In re K.M. , 2014 Ohio 4268 ( 2014 )

[Cite as In re K.M., 2014-Ohio-4268.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: K.M. C.A. No. 14CA0025-M
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE No. 2012 04 NE 0017
DECISION AND JOURNAL ENTRY
Dated: September 29, 2014
WHITMORE, Judge.
{¶1} Appellant, Buster E., appeals from a judgment of the Medina County Court of
Common Pleas, Juvenile Division, that terminated his parental rights to his child, K.M., and
placed her in the permanent custody of Medina County Job and Family Services (“JFS”). This
Court affirms.
I.
{¶2} Buster E. (“Father”) is the biological father of K.M., born January 27, 2004. The
mother of the child, Jamie K., (“Mother”) participated to a limited degree in the trial court
proceedings, but she ultimately surrendered her parental rights on the first day of the permanent
custody hearing.
{¶3} The parents were not married, but have had a long-term relationship. Both
parents have criminal records and histories of drug abuse. At the time this case began, Father
was incarcerated (failure to comply with order or signal of a police officer) and Mother was in a
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drug treatment program. Because the parents were unavailable to care for K.M., she had been
residing with Mother’s sister, Nicole Hillenbrandt, since the fall of 2011. By the spring of 2012,
Ms. Hillenbrandt was no longer willing to provide for K.M.’s care. Consequently, on April 20,
2012, JFS initiated this case in juvenile court, alleging the neglect and dependency of then eight-
year-old K.M. The family includes two additional children whose custody is not at issue in the
present case. B.M., born July 6, 1998, was charged with the rape of a five-year-old female
cousin and was the subject of separate and contemporaneous juvenile proceedings. Infant A.K.
was born in November 2013. That child’s status is not reflected in the record.
{¶4} Upon stipulation by the parents, the trial court adjudicated K.M. to be a dependent
child. The court granted temporary custody to JFS. Derek Cek was appointed as guardian ad
litem for K.M., and, later, was appointed to also serve as her attorney. Father’s case plan
required him to: (1) apprise the agency of his current contact information, any missed
appointments, and any police involvement; (2) sign all releases; (3) complete a drug and alcohol
assessment and timely comply with requests for drug tests; (4) complete a psychological
evaluation and comply with recommendations; (5) maintain a stable home environment; and (6)
provide for his child’s basic needs.
{¶5} On August 26, 2013, JFS filed a motion for permanent custody. Father opposed
the motion and, alternatively, sought a disposition of legal custody with relatives. Following a
hearing, the trial court terminated Father’s parental rights and placed K.M. in the permanent
custody of JFS. Father appeals and assigns one error for review.
II.
Assignment of Error
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
TERMINATING FATHER’S PARENTAL RIGHTS AND GRANTING
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PERMANENT CUSTODY OF THE CHILD TO MEDINA COUNTY JOB &
FAMILY SERVICES (MCJFS), INSTEAD OF GRANTING LEGAL
CUSTODY OF THE CHILD TO EITHER PATERNAL GRANDMOTHER OR
MATERNAL AUNT AND LEAVING INTACT FATHER’S RESIDUAL
PARENTAL RIGHTS, PRIVILEGES AND RESPONSIBILITIES.
{¶6} Father has contended that the judgment granting permanent custody is against the
weight of the evidence and that the trial court should have granted legal custody of K.M. to the
child’s grandmother or aunt instead.
{¶7} R.C. 2151.414(B)(1) establishes a two-part test for courts to apply when
determining whether to grant a motion for permanent custody to a public services agency. The
statute requires the court to find, by clear and convincing evidence, that: (1) one of the
enumerated factors in R.C. 2151.414(B)(1)(a)-(e) apply, and (2) permanent custody is in the best
interest of the child. R.C. 2151.414(B)(1). Clear and convincing evidence is that which is
sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts
sought to be established. Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶8} The trial court found that the first prong of the permanent custody test was
satisfied because K.M. had been in the temporary custody of JFS for at least 12 of the prior 22
months. See R.C. 2151.414(B)(1)(d). The trial court also entered findings under R.C.
