of error, Mother contends that the evidence is insufficient to support the court‘s finding that Children‘s Services made reasonable efforts to reunite her with the children. Mother makes no new arguments, citing in support the arguments she made in the first two assignments of error.
{¶ 41} Before granting permanent custody to a children‘s services agency, the court must find that the agency “made ‘reasonable efforts to prevent the removal of the child from the child‘s home, to eliminate the continued removal of the child from the child‘s home, or to make it possible for the child to return safely home.‘” In re A.D., at ¶ 7, quoting In re C.F., at ¶ 43;
{¶ 42} The magistrate found, by clear and convincing evidence, that Children‘s Services made reasonable efforts to prevent continued removal of the children from their home and to provide case-plan services and case management for reunification. The magistrate further found, by clear and convincing evidence, that Children‘s Services made reasonable efforts for permanency planning by providing appropriate case-plan services for purposes of reunification and by moving for permanent custody when it appeared that reunification was not in the children‘s best interest. The magistrate said that the agency failed because Mother failed to make timely progress on the case plan, failed to maintain contact with the children, and failed to stay out of jail. It was Mother, not Children‘s Services, who failed to make reasonable efforts toward reunification by for a long time failing to make any progress on her case plan despite the services that the agency offered. The evidence is sufficient to support the court‘s finding. See In re A.W., Montgomery App. No. 21309, 2006-Ohio-2103, at ¶ 25 (saying that “[t]he record makes clear that it was [mother], and not [the agency], who failed to make reasonable efforts to facilitate reunification,” in part, because of mother‘s failure to complete her case plan objectives).
{¶ 43} The third assignment of error is overruled.
F. The Grant of Permanent Custody to Children‘s Services
{¶ 44} Just because a court makes both determinations and the factual finding doesn‘t mean that it must grant permanent custody to the agency. See
{¶ 45} The juvenile court‘s custody order is affirmed.
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Jeannine N. Pratt
Gary C. Schaengold
Hon. W. McGregor Dixon, Jr.