In re W.R.
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting attorney, for appellant.
Nancy R. Braun, guardian ad litem.
M. POWELL, J.
{¶ 1} Appellant (“Mother“) appeals the decision of the Butler County Court of Common Pleas, Juvenile Division, granting the motion of the Butler County Department of Job and Family Services (“BCDJFS” or “the agency“) for permanent custody of three of her
I. Factual and Procedural Background
{¶ 2} Kathryn (born May 2016) and Wendell (born June 2017) are children of Mother and her ex-boyfriend (“Ex-Boyfriend“). Kristen (born April 2020) is a child of Mother and, allegedly, her current boyfriend (“Boyfriend“). (Ex-Boyfriend and Boyfriend will be referred to collectively as “the Fathers“). Mother has an additional child with Boyfriend, born October 2021, who is not subject to these proceedings. As of May 2022, Mother was pregnant with her fifth child, due November 2022, also with Boyfriend. Ex-Boyfriend has been incarcerated for the duration of these proceedings and is not due to be released until November 2029.
{¶ 3} On April 9, 2020, shortly after Kristen‘s birth, BCDJFS received a referral that both Mother and Kristen tested positive for amphetamines. Mother apparently told hospital staff that she had “tried” meth the day before the birth. The agency established an in-home safety plan with Boyfriend as the provider. One week later, however, both Mother and Boyfriend tested positive for controlled substances. The safety plan was modified, and the children‘s maternal grandmother was made the provider. Mother and Boyfriend were permitted supervised visitation.
{¶ 4} On October 5, 2020, BCDJFS received a report that Kathryn, then age four, had received a black eye from Mother. On investigating, the agency found that Mother and Boyfriend had been regularly spending unsupervised time with the children, and in fact, the children had been living with them for at least two months prior to this incident. The same day, the agency filed for temporary custody of all three children, alleging dependency pursuant to
{¶ 5} Mother and Boyfriend were given a case plan with the aim of reunification. They were required to complete a Substance Abuse and Mental Illness (“SAMI“) assessment, mental health assessment, and domestic violence assessment, to follow all recommendations from those assessments, obtain and maintain housing, and find sources of income. Both were given opportunities for supervised visitation.
{¶ 6} Review hearings were held on March 22, June 7, August 16, November 15 and December 27, 2021. Mother attended most of the hearings, but the Fathers did not. Numerous social summaries prepared by the agency and filed with the court showed that Mother was making little progress with the case plan. On January 12, 2022 the agency filed motions for permanent custody of the children. A trial was held before the magistrate on May 18, 2022.
{¶ 7} Kelly Hurley, the Butler County Children Services (“BCCS“) caseworker for the children testified that following Mother‘s first SAMI assessment in May 2020, Mother had “very sporadic attendance in treatment.” She completed a second SAMI assessment in April 2021 which reiterated the recommendation that Mother engage in treatment services. Mother began treatment in July 2021, initially attended treatment sessions regularly, and then abruptly ceased attendance in October 2021. In the “couple of months” leading up to trial, Mother again engaged in “sporadic attendance” at treatment, despite being recommended in February 2022 for residential treatment. Despite Hurley‘s repeated attempts, Mother delayed signing the releases necessary to enter treatment for two months. On April 26, 2022, three weeks before the permanent custody trial, Mother entered a residential treatment program. However, she also reported using drugs that same day.
{¶ 8} Following trial, the magistrate continued the matter for an additional hearing
{¶ 9} On June 21, 2022 the magistrate issued a decision granting permanent custody to the agency, and the juvenile court adopted the magistrate‘s ruling the same day. Mother timely objected to the magistrate‘s decision, arguing that she was “in substantial compliance with the case plan” and that it was “not accurate that the [children] cannot or should not be placed with her within a reasonable amount of time.”
{¶ 10} On September 6, 2022, the juvenile court held a hearing on Mother‘s objections. The same day, the juvenile court issued a sparse, less than one page written order overruling Mother‘s objections in each of the children‘s individual cases.2 Mother timely appealed, raising two assignments of error.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE JUVENILE COURT ERRED BY GRANTING THE MOTION FOR PERMANENT CUSTODY WHERE THE RECORD DOES NOT SUPPORT A FINDING THAT SERVICE HAD BEEN PROPERLY COMPLETED ON THE FATHER AND “JOHN DOE” FATHER AT THE TIME OF TRIAL.
{¶ 13} In her first assignment of error, Mother argues the juvenile court erred by failing to serve Ex-Boyfriend, the father of Kathryn and Wendell, and “John Doe,” the unknown father of Kristen with a copy of the agency‘s motion for permanent custody.3 This argument is unpersuasive for several reasons.
{¶ 15} Second, Mother failed to raise this argument in her objections to the magistrate‘s decision.
{¶ 16} Third, assuming, arguendo, that Mother could raise the argument, the record shows that proper service by publication was made on John Doe.
