In re M.P. ( 2011 )

[Cite as In re M.P., 2011-Ohio-6372.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE: )
)
M.P. )
)
) CASE NO. 11-CO-4
)
) OPINION
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division, of Columbiana
County, Ohio
Case No. J200900092
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Robert L. Herron
Prosecutor
Allyson Lehere
Assistant Prosecutor
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant Attorney Scott C. Essad
5815 Market Street, Suite 1
Youngstown, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 9, 2011
[Cite as In re M.P., 2011-Ohio-6372.]
DONOFRIO, J.
{¶1} Appellant, Donna P., appeals from a Columbiana County Common
Pleas Court, Juvenile Division decision terminating her parental rights and granting
permanent custody of her daughter to appellee, the Columbiana County Department
of Job and Family Services.
{¶2} M.P. was born to appellant and Scott J. on December 3, 2007. On
January 14, 2009, appellee filed a complaint alleging M.P. was a neglected child. The
complaint alleged that appellant used drugs in the family home in front of M.P., she
left home for multiple days at a time, there was insufficient food in the home, and
there was instability regarding utility service. The court granted appellee temporary
custody of M.P. It later adjudicated her a neglected child upon the stipulation of both
parents.
{¶3} Appellee put a case plan in place for appellant with the goal of
reunification. Additionally, the court appointed a guardian ad litem (GAL) for M.P.
{¶4} On April 16, 2010, appellee filed a motion for permanent custody of
M.P. The motion was originally set for hearing on October 5, 2010. However,
appellant did not appear because she was subject to a subpoena in another court.
At the hearing, Scott J. voluntarily surrendered his parental rights. The court then
continued the hearing due to appellant’s absence.
{¶5} The matter proceeded to a two-day hearing on November 23, 2010,
and January 3, 2011. Appellant failed to appear for the second day of the hearing,
though her counsel appeared and participated. The trial court found that appellant
had continuously and repeatedly failed to substantially remedy the conditions
identified as necessitating M.P.’s removal from her custody. The court found that
M.P.’s best interest required a legally secure and permanent home, which could only
be achieved by permanently terminating appellant’s parental rights. Consequently,
the court granted appellee’s motion for permanent custody.
{¶6} Appellant filed a timely notice of appeal on February 4, 2011.
{¶7} Appellant raises a single assignment of error, which states:
{¶8} “THE EVIDENCE DID NOT SHOW BY CLEAR AND CONVINCING
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EVIDENCE THAT M.P. WAS NEGLECTED TO THE EXTENT THAT DONNA P* * *
SHOULD HAVE BEEN STRIPPED OF HER PARENTAL RIGHTS.”
{¶9} Appellant argues the evidence was insufficient on several points to
terminate her parental rights.
{¶10} First, she argues that contrary to the court’s finding, the evidence
demonstrated that she successfully completed drug and alcohol treatment.
{¶11} Second, she argues that the court erred in holding her appearance on
The Jerry Springer Show against her. On a related point, appellant asserts that it
was error for the trial court to allow appellee to introduce evidence of her appearance
on The Jerry Springer Show because it was prejudicial to her and did not show any
adverse effect on M.P.’s welfare.
{¶12} Third, appellant argues that the evidence was not clear and convincing
that she was not working to remedy the conditions that caused the removal of M.P.
from her home. She notes that she attended parenting classes and showed
improvement in her program.
{¶13} Finally, appellant points out that while the GAL recommended
permanent custody to appellee, she based her recommendation on her opinion that
appellant was “not ready yet” to parent M.P. Appellant asserts that since the GAL
used the word “yet,” in conjunction with her efforts at completing her case plan, the
court should not have stripped her of her parental rights.
{¶14} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray (1990), 52 Ohio St. 3d 155, 157, citing Stanley v. Illinois (1972),
405 U.S. 645, 651. However, this right is not absolute. In re Sims, 7th Dist. No. 02-
JE-2, 2002-Ohio-3458, at ¶23. In order to protect a child's welfare, the state may
terminate parents' rights as a last resort. Id.
