In re T.P. , 2016 Ohio 5780 ( 2016 )

[Cite as In re T.P., 2016-Ohio-5780.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN THE MATTER OF: :
T.P. : CASE NO. CA2016-03-012
: OPINION
9/12/2016
:
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2013 JC 04600
Aaron J. Manter, 285 East Main Street, Suite 6, Batavia, Ohio 45103, guardian ad litem
Dever Law Firm, Scott A. Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio
45069, for appellant, S.M.
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee, Clermont County Department
of Job & Family Services
RINGLAND, J.
{¶ 1} Appellant, the biological mother of T.P. ("Mother"), appeals a decision of the
Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of
T.P. to appellee, the Clermont County Department of Job and Family Services ("CCDJFS").
For the reasons detailed below, we affirm.
{¶ 2} On October 15, 2013, CCDJFS filed a dependency complaint and requested
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temporary custody of T.P., who was five days old. The complaint alleged that CCDJFS
received a report stating that T.P. had tested positive for amphetamine at birth and his
parents had a history of drug abuse. The report also alleged that CCDJFS held temporary
custody of T.P.'s older sister who had also testified positive for drugs at birth. The juvenile
court granted temporary custody of T.P. to CCDJFS and placed him in foster care. T.P. was
later adjudicated a dependent child. Since the time of T.P.'s release from the hospital, he
has resided in the same certified foster-to-adopt placement with his older sister. T.P.'s older
sister has been adopted by the foster family.
{¶ 3} Mother's case plan for reunification included housing, income, mental health
treatment, drug treatment, and parenting education. Mother did make some progress in the
completion of her case plan, particularly with her completion of a substance abuse treatment
program. However, the record indicates that CCDJFS found it necessary to exercise caution
with respect to Mother since she exhibited a co-dependency on T.P.'s father ("Father"), an
individual with a history of drug involvement and allegations of domestic abuse. Throughout
the pendency of these proceedings, Father has failed to take any steps to control his drug
involvement and has otherwise shown no interest in reunification with T.P.
{¶ 4} Meanwhile, T.P. has thrived in his foster family and is overcoming the very
serious medical concerns that were present during the early stages of his life. For instance,
the record reflects that T.P. had severe drug withdrawal symptoms from the time of his birth
and was prescribed methadone and phenobarbital to overcome those withdrawals. However,
at the time of the permanent custody hearing, T.P. had completed occupational therapy and
physical therapy and was receiving continued care for cognitive delay and fine motor skills.
{¶ 5} On March 19, 2015, CCDJFS moved for permanent custody. In support of
permanent custody, CCDJFS introduced the testimony of the caseworker, the foster mother,
and the guardian ad litem ("GAL"). The caseworker testified about Mother's use of
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amphetamines during pregnancy and T.P.'s dependency and withdrawal from the drugs after
he was born. Although Mother had made progress in her case plan, the agency had
continued concern of a co-dependent relationship with Father. Considering Mother's stream
of income, the agency alleged that Mother is financially dependent on T.P.'s father and
caseworkers have observed him staying at Mother's residence, despite her insistence that
she is no longer in a relationship with him. Though Mother did successfully complete a drug
treatment program, the caseworker testified about Mother's lengthy history with drug
dependency and expressed concerns that Mother has not taken steps to reduce her
dependence on suboxone.
{¶ 6} The foster mother testified about T.P.'s condition at birth and progress while
under her care. Due to medical concerns, T.P. was in the hospital for 31 days following his
birth and was placed on a number of medications for withdrawal symptoms. In their care,
T.P. is now meeting development goals and is well-bonded with the family and his older
sister.
{¶ 7} The GAL recommended that permanent custody be granted in favor of
CCDJFS. Although the GAL testified that Mother has shown progress in her case plan, the
GAL noted that there were concerns about the security of placement with Mother and her
relationship with T.P.'s father. The GAL testified that Mother's mental health and stability are
agency concerns.
{¶ 8} As part of her case, Mother acknowledged prior issues with drug addiction and
T.P.'s health issues, but focused on the progress that she has made in recent months.
Mother introduced the testimony of her older and younger sisters. Mother's older sister
testified that Mother had undergone a dramatic change and has been working on her mental
health issues. The older sister also agreed that Mother is much better without a relationship
with Father. Mother's younger sister also testified that she had been residing with Mother for
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the past two months, has been contributing financially for their shared apartment, and was
supportive of Mother bringing T.P. home.
