In re D.M. , 2009 Ohio 4112 ( 2009 )

[Cite as In re D.M., 2009-Ohio-4112.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN THE MATTER OF:
D.M., CASE NO. 5-09-12
ALLEGED NEGLECTED
AND DEPENDENT CHILD,
OPINION
[JULIE HENRY-WALLACE,
MOTHER-APPELLANT].
IN THE MATTER OF:
O.M., CASE NO. 5-09-13
ALLEGED NEGLECTED
AND DEPENDENT CHILD,
OPINION
[JULIE HENRY-WALLACE,
MOTHER-APPELLANT].
IN THE MATTER OF:
B.M., CASE NO. 5-09-14
ALLEGED NEGLECTED
AND DEPENDENT CHILD,
OPINION
[JULIE HENRY-WALLACE,
MOTHER-APPELLANT].
Case No. 5-09-12
Appeal from Hancock County Common Pleas Court,
Juvenile Division
Trial Court Nos. 20730017, 20730018, 20730019
Judgments Affirmed
Date of Decision: August 17, 2009
APPEARANCES:
Aaron J. Ried for Appellant
Kristen Johnson for Appellee, Hancock Co. JFSCPSU
ROGERS, J.
{¶1} In cases numbered 5-09-12, 5-09-13, and 5-09-14, Mother-
Appellant, Julie Henry Wallace, appeals the judgments of the Hancock County
Court of Common Pleas, Juvenile Division, terminating her parental rights and
granting permanent custody of her three children to the Hancock County Job and
Family Services, Children’s Protective Services Unit (hereinafter “CPSU”). In
this consolidated appeal, Mother argues that the trial court abused its discretion
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because CPSU did not present clear and convincing evidence that permanent
custody was warranted. Based upon the following, we affirm the judgments of the
trial court.
{¶2} In May 2007, CPSU filed complaints alleging that B.M. (DOB:
2/25/1998), O.M. (DOB: 10/18/2000), and D.M. (DOB: 8/18/2001) (hereinafter
B.M., O.M., and D.M. collectively referred to as “the children”), were neglected
because of an incident during which Mother, while under the influence of drugs,
repeatedly drove off the road with the children in the car and nearly ran over one
of the children, and because the family home was unsafe and unsanitary.
Additionally, CPSU requested ex-parte temporary custody of the children.
{¶3} In June 2007, CPSU filed a case plan with objectives that Mother
provide and maintain a safe and stable living environment for the children; that
Mother undergo mental health and substance abuse treatment; that Mother acquire
additional parenting skills and knowledge; and, that Mother acquire additional life
skills.
{¶4} In July 2007, the trial court found by clear and convincing evidence
that the children were neglected and dependent as defined in R.C. 2151.03(b)(c)
and 2151.04(b)(c)(d).
{¶5} In August 2007, the trial court ordered CPSU to assume temporary
custody of the children and adopted the case plan filed in June 2007.
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{¶6} In November 2007, the case came before the trial court for semi-
annual review. In its report, CPSU concluded that it could not recommend
reunification because Mother’s ability to maintain sobriety, mental health, and
safe, stable housing continued to be a concern.
{¶7} In February 2008, CPSU moved for a six-month extension of
temporary custody of the children, from May 2008 until November 2008, because
Mother failed to complete the case plan objectives and needed more time.
{¶8} In April 2008, CPSU moved for permanent custody of the children,
or, in the alternative, a six-month extension of temporary custody. Thereafter, the
trial court granted the six-month extension of temporary custody.
{¶9} In May 2008, the case came before the trial court for semi-annual
review. In its report, CPSU amended the case objective from reunification to
permanent custody on the basis that Mother failed to complete the case plan
requirements.
