In re W.R. , 2023 Ohio 334 ( 2023 )

[Cite as In re W.R., 2023-Ohio-334.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
CASE NO. CA2022-09-091
W.R., et al. :
OPINION
: 2/6/2023
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. JN2020-0284, JN2020-0285, JN2020-0286
Garrett Law Offices, and Dawn S. Garrett, for appellant.
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting attorney, for appellant.
Nancy R. Braun, guardian ad litem.
M. POWELL, J.
{¶ 1} Appellant ("Mother") appeals the decision of the Butler County Court of
Common Pleas, Juvenile Division, granting the motion of the Butler County Department of
Job and Family Services ("BCDJFS" or "the agency") for permanent custody of three of her
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children, "Kathryn," "Wendell," and "Kristen" (collectively "the children").1
I. Factual and Procedural Background
{¶ 2} Kathryn (born May 2016) and Wendell (born June 2017) are children of
Mother and her ex-boyfriend ("Ex-Boyfriend"). Kristen (born April 2020) is a child of Mother
and, allegedly, her current boyfriend ("Boyfriend"). (Ex-Boyfriend and Boyfriend will be
referred to collectively as "the Fathers"). Mother has an additional child with Boyfriend, born
October 2021, who is not subject to these proceedings. As of May 2022, Mother was
pregnant with her fifth child, due November 2022, also with Boyfriend. Ex-Boyfriend has
been incarcerated for the duration of these proceedings and is not due to be released until
November 2029.
{¶ 3} On April 9, 2020, shortly after Kristen's birth, BCDJFS received a referral that
both Mother and Kristen tested positive for amphetamines. Mother apparently told hospital
staff that she had "tried" meth the day before the birth. The agency established an in-home
safety plan with Boyfriend as the provider. One week later, however, both Mother and
Boyfriend tested positive for controlled substances. The safety plan was modified, and the
children's maternal grandmother was made the provider. Mother and Boyfriend were
permitted supervised visitation.
{¶ 4} On October 5, 2020, BCDJFS received a report that Kathryn, then age four,
had received a black eye from Mother. On investigating, the agency found that Mother and
Boyfriend had been regularly spending unsupervised time with the children, and in fact, the
children had been living with them for at least two months prior to this incident. The same
day, the agency filed for temporary custody of all three children, alleging dependency
pursuant to R.C. 2151.04(C). Temporary custody was granted, and the children were
1. "Kathryn," "Wendell," and "Kristen" are pseudonyms, adopted in this opinion for purposes of privacy and
readability. See In re A.P., 12th Dist. Warren No. CA2022-01-002, 2022-Ohio-3181, ¶ 2, fn.1.
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placed in a foster home. Following an adjudicatory hearing which none of the children's
parents attended, the juvenile court entered a finding of dependency for all three children.
{¶ 5} Mother and Boyfriend were given a case plan with the aim of reunification.
They were required to complete a Substance Abuse and Mental Illness ("SAMI")
assessment, mental health assessment, and domestic violence assessment, to follow all
recommendations from those assessments, obtain and maintain housing, and find sources
of income. Both were given opportunities for supervised visitation.
{¶ 6} Review hearings were held on March 22, June 7, August 16, November 15
and December 27, 2021. Mother attended most of the hearings, but the Fathers did not.
Numerous social summaries prepared by the agency and filed with the court showed that
Mother was making little progress with the case plan. On January 12, 2022 the agency filed
motions for permanent custody of the children. A trial was held before the magistrate on
May 18, 2022.
{¶ 7} Kelly Hurley, the Butler County Children Services ("BCCS") caseworker for
the children testified that following Mother's first SAMI assessment in May 2020, Mother
had "very sporadic attendance in treatment." She completed a second SAMI assessment
in April 2021 which reiterated the recommendation that Mother engage in treatment
services. Mother began treatment in July 2021, initially attended treatment sessions
regularly, and then abruptly ceased attendance in October 2021. In the "couple of months"
leading up to trial, Mother again engaged in "sporadic attendance" at treatment, despite
being recommended in February 2022 for residential treatment. Despite Hurley's repeated
attempts, Mother delayed signing the releases necessary to enter treatment for two months.
