In re L.D.-C. ( 2017 )

[Cite as In re L.D.-C., 2017-Ohio-784.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
IN RE: L.D.-C. C.A. No. 16AP0072
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
CASE No. 2015 JUV-C 000519
DECISION AND JOURNAL ENTRY
Dated: March 6, 2017
TEODOSIO, Judge.
{¶1} Appellant, Takita D. (“Mother”), appeals from a judgment of the Wayne County
Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed her
minor child in the permanent custody of Wayne County Children Services Board (“CSB”). This
Court affirms.
I.
{¶2} Mother is the biological mother of L.D.-C., born October 15, 2014. Although
Mother has three older children, those children were not parties to these proceedings. The father
of L.D.-C. did not appeal from the trial court’s judgment.
{¶3} According to the allegations in CSB’s complaint, L.D.-C. was removed from
Mother’s custody on May 8, 2015, pursuant to Juv.R. 6 because heroin and fentanyl were found
in the child’s diaper bag during a traffic stop of the vehicle in which Mother and the child were
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riding as passengers. All adults in the vehicle were arrested and authorities were unable to locate
local relatives to care for the child. CSB filed a dependency complaint the next day.
{¶4} The complaint further alleged that Mother had been investigated by a children
services agency in Michigan because she tested positive for drugs when the child was born, but
the Michigan agency had lost contact with Mother. Mother would later admit that she had a long
history of children services cases in Michigan because of concerns about her drug use and failure
to supervise her children. When this case began, it was unclear who had legal custody of
Mother’s older three children, but they were not in Ohio with Mother. Consequently, CSB did
not become involved with those children.
{¶5} At the shelter care hearing the next day, Mother told the trial court that she did not
reside in Wooster but had been staying with friends there. She explained that she previously had
been staying with other friends in Michigan, but was planning to move in with the maternal
grandmother in Georgia, where her three older children were then living. Mother admitted that
she had no permanent residence at that time and that she was not sure where she would live if the
court did not allow her to take L.D.-C. to Georgia with her.
{¶6} Mother later agreed that the trial court should adjudicate L.D.-C. a dependent
child and place him in the temporary custody of CSB, and that the trial court should adopt the
case plan as an order of the court. The case plan required Mother to obtain a substance abuse
assessment and follow all drug testing and treatment recommendations; obtain and maintain
stable income and housing; complete parenting classes; and develop and maintain a bond
through regular contact with L.D.-C.
{¶7} During the first several months of this case, Mother remained in Wooster briefly,
returned to Michigan, and then moved to Georgia, where she resided with the maternal
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grandmother and her three older children. Mother completed a substance abuse assessment
while she was in Georgia. The professional who evaluated Mother recommended that she
complete an intensive outpatient treatment program to address her long-term use of marijuana
and that she regularly provide urine samples for drug screening.
{¶8} Mother did not follow up with any drug treatment, nor did she submit to regular
drug screening. In fact, Mother admitted that she continued to use marijuana regularly to deal
with symptoms that she attributed to depression and anxiety. Mother did not obtain stable
income or housing, as she moved between multiple locations in Michigan and Georgia during
this case. Moreover, she failed to visit L.D.-C. on a regular basis.
{¶9} On April 6, 2016, CSB moved for permanent custody of L.D.-C. At the time of
the review hearing shortly afterward, Mother informed the trial court that she had moved to a
different address in Michigan and that she was attempting to comply with the reunification
requirements of the case plan. The trial court continued the permanent custody hearing for
several months to allow Mother more time to work on the case plan and to allow the guardian ad
litem time to familiarize herself with the case.
{¶10} Following a hearing on August 31, 2016, the trial court terminated Mother’s
parental rights and placed L.D.-C. in the permanent custody of CSB. Mother appeals and raises
two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE WAYNE COUNTY JUVENILE COURT ERRED WHEN IT FOUND
THAT L.D.-C. COULD NOT OR SHOULD NOT BE PLACED WITH
MOTHER WITHIN A REASONABLE TIME.
