In re J.H. , 2020 Ohio 2658 ( 2020 )

[Cite as In re J.H., 2020-Ohio-2658.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re J.H. Court of Appeals No. L-19-1295
Trial Court No. JC 19275139
DECISION AND JUDGMENT
Decided: April 24, 2020
*****
Christopher S. Clark, for appellant.
Janna E. Waltz and Jill E. Wolff, for appellee.
*****
ZMUDA, P.J.
{¶ 1} This matter is before the court on appeal from the judgment of the Lucas
County Court of Common Pleas, Juvenile Division, awarding permanent custody of the
minor child, J.H. to Lucas County Children Services (“LCCC”), and terminating the
parental rights of appellant-mother, K.K.1 For the reasons that follow, we affirm.
1
The juvenile court also terminated the parental rights of father, D.H. Father is not a
party to this appeal and we will not address any findings, relative to him.
I. Facts and Procedural Background
{¶ 2} J.H. was born on June 10, 2017, while mother had an open case with LCCS
regarding an older sibling. The present appeal is from the second case in dependency
filed for J.H. by LCCS.
{¶ 3} In the months leading up to the complaint, the juvenile court awarded
temporary custody of J.H. to LCCS after a shelter care hearing on July 3, 2018, and on
November 15, 2018, the court extended temporary custody. On May 16, 2019, mother
consented to awarding legal custody of J.H. to a maternal aunt. However, on May 31,
2019, the aunt indicated she could not care for J.H., and J.H. was placed in foster care.
{¶ 4} LCCS filed a complaint in dependency for J.H. on June 6, 2019, and the
court awarded interim temporary custody to LCCS after a shelter care hearing that same
day. The juvenile court appointed a guardian ad litem to represent J.H., as well as
counsel for both mother and father. On July 25, 2019, the court held adjudication and
disposition hearings, with J.H. adjudicated dependent and temporary custody of J.H.
awarded to LCCS. LCCS prepared a case plan, and while mother reported completion of
domestic violence services, she delayed completing her assessment and declined services
with the exception of a single counseling session.
{¶ 5} On August 15, 2019, LCCS filed a motion for permanent custody. LCCS
argued that termination of parental rights and an award of permanent custody to LCCS
was in J.H.’s best interest, listing mother’s lengthy history with LCCS and her inability to
provide a suitable, stable home for J.H. Specifically, LCCS noted that mother had
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custody of J.H. for only a brief period between May 17 and July 3, 2018, and J.H. had
spent the majority of his life in temporary placements or with his aunt, who was unable to
care for him.
{¶ 6} On November 18, 2019, the matter proceeded to trial on the motion for
permanent custody, with counsel for mother and father present, along with J.H.’s
guardian ad litem and counsel for the LCCS with the LCCS caseworker assigned.
Neither mother nor father appeared, with counsel for father indicating no contact despite
attempts to communicate with him. Counsel for mother indicated two contacts, despite
numerous attempts to communicate with her. The juvenile court determined that father
and mother waived their right to counsel, and permitted counsel to withdraw.
{¶ 7} Danielle Flowers, LCCS caseworker, testified that she was the ongoing
caseworker, and first began working with mother in investigating reports of physical
abuse concerning J.H.’s sibling, shortly before J.H.’s birth. LCCS filed a complaint for
J.H.’s sibling, and after J.H. was born, LCCS filed a complaint for J.H. Relative to that
first case, Flowers indicated that mother participated in services and assessments, while
father declined to participate and moved away, ceasing all contact with J.H.2 In the first
proceeding, LCCS filed for reunification for mother with J.H. and his older sibling.3
2
At the time of trial, LCCS had no current address for J.H.’s father. He moved from
Ohio to Tennessee shortly after J.H.’s birth, but may have relocated to Arizona. LCCS
reached out to him through J.H.’s paternal grandmother, but received no response.
3
Custody for J.H.’s older sibling was separately adjudicated, and is not part of the
present appeal.
3.
{¶ 8} Shortly after mother and J.H. were reunited, mother reported new incidents
of domestic violence with her new boyfriend, and seemed to acknowledge the danger her
new boyfriend presented in the home. After an unannounced home visit, however, it was
clear mother continued to live with her new boyfriend, and she refused to prevent him
from having contact with J.H. Flowers testified that mother was, once more, offered
services, but generally declined to participate. Mother completed an assessment, but
declined the recommended services. Of concern were mother’s untreated mental health
issues and her refusal to cooperate with the agency’s efforts to investigate the new
boyfriend’s identity and background. Her living situation was also unclear, with Flowers
indicating she could not determine who lived with mother in the home.
{¶ 9} On the other hand, Flowers indicated that J.H. was doing well in foster care,
had bonded with his foster parents, and benefitted from the structured environment they
provided, as well as speech therapy through Help Me Grow. While acknowledging that
mother did visit J.H. regularly, Flowers testified that mother had a pattern of failing to
follow through, and her lifestyle choices caused concern. As part of mother’s pattern,
Flowers noted that she lost custody of two other siblings in Michigan, and had no contact
with those children, and J.H.’s older sibling was in the legal custody of a non-relative.
