In re M.T. , 2020 Ohio 2950 ( 2020 )

[Cite as In re M.T., 2020-Ohio-2950.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the matter of: [M.T.], :
No. 19AP-344
[C.L., : (C.P.C. No. 16JU-14266)
Appellant]. : (REGULAR CALENDAR)
In the matter of: [C.T.] et al., :
No. 19AP-345
[C.L., : (C.P.C. No. 16JU-14267)
Appellant]. : (REGULAR CALENDAR)
D E C I S I O N
Rendered on May 14, 2020
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
On brief: James Sweeney Law, LLC, and James S. Sweeney,
for appellant.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations and Juvenile Branch
LUPER SCHUSTER, J.
{¶ 1} Appellant, C.L., mother of M.T., C.T., A.T., and L.T.J. ("mother"), appeals
from the judgment of the Franklin County Court of Common Pleas, Division of Domestic
Relations and Juvenile Branch, terminating her parental rights and placing these children
in the permanent custody of appellee, Franklin County Children Services ("FCCS"). For the
following reasons, we affirm.
Nos. 19AP-344 and 19AP-345 2
I. Facts and Procedural History
{¶ 2} In October 2017, FCCS moved for permanent custody of M.T., C.T., A.T., and
L.T.J. In June 2018, FCCS again moved for permanent custody of these children. FCCS's
request for permanent custody was heard before the trial court in April 2019.1
{¶ 3} To begin the permanent custody hearing, the trial court conducted an in
camera interview with each child. Fifteen-year-old M.T. stated that she did not want to
return home to her parents; instead, she wanted to stay with her foster mother and be
adopted by her. M.T. indicated that she gets along fine with her siblings and expressed her
wish to stay with them. Eleven-year-old C.T. stated that he wanted to remain with his foster
mother, even though he had previously indicated a desire to go back to his parents. A "gut
feeling" caused C.T. to change his mind, and he also stated that he wanted to stay with his
siblings. (Apr. 19, 2019 Tr. at 30, filed Sept. 12, 2019.) Ten-year-old A.T. stated she wanted
to stay with her "mom and dad" and with her siblings. (Tr. at 41.) She also indicated she
liked being in her foster home. Finally, six-year-old L.T.J. indicated to the trial court that
he would like to live with his mom and dad, but that he would prefer to stay with his foster
mother. And like the other children, L.T.J. expressed a desire to live with his siblings.
{¶ 4} Mother testified as follows. FCCS removed mother's four children from her
care in November 2016, but she was not sure of the reason for the removal. This was not
the first time the three older children were removed from mother's home. FCCS removed
these three children from mother's home in 2009, and they were returned to her in 2011.
At that time, mother completed domestic violence and mental health counseling. Mother's
2016 case plan required her to drop urine screens, complete alcohol and other drug
("AOD") classes, complete domestic violence classes, maintain housing, and visit her
children. In January 2017, mother completed an AOD assessment, which recommended
she undergo outpatient treatment. Mother began this treatment but stopped going because
she was frustrated with not being able to visit her children more often. She completed
additional AOD assessments in February and August 2018 and began the recommended
outpatient treatment. But as of the trial date, mother had not completed that treatment.
1 Before the start of trial, FCCS withdrew its October 2017 permanent custody motion, and the matter
therefore proceeded on FCCS's June 2018 permanent custody motion.
Nos. 19AP-344 and 19AP-345 3
Mother also acknowledged at trial that she missed most of the required random drug
screens. Mother denied having an alcohol problem.
{¶ 5} Mother further testified that she was the victim of domestic violence
perpetrated by L.T., the father of her children and with whom she had been with for almost
19 years ("father"),2 as well as by her mother and her cousin. As a result of domestic
violence charges against father in January 2018, he was ordered to stay away from her. This
order was still in effect as of the time of trial. As to the domestic violence component of
mother's case plan, she completed a domestic violence assessment a few weeks before the
start of the trial. The assessor recommended that mother complete a 26-week domestic
violence program. At the time of trial, mother had not completed the domestic violence
component of the FCCS case plan.
{¶ 6} Father testified as follows. The case plan required father to complete
domestic violence and AOD assessments and to complete random drug screens. Father
acknowledged he had not completed most of his random drug screens, a domestic violence
assessment, or his recommended drug treatment. In January 2018, father was convicted
of committing aggravated menacing and domestic violence threats against mother,
resulting in the stay-away order. Despite the stay-away order, father and mother continued
to reside together. In May 2018, father was convicted of OVI, with a blood alcohol
concentration of .195. At trial, father denied having an alcohol problem.
