In re B.P. ( 2020 )

[Cite as In re B.P., 2020-Ohio-4120.]
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.
IN RE P.P., JR. :
IN RE A.P. : Case Nos. 2020 CA 00033
: 2020 CA 00034
: 2020 CA 00035
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeals from the Licking County Court
of Common Pleas, Juvenile Division,
Case Nos. F 2017 0039, F 2017 0038, F
2017 0040
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 18, 2020
APPEARANCES:
For Father-Appellant: For LCJFS-Appellee:
JERMAINE L. COLQUITT WILLIAM C. HAYES
33 W. Main St., Suite 109 LICKING COUNTY PROSECUTOR
Newark, OH 43055
PAULA M. SAWYERS
20 South Second Street, 4th Floor
For Child-Appellant: Newark, OH 43055
NATHANIEL H. HURST
36 North Second Street
P.O. Box 919
Newark, OH 43058
Licking County, Case Nos. 2020 CA 00033, 2020 CA 00034, 2020 CA 00035 2
Delaney, J.
{¶1} Father-Appellant P.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 on 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
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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. Father’s
Licking County, Case Nos. 2020 CA 00033, 2020 CA 00034, 2020 CA 00035 4
drugs of choice were Xanax and methamphetamines. He completed substance abuse
treatment and tested negative on drug screens.
{¶8} In January 2017, Father received inpatient treatment after B.P. witnessed
him attempt suicide by putting a shotgun in his mouth. In 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.
{¶9} 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.
{¶10} 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
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session, Mother stated that Father had been abusive towards her and had spanked their
child too hard. Father admitted to hitting Mother and spanking their son in a manner that
caused bruising. Mother had also been abused by her boyfriend, whom had abused A.P.
In November 2017, Father stopped individual counseling.
{¶11} 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. A child related to Father was a
passenger in the car and also severely injured. 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.
{¶12} 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. Father remembered reversing the car but not
hitting Mother with the car due to a history of blacking out when he was angry. 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.
{¶13} Mother and Father divorced on June 24, 2019. Mother and Father still had
a contentious relationship. Mother said Father threatened her life via Facebook if she lost
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the children. 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.
{¶14} 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
$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.
{¶15} Father moved in with his mother. Father was not consistent with his mental
health counseling. He stopped taking medicine prescribed for his mental health issues
due to financial reasons. He obtained employment with Denali Protective Services, with
12-hour shifts and earning $1,300 per month, but expressed concern to Greenwaldt
regarding his ability to financially provide for the children.
{¶16} 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.
{¶17} Father obtained independent housing in November 2019.
{¶18} 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
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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.
{¶19} 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-
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.
{¶20} Father filed a Motion for Legal Custody on October 21, 2019.
{¶21} 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.
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{¶22} 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-
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.
{¶23} Mother, Father, and B.P. filed objections to the Magistrate’s Decision. The
trial court noted that Father’s objections to the Magistrate’s Decision were not supported
by any references to the audio record of the court proceedings or to the written transcript.
The trial court found that Father’s objections, which argued the Magistrate’s Decision was
against the manifest weight of the evidence and not support by clear and convincing
evidence, did not meet the requirements of Juv.R. 40(D)(3)(b)(ii). The trial court overruled
the objections by judgment entry issued on April 16, 2020.
{¶24} It is from this judgment Father now appeals.
ASSIGNMENT OF ERROR
{¶25} Father raises one Assignment of Error:
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{¶26} “THE TRIAL COURT’S DECISION GRANTING PERMANENT CUSTODY
IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. THE AGENCY DID
NOT PROVE THE CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH THEIR
PARENTS WITHIN A REASONABLE TIME AND DID NOT PROVE THAT GRANTING
PERMANENT CUSTODY IS IN THE CHILDREN’S BEST INTEREST.”
ANALYSIS
{¶27} Father argues the trial court erred in its two-pronged analysis as to whether
permanent custody of the children should be granted to LCJFS. We disagree.
{¶28} 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.
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).
{¶29} 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.
{¶30} 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
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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.
{¶31} 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
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.
{¶32} 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.
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{¶33} 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.
{¶34} Father argues the trial court’s decision that the children could not be placed
with Father within a reasonable time or should be placed with Father was not supported
by the clear and convincing evidence. The trial court found that pursuant to R.C.
2151.414(B)(1)(a) and 2151.414(E), could not be placed with Mother or Father within a
reasonable time or should not be placed with Mother or Father. The trial court considered
the factors delineated in R.C. 2151.414(E). It found specifically under R.C.
2151.414(E)(1) and (4) that the children should not or could not be placed with Mother or
Father:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
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rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward the child by
failing to regularly support, visit, or communicate with the child when able
to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for the child;
{¶35} In this case, we agree that despite reasonable case planning and diligent
efforts by LCJFS to assist Mother and Father, the children cannot be placed with Mother
or Father within a reasonable time. 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. Mother and
Father had an argument in front of the children resulting in Father hitting Mother with the
car. Father admits to blacking out when the incident occurred.
{¶36} The record shows that while Father completed his case plan, Father did not
address his anger issues. 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.
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
Licking County, Case Nos. 2020 CA 00033, 2020 CA 00034, 2020 CA 00035 13
A.L. and J.L., 5th Dist. Guernsey No. 11 CA 23, 2012-Ohio-481. During their relationship,
Father admitted to hitting Mother and spanking his child hard enough to cause bruising.
After Mother and Father were apart, Father threatened, while speaking to his case worker,
to harm Mother and bring a gun to the trial court proceedings. Combined with Father’s
anger issues are Father’s mental health issues. Father has attempted suicide at least
twice, once in front of his child, and has had suicidal ideations requiring hospitalization.
Father’s commitment to his mental health treatment has been inconsistent.
{¶37} Father did not achieve housing appropriate for the children until November
1, 2019. The GAL described Mother and Father as engaging in a “scurry of activity to
obtain housing, return to counseling” only within a few months of the permanent custody
hearing.
{¶38} Finally, notwithstanding Father’s argument on appeal, the amount of time
the children have been in the temporary custody of LCJFS cannot be ignored. 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.
{¶39} 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. The trial court noted the
stability in the children’s lives had been provided by each other and their foster family.
After three years in the temporary care of LCJFS, the children deserve legally secure
placement.
Licking County, Case Nos. 2020 CA 00033, 2020 CA 00034, 2020 CA 00035 14
{¶40} We find the evidence in this case supports the trial court’s determination
that the children should be placed in the permanent custody of LCJFS. Father’s
Assignment of Error is overruled.
CONCLUSION
{¶41} The judgment of the Licking County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.