{¶10} In September 2008, the children’s guardian ad litem (“GAL”)/court
appointed special attorney (“CASA”), Gaye Morehead, filed a mediation report
stating that the parties agreed to extend CPSU custody and services for six months,
to terminate on March 23, 2009. The mediation report listed the following
objectives: (1) Mother would successfully engage in individual counseling to
address her substance abuse and mental health issues; (2) Mother would
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successfully complete the life skills program at Century Health; (3) Mother would
successfully complete home-based therapy; (4) Mother would maintain a safe and
stable home; and, (5) Mother would maintain sobriety. Thereafter, the trial court
granted the six-month extension of temporary custody and services.
{¶11} In February 2009, CPSU again moved for permanent custody of the
children on the basis that Father, David May II1, had abandoned the children; that
the children could not or should not be placed with Mother within a reasonable
time; and, that permanent custody was in the children’s best interests.
Specifically, the memorandum in support stated that Mother failed continuously
and repeatedly to remedy the conditions causing the children to be placed outside
of her home; that Mother’s chronic mental illness and chemical dependency made
her unable to provide an adequate home for the children; that Mother
demonstrated an unwillingness to provide an adequate home for the children; and,
that Mother was unwilling to provide the children with basic necessities or to
protect them from abuse.
{¶12} In March 2009, the case proceeded to a final hearing, at which the
following testimony was heard.
{¶13} Ken Sinkey, a counselor at the Family Services Counseling Center,
testified that he worked with D.M. and O.M. from spring 2008 until the time of the
1
We note that Father did not appeal the trial court’s judgment granting permanent custody of the children
to CPSU and is not a party to this appeal.
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hearing; that Kathy Stenfors worked with B.M. during that time period; that he
believed D.M. and O.M. believed their family would be “broken up” if they told
others about “bad things” that had happened in the family (hearing tr., vol. I, p.
20); that, initially, the children were very forthcoming about the abuse they had
experienced in Mother’s home, but then recanted on many things and ceased
making progress; that it is unlikely the children recanted about the abuse because
it did not happen; that the decrease in the children’s progress in counseling and the
recantation corresponded with them having increased contact with Mother; that he
believed from his sessions with O.M. and D.M. that they had been sexually
abused; that O.M. had disruptive behavior disorder, which is characteristic of
children who have experienced trauma; that B.M. emphatically explained to him
that she did not want to live with Mother because she did not protect her, and that
she did not provide for the children’s basic needs; that B.M. also explained that
Mother expected her to protect, feed, and care for O.M. and D.M., even though
she was not much older than they; that B.M. was especially fearful of where
Mother lived, but would not verbalize why; and, that D.M. and O.M. were
“excited” about the prospect of returning to Mother’s home. (Id. at 32).
{¶14} Robin Brown, mental health and substance abuse counselor for
Century Health, testified that she kept Mother’s patient records back to 2000; that
Century Health treated Mother primarily for chemical dependency and substance
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abuse; that Mother abused alcohol, cannabis, pain medication, and opiates; that
Mother was also diagnosed with depression and bipolar disorder; that, in May
2007, Mother overdosed on Percocet, Darvocet, and alcohol; that CPSU removed
the children from Mother’s home at that point, and Mother entered counseling in
June 2007; that Mother failed to attend any appointments until July 2007; that,
from July 2007 until January 2008, Mother attended some appointments, but
missed more appointments than she attended; that, in late January 2008, Mother
entered Devlac Hall, an inpatient, residential substance abuse and chemical
dependency program; that Mother did not complete the Devlac program and left
against medical advice; that, from that point, Century Health recommended to
Mother that she engage in individual treatment, group treatment, and community
support treatment, such as Alcoholics Anonymous, one to four times per week;
that, in April 2008, Mother began attending treatment sessions more regularly; that
Mother began to show progress from April 2008 until mid-August; that, at that
point, Mother was discharged from intensive treatment, entered into the “Living
Skills” program, and was advised to attend relapse prevention sessions; that
Mother did not attend any relapse prevention sessions; that Mother missed many
appointments in the following months and only attended two individual sessions in
December 2008 and January 2009; that Mother admitted in December 2008 that
she had been using marijuana, but failed to attend a follow-up session or re-enter
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treatment as recommended; that, in 2008, fifty-four total appointments were set up
for Mother, but she attended only thirty-four; that none of Mother’s drug screens
had tested positive for opiates; but, that Mother’s lack of attendance inhibited the
agency’s ability to screen her for drug use on a regular basis; and, that Mother was
at a moderate to high risk of relapse.
