In re T.P. , 2018 Ohio 1330 ( 2018 )

[Cite as In re T.P., 2018-Ohio-1330.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: : OPINION
T.P., M.S., AND C.W.,
DEPENDENT CHILDREN :
: CASE NOS. 2018-A-0001
2018-A-0002
: 2018-A-0003
Civil Appeals from the Ashtabula County Court of Common Pleas, Juvenile Division.
Case Nos. 2016 JC 00052, 2016 JC 00053, and 2016 JC 00054.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047-1092; Margaret A. Draper,
Assistant Prosecutor ACCSB, 3914 C Court, Ashtabula, OH 44004 (For Appellee
Ashtabula County Children Services Board).
Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Appellant Mariah Phillips).
Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, P.O. Box 1681, Mentor, OH
44060 (Guardian ad litem).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Mariah Phillips, appeals from the December 8, 2017 judgment of
the Ashtabula County Court of Common Pleas, Juvenile Division, terminating appellant’s
parental rights and granting permanent custody of her children to appellee, Ashtabula
County Children Services Board (“ACCSB”). This matter concerns the consolidated
cases of appellant’s three children: M.S., born April 27, 2012; T.P., born August 28, 2013;
and C.W., born August 26, 2015. Matthew Stecki (father of M.S. and T.P.) and Kevonta
Wilson (father of C.W.), were also permanently divested of their parental rights but have
not appealed the trial court’s judgment. At issue is whether the trial court’s determination
that permanent custody is in the best interests of the children is supported by clear and
convincing evidence. For the reasons that follow, the judgment is affirmed.
{¶2} In a previous matter, Ashtabula County case No. 2014 JC 0041, M.S. and
T.P. were placed in the temporary custody of ACCSB on July 11, 2014. The children
were returned to appellant, subject to protective supervision, on July 6, 2015. C.W. was
born prematurely the following month, at 28 weeks. The case was closed in January
2016.
{¶3} The following month, on February 12, 2016, all three children were placed
in the emergency temporary custody of ACCSB, upon the ex parte finding of probable
cause to believe that the children were in immediate danger from their surroundings, they
were in danger of immediate or threatened physical or emotional harm, and removal was
necessary to prevent immediate or threatened physical or emotional harm. ACCSB filed
complaints for temporary custody on February 16, 2016, alleging neglect due to
appellant’s heroin use while caring for the children.
{¶4} An adjudicatory hearing was held on March 14, 2016. The complaints were
amended from an allegation of neglect to dependency. Appellant stipulated she needed
drug treatment and was entering residential treatment that day. She further stipulated
that both fathers were currently incarcerated. On April 5, 2016, the trial court approved
and adopted the magistrate’s decision, finding the children were dependent.
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{¶5} At the disposition hearing on April 11, 2016, the magistrate found C.W. had
extreme special needs, and the needs of all the children were being met in foster care.
The magistrate determined ACCSB had made reasonable efforts to prevent the need for
placement and to make it possible for the children to return home. The magistrate further
found appellant had left residential treatment after eighteen days, appellant’s
whereabouts were unknown, and both fathers remained incarcerated. The trial court
approved and adopted the magistrate’s decision on April 28, 2016. The children therefore
remained in the temporary custody of ACCSB, and a case plan was adopted.
{¶6} As of the semi-annual review hearing held on August 10, 2016, appellant’s
whereabouts remained unknown and Mr. Stecki remained incarcerated. Mr. Wilson had
been released from incarceration but lacked employment and his housing was unstable;
he identified an unnamed aunt in Allegheny County, Pennsylvania as a possible
placement for the children. The children continued to have their needs met while in foster
care and remained in the temporary custody of ACCSB.
{¶7} On January 11, 2017, ACCSB filed a motion requesting modification of
temporary custody to permanent custody.
{¶8} An annual review hearing was held on February 9, 2017. Appellant’s
whereabouts continued to be unknown, and Mr. Stecki remained incarcerated. Mr.
