In re A.D. ( 2014 )

[Cite as In re A.D., 2014-Ohio-5083.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
IN THE MATTER OF: :
A.D., et al. : CASE NO. CA2014-06-014
: OPINION
11/17/2014
:
:
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 13AND0772 and 13AND00773
Kristina M. Osterle, P.O. Box 314, Washington C.H., Ohio 43160, guardian ad litem
Jennifer J. Hitt, 63 North Main Street, Suite B, London, Ohio 43140, for appellant, M.S.
Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington
C.H., Ohio 43160, for appellee, Fayette County Dept. of Job & Family Services
RINGLAND, P.J.
{¶ 1} Appellant, the mother of A.D. and G.D. (Mother), appeals a decision of the
Fayette County Court of Common Pleas, Juvenile Division, granting permanent custody of
the two children to Fayette County Children Services (Agency). For the reasons stated
below, we affirm the decision of the juvenile court.
{¶ 2} Since August 2009, Mother has been serving a term of community control in
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connection with her felony conviction for receiving stolen property. During that time, Mother
has battled drug addiction, violated her probation, and served jail time. In 2011, the Agency
received temporary custody of A.D. and G.D. for 11 months. At the close of the Agency's
case, A.D. and G.D. were placed in the custody of their Father, who resides in Florida. While
Father had custody of the children, Mother attended and completed an inpatient drug
treatment program. In October 2013, Father relinquished custody of the children to Mother.
{¶ 3} Mother had custody of the children for approximately a month when she was
arrested on November 5, 2013 for failing to report to her probation officer. Mother tested
positive for marijuana, heroin, and cocaine and was incarcerated. On November 6, 2013, the
Agency filed a motion for emergency temporary custody of A.D. and G.D., which the trial
court granted that same day. The Agency also filed a complaint alleging that A.D. and G.D.
were neglected and dependent children and sought permanent custody of the children.
Thereafter, the juvenile court found that A.D. and G.D. are dependent children and it is in the
children's best interest to remain in the temporary custody of the Agency pending disposition
of the case.
{¶ 4} In December 2013, Mother's community control was revoked and she was
sentenced to a six-month term of imprisonment. During this time, Mother's husband
(Stepfather) was also incarcerated on drug-related charges. On December 12, 2013, the
Agency filed a case plan to reunify Mother with A.D. and G.D. The case plan required
Mother to remain drug free and complete drug and mental health treatment programs, attend
parenting classes, and provide for the children's basic needs.
{¶ 5} On April 17, 2014, the juvenile court held a hearing regarding the Agency's
request for permanent custody of A.D. and G.D. Father permanently surrendered his
parental rights to the children. At the time of the hearing, Mother remained incarcerated but
was scheduled to be released from prison in one week.
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{¶ 6} Jack Anders, the Chief Probation Officer for Fayette County Adult Probation
Department, testified that Mother was placed on community control in 2009. Anders
explained that Mother struggled with an opiate addiction and, through the assistance of the
Probation Department, participated in several outpatient and inpatient drug treatment
programs. Mother only completed one of the inpatient treatment programs. During Mother's
probation, she was jailed on numerous occasions for positive drug screens. In June 2011,
Mother was arrested for driving without a license when police found her asleep in her car at a
stop sign. Mother admitted she had been using narcotics and police found drug
paraphernalia in her home. Later, in September 2011, Mother received a probation violation
for failing to report to her probation officer and failing to take a drug test. As a result of this
violation, Mother's probation was extended for another five years. After this violation, Mother
did not receive another probation violation but was placed in jail several times by her
probation officer due to her drug issues.
{¶ 7} Anders testified that in 2013, Mother attended and completed an inpatient drug
treatment program. Mother remained sober until the fall of 2013 when Anders found Mother
with drug paraphernalia. In November 2013, Mother was arrested for failing to report to her
probation officer and failing to take a drug test. Eventually, Mother's probation was revoked
which led to her six-month jail sentence.
{¶ 8} Margo Robinson, the Agency case worker assigned to the family, also testified
regarding Mother's struggles with drug addiction. Robinson explained that Mother does not
have a driver's license, has not been employed since 2011, is married to Stepfather who also
struggles with substance abuse, lives off Stepfather's disability check, and had not arranged
for suitable housing when she was released from jail. Additionally, the Agency has concerns
with Mother's mental health and there are allegations of violence between Mother and
Stepfather.
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{¶ 9} Robinson explained that the Agency received temporary custody of the children
in 2011 because there were concerns over Mother's drug use. Father initially received
custody of the children but agreed to relinquish custody to Mother after a year.