{¶15} Brenda Hoose testified that she and Mother became friends when
they both attended Narcotics Anonymous; that she associated with Mother from
April 2008 to October 2008; that, in October 2008, she witnessed Mother use
marijuana three times; and, that Mother told her not to tell anyone, because it
would influence whether she was able to regain custody of the children.
{¶16} Wendy McCormick, Mother’s sponsor from Narcotics Anonymous,
testified that she became concerned about Mother’s sobriety in early November
2008 because she stopped contacting her and began to distance herself from the
support group; that she was also concerned because Mother had told her that she
often tried to resolve issues by going to the hospital and asking for pain
medication; that Mother began making frequent trips to the hospital in fall 2008;
and, that the support group attempted to coordinate an intervention for Mother, but
Mother refused to allow them into her home and cut off contact with the support
group.
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{¶17} Kim Odone testified that she was Mother’s sponsor in Narcotics
Anonymous; that, just prior to Mother’s admission into Devlac Hall, she told her
that O.M. had died, which Mother later admitted to her she made up because she
wanted attention; that Mother participated in Narcotics Anonymous meetings for
awhile and was making progress, but then she began to lose contact; that she
became aware that Mother was making visits to the hospital to get pain
medication; that, in October 2008, an allegation arose that Mother had used
marijuana; and, that she encouraged Mother to get a drug screen to refute the
allegation, but Mother refused.
{¶18} Marlene Davis, the family’s social worker, testified that she
conducted home-based therapy with the family since November 2008; that therapy
was going well because the children were engaging with Mother and Mother was
demonstrating appropriate parenting skills; and, that she had no concerns with
Mother having unsupervised contact with the children. Davis then testified on
cross-examination that she contacted Mark Olthouse, the family’s caseworker, in
December 2008, requesting to discontinue individual services with Mother
because she was not “getting anywhere” with her (Id. at 173); that she was never
aware that Mother was not following through with her treatment at Century Health
or that she had admitted to using drugs; that knowledge of these facts would have
changed her mind about moving to unsupervised visits; that Mother had reported
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to her that she was complying with her treatment at Century Health; that she was
never aware that the children’s counselors did not recommend unsupervised visits
with Mother; that she reported to Olthouse that she saw no “red flags” during the
sessions (Id. at 178); and, that she was not aware that the children reported to their
counselors that B.M. was made to take care of O.M. and D.M. while the children
lived in Mother’s home.
{¶19} Olthouse testified that he was an ongoing caseworker for CPSU and
had worked with the family since May 2007; that the investigation began when
Mother nearly backed over one of the children with her car while the other two
children were in the car; that he was unaware if alcohol or drugs were involved in
the incident because he was not the investigator; that the children were removed
from Mother’s home due to that incident and because the family home was
dangerously out of order and filthy, and Mother was not supervising the children
or providing for their basic needs; that Mother indicated that Father had attempted
to smother B.M. with a pillow, for which he was convicted and served time in
prison; that, from May 2007 until the date of the hearing, the children were
continuously in CPSU’s custody, which was a total of nineteen months; that he
reviewed the case plan with Mother three or four times to be sure she understood;
that the case plan required Mother to maintain a safe and stable living environment
for the children; that Mother had maintained a clean and stable home, however,
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the safety requirement was not met because Mother had not established herself as
drug-free; that the case plan required the children to undergo counseling and that
the children underwent counseling; that the case plan required Mother to undergo
mental health and substance abuse treatment; that Mother did not successfully
complete mental health and substance abuse treatment because her attendance was
irregular and she repeatedly relapsed; that the case plan required Mother to
participate in a life skills program; that Mother did not successfully obtain life
skills because she did not attend the program at all; that the case plan required
Mother to acquire parenting knowledge and skills and to participate in home-based
therapy; that Mother did not complete the parenting skills objective because she
delayed in beginning the home-based therapy program; that, in January 2008,
Mother told various family members that O.M. had died, which was not true; that,
in April 2008, Mother again sought visitation with the children; and, that, during
the entirety of his involvement with the case, he never felt comfortable
recommending unsupervised visitation because Mother’s sobriety had not been
established and Mother had “control issues” in handling the children. (Hearing tr.,
vol. II, p. 237).
