In re B.P. , 2020 Ohio 3734 ( 2020 )

[Cite as In re B.P., 2020-Ohio-3734.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
IN RE B.P. : Hon. Craig R. Baldwin, J.
:
: Case No. 2000 CA 00031
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. F2017-0038
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 15, 2020
APPEARANCES:
For Child-Appellant: For LCJFS-Appellee:
NATHANIEL H. HURST WILLIAM C. HAYES
36 North Second Street LICKING COUNTY PROSECUTOR
P.O. Box 919
Newark, OH 43058 PAULA M. SAWYERS
20 South Second Street, 4th Floor
Newark, OH 43055
Licking County, Case No. 2000 CA 00031 2
Delaney, J.
{¶1} Child-Appellant B.P. appeals the April 16, 2020 judgment entry of the
Licking Country Court of Common Pleas, Juvenile Division, which terminated the parental
rights, privileges, and responsibilities of Mother and Father with respect to their minor
children and granted permanent custody of the children to Appellee, Licking County Job
and Family Services, Children Services Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Mother and Father are the biological parents of P.P. (born on July 25, 2016),
A.P. (born on October 18, 2014), and B.P. (born on September 30, 2013). Mother and
Father were married in October 2012 and divorced June 24, 2019.
{¶3} In January 2017, Appellee Licking County Job and Family Services,
Children Services Division (“LCJFS”) became involved with the family based on non-
accidental injuries suffered by A.P. At the time of A.P.’s injuries, Mother and Father were
married but separated. Father had an inconsistent relationship with the children. Mother
was residing with her boyfriend and the children. It was determined that Mother’s
boyfriend injured A.P., causing bruising to his eye, ear, and groin area. Mother and her
boyfriend were charged with child endangerment.
{¶4} On January 26, 2017, an Emergency Ex Parte Order of Removal was
issued authorizing the three children to be taken into custody pursuant to R.C.
2151.31(A)(3). On January 27, 2017, LCJFS filed complaints alleging B.P. and P.P. were
dependent children and A.P. was an abused and/or dependent child. On March 24, 2017,
at an uncontested adjudicatory and dispositional hearing, the children were adjudicated
dependent and/or abused children. By agreement of all the parties and Guardian ad
Licking County, Case No. 2000 CA 00031 3
Litem, the children were placed in the temporary custody of LCJFS and the case plan
documents were approved for Mother and Father. The children were placed together in
a foster family home.
{¶5} On February 6, 2017, Mary Ellen Greenwaldt was assigned to work with the
family as the Ongoing Social Worker. Greenwaldt developed Mother and Father’s case
plans, designed to assist the family with reunification. The case plans included the
following objectives: completing a substance abuse assessment and mental health
evaluation and follow all recommendations there from; complete random drug screens;
establish stable housing and obtain employment sufficient to meet the basic needs of the
children; complete a parenting education course and demonstrate the ability to protect
the children and utilize appropriate parenting techniques. Additional objectives were
identified for Mother including her ability to identify and protect against the risks of
domestic violence and her compliance with probationary terms.
{¶6} At the time of the children’s placement in the custody of LCJFS, Father was
residing with his mother. Greenwaldt recommended Mother and Father engage in marital
counseling if they decided to pursue their relationship. They reconciled shortly in January
2017, but Mother moved in with her sister in February 2017. By March 2017, Mother and
Father were residing together. Mother and Father started marital counseling on April 7,
2017.
{¶7} Father struggled with managing his mental health issues. Father has a
diagnosis of major depressive disorder, severe amphetamine-type substance stimulant
use disorder, moderate alcohol use disorder, and severe tobacco use disorder. In January
2017, Father received inpatient treatment after a suicide attempt that B.P. witnessed. In
Licking County, Case No. 2000 CA 00031 4
April 2017, Father was hospitalized for suicidal ideations. Father engaged in substance
abuse and mental health assessment at Behavioral Health Partners (“BHP”) in early
2017. Father was prescribed medication for depression and anxiety but did not continue
with the medication due to affordability.
