In re L.M.B. ( 2020 )

[Cite as In re L.M.B., 2020-Ohio-2925.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: L.M.B. and M.A.B. : APPEAL NOS. C-200033
C-200044
: TRIAL NO. F17-1500X
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 13, 2020
Roger W. Kirk, for Appellant Father,
Anzelmo Law and James A. Anzelmo, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patrick Stapp, Assistant
Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family
Services,
Raymond T. Faller, Hamilton County Public Defender, and Elizabeth Stringer, Assistant
Public Defender, Guardian ad Litem for Appellee minor children.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this parental termination case, we ultimately reject challenges to the
juvenile court’s decision to terminate parental rights. Clear and convincing evidence
supported the best interest analysis conducted by the court, as evidence filled the record
regarding hazards to the children, parental drug use, untreated mental health problems, and
the like. For the reasons explained below, we accordingly affirm.
I.
{¶2} This case began with the Hamilton County Department of Job and Family
Services’s (“HCJFS”) motion for an interim order of temporary custody of L.M.B. (eight
years old) and M.A.B. (four years old) due primarily to Mother and Father continuing to live
with the children in a house condemned by the board of health. The magistrate promptly
granted HCJFS’s request in June 2017. And within two months, in August 2017, both
children were adjudicated neglected and dependent, which landed them in the temporary
custody of HCJFS. During this time, both children resided with their maternal great aunt.
{¶3} As reunification efforts proceeded, concerns arose regarding the parents’
substance abuse issues and domestic violence history, as well as Mother’s mental health. To
address these concerns, both parents were to submit random drug screens to HCJFS,
complete domestic violence assessments (and follow any recommendations), engage in
homemaker services and a parenting program, and participate in substance abuse treatment
at Talbert House, as well as mental health treatment for Mother. While both parents
completed their domestic violence services, their engagement with the remaining case plan
services fell well short. Regarding the drug screens, Mother and Father completed only a
handful of the drug screens scheduled for them, with each testing positive for cocaine on at
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least one occasion (twice for Mother). Moreover, neither parent ever completed the
parenting program at Beechacres, they declined to use homemaker services, and they
neglected their substance abuse treatment, all of which prompted Talbert House to
discharge both for inconsistent participation.
{¶4} Similarly, visits with the children suffered from unpredictability. Although
Mother and Father more consistently attended weekly visits facilitated by the Family
Nurturing Center (“FNC”), only missing between four or five visits within a six-month
period, those facilitated by HCJFS proved much more erratic, with the parents disappearing
from HCJFS’s view for “a month to a month-and-a-half at a time.” Moreover, stable
housing continued to present problems for the parents. While Mother and Father sold their
condemned home in August 2018, they nevertheless moved into another residence unfit for
the children, the paternal grandmother’s house. Her residence posed various dangers to the
children, including no railings on the staircase and missing drywall. The parents assured
HCJFS that they were on the cusp of moving out, having leased an apartment at another
location, but further investigation revealed that promise to be false.
{¶5} Meanwhile, in February 2018, HCJFS removed L.M.B. and M.A.B. from the
maternal great aunt’s residence and placed both children with a foster family, where they
remained until trial. A few months later, in September 2018, HCJFS moved for permanent
custody of the children. Yet HCJFS was not the only party vying for custody of the children,
as both the paternal grandmother and maternal grandmother filed for legal custody of
L.M.B. and M.A.B. And in February 2019, a trial proceeded on the competing motions,
extending over two days, with the magistrate entertaining testimony from the various
interests represented. On the one hand, the magistrate heard from two of HCJFS’s
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OHIO FIRST DISTRICT COURT OF APPEALS
caseworkers and the guardian ad litem (“GAL”) for the children, who recommended that
HCJFS receive permanent custody of L.M.B. and M.A.B. based on Mother’s and Father’s
failure to establish stable and safe housing, countless missed drug screens, and consistent
neglect of their substance abuse treatment and case plan services, as well as the children’s
bond with their current foster family. On the other hand, Mother and Father maintained
that the best interests of the children would be served by returning them to their parents,
emphasizing their consistent visits with the children, their strong bond with them, and their
ability to remedy the safety issues at their current residence. Finally, both grandmothers
invited the magistrate to grant them legal custody of the children (but neither appealed the
permanent custody decision, and thus we need not ponder on their arguments), with the In
re Williams attorney for L.M.B. rallying in the maternal grandmother’s corner.