{¶20} Olthouse continued that he did not believe Mother could currently
provide an adequate permanent home for the children and would not be able to
within a reasonable time; that he did not think his opinion would change if Mother
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was granted an extension because she had not been able to sustain progress with
the case plan for the past two years; that the children had regressed in their
behavior since having more contact with Mother; that, after being placed in foster
care, B.M. never indicated she wanted to go back to Mother’s home; that D.M.
and O.M. had indicated they wanted to return to Mother’s home initially, but no
longer did; that he spoke to D.M. and O.M. about seeking an adoptive home for
them, and they smiled and agreed; that B.M.’s relationship with Mother was
especially strained; that D.M. and O.M. had functional interaction with Mother,
but were very well-adjusted and happy in their foster home; that O.M. had
educational delays and deep emotional problems; and, that D.M. had behavioral
and motor skill problems. Olthouse then concluded that the children’s interests
would be best served by being placed in CPSU’s permanent custody because of
their ages, vulnerability, past history, and need for a safe, permanent, and stable
lifestyle; and, that Mother had not been able to maintain herself in a position
where she could provide a stable, safe environment for the children.
{¶21} David A. Smalley testified that he knew Mother from Narcotics
Anonymous meetings; that he attended the meetings approximately four or five
times per week; that Mother attended about four meetings per week; that it was
clear to him when he initially met her that she had just begun recovery from drug
abuse; that, as she attended more meetings, Mother’s disposition became more
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positive, and she became more involved with the program; that Mother talked
about the children and said she loved them and missed them; and, that he never
suspected Mother was abusing drugs or alcohol. On cross-examination, Smalley
testified that he had a romantic relationship with Mother in January 2009; that he
believed she had been drug-free for the entirety of 2008; and, that he and Mother
never discussed whether she was completing the requirements at Century Health.
{¶22} Leo Roberts testified that Mother was his sponsor in Narcotics
Anonymous; that he attended about fifteen meetings per week; that Mother was
devastated when the children were removed from her home; that, in the previous
two years, he had at one time suspected that Mother was using drugs and she
admitted that she was, but that she was a “different person” now (hearing tr., vol.
III, p. 302); and, that he knew Mother was not currently using drugs because he
could tell by looking at her.
{¶23} Mother testified that CPSU removed the children from her custody
in May 2007; that grief caused by the loss of her children caused her to revert to
drug use; that she believed that she was now responsible, accountable for her
actions, clean, and working towards recovery; that she last used drugs in January
2008; that she did not use drugs in December 2008, and Hoose made up the story
about the marijuana use; that she understood what she needed to do to complete
the case plan; that she signed up for parenting classes, but Olthouse told her not to
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take those classes; that she did not attend her appointments at Century Health on a
consistent basis at first because she was still abusing drugs at that point; that, after
she stopped abusing drugs, she missed several appointments because her mother
was in an accident and was going to be taken off life support; that she did not
complete the life skills program because Olthouse told her she needed to wait until
January, but that she had an appointment to begin the program the day after the
hearing; that all of her drug screens had been clean; that the home-based therapy
visits with Davis were going very well; and, that she had told the children about
the changes she made in her life and that things were not the way they used to be.