On April 26, 2022, three weeks before the permanent custody trial, Mother entered a
residential treatment program. However, she also reported using drugs that same day.
{¶ 8} Following trial, the magistrate continued the matter for an additional hearing
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on June 9, 2022, to perfect service on Ex-Boyfriend. Ex-Boyfriend was served and failed
to appear.
{¶ 9} On June 21, 2022 the magistrate issued a decision granting permanent
custody to the agency, and the juvenile court adopted the magistrate's ruling the same day.
Mother timely objected to the magistrate's decision, arguing that she was "in substantial
compliance with the case plan" and that it was "not accurate that the [children] cannot or
should not be placed with her within a reasonable amount of time."
{¶ 10} On September 6, 2022, the juvenile court held a hearing on Mother's
objections. The same day, the juvenile court issued a sparse, less than one page written
order overruling Mother's objections in each of the children's individual cases. 2 Mother
timely appealed, raising two assignments of error.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE JUVENILE COURT ERRED BY GRANTING THE MOTION FOR
PERMANENT CUSTODY WHERE THE RECORD DOES NOT SUPPORT A FINDING
THAT SERVICE HAD BEEN PROPERLY COMPLETED ON THE FATHER AND "JOHN
DOE" FATHER AT THE TIME OF TRIAL.
{¶ 13} In her first assignment of error, Mother argues the juvenile court erred by
failing to serve Ex-Boyfriend, the father of Kathryn and Wendell, and "John Doe," the
unknown father of Kristen with a copy of the agency's motion for permanent custody.3 This
argument is unpersuasive for several reasons.
2. Given the brevity of the juvenile court's order, most of the quotation below comes from the magistrate's
thoughtful, detailed opinions. "Though the record in the present case was sufficient to allow this court's review
without a more robust explanation from the juvenile court, we note that the best practice is for the juvenile
court to set forth a detailed discussion of the factors it considered * * *." In re W.D.K., 12th Dist. Butler No.
CA2021-12-156, 2022-Ohio-2724, ¶ 19.
3. Boyfriend is the alleged father of Kristen, but in light of his failure to complete genetic paternity testing
ordered by the magistrate, an abundance of caution necessitated the service of "John Doe."
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{¶ 14} First, Mother waived this argument by failing to timely raise it below. Juv.R.
22(D) provides that defenses or objections based on defects in the complaint or in the
institution of the proceedings must be raised prior to the adjudicatory hearing. Juv.R.
22(D)(1) and (2). Further, this court has long held that we are not obligated to consider any
error which could have been called to the trial court's attention at a time when the error
could have been avoided or corrected by the trial court. In re Songer, 12th Dist. Butler No.
CA92-08-156, 1993 WL 220254, *1 (June 21, 1993). Mother did not raise the issue of
service to Ex-Boyfriend or John Doe until this appeal and consequently, waived the
argument.
{¶ 15} Second, Mother failed to raise this argument in her objections to the
magistrate's decision. Juv.R. 40(D)(3)(b)(iv) provides that "a party shall not assign as error
on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party
has objected to that finding or conclusion" pursuant to the procedure set forth in the juvenile
rule. The rule embodies the principle that the failure to draw the trial court's attention to
potential error, where the trial court could have corrected the error, results in a waiver of
that argument on appeal. In re J.W., 12th Dist. Butler Nos. CA2017-12-183 and CA2017-
12-184, 2018-Ohio-1781, ¶ 12. While Juv.R. 40(D)(3)(b)(iv) excepts "plain error" from this
waiver rule, this court has previously ruled that unless the appellant argues a "claim of plain
error," the appellant has waived the claimed errors not objected to below. In re K.P.R., 197
Ohio App.3d 193, 2011-Ohio-6114, ¶ 10 (12th Dist.). Mother does not argue plain error.