{¶ 7} FCCS caseworker Martia Reed testified that M.T., C.T., A.T., and L.T.J., have
been in FCCS's custody since they were removed from their parents' care in November 2016
because of concerns regarding domestic violence and alcohol use. Since their removal, the
children have been in multiple foster placements, and they have been diagnosed with post-
traumatic stress disorder due to the domestic violence and alcohol use in their parents'
home. As part of the case plan, mother and father were, among other things, required to
complete AOD and domestic violence assessments and follow through with the resulting
recommendations, and to complete clean random drug screens. Mother did not complete
the recommendations resulting from the AOD and domestic violence assessments. As to
2L.T. signed affidavits acknowledging his paternity as to each of the four children. At the permanent
custody hearing, B.W. was named as a possible biological father of C.T. Despite being served with notice,
B.W. did not appear at the hearing.
Nos. 19AP-344 and 19AP-345 4
the drug screens, mother completed only 30 out of the required 349, and almost every
screen she did complete tested positive for alcohol. One tested positive for marijuana. Like
mother, father did not complete the case plan requirements relating to drug screening and
AOD and domestic violence treatment.
{¶ 8} Reed also testified that the children are bonded with their parents, each
other, and the current foster parents. However, Reed expressed her concern about the
children returning to live with their parents because the alcohol issues remained
unresolved, and the domestic violence problems continued between the parents.
{¶ 9} Victoria Ullmann, the guardian ad litem for the children, testified that she
observed appropriate interactions between the children and their parents, and she had
positive interactions with the parents. But she remained concerned because of the parents'
"Jekyll-and-Hyde" behavior that results from their drinking. (Tr. at 97.) She testified that
the wishes of the children were also important in her custody recommendation analysis.
She testified that M.T. has been the most consistent in expressing a desire not to return
home to her parents. C.T. indicated to Ullman that he wanted his parents to take the
necessary steps for reunification, but ultimately he expressed a desire to stay with the foster
parents. A.T. had expressed her desire to stay with the foster parents but also indicated she
wanted to return to her parents. As to the youngest child, L.T.J., Ullmann did not believe
he was old enough to express an opinion regarding his placement. Based on her assessment
of what is in the best interest of the children, Ullmann recommended that the trial court
grant FCCS's request for permanent custody.
{¶ 10} Following trial, the court issued a written decision granting FCCS's request
for permanent custody of M.T., C.T., A.T., and L.T.J. The trial court considered each of the
factors in R.C. 2151.414(D) and determined there was clear and convincing evidence that it
was in the best interest of these children to grant the request. Mother timely appeals.
II. Assignment of Error
{¶ 11} Mother assigns the following error for our review:
The trial court's finding that FCCS's motion for permanent
custody was supported by clear and convincing evidence was
against the manifest weight of the evidence.
Nos. 19AP-344 and 19AP-345 5
III. Standard of Review
{¶ 12} "In reviewing a judgment granting permanent custody to FCCS, an appellate
court 'must make every reasonable presumption in favor of the judgment and the trial
court's findings of facts.' " In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8,
quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. " '[I]f the evidence is
susceptible of more than one construction, we must give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court's
verdict and judgment.' " In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59,
quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988). "Judgments are not against the
manifest weight of the evidence when all material elements are supported by competent,
credible evidence." J.T. at ¶ 8.
IV. Discussion
{¶ 13} In mother's sole assignment of error, she asserts the trial court's decision to
grant permanent custody of M.T., C.T., A.T., and L.T.J. to FCCS was against the manifest
weight of the evidence. Mother generally contends the granting of permanent custody was
not in the children's best interest. This assignment of error lacks merit.
{¶ 14} "Parents have a constitutionally-protected fundamental interest in the care,
custody, and management of their children." In re H.D., 10th Dist. No. 13AP-707, 2014-
Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of
Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re
Murray, 52 Ohio St.3d 155, 157 (1990). However, these rights are not absolute, and a
parent's natural rights are subject to the ultimate welfare of the child. In re Cunningham,
59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the state may terminate
the parental rights of natural parents when such termination is in the best interest of the
child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing
In re Harmon, 4th Dist. No. 00 CA 2694, 2000 Ohio App. LEXIS 4550 (Sept. 25, 2000);
In re Wise, 96 Ohio App.3d 619, 624 (9th Dist.1994).
