In re S.J. , 2013 Ohio 2935 ( 2013 )

[Cite as In re S.J., 2013-Ohio-2935.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE:
S.J., Jr.
Appellate Case No. 25550
Trial Court Case No. JC 2009-9919
(Juvenile Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 3rd day of July , 2013.
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MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Appellee, MCCS
CHARLES W. SLICER, Atty. Reg. #0059927, Slicer Law Office, 111 West First Street, Suite 518,
Dayton, Ohio 45402
Attorney for Appellant, R.J.
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FAIN, P.J.
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{¶ 1} R.J. appeals from an order of the Montgomery County Juvenile Court overruling her
objections to a decision of a magistrate and awarding permanent custody of her son, S.J., to
Montgomery County Children Services (Agency).
{¶ 2} R.J. contends that the juvenile court abused its discretion in awarding permanent
custody of her child to the Agency, because the record does not support a finding that permanent
custody is in the best interest of the child. She further contends that the Agency failed to make
reasonable efforts at reunification and failed to explore potential placements with relatives or
friends.
{¶ 3} We conclude that the record supports the juvenile court's decision to grant
permanent custody of the child to the Agency. We further conclude that the Agency made
reasonable efforts at reunification and sought information regarding relative and other placement
alternatives. Accordingly, the judgment of the trial court is Affirmed.
I. The Course of Proceedings
{¶ 4} R.J. gave birth to S.J. on October 31, 2009. The child was immediately taken
into the temporary custody of the Agency. In January 2010, the child was adjudicated
dependent. The Agency filed a motion for permanent custody in November 2011. Hearings on
the motion were held in March and May of 2012.
{¶ 5} During the hearings, evidence was presented that the child has substantial
disabilities and is receiving services from Help Me Grow for feeding, occupational and speech
therapy. Despite help from the Agency, R.J. appears unable to grasp the nature of the child’s
developmental delays.
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{¶ 6} R.J. has a “history of homelessness” and must rely upon relatives for housing.
At the time of the hearings, R.J. and the child’s father were residing in the paternal
grandmother’s home. She is unemployed and has no source of income. Furthermore, she has
mental health issues for which she needs long-term therapy and medication.
{¶ 7} R.J. consented to a case plan formulated by the Agency. The case plan required
R.J. to: (1) attend therapy for mental health issues; (2) obtain her GED; (3) obtain and maintain
stable housing and income; (4) attend visitation with the child; and (5) address personal hygiene
issues.
{¶ 8} R.J. was referred to treatment for mental health issues in 2009. However, she
did not engage in treatment until 2011, and her attendance at therapy has been inconsistent.
Furthermore, she was required to obtain her GED, but failed to complete this objective. R.J. had
no source of income and had no prospect of earning an income. She was denied Social Security
benefits and failed to appeal from that initial denial.
{¶ 9} R.J. and the child’s father were living with the father’s mother. The Agency and
GAL were not granted access to the home until March 2012, shortly before the hearings on the
Agency’s motion for permanent custody. Even then, the paternal grandmother did not permit
access to the entire home; some rooms remained locked during the home visit. At the time of
the home visit, the GAL noted that the home was not appropriate for the child and was infested
with cockroaches. The GAL noted that there were “approximately 7 dogs and 5 cats” in the
home with open litter boxes on both levels of the home. The evidence also indicates that the
dogs are permitted to urinate and defecate inside the home. The home had exposed electrical
wiring and missing plaster.
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{¶ 10} The record demonstrates that from the time the Agency obtained temporary
custody, visitation was scheduled to occur twice weekly. When R.J. failed to attend “a
significant amount of visits,” the visitation was reduced to one visit per week. Visits for
January, February and March of 2011 were “fairly consistent.” However, from April to
September of 2011, R.J. only attended about half of her scheduled visitations. R.J. then
presented a medical note to the Agency indicating that she “was contagious,” and she did not visit
from October of 2011 until December 20th. The Agency could not ascertain the exact nature of
R.J.’s illness. During the first part of 2012, until the hearing in March, RJ. attended 75% of the
visitations. But the Agency experienced an ongoing problem with R.J. leaving the visitation
prior to the scheduled ending time.
{¶ 11} Finally, RJ. failed to rectify her issues with personal hygiene. The record shows
that S.J. began to get eye infections following visitations. The Agency then demanded that R.J.
shower before arriving for visitation and she wear clean clothes. The Agency informed R.J. that
she needed to keep her fingernails clean, but R.J. stated that she had a “very hard time” getting
her nails clean. Despite “multiple” conversations with R.J. about this requirement, the matter of
cleanliness remained an issue.
{¶ 12} Following the hearing, the magistrate issued a decision granting permanent
custody to the Agency. R.J. filed objections, which were overruled by the trial court. R.J.
appeals.
II. Evidence in the Record Supports the Trial Court’s Finding that an
Award of Permanent Custody to the Agency Is in the Child’s Best Interest
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{¶ 13} R.J.’s First Assignment of Error states as follows:
THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO MONTGOMERY COUNTY CHILDREN SERVICES
BECAUSE THE AGENCY FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE
BEST INTEREST OF THE MINOR CHILD.
{¶ 14} R.C. 2151.414 establishes a two-part test for courts to apply when determining a
motion for permanent custody to a public services agency. The statute requires the court to find,
by clear and convincing evidence, that: (1) granting permanent custody of the child to the
agency is in the best interest of the child; and (2) either the child (a) cannot be placed with either
parent within a reasonable period of time or should not be placed with either parent if any one of
the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and no relatives are
able to take permanent custody of the child; or (d) has been in the temporary custody of one or
more public or private children services agencies for twelve or more months of a consecutive
twenty-two month period. In re K.M., 8th Dist. Cuyahoga No. 98545, 2012–Ohio–6010, ¶ 8,
citing R.C. 2151.414(B)(1).