Wilson had last seen C.W. over a year prior, on January 29, 2016. Mr. Wilson stated he
was employed and was residing with his girlfriend when not travelling for work. He named
his aunt in Pennsylvania, Adrianne Foster, and stated she may be interested in caring for
C.W. The children continued to have their needs met while in foster care and remained
in the temporary custody of ACCSB pending the permanent custody hearing.
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{¶9} The hearing on the permanent custody motion commenced on August 30,
2017. All three parents were incarcerated at the time of the hearing, but they were all in
attendance. ACCSB presented the testimony of two caseworkers, Sarah Branham and
Christy Lalli. The caseworkers testified that appellant did not in any way comply with her
case plan. Appellant visited the children sporadically during the months of April, May,
and June 2016. The last time she visited the children was on July 25, 2016. Her
visitations were cancelled after a period of no-shows, and she did not request to have
them reinstated.
{¶10} Ms. Branham testified that Mr. Wilson met with her once in September 2016
and completed a drug screen. After that, the caseworkers testified, he did not meet any
case plan objectives and never provided ACCSB with his residential address or proof of
income. The last time Mr. Wilson saw C.W. was on January 29, 2016, prior to her removal
from the home; he did not visit C.W. during the time she was in the temporary custody of
ACCSB. Ms. Lalli testified that she requested to meet with Mr. Wilson after the semi-
annual review hearing, but he did not comply.
{¶11} Mr. Stecki did not have any contact with the agency while Ms. Branham was
assigned to the case. Ms. Lalli testified that, after she took over, Mr. Stecki contacted the
agency by letter dated February 21, 2017, which included drawings and letters for M.S.
and T.P. He also contacted the agency by phone after he was served with the permanent
custody motion and indicated he was attending parenting classes in prison and wanted
to maintain his parental rights. Mr. Stecki has been incarcerated on charges related to
felony illegal manufacturing of drugs since October 2013 when T.P. was two months old
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and M.S. was one and one-half years old. He is not scheduled to be released from prison
until December 2019.
{¶12} Testimony was also elicited from Ms. Lalli regarding the needs and best
interests of the children. M.S. is in kindergarten and receives counseling for mental health
issues. T.P. is doing well in preschool. C.W. has extreme special needs, due to
complications from her premature birth, including cognitive disabilities, developmental
delays, asthma, and cerebral palsy. She takes albuterol, receives yearly neurological
examinations, wears leg braces, receives occupational therapy on a weekly basis, and
requires constant supervision because of mobility issues. She will also need speech
therapy in the future. Ms. Lalli testified the children are all bonded to each other and
should not be separated for placement. The foster parents are interested in adopting the
children, and Ms. Lalli has no concerns about the children’s care with the foster family.
The home has four bedrooms, a large yard, and many toys. C.W. sleeps in a crib and
the older children share bunk beds.
{¶13} Ms. Lalli testified that Mrs. Foster, Mr. Wilson’s aunt, first contacted her as
a possible placement for C.W. in April 2017, after the permanent custody motion had
been filed. Ms. Lalli worked with Mrs. Foster, who is a licensed foster parent in
Pennsylvania, concerning the interstate proceedings. Over the next few months, Ms. Lalli
repeatedly requested Mrs. Foster’s licensure and a copy of a Home Study; she gave Mrs.
Foster a fax number where her caseworker could submit the documents. Ms. Lalli did not
receive the requested documents from Mrs. Foster until the day of the permanent custody
hearing. She also testified that Mrs. Foster could still be considered as an adoptive
placement for the children if the agency was granted permanent custody.
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{¶14} Mrs. Foster also testified. Mrs. Foster lives in Pennsylvania and has
custody of, and is in the process of adopting, Mr. Wilson’s 13-year-old child, who was
introduced to C.W. in Spring 2017. Mrs. Foster also introduced C.W. to another of Mr.
Wilson’s children, who lives with a custodian in Ashtabula, Ohio. Mr. Wilson has several
children, none of whom are in his custody.
