In re J.P. , 2016 Ohio 6 ( 2016 )

[Cite as In re J.P., 2016-Ohio-6.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
CASE NOS. CA2015-08-145
J.P., et al. : CA2015-08-146
CA2015-08-147
:
OPINION
: 1/4/2016
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2013-0378
Dawn Garrett, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, guardian ad litem
for Ju.P and Jo.P.
Nicole Stephenson, 30 North "D" Street, Hamilton, Ohio 45013, guardian ad litem for Ja.P
Heather A. Felerski, P.O. Box 181342, Fairfield, Ohio 45014, for appellant, N.P.
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
County Children Services
RINGLAND, J.
{¶ 1} Appellant, the biological mother (Mother) of Ja.P., Ju.P., and Jo.P., appeals a
decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent
custody of her children to appellee, the Butler County Department of Job and Family Services
(BCDJFS). For the reasons detailed below, we affirm.
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{¶ 2} On July 30, 2012, BCDJFS filed a complaint alleging Ja.P., as well as two of his
siblings not involved in the present appeal, were abused, neglected, and dependent
children.1 The complaint alleged several instances of erratic behavior that Mother had
exhibited affecting the safety of her children. Specifically, the complaint alleged that Mother
had repeatedly struck Ja.P. with a shoe, which caused bruises and injuries to his back. In
addition, the agency also included reports of substandard living conditions and incidence of
alcohol abuse. There was also a report that one of Mother's other children had been sexually
abused while the children were staying with another individual while Mother was
incarcerated. Furthermore, during the BCDJFS investigation, the agency reported that
Mother was evasive regarding the location of her children and there were allegations that
Mother was intending to take Ja.P. and "hide out with him in Cincinnati somewhere." Ja.P.
was later found to be a dependent child and the agency created a case plan for reunification,
which included the completion of a psychological evaluation, parenting classes, and a
substance abuse assessment.
{¶ 3} On July 11, 2013, Ju.P. and Jo.P. were born and BCDJFS filed a complaint
alleging dependency the following day. That complaint alleged that Mother had three
children placed in the temporary custody of BCDJFS and that Mother has exhibited
aggressive and unstable behaviors on several occasions. Furthermore, the complaint stated
that Mother had not satisfactorily completed the agency recommended mental health
treatment and may be suffering from mental illness. At the dispositional hearing, Ju.P. and
Jo.P. were found to be dependent children and placed in the temporary custody of BCDJFS.
{¶ 4} Over the next several months, Mother did regularly attend visitation with the
children and attended some treatment sessions to better deal with her anger management
1. The two children not involved in the present appeal were placed in their father's legal custody.
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issues. However, the record reflects that those attempts had little impact on Mother's
behavior. Throughout the pendency of these proceedings, Mother was arrested on at least
four occasions for various criminal offenses, including criminal damaging, assault, and child
endangering. In December 2014, Mother purposely rammed her car into another vehicle full
of people, including a child, which led to her conviction for child endangering and a three
month period of incarceration. Upon her release from prison, Mother moved to Virginia and
stopped attending visitation with the children. Mother also failed to reengage in counseling.
{¶ 5} On January 20, 2015, BCDJFS moved for permanent custody. At the
permanent custody hearing, Mother acknowledged that she currently has no home and was
staying with an uncle and other individuals who she refused to identify. Although Mother
stated that she was not currently ready to care for the children, she believed that she could
progress with the case plan in the hopes that one day the children could be placed in her
custody. In the alternative, Mother requested that the children be placed in the custody of
Helen Allen, a distant relative who filed a motion for legal custody on the date of the final
hearing.
{¶ 6} In support of the grant of permanent custody, BCDJFS introduced the testimony
of a BCDJFS caseworker. The caseworker testified that the agency has concerns with
reunification because Mother has continued to exhibit the same behaviors that led to the
removal of the children, including concerns with Mother's mental health, ability to safely
parent, make good choices, and ensure the safety of the children. The agency also has
continued concerns with Mother's violent outbursts, arrests, and periods of incarceration.
