In re G.P. , 2013 Ohio 4692 ( 2013 )

[Cite as In re G.P., 2013-Ohio-4692.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: G.P., K.P. AND L.P. : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2013CA00126
: 2013CA00127
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2012-JCV-00086
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant P.R.
JAMES B. PHILLIPS AARON KOVALCHIK
SCJFS 116 Cleveland Avenue N.W., Ste. 808
221 Third Street S.E. Canton, OH 44702
Canton, OH 44702
For Defendant-Appellant E.P.
STACY M. ZIPAY
Stark County Public Defender
201 Cleveland Avenue S.W., Ste. 104
Canton, OH 44702
[Cite as In re G.P., 2013-Ohio-4692.]
Gwin, P.J.
{¶1} Appellants P.R. (“Mother”) and E.P. (“Father”) appeal from the May 29,
2013 judgment entry of the Stark County Common Pleas Court, Family Court Division,
terminating their parental rights and granting permanent custody of G.P., K.P., and L.P.
to Stark County Department of Job and Family Services (“SCDJFS”).
Facts & Procedural History
{¶2} P.R. is the mother of G.P., born October 14, 2009, K.P., born October 15,
2010, and L.P., born November 1, 2011. E.P. is the father of G.P., K.P., and L.P., as
confirmed by genetic testing in February of 2013. On January 20, 2012, SCDJFS filed a
complaint of neglect and dependency with regard to G.P., K.P., and L.P., and Mother’s
four older children. E.P. is not the father of Mother’s four older children. The complaint
alleged, in part, that Mother failed to supervise the children at a domestic violence
shelter where they resided, and Mother and Father failed to provide for the basic needs
of the children. Further, that there were allegations of domestic violence between
Mother and Father. Father was charged with domestic violence against Mother, but the
charge was no-billed when Mother refused to testify against Father.
{¶3} G.P., K.P., and L.P. were placed in the temporary custody of SCDJFS on
January 25, 2012. SCDJFS filed an amended complaint on February 6, 2012 to add
Father to the case plan. On February 14, 2012, G.P., K.P., and L.P. were adjudicated
dependent children after Mother and Father stipulated to a finding of dependency. Also
on February 14, 2012, SCDJFS orally moved to remove the allegation of neglect
against Mother and Father.
Stark County, Case No. 2013CA00126 & 2013CA00127 3
{¶4} The trial court adopted and approved the case plan provided by SCDJFS
on February 14, 2012. In the case plan Mother was ordered to: (1) secure and maintain
independent housing with adequate supplies for all of the children; (2) complete a
parenting evaluation and comply with all recommendations made; and (3) submit
random urine screens, complete a substance abuse assessment, and complete any
subsequent treatment as recommended. After Mother completed the parenting
evaluation, the following services were added to her case plan: (1) complete Goodwill
parenting; (2) complete an anger management program; (3) complete domestic violence
counseling; and (4) complete a mental health and psychiatric assessment and comply
with all treatment recommendations.
{¶5} In the case plan Father was ordered to: (1) secure and maintain
independent housing with adequate supplies for all of the children; (2) complete a
parenting evaluation and comply with all recommendations made; and (3) submit
random urine screens, complete a substance abuse assessment, and complete any
subsequent treatment as recommended. After Father completed the parenting
evaluation, his case plan was amended to include the following: (1) complete Goodwill
parenting and (2) complete a mental health assessment and comply with all treatment
recommendations. After Father addressed his mental health issues, SCDJFS intended
to refer him to Melymbrosia due to ongoing concerns of domestic violence between
Mother and Father.
{¶6} At a case review hearing on July 2, 2012, the trial court indicated Mother
needed more time to complete case plan services, Father’s whereabouts were unknown
but he tested positive for cocaine when he was last tested, and both parents needed to
Stark County, Case No. 2013CA00126 & 2013CA00127 4
follow through with recommendations made after their parenting evaluations. SCDJFS
filed a motion for permanent custody of G.P., K.P., and L.P. on December 20, 2012.
Mother’s four older children were not included in the motion for permanent custody.
Three of Mother’s other children currently reside with a paternal grandmother in
Wisconsin and the fourth child, Z.T., is placed in a foster home in Stark County.