{¶6} Ultimately, after considering all the evidence, the magistrate agreed with
HCJFS’s and the GAL’s recommendation, granting HCJFS permanent custody of L.M.B.
and M.A.B., thereby denying both grandmothers’ motions seeking legal custody of the
children. In the wake of this ruling, Mother, Father, and the In re Williams attorney lodged
objections to the magistrate’s decision, yet the juvenile court ultimately upheld the decision
granting permanent custody to HCJFS. Mother and Father now appeal this order
terminating their parental rights, asserting that the juvenile court erred in granting
permanent custody to HCJFS.
II.
{¶7} Because Mother’s and Father’s assignments of error coincide, we address
them together. In her first assignment of error, Mother challenges the court’s finding under
R.C. 2151.414(B)(1)(d), asserting clear and convincing evidence did not support that the
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children resided in the care of HCJFS for 12 months or more of a consecutive 22-month
period. In her second and Father’s first assignment of error, both contend clear and
convincing evidence did not support that permanent custody was in the best interests of the
children. Father tacks on the additional challenge that the juvenile court’s grant of
permanent custody runs counter to the manifest weight of the evidence.
A.
{¶8} Reviewing a juvenile court’s grant of permanent custody requires that we
independently find that clear and convincing evidence supports the decision. See In re C
Children, 1st Dist. Hamilton Nos. C-190650 and C-190682, 2020-Ohio-946, ¶ 8 (“When
reviewing a juvenile court’s grant of permanent custody, we must independently find that
clear and convincing evidence supports the decision.”); In re W.W., 1st Dist. Hamilton Nos.
C-110363 and C-110402, 2011-Ohio-4912, ¶ 46. To satisfy the clear and convincing
standard, the evidence must “ ‘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. As to Father’s challenge to the manifest weight,
we must evaluate whether the juvenile court lost its way in resolving conflicts in the
evidence, which in turn caused a manifest miscarriage of justice. See In re A.B., 1st Dist.
Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 16. In reviewing both Mother’s
and Father’s sufficiency challenges, however, we scrutinize the record to determine whether
the juvenile court had sufficient evidence to satisfy the clear and convincing standard. Id. at
¶ 15.
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{¶9} As always, R.C. 2151.414 supplies the statutory framework for our journey.
Pursuant to R.C. 2151.414, the court will only grant permanent custody if it finds by clear
and convincing evidence that (1) one of the conditions enumerated in R.C. 2151.414(B)(1)(a)
through (e) exists, and (2) granting permanent custody to the agency is in the best interests
of the children. See In re J.G.S., 1st Dist. Hamilton Nos. C-180611 and C-180619, 2019-
Ohio-802, ¶ 34. The magistrate and juvenile court here elected to utilize R.C.
2151.414(B)(1)(d), the so-called “12 of 22” factor, requiring that the children reside “in the
temporary custody of one or more public children services agencies * * * for twelve or more
months of a consecutive twenty-two-month period[.]”
{¶10} For purposes of calculating this time, R.C. 2151.413(D)(1) provides that this
period runs from the earlier of the date that the court adjudicated the child abused,
neglected, or dependent or 60 days after the date they were removed from the home. In this
case, the earlier date for both L.M.B. and M.A.B. was 60 days after the date they were
removed from the home, i.e., 60 days after June 22, 2017, when HCJFS received interim
temporary custody. For both children, this date is August 21, 2017. Accordingly, at the time
HCJFS moved for permanent custody on September 4, 2018, the children had resided in the
temporary care of the agency for 12 months and 14 days, the months consecutive within a
22-month period.