Subsequently, Mother relapsed, her probation was revoked, and the Agency again received
temporary custody of the children. Robinson testified that A.D. has used drugs, G.D. has cut
herself, and both children are very angry with Mother and do not want to live with her
anymore. Father has agreed to terminate his parental rights. The grandmother of the girls
stated she would not take custody of the children until Mother's parental rights were
terminated. The Agency also contacted a cousin who was deemed inappropriate for
placement.
{¶ 10} Lastly, Mother testified at the hearing that she was due to be released from jail
in one week. Upon release, Mother plans to live with her sponsor in Fayette County and the
children can live in the sponsor's home as well. Mother stated that while in jail she attended
substance abuse meetings five days a week and that she underwent a mental health
assessment and she was cleared. Once she is released, Mother plans to end her
relationship with Stepfather due to his history of drug abuse and to find employment.
{¶ 11} In an entry dated June 17, 2013, the juvenile court found by clear and
convincing evidence that it was in the best interest of A.D. and G.D. to grant permanent
custody to the Agency. The court also found that the Agency had made reasonable efforts
toward reunifying the family.
{¶ 12} Mother now appeals, asserting two assignments of error.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING
THAT [THE AGENCY] MADE REASONABLE EFFORTS TO MAKE IT POSSIBLE FOR THE
MINOR CHILDREN TO RETURN HOME TO [MOTHER].
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{¶ 15} Mother argues that the juvenile court erred in granting permanent custody to
the Agency because the Agency had not made reasonable efforts to reunify the family.
Mother maintains that the Agency should have given her more time to comply with the case
plan because during the time the Agency had temporary custody of the children, she was
incarcerated.
{¶ 16} Before a natural parent's constitutionally protected liberty interest in the care
and custody of her child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met.
Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review
of a juvenile court's decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court's determination. In re Starkey, 150
Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding
by the juvenile court that the evidence was clear and convincing only if there is a sufficient
conflict in the evidence presented. In re Rodgers, 138 Ohio App.3d 510, 520 (12th
Dist.2000).
{¶ 17} Except for a few narrowly defined statutory exceptions, R.C. 2151.419 requires
a children services agency to make reasonable efforts to reunify a family prior to the
termination of parental rights. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 21. The
children services agency shall have the burden of proving that it made those reasonable
efforts. R.C. 2151.419(A)(1). While the court is not required to make a reasonable efforts
determination at a hearing on a permanent custody motion, this finding must have been
made at other stages of the child-custody proceeding. In re C.F. at ¶ 42. In this case, the
juvenile court made reasonable efforts findings both prior to the hearing on the permanent
custody motion and in its decision granting permanent custody.
{¶ 18} As this court has stated, "[i]n determining whether the agency made reasonable
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efforts to prevent the removal of the child from the home, the issue is not whether the agency
could have done more, but whether it did enough to satisfy the reasonableness standard
under the statute." In re K.L., 12th Dist. Clermont No. CA2012-08-062, 2013-Ohio-12, ¶ 18,
citing In re K. M., 12th Dist. Butler No. CA2004-02-052, 2004-Ohio-4152, ¶ 23. "Reasonable
efforts" does not mean all available efforts. Otherwise, there would always be an argument
that one more additional service, no matter how remote, may have made reunification
possible. In re K.L. at ¶ 18.
{¶ 19} Upon a review of the record, the Agency made reasonable efforts to reunify the
children with Mother or other family members. The Agency has been involved with the family
for several years and Mother has failed to remain drug free, provide for the children's basic
needs, or provide a safe home for the children. Mother has participated in numerous drug
treatment programs yet continues to relapse. Mother has failed to obtain employment and
does not have a driver's license. She is married to Stepfather who struggles with drug
addiction and was incarcerated at the time of the permanent custody hearing. Additionally,
the children do not wish to live with Mother anymore and while in the custody of Mother, the
children experimented with drugs and self-inflicted cutting. The Agency has also made
reasonable efforts to reunify the children with other family members. Father has surrendered
his parental rights to the children. The Agency contacted a cousin who was deemed
inappropriate for placement and the children's maternal grandmother did not want custody
until Mother's parental rights were terminated.
{¶ 20} While the current case plan was filed when Mother was incarcerated, the
evidence demonstrated that the Agency has been involved with Mother and the children for
years and the Agency has made reasonable efforts to reunify the family. Therefore, the
juvenile court did not err in finding throughout the case that the Agency made reasonable
efforts to reunite the children with their family.