{¶ 15} R.C. 2151.414(D) directs the trial court to consider all relevant factors when
determining the best interest of the child, including but not limited to: (1) the interaction and
interrelationship of the child with the child's parents, relatives, foster parents and any other
person who may significantly affect the child; (2) the wishes of the child; (3) 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
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consecutive twenty-two-month period; (4) 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 (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are
applicable.
{¶ 16} R.J. does not dispute that at the time of the hearing, the child had been in the
temporary custody of the Agency for more than twelve months. She does dispute the trial
court’s finding that it is in S.J.’s best interest to grant permanent custody to the Agency.
{¶ 17} S.J. has resided with the same foster family since he was born and released from
the hospital. The evidence supports a finding that S.J. is bonded with his foster family. The
foster family is willing to adopt S.J. The evidence also shows that R.J. misses many of her
scheduled visitations with the child, and that she leaves early when she does attend.
{¶ 18} Although the child is too young to express his wishes with regard to custody, the
Guardian Ad Litem indicated that the child’s best interests would be served by granting custody
to the Agency. R.J. expresses the desire to retain custody of her son, but she failed to comply
with the terms of her case plan, including visitation, which was designed to aid her in rectifying
the problems that resulted in the Agency’s intervention.
{¶ 19} The trial court found that a legally secure placement could not be achieved unless
the Agency was granted permanent custody. Again, the record demonstrates that R.J. failed to
comply with the terms of her case plan, which would have aided in reunification. Finally, the
trial court noted that R.J. no longer retained legal custody of S.J.’s older half-brother, who was
placed into the legal custody of his paternal grandmother.
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{¶ 20} A trial court's decision on termination “will not be overturned as against the
manifest weight of the evidence if the record contains competent, credible evidence by which the
court could have formed a firm belief or conviction that the essential statutory elements for a
termination of parental rights have been established.” In re A.U., 2d Dist. Montgomery No.
22264, 2008–Ohio–186, at ¶ 15 (citations omitted). Furthermore, “issues relating to the
credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact.”
In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007–Ohio–3433, at ¶ 22. The “rationale of giving
deference to the findings of the trial court rests with the knowledge that the trial judge is best able
to view the witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v.
City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); In re J.Y., 2d Dist. Miami No.
07–CA–35, 2008–Ohio–3485, ¶ 33.
{¶ 21} Our review of the record, transcript, and exhibits indicates that there is
competent, credible evidence that would allow the trial court to conclude that the statutory
elements for termination under R.C. 2151.414(B) have been satisfied.
{¶ 22} The First Assignment of Error is overruled.
III. The Agency Made Reasonable Efforts to Reunify the Child with his Mother
{¶ 23} R.J.’s Second Assignment of Error is as follows:
THE TRIAL COURT ERRED IN FINDING THAT MONTGOMERY
COUNTY CHILDREN SERVICES BOARD HAD MADE EVERY
REASONABLE EFFORT TO REUNIFY THE MINOR WITH
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DEFENDANT-APPELLANT OR EXTENDED FAMILY.
{¶ 24} R.J. contends that the Agency failed to prove that it made reasonable efforts to
reunify the child with her. She further contends that the Agency failed to explore possible
relative placements for the child.
{¶ 25} The record demonstrates that the Agency developed the case plan in 2009. Due
to the fact that R.J. is unable to read, the caseworker spent more than two hours explaining the
plan to her. R.J. indicated that she understood the terms of the plan. The caseworker reviewed
the terms of the plan with R.J. on a monthly basis. The Agency made the appropriate referrals
for R.J. with regard to the objectives of her case plan. Despite this, R.J. failed to comply with
her case plan. Based upon this record, we conclude that the Agency did demonstrate that it
exercised reasonable efforts toward reunification.
{¶ 26} We next turn to the claim that the Agency did not explore alternate placement
with friends or family. We have held that consideration whether a child can be placed with a
relative is not required by the statute, although “[t]hat possibility is a matter that ought to be
considered in connection with the child's interaction and relationship with the child's parents,
relatives, foster caregivers, out-of-home providers, and any other person who may significantly
affect the child.” In re S.F., 2d Dist. Montgomery No. 25318, 2013-Ohio-508, ¶ 23.
{¶ 27} In any event, in the case before us, consideration was given to the possibility of
placement of the child with a relative; the caseworker attempted to contact relatives, as well as a
family friend. An interstate home study was done regarding the child’s maternal aunt who lived
in Georgia. The results of this home study were negative, due to lack of income and poor home
conditions. The maternal grandmother was contacted, but she eventually indicated that she was
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not interested in assuming custody. The Agency conducted a home study with regard to the
paternal grandmother, with whom R.J. and the father were residing. Again, the results of the
home study were negative, because the house was unfit for habitation. Furthermore, the paternal
grandmother has a diagnosis of schizophrenia rendering her unable to assume custody. Finally,
the Agency contacted a friend of the family who had indicated interest in custody. That family
moved during the pendency of the case, and did not provide the Agency with contact information.
{¶ 28} We conclude that there is clear and convincing evidence in this record that the
Agency made reasonable efforts to reunify the child and R.J., and that the Agency did explore the
possibility of placing the child with family or friends.
{¶ 29} The Second Assignment of Error is overruled.
IV. Conclusion
{¶ 30} Both of R.J.’s assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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FROELICH and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Matthew T. Crawford
Charles W. Slicer
Hon. Nick Kuntz