{¶ 16} Third, assuming, arguendo, that Mother could raise the argument, the record
shows that proper service by publication was made on John Doe. Juv.R. 16(A) provides
that "[s]ervice by publication shall be made by newspaper publication, by posting and mail,
or by a combination of these methods," and that the court, "by local rule, shall determine
which method or methods of publication shall be used." The Local Rules of the Butler
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County Juvenile Court provide that "[u]pon proper application and affidavit which must be
filed with the clerk at least twenty-one (21) days before the date of the hearing for which
notice is to be provided, service by publication may be perfected, pursuant to Ohio Juv. R.
16, by posting." Butler Cty.Loc.Juv.R. 79. Such notices "shall remain posted for no fewer
than seven (7) full days" and be posted "in no fewer than four conspicuous public locations
in Butler County." Id. An affidavit for service by publication on the unknown father was filed
on March 1, 2022. Service was published between April 28 and May 5, 2022 in four
government buildings in Hamilton, Ohio.
{¶ 17} Proper service on Ex-Boyfriend also appears to have been perfected. The
record demonstrates that BCCS attempted to serve Ex-Boyfriend multiple times at
Pickaway Correctional Institution in Orient, Ohio. Each time, however, the certified mail
receipt was returned without a signature. To remedy this, following the trial on May 18,
2022, a "call in the hall" was scheduled for June 9, 2022 to perfect service. Once again,
Ex-Boyfriend did not appear. In a subsequent order the same day, the magistrate stated
that Ex-Boyfriend "was served with notice of today's proceeding and failed to appear."
Mother did not object to this determination.
{¶ 18} Fourth, assuming Mother had not waived the argument, and that service had
not been properly completed, Mother lacks standing to challenge service of Ex-Boyfriend
or John Doe. We note that our sister districts have determined that "an appellant-mother
may challenge an alleged service error regarding a non-appealing party only when she has
demonstrated that she herself has been prejudiced by the alleged error." In re A.M., 9th
Dist. Summit No. 26141, 2012-Ohio-1024, ¶ 13; see also In re D.D., 1st Dist. Hamilton No.
C-190387, 2019-Ohio-4492, ¶ 18; In re M.M., 8th Dist. Cuyahoga No. 79947, 2002 WL
207610, *5 (Feb. 7, 2002). Mother has not demonstrated that she sustained any prejudice
from the alleged failure to serve either Ex-Boyfriend or John Doe, other than conjecture that
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it may have extended the case to give her more time. However, despite agency involvement
and assistance for nearly two years prior to the filing of the motion for permanent custody,
Mother had yet to remedy the conditions which necessitated removal of the children from
her custody. There is nothing in the history of this case to suggest that mother would have
availed herself of any additional time to do so.
{¶ 19} Mother's first assignment of error is overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE TRIAL COURT'S DECISION TO GRANT THE AGENCY PERMANENT
CUSTODY OF THE CHILDREN IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 22} Mother argues that the juvenile court's decision was not supported by clear
and convincing evidence and was against the manifest weight of the evidence. We address
that argument below after summarizing the applicable legal standard.
II. Applicable Law
{¶ 23} Before a natural parent's constitutionally protected liberty interest in the care
and custody of his or her child may be terminated, the state must prove by clear and
convincing evidence that the statutory standards for permanent custody have been met. In
re K.P., 12th Dist. Preble No. CA2021-11-017, 2022-Ohio-1155, ¶ 11. Under R.C.
2151.414(B)(1), the juvenile court may terminate parental rights and award permanent
custody of a child to a children services agency if the court makes findings pursuant to a
two-part test. In re K.P., 12th Dist. Preble No. CA2021-11-016, 2022-Ohio-1347, ¶ 17.