2151.414(E)(1), (4), (14), and (16) in support of its alternative determination that K.M. could not
be placed with either parent within a reasonable time or should not be placed with either parent.
Father has not contested any of the first prong findings, but has rather challenged only the second
prong finding that permanent custody was in the best interest of the child. He has argued that it
would have been in the best interest of the child to have been placed in the legal custody of the
child’s paternal grandmother, Marie Hall, or her maternal aunt, Nicole Hillenbrandt.
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{¶9} The appropriateness of a legal custody award to relatives invokes consideration of
the same factors as a determination of the best interest of a child for purposes of a permanent
custody decision. See In re S.S., 9th Dist. Summit No. 23859, 2007-Ohio-7046, ¶ 13, citing In re
S.N., 9th Dist. Summit No. 23571, 2007-Ohio-2196, ¶ 27 and R.C. 2151.414(D). As a result,
when asked to conduct a review of such a decision, “this Court typically conducts a single ‘best
interest’ review of the trial court’s decision to place the child in the permanent custody of the
agency rather than in the legal custody to a relative.” In re I.A., 9th Dist. Summit No. 26642,
2013-Ohio-360, ¶ 10. If permanent custody is in the child’s best interest, legal custody or
placement with relatives necessarily is not. Id. Consequently, on review, this Court will
consider all relevant factors, including, but not limited to, the factors set forth in R.C.
2151.414(D), in evaluating the best interest decision of the trial court. The factors specifically
set forth in R.C. 2151.414(D) include: the interaction and interrelationships of the child, the
wishes of the child, the custodial history of the child, and the child’s need for permanence in his
or her life. In re R.G., 9th Dist. Summit Nos. 24834 & 24850, 2009-Ohio-6284, ¶ 11.
Interactions and interrelationships of the child.
{¶10} Evidence regarding the relationship between K.M. and Mother was vague, but the
record suggests that Mother had significant substance abuse issues and had had little recent
contact with K.M.
{¶11} Father presented evidence regarding his relationship with K.M. through his own
testimony and that of several relatives: Father’s mother, Father’s sister, and Mother’s two
sisters. They all testified that Father and daughter loved each other, that Father was very
involved in his daughter’s life, and that he had engaged in many activities with her. These
witnesses all claimed K.M. had a positive relationship with her extended family as well. For his
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part, despite evidence of criminal involvement and substance abuse taking place before and
during the trial court proceedings, Father emphasized the fact that he has had no positive drug
test results and has been involved in Alcoholics Anonymous (“AA”) since his release from jail
six weeks earlier.
{¶12} For its part, JFS presented evidence of the recurrent criminal incarcerations and
substance abuse problems of the parents; expert testimony regarding the mental health and
psychological diagnoses of both K.M. and Father; the multiple traumas, abuse, and devastating
events experienced by K.M. while living with her family; and, finally, the therapeutic efforts to
help her overcome those difficulties.
{¶13} Notably, the record contains no evidence of K.M.’s school attendance or
academic performance before this case began. In addition, when Ms. Hillenbrandt was no longer
willing to provide care for K.M., no other relative stepped up to offer her a home, compelling
JFS to initiate this action. Finally, K.M’s report of traumatic experiences from her past included
some of her extended family as well as her immediate family.
{¶14} A full understanding of K.M.’s relationship with her family requires consideration
of the mental health of the child and the impact that her family had upon her. When this case
began, K.M. was evaluated and thereafter counseled by Dawn Cortez McKee, a child and family
therapist at Cornerstone Psychological Services. Initially, K.M. was diagnosed as a severely
neglected child and with an adjustment disorder, with rule-outs of posttraumatic stress disorder
(“PTSD”), a generalized anxiety disorder, and physical and sexual abuse. At that time, K.M.
was very guarded with Ms. McKee, her teachers, and her foster family, disclosing little about her
past.