{¶15} We review a trial court's decision terminating parental rights and
responsibilities for an abuse of discretion. Sims, 7th Dist. No. 02-JE-2, at ¶ 36.
Abuse of discretion connotes more than an error of law or judgment; it implies that
the court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v.
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Blakemore (1983), 5 Ohio St. 3d 217, 219.
{¶16} The trial court may grant permanent custody of a child to the agency if
the court determines by clear and convincing evidence that it is in the child's best
interest to grant permanent custody to the agency and that 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. R.C. 2151.414(B)(1)(a). Clear and convincing
evidence is evidence that produces in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established. In re Adoption of Holcomb
(1985), 18 Ohio St. 3d 361, 368.
{¶17} “If the court determines, by clear and convincing evidence, * * * that one
or more of the following exist as to each of the child's parents, the court shall enter a
finding that the child cannot be placed with either parent within a reasonable time or
should not be placed with either parent:
{¶18} “(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. * * *.
{¶19} “(2) Chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the parent that is so
severe that it makes the parent unable to provide an adequate permanent home for
the child at the present time and, as anticipated, within one year after the court holds
the hearing * * *.” (Emphasis added.)
{¶20} The existence of a single R.C. 2151.414(E) factor will support a finding
that a child cannot be placed with either parent within a reasonable time. In re
H.M.C., 4th Dist. No. 07CA18, 2007-Ohio-4661, at ¶35.
{¶21} The trial court found the factors listed above to exist in this case by
clear and convincing evidence. First, it found that since M.P.’s removal, appellant
“has continuously and repeatedly failed to substantially remedy those conditions and
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circumstances identified as necessitating the removal of” M.P. from her custody.
Second, it found that it was unlikely that appellant would be rehabilitated from her
addiction and chronic use of marijuana within one year so that she would be able to
adequately provide permanent care for M.P.
{¶22} In determining whether it is in the child's best interest to grant custody
to the agency, the court shall consider:
{¶23} “(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;
{¶24} “(b) The wishes of the child, * * * with due regard for the maturity of the
child;
{¶25} “(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, * * *;
{¶26} “(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;
{¶27} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.” R.C. 2151.414(D)(1).
{¶28} The evidence as to M.P.’s best interest supports the trial court’s grant of
permanent custody. The witnesses testified as follows.
{¶29} Michael McKeehan is an addiction therapist at The Counseling Center
of Columbiana County. McKeehan stated that appellant was involved in two
treatment regimens at his facility. (Tr. 6). The first regimen ran from early 2009 until
mid to late 2009. (Tr. 6). He testified that appellant successfully completed this
regimen including group therapy and random drug testing. (Tr. 6-7). But despite her
completion of the program, McKeehan still had doubts about appellant’s ability to
remain clean and sober due to her associations and her living and family instability.
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(Tr. 7). The second regimen began in June 2010, when she was once again referred
by appellee. (Tr. 8). At that time, McKeehan found her to be cannabis dependent
and at risk of a relapse. (Tr. 8). He testified that appellant did not complete this
second regimen. (Tr. 8-9). He stated that appellant simply stopped showing up for
her appointments. (Tr. 9).
{¶30} Cheryl Herr is a drug and alcohol counselor at the Family Recovery
Center. She testified that appellant had two appointments in August 2010, but she
cancelled one and failed to show up for the other. (Tr. 14, 19).
{¶31} Kathy Enterline is the Project SAFE coordinator at The Counseling
Center of Columbiana. Project SAFE is a parent education program. Enterline
testified that appellant was first referred to the program in April 2009. (Tr. 22). At
that time she attended two out of twelve sessions and did not complete the program.
(Tr. 22). Appellant restarted the program in August 2009, and this time attended four
out of twelve sessions. (Tr. 22). Thus, once again she failed to complete the
program. (Tr. 22). Appellant restarted the program for the third time in June 2010.