{¶24} Mother continued that she was present three years prior when Father
attempted to smother B.M.; that she was drunk when this incident occurred; that,
despite his actions, she went to Father’s sentencing hearing after his conviction for
felony child endangering and intimidation, and asked the judge to release him
from prison; that, when she was using drugs, she did not take care of the children;
that she had made several attempts at recovery from substance abuse since 2000;
that she told everyone at Devlac Hall that O.M. had died because she was grieving
the loss of the custody of her children and had “lost her mind” (Id. at 343); that she
left Devlac Hall against medical advice; that she signed a mediation report in
September 2008, agreeing to grant temporary custody of the children to CPSU;
that she knew she was required by the case plan to participate in individual
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counseling to address her substance abuse and mental health issues; that she
scheduled an appointment with Century Health in November, but it was cancelled,
so Brown’s testimony that she had no appointments between August and
December was not true; that she never admitted to anyone at Century Health that
she relapsed and used drugs in December 2008; that she missed her appointment
in December 2008 because her mother was in the hospital and about to be taken
off life support; that she had been clean for a year; that she told Olthouse she
missed an appointment because her mother was being taken off life support, but
her mother woke up that same day after three weeks of being unconscious; that
Olthouse was not telling the truth when he testified that he saw her mother sitting
up and talking with relatives; that she had not attended any appointments at
Century Health since January 2009 because she wrote the date down wrong; that
Hoose was lying when she testified that she saw her use drugs; that the frequent
trips she made to the hospital in the fall of 2008 were because she had gallbladder
problems; that there was “no way” she had fifty-four appointments scheduled with
Century Health since January 2008, so it was incorrect that she only attended
thirty-four out of fifty-four appointments (Id. at 354); that it was Olthouse’s fault
she did not begin the life skills group because he told her Davis was going to set
her up with classes later; that she did not complete the home-based therapy
because Olthouse did not set her up for it until November or December 2008; that
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Olthouse only wanted to see her once every two to three weeks; that, in January
2009, Olthouse sent her a letter calling to her attention that only nine weeks
remained before the permanent custody hearing, and detailing that she had not
adequately addressed her mental health and substance abuse issues and had not
begun the life skills group program; and, that she took drug screens in December,
January, and February at Century Health that were clean.
{¶25} Morehead, the children’s CASA/GAL, testified that she prepared a
report and recommendations to the court, and that she recommended termination
of parental rights with permanent custody awarded to CPSU because Mother
failed to adequately complete the case plan.
{¶26} Thereafter, the trial court issued judgment entries granting CPSU
permanent custody of the children. The trial court specifically found that the
children had been in the temporary custody of CPSU for twelve or more months of
a consecutive twenty-two month period ending on or after March 18, 1999, and
that, by clear and convincing evidence, it would be in the best interests of the
children to grant their permanent custody to CPSU. In the alternative, the trial
court determined that the children could not be placed with either parent within a
reasonable time or should not be placed with them. The trial court then continued
to consider the relevant factors enumerated in R.C. 2151.414(D)(1) through (5)
and 2151.414(E)(7) to (11), specifically finding:
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The mother has had a long history of alcohol and opiate
addiction. Although it was the subject of disputed testimony,
this court finds mother is not in recovery and her use continued
even after [CPSU] dismissed its original motion for permanent
custody and agreed to a 6 month extension of her case plan.
Mother left the hospital where she was receiving drug and
alcohol treatment against medical advice and failed to appear at
her individual counseling where she knew she would be subject
to drug testing.