{¶11} As best we can tell, Mother contends that the court erred in its 12 of 22
finding because the 22-month period did not run until after the permanent custody trial
concluded. But, as indicated above, this represents a fundamental misunderstanding of the
12 of 22 factor, which necessitates only that the child reside in the temporary custody of
HCJFS for 12 months or more (within a 22-month period) before it moves for permanent
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custody. See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 26
(holding that, because “the time that passes between the filing of a motion for permanent
custody and the permanent-custody hearing does not count toward the 12-month period set
forth in R.C. 2151.414(B)(1)(d),” the 12 months must accrue before the agency can move for
permanent custody). As long as the accrued 12 months fall within a consecutive 22-month
period prior to HCJFS moving for permanent custody, the completion of this 22-month
interval has no bearing on the 12 of 22 finding.
{¶12} The court also found R.C. 2151.414(B)(1)(a) applied, requiring a
determination that the child cannot be placed within a reasonable time with either parent or
should not be placed with either parent. However, we need not review this additional
finding since “any” provision enumerated in R.C. 2151.414(B)(1) allows the court to proceed
to the best interest inquiry, and the court’s proper finding under R.C. 2151.414(B)(1)(d)
satisfied that requirement. See In re X.M.W. and E.A.W., 1st Dist. Hamilton Nos. C-190568
and C-190595, 2020-Ohio-449, ¶ 11 (“R.C. 2151.414(B)(1), however, only requires that ‘any’
of the (a) through (e) factors exist, rendering any finding under (B)(1)(a) superfluous in
light of the R.C. 2151.414(B)(1)(d) conclusion.”); In re S.W., 3d Dist. Marion Nos. 9-18-29
and 9-18-30, 2019-Ohio-2068, ¶ 19, quoting In re A.M., 3d Dist. Marion No. 9-14-46, 2015-
Ohio-2740, ¶ 14 (“ ‘[T]he findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d)
are alternative findings, [and] each is independently sufficient to use as a basis to grant the
Agency’s motion for permanent custody.’ ”). Therefore, clear and convincing evidence
supported the court’s finding that the children had resided in the temporary custody of
HCJFS for 12 months of a consecutive 22-month period under R.C. 2151.414(B)(1)(d). We
accordingly overrule Mother’s first assignment of error.
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B.
{¶13} With the first prong satisfied, we now turn to the best interest inquiry. In
determining whether permanent custody is in the best interests of the child, the court must
consider all relevant factors within R.C. 2151.414(D)(1)(a) through (e). As always, no single
factor holds greater weight or heightened significance, as the court must weigh them all in
its analysis. See In re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637,
¶ 35 (“No single factor is given greater weight or heightened significance.”).
{¶14} Turning to the first factor, R.C. 2151.414(D)(1)(a) concerns “[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 many significantly affect
the child[.]” Mother and Father both maintain that the court failed to afford proper
consideration of their strong bond with their children and their consistent visits, directing
our attention to FNC facilitator Janet Van Nuland’s testimony. At trial, Ms. Van Nuland
described the parents’ visits at FNC, noting that the parents engaged with the children and
put their needs first, the children were always “very excited to see the parents” and appeared
bonded to them, and she commented favorably on the parents’ compliance and attendance.
But the magistrate duly noted this point (and the juvenile court adopted the magistrate’s
findings). And, of course, there is another side to this story. Although the parents
maintained consistent visits with their children during their time at FNC, this was not
always the case, as one of the HCJFS caseworkers noted that when she facilitated the weekly
visits between the parents and the children, “there would be a month to a month-and-a-half
at a time that [she] wouldn’t hear from either of them.” And in fact, Mother acknowledged
at trial that on occasion she missed visits with her children “because [she] relapsed.”
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{¶15} Further, the HCJFS caseworker testified that both L.M.B. and M.A.B.
developed strong bonds with their foster family—living with this same foster family since
February 2018 (i.e., for about a year before trial began). As the juvenile court explained,
the girls are bonded with their foster family and thriving in their current foster home, both
improving in school, L.M.B. participating in individual therapy, and the pair engaging in
speech therapy at their schools. Further, the foster family consistently ensured that the
children’s needs were met, the girls attending all their medical appointments and receiving
appropriate treatment. Notably, neither parent, at least at the time of trial, had ever
requested involvement in any of the children’s appointments.