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{¶11} Mother’s first assignment of error challenges the trial court’s finding on the first
prong of the permanent custody test. Before a juvenile court may terminate parental rights and
award permanent custody of children to a proper moving agency it must find clear and
convincing evidence of both prongs of the permanent custody test: (1) that the children are
abandoned; orphaned; have been in the temporary custody of the agency for at least 12 months of
a consecutive 22-month period; they or another child in a parent’s custody have been adjudicated
abused, neglected, or dependent on three separate occasions; or they cannot be placed with either
parent within a reasonable time or should not be placed with either parent, based on an analysis
under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best
interest of the children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1)
and 2151.414(B)(2); see also In re William S., 75 Ohio St. 3d 95, 99 (1996).
{¶12} The trial court found that CSB satisfied the first prong of the permanent custody
test because L.D.-C. could not be returned to Mother’s custody within a reasonable time or
should not be returned to her custody because Mother had failed to substantially remedy the
conditions that caused L.D.-C. to be removed and remain placed outside her custody. R.C.
2151.414(E)(1).1 That finding was fully supported by the record.
{¶13} In fact, Mother concedes that she did not complete the reunification requirements
of the case plan. The evidence was undisputed that Mother failed to engage in substance abuse
treatment, continued to regularly use marijuana to deal with her purported anxiety and
depression, and failed to develop a close bond with L.D.-C. because she did not visit him
regularly.
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Although the trial court made an alternative finding that R.C. 2151.414(E)(4) was
satisfied because Mother had demonstrated a lack of commitment to the child, this Court
confines its review to the trial court’s finding under R.C. 2151.414(E)(1).
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{¶14} Mother argues instead that it was difficult for her to engage in case plan services
or visit L.D.-C. because she did not live in Ohio, but resided in Michigan with her three older
children. To begin with, the record does not support Mother’s suggestion that she had a
permanent home in Michigan. She conceded at the beginning of this case that she had no
permanent residence. She informed the court that she had been living with friends in Michigan
and, when this case began, she was staying with friends in Wayne County. During this case, she
changed residences several times, including going back to Michigan, then moving to Georgia,
and then moving back to Michigan. Mother also lived at more than one location in both
Michigan and Georgia.
{¶15} Furthermore, Mother’s suggestion that her older children have always lived with
her is also contradicted by the record. Because those children were not parties to this case or
subject to the jurisdiction of the Wayne County Juvenile Court, the record includes little
information about them. The record does reveal, however, that Mother’s three older children
were not with her while she was in Ohio for an extended stay. It is unclear where or with whom
they were living at the beginning of this case, but Mother later informed the trial court that they
were in Georgia with the maternal grandmother. By the time of the permanent custody hearing,
Mother testified that the older children were again residing with her in Michigan. Those children
had been involved in several juvenile cases in Michigan and it is not known whether Mother
retained legal custody of them.
{¶16} Moreover, the crux of Mother’s argument is that CSB failed to make reasonable
reunification efforts in this case, but she did not raise this issue in the trial court, nor has she
separately assigned it as error. At the permanent custody hearing, the trial court was not required
to determine whether CSB had made reasonable efforts toward reunification, given that it had
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made prior reasonable efforts findings and Mother did not dispute those findings. See In re C.F.,
113 Ohio St. 3d 73, 2007-Ohio-1104, ¶ 41-43; In re P.W.T., 9th Dist. Wayne No. 11CA0020,
2011-Ohio-5858, ¶ 11; In re K.H., 9th Dist. Summit No. 22765, 2005-Ohio-6323, ¶ 9-10.