{¶15} Mrs. Foster testified that Mr. Wilson contacted her in September 2016 about
C.W.’s removal but that ACCSB told her they were trying to keep the children together
and return them to the home at that time. Mrs. Foster testified the agency told her she
would be considered for placement if things changed. She stated she next contacted
ACCSB in February 2017 and multiple times during March 2017, after she learned of the
permanent custody motion, and informed ACCSB of her willingness to adopt C.W. Mrs.
Foster testified she had not made any efforts at contact in the meantime because she
thought the agency was still working towards reunification.
{¶16} Mrs. Foster further testified that Ms. Lalli requested a copy of her licensure,
which they do not have in Pennsylvania; she sent a cell phone picture of her certificate to
Ms. Lalli via e-mail and was told that was insufficient. She provided contact information
for her Pennsylvania case workers and signed release forms so they could speak to
ACCSB. Mrs. Foster stated her Home Study was not completed until three weeks prior
to the hearing. She also testified she was not aware she needed to file a motion
requesting legal custody or a motion to intervene.
{¶17} Mrs. Foster testified that, if necessary and if in C.W.’s best interest, she
would provide a home for all three children, but that she would prefer to receive placement
only of C.W. She would also prefer to adopt, as opposed to receiving legal custody. Mrs.
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Foster stated she has experience caring for children with disabilities, both as a family
member and as a home healthcare provider.
{¶18} The guardian ad litem submitted her report and recommended that the best
interests of the children is to grant permanent custody to ACCSB so they can receive a
legally secure placement with the foster family.
{¶19} On December 8, 2017, the trial court issued findings of fact and conclusions
of law. The trial court granted ACCSB’s motion for permanent custody of the three
children and terminated the parental rights of appellant, Mr. Stecki, and Mr. Wilson.
{¶20} Appellant filed a timely notice of appeal and asserts two assignments of
error for our review:
[1.] The trial court erred when it determined permanent custody was
in the best interest of the minor children without considering R.C.
2151.414(D)(2)(d) when a family member sought custody of the
minor children.
[2.] The trial court’s decision is against the manifest weight of the
evidence.
{¶21} The trial court must apply a two-pronged analysis when ruling on a motion
for permanent custody. Pursuant to R.C. 2151.414(B)(1), the court may grant permanent
custody only if the court determines at the hearing, by clear and convincing evidence, that
it is in the best interest of the child to do so and that one of the following factors applies:
(a) The child is not abandoned or orphaned, has not 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 has not 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 if, 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, and the child cannot be placed with either of the child’s
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parents within a reasonable time or should not be placed with the
child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) 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.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been
adjudicated an abused, neglected, or dependent child on three
separate occasions by any court in this state or another state.
{¶22} The trial court determined (B)(1)(b) applies because there was clear and
convincing evidence that all three children had been abandoned. It further determined
there was clear and convincing evidence that (B)(1)(d) applies to M.S. and T.P., who had
been in the temporary custody of ACCSB for 12 months of a consecutive 22-month
period. Alternatively, the trial court determined there was clear and convincing evidence
that the children cannot be placed with any parent within a reasonable time and should
not be placed with any parent. Therefore, assuming (B)(1)(b) and (d) did not apply for
any reason, (B)(1)(a) also applies to all three children.
{¶23} The trial court then engaged in the best interest analysis and found, by clear
and convincing evidence, that it is in the best interests of the children to grant permanent
custody to ACCSB.
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{¶24} Appellant’s assignments of error on appeal solely relate to the trial court’s
best interest determination.
{¶25} Under her first assignment of error, appellant argues that Mrs. Foster,
C.W.’s paternal aunt, made a sufficient request for custody under R.C. 2151.414(D)(2)(d)
to prevent a finding that permanent custody was in the best interests of the children.
Appellee responds that Mrs. Foster did not comply with the custody process, therefore
the trial court did not err in finding permanent custody was in the best interests of the
children.
{¶26} R.C. 2151.414(D)(2) provides that, “[i]f all of the following apply, permanent
custody is in the best interest of the child, and the court shall commit the child to the
permanent custody of a public children services agency or private child placing agency:
(a) The court determines by clear and convincing evidence that one
or more of the factors in division (E) of this section exist and the child
cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or longer,
and no longer qualifies for temporary custody pursuant to division (D)
of section 2151.415 of the Revised Code.