* * * In determining that the child[ren] cannot or should
not be placed with the parents within a reasonable time, this
court finds that many factors included in Revised Code Section
2151.414(E)(1)-(16) have been proven by clear and convincing
evidence to exist. Particularly this court finds that following the
placement of the child[ren] outside their home and, not
withstanding reasonable cause [sic] planning and diligent efforts
by [CPSU] to assist the parents to remedy the problems that
initially caused the child[ren] to be placed in foster care, the
parents have failed continuously and repeatedly to substantially
remedy the conditions which caused said child[ren] to originally
be placed in care on May 29, 2007. In determining these factors,
the court has considered parental utilization of social and
rehabilitative services and material resources that were made
available to the parents with the purpose of changing their
conduct to allow them to assume and maintain parental duties.
The court further finds that the parents are unable to provide an
adequate permanent home for the child[ren] at the present time
and, as anticipated, within one year after the court holds the
hearing in this matter.
This finding is based on items discussed above including the
father’s history of domestic violence and cruelty towards the
children and his complete disinterest in visiting or assuming
custody of the children. Mother’s drug and alcohol use
continued even after [CPSU] dismissed its original motion for
permanent custody and agreed to a six-month extension. She
refused to submit to drug screens when requested knowing that
supplying clean drug screens was a vital part of her case plan.
* * * The court further finds by clear and convincing
evidence that continuation in the [children’s] own home would
be contrary to the [children’s] welfare.
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* * * The court finds by clear and convincing evidence that
the agency made reasonable efforts to prevent the continued
removal of the child[ren] from their home and that by filing a
motion for permanent custody that reasonable efforts have been
made by the agency to finalize a Permanency Plan.
(Mar. 2009 Judgment Entries, pp. 3-4).
{¶27} It is from these judgments that Mother appeals, presenting the
following assignment of error for our review.
DUE PROCESS REQUIRES THE DEPARTMENT OF JOB
AND FAMILY SERVICES TO PROVIDE CLEAR AND
CONVINCING EVIDENCE IN ORDER TO TAKE
PERMANENT CUSTODY OF A CHILD AND THERE IS AN
ABUSE OF DISCRETION WHEN THAT STANDARD IS NOT
MET, WHICH RESULTS IN A VIOLATION OF A PARENT’S
FUNDAMENTAL RIGHT.
{¶28} In her sole assignment of error, Mother contends that the trial court
erred in granting permanent custody of the children to CPSU because CPSU failed
to present clear and convincing evidence supporting its motion. Specifically,
Mother contends that evidence was heard that she maintained a stable home for the
children that was clean and orderly; that a social worker testified she had no
concerns about Mother having unsupervised contact with the children; and, that
she presented her own testimony and testimony from several witnesses as evidence
of her sobriety. We disagree that CPSU did not present sufficient evidence.
{¶29} Our review of a grant of permanent custody begins by noting that
“[i]t is well recognized that the right to raise a child is an ‘essential’ and ‘basic’
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civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re Murray (1990),
52 Ohio St.3d 155, 157. Parents have a fundamental liberty interest in the care,
custody, and upbringing of their children. Murray, 52 Ohio St.3d at 157; Santosky
v. Kramer (1982), 455 U.S. 745, 753. However, a natural parent's rights are not
absolute. In re Thomas, 3d Dist. No. 5-03-08, 2003-Ohio-5885, ¶7. “It is plain
that the natural rights of a parent are not absolute, but are always subject to the
ultimate welfare of the child, which is the polestar or controlling principle to be
observed.” In re Cunningham (1979), 59 Ohio St.2d 100, 106 (citation omitted).
{¶30} Permanent custody determinations made under R.C. 2151.414 must
be supported by clear and convincing evidence. In re Baby Girl Doe, 149 Ohio
App.3d 717, 738, 2002-Ohio-4470, citing In re Hiatt (1993), 86 Ohio App.3d 716,
725. Clear and convincing evidence is “[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. It does not mean clear and unequivocal.” In
re Estate of Haynes (1986), 25 Ohio St.3d 101, 104. In addition, when “the degree
of proof required to sustain an issue must be clear and convincing, 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.” Cross v. Ledford
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(1954), 161 Ohio St. 469, 477, citing Ford v. Osborne (1887), 45 Ohio St. 1.