{¶ 9} After taking the matter under advisement, the juvenile court magistrate granted
the motion for permanent custody. Mother then filed objections to the magistrate's decision,
which were overruled. The juvenile court, while recognizing Mother's recent efforts,
concluded that Mother cannot provide a legally secure placement for T.P. and it was in T.P.'s
best interest to be placed in the permanent custody of the agency. Mother now appeals the
juvenile court's decision granting permanent custody to CCDJFS, raising one assignment of
error for review.
{¶ 10} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS DECISION
AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILD TO THE AGENCY
DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 11} In her sole assignment of error, Mother argues the juvenile court's decision
granting permanent custody of T.P. to CCDJFS was not in T.P.'s best interest. In support of
her claim, Mother alleges the juvenile court's decision was not supported by sufficient clear
and convincing evidence and was otherwise against the manifest weight of the evidence.
After a thorough review of the record, we find Mother's assignment of error is without merit.
{¶ 12} Before a natural parent's constitutionally protected liberty interest in the care
and custody of her child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met.
Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review
of a juvenile court's decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court's determination. In re M.B., 12th Dist.
Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. A reviewing court
will reverse a finding by the juvenile court that the evidence was clear and convincing only if
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there is a sufficient conflict in the evidence presented. Id.{¶ 13} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. First,
the court must find that the grant of permanent custody to the agency is in the best interest of
the child, utilizing, in part, the factors of R.C. 2151.414(D). In re D.K.W., 12th Dist. Clinton
No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Second, the court must find that any of the
following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in
the temporary custody of the agency for at least 12 months of a consecutive 22-month
period; (4) where the preceding three factors do not apply, the child cannot be placed with
either parent within a reasonable time or should not be placed with either parent; or (5) the
child or another child in the custody of the parent from whose custody the child has been
removed, has been adjudicated an abused, neglected, or dependent child on three separate
occasions. R.C. 2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033,
2015-Ohio-3709, ¶ 10. Only one of those findings must be met for the second prong of the
permanent custody test to be satisfied. In re A.W., 12th Dist. Fayette No. CA2014-03-005,
2014-Ohio-3188, ¶ 12.
{¶ 14} In this case, the juvenile court found by clear and convincing evidence that
T.P. had been in the temporary custody of CCDJFS for more than 12 months of a
consecutive 22-month period as of the date the agency filed for permanent custody. Mother
does not dispute this finding. Rather, Mother contests the juvenile court's finding that
granting permanent custody of T.P. to CCDJFS was in his best interest.
{¶ 15} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in
a permanent custody hearing:
[T]he court shall consider all relevant factors, including, but not
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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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 16} In granting the motion for permanent custody, the juvenile court considered
each of the best interest factors in light of the evidence presented at the hearing. With
respect to R.C. 2151.414(D)(1)(a), the juvenile court found that Mother has not always
consistently attended visitation sessions with T.P., but has been more consistent in the
months prior to trial. The juvenile court noted that Mother conducted herself appropriately
during those sessions. The juvenile court also noted, however, that the foster family is well-
bonded with T.P. and have taken special care to assist him through his withdrawal and
developmental issues. T.P. has lived with the foster family since his release from the
hospital and has a very strong bond with his sister who was adopted by the foster family.
While stating that the sibling bond was only one factor in consideration of the best interest
factors, the juvenile court noted that it "believes that it is highly important not to deprive T.P.
of his relationship with [his sister] because: (1) this relationship has been a source of
consistency for him, and (2) with T.P.'s social and emotional delays, the impact of a
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separation upon him may cause a great setback."
{¶ 17} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile court indicated that,
due to his young age, T.P. was unable to express his wishes. However, the GAL
recommended that permanent custody be granted to the agency based upon Father's
influence over Mother, the nature of the relationship between T.P. and his sister, and
concerns over Mother's mental health.
{¶ 18} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed the
custodial history of T.P. The juvenile court found T.P. was adjudicated dependent and had
been in the temporary custody of the agency for 12 or more months of a consecutive 22-
month period.
