In re T.C. , 2019 Ohio 3008 ( 2019 )

[Cite as In re T.C., 2019-Ohio-3008.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
T.C. DEPENDENT CHILD :
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
:
: Case No. 19CA0004
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. F2017-0425
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 25, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ANREW ROWAN JERMAINE COLQUITT
Asst. Pros., Licking Co. DJFS 33 W. Main St. Ste. 109
20 S. Second St., 4th Floor Newark, OH 43055
Newark, OH 43055
GUARDIAN AD LITEM:
STEPHANIE TACKETT
36 North Second St.
P.O. Box 919
Newark, OH 43058-0919
Licking County, Case No. 19CA0004 2
Delaney, J.
{¶1} Defendant-appellant Sandra Clemings [“Mother”] appeals from the
December 18, 2018 Judgment Entry of the Licking County Court of Common Pleas,
Juvenile Division, granting permanent custody of T.C. to plaintiff-appellee Licking County
Job and Family Services, Division of Children Services [the “Agency”].
FACTS AND PROCEDURAL HISTORY
{¶2} Mother and Father are the parents of T.C., age 4 at the time of the
permanent custody hearing. T.C. has special needs including autism.
{¶3} In June 2017, Newark police found T.C. wandering outside, unsupervised.
Father was found in the family residence under the influence and in possession of
methamphetamine. Mother acknowledged methamphetamine use with Father, in the
family residence, when the child was present.
{¶4} Father was arrested, convicted, and sentenced to a prison term of 3 years
for drug possession. His release date is in 2020.
{¶5} An ex parte order of removal was granted on June 12, 2017. Shelter care
and temporary orders were entered the next day. An uncontested adjudication was held
on August 9, 2017 and T.C. was ordered into temporary custody of the Agency. A case
plan was adopted at the hearing.
{¶6} The motion for permanent custody was filed on February 12, 2018. The
matter proceeded to trial on June 1, 2018 and June 15, 2018. On December 18, 2018,
the magistrate granted permanent custody to the Agency. The trial court overruled
Mother’s objections, approving and adopting the magistrate’s decision.
Licking County, Case No. 19CA0004 3
{¶7} Mother appeals from the decision of the trial court dated December 18,
2018, terminating her parental rights and granting permanent custody of T.C. to the
Agency.
{¶8} The following evidence is adduced from the record of the hearing before the
magistrate on June 1 and 15, 2018.
{¶9} The issues identified for Mother included substance abuse, mental health,
domestic violence, economic instability, and parenting. The record of the permanent-
custody hearing indicates Mother was in crisis during the hearing; she admitted her
substance abuse has escalated; she is depressed and can’t get off the couch; and she is
“overwhelmed with all this stupid stuff [she’s] supposed to do.” T. 37-39.
{¶10} Mother admits using methamphetamine, and that her use is escalating
because it is now intravenous. She admitted she used several days prior to the hearing.
Mother denied using heroin regularly, but acknowledged a heroin overdose in February
2018 that resulted in hospitalization and required two administrations of Narcan.
{¶11} Allison Keeley is the ongoing case worker for this family and referred Mother
for substance-abuse treatment. Keeley documented a number of treatment facilities
which she worked to get Mother into, with no success. In the fall of 2017, Mother started
at Behavioral Healthcare Partners, which addressed both mental health and substance
abuse issues. Mother made little progress and indicated she did not like the counseling
there.
{¶12} Mother was recommended for inpatient treatment, and Keeley and Mother
identified Sojourner Recovery in Hamilton, Ohio as a potential placement. Keeley drove
Mother to the assessment, and brought her home afterward. Mother said she “never
Licking County, Case No. 19CA0004 4
heard anything” from Sojourner about entering the program, even though an opening had
purportedly been reserved for her.
{¶13} In January 2018, Mother engaged in treatment at Shepherd Hill, but was
removed from the program by February 2018.
{¶14} In March 2018, Mother initiated services at Stepping Stone in Portsmouth,
Ohio. Keeley drove her to the facility but found Mother at home a week later.
