In re H.B. ( 2020 )

[Cite as In re H.B., 2020-Ohio-4323.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
IN THE MATTER OF H.B. : Case No. 20CA3708
ALLEGED DEPENDENT CHILD : DECISION AND
JUDGMENT ENTRY
RELEASED 8/26/2020
______________________________________________________________________
APPEARANCES:
Chase C. Rutherford, Chillicothe, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Jennifer L. Ater, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} T.B. (“Mother”) appeals from a judgment of the Ross County Common
Pleas Court, Juvenile Division, that awarded permanent custody of her child to South
Central Ohio Job & Family Services, Children’s Division (the “Agency”). Mother
contends that the trial court erred when it found the grant of permanent custody was in
the best interest of the child. However, after weighing the evidence and all reasonable
inferences, considering the credibility of the witnesses after according the requisite
deference to the trial court’s determinations, we conclude that in resolving evidentiary
conflicts, the court did not clearly lose its way or create a manifest miscarriage of justice
so that we must reverse its permanent custody award. We overrule Mother’s
assignment of error and affirm the trial court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} Mother and J.C. (“Father”), who died during the pendency of these
proceedings, are the biological parents of H.B. On August 16, 2017, an Agency
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caseworker filed a complaint asserting that H.B., then age seven, appeared to be a
dependent child based on information that, among other things, Mother and the child did
not have a stable address, the parents used drugs, the family had been in a hotel room
“full of syringes” where police arrested Father on an active warrant, and the child had
not been enrolled in school. The complaint requested a disposition of temporary
custody to the Agency. The Agency obtained temporary emergency custody of the
child, and after a shelter care hearing, the magistrate ordered that the child remain in
the Agency’s temporary custody until further order.
{¶3} The court adjudicated the child a dependent child, and after a dispositional
hearing, the child remained in the temporary custody of the Agency until June 7, 2019,
when the magistrate granted the Agency’s motion to return custody to Mother with
court-ordered protective services so that the Agency could monitor the child while in her
home.1 The basis for the motion was that Mother had completed all of her case plan
services, had a full-time job, had her own home, had consistently visited the child, and
had unsupervised weekend or overnight visits for five months with no issues. On July
16, 2019, the Agency moved for an emergency return of temporary custody to it alleging
that Mother had admitted to a heroin relapse, that the child had been placed on a safety
plan with his former foster parent, and that Mother had completed a drug screen that
was positive for benzodiazepine and fentanyl. The magistrate granted the motion and
returned temporary custody to the Agency. A month later, the Agency moved for
1 The February 6, 2018 dispositional order appears to contain a misstatement. Despite finding that the
“continued residence of the child in or return to the home would be contrary to the child’s best interest and
welfare,” the court ordered that the child “remain in the temporary custody of mother.” However, the child
was in the Agency’s temporary custody at that time, and the record reflects that after the court issued the
dispositional order, the child remained in the temporary custody of the Agency except from June 7, 2019,
through July 16, 2019.
Ross App. No. 20CA3708 3
permanent custody under R.C. 2151.413. The child’s guardian ad litem reported that
the child was very happy in his foster home and preferred to stay there, and the
guardian ad litem recommended that the court grant the Agency’s motion.
{¶4} During the hearing on the motion, Elizabeth Ratcliff, a placement
supervisor at the Agency, testified that from August 2017 until late 2018, she was an
ongoing caseworker assigned to the child’s case, and she later monitored the case as a
supervisor. Ratcliff developed a case plan that required that Mother obtain safe and
stable housing, complete parenting classes, complete drug treatment at The Breaking
Point, complete an alcohol and other drug assessment, follow through with any
recommendations, and maintain regular contact with the Agency and child. Mother did
not complete treatment at The Breaking Point. Mother later completed a week-long
detox and was supposed to go to Georgia Harris House but did not, reporting that the
child was in the hospital. The foster mother reported that the child was in school.
Ratcliff testified that Mother completed a treatment program through St. Lucy’s around
May 2018. However, she later relapsed and went to a homeless shelter, Seeds of
Hope. She did well there and submitted to drug screens, which were negative. Ratcliff
testified that Mother and the child were bonded and that she believed the child loved
Mother. Ratcliff explored relative placements for the child without success. Ratcliff
testified that the child had done “very well” in Agency custody. Even though he had
never been to school and had to start in kindergarten when he should have been in
second grade based on his age, “he excelled quickly.”
{¶5} Jessica Benner, an ongoing case worker at the Agency, testified that after
the Agency got temporary custody of the child in August 2017, he was placed in a foster
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home with Cynthia Walker. On June 7, 2019, the child was returned to Mother’s
custody, but on July 10, 2019, the child was placed with Walker under a safety plan
because Mother admitted that she had a heroin relapse and might test positive for
drugs. Mother testified positive for benzodiazepine and fentanyl. The child was returned
to the temporary custody of the Agency on July 16, 2019, and remained with Walker.