First, the juvenile court must find that the grant of permanent custody to the agency is in the
best interest of the child, using, in part, the factors of R.C. 2151.414(D). In re M.H., 12th
Dist. Clermont Nos. CA2021-08-047, CA2021-08-048, and CA2021-08-049, 2022-Ohio-48,
¶ 35. Second, the juvenile court must find that one of the circumstances set forth in R.C.
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2151.414(B)(1)(a) to (e) apply. In re R.B., 12th Dist. Butler Nos. CA2022-01-003 and
CA2022-01-004, 2022-Ohio-1705, ¶ 31. Those circumstances include, but are not limited
to: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in the
temporary custody of one or more public children services agencies for 12 or more months
of a consecutive 22-month period; and (4) when the previous circumstances do not apply,
the child cannot be placed with either of the child's parents within a reasonable time or
should not be placed with the parents. R.C. 2151.414(B)(1)(a), (b), (c), and (d). Only one
of these findings must be met to satisfy the second prong of the two-part permanent custody
test. In re C.S., 12th Dist. Clinton No. CA2020-04-006, 2020-Ohio-4414, ¶ 16.
{¶ 24} An appellate court's review of a juvenile court's decision granting permanent
custody is generally limited to considering whether sufficient credible evidence exists to
support the juvenile court's determination. In re R.F., 12th Dist. Warren Nos. CA2021-06-
052, CA2021-06-053, and CA2021-06-056, 2021-Ohio-4118, ¶ 7. This court will therefore
reverse a juvenile court's decision to grant permanent custody only if there is a sufficient
conflict in the evidence presented. In re M.N., 12th Dist. Fayette No. CA2021-07-015, 2021-
Ohio-4042, ¶ 19.
{¶ 25} Even if there is sufficient evidence to support the juvenile court's decision, an
appellate court may nevertheless reverse a permanent custody judgment if it finds the
judgment to be against the manifest weight of the evidence. In re F.S., 12th Dist. Fayette
Nos. CA2020-08-011 and CA2020-08-012, 2021-Ohio-345, ¶ 61. To determine whether
the judgment was against the manifest weight of the evidence, an appellate 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 reversed
and a new trial ordered. In re K.M., 12th Dist. Butler Nos. CA2020-03-031, CA2020-03-
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032, and CA2020-03-033, 2020-Ohio-3602, ¶ 25. The presumption in weighing the
evidence is in favor of the finder of fact, which we are especially mindful of in custody cases.
In re R.K., 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio-3074.
Therefore, if the evidence is susceptible to more than one construction, the reviewing court
is bound to give it that interpretation which is most favorable and consistent with the verdict
and judgment. In re D.S., 12th Dist. Clinton Nos. CA2021-10-030 and CA2021-10-031,
2022-Ohio-998, ¶ 63.
III. First Prong of the Permanent Custody Test: Best Interest Analysis
{¶ 26} Mother asserts that she "was in services and making progress" at the time of
trial. She argues that it was in the best interest of the children to deny the agency permanent
custody because, although she "was late to begin services consistently, * * * she is working
them steadily now."
{¶ 27} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in
a permanent custody hearing, the court must 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;
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(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
In re D.P., 12th Dist. Clermont Nos. CA2022-08-043 and CA2022-08-044, 2022-Ohio-4553,
¶ 23. The juvenile court may also consider any other factors it deems relevant to the child's
best interest. In re C.P., 12th Dist. Brown No. CA2022-05-004, 2022-Ohio-3320, ¶ 29.
{¶ 28} As stated above, the first best interest factor is "[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."
R.C. 2151.414(D)(1)(a). The juvenile court considered the children's relationships with
Mother, the Fathers, each other, and the foster parents. We do the same.
{¶ 29} At trial, the BCCS caseworker described Mother's attendance at weekly
supervised visitation with the children as "very sporadic." However, Mother was in fairly
consistent telephone contact with the children, and the caseworker described her as having
a "good relationship" with them and "lov[ing]" them. Nonetheless, the caseworker
expressed the view that telephone communication with these young, easily distractable
children was no substitute for regular in-person contact, which Mother failed to provide.