(c) The child does not meet the requirements for a planned
permanent living arrangement pursuant to division (A)(5) of section
2151.353 of the Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal custody
of the child.
{¶27} Even if Mrs. Foster had made a sufficient request for custody under
subsection (d), the trial court could not have relied on R.C. 2151.414(D)(2) for the best
interest determination, because subsection (b) was not satisfied: the children had not
been in the custody of ACCSB for two years or longer. Further, “R.C. 2151.414(D)(2)
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applies only as an alternative basis for the trial court to determine that the termination of
parental rights is in the best interest of the children.” In re B.R.C., 11th Dist. Portage Nos.
2013-P-0059 & 2013-P-0060, 2014-Ohio-69, ¶57, citing In re J.B., 8th Dist. Cuyahoga
No. 97995, 2012-Ohio-3087, ¶22, fn.2 and In re M.K., 10th Dist. Franklin Nos. 09AP-1141
& 09AP-1142, 2010-Ohio-2194, ¶22. When there are sufficient grounds under the factor
analysis found in R.C. 2151.414(D)(1), as outlined below, the trial court need not resort
to R.C. 2151.414(D)(2) to determine whether permanent custody is in the children’s best
interests. Id.{¶28} Here, the trial court determined that granting permanent custody was in the
best interests of the children based on findings made under R.C. 2151.414(D)(1).
Therefore, assuming these findings are supported by clear and convincing evidence, the
trial court was not required to determine whether Mrs. Foster made a sufficient request
for custody under R.C. 2151.414(D)(2)(d) to prevent a finding that permanent custody
was in the best interests of the children.
{¶29} R.C. 2151.414(D)(1) provides that, in determining the best interest of a child
at a permanent custody hearing, “the court shall consider all relevant factors, including,
but not limited to, the following:
(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
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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.
{¶30} We review the trial court’s R.C. 2151.414(D)(1) findings under appellant’s
second assignment of error. Appellant argues the trial court’s determination that
permanent custody was in the best interests of the children was not supported by clear
and convincing evidence, as required under R.C. 2151.414(B)(1), and is therefore against
the manifest weight of the evidence.
{¶31} The Ohio Supreme Court “has defined clear and convincing evidence as
‘that measure or degree of proof which is more than a mere “preponderance of the
evidence,” but not to the extent of such certainty as is required “beyond a reasonable
doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.’” In re K.H., 119 Ohio St.3d
538, 2008-Ohio-4825, ¶42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus.
{¶32} “When reviewing the weight of the evidence, the reviewing 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
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reversed and a new trial ordered.’” In re H.J., 11th Dist. Ashtabula No. 2017-A-0068,
2018-Ohio-206, ¶16, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,
¶20. “In weighing the evidence, the court of appeals must always be mindful of the
presumption in favor of the finder of fact.” Eastley, supra, at ¶21.
{¶33} The trial court analyzed the evidence as it pertained to each of the relevant
factors under R.C. 2151.414(D)(1) in determining the best interests of the children.
{¶34} The trial court first considered “[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,” pursuant to
(D)(1)(a). It determined appellant had not interacted with the children since July 2016;
Mr. Stecki has had no relationship with M.S. and T.P. since February 2016; and Mr.
Wilson last saw C.W. in January 2016. There is no evidence of any bond remaining
between appellant and the children; there is no evidence of any bond between C.W. and
Mr. Wilson; and M.S. and T.P. exhibited fear when Mr. Stecki last contacted them with
letters by mail, which may be due to a lack of memory of him.
{¶35} The trial court considered Mrs. Foster, C.W.’s aunt, as the only identified
relative with an interest in any of the children. In that regard, the court found Mrs. Foster
had only ever seen C.W. once, and there is no evidence of any relationship between the
two of them or between C.W. and Mr. Wilson’s many other children, none of whom are in
his custody.