(Tr. 22). This time appellant completed the program on October 7, 2010. (Tr. 22).
She also completed the required homework assignments. (Tr. 24). Enterline testified
that appellant verbalized that she wanted to be reunified with her daughter and
displayed an understanding of the material presented. (Tr. 25). However, Enterline
still had concerns about stability in appellant’s life. (Tr. 25). Specifically, Enterline
expressed concern over appellant’s involvement with the legal system; her history of
substance abuse; issues involving finances, transportation, and housing; and
attachment issues between appellant and her daughter. (Tr. 26).
{¶32} Marybeth Peters is M.P.’s GAL. Peters testified that during the course
of this case, appellant has had six addresses that she knew of. (Tr. 37). She stated
that appellant lived at each of these residences for one to two months, which
demonstrated a lack of stability. (Tr. 42-43). Peters also indicated that appellant has
not had a job since M.P.’s birth. (Tr. 43-44).
{¶33} As to appellant’s visits with M.P., Peters stated that appellant has been
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very attentive. (Tr. 44). However, she also stated that M.P. runs to hug and greet
her grandmother, who frequently accompanies appellant, but M.P. does not do the
same with appellant. (Tr. 44). Peters noted that M.P. had been in appellee’s care for
635 days and that appellant has seen her only 42 of those days. (Tr. 44). She
expressed concern that this was not sufficient for them to build a bond. (Tr. 45).
Peters stated that appellant only attended about one-half of her scheduled visits with
M.P. (Tr. 45). She also testified that appellant’s companionship time was suspended
once when she was in the county jail and again when she failed a drug test. (Tr. 45).
These suspensions cost appellant approximately nine months of visitation. (Tr. 45).
{¶34} Peters recommended that it was in M.P.’s best interest for the court to
grant appellee’s motion for permanent custody. (Tr. 46). She based this
recommendation on her belief that M.P. needed stability and appellant had not been
able to demonstrate that she could provide stability for M.P. (Tr. 46). Thus, although
Peters stated at one point that appellant was not ready “yet” to parent M.P., she was
clear in her recommendation that it was in M.P.’s best interest for the court to grant
custody to appellee.
{¶35} Kelly Mercer is a social worker at the Columbiana County Department
of Job and Family Services. She testified regarding appellant’s case plan and her
compliance, or lack thereof, with the plan. Mercer stated that the first concern in the
case plan dealt with appellant’s parenting practices, required her to complete Project
SAFE, sign releases, and come up with a daycare plan for M.P. (Tr. 55-56). Mercer
stated that appellant had signed all necessary releases. (Tr. 57). She stated that
appellant had not presented a daycare plan. (Tr. 57). She also indicated that
appellant completed the Project SAFE classes after two failed attempts. (Tr. 58).
Mercer expressed concern, however, that it took appellant over 18 months to
complete a 12-week class. (Tr. 59).
{¶36} Mercer stated that for a period of time from March 2009 until January
2010, appellant was doing well on her case plan and was not using drugs. (Tr. 62-
63).
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{¶37} As to visitation, however, Mercer testified that appellant was
inconsistent in that she attended approximately 44 of her 97 scheduled visits with
M.P. (Tr. 65). She stated that this did not include the two time periods when
appellant’s visitation was suspended. (Tr. 65). Mercer stated that appellant
frequently attended the visits that were in East Liverpool but failed to show up for the
visits that were in Lisbon. (Tr. 66). At the visits she observed, Mercer stated that it
seemed M.P. would just run around and play while appellant watched. (Tr. 68-69).
{¶38} Another concern from appellant’s case plan was her substance abuse.
