In re E.G. , 2014 Ohio 2007 ( 2014 )


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  • [Cite as In re E.G., 
    2014-Ohio-2007
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    IN THE MATTER OF:                                  :
    E.G., JR.                                  :      CASE NO. CA2013-12-224
    :              OPINION
    5/12/2014
    :
    :
    APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
    JUVENILE DIVISION
    Case No. JN2011-0403
    Carol A. Garner-Stark, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, guardian
    ad litem
    Amy R. Ashcraft, 240 East State Street, Trenton, Ohio 45067, for appellant, E.G.
    Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
    Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
    County Children Services
    PIPER, J.
    {¶ 1} Appellant, the biological father of E. G., appeals a decision of the Butler County
    Court of Common Pleas, Juvenile Division, granting permanent custody of the child to a
    children services agency.
    {¶ 2} The Children Services Division of the Butler County Department of Job and
    Butler CA2013-12-224
    Family Services received a referral regarding E.G. in January 2011. The agency investigated
    the complaint and determined that the child's mother was abusing drugs and engaging in
    prostitution in the home. The agency began providing services for the family, including
    working with the mother on her substance abuse issues. On September 9, 2011, the mother
    contacted the agency asking if someone could pick up E.G. from the bus stop, indicating to
    the agency that she was unable to care for the child. The agency contacted the father, who
    stated that he was unable to pick up E.G., he was not sure when he would be home, and he
    did not know of any other friends or relatives who could care for the child.
    {¶ 3} E.G. was taken into the agency's custody and a complaint alleging the child
    was neglected and dependent was filed. The trial court found that the child was neglected
    and dependent on February 6, 2012. The agency continued to work with the mother and
    father. The mother engaged in some services initially, but eventually surrendered her
    parental rights to the child. The father made little progress on the case plan adopted by the
    court and the agency filed for permanent custody of the child on December 4, 2012.
    {¶ 4} After a hearing on the permanent custody motion, the magistrate determined
    that permanent custody of the child should be granted to the agency. The father's objections
    to the decision were overruled by the trial court.
    {¶ 5} The father now appeals the trial court's decision to grant permanent custody of
    E.G. to the agency and raises two assignments of error for our review. Both assignments of
    error allege that the trial court erred in granting permanent custody to the agency.
    Specifically, father argues that the trial court erred in determining that permanent custody
    was in E.G.'s best interest and that the decision is not supported by the evidence.
    {¶ 6} Before a natural parent's constitutionally protected liberty interest in the care
    and custody of his 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.
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    Butler CA2013-12-224
    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 Starkey, 
    150 Ohio App.3d 612
    , 
    2002-Ohio-6892
    , ¶ 16 (7th Dist.). A reviewing court will reverse a finding
    by the juvenile court that the evidence was clear and convincing only if there is a sufficient
    conflict in the evidence presented. In re Rodgers (2000), 
    138 Ohio App.3d 510
    , 520 (12th
    Dist.).
    {¶ 7} 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. 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). Second, the
    court must find that any of the following apply: the child is abandoned; the child is orphaned;
    the child has been in the temporary custody of the agency for at least 12 months of a
    consecutive 22-month period; or 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. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Warren Nos.
    CA2009-10-139, CA2009-11-146, 
    2010-Ohio-1122
    , ¶ 22.
    {¶ 8} The juvenile court found by clear and convincing evidence, and father does not
    dispute, that E.G. has been in the temporary custody of the agency for more than 12 months
    of a consecutive 22-month period. However, father does dispute the juvenile court's finding
    that granting permanent custody of E.G. to the agency is in the child's best interest.
    {¶ 9} 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
    limited to the following:
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    Butler CA2013-12-224
    (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.”
    {¶ 10} At the hearing, the caseworker testified that the agency had been providing in-
    home services to E.G. and his mother for about eight months prior to the child's removal from
    the home. The caseworker indicated that there was "some success and some missteps"
    during this time and that following residential drug treatment, the mother had relapsed
    several times. On the day the agency took custody of E.G., the worker received a text
    message from the mother asking her to pick up E.G. from the bus stop because the mother
    stated she "was in trouble with my life." The worker called father, who indicated the mother
    had called him about picking up the child, but he was unable to do so. In addition, father did
    not know when he would be home, and could not provide any alternative options regarding
    where the agency could take the child.
    {¶ 11} After E.G's removal, the agency investigated other possible placements for the
    child. Father suggested a friend or neighbor he thought might help by taking custody of the
    child, but the friend/neighbor did not answer despite several calls, and did not return agency
    messages. Later in the case, father suggested the child could be placed with father's brother