SCDJFS alleged Mother and Father failed to complete the case plan objectives and
failed to visit since May (Father) and August (Mother) of 2012. On February 5, 2013,
Mother filed a motion to change legal custody to Charlotte Luce (“Luce”), maternal
grandmother. The trial court set a trial on the motion for permanent custody for March
4, 2013. On February 27, 2013, the trial court continued the trial on the motion for
permanent custody to allow SCDJFS to explore the out-of-state placement with Luce.
The trial was continued to May 7, 2013. Prior to the trial, on May 1, 2013, Father filed a
motion to extend temporary custody to SCDJFS. On May 7, 2013, the trial court
conducted a trial on SCDJFS’ motion for permanent custody, Mother’s motion for legal
change of custody to Luce, and Father’s motion to extend temporary custody of
SCDJFS.
{¶7} At the trial, Stacy Senff (“Senff”), the ongoing case worker from SCDJFS,
testified she had been involved with the family on a non-court basis since December of
2011 because of homelessness and domestic violence issues. Senff and SCJDFS
became involved with the family on a court-basis on January 20, 2012, due to concerns
about domestic violence, failure to supervise, and failure to provide for basic needs of
the children.
Stark County, Case No. 2013CA00126 & 2013CA00127 5
{¶8} With regards to Mother, Senff testified she did not start or complete
Goodwill Parenting and while she started an anger management program, she did not
complete the program. Mother did complete a parenting evaluation. Mother told Senff
she was going to Phoenix Rising for mental health services, but Senff could not verify
Mother’s attendance. Senff admitted she did not ask Mother to sign a release for the
records from Phoenix Rising. Mother completed Quest for substance abuse, but
subsequently tested positive for cocaine in August of 2012. After Mother tested positive
for cocaine, Senff intended to inform Mother she was required to go back to Quest, but
Senff was unable to reach Mother to notify her of this requirement. Senff testified she
would have added other case plans services to Mother’s case plan, but that Senff did
not do so because Mother failed to complete the original services required in the case
plan. On cross-examination, Senff stated if Mother completed equivalent services in
another state, these services might meet the case plan requirements in Stark County, if
Senff was able to verify the services were equivalent to those required in the current
case plan. However, Senff testified that Mother never called to inform her she was
obtaining services in another state. Senff was not able to verify other services because
she could not communicate with Mother and Mother failed to contact her. Mother’s
January 15, 2013 drug screen was negative.
{¶9} Mother visited G.P., K.P., and L.P. regularly when the case began through
the spring of 2012. However, after the spring of 2012, the visits declined and Mother’s
last visit with G.P., K.P., and L.P. was August 14, 2012. Senff’s last communication
with Mother was in August of 2012. While Mother appeared for court hearings, Mother
has not provided Senff with a permanent phone number or address, though Senff has
Stark County, Case No. 2013CA00126 & 2013CA00127 6
information from Wisconsin that Mother has been receiving benefits in Wisconsin since
April of 2013. Senff stated she has concerns with Mother’s mental health and her lack
of support system, which could have been improved through the completion of her case
plan services that Mother failed to complete. Senff testified Mother has failed to reduce
the risk she posed at the time G.P., K.P., and L.P. were removed and Mother cannot
safely care for the children at this time.
{¶10} Senff stated Father completed a parenting evaluation and went to Quest
for substance abuse issues, but subsequent to the Quest program, he continued to test
positive for cocaine. Father contacted Senff in December of 2012 and Senff again
referred him to Quest for substance abuse counseling. Though Father did have a few
negative drug screens throughout the pendency of the case, Father was unsuccessfully
discharged from Quest in February of 2013 due to his positive cocaine tests and Father
has not completed any drug treatment since that date. Father started the Goodwill
Parenting program, but was discharged from the program due to positive cocaine tests.
Senff referred Father to Coleman Behavioral Health (“Coleman”) for mental health
issues. Father told Senff he went to Coleman, but Senff was unable to verify his
attendance because Father failed to sign a release for her to view the records from
Coleman. Senff intended to refer Father to Melymbrosia after his mental health issues
were addressed because he was incarcerated for domestic violence at the beginning of
the case. However, Senff could not make the referral to Melymbrosia because Father
had not completed mental health treatment. Further, if Father successfully completed
Goodwill parenting, Senff would have referred him to the Intensive Parent
Child/Interaction Program. Senff testified Father last visited G.P., K.P., and L.P. in May
Stark County, Case No. 2013CA00126 & 2013CA00127 7
of 2012. Senff stated Father has not completed his case plan, has not reduced the risk
posed to the children that existed since the beginning of the case, and cannot safely
care for the children.