The caseworker explained that during the time the children have been in BCDJFS care, they
have bonded in the respective placements, and it is in the children's best interest to establish
permanency.
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{¶ 7} The foster father of Ju.P. and Jo.P. (Foster Father) also testified at trial. During
his testimony, Foster Father explained that Ju.P. and Jo.P. are well-bonded with the family
and are an integral part of the family dynamic. Foster Father also testified that Ju.P. and
Jo.P. exhibited troubling behavior when they attended visitation with Mother, which included
fits of screaming. Since Mother stopped visiting them, Ju.P. and Jo.P. have not returned to
that behavior. Foster Father also testified that the family would seek adoption if BCDJFS
were granted permanent custody.
{¶ 8} Following the presentation of evidence, the magistrate issued a decision
granting permanent custody in favor of BCDJFS. Mother did not file objections to the
magistrate's decision and the juvenile court adopted the decision granting permanent
custody. Mother now appeals the juvenile court's decision, raising one assignment of error
for review.
{¶ 9} THE TRIAL COURT'S DECISION TO PLACE THE CHILDREN IN THE
PERMANENT CUSTODY OF BUTLER COUNTY WAS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE.
{¶ 10} In her sole assignment of error, Mother argues the juvenile court's decision
granting permanent custody of the children to BCDJFS was not in their best interest and the
juvenile court's decision was not supported by clear and convincing evidence. After a
thorough review of the record, we find Mother's assignment of error is without merit.
{¶ 11} As an initial matter, we note that Mother did not file objections to the
magistrate's decision, and therefore, has forfeited all except plain error. In re C.Y., 12th Dist.
Butler Nos. CA2014-11-231, CA2014-11-236, CA2014-11-237, and CA2014-11-238, 2015-
Ohio-1343, ¶ 18; In re H.W., 9th Dist. Summit No. 27730, 2015-Ohio-3018, ¶ 11. Juv.R.
40(D)(3)(b)(iv). Before a natural parent's constitutionally protected liberty interest in the care
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and custody of her child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met.
Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review
of a juvenile court's decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court's determination. In re M.B., 12th Dist.
Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. A reviewing court
will reverse a finding by the juvenile court that the evidence was clear and convincing only if
there is a sufficient conflict in the evidence presented. Id.{¶ 12} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. First,
the court must find that the grant of permanent custody to the agency is in the best interest of
the child, utilizing, in part, the factors of R.C. 2151.414(D). In re D.K.W., 12th Dist. Clinton
No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Second, the court must find that any of the
following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in
the temporary custody of the agency for at least 12 months of a consecutive 22-month
period; (4) where the preceding three factors do not apply, the child cannot be placed with
either parent within a reasonable time or should not be placed with either parent; or (5) the
child or another child in the custody of the parent from whose custody the child has been
removed, has been adjudicated an abused, neglected, or dependent child on three separate
occasions. R.C. 2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033,
2015-Ohio-3709, ¶ 10. Only one of those findings must be met for the second prong of the
permanent custody test to be satisfied. In re A.W., 12th Dist. Fayette No. CA2014-03-005,
2014-Ohio-3188, ¶ 12.
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{¶ 13} In the present case, the juvenile court found by clear and convincing evidence
that the children had been in the temporary custody of BCDJFS for more than 12 months of a
consecutive 22-month period as of the date the agency filed for permanent custody. Mother
does not dispute this finding. Rather, she contests the juvenile court's finding that granting
permanent custody of the children to BCDJFS was in their best interest.
{¶ 14} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a
permanent custody hearing:
[T]he 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
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.
{¶ 15} In granting the motion for permanent custody, the juvenile court considered the
best interest factors in light of the evidence presented at the hearing. With respect to R.C.
2151.414(D)(1)(a), the juvenile court found that although Mother has attended the majority of
visitations during the pendency of this case, her visitations have been suspended due to
intervening criminal charges and incarceration. When Mother was released from a three-
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month incarceration period, she chose to move to Virginia and stopped contacting the
children. As of the date of the permanent custody hearing, Mother had not contacted the
children for nearly six months. Furthermore, the record also establishes that Ju.P. and Jo.P.
have been in the custody of BCDJFS since they were one-day old and are well-adjusted with
their foster family.