{¶8} Mother engaged in mental health counseling through The Woodlands in
February 2017 where she was diagnosed with generalized anxiety disorder. Mother also
entered the Diversion Program through the Licking County Municipal Court pursuant to
her child endangering charge, which she completed in April 2018. She stopped
counseling in May 2017 and returned in October 2017 through January 2018. In October
2018, she started counseling with BHP and attended two sessions in August and October
2019. Mother did not feel she needed mental health counseling but she was diagnosed
with anxiety disorder, post-traumatic stress disorder, and major depressive disorder
(remission). She was prescribed medication but did not take the medication due to
affordability. Mother admitted she used marijuana and she completed substance abuse
treatment in May 2018. Greenwaldt had no ongoing concerns about Mother’s substance
abuse.
{¶9} In April 2017, Mother moved back in with her sister and Father moved back
in with his mother. Father made another suicide attempt in June 2017. In October 2017,
Mother and Father reconciled. They attend three marital counseling sessions. In one
session, Mother admitted that Father had been abusive towards her and had spanked
their child too hard. Mother had also been abused by her boyfriend, whom had abused
A.P.
Licking County, Case No. 2000 CA 00031 5
{¶10} In January 2018, Mother and Father resided together at a home on Fulton
Avenue in Newark. Both parents completed the parenting program through Pathways.
Mother worked full-time. Father was also employed but was in a serious car accident in
March 2018 that left him unable to work for three months. Father started counseling with
BHP in the summer of 2018 and began working again. On July 27, 2018, Mother and
Father had made sufficient progress on their case plans that LCJFS returned the children
to the parents’ custody.
{¶11} After three weeks, however, the children were removed from the parents’
custody due to a fight between Mother and Father. While the children were in the home,
Mother and Father began to fight. The fight was taken outside to the car. As Mother was
trying to remove car seats from the car, Father shifted the car into reverse and the open
car door knocked Mother to the ground. Mother kicked Father out of the home and
smoked marijuana to calm down. Greenwaldt found out about the incident a week later
and removed the children to the custody of LCJFS and the foster family.
{¶12} Mother and Father divorced on June 24, 2019. Mother and Father still had
a contentious relationship. Father told Greenwaldt that he wanted to hurt Mother and
threatened to bring a gun to court because he knew how to get a gun through security. At
the permanent custody hearing, Mother and Father did not want the other to know their
home address.
{¶13} Mother moved in with her sister. In October 2019, Mother obtained housing
appropriate for her and the children. During the proceedings, Mother remained
consistently employed, albeit with nine different employers. Since August 2019, Mother
was employed by Family Dollar as Assistant Manager for 40 hours per week, earning
Licking County, Case No. 2000 CA 00031 6
$600-$700 every two weeks. In 2019, Mother filed her taxes for the year 2018 and claimed
the children as dependents even though the children resided with Mother for only three
weeks in 2018. Mother received a $9,000 tax refund.
{¶14} Father moved in with his mother. Father was not consistent with his mental
health counseling. He obtained employment with Denali Protective Services, with 12-hour
shifts and earning $1,300 per month. Father obtained independent housing in November
2019.
{¶15} On December 27, 2018, LCJFS filed a Motion for Permanent Custody. The
hearing on the motion was originally set for July 2019, but was continued until November
2019.
{¶16} During the entirety of the case, the children resided with the same foster
family. The siblings were bonded with each other. Unfortunately, the foster family was not
able to adopt the siblings but were willing to care for them until the children achieved
permanency. There were no available familial residential placements. When the children
were removed from the parents’ care, B.P. was three years old, A.J. was two years old,
and P.P. was nine months old. At the time of the permanent custody proceedings, B.P.
was six years old, A.J. was five years old, and P.P. was two years old. The siblings were
bonded with their foster family. B.P. was attending kindergarten and doing well in school.
The children did not have any severe health issues. A.J. was diagnosed with failure to
thrive due to his small size because they could not diagnose an underlying cause.