{¶11} Senff testified that Father and Mother are currently in Wisconsin, living
from hotel to hotel, and that neither of the parents is currently employed. Senff stated
Father and Mother could not maintain stable housing when they lived in Stark County
and, when the case was initiated by SCDJFS, G.P., K.P., and L.P. were living in a
domestic violence shelter with Mother. Senff does not have a working phone number
for either parent. Senff does not believe SCDJFS should obtain an extension of
temporary custody because the parents have failed to visit since May and August of
2012, the visits the parents had with the children did not go well, the parents are not
residing in Ohio, they were not able to comply with services in Stark County, and their
past behavior is an indicator of future behavior and thus the pattern of domestic
violence and homelessness will likely continue.
{¶12} When Senff testified in the best interest portion of the hearing, she stated
G.P., K.P., and L.P. have no medical concerns and have been in the same foster home
since February of 2013. One of Mother’s older children, Z.T., is placed in a separate
foster home in Stark County. Mother’s three oldest children are placed with their
paternal grandmother in Wisconsin. G.P., K.P., and L.P. are bonded to their foster
parents and are comfortable in their home. Senff stated the children do not have a
bond with Mother or Father because of their lack of visitation and the young age of the
children. Senff testified Luce contacted her in August of 2012 about obtaining custody
of G.P., K.P., and L.P. Senff initially expressed her concerns to Luce because Luce
Stark County, Case No. 2013CA00126 & 2013CA00127 8
was living with a boyfriend who had domestic violence issues and criminal convictions.
After Luce moved to Wisconsin, she requested a home study. Senff stated the home
study had not been approved and she is unsure whether it will be approved. Senff has
concerns that Mother is living with Luce as Senff verified the address Mother gave her
was Luce’s address in Wisconsin. Luce never requested visitation with G.P., K.P, and
L.P. throughout the pendency of the case. Senff left a message for Luce requesting an
in-person interview when Senff found out Luce was coming to Ohio, but Luce never
returned her call. Senff testified G.P., K.P., and L.P. have no bond with Luce and L.P.
has never met Luce. Senff testified it was in the best interest of G.P., K.P., and L.P. for
permanent custody to be granted to SCDJFS.
{¶13} Mother testified that when she left Ohio, she initially went to Minnesota
and there she completed parenting classes through the Young Dad’s Program and
completed an eight-week anger management program. Mother testified about
certificates of completion for both programs, but the certificates were not offered into
evidence. Mother also stated she gave Senff proof she attended Phoenix Rising
programs when she was in Stark County. Mother currently lives in Wisconsin and has
no permanent housing, but resides in an extended-stay hotel where she pays in
advance. The hotel does not have a bedroom for G.P., K.P., and L.P. Mother last met
with Senff in August 2012 and did not call Senff when she returned to Ohio. Mother
testified she did not tell Senff she completed services in Minnesota or provide Senff with
information to verify her completion of these services in Minnesota. Mother verified she
has not visited G.P., K.P. and L.P. since August of 2012. Mother stated she did talk to
the children on the phone by calling the foster parents, but more than three months had
Stark County, Case No. 2013CA00126 & 2013CA00127 9
elapsed since she had spoken to the children. Mother testified she was told not to call
the children again.
{¶14} Luce testified she contacted SCDJFS in August of 2012 and Senff told her
there would likely be issues with Luce obtaining custody of the children because Luce’s
live-in boyfriend had a criminal record. Luce moved to Wisconsin and is currently living
near the paternal grandmother who has temporary custody of three of Mother’s older
children. However, Luce has only had a few visits with the older children because the
therapist of one of the children felt there should be no further visits with Luce. Luce
does not currently have independent housing where G.P., K.P., and L.P. could sleep,
but Luce testified she could obtain independent housing where the children could
reside. Luce stated she did not request to visit G.P., K.P., and L.P. because Senff
would not return her calls. Luce testified Mother does not live with her and Luce would
not permit Mother to live with her. Luce believes SCDJFS has hindered her ability to
bond with G.P., K.P., and L.P. However, she did not request a visit with them when she
decided she was attending the trial. Luce is employed at a factory and stated she has
had custody of Mother’s other children in the past and thus previously completed a
home study and background check. Luce admitted to smoking marijuana with Mother
years ago when Mother was a teenager. Luce does not approve of some of Mother and
Father’s actions, but does not feel Mother and Father pose a risk to G.P., K.P., and L.P.