Mother’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE WAYNE COUNTY JUVENILE COURT ERRED BY GRANTING THE
STATE’S MOTION FOR PERMANENT CUSTODY BECAUSE ITS
DETERMINATION THAT THE BEST INTERESTS OF L.D.-C. WOULD BE
SERVED BY THE GRANTING OF PERMANENT CUSTODY WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
{¶17} Although Mother’s Statement of the Issues Presented asserts that the trial court
should have extended temporary custody, Mother did not make such an argument to the trial
court, nor has she developed that argument on appeal. See Loc.R. 7(B)(3) of the Ninth Appellate
District. Mother’s second assignment of error solely challenges the trial court’s finding that
permanent custody was in the best interest of L.D.-C. When determining the child’s best interest
under R.C. 2151.414(D), the juvenile court must consider all relevant factors, including the
interaction and interrelationships of the child, his wishes, the custodial history of the child, and
his need for permanence in his life. See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-
Ohio-6284, ¶ 11.
{¶18} Mother’s interaction with L.D.-C. during this case was limited to supervised
visitation. While the young child lived outside her custody for more than one year, Mother
visited him only 11 times. According to the caseworker, Mother had not seen L.D.-C. often
enough to have a loving bond with him.
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{¶19} On the other hand, L.D.-C. had been living in the same foster home since this case
began when he was an infant. He was doing well in that home and had become closely bonded
to the entire family.
{¶20} Because L.D.-C. was not yet two years old at the time of the permanent custody
hearing, the guardian ad litem spoke on his behalf. She opined that permanent custody was in
his best interest because Mother had a long history of using marijuana to treat her emotional
problems, had been involved in several other children services cases for failing to supervise her
older children, and had done little to address any of those problems in this case. She contrasted
the lack of commitment that Mother demonstrated toward L.D.-C. with the loving care that he
had been receiving in the foster home.
{¶21} By the time of the permanent custody hearing, L.D.-C. had been living outside
Mother’s custody with the same foster family for most of his life. Mother was involved with a
children services agency in Michigan because L.D.-C. tested positive for THC when he was
born. It is unclear from the record how long L.D.-C. was in Mother’s custody before this case
began.
{¶22} Because L.D.-C. had been living in temporary placements for most of his life, he
was in need of a legally secure permanent placement. Mother was not able to provide him with a
stable permanent home at that time and CSB had been unable to find a suitable relative who was
willing and able to do so. CSB investigated several relatives, including a maternal cousin who
lived in Michigan. The cousin expressed initial interest in providing a home for L.D.-C., but she
did not allow the Michigan agency to complete a home study and later informed CSB that she no
longer wanted to be considered as a possible placement for L.D.-C.
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{¶23} Although Mother argues that the trial court should have placed L.D.-C. in the
legal custody of his maternal grandmother, the trial court reasonably concluded that it was not in
the best interest of the child to be placed with the grandmother. The day before the permanent
custody hearing, Mother filed a motion to place L.D.-C. in the grandmother’s legal custody, but
she did not present any evidence to the trial court that the grandmother was willing or able to
provide the child with a suitable permanent home. CSB presented evidence that, while the
grandmother lived in Georgia, she was investigated by a children services agency there and was
not approved for placement because of drug use by one of the adults living in the home. For
reasons not explained on the record, the grandmother later moved to Mississippi and was seeking
approval by a children services agency in that state but had not yet completed the process. The
trial court also considered that the grandmother had not visited L.D.-C. during this case, had no
relationship with him, and did not attend the permanent custody hearing to testify or express a
desire to have custody of him.
{¶24} Consequently, the trial court reasonably concluded that a legally secure
permanent placement would be achieved by placing L.D.-C. in the permanent custody of CSB.
Given that all of the best interest factors weighed in favor of the trial court’s decision, Mother’s
second assignment of error is overruled.
III.
{¶25} Mother’s assignments of error are overruled. The judgment of the Wayne County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CARR, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
MICHELLE FINK, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and MELODY L. BRIAND, Assistant Prosecuting
Attorney, for Appellee.