Flowers stated that permanent custody for LCCS would be in J.H.’s best interest.
{¶ 10} Next, Emily McGill, J.H.’s guardian ad litem, testified. McGill testified
that she was appointed to J.H. in June 2019, and conducted an independent investigation
on his behalf, culminating in the written report submitted to the court and admitted as an
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exhibit. McGill testified that J.H. “has been in custody basically his whole life,” and she
had concerns regarding mother’s mental health and her attitude toward treatment. McGill
noted that mother does not take prescribed medications for her diagnosed bipolar
disorder, and when she participates in assessments, does not provide complete and
truthful information regarding her mental health history. She also noted the uncertainty
of mother’s living arrangement, with no way to verify the identity for mother’s new
boyfriend without cooperation in providing information necessary for a background
check.
{¶ 11} As to J.H.’s foster placement, McGill indicated he is doing well, and his
foster parents are meeting all of his needs. J.H., furthermore, appeared to be on track
developmentally except for some delayed speech. McGill testified that J.H. is bonding
with his foster parents, who expressed a wish to adopt him. Based on her investigation,
McGill recommended permanent custody for LCCS would be in J.H.’s best interest.
{¶ 12} After reviewing the testimony and the written report, the juvenile court
found by clear and convincing evidence that permanent custody to LCCS was in J.H.’s
best interests. The juvenile court found that J.H. could not be returned to mother within a
reasonable time, pursuant to R.C. 2151.414(B)(1)(a), and found clear and convincing
evidence establishing applicability of R.C. 2151.414(E)(1), (4), (11), and (16).4 As to
4
As to father, the juvenile court also found R.C. 2151.414(E)(10) applied, finding father
abandoned J.H.
5.
reasonable efforts to prevent removal, R.C. 2151.414(E)(1), the juvenile court
determined:
The Court further finds that LCCS made reasonable efforts to
prevent the need for removal of the child, and the continued need for
removal from her home, however, such efforts were unsuccessful. Said
efforts included case plan management, visitation, and referrals to
assessments, mental health treatment, substance abuse services and
domestic violence services. The Court finds that although these services
were offered, the conditions that caused the initial removal of the child
from the parent’s care have not been remedied and the child cannot be
returned to either parent within a reasonable period of time.
As to the remaining factors, the juvenile court noted mother’s lack of commitment
towards J.H. in failing to address ongoing and unresolved concerns for domestic
violence, substance abuse, and mental health, and failing to complete case plan services
under R.C. 2151.414(E)(4). Additionally, the juvenile court noted mother’s prior loss of
permanent custody for two of J.H.’s siblings in the state of Michigan, with no evidence
presented demonstrating any subsequent change to her situation under R.C.
2151.414(E)(11). Finally, the juvenile court considered mother’s failure to appear for
trial as relevant under R.C. 2151.414(E)(16). In considering the best interest of J.H.
pursuant to R.C. 2151.414(D)(1), the juvenile court noted that J.H. had been removed
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from mother’s custody shortly after birth, had been in nine placements since birth, and
was doing well in his current placement, a prospective adoptive home.
{¶ 13} On December 10, 2019, the juvenile court granted the motion for
permanent custody in a written entry, reciting its findings and awarding permanent
custody to LCCS. On December 16, 2019, mother filed a timely appeal.
II. Assignment of Error
{¶ 14} Mother now appeals the judgment of the juvenile court, asserting the
following assignment of error:
The trial court erred in finding that appellee made reasonable efforts
to unify the child with the appellant-mother and that it is in the best interest
of the child to terminate appellant-mother’s parental rights and to award
permanent custody of the child to Lucas County Children Services
(“LCCS”).
III. Analysis
{¶ 15} In her sole assignment of error, mother argues termination of her parental
rights were not in J.H.’s best interest, because LCCS failed to sustain its burden of
demonstrating reasonable efforts to prevent removal or to work toward return of J.H. to
her custody, citing R.C. 2151.419(A). “By its terms, R.C. 2151.419 applies only at
hearings held pursuant to R.C. 2151.28, 2151.31(E), 2151.314, 2151.33, or 2151.353.”
In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 41, citing R.C.
2151.419(A)(1). A motion for permanent custody is governed by R.C. 2151.414, which
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“sets forth the procedures a juvenile court must follow and the findings it must make
before granting a motion filed pursuant to R.C. 2151.413.” In re C.F. at ¶ 22, quoting In
re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 9.
{¶ 16} Before a juvenile court may terminate parental rights and award permanent
custody to a public services agency under R.C. 2151.414, the court must find, by clear
and convincing evidence that one of the enumerated factors in R.C. 2151.414(B)(1)(a)-(e)
apply, and that permanent custody is in the best interests of the child. R.C.