{¶17} A.J. and B.P. receive mental health counseling for post-traumatic stress
disorder. P.P. has coped better because he has no memory of being removed from
Mother or Father due to his young age. Mother and Father were offered a minimum of bi-
Licking County, Case No. 2000 CA 00031 7
weekly supervised visitation. Father had consistent visitation with the children since
August 2018. Beginning January 2019, Mother was inconsistent with her visitation, often
due to her work schedule. Mother communicated directly with the foster family to check
on the children. By July 2019, Mother was removed from the visitation schedule due to
her failure to attend eight of the thirteen scheduled visitation sessions in 2019. Her
visitation was reinstated in August 2019. The parents’ visitation with the children was
appropriate and the children appeared to be bonded with Mother and Father. While P.P.
did not remember Mother and Father, P.P. followed the lead of his siblings.
{¶18} Father filed a Motion for Legal Custody on October 21, 2019.
{¶19} The hearing on the motion for permanent custody was held on November
5, 2019 and December 9, 2019 before the magistrate. An attorney was appointed for B.P.
because she expressed that she wanted to return to her Mother’s care. A.J. and P.P.
were found to be too young to express their wishes. The Guardian ad Litem
recommended the children be placed in the permanent custody of LCJFS.
{¶20} On February 18, 2020, the magistrate issued a 21-page decision granting
the LCJFS motion for permanent custody of the children. The magistrate found there was
clear and convincing evidence that the children could not be placed with Mother or Father
within a reasonable time or should not be placed with the parents. The parents met the
case plan expectations, but it took them three years to end their dysfunctional relationship
and obtain appropriate housing and employment. Greenwaldt and the magistrate were
concerned with the stability of the parents’ housing and employment as they were
obtained shortly before the hearing for permanent custody. There was no dispute that the
children had been in the custody of LCJFS for 12 or more months of a consecutive 22-
Licking County, Case No. 2000 CA 00031 8
month period. The magistrate next found that based on the factors of R.C.
2151.414(D)(1), it was in the best interest of the children to grant permanent custody to
LCJFS.
{¶21} Mother, Father, and B.P. filed objections to the Magistrate’s Decision. The
trial court overruled the objections by judgment entry issued on April 16, 2020. It is from
this judgment entry that B.P. now appeals.
ASSIGNMENT OF ERROR
{¶22} B.P. raises one Assignment of Error:
{¶23} “THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE
MAGISTRATE’S DECISION FINDING THAT IT WOULD BE IN THE BEST INTEREST
OF B.P. TO PERMANENTLY TERMINATE THE PARENTAL RIGHTS OF HER
PARENTS AND PLACE HER IN THE PERMANENT CUSTODY OF LICKING COUNTY
JOB AND FAMILY SERVICES, CHILDREN SERVICES DIVISION AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶24} In B.P.’s sole Assignment of Error, the child argues the trial court erred in
finding it was in B.P.’s best interest to grant permanent custody to LCJFS. While B.P.
states in the Assignment of Error that the trial court erred when it terminated “the parental
rights of her parents,” in her appellate brief, B.P. argues only for placement with Mother.
As such, our analysis considers only the facts applicable to Mother.
{¶25} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent,
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Licking County, Case No. 2000 CA 00031 9
Jeffries, 5th Dist. Stark No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported
by some competent, credible evidence going to all the essential elements of the case will
not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶26} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶27} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, 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; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶28} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,
but not limited to, the following: (1) the interaction and interrelationship of the child with
Licking County, Case No. 2000 CA 00031 10
the child's parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) 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.
{¶29} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶30} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶31} B.P. states there is no dispute that Mother substantially completed her case
plan. At the time of the hearing, Mother had completed a mental health assessment,
substance abuse assessment, taken a parenting class, maintained employment, and
obtained housing suitable for the family. B.P. contends the trial court’s basis for finding
that it was not in the best interest of B.P. to place the child in the custody of Mother was
Licking County, Case No. 2000 CA 00031 11
R.C. 2151.414(D)(1)(c), the custodial history of the child. The weight of the custodial
history, B.P. argues, overshadows the commendable work Mother did to comply with the
case plan requirements to remedy the issues that caused the children to be removed from
her care.