{¶ 19} In considering R.C. 2151.414(D)(1)(d), the juvenile court found T.P. is in need
of a legally secure placement, the agency can provide the necessary legally secure
placement, and such placement is the only way T.P.'s needs can be achieved. The juvenile
court noted that Mother currently has a home that appears to be safe from typical household
dangers and receives social security, food stamps, and shares some household expenses
with her younger sister who recently moved in. However, the juvenile court also questioned
the stability of her living arrangements, as Mother had been incarcerated and had also lived
with her mother for a period of time during the pendency of this case.
{¶ 20} The juvenile court further addressed Mother's relationship with Father as a
source of instability. While Mother maintains that she is not in a relationship with Father and
he does not live in her apartment, the juvenile court noted that her "on and off again
relationship does not bode well for her ability to provide a safe and secure environment."
The juvenile court stated that Mother's home is not secure if she allows Father to exercise his
influence over her again. The juvenile court addressed Father's involvement with drugs and
history of domestic violence and stated that those issues have not been sufficiently
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addressed. The juvenile court further found that Mother had exhibited a great deal of
inconsistency in her relationship with Father and their history strongly suggests that she will
continue to associate with him, which calls into question her ability to self-protect.
{¶ 21} The juvenile court stated that T.P. needs a home where he can receive care in
a consistent manner. The juvenile court also found that Mother did not approach her drug
treatment consistently and has had difficulty scheduling transportation in a consistent
manner. T.P. requires transportation to doctors, clinics, and necessary therapeutic services.
Although Mother's sisters have indicated a willingness to help, the juvenile court noted that
the sisters may not always be readily available when needed. Simply, the juvenile court
found that Mother "progress came too late in this case to show a solid record of consistency
and dependability."
{¶ 22} On the other hand, the juvenile court found that the foster family has a proven
track record of consistency and dependability. The foster family has been present to provide
comfort through the withdrawal process and has transported T.P. to all appointments and
activities. Furthermore, the juvenile court found there are no safety or security issues in the
foster family's home. The foster family has expressed interest in adopting T.P. if permanent
custody were granted to the agency, just as they did with T.P.'s sister.
{¶ 23} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court noted that
Father had his parental rights terminated with respect to T.P.'s sister.
{¶ 24} Based on these findings, the juvenile court found by clear and convincing
evidence that it was in T.P.'s best interest to grant permanent custody to CCDJFS. On
appeal, Mother disputes the juvenile court's findings and argues that she can provide a
secure environment for T.P. and the decision granting permanent custody was not in T.P.'s
best interest. Mother asserts that she can maintain housing and income. Mother also
contends that she has undergone a dramatic change throughout her treatment over the eight
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months prior to trial. Although Mother agrees that completion of a case plan does not
provide a de facto right to reunification, she alleges that many of the agency concerns have
been addressed throughout the pendency of these proceedings and the completion of her
case plan demonstrates that placement with her would be appropriate and legally secure.
{¶ 25} We have carefully and thoroughly reviewed the evidence in this case and find
that the juvenile court's determination regarding the best interest of T.P. is supported by clear
and convincing evidence and was not against the manifest weight of the evidence. Though
Mother had substantially completed her case plan and has made significant strides in the
months leading to the grant of permanent custody, "[i]t is well-established in Ohio that the
completion of case plan requirements does not preclude a grant of permanent custody to a
social services agency." In re Mraz, 12th Dist. Brown Nos. CA2002-05-011 and CA2002-07-
014, 2002-Ohio-7278, ¶ 13. A case plan is merely a means to a goal and not a goal in itself.
In re S.U., 12th Dist. Clermont No. CA2014-07-047, 2014-Ohio-5166, ¶ 35. In the present
case, there are compelling reasons to weigh the best interest factors in favor of permanent
custody to CCDJFS considering the lingering concerns regarding Mother's continued
improvement in drug and mental health treatment, her financial stability, and the relationship
that she has with Father.
{¶ 26} Again, since his release from the hospital, T.P. has received appropriate care
from his foster family. The evidence showed that T.P. is bonded with the foster family in the
only home that he has known since birth and shares a strong bond with his sister who has
been adopted by the foster family. The foster family has taken great care of T.P. throughout
his life and is providing him with all necessary tools to overcome the serious developmental
issues that were forced on him. Therefore, we find the juvenile court's decision was
supported by the evidence and find no error in the juvenile court's decision to grant
permanent custody to CCDJFS. Mother's sole assignment of error is overruled.
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{¶ 27} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.
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