Mother had supervised visitation one hour a week, which was gradually increased to
unsupervised 12-hour visits. However, Benner testified that visitation was curtailed in
December 2019 because Mother was arrested while with the child, and his foster
mother found videos of the child driving, some of which contained Mother’s voice.
Benner testified that the child was bonded with Mother, but after the arrest, he seemed
angry and cried often, and the Agency had increased his counseling and therapy.
{¶6} Benner testified that Mother had maintained regular contact with her but
did not complete parenting classes or maintain stable housing. Benner testified that she
was concerned about Mother’s ability to maintain sobriety. The only drug treatment
program Benner had proof that Mother completed was the program at St. Lucy’s.
Benner testified that after Mother left Seeds of Hope, she began treatment at
BrightView, where her drug screens were consistently positive. BrightView’s records
reflect that Mother was discharged at her request against medical advice. Benner
testified that Mother also went to the Southern Ohio Medical Center for a day but left
against medical advice. Mother reported going to the Chillicothe Treatment Center
beginning July 2019, but Benner never received records from that facility. As a result,
Benner connected Mother with American Court Services for drug testing, but Mother
quit testing there in December 2019. Benner tried to perform saliva drug screens on
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Mother in January and February 2020, but Mother claimed she could not produce
enough saliva for the tests. Benner had concerns about Mother’s ability to provide for
the child because she had had four or five jobs since June 2019, and the Agency had
previously given her assistance with housing and utility bills. Benner testified that the
child was doing well in school, had bonded with his foster mother, and was a candidate
for adoptive placement with her.
{¶7} Cynthia Walker testified that she has been the child’s foster mother since
his removal with the exception of the period when Mother regained custody. Walker
testified that on December 14, 2019, Mother was arrested while with the child, and
Walker picked him up from the police station. Later, Walker found videos on the child’s
cell phone of him driving a car, and Walker heard Mother’s voice on them. Walker
testified that the child was bonded with Mother and loves her but had been “a little bit
more standoffish” toward her since the arrest. When Walker became the child’s foster
mother, he did not know his ABCs and could not count to 10. However, he is now a
straight “A” student and an “awesome reader,” and he participates in the Success After
School program and wrestling. Walker testified that the child has bonded with her and
that if the Agency received permanent custody, she was willing to adopt him.
{¶8} Officer Cody Moore with the Chillicothe Police Department testified that on
December 14, 2019, he investigated a report of a female shoplifter fleeing from a
Walmart in a green sedan. Mother was the driver of the vehicle, and the child was a
passenger. Mother admitted that she was previously barred from entering the Walmart
and was arrested and charged with theft, criminal trespass, and driving under
Ross App. No. 20CA3708 6
suspension. The charges were still pending on the last day of the permanent custody
hearing.
{¶9} Mandy Tripp testified that she is an operation specialist at American Court
Services, which performs drug testing services for the Agency using a random call in
system. Participants must call each day during a specific time window, and the system
randomly determines whether they must come in for testing that day. Mother signed up
for this service in October 2019. As of February 21, 2020, Mother had made 58.82% of
the required calls and completed 62.5% of her scheduled tests. All 20 of her completed
tests were positive. From September 3, 2019, to December 13, 2019, the only
substance Mother tested positive for was methadone, and some notes from American
Court Services indicate she had a prescription for it. Mother did not complete any tests
after December 13, 2019.
{¶10} Mother testified that prior to the child’s removal, he participated in six
months of kindergarten online, and she and the child lived with a friend of hers but
stayed with Father at the Chillicothe Inn every other weekend. After the child’s removal,
Mother stayed with her mother for about three months. Then she lived at a treatment
facility, St. Lucy’s, for five months. St. Lucy’s helped her get an apartment, which she
had for about four months. Mother next spent a month and a half at Seeds of Hope.
She then lived in rental housing for over a year but quit working so that she “could stay
focused on trying to get [the child] back home” and was evicted. She obtained new
housing in Chillicothe 18 days before the final hearing date. However, due to an
electrical problem, she stayed with an aunt in Greenfield for about two weeks, and the
new housing only became appropriate for the child two days before the final hearing
Ross App. No. 20CA3708 7
date. Mother testified that she was not employed and did not have a valid driver’s
license but planned to work on getting driving privileges. Mother acknowledged her
prior drug use but testified that she was in treatment at the Chillicothe Treatment
Center, was taking prescription methadone, and had been sober for about seven
months. Mother admitted that she has four other minor children who are not in her
custody but testified that she and the child were “pretty close” even though he was
upset with her because of her arrest and that the child should be with her. Mother
claimed she had no knowledge of the videos of the child driving. She did admit that
there were inappropriate pictures of her on the child’s phone because her email account
was synced to the phone.