(Tr. 71). Mercer stated that appellant completed the necessary assessments and
some initial classes. (Tr. 72). However, she stated that since that time appellant
tested positive for marijuana on September 10 and November 19, 2009, and on
February 18 and March 10, 2010. (Tr. 72-73). Additionally, appellant failed to submit
to two other drug tests on July 14 and August 31, 2010, claiming she did not have the
twenty dollars to pay for the tests. (Tr. 73-74). Mercer acknowledged that appellant
did have a clean drug test in November 2010. (2d Tr. 10).
{¶39} The third concern from appellant’s case plan dealt with self-protection
and the ability to meet M.P.’s basic needs. (Tr. 77). Mercer indicated that appellant
has not been employed since this case began. (Tr. 78-79). She also stated that
appellant does not have a high school diploma or a GED. (Tr. 81). Mercer further
testified that appellant had been incarcerated for 71 days on an aggravated robbery
charge and a probation violation. (Tr. 80-81). Given appellant’s lack of employment,
Mercer stated that she was not sure how appellant lived from day to day and did not
believe appellant could support M.P. (Tr. 82-83). Additionally, Mercer stated that
appellant had seven addresses since she had been involved in the case. (Tr. 84).
Mercer also expressed concern over appellant’s current boyfriend who had nine
criminal charges pending. (Tr. 91). And she noted that appellant had appeared on
The Jerry Springer Show. (Tr. 92). Mercer stated that appellant missed her visit with
M.P. to travel to Chicago to be on the show. (Tr. 92-93).
{¶40} Finally, Mercer opined that it was in M.P.’s best interest to grant
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permanent custody to appellee. (Tr. 98). She stated that M.P. was doing very well in
her foster home, she was attached to and bonded with her foster family, and her
foster parents wanted to adopt her. (Tr. 98).
{¶41} Brenda Simmons is the housing manager at the Columbiana
Metropolitan Housing Authority. Simmons stated that appellant was currently a
resident at one of the housing developments. (2d Tr. 12). However, Simmons
testified that she was going to evict appellant for allowing a person onto the Housing
Authority property who did not have permission to be there. (2d Tr. 14). She stated
that appellant’s boyfriend was not permitted on the premises, but he had been there
nonetheless. (Tr. 14).
{¶42} Appellant did not testify. And as the trial court noted, she did not even
appear for the second day of the hearing. This in itself is telling of appellant’s lack of
commitment to her daughter.
{¶43} The applicable statutory best interest factors support the court's
determination.
{¶44} First, M.P. has bonded with her foster parents and their family. Further,
her foster parents wish to adopt her. And appellant has not bonded with M.P. This
could certainly be due to the fact that she has missed half of her scheduled visits.
{¶45} Second, at the time of the hearing, M.P. had been in appellee's
temporary custody for almost 22 consecutive months.
{¶46} Third, both appellant's caseworker and M.P.'s GAL testified that M.P. is
in need of a legally secure placement and that it is in her best interest that the court
grant permanent custody to appellee.
{¶47} In addition to the statutory factors, other factors further support the
court’s determination.
{¶48} For instance, contrary to appellant’s assertion, the evidence did not
demonstrate that she had continued success with the drug and alcohol treatment.
Appellant initially successfully completed the required program. However, she then
had numerous positive tests for marijuana, failed to submit to two drug tests, and
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effectively dropped out of her treatment program.
{¶49} Furthermore, while appellant did make some progress in her case plan
by completing her parenting classes, there were many other areas of the case plan in
which she showed no signs of progress. For instance, appellant was required to and
failed to, find employment, maintain stable housing, and find suitable day care.
Additionally, appellant was incarcerated for several months and had a boyfriend who
was also involved with the law.
{¶50} As for appellant’s appearance on The Jerry Springer Show, the court
merely mentioned it in a laundry list of reasons why appellant lead an irresponsible
life style. Additionally, at the hearing, appellant did not object to this testimony.
{¶51} Based on all of these factors, we cannot conclude the trial court abused
its discretion in granting appellee permanent custody of M.P. Accordingly,
appellant’s sole assignment of error is without merit.
{¶52} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, P.J., concurs.