2151.414(B)(1). See In re C.F. at ¶ 23-27, quoting R.C. 2141.414(B)(1). Clear and
convincing evidence is defined 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, 895 N.E.2d 809, ¶ 42,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus.
{¶ 17} Where, as in this case, the juvenile court determines that the child cannot
be placed with either parent now or in the foreseeable future, as provided under R.C.
2151.414(B)(1)(a), it must also consider the child’s best interests and whether any of the
factors enumerated in R.C. 2151.414(E) are present. In re Za.G., Ze.G., 6th Dist.
Williams No. WM-19-019, 2020-Ohio-405, ¶ 98. Here, the juvenile court determined the
following provisions of R.C. 2151.414(E) applied:
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(1) Following the placement of the child outside the child's home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to provide
an adequate permanent home for the child;
***
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section 2151.353
or 2151.415 of the Revised Code, or under an existing or former law of this
state, any other state, or the United States that is substantially equivalent to
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those sections, and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination, the parent can
provide a legally secure permanent placement and adequate care for the
health, welfare, and safety of the child.
***
(16) Any other factor the court considers relevant.
{¶ 18} Mother appeals the juvenile court’s judgment, arguing the evidence did not
support a finding that LCCS made reasonable efforts to unify her with J.H., challenging
only one basis stated by the juvenile court in support of termination of her parental rights.
We review the judgment under a manifest weight of the evidence standard. In re K.L.,
6th Dist. Lucas No. L-17-1201 and L-17-1210, 2017-Ohio-9003, ¶ 24; see also In re J.H.,
R.H., K.H., 6th Dist. Lucas No. L-19-1168, 2020-Ohio-218, ¶ 20 (additional citations
omitted).
{¶ 19} In reviewing the decision, we consider the evidence and all reasonable
inferences, the credibility of the witnesses, and in resolving any conflicts in the evidence,
we determine whether the juvenile court lost its way, requiring reversal and new hearing
in order to remedy a manifest miscarriage of justice. In re K.L. at ¶ 24, citing State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.
10.
{¶ 20} Mother’s sole challenge to the judgment concerns the efforts of LCCS to
prevent removal, pursuant to R.C. 2151.419(A). While R.C. 2151.419(A) does not
govern a motion for permanent custody, to the extent a court relies on R.C.
2151.414(E)(1) in deciding the motion, “the court must examine the ‘reasonable case
planning and diligent efforts by the agency to assist the parents’ when considering
whether the child cannot or should not be placed with the parent within a reasonable
time.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 42, quoting
R.C. 2151.414(E)(1). “The issue in a reasonable-efforts determination is not whether the
agency could have done more, but whether it did enough to satisfy the reasonableness
standard in R.C. 2151.414(E)(1).” In re J.H., R.H., K.H., 6th Dist. Lucas No. L-19-1168,
2020-Ohio-218, ¶ 29, citing In re A.B., 6th Dist. Lucas Nos. L-12-1069 and L-12-1081,
2012-Ohio-4632, ¶ 25.
{¶ 21} Mother does not dispute the reasonable efforts of LCCS in offering case
planning, noted by the juvenile court as including “case plan management, visitation, and
referrals to assessments, mental health treatment, substance abuse services and domestic
violence services.” Instead, mother argues she substantially complied with her case plan,
primarily citing past efforts that led to brief reunification in May 2018. Her argument of
substantial compliance, as it relates to conduct occurring after LCCS filed the June 6,
2019 complaint in dependency, lacks any support in the record.
{¶ 22} The evidence demonstrates that, despite completing services in 2018,
mother continued to expose J.H. to domestic violence, failed to maintain stable housing,
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and failed to address mental health issues. Mother also failed to complete case plan
services after the most recent incident of domestic violence, with her participation
hindered by inaccurate reporting of mental health conditions and her refusal of treatment
beyond a single counseling session. The juvenile court specifically noted that, while
mother completed some services, including domestic violence services, “new incidents
occurred after completion of these services and mother has not demonstrated that she can
protect the child from domestically violent men.” Additionally, while not raised by
mother relative to the additional findings under R.C. 2151.414(E), our review of the
record demonstrates clear and convincing evidence in support of these additional
findings. Considering these separate findings, there is clear and convincing evidence of
mother’s lack of commitment to J.H. and her failure to appear for trial, with no evidence
demonstrating that, despite her prior loss of custody for J.H.’s siblings, she is now able to
provide adequate care.
{¶ 23} As to the “best interests of the child” determination required under R.C.
2151.414(D)(1), the juvenile court considered J.H.’s nine placements since his birth in
2017, the bond established between J.H. and his foster parents, and his progress while in
his present placement, a potentially adoptive home that meets J.H.’s needs. In her brief,
mother does not challenge the juvenile court’s determinations regarding the best interests
of J.H., and we find the evidence supports these determinations. Accordingly, we find no
error in the juvenile court’s award of permanent custody to LCCS, and mother’s sole
assignment of error is not well-taken.
12.
IV. Conclusion
{¶ 24} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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