{¶11} The trial court granted the permanent custody motion. The court found
that Mother and the child loved each other and were bonded but that the child did not
have a relationship with his four siblings, who had been removed from Mother’s custody
or care. The court found that the child had a “strong bond” with his foster mother and
that according to the guardian ad litem, the child wanted to stay with her. In addition,
the court found that Mother failed to complete all portions of her case plan; specifically,
she did not maintain sobriety or stable housing. The court noted that she had been “in
and out” of facilities, was “recently evicted” from a residence, had moved to an
”unknown location” in Greenfield, and had “just recently moved” to another location she
testified had become “a suitable residence just less than a week ago.” The court found
that Mother sought drug treatment with at least seven providers and “relapsed several
times” while the case was pending. She tested positive for illegal drugs after the child
was returned to her custody and failed to substantiate her testimony about her current
Ross App. No. 20CA3708 8
participation in a methadone program. The court also found that before the complaint
was filed, the child had not been enrolled in school and “was at least two years behind
educationally.” The court found that he “is now enrolled in school and is doing very
well[.]” The court noted Mother’s arrest during unsupervised time with the child, the
videos of the child driving and testimony identifying Mother’s voice on the videos, and
Mother’s admission that there were pictures of her on the child’s phone “in various
stages of undress.” The court found that the child needed permanency that could not
be achieved without a grant of permanent custody to the Agency and that it was in the
child’s best interest to grant the Agency’s motion.
II. ASSIGNMENT OF ERROR
{¶12} Mother presents one assignment of error: “THE TRIAL COURT ERRED
IN FINDING THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE
MINOR CHILD.”
III. LAW AND ANALYSIS
{¶13} In her sole assignment of error, Mother contends that the trial court’s
determination that a grant of permanent custody to the Agency was in the best interest
of the child was against the manifest weight of the evidence. Mother asserts that in
evaluating the interactions and interrelationships of the child with others, the trial court
erred in balancing her “lifelong relationship” with the child against his “new authority
figure relationship” with his foster mother. Mother also asserts that the trial court erred
when it found that the child’s need for permanency could not be achieved without a
grant of permanent custody to the Agency. Mother maintains that the evidence showed
that she “made significant improvements” since the Agency filed its complaint. She
Ross App. No. 20CA3708 9
attended parenting classes, started a drug treatment program, made efforts to stay in
contact with the Agency, and had unsupervised 12-hour visits with the child. Mother
notes that “just two months prior to filing for permanent custody,” the Agency moved the
court to return custody to her based on completion of the case plan. Mother asserts
that she “[c]learly * * * was capable of providing secure placement” or the court would
not have granted the motion. Mother maintains that even though her “efforts were not
always perfect,” it is in the best interest of the child to give her “more time to complete
her case plan.”
{¶14} We have previously explained:
A reviewing court will not reverse a trial court’s judgment in a
permanent custody case unless it is against the manifest weight of the
evidence. See In re T.J., 4th Dist. Highland Nos. 15CA15 and 15CA16,
2016-Ohio-163, ¶ 25. “To determine whether a permanent custody
decision is against the manifest weight of the evidence, an appellate court
must weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving evidentiary
conflicts, the trial court clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial
ordered.” Id. at ¶ 25, citing Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 20. In reviewing evidence under this
standard, we defer to the trial court’s determinations of matters of
credibility, which are crucial in these cases, where demeanor and attitude
are not reflected well by the written record. Eastley at ¶ 21; Davis v.
Flickinger, 77 Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997).
In a permanent custody case the dispositive issue on appeal is
“whether the * * * court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St. 3d 538, 2008-Ohio-4825,
895 N.E.2d 809, ¶ 43; R.C. 2151.414(B)(1). “Clear and convincing
evidence” is “that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as
is required ‘beyond a reasonable doubt’ in criminal cases and which will
produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus; State ex rel.
Pietrangelo v. Avon Lake, 149 Ohio St. 3d 273, 2016-Ohio-5725, 74
N.E.3d 419, ¶ 14. “[I]f the children services agency presented competent
Ross App. No. 20CA3708 10
and credible evidence upon which the trier of fact reasonably could have
formed a firm belief that permanent custody is warranted, then the court’s
decision is not against the manifest weight of the evidence.” In re R.M.,
2013-Ohio-3588, 997 N.E.2d 169, ¶ 55 (4th Dist.).