Thus, we are required to determine whether the trial court's conclusion was
supported by sufficient, credible evidence to satisfy the requisite degree of proof,
In re McCann, 12th Dist. No. CA2003-02-017, 2004-Ohio-283, ¶12, citing In re
Starkey, 150 Ohio App.3d 612, 617, 2002-Ohio-6892, and, absent an abuse of
discretion, the trial court's decision must be upheld. In re Robison, 3d Dist. No. 5-
07-41, 2008-Ohio-516, ¶8, citing Masters v. Masters (1994), 69 Ohio St.3d 83, 85;
see, also, In re Rinaldi, 3d Dist. No. 1-02-74, 2003-Ohio-2562. An abuse of
discretion “connotes more than an error of law or judgment; it implies that the
court's attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion
standard, a reviewing court may not simply substitute its judgment for that of the
trial court. Id.{¶31} “Once a child has been adjudicated dependent, neglected, or abused
and temporary custody has been granted to a children services agency, the agency
may file a motion for permanent custody under R.C. 2151.415(A)(4).” In re
Esparza, 3d Dist. Nos. 9-06-25 & 9-06-27, 2007-Ohio-113, ¶25. In determining
whether to grant the agency permanent custody, the trial court's analysis consists
of two prongs. First, the trial court must determine if any conditions enumerated
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in R.C. 2151.414(B)(1) are present. R.C. 2151.414(B)(1) enumerates the
following conditions, in pertinent part:
(a) The child is not abandoned or orphaned, has not 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, * * * 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.
***
(d) 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* * *[.]
{¶32} In determining whether the child can be placed with the child’s
parents within a reasonable time or should not be placed with the child’s parents,
R.C. 2151.414(E) provides, in pertinent part:
(E) In determining at a hearing held pursuant to division (A) of
this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code whether a child cannot be placed
with either parent within a reasonable period of time or should
not be placed with the parents, the court shall consider all
relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A)
of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code 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:
(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
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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.
(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 pursuant to division (A) of this section or for
the purposes of division (A)(4) of section 2151.353 of the Revised
Code;
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the
child;
***
(9) The parent has placed the child at substantial risk of harm
two or more times due to alcohol or drug abuse and has rejected
treatment two or more times or refused to participate in further
treatment two or more times after a case plan issued pursuant to
section 2151.412 of the Revised Code requiring treatment of the
parent was journalized as part of a dispositional order issued
with respect to the child or an order was issued by any other
court requiring treatment of the parent.
(10) The parent has abandoned the child.
***
(14) The parent for any reason is unwilling to provide food,
clothing, shelter, and other basic necessities for the child or to
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prevent the child from suffering physical, emotional, or sexual
abuse or physical, emotional, or mental neglect.
***
(16) Any other factor the court considers relevant.
{¶33} If the trial court finds one or more of these factors present, and thus
concludes that the child cannot be placed with the child’s parents within a
reasonable time or should not be placed with the child’s parents, the condition in
R.C. 2151.414(B)(1)(a) is satisfied. If either the condition in R.C.
2151.414(B)(1)(a) or 2151.414(B)(1)(d) is satisfied, the trial court must then move
on to the second prong and determine whether permanent custody is in the best
interest of the child.
{¶34} In the second prong of its analysis, determining whether it is in the
child's best interest to grant permanent custody to the agency, R.C. 2151.414(D)(1)
directs the trial court to consider the following non-exclusive factors:
(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, or the child has been in the temporary custody of one or
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more public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-two-
month period and, as described in division (D)(1) of section 2151.
413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;
(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.
{¶35} Here, Mother contends that the trial court erred in granting
permanent custody of the children to CPSU because the agency did not present
clear and convincing evidence supporting its motion for custody.