{¶32} The successful completion of a case plan is not dispositive on the issue of
reunification. In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604. While it may
be in Mother's best interest to complete the case plan, this is only one factor for a trial
court to consider what is in the best interest of the child. In re A.H., 5th Dist. Richland No.
18CA96, 2019-Ohio-1509, 2019 WL 1777306, ¶ 38. Where a parent has participated in
his case plan and completed most or all of the plan requirements, a trial court may still
properly determine that such parent has not substantially remedied the problems leading
to agency involvement. In re A.H., 5th Dist. Richland No. 18CA96, 2019-Ohio-1509, 2019
WL 1777306, ¶ 39 citing In the Matter of A.L. and J.L., 5th Dist. Guernsey No. 11 CA 23,
2012-Ohio-481.
{¶33} The reasons the trial court found it was not in the best interest of B.P. to
remain in the custody of Mother revolve around time. The first issue is the length of time
the children have been in the temporary custody of LCJFS. When LCJFS filed its motion
for permanent custody, the children had been in the temporary custody of LCJFS for 17
months out of a consecutive 22-month period. In the consecutive 22-month period, the
children were with parents for 20 days. At the completion of the hearing on the motion for
permanent custody, the children had been in the temporary custody of LCJFS for 29
months and removed from their parents’ care for 33 months.
Licking County, Case No. 2000 CA 00031 12
{¶34} The second issue is the length of time Mother took to meet her case plan
requirements. The children were initially removed and case plan adopted on March 24,
2017. The motion for permanent custody was filed on December 27, 2018 and the hearing
originally scheduled for July 2019. The hearing was continued until November 2019.
Mother obtained her job with Family Dollar in August 2019. In October 2019, she obtained
housing appropriate for the children. B.P. contends Mother securing housing and
employment demonstrates she successfully remedied the problems leading to agency
involvement. The question for the trial court was whether approximately three months of
housing and employment demonstrated Mother had remedied the problems? The trial
court looked to evidence in this case, the custodial history, to answer the question in the
negative. Greenwaldt testified that Mother had a house and space for the children, but
with the history of unstable housing, three months of stable housing and the length of time
the children had been in temporary custody was insufficient time to say Mother would
continue to provide for her children. The Guardian ad Litem confirmed Greenwaldt’s
observations. The GAL report, filed on November 1, 2019, stated there were lengthy
periods of time Mother did not cooperate with Greenwaldt and was inconsistent with
visitation. It was only in the months before the hearing that she “had a scurry of activity”
to obtain housing and return to counseling.
{¶35} The trial court reflected that when the children were initially removed from
the parents’ care, the parents had 18 months of participating in case planning and
reunification services before the children were returned to parents in July 2018. Within
three weeks, the children were removed based on the parents’ behaviors.
Licking County, Case No. 2000 CA 00031 13
{¶36} B.P. also contends that many of the issues with the family were based on
Father’s negative behaviors, not Mother’s. The record in this case shows, however, the
inception of this case was based on abuse suffered by A.P. at the hands of Mother’s
boyfriend. The second removal of the children was arguably because of Father’s actions
towards Mother. At the hearing, evidence was presented that Mother was in a relationship
with a man convicted of aggravated menacing. Mother testified the relationship was only
sexual in nature, but Mother’s sister testified she thought the man was Mother’s boyfriend
and observed Mother brought the man to the custody hearing. The trial court expressed
concern that Mother had not addressed the pattern and trauma of domestic violence in
her life.
{¶37} The best interest determination focuses on the child, not the parent. In re
N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 59. B.P. understandably wants
to be with her mother and the trial court considered her wishes, with due regard to her
age of six years old. The trial court noted, however, the stability in B.P.’s life had been
provided by her siblings and her foster family. Mother did not progress towards
reunification and was sporadic in her visitation. After three years in the temporary care of
LCJFS, B.P. deserves legally secure placement.
{¶38} We find the evidence in this case supports the trial court’s determination
that B.P. should be placed in the permanent custody of LCJFS. The Assignment of Error
is overruled.
Licking County, Case No. 2000 CA 00031 14
CONCLUSION
{¶39} The judgment of the Licking County Court of Common Pleas, Juvenile
Division is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.