{¶15} Bernard Hunt (“Hunt”), the Guardian Ad Litem (“GAL”) for G.P., K.P., and
L.P., submitted his report stating he feels it is in the best interest of the children for
permanent custody to be granted to SCDJFS. Hunt indicated in his report he was
unable to contact Father because the phone number provided was not in service and,
Stark County, Case No. 2013CA00126 & 2013CA00127 10
while he received one message from Mother, he could not reach her after he attempted
to return her call several times. Hunt stated in his report that G.P., K.P., and L.P. are
doing well in their placement and the foster parents are providing the stability they need.
Hunt also testified at trial. Hunt was appointed as GAL to the children several weeks
prior to the hearing due to the previous GAL taking a position with the court, but testified
he reviewed the entire file provided to him by the previous GAL. Hunt had a face-to-
face meeting with Luce on the day prior to the hearing. However, he still believes
permanent custody should be granted to SCDJFS. Hunt also testified he believes
Mother and Luce are in close contact.
{¶16} Pursuant to a judgment entry filed on May 29, 2013, the trial court
terminated Mother’s and Father’s parental rights and granted permanent custody of
G.P., K.P., and L.P. to SCDJFS. The trial court found G.P., K.P., and L.P. could not be
placed with either parent at this time or within a reasonable amount of time and that
G.P., K.P., and L.P. were abandoned based upon the lack of contact for more than
ninety (90) days by Mother and Father. The trial court further found it is in the best
interest of G.P., K.P., and L.P. that permanent custody be granted to SCDJFS.
{¶17} Mother appealed from the trial court’s May 29, 2013 judgment entry and
raises the following assignments of error on appeal:
{¶18} “I. THE JUDGMENT OF THE TRIAL COURT THAT APPELLANT
ABANDONED THE MINOR CHILDREN WAS AGAINST THE MANIFEST WEIGHT
AND THE SUFFICIENCY OF THE EVIDENCE.
{¶19} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT BE PLACED WITH APPELLANT AT THIS TIME OR WITHIN A
Stark County, Case No. 2013CA00126 & 2013CA00127 11
REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
{¶20} “III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶21} Mother’s case has been assigned Case No. 2013 CA 00126.
{¶22} Father also appealed from the trial court’s May 29, 2013 judgment entry
and raises the following assignments of error:
{¶23} “I. THE TRIAL COURT’S DECISION THAT [G.P., K.P., AND L.P.]
CANNOT AND SHOULD NOT BE PLACED WITH MOTHER OR FATHER WITHIN A
REASONABLE PERIOD OF TIME WAS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE.
{¶24} “II. THE TRIAL COURT’S DECISION THAT IT WAS IN THE BEST
INTEREST OF THE MINOR CHILDREN TO TERMINATE PARENTAL RIGHTS AND
PLACE THE [MINOR] CHILDREN IN THE PERMANENT CUSTODY OF THE STARK
COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WAS NOT SUPPORTED
BY CLEAR AND CONVINCING EVIDENCE.”
{¶25} Father’s case has been assigned Case No. 2013 CA 00127.
{¶26} For purposes of judicial economy, we will address the two cases together.
Permanent Custody
{¶27} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
Stark County, Case No. 2013CA00126 & 2013CA00127 12
U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1).
{¶28} Clear and convincing evidence is that evidence “which will provide 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). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Id. at 477. If some
competent, credible evidence going to all the essential elements of the case supports
the trial court’s judgment, an appellate court must affirm the judgment and not substitute
its judgment for that of the trial court. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio
St.2d 279, 376 N.E.2d 578 (1978).
{¶29} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evidence in the
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997).
{¶30} 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.
Stark County, Case No. 2013CA00126 & 2013CA00127 13
{¶31} 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.
{¶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, a 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.
Mother’s First Assignment of Error
{¶33} Mother argues the trial court’s finding that she abandoned G.P., K.P., and
L.P. pursuant to R.C. 2151.414(B)(1) is against the manifest weight of the evidence.
We disagree.
{¶34} For purposes of R.C. 2151.414(B)(1)(b), “abandoned” is defined by R.C.