{¶ 15} In deciding to award permanent custody, the trial court must take a two-step
approach. In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 18. The court must first
determine if any of the factors set forth in R.C. 2151.414(B)(1) apply. Id. The fourth factor
described in R.C. 2151.414(B)(1) is that "[t]he child has been in the temporary custody of
Nos. 19AP-344 and 19AP-345 6
one or more public children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period." R.C. 2151.414(B)(1)(d). Here,
there is no dispute that M.T., C.T., A.T., and L.T.J. were in the temporary custody of FCCS
for 12 or more months of a consecutive 22-month period. Thus, the statutory factor in R.C.
2151.414(B)(1)(d) was established.
{¶ 16} Once the trial court determines that one of the circumstances in R.C.
2151.414(B)(1) applies, it must then determine whether "clear and convincing" evidence
demonstrates that a grant of permanent custody is in the child's best interest. In re A.J.,
10th Dist. No. 13AP-864, 2014-Ohio-2734, ¶ 16; R.C. 2151.414(B)(1). "Clear and convincing
evidence is that degree of proof that will produce in the mind of the trier of fact a firm belief
or conviction as to the facts to be established." K.L. at ¶ 14. "It is more than a mere
preponderance of the evidence but does not require proof beyond a reasonable doubt." Id.{¶ 17} In determining the best interest of a child, R.C. 2151.414(D)(1) requires the
trial court to consider all relevant factors including, but not 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, or 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 and, as described in [R.C.
2151.413(D)(1)], 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;
Nos. 19AP-344 and 19AP-345 7
(e) Whether any of the factors in [R.C. 2151.414(E)(7) to (11)]
apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a) through (e). R.C. 2151.414(D) does not give any one factor "greater
weight than the others." In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.
{¶ 18} The evidence at trial supported the trial court's determination that granting
permanent custody to FCCS was in each child's best interest. Under R.C. 2151.414(D)(1)(a),
in making its best interest determination, the trial court must consider the interactions and
relationships between the child and the individuals in the child's life, including the child's
parents, siblings, relatives, and "any other person who may significantly affect the child."
{¶ 19} Here, the evidence demonstrated a strong bond between the parents and
each of their children. And the children have a strong bond to each other. During the
parents' separate visits with the children at FCCS, each parent interacted appropriately with
the children and mutual bonding was observed. While neither parent appeared intoxicated
at visits, the matter did not progress to home visits. There was also evidence that the
children were repeatedly moved from one foster home to another due to various problems;
however, the evidence also indicated that the foster home at the time of trial was a stable
and loving environment. Even though the children began residing in that home only a few
weeks before the trial, the present foster mother previously had been a respite provider for
the children. The evidence demonstrated that the children are well-cared for and loved in
the current foster placement, and the children have expressed an especially strong affinity
toward their new foster mother.
{¶ 20} R.C. 2151.414(D)(1)(b) required the trial court to consider the wishes of each
child, expressed either directly by the child or through the child's guardian ad litem. Before
hearing testimony from witnesses, the trial court conducted an in camera interview with
each of the four children. Each child expressed a desire to stay together as siblings. Fifteen-
year-old M.T. indicated that she wanted to be adopted by her foster mother and not to
return home to her parents. Eleven-year-old C.T. changed his mind as to returning to live
with his parents and expressed to the trial court his wish to remain with his current foster
mother. Ten-year-old A.T. was more equivocal, stating both that she wanted to live with
her parents and that she liked staying in her foster home. Similarly, six-year-old L.T.J.
indicated to the trial court that he would like to live with his mom and dad but that he would
Nos. 19AP-344 and 19AP-345 8
prefer to stay with his foster mother. However, based on L.T.J.'s age and his limited ability
to verbally communicate with the trial court, the trial court reasonably found that he was
too young and immature to understand the concepts of permanency and adoption. The
guardian ad litem recommended the trial court grant FCCS's request for permanent custody
of all four children.
{¶ 21} R.C. 2151.414(D)(1)(c) required the trial court to consider the custodial
history of the children. For the purpose of this division, the children entered the temporary
custody of FCCS in January 2017, and they had been in the continuous custody of FCCS
since that time. See R.C. 2151.414(D) ("For the purposes of division (D)(1) of this section,
a child shall be considered to have entered the temporary custody of an agency on the earlier
of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the
date that is sixty days after the removal of the child from home.").