{¶ 17} Proper service on Ex-Boyfriend also appears to have been perfected. The record demonstrates that BCCS attempted to serve Ex-Boyfriend multiple times at Pickaway Correctional Institution in Orient, Ohio. Each time, however, the certified mail receipt was returned without a signature. To remedy this, following the trial on May 18, 2022, a “call in the hall” was scheduled for June 9, 2022 to perfect service. Once again, Ex-Boyfriend did not appear. In a subsequent order the same day, the magistrate stated that Ex-Boyfriend “was served with notice of today‘s proceeding and failed to appear.” Mother did not object to this determination.
{¶ 18} Fourth, assuming Mother had not waived the argument, and that service had not been properly completed, Mother lacks standing to challenge service of Ex-Boyfriend or John Doe. We note that our sister districts have determined that “an appellant-mother may challenge an alleged service error regarding a non-appealing party only when she has demonstrated that she herself has been prejudiced by the alleged error.” In re A.M., 9th Dist. Summit No. 26141, 2012-Ohio-1024, ¶ 13; see also In re D.D., 1st Dist. Hamilton No. C-190387, 2019-Ohio-4492, ¶ 18; In re M.M., 8th Dist. Cuyahoga No. 79947, 2002 WL 207610, *5 (Feb. 7, 2002). Mother has not demonstrated that she sustained any prejudice from the alleged failure to serve either Ex-Boyfriend or John Doe, other than conjecture that
{¶ 19} Mother‘s first assignment of error is overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE TRIAL COURT‘S DECISION TO GRANT THE AGENCY PERMANENT CUSTODY OF THE CHILDREN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 22} Mother argues that the juvenile court‘s decision was not supported by clear and convincing evidence and was against the manifest weight of the evidence. We address that argument below after summarizing the applicable legal standard.
II. Applicable Law
{¶ 23} Before a natural parent‘s constitutionally protected liberty interest in the care and custody of his or her child may be terminated, the state must prove by clear and convincing evidence that the statutory standards for permanent custody have been met. In re K.P., 12th Dist. Preble No. CA2021-11-017, 2022-Ohio-1155, ¶ 11. Under
{¶ 24} 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 R.F., 12th Dist. Warren Nos. CA2021-06-052, CA2021-06-053, and CA2021-06-056, 2021-Ohio-4118, ¶ 7. This court will therefore reverse a juvenile court‘s decision to grant permanent custody only if there is a sufficient conflict in the evidence presented. In re M.N., 12th Dist. Fayette No. CA2021-07-015, 2021-Ohio-4042, ¶ 19.
{¶ 25} Even if there is sufficient evidence to support the juvenile court‘s decision, an appellate court may nevertheless reverse a permanent custody judgment if it finds the judgment to be against the manifest weight of the evidence. In re F.S., 12th Dist. Fayette Nos. CA2020-08-011 and CA2020-08-012, 2021-Ohio-345, ¶ 61. To determine whether the judgment was against the manifest weight of the evidence, an appellate court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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 K.M., 12th Dist. Butler Nos. CA2020-03-031, CA2020-03-032, and CA2020-03-033, 2020-Ohio-3602, ¶ 25. The presumption in weighing the evidence is in favor of the finder of fact, which we are especially mindful of in custody cases. In re R.K., 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio-3074. Therefore, if the evidence is susceptible to more than one construction, the reviewing court is bound to give it that interpretation which is most favorable and consistent with the verdict and judgment. In re D.S., 12th Dist. Clinton Nos. CA2021-10-030 and CA2021-10-031, 2022-Ohio-998, ¶ 63.
III. First Prong of the Permanent Custody Test: Best Interest Analysis
{¶ 26} Mother asserts that she “was in services and making progress” at the time of trial. She argues that it was in the best interest of the children to deny the agency permanent custody because, although she “was late to begin services consistently, * * * she is working them steadily now.”
{¶ 27}
(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 * * *;
(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 re D.P., 12th Dist. Clermont Nos. CA2022-08-043 and CA2022-08-044, 2022-Ohio-4553, ¶ 23. The juvenile court may also consider any other factors it deems relevant to the child‘s best interest. In re C.P., 12th Dist. Brown No. CA2022-05-004, 2022-Ohio-3320, ¶ 29.
{¶ 28} As stated above, the first best interest factor is “[t]he 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.”
{¶ 29} At trial, the BCCS caseworker described Mother‘s attendance at weekly supervised visitation with the children as “very sporadic.” However, Mother was in fairly consistent telephone contact with the children, and the caseworker described her as having a “good relationship” with them and “lov[ing]” them. Nonetheless, the caseworker expressed the view that telephone communication with these young, easily distractable children was no substitute for regular in-person contact, which Mother failed to provide.