{¶ 16} In consideration of R.C. 2151.414(D)(1)(b), the guardians ad litem (GAL)
recommended granting permanent custody in favor of BCDJFS. Both GALs referenced
Mother's aggressive and out-of-control behavior, as well as the need to provide the children
with permanency and stability, which Mother has been unable to provide.
{¶ 17} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed the
custodial history of the children. The court found the children have been in the temporary
custody of BCDJFS for more than 12 months of a consecutive 22-month period according to
the statutory definition. Ja.P. has been in the temporary custody of BCDJFS since July 2012,
while Ju.P. and Jo.P. have been in temporary custody since July 2013.
{¶ 18} In considering R.C. 2151.414(D)(1)(d), the juvenile court found the children are
in need of a legally secure placement, the agency can provide the necessary legally secure
placement, and such placement is the only way the children's needs can be achieved. The
juvenile court found that Mother is not in a position to assume her parental responsibilities.
Mother acknowledged that she had no home and is staying with an uncle and other
individuals who she refused to identify. Although Mother testified that she would be able to
care for the children at a later time, she acknowledged that she was not presently in a
position to care for the children.
{¶ 19} Throughout the pendency of these proceedings, Mother has continued to
engage in inappropriate behaviors that have led to incarceration at various times. As
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previously noted, Mother was convicted of child endangering after she became angry and
rammed her car into another vehicle. In addressing this concern, the juvenile court noted
that "this is simply one more violent incident in a number of incidents that Mother has
engaged in throughout her lifetime." Upon her release from prison, Mother failed to reengage
with counseling or address her mental health issues, and instead chose to move to Virginia
because she was "messed up in the head" from dealing with BCDJFS.
{¶ 20} With respect to Mother's argument that the juvenile court should have granted
legal custody to petitioner Helen Allen, the juvenile court noted that a motion for custody had
been filed on the day of the permanent custody trial, but that motion was untimely and not
served on the parties. Furthermore, the record reflects that Allen had not completed an
approved interstate home study. Finally, based on Mother's own testimony at the final
hearing, Allen had never met the children.2 Considering this evidence, the juvenile court
found that the issues leading to the removal of the children had not been rectified over the
nearly three years of BCDJFS involvement with Mother and the children's need for
permanent placement could only be achieved through a grant of permanent custody to the
agency.
{¶ 21} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court found that
Mother has not had any contact with the children for more than 90 days and has abandoned
them as a matter of law.
{¶ 22} Based on these findings the juvenile court found by clear and convincing
evidence that it was in the children's best interest to grant permanent custody to BCDJFS.
We have carefully and thoroughly reviewed the evidence in this case and find that the
2. The record is unclear as to the nature of the relationship between Allen and the children. According to
Mother's testimony, Allen is "the first cousin or something like that" to the children's paternal grandmother.
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juvenile court's determination regarding the best interest of the children is supported by clear
and convincing evidence and the juvenile court's decision did not amount to plain error. At
the time of the permanent custody hearing, Ja.P. had been in the custody of the agency for
approximately 35 months and Jo.P. and Ju.P. had been in the custody of the agency for
more than 22 months. While Mother maintains that she can provide for the children if given
additional time to deal with her issues, we find the present situation is appropriate for a grant
of permanent custody to BCDJFS.
{¶ 23} In so holding, we note that throughout these lengthy proceedings, Mother has
continued to engage in the inappropriate behaviors that led to the BCDJFS involvement.
Among other things, the juvenile court considered Mother's anger issues, which has led to
criminal charges, incarceration, and an inability to adequately care for the children. While in
agency care, the children will be afforded legally secure placement that cannot otherwise be
obtained without a grant of permanent custody to the agency. In light of the foregoing, we
find the juvenile court's decision was supported by the evidence and we find no error in the
juvenile court's decision to grant permanent custody of the children to BCDJFS. Mother's
sole assignment of error is overruled.
{¶ 24} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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