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{¶15} K.M. had visits with extended family member at the beginning of the case. One
such visit took place at the home of the paternal grandmother, Marie Hall, in September 2012.
During this visit, Mother telephoned her sister and she – and perhaps also Father – spoke to K.M.
Ms. Hall and other relatives described this as a very happy event enjoyed by K.M., yet
afterwards K.M. displayed a severe and negative reaction. She became extremely upset, with
crying and expressing fears that past bad experiences would start happening again. The therapist
concluded that in-person visits with immediate family would be unmanageable for the child and
visits with extended family were also stopped.
{¶16} After six months of therapy, K.M. was able to talk about her past and her
experiences from her home life. K.M. reported neglect in her care, concerns about housing and
safety, and fear of arrests and incarcerations. She was afraid that the bills would not be paid and
she would not have food to eat. She spoke about flashbacks in which she recalled her parents
using drugs, including seeing her Mother put a needle in her arm at a motel. K.M. drew pictures
demonstrating that she witnessed her parents using drugs. She said there were often strangers in
her home, using or obtaining drugs, and sometimes the drugs were in her room. When that
occurred, she would hide in a closet. She recalled Mother and her aunt locking her in a closet
and leaving her alone in the house while they went out together. She reported her grandmother
pounding on the floor and screaming “stupid bitch” to her. She spoke about her brother giving
her a bath and holding her head underwater until she vomited; putting her in an attic closet while
she screamed; and holding a pillow over her face, causing her to feel suffocated. She also
recalled her brother feeding her and taking care of her while her parents were out using or buying
drugs.
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{¶17} About this time, K.M.’s diagnosis was changed to neglect and PTSD. Therapist
McKee believed that K.M.’s parents and brother “triggered” psychological distress in K.M.
based upon her memories of these experiences. She explained that such triggers can cause a
person with PTSD to relive his or her trauma internally. She recommended that K.M. should not
have any personal contact with her family because of the fragile state of K.M.’s mental health
and because she still lacked the skills needed to cope with coming into contact with her triggers.
{¶18} K.M. continued to make some progress and, in early 2013, she expressed an
interest in seeing Father. Therefore, a visit with Father was arranged for April 2013.
Caseworker Randy Fike and Ms. McKee wanted to see K.M.’s response to Father and how
Father handled her needs during a visit. Both of these service providers met with Father in
preparation for the visit. The caseworker testified that he asked Father not to talk about the court
case or the legal proceedings. Father denied that he was told to avoid certain things. The
therapist spoke with Father about K.M.’s needs and explained that K.M. saw her parents and
brother as triggers to her flashbacks of traumatic experiences. Father did not believe there were
any such triggers and instead expressed a hope to reunite K.M., Mother, and K.M.’s brother as
soon as possible. The therapist believed that Father did not understand K.M.’s mental health
diagnosis, the triggers that caused her to relive psychological injuries, or how to deal
appropriately with her condition.
{¶19} Service providers observed the visit through a window. The therapist later
testified that K.M.’s reaction to Father at the visit was not happy, but rather very stressful. Her
anxiety level was high and her body language was “closed off.” Her legs were pulled up and her
arms were crossed over her body, reflecting, according to the therapist, an effort to protect
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herself. When Father asked her to take a picture with him, she said “no.” She eventually
complied, but crossed her arms protectively and leaned away from him.
{¶20} During the visit Father began engaging in topics that the therapist and guardian ad
litem believed were inappropriate, and some that might cause K.M. to be less open with the
therapist and deteriorate their relationship. Father asked K.M. whether she wanted to live with
him, said we will be a family all together again, told her that she would most likely live with
him, asked how her counseling was going, and speculated that it was hard to tell the therapist
things. The visit was, therefore, halted a few minutes early.