{¶15} In April 2018, Mother and Keeley identified Stanton Villa as a treatment
option, but Keeley was skeptical and expressed concern because she knew it was
expensive and there were no funds available to help Mother pay for it. Mother went to
Stanton Villa for an assessment but was rejected due to inability to pay. She was referred
to the local LAPP program but did not follow through. Mother did seek help at Courage
House, but they were unable to help her because she denied current abuse by a partner.
At the hearing, Mother stated she was attempting to enroll at Amethyst.
{¶16} By the time of the hearing in June 2018, Mother had not completed any
substance abuse treatment. Mother’s mental health treatment was also minimal and she
repeatedly expressed her disdain for mental-health counseling.
{¶17} At the initiation of case plan services, Mother told the Agency she receives
SSI benefits and has no other source of income, but she has never provided proof of
benefits. Mother lived in a condo owned by Father’s parents, but this was problematic
because an “eviction notice” had been posted (although no court action was apparently
pending) and Mother was planning to go to Courage House to live. Keeley testified that
while Mother was living in the condo, there were concerns about people Mother allowed
to stay there.
Licking County, Case No. 19CA0004 5
{¶18} Mother’s case plan did not include parenting classes because sobriety is
required before she could enroll. Mother did not participate in parenting classes although
they were recommended.
{¶19} Mother’s interaction with T.C. at visitation was positive. She missed very
few scheduled visitations, and witnesses testified her interaction with her child was warm,
loving, and appropriate.
{¶20} T.C. is presently in foster care in a home providing for children with special
needs. He is autistic and was largely nonverbal upon arrival, but has improved. He is
enrolled in preschool and participates in speech and occupational therapy. He is bonded
with his foster mother and with other children in the home. Foster Mother is interested in
pursuing adoption and has adopted other special-needs children. She is open to allowing
contact between T.C. and his parents.
{¶21} The Guardian Ad Litem testified that it is in T.C.’s best interests to be placed
in permanent custody of the Agency.
{¶22} Mother raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶23} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
CANNOT OR SHOULD NOT BE PLACED WITH [MOTHER] WITHIN A REASONABLE
TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
{¶24} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
Licking County, Case No. 19CA0004 6
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶25} “III. THE TRIAL COURT’S DECISION DENYING AN EXTENSION WAS
AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
ANALYSIS
I., II., III.
{¶26} We address all of Mother's assignments of error together; all three assert
the decision of the trial court is against the manifest weight of the evidence and/or based
upon insufficient evidence. Mother also argues the trial court erred in denying an
extension of time in which to complete her case plan. We disagree.
{¶27} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear
and convincing evidence” as “[t]he measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985). In reviewing whether the trial court based its
decision upon clear and convincing evidence, “a reviewing court will examine the record
to determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60
(1990); See also, C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d
Licking County, Case No. 19CA0004 7
578 (1978). If the trial court's judgment is “supported by some competent, credible
evidence going to all the essential elements of the case,” a reviewing court may not
reverse that judgment. Schiebel, 55 Ohio St.3d at 74, 564 N.E.2d 54.
{¶28} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984): The
underlying 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. Moreover, deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evident in the
parties' demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); see, also, In re: Christian,
4th Dist. Athens App. No. 04CA10, 2004-Ohio-3146; In re: C. W., 2nd Dist. Montgomery
App. No. 20140, 2004-Ohio-2040.
{¶29} We set forth a trial court's analysis of a permanent custody motion in In the
Matters of: A.R., B.R., W.R., 5th Dist. Stark Nos 2018CA00091, 2018CA00097,
2018CA00098, 2019-Ohio-389, paraphrased as follows:
{¶30} When deciding a motion for permanent custody, a trial court must follow the
guidelines for are provided in R.C. 2151.414. R.C. 2151.414(A)(1) requires the trial court
to schedule a hearing and provide notice upon the filing of a motion for permanent custody
Licking County, Case No. 19CA0004 8
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶31} Following a hearing on the motion, R.C. 2151.414(B) authorizes the juvenile
court to grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, and the child cannot be placed with either of the child's parents
within a reasonable time or should not be placed with the child's parents; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period.
{¶32} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) requires the trial court to consider all relevant factors, including, but not
limited to: (1) the interaction and interrelationship of the child with the child's parents,
siblings, relatives, foster parents and out-of-home providers, and any other person who
may significantly affect the child; (2) 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;
(3) the custodial history of the child; and (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.