In re C.S., 4th Dist. Pike No. 19CA899, 2019-Ohio-5109, ¶ 21-22.
{¶15} R.C. 2151.414(B)(1)(d) provides that a court may grant permanent
custody to a children services agency if it determines at a hearing pursuant to R.C.
2151.414(A), by clear and convincing evidence, that “[t]he child has been in the
temporary custody of one or more public children services agencies * * * for twelve or
more months of a consecutive twenty-two-month period” and “that it is in the best
interest of the child to grant permanent custody of the child to the agency that filed the
motion for permanent custody.”
{¶16} Mother does not dispute that the Agency satisfied the time requirement
but challenges the best interest determination. R.C. 2151.414(D)(1) states:
In determining the best interest of a child * * * the court shall 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
* * * for twelve or more months of a consecutive twenty-two-month period *
* *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
Ross App. No. 20CA3708 11
No one factor has “greater weight or heightened significance.” In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57. “Instead, the trial court considers the
totality of the circumstances when making its best interest determination.” In re Z.M.,
4th Dist. Scioto No. 18CA3856, 2019-Ohio-2564, ¶ 24.
A. Interactions and Interrelationships of the Child
{¶17} The record contains evidence that the child is bonded with and loves
Mother even though he has been upset with her because of the arrest. There is no
evidence the child has a relationship with his four siblings, who are not in Mother’s
custody. Although Mother suggests that it was error for the trial court to balance her
relationship with the child against Walker’s shorter relationship with him, R.C.
2151.414(D)(1)(a) required that the court consider the child’s relationship with his foster
caregiver, and there is evidence to support the court’s finding that the child is bonded
with Walker, who has provided him with the stability that Mother has not provided.
B. Wishes of the Child
{¶18} The child’s wish, as expressed through his guardian ad litem, is to remain
in his foster home.
C. Custodial History
{¶19} The child was in Mother’s custody prior to August 2017. Since then, he
has been in the temporary custody of the Agency with the exception of the period from
June 7, 2019, to July 16, 2019, when he was returned to Mother with court-ordered
protective services. Therefore, at the time of the permanent custody hearing, the child
had been in the temporary custody of the Agency for twelve or more months of a
consecutive twenty-two-month period.
Ross App. No. 20CA3708 12
D. Legally Secure Permanent Placement
{¶20} We have generally interpreted the phrase “legally secure permanent
placement” to “mean a safe, stable, consistent environment where a child’s needs will
be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56. “A legally
secure permanent placement is more than a house with four walls. Rather, it generally
encompasses a stable environment where a child will live in safety with one or more
dependable adults who will provide for the child’s needs.” Id.
{¶21} The evidence supports a finding that the child’s need for a legally secure
permanent placement cannot be achieved without a grant of permanent custody to the
Agency. Mother has not maintained stable housing, stable employment, or sobriety
during these proceedings. Although Mother emphasizes her success in regaining
custody in June 2019, that success was short-lived due to her substance abuse
problem. Mother also emphasizes that she has had unsupervised, 12-hour visits with
the child, but her visitation was curtailed following her arrest while with the child and the
discovery of videos of the child driving, evidently with her approval. There are no
suitable relative placements for the child. However, there is evidence that he has done
well in foster care, excelling in school despite being behind in his education, and there is
evidence that he is bonded with his foster mother, who is willing to adopt him if the
Agency has permanent custody. The trial court could have determined that giving the
child the permanency and stability that he needs, rather than continuing to hold him in
custodial limbo while Mother attempts to remain drug-free and comply with other
portions of her case plan would better serve the best interest of the child. “[T]he
permanent custody statutes do not contemplate leaving children in custodial limbo for
Ross App. No. 20CA3708 13
an extended period of time while a parent attempts to establish that the parent can
provide the child with a legally secure permanent placement.” In re Z.M., 4th Dist.
Scioto No. 18CA3856, 2019-Ohio-2564, ¶ 34. “[K]eeping children in limbo is not in their
best interests.” Id., citing In re B.C., 141 Ohio St. 3d 55, 2014-Ohio-4558, 21 N.E.3d
308, ¶ 20.
E. Factors in R.C. 2151.414(E)(7) to (E)(11)
{¶22} The trial court did not find that any of the factors in R.C. 2151.414(E)(7) to
(E)(11) applied.
F. Totality of the Circumstances
{¶23} Based on the foregoing, we conclude that the decision to grant the Agency
permanent custody was not against the manifest weight of the evidence. The Agency
presented competent and credible evidence upon which the trial court reasonably could
have formed a firm belief that a grant of permanent custody to the Agency was in the
best interest of the child. We overrule the sole assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
Ross App. No. 20CA3708 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court, Juvenile Division to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.