{¶21} The therapist also testified regarding her counseling session with K.M. conducted
on the day after the visit. At that time, K.M. expressed a fear of retribution from Father,
believing he would be angry for what she had said. K.M. emphasized that she did not want to
live with Father and had been uncomfortable with him during the visit. The therapist felt that the
visit caused K.M. to feel helpless, anxious, and nervous.
{¶22} The impact of the visit lasted at least two months. K.M.’s anxiety level became
very high whenever the therapist tried to discuss the visit with her or use it in play therapy. K.M.
became much more active, almost driven. She jumped off tables and ran around the room. She
was destructive of toys and did not use the coping skills that had been taught in previous therapy
sessions. Her therapeutic progress regressed a great deal and her therapy went back to “square
one.” By June 2013, K.M. was making adequate progress again. She was engaged in school, her
activity level settled down, and her crying episodes lessened.
{¶23} At the time of the permanent custody hearing, K.M. was diagnosed with neglect,
PTSD, and suspected sexual and physical abuse. Her therapist believed she was making
progress, but was behind in social skills. K.M., she explained, was on the cusp of moving
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beyond trauma therapy, but should continue with counseling. K.M. had expressed that she just
wants to be a “normal kid” with a normal family who fits in with the kids at school and gets good
grades. Ms. McKee emphasized that stability and consistency are the keys to K.M.’s ability to
succeed in the future and, without those, she will likely regress.
{¶24} K.M. has resided with two foster families during this case and made progress
while living with both. She did well in school and made friends while living with the first
family, but did not “mesh” with them. She never bonded with the foster mother and had
conflicts with the teen-aged daughter in the home. After eighteen months, she was moved to a
second foster home. Caseworker Fike testified that K.M. had only been in that home two
months, but has transitioned very well, made some friends in her new school, and seemed to like
the family.
Wishes of the child.
{¶25} K.M.’s wishes were expressed by both the guardian ad litem and herself. The
guardian ad litem reported that K.M. was consistent in not wanting to live with Father. In
February 2013, she expressed a desire to visit with Father, but soon changed her position back to
not wanting to see him. When asked how she would feel about not seeing Father ever again, she
said she was fine with that. The trial court also conducted an in camera interview with K.M.
During that interview, K.M. confirmed that she did not want to live with either of her parents.
The caseworker similarly testified that K.M. recently volunteered to him that she felt
uncomfortable around Father during the visit and sought the caseworker’s reassurance that she
did not have to see him again.
{¶26} Father suggests that K.M. had mixed wishes because, during his April 2013 visit
with her, she told Father she wanted to live with him. K.M. later explained that she said that
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only because she did not want to hurt Father’s feelings. After hearing from K.M. directly on
this, the trial court concluded that K.M. did not want to not see Father again or have a
relationship with him.
{¶27} Father has also argued that K.M.’s lack of contact with him contributed to her not
wanting further contact. K.M.’s therapist was asked about the effect of a lack of contact between
Father and K.M. She said that K.M. had not indicated any separation anxiety related to the
removal from her parents. Rather, K.M. associated her parents and brother with a great deal of
trauma. The therapist opined that the lack of contact with them was not the thing that put K.M.
in the condition in which she had found herself, but rather it was the history and presence of
Father as a trigger to her symptoms. The trial judge specifically found this testimony to be
credible.
Custodial history.
{¶28} There is little specific evidence of K.M.’s early custodial history, but there is no
evidence that she resided anywhere other than with one or both of her parents for the first seven
years of her life. In the summer of 2011, K.M. began staying with Mother’s sister, Nicole
Hillenbrandt. K.M. remained there for nine months until the spring of 2012, when Ms.
Hillenbrandt was no longer willing to provide care for K.M. JFS then initiated the present case,
and K.M. was placed in foster care. She resided with one family for eighteen months and moved
into a new foster home in November 2013, two months before the permanent custody hearing.