{¶16} The juvenile court also properly considered the wishes of the children. See
R.C. 2151.414(D)(1)(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[.]”). As
argued by the In re Williams attorney, eight-year-old L.M.B. wished to reside with her
maternal grandmother. However, the GAL countered by recommending that HCJFS receive
permanent custody of both children (four-year-old M.A.B. too young to express her wishes).
In support of her best interest position, the GAL emphasized the parents’ failure to establish
stable and safe housing for the children and noncompliance with their substance abuse
treatment.
{¶17} As discussed above, the juvenile court also appraised the children’s custodial
history, finding that the children were in the temporary custody of HCJFS for over 12
months of a consecutive 22-month period. See R.C. 2151.414(D)(1)(c). Further, at the
conclusion of trial, the children had resided in HCJFS’s temporary custody for nearly two
years, most of that time with the same foster family.
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{¶18} Moreover, the juvenile court concluded that a legally secure permanent
placement of the children could only be achieved with a grant of permanent custody to
HCJFS. See R.C. 2151.414(D)(1)(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[.]”). And clear and convincing evidence supported this
finding in light of both the parents’ ongoing substance abuse issues, noncompliance with
case plan services and treatment programs, and failure to establish stable and safe housing
for L.M.B. and M.A.B. Both parents had several opportunities to demonstrate progress in
their case plans, but they fell regrettably short, neither successfully completing their ordered
case plan services.
{¶19} Regarding their substance abuse, HCJFS required that Mother and Father
complete random drug screens. Of the 20 plus drug screens scheduled for the pair, Mother
and Father each completed roughly five, Father testing positive for cocaine on one occasion
(that occasion being the last time he submitted a drug screen) and Mother testing positive
for cocaine twice (one of those instances occurring about a month before trial commenced).
Additionally, Mother never completed her substance abuse or mental health treatment, with
Talbert House reporting Mother inconsistently attended her group and individual therapy
appointments. Similarly, Talbert House discharged Father after just a couple of months for
lack of communication and inconsistent visits with his group therapy. Substance abuse
plagued both parents, with Father even admitting at trial he had a substance abuse problem
(but he was not currently working on it). In similar fashion, Mother and Father did not
complete their parenting program nor the recommended homemaker services to address
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their housing issues. Although Father is correct that he completed the YMCA domestic
violence prevention classes, this does not negate the myriad services that he failed to fulfill.
{¶20} Further, the parents never established a safe and secure home for the children
to return to if reunited. See In re S.F., 2d Dist. Montgomery No. 28606, 2020-Ohio-693, ¶
62 (finding parents were not a legally secure placement since they could not “provide [the
child] with secure, stable housing[.]”). As discussed above, HCJFS’s involvement with the
parents originated when, despite the board of health condemning their residence, the
parents continued living there with the children. Further, while the parents throughout the
case claimed they would obtain their own independent housing, their plans never came to
fruition. In fact, the parents lied to their HCJFS caseworker concerning their plans to leave
the paternal grandmother’s home and rent an apartment.
{¶21} As to the last factor, R.C. 2151.414(D)(1)(e), the juvenile court properly found
none of the factors listed in R.C. 2151.414(E)(7) through (11) applied to either parent. See
R.C. 2151.414(D)(1)(e) (“Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”).
{¶22} We do not doubt the strong bond the parents share with their children here.
Yet, this is but one out of many factors the court must weigh in determining the children’s
best interests. See In re S.H., 12th Dist. Butler Nos. CA2014-12-259 and CA2015-01-008,
2015-Ohio-1763, ¶ 24 (“However, although a strong bond may very well exist, this is but one
factor to be considered when determining the best interest of a child in a permanent custody
proceeding.”). And as we demonstrated above, clear and convincing evidence supported the
juvenile court’s decision that permanent custody to HCJFS was in the children’s best
interest. Accordingly, we cannot find the court’s decision was against the manifest weight or
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lacked sufficient evidence. We therefore overrule Mother’s second and Father’s single
assignment of error.
III.
{¶23} For the reasons set forth above, we overrule Mother’s first and second
assignments of error and Father’s sole assignment of error. We accordingly affirm the
judgment of the juvenile court.
Judgment affirmed.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
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