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{¶ 21} Mother's first assignment of error is overruled.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FOUND BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTEREST
OF THE MINOR CHILDREN TO GRANT PERMANENT CUSTODY TO [THE AGENCY]
WITHOUT EVALUATING THE LESS RESTRICTION [sic] OPTION OF PLANNED
PERMANENT LIVING ARRANGEMENTS FOR THE MINOR CHILDREN.
{¶ 24} Mother argues that the juvenile court erred in finding that it was in the best
interest of the children to grant permanent custody to the Agency. Specifically, Mother
argues the Agency did not review the children's need for a legally secure permanent
placement and whether that type of placement could have been achieved by a planned
permanent living arrangement.
{¶ 25} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. First, the court must find that the grant of permanent custody to the agency is
in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the
court must find that any of the following apply: the child is abandoned; the child is orphaned;
the child has been in the temporary custody of the agency for at least 12 months of a
consecutive 22-month period; or where the preceding three factors do not apply, the child
cannot be placed with either parent within a reasonable time or should not be placed with
either parent. R.C. 2151.414(B)(1)(a)-(d); In re E.B., 12th Dist. Warren Nos. CA2009-10-139
and CA2009-11-146, 2010-Ohio-1122, ¶ 22. Only one of those findings must be met for the
second prong of the permanent custody test to be satisfied. In re T.D., 12th Dist. Preble No.
CA2009-01-002, 2009-Ohio-4680, ¶ 15.
{¶ 26} The juvenile court found by clear and convincing evidence that the children
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cannot be placed with Mother or Father within a reasonable time and should not be placed
with either parent. Father had permanently surrendered his parental rights for both children.
The Court also found that the children could not be placed with Mother within a reasonable
time because at the time of the hearing, Mother was due to be released from prison in one
week; she had relapsed into drug use despite participating in numerous drug treatment
programs; she had not sought employment since the Agency's involvement; she is married to
Stepfather who was incarcerated and struggles with substance abuse; and she does not
have suitable housing and is unable to meet the children's basic needs.
{¶ 27} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a
permanent custody hearing, the court shall consider all relevant factors, including but not
limited to:
(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 * * *;
(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.
R.C. 2151.414(D)(1).
{¶ 28} With respect to R.C. 2151.414(D)(1)(a), the juvenile court found the children
have had no interaction with Mother for six months due to Mother's incarceration. Father
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had custody of the children for a year but experienced considerable difficulty with the
children in the home and agreed to return custody to Mother in the fall of 2013. During the
case, Father permanently surrendered his rights to each child. With respect to R.C.
2151.414(D)(1)(b), the juvenile court found that both A.D. and G.D. are very angry with
Mother and have expressed a desire not to have any contact with Mother. At the time of the
hearing, the children were 16 years old and 14 years old.
{¶ 29} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that the
Agency has had temporary custody of A.D. and G.D. twice in the past three years. The
Agency received temporary custody of the children in both instances due to Mother's drug
issues. With respect, to R.C. 2151.414(D)(1)(d), the juvenile court found that the children
are in need of legally secure placement which Mother is unable to provide.
{¶ 30} In regards to Mother's argument that the appropriate disposition would have
been a planned permanent living arrangement, we remind Mother that the juvenile court was
without authority to place the children in a planned permanent living arrangement, as the
Agency did not file a motion requesting such a disposition. In re A.B., 110 Ohio St.3d 230,
2006-Ohio-4359, ¶ 37. Moreover, the Agency had no obligation to request such a
disposition. In re C.T., 12th Dist. Butler No. CA2008-07-180, 2009-Ohio-1037, ¶ 34.
{¶ 31} Based on consideration of the statutory factors, the juvenile court determined by
clear and convincing evidence that it was in the best interest of A.D. and G.D. to grant
permanent custody to the Agency. After careful review, we find the juvenile court's decision is
supported by the evidence and it is in the best interest of the children to grant permanent
custody to the Agency. The evidence establishes that the children cannot be placed with
either parent within a reasonable time and should not be placed with either parent.
Additionally, the evidence supports that granting permanent custody to the Agency is in the
best interest of the children. Mother has struggled with drug addiction for years, had
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completed several drug treatment programs yet continues to relapse, is married to a drug
addict, and has failed to obtain employment. Both A.D. and G.D. expressed to the court that
they do not wish to live with Mother anymore, A.D. has substance abuse problems, and G.D.
has cut herself. Therefore, the juvenile court did not err in determining that it was in the best
interest of the children to grant permanent custody to the Agency.
{¶ 32} Mother's second assignment of error is overruled
{¶ 33} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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