The child’s need for a legally secure permanent placement.
{¶29} Mother surrendered her parental rights to K.M. The agency sought to reunite
K.M. with Father through implementation of his case plan and by addressing the principle
concerns of criminal history, drug use, and stability. Early on, Father was compliant with
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reporting changes in his contact information and in signing releases. He completed a drug and
alcohol assessment, a psychological evaluation, and obtained employment. The agency sought a
six-month extension of temporary custody in April 2013. JFS even anticipated returning K.M.’s
brother to Father’s care if he continued making progress and secured housing.
{¶30} During the period of the extension, however, Father faltered and even regressed.
Father relapsed into heroin usage, was incarcerated for another criminal offense (theft by
deception), was terminated from his job, and was noncompliant with the recommendations made
after his substance abuse and psychological evaluations. In addition, he failed to obtain stable
housing despite agency efforts to supply him with a security deposit and two month’s advance
rent.
{¶31} During this period, Father stayed with relatives or in hotels and motels. By May
2013, it had become increasingly difficult for JFS to reach Father and he was returning fewer
phone calls. According to a support officer with Medina County Child Support, Father had a
monthly support obligation of $302.50 with an arrearage of $6139.36. He made payments only
from June to September 2013. Father never established a stable home environment, nor did he
demonstrate the ability to provide for K.M.’s needs.
{¶32} Father failed to fully address the substance abuse objective of his case plan. He
was diagnosed while incarcerated as opiate dependent, in remission. Father completed eight
sessions of a Readiness for Change program, but his outpatient therapist testified that Father was
very anxious during class and he constantly required redirecting, often deflecting from topics he
should talk about. Given the stress and changes in his life, his therapist was very concerned that
he would relapse. She, therefore, recommended a relapse prevention program. She explained
that consistency of treatment and regular attendance is important, particularly for people such as
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Father who minimize their risks. Father cancelled or no-showed for many of his appointments in
the relapse prevention program. He also began to delay reporting for drug tests, making the
results inaccurate. The caseworker sought a more revealing hair follicle test, which resulted in
Father admitting that he had relapsed into heroin usage from April 2013 and until his
incarceration in September 2013. Father was discharged from the relapse prevention program
for lack of attendance.
{¶33} Father failed to adequately comply with the recommendations made following his
psychological evaluation in which he was diagnosed with an antisocial personality disorder.
Father’s test scores indicated impulsivity, a lack of remorse for actions, and a failure to take
responsibility for one’s actions. The assessor’s recommendations were to obtain employment,
attend Narcotics Anonymous or AA meetings, and engage in mental health and substance
dependency counseling. Father did obtain employment immediately after his release from prison
in August 2012, but lost his job in July 2013. He was not employed at the time of the permanent
custody hearing. He failed to consistently attend mental health or substance abuse counseling.
Father testified that he had been attending AA meetings during the six weeks since his release
from jail.
{¶34} Caseworker Fike testified that the concerns that brought K.M. into care have not
been resolved by the parents and, in particular, by Father. He testified that K.M. needs a
permanency plan and needs to know what is going to happen to her. He believed that neither
parent was close to being prepared to take care of K.M.
{¶35} K.M.’s therapist stated that trauma to a child is not manageable in the face of a
trigger. The therapist concluded, “As long as her parents are associated with that trauma and
trigger her anxiety and her distress, I can’t see how reunification would be possible.”
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{¶36} In the alternative, Father has argued that the trial court erred in failing to grant
legal custody of K.M. to one of his relatives. Father filed a pre-hearing motion seeking an award
of legal custody to any of three relatives: his sister, Marie Robertson; his mother, Marie Hall; or
Mother’s sister, Nicole Hillenbrandt. See R.C. 2151.353(A)(3). By granting permanent custody,
the trial court, in effect, denied Father’s motion for legal custody. See In re L.M., 10th Dist.