{¶ 30} The magistrate acknowledged that "Mother has demonstrated an ability to
interact appropriately with the child[ren] during visitation," but added that "she has been
inconsistent in her attendance of visitations" despite living a mile and a half from the center
where visitation occurred and despite being offered free transportation. The magistrate
further noted that although Mother "maintained telephone contact with the children with the
assistance of the foster parent, she would go months without any face to face contact." To
the extent visitation occurred, Kathryn and Wendell would both act out behaviorally as a
result.
{¶ 31} Ex-Boyfriend, the father of Kathryn and Wendell, has been incarcerated on
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charges of child endangerment related to conduct involving Kathryn in 2016, and attempted
rape involving another minor. He is not scheduled for release until November 2029, and
has not participated in this matter in any way. He has no connection or bond with the
children.
{¶ 32} Boyfriend, the alleged biological father of Kristen, participated in in-person
visitation sporadically from January 2021 to June 2021, but not since then. Boyfriend did
not complete any aspect of the case plan for reunification, and to the extent he cooperated
with testing, consistently tested positive for drugs. He was ordered to submit to genetic
testing on August 16, 2021, but also failed to do so. The magistrate found that "[d]ue to
lack of contact, there is no evidence that he has a bonded relationship with this young child."
{¶ 33} By contrast, the magistrate found that all three children were "doing well" in
their foster placement and had bonded well with the foster mother and extended foster
family. The caseworker testified that the children are "very bonded to the foster family" and
are "having all their needs met." Mother also agreed that the children are bonded with their
foster mother. The children have been in the same foster home since their removal.
Another of their siblings of whom the agency has temporary custody but who is not subject
to these proceedings shares the same foster home. The magistrate found that the foster
parents "have expressed interest in adoption of the children as a sibling group if they were
available for adoption."
{¶ 34} The second best interest factor is "the wishes of the child, as expressed by
the child or through the child's guardian ad litem, with due regard to the maturity of the
child." R.C. 2151.414(D)(1)(b). Here, the children were too young to express their wishes.
However, the guardian ad litem recommended that permanent custody be awarded to the
agency.
{¶ 35} The third best interest factor is "[t]he custodial history of the child." R.C.
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2151.414(D)(1)(c). Mother and Boyfriend raised the children following Ex-Boyfriend's arrest
and conviction for attempted rape and child endangerment. Mother knowingly violated the
safety plan by living with Boyfriend and the children for at least two months before being
discovered on October 5, 2020. Since that time, the children have resided together in the
same foster home with foster parents who have expressed interest in adopting them as a
sibling group. The magistrate found that the children had been "in the agency's custody for
a total of 14 months prior to the filing of the motion for permanent custody," and "for
approximately 18 months since the case was filed by the time of [trial]."
{¶ 36} The fourth best interest factor is 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." R.C. 2151.414(D)(1)(d). The caseworker testified
that Kathryn and Wendell both have academic delays and have both completed speech and
occupational therapy. Additionally, Wendell has "sensory issues" and is louder and more
boisterous than would be expected for a child his age. As a result, he was scheduled for a
psychological evaluation at the time of trial. Kristen also possibly has sensory issues.
Kathryn and Kristen both tested positive for controlled substances at birth.
{¶ 37} The magistrate found that "Kathryn has special needs and is on an
[individualized education plan ("IEP")] at school"; "has speech delays and global
developmental delays"; "receives speech therapy, occupational therapy services and
counseling services through her school"; and "struggles with basic academic skills and is
behind her same-aged peers." The magistrate found that Wendell also "has special needs
and is on an IEP at his preschool"; "has speech delays" and "receives speech therapy
through his school"; "is significantly behind his same-aged peers"; and "has some acting
out behaviors and difficulties with self-regulation."