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    Butler CA2013-12-224
    in Georgia. The agency requested a home study for possible placement, but as of the date
    of the permanent custody hearing, the completed home study had not been received.
    {¶ 12} The caseworker testified that case plan services for father included completion
    of a substance abuse assessment and to follow all recommendations. The case plan also
    required father to complete random drug screens and to maintain safe and appropriate
    housing. She stated that father completed the substance abuse assessment and treatment
    was recommended. He was referred to the Community Behavioral Health for substance
    abuse treatment, but was discharged after continued drug use. The drug and alcohol
    therapist treating father at Community Behavioral Health testified at the hearing that father
    was discharged from the program for testing positive on his drug tests. The drug and alcohol
    therapist indicated that she recommended outpatient group therapy, but father told her he did
    not have a problem and was not coming back.
    {¶ 13} Father was then referred to The Next Right Thing for substance abuse
    treatment, but was eventually discharged from the center due to continued drug use. Drug
    screens taken during father's treatment were positive for alcohol and cocaine and the
    caseworker testified that father has not successfully completed this case plan requirement.
    Residential treatment was recommended after father's second discharge from treatment, but
    father has not completed this requirement. The caseworker testified that father was on a
    waiting list for the residential treatment program, and when a spot was available, he was
    contacted at four different numbers, but did not report for treatment.
    {¶ 14} The caseworker also testified that father completed the basic core parenting
    program for the Development of Living Skills program, but the educators did not feel it would
    be beneficial to do the extended curriculum due to father's continuing substance abuse
    problems. The agency requested that father attend the Celebrating Families parenting
    program, but father refused the program for several months, and when he finally agreed to
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    Butler CA2013-12-224
    go, the program was no longer available. The caseworker testified that father's home did not
    have any safety hazards, but the agency had some concern because of problems with
    people breaking into the home.
    {¶ 15} On removal, E.G. was placed in temporary care for one day. E.G. has autism
    and is placed in a therapeutic foster home on the second day. He has remained in the same
    therapeutic foster home since that time, and the caseworker indicated the child has made
    considerable progress. According to the caseworker, on removal from his mother's home,
    E.G. had "little to no speech," was aggressive in the home, constantly moving, throwing cars,
    moving furniture and was "all over the place." The child now uses both verbal and nonverbal
    communication and talks in sentences.         He has calmed down substantially and the
    caseworker indicated E.G. doesn't run around or act aggressively or any of the other
    behaviors she observed before removal.
    {¶ 16} A foster parent also testified at the hearing and indicated that the family has
    adopted two children with autism and both parents have taken classes and training on
    dealing with autism. The foster parent indicated that the child was scared and shy at first, but
    is now more social and is bonded with the family and extended family. When he first arrived,
    E.G. had anger issues and meltdowns, but his behavior has improved and the foster parent
    works with the child every day in the areas that need improvement. The foster parent
    indicated that E.G. goes to speech therapy and had just enrolled in a program for the
    summer where he will work on social skills and other behaviors to help his transition into the
    next school year. The foster parent indicated that the family would definitely like to adopt
    E.G., and that if this happened, they would encourage him to see his biological family. The
    foster parent stated that the family's two adopted sons still see their biological families.
    {¶ 17} The caseworker indicated that father has been consistent in visiting the child
    throughout the case. Visits took place at the agency's visitation center except for a time
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    Butler CA2013-12-224
    where the agency tried unsupervised visits in father's home. The unsupervised visits were
    discontinued after father's drug tests were positive and E.G. displayed behavior problems in
    the car on the way to the visits. The foster parent indicated that when E.G. realized they
    were on a certain road that would lead to his father's house, E.G. began acting crazy, crying
    and screaming, and even threw a toy car, breaking the front windshield.
    {¶ 18} E.G.'s biological mother testified at the hearing that she has been pleased with
    the improvement in E.G. while he has been in the foster home and she wants him to stay
    there. She testified that she would be concerned if E.G. were placed with his father because
    she questioned whether the therapy and attention that the foster parents were giving the child
    would continue. The mother indicated that she took care of E.G. because father could not
    control the child's behavior and was mean to him. The mother testified that father has always
    used alcohol during the time of their relationship and that she believes he is a drug dealer.
    {¶ 19} Father testified at the hearing that he is paid in cash and "works for Jose" and
    Jose works for another company. He stated that he does not have problems with alcohol and
    could quit any time. He admitted that drug tests were positive for cocaine, but that he has