{¶ 30} The magistrate acknowledged that “Mother has demonstrated an ability to interact appropriately with the child[ren] during visitation,” but added that “she has been inconsistent in her attendance of visitations” despite living a mile and a half from the center where visitation occurred and despite being offered free transportation. The magistrate further noted that although Mother “maintained telephone contact with the children with the assistance of the foster parent, she would go months without any face to face contact.” To the extent visitation occurred, Kathryn and Wendell would both act out behaviorally as a result.
{¶ 31} Ex-Boyfriend, the father of Kathryn and Wendell, has been incarcerated on
{¶ 32} Boyfriend, the alleged biological father of Kristen, participated in in-person visitation sporadically from January 2021 to June 2021, but not since then. Boyfriend did not complete any aspect of the case plan for reunification, and to the extent he cooperated with testing, consistently tested positive for drugs. He was ordered to submit to genetic testing on August 16, 2021, but also failed to do so. The magistrate found that “[d]ue to lack of contact, there is no evidence that he has a bonded relationship with this young child.”
{¶ 33} By contrast, the magistrate found that all three children were “doing well” in their foster placement and had bonded well with the foster mother and extended foster family. The caseworker testified that the children are “very bonded to the foster family” and are “having all their needs met.” Mother also agreed that the children are bonded with their foster mother. The children have been in the same foster home since their removal. Another of their siblings of whom the agency has temporary custody but who is not subject to these proceedings shares the same foster home. The magistrate found that the foster parents “have expressed interest in adoption of the children as a sibling group if they were available for adoption.”
{¶ 34} The second best interest factor is “the wishes of the child, as expressed by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child.”
{¶ 35} The third best interest factor is “[t]he custodial history of the child.”
{¶ 36} The fourth best interest factor is the children‘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.”
{¶ 37} The magistrate found that “Kathryn has special needs and is on an [individualized education plan (“IEP“)] at school“; “has speech delays and global developmental delays“; “receives speech therapy, occupational therapy services and counseling services through her school“; and “struggles with basic academic skills and is behind her same-aged peers.” The magistrate found that Wendell also “has special needs and is on an IEP at his preschool“; “has speech delays” and “receives speech therapy through his school“; “is significantly behind his same-aged peers“; and “has some acting out behaviors and difficulties with self-regulation.”
{¶ 38} The final best interest factor is whether any of the factors in
{¶ 39} Based on our review of the record, we conclude that the juvenile court did not err in determining that an award of permanent custody to BCDJFS was in the children‘s best interest. There is more than sufficient credible evidence to support the juvenile court‘s determination that the statutory standards for permanent custody have been met. “‘A child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security.‘” In re I.C., 12th Dist. Clinton Nos. CA2022-04-010 thru CA2022-04-012, 2022-Ohio-3101, ¶ 45, quoting In re D.E., 12th Dist. Butler Nos. CA2018-03-035 and CA2018-03-038, 2018-Ohio-3341, ¶ 60. The record establishes that Mother cannot provide these things.
{¶ 40} Lastly, we note that the crux of Mother‘s argument is that because she was in compliance with the case plan at the time of trial, she deserved more time to complete it. It is well established, however, that a parent‘s successful completion of the terms of a case plan is not dispositive on the issue of reunification, as the case plan is simply a means to a goal, but not the goal itself. In re A.R., 12th Dist. Butler No. CA2015-08-143, 2016-Ohio-4919, ¶ 18. That is to say, the “successful completion of case plan requirements does not automatically preclude a grant of legal custody to a nonparent.” Id. Further, “Mother‘s claim that she would be on track for reunification with [the children] within just three short months requires this court to not only speculate on Mother‘s sincerity but to gamble with [the children‘s] li[ves].” In re G.W., 12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 52. “A child‘s life is not an experiment that can be left to chance.” Id.
{¶ 41} Here, the caseworker testified that at the time of trial, there was nothing else Mother should have been doing to be in compliance with the case plan. The magistrate found that “[d]espite her participation in some services, the agency presented clear and
IV. Second Prong of the Permanent Custody Test: “12 of 22” Analysis
{¶ 42} Mother on appeal does not challenge the juvenile court‘s finding under
V. Conclusion
{¶ 43} Throughout the course of these proceedings, from the first involvement of BCDJFS to the trial, Mother showed herself consistently unable or unwilling to commit to sobriety, frequently either testing positive for drugs or failing to test. Mother‘s attendance at mental health treatment was described in similar terms. These children deserve better, and while Mother was “in substantial compliance with her case plan” for the three weeks preceding trial, it was too little, too late. From October 2020 to April 2022, while her children remained in foster care, Mother took no serious steps to reunify with them. Her actions for the 14 months following their removal speak louder than those in the one month preceding trial. Accordingly, we find that the juvenile court‘s decision granting BCDJFS‘s motion for
{¶ 44} Judgment affirmed.
HENDRICKSON, P.J., and BYRNE, J., concur.