{¶36} The trial court further determined the following:
The children are placed together in a certified foster home where
they have been since their removal on February 12, 2016. The
children reside with the foster father and foster mother and the four
biological children of the foster parents. The children interact as
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siblings with the four other children in the home, and act towards one
another in such a way that there is no observable difference between
the interaction or treatment of the biological children and foster
children. The three children are bonded to each other, and the
caseworker did not recommend separating the siblings from one
another. The two older children as well as the foster siblings are
protective of [C.W.], which may be heightened due to her special
needs.
{¶37} With regard to (D)(1)(b), “the wishes of the child” factor, the trial court stated
that no party had requested an in camera interview of the children, no such hearing was
conducted, and the wishes of the children had been communicated to the court by the
guardian ad litem. The court determined:
Although the children are of tender years and are limited as to
maturity, the Guardian ad litem recommended that Permanent
Custody be granted as being the children’s best interest and made
that recommendation on their behalf. Even assuming [M.S.] at the
age of 5 has sufficient maturity to express his wishes, he has clearly
done so in that he has communicated his desire to be adopted and
to have the same last name of the foster family as the only stable
home in which he has resided.
{¶38} Next, the trial court considered the “custodial history of the child,” pursuant
to (D)(1)(c). M.S. and T.P. had been in the temporary custody of ACCSB for over 12
months of 22 consecutive months and had been removed twice from appellant’s care. All
three children had resided in the same foster home since their removal in February 2016.
{¶39} The trial court next considered 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,” pursuant to (D)(1)(d). The court stated: “As
reflected in the Guardian ad litem’s report and evidence presented, the children need a
legally secure placement and such a legally secure placement cannot be achieved
without a grant of permanent custody to the agency. The children’s foster home has
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expressed an interest in adopting the children.” The trial court additionally acknowledged
that, “although her interest was expressed late in the process, as of the date of the
Permanent Custody hearings, Mrs. Foster was expressing her desire to be considered as
an adoptive placement for [C.W.]. As of the date of her testimony, Mrs. Foster was stating
an interest in maintaining the three siblings together, although she had never met the
older two children.” The trial court concluded there was clear and convincing evidence
that a legally secure permanent placement of the children cannot be achieved without a
grant of permanent custody to ACCSB.
{¶40} Finally, pursuant to (D)(1)(e), the trial court considered the relevant factors
listed in R.C. 2151.414(E). There was no evidence presented with regard to the factors
listed in R.C. 2151.414(E)(7), (8), (9), or (11). There was, however, clear and convincing
evidence to support a finding that the children were abandoned by their parents, as
provided in R.C. 2151.414(E)(10). “[A] child shall be presumed abandoned when the
parents of the child have failed to visit or maintain contact with the child for more than
ninety days, regardless of whether the parents resume contact with the child after that
period of ninety days.” R.C. 2151.011(C).
{¶41} Appellant failed to maintain contact with the children after July 25, 2016,
and failed to make any attempt to resume contact thereafter. Mr. Stecki’s last visit with
M.S. and T.P. occurred prior to their February 12, 2016 removal, and there was no contact
thereafter until he sent them a letter and drawings. The date of the letter is unclear, but
the evidence established it occurred after the motion for permanent custody was filed on
January 11, 2017. Mr. Wilson’s last contact with C.W. occurred on January 29, 2016,
which was also prior to her removal, and he failed to seek any visitation or make any other
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efforts to see C.W. Based on these facts, the trial court determined each of the parents
had failed to maintain contact with their children for a period of 90 days or more, and,
therefore, the children were abandoned.
{¶42} The trial court’s decision is not against the manifest weight of the evidence.
The record, which includes the transcript of the permanent custody hearing, supports the
trial court’s determination, by clear and convincing evidence, that it is in the best interests
of M.S., T.P., and C.W. to be placed in the permanent custody of ACCSB.
{¶43} Appellant’s first and second assignments of error are without merit.
{¶44} The judgment of the Ashtabula County Court of Common Pleas, Juvenile
Division, is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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