{¶ 22} R.C. 2151.414(D)(1)(d) addresses the children's need for legally secure
permanent placement and required the trial court to consider whether this can be achieved
without a grant of permanent custody to the agency. In re D.P., 10th Dist. No. 06AP-780,
2007-Ohio-1703, ¶ 16. Here, the trial court concluded that a legally secure permanent
placement could not be achieved without a grant of permanent custody to FCCS. The
evidence supported this conclusion.
{¶ 23} As discussed above, the evidence demonstrated that, during the children's
temporary custody with FCCS for the prior two years, they had multiple poor foster family
experiences, causing them to be repeatedly moved. Only a few weeks before the trial, the
children had been placed together in a stable, loving foster home. The trial court noted how
the children suffered from this instability and reasonably found that the children were in
great need of a legally secure placement.
{¶ 24} The evidence also supported the trial court's finding that the children should
not be returned to mother or father. The primary reason for the children's removal from
their parents' home was the abuse of alcohol and associated domestic violence problems.
Consequently, the case plan required the parents to take the appropriate and necessary
steps to eliminate these issues. These requirements included the parents undergoing
assessments and following through with the treatment recommendations. But neither
parent complied with these components of the case plan. Both parents completed AOD
Nos. 19AP-344 and 19AP-345 9
assessments, but neither completed all the recommended classes. And even though both
parents were also required to undergo random drug screens, they only completed a fraction
of the requested screens. In almost every screen they did complete, they tested positive for
alcohol. Additionally, father was convicted of an OVI offense in March 2018. Despite all of
this, both parents continued to deny having alcohol problems.
{¶ 25} As to the domestic violence issue, the evidence showed that neither parent
completed the domestic violence component of the case plan. Mother delayed the
completion of her domestic violence assessment until a few weeks before the start of trial,
and thus she did not complete the 26-week program that was recommended as part of that
assessment. Father did not compete a domestic violence assessment. Thus, both parents
failed to complete the domestic violence component of the case plan. Additionally, in
connection with the domestic violence assessment in April 2019, mother reported that her
partner was "emotionally, physically, and sexually abusive." (Ex. 9, attached to Apr. 18,
2019 Tr., filed Sept. 12, 2019.) Further evidence indicated that, in November 2017, the
FCCS caseworker noticed mother had a black eye, and mother identified father as having
caused this injury to her. In January 2018, father was convicted of committing domestic
violence crimes against mother, and he was ordered to stay away from mother. Despite the
stay-away order, the two continued to live together. Simply stated, the alcohol and
domestic violence issues were unresolved and continued.
{¶ 26} Therefore, evidence in the record supported the trial court's finding that a
legally secure permanent placement could not be achieved for the children without an order
of permanent custody to FCCS.
{¶ 27} Lastly, under R.C. 2151.414(D)(1)(e), the court was required to consider any
applicable factors set forth in R.C. 2151.414(E)(7) through (11), which include (1) whether
the parent has been convicted of or pled guilty to certain crimes; (2) whether the parent
withheld medical treatment or food from the child; (3) whether the parent has placed the
child at a substantial risk of harm due to alcohol or drugs; (4) whether the parent has
abandoned the child; and (5) whether the parent has had parental rights terminated with
respect to a sibling of the child. Here, the trial court found that no evidence was offered
pertinent to the factors listed in this provision, except that the alleged biological father of
Nos. 19AP-344 and 19AP-345 10
C.T., B.W., had abandoned this child. Mother does not challenge the trial court's finding as
to this division.
{¶ 28} In sum, we find the trial court thoroughly reviewed and weighed the evidence
in relation to all factors relevant to determining whether granting permanent custody to
FCCS was in the best interest of M.T., C.T., A.T., and L.T.J. And we further find that
competent, credible evidence supported the trial court's conclusion that granting
permanent custody to FCCS was in each child's best interest. Because the trial court's
decision to grant permanent custody was not against the manifest weight of the evidence,
we overrule mother's sole assignment of error.
V. Disposition
{¶ 29} Having overruled mother's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas, Division of Domestic Relations and
Juvenile Branch.
Judgment affirmed.
BRUNNER and NELSON, JJ., concur.