{¶36} Initially, we note that Mother’s argument does not dispute the trial
court’s determination that the children were in temporary custody of CPSU for at
least twelve months of a consecutive twenty-two month period prior to CPSU
filing for permanent custody pursuant to R.C. 2151.414(B)(1)(d). Instead,
Mother’s arguments focus on conflicting evidence concerning her sobriety, and
are impliedly geared towards the trial court’s finding that the children could not or
should not be returned to her within a reasonable period of time pursuant to R.C.
2151.414(B)(1)(a). However, this Court has previously found that “when a trial
court finds that R.C. 2151.414(B)(1)(d) has been met and makes a best interest
determination, it is not required to also determine that the children could not or
should not be returned to any of the parents within a reasonable time under R.C.
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2151.414(B)(1)(a).” In re J.P., 3d Dist. Nos. 5-06-52, 5-06-53, 2007-Ohio-1903,
¶93, citing In re William S. (1996), 75 Ohio St.3d 95, 99; In re Lopez, 166 Ohio
App.3d 688, 2006-Ohio-2251; R.C. 2151.414(B). Thus, we need not review
Mother’s argument; however, in the interest of justice, we will address it briefly.
{¶37} R.C. 2151.414(B)(1)(d) provides that the first prong of analysis in
determining permanent custody is satisfied where the child has been in temporary
custody of the children services agency “for twelve or more months of a
consecutive twenty-two-month period.” Here, undisputed testimony was heard
that from May 2007 until March 2009, the date of the hearing, the children were
continuously in the custody of CPSU. Accordingly, as CPSU also presented
testimony that granting permanent custody to CPSU was in the best interests of the
children, it satisfied its burden under R.C. 2151.414(B)(1) by clear and convincing
evidence. Thus, we find that the trial court did not err in granting permanent
custody of the children to CPSU.
{¶38} Additionally, even though it was not required to demonstrate the
presence of both conditions in R.C. 2151.414(B)(1)(a) and 2151.414(B)(1)(d), we
note that CPSU presented sufficient evidence to do so. R.C. 2151.414(B)(1)(a)
provides that the first prong of analysis in determining permanent custody is also
satisfied if “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.” Here, Mother
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presented testimony from several acquaintances that she had stopped abusing
drugs and testified herself that she was drug-free and had made changes in her life,
including accountability and responsibility. However, testimony was also heard
that, in May 2007, Mother drove in a manner that endangered the children; that
Father attempted to smother B.M. while Mother was present, but Mother asked the
judge to release Father from prison; that the children’s progress in counseling had
decreased due to their increased contact with Mother; that B.M. emphatically
stated she did not want to return to Mother; that D.M. and O.M. were happy and
well-adjusted in their foster homes and were agreeable to the idea of adoption; that
Mother left a drug treatment facility against medical advice; that Mother only
attended thirty-four out of fifty-four appointments for her mental health and
substance abuse treatment; that all of Mother’s drug tests were clean, but her poor
attendance did not allow for regular testing; that Mother’s sobriety had not been
established; that Mother was at a moderate to high risk of relapse; that Mother had
relapsed several times since 2000, and she admitted relapse as recent as January
2008; that Mother used marijuana multiple times in October 2008; that Mother
refused a drug intervention by her Narcotics Anonymous support group; that,
although Mother currently maintained a clean and orderly home, she had not
maintained a safe environment for the children because she failed to adequately
address her drug problem; that Mother did not even begin the life skills program as
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required by the case plan; that Mother did not complete home-based therapy as
required by the case plan; and, that Mother could not currently provide an
adequate permanent home for the children and would not be likely to in the future.
In light of this evidence, we find that the trial court did not abuse its discretion in
finding that the children could not be placed with Mother within a reasonable time,
and granting permanent custody to CPSU.
{¶39} Finally, based on the above evidence, we also find that the trial did
not abuse its discretion in finding that granting permanent custody to CPSU was in
the children’s best interests.
{¶40} Accordingly, we overrule Mother’s assignment of error.
{¶41} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
PRESTON, P.J. and SHAW, J., concur.
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