{¶ 38} The final best interest factor is whether any of the factors in R.C.
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2151.414(E)(7) to (11) apply in relation to Mother and the children. R.C. 2151.414(D)(1)(e).
None of these factors applied to Mother.
{¶ 39} Based on our review of the record, we conclude that the juvenile court did not
err in determining that an award of permanent custody to BCDJFS was in the children's
best interest. There is more than sufficient credible evidence to support the juvenile court's
determination that the statutory standards for permanent custody have been met. "'A child's
best interests are served by the child being placed in a permanent situation that fosters
growth, stability, and security.'" In re I.C., 12th Dist. Clinton Nos. CA2022-04-010 thru
CA2022-04-012, 2022-Ohio-3101, ¶ 45, quoting In re D.E., 12th Dist. Butler Nos. CA2018-
03-035 and CA2018-0-04-038, 2018-Ohio-3341, ¶ 60. The record establishes that Mother
cannot provide these things.
{¶ 40} Lastly, we note that the crux of Mother's argument is that because she was in
compliance with the case plan at the time of trial, she deserved more time to complete it. It
is well established, however, that a parent's successful completion of the terms of a case
plan is not dispositive on the issue of reunification, as the case plan is simply a means to a
goal, but not the goal itself. In re A.R., 12th Dist. Butler No. CA2015-08-143, 2016-Ohio-
4919, ¶ 18. That is to say, the "successful completion of case plan requirements does not
automatically preclude a grant of legal custody to a nonparent." Id. Further, "Mother's claim
that she would be on track for reunification with [the children] within just three short months
requires this court to not only speculate on Mother's sincerity but to gamble with [the
children's] li[ves]." In re G.W., 12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 52.
"A child's life is not an experiment that can be left to chance." Id.{¶ 41} Here, the caseworker testified that at the time of trial, there was nothing else
Mother should have been doing to be in compliance with the case plan. The magistrate
found that "[d]espite her participation in some services, the agency presented clear and
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convincing evidence that the concerns which caused the children to be removed have not
[been] remedied and that significant concerns remain." We agree. While Mother was in
complete compliance with the case plan for the three weeks preceding trial, this is three
weeks in an 18-month period since the children were initially removed, and a two-year
period since the agency first became involved. Mother's seriousness about following the
case plan is ultimately too little, too late.
IV. Second Prong of the Permanent Custody Test: "12 of 22" Analysis
{¶ 42} Mother on appeal does not challenge the juvenile court's finding under R.C.
2151.414(B)(1)(d) that the children had been in the temporary custody of BCDJFS for at
least 12 months of a consecutive 22-month period. Because Mother does not challenge
this "12 of 22" finding, we need not review the issue further. In re J.N.L.H., 12th Dist. Butler
No. CA2022-06-063, 2022-Ohio-3865, ¶ 26. However, we note that the record
unquestionably establishes that the "12 of 22" finding was met in this case because the
children were taken into BCDJFS's custody in October 2020 and remained in its custody
through the completion of the trial in May 2022 and beyond.
V. Conclusion
{¶ 43} Throughout the course of these proceedings, from the first involvement of
BCDJFS to the trial, Mother showed herself consistently unable or unwilling to commit to
sobriety, frequently either testing positive for drugs or failing to test. Mother's attendance
at mental health treatment was described in similar terms. These children deserve better,
and while Mother was "in substantial compliance with her case plan" for the three weeks
preceding trial, it was too little, too late. From October 2020 to April 2022, while her children
remained in foster care, Mother took no serious steps to reunify with them. Her actions for
the 14 months following their removal speak louder than those in the one month preceding
trial. Accordingly, we find that the juvenile court's decision granting BCDJFS's motion for
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permanent custody was supported by sufficient evidence and was not against the manifest
weight of the evidence. Mother's second assignment of error lacks merit and is overruled.
{¶ 44} Judgment affirmed.
HENDRICKSON, P.J., and BYRNE, J., concur.
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