Franklin Nos. 10AP-445 & 10AP-447, 2010-Ohio-5447, ¶ 27. On appeal, Father is limited to
challenging how the trial court’s decision impacted his rights, rather than the rights of third
parties. See In re J.J., 9th Dist. Summit No. 21226, 2002-Ohio-7330, ¶ 36. In other words, he is
limited to challenging whether the trial court’s decision to terminate his parental rights was
proper. Id. Moreover, R.C. 2151.353 “does not require a juvenile court to consider relative
placement before it grants a permanent custody motion. * * * Rather, a juvenile court is vested
with discretion to determine what placement option is in the child’s best interest.” In re J.C., 4th
Dist. Adams No. 07CA834, 2007-Ohio-3783, ¶ 30.
{¶37} The caseworker worked throughout the case to secure relatives to serve as legal
custodians for K.M. Ms. Robertson took herself out of consideration by failing to complete the
home study process and by explaining that she could not provide child care before or after
school.
{¶38} Ms. Hall lives in an apartment building limited to residents who are over the age
of 55. At the permanent custody hearing, she stated that the unit manager of her apartment
building told her that an exception would be made, allowing K.M. to live with her, but she
offered no documentary evidence to support that claim. Even if it is true that K.M. could live
there, an apartment building for people over the age of 55 might be considered as less than an
ideal environment for a young child.
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{¶39} Regarding potential placement with Ms. Hillenbrandt, K.M. resided with her at
the beginning of this case before she was placed in foster care, but was eventually removed at
Ms. Hillenbrandt’s request. Ms. Hillenbrandt offered several reasons for that decision. First,
Ms. Hillenbrandt no longer wanted to split her time between K.M. and her own teen-aged
daughter. Second, she had concerns about summertime child care because her own daughter was
usually cared for by her father’s family during the summer. Third, she had understood the child-
care arrangement to be short-term, with the goal of just getting K.M. through the school year and
then her parents were supposed to step up and be involved. Most importantly, she came to
believe that the arrangement enabled the parents to not make the changes they needed to make.
She felt it was not her responsibility to “fix their mistakes.”
{¶40} At the permanent custody hearing, Ms. Hillenbrandt expressed disappointment
that she had only been able to see K.M. three times since she was removed. She had expected
more contact and did not want K.M. permanently out of her life. She claimed she did a lot of
soul searching and her daughter agreed with the plan to seek legal custody. Significantly, she
believes the parents have finally conquered their drug abuse problems, a matter on which the
evidence is far from clear. The agency expressed concern about returning K.M. to this home due
to Ms. Hillenbrandt’s request for her removal after the earlier placement and a negative
relationship between K.M and her daughter.
{¶41} In sum, Father demonstrated some efforts towards reunification, but his efforts
fell short. The case began and ended with him being incarcerated on criminal charges. Despite
the resources of counseling and substance abuse treatment, he relapsed into heroin usage in the
middle of the case. And despite claims of family support and JFS’s offer of financial help, he
could not establish a stable home, nor could he maintain existing employment. K.M. suffered
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neglect, abuse, and trauma at the hands of those closest to her and she continues to deal with the
consequences of that trauma. She now considers either of her foster families, and not her
biological relatives, as her family and the place where she finds safety and happiness.
{¶42} The trial court determined that placing K.M. in the permanent custody of JFS was
in her best interest. The weight of the evidence clearly and convincingly supports that finding.
Thus, the trial court did not err in refusing to grant legal custody to relatives, in terminating
Father’s parental rights, and in granting permanent custody to JFS. Father’s sole assignment of
error is overruled.
III.
{¶43} Father’s assignment of error is overruled. The judgment of the Medina County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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 Medina, 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.
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Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
JENNIFER A. MOORE, Attorney at Law, for Appellee.
DEREK CEK, Guardian ad litem.