    never used cocaine. He stated tests were positive because he has friends who use cocaine
    and it "penetrates." Father admitted that he has never had custody of the child. He indicated
    that he works from 8:00 a.m. to 7:00 p.m. and if he had custody of E.G., a friend would watch
    the child if he was working. However, he admitted that he has not discussed this possibility
    with the friend yet. Father stated that he would need to move to a larger home if he had
    custody of the child and admitted that his home was broken into and computers, cameras
    and $10,000 in cash were stolen. He stated that he does not drive, but would have friends
    help transport E.G. to the services he requires for his special needs.
    {¶ 20} As mentioned above, on appeal, father argues that the trial court erred in
    determining that permanent custody was in E.G.'s best interest and that the court's decision
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    Butler CA2013-12-224
    is not supported by the evidence. In its decision, the trial court addressed the statutory best
    interest factors found in R.C. 2151.414(D).
    {¶ 21} With respect to R.C. 2151.414 (D)(1)(a), the juvenile court found that E.G.'s
    mother was his primary caregiver and that father has never provided day-to-day care for the
    child. The court also found that father maintained regular visitation with the child and that for
    a short time he had unsupervised visits in his home, but due to changes in E.G.'s behavior
    surrounding the visits and father's positive drug tests, visitation was moved back to the
    agency. The court also found that the child has been in therapeutic foster care, with parents
    trained to deal with the child's autism and special needs. The court found the children and
    foster parents are all bonded with E.G., as is the extended family. Finally, the court indicated
    that the foster parents would like to adopt E.G. and that they have expressed a willingness to
    maintain contact with the child's biological family.
    {¶ 22} With respect to R.C. 2151.414(D)(1)(b), the juvenile court indicated that the
    guardian ad litem prepared a report and recommended that permanent custody of E.G. be
    granted to the agency.
    {¶ 23} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that E.G. has
    been in the temporary custody of the agency since his removal on September 9, 2011. The
    court found that the child has been in the agency's custody for more than twelve months of a
    consecutive 22-month period before the permanent custody motion was filed.
    {¶ 24} In considering R.C. 2151.414 (D)(1)(d), the juvenile court found that E.G. is in
    need of a legally secure placement. The court found that E.G. was four years old when he
    was removed from his home, and on the first day of the permanent custody hearing was
    almost six years old. The court reviewed the mother's failure to complete the case plan and
    noted that she signed a permanent surrender of the child. The court reviewed father's failure
    to complete the case plan requirements. The court noted father's failure to complete
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    Butler CA2013-12-224
    substance abuse treatment, and frequent drug-testing that was positive for cocaine and/or
    alcohol. The court reviewed an assessment of father's progress which indicated father was
    unsuccessful in two programs and continued to deny and minimize his substance abuse
    problem. The court also found that father admitted his current residence was not appropriate
    for the child and that he would have to find a larger and safer apartment.
    {¶ 25} The court also reviewed the case plan requirements for E.G. and found that the
    foster parents have demonstrated a commitment to the child and have followed through on
    all services that were recommended and the child has made progress in all areas. The court
    concluded that neither the mother nor father were capable of providing a safe, stable and
    drug-free environment for the child. With regard to father, the court found that he continues
    to deny his substance abuse problems and demonstrated a lack of understanding about the
    child's special needs due to E.G.'s autism. The court concluded it was not in the child's best
    interest to be placed with either his mother or father, and that no other family member is
    available to take custody of the child.
    {¶ 26} Based on consideration of the statutory factors, the trial court determined by
    clear and convincing evidence that it was in E.G.'s best interest to grant permanent custody
    to the agency. After careful review, we find the trial court's decision is supported by the
    evidence. E.G.'s mother surrendered custody and was not an option for placement. There
    was no evidence of family members or friends who were appropriate placements for the
    child.
    {¶ 27} Further, the evidence supports the trial court's determination that E.G. cannot
    be placed with his father. Father has never had custody of the child and has not established
    that he can care for E.G.'s autism and special needs. Father failed to complete substance
    abuse treatment twice, and according to his providers, continues to deny that he has a
    substance abuse problem. He has not established that he is able to provide a safe home
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    Butler CA2013-12-224
    and to address the child's autism and special needs.
    {¶ 28} Accordingly, we find no error in the trial court's determination that it was in
    E.G.'s best interest to grant permanent custody to the agency and we find that the trial court's
    decision was supported by the evidence. Father's assignments of error are overruled.
    {¶ 29} Judgment affirmed.
    HENDRICKSON, P.J., and M. POWELL, J., concur.
    - 10 -
    

Document Info

Docket Number: CA2013-12-224

Citation Numbers: 2014 Ohio 2007

Judges: Piper

Filed Date: 5/12/2014

Precedential Status: Precedential

Modified Date: 3/3/2016