{¶33} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
Licking County, Case No. 19CA0004 9
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶34} If the child is not abandoned or orphaned, as is the case here, the focus
turns to whether the child cannot be placed with either parent within a reasonable period
of time or should not be placed with the parents. Under R.C. 2151.414(E), the trial court
must consider all relevant evidence before making this determination. The trial court is
required to enter such a finding if it determines, by clear and convincing evidence, that
one or more of the factors enumerated in R.C. 2151.414(E)(1) through (16) exist with
respect to each of the child's parents.
{¶35} Relevant here, R.C. 2151.414(E)(1) states:
(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.
Licking County, Case No. 19CA0004 10
{¶36} As to Mother's argument regarding the denial of a 6-month extension, the
decision to grant or deny an extension of temporary custody lies in the discretion of the
juvenile court. In re P.B., 9th Dist. Summit No. 23276, 2006-Ohio-5419, ¶ 36, citing R.C.
2151.415(D)(1) and (2). The juvenile court is authorized to exercise its discretion to
extend temporary custody only if it finds, by clear and convincing evidence: “‘(1) that such
an extension is in the best interests of the child, (2) that there has been significant
progress on the case plan, and (3) that there is reasonable cause to believe that the child
will be reunified with a parent or otherwise permanently placed within the period of
extension.’” In re J.P.-M., 9th Dist. Summit Nos. 23694 and 23714, 2007-Ohio-5412, ¶
12, quoting In re P.B. at ¶ 36. Before the juvenile court may grant either permanent
custody or a six-month extension of temporary custody, it must conduct a best interest
analysis. In re S.D, 9th Dist. Lorain Nos. 15CA010864 and 15CA010867, 2016-Ohio-
1493, ¶ 30. Accordingly, “[i]f permanent custody was in the children's best interests, the
alternative disposition of extending temporary custody was not.” Id., citing In re I.A., 9th
Dist. Summit No. 26642, 2013-Ohio-360, ¶ 10.
{¶37} We find appellee presented sufficient competent, credible evidence to
demonstrate that T.C. cannot or should not be placed with Mother, as notwithstanding
reasonable efforts on behalf of the Agency, Mother failed to remedy the problems that
initially caused the removal of T.C. from his home. Mother put minimal effort into her case
plan. She failed to successfully complete any substance abuse treatment, continued to
use methamphetamine and heroin, failed to obtain employment or independent safe,
stable housing, failed to engage in mental health counseling, and failed to produce any
evidence of economic stability. Mother has no identifiable source of income; despite her
Licking County, Case No. 19CA0004 11
claims to receive S.S.I., throughout the course of her involvement with the Agency, she
never produced any evidence of benefits.
{¶38} Mother testified she loves T.C. and wants to care for him, but she has not
established any ability to do so. She admitted she would be dependent upon Courage
House for housing after the hearing, that the program there would take 4 to 6 months,
and that she didn’t know if or when she would be able to have T.C. with her during that
time. T. 177-179. Despite Mother’s positive visitations with T.C., there are too many
other stressors Mother has failed to overcome.
{¶39} Meanwhile, T.C.’s significant medical, emotional, and developmental needs
are being addressed by his foster family. His foster mother loves him and wishes to adopt
him. There are no available kinship placements. T.C. deserves permanency and Mother
is not presently in a position to provide for his needs.
{¶40} Based on the forgoing, the trial court's findings that parents failed to remedy
the conditions that existed at the time of T.C.’s removal, that T.C. could not be placed
with either parent in a reasonable amount of time, and should not be placed with either
parent are not against the manifest weight of the evidence, and are supported by sufficient
evidence. We further find the trial court's finding that T.C.’s best interests were served by
a grant of permanent custody to the Agency is not against the manifest weight of the
evidence and is supported by sufficient evidence. That being true, the trial court also did
not abuse its discretion in denying an extension of temporary custody. We therefore
overrule each of Mother’s assignments of error.
Licking County, Case No. 19CA0004 12
CONCLUSION
{¶41} Mother’s three assignments of error are overruled and the judgment of the
Licking County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.