2151.011(C), which provides that “a child shall be presumed abandoned when the
parents of the child have failed to visit or maintain contact with the child for more than
Stark County, Case No. 2013CA00126 & 2013CA00127 14
ninety days, regardless of whether the parents resume contact with the child after that
period of ninety days.”
{¶35} Mother contends her statement that she was allowed to have phone calls
with the children “until I told them that everything would be okay, then I was told not to
call them anymore because I was lying to them” demonstrates that SCDJFS prevented
her from contacting the children. However, Mother failed to present any evidence as to
when SCDJFS prevented her from calling the children and failed to provide any
evidence as to who told her not to call the children. Further, Mother testified she
stopped calling more than ninety days prior to the permanent custody trial, stated she
never contacted Senff to let her know when she traveled to Stark County, and admitted
the last time she visited G.P., K.P., and L.P. was in August of 2012. Luce testified she
called Senff to inquire about obtaining custody of G.P., K.P., and L.P. only after she
discovered Mother had stopped visiting them, in approximately July or August of 2012.
Senff testified Mother last visited G.P., K.P., and L.P. on August 14, 2012 and failed to
contact her to set up a visit after that date. As the statute defines “abandonment” as
failure to make contact for more than ninety days, the trial court’s finding that Mother
abandoned G.P., K.P., and L.P. is not against the manifest weight of the evidence.
Mother’s first assignment of error is overruled.
Mother’s Second Assignment of Error and Father’s First Assignment of Error
{¶36} Both Mother and Father contend the trial court erred in finding that G.P.,
K.P., and L.P. cannot be placed with them at this time or within a reasonable period of
time. We disagree.
Stark County, Case No. 2013CA00126 & 2013CA00127 15
{¶37} 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. The relevant portions of R.C. 2151.414(E) are as follows:
(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 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; * * *
(10) The parent has abandoned the child.
{¶38} A review of the record supports the trial court’s conclusion that G.P., K.P.,
and L.P. cannot be placed with Mother or Father within a reasonable time. Senff
Stark County, Case No. 2013CA00126 & 2013CA00127 16
testified Mother and Father have not done anything to reduce the risk they posed at the
time the children were removed and cannot safely care for the children. Senff remains
concerned about issues relating to homelessness, domestic violence, mental health
issues, lack of visitation by both parents, and positive drug tests of Father. While both
Mother and Father complied with some of the case plan requirements such as
completing the parenting evaluation, both Mother and Father failed to make any
significant progress on their case plans. Father was discharged from Goodwill
parenting due to his positive drug screens and was unsuccessfully discharged from
Quest when he continued to test positive for cocaine. Father failed to sign a release of
information for Senff to contact Coleman to verify his attendance for mental health
issues. Senff was not able to make further recommendations in Father’s case plan
such as referrals to Melymbrosia and Intensive Child/Parent Interaction because of
Father’s failure to complete the preliminary requirements in the case plan.
{¶39} Mother stated she completed a parenting class and anger management
class in Minnesota and testified to her certificates of completion. However, these
certificates of completion were not admitted into evidence. While Senff testified some of
these programs might qualify if equivalent to those in Mother’s case plan, Senff also
stated she would have to verify the content of the programs and Mother’s attendance at
the programs. Mother failed to communicate with Senff to notify her she was receiving
services in Minnesota or provide Senff with information to verify the content of the
programs and Mother’s attendance. Senff continually had problems communicating
with both Mother and Father as neither of them called her and she did not have a valid
address or phone number for Mother or Father.
Stark County, Case No. 2013CA00126 & 2013CA00127 17
{¶40} Senff also testified and Mother confirmed that Mother and Father are
currently living in a hotel in Wisconsin that has no bedrooms for the children. Neither
Mother nor Father is employed. Father continually tested positive for cocaine
throughout the pendency of the case. Mother failed to visit G.P., K.P., and L.P. since
August of 2012 and her last phone contact with the children was more than ninety days
before the permanent custody trial. Father failed to visit G.P., K.P., and L.P. since May
of 2012. Neither parent contacted Senff after these dates to set up further visitation and
thus both Mother and Father abandoned the children.
{¶41} Despite Mother and Father’s compliance with parts of the evaluation
portion of the case plan, each failed to follow through on the balance of the
assessments and recommendations, continually failed to communicate with Senff to
verify any program participation or to receive assistance with services, failed to visit the
minor children, and failed to provide a stable home for G.P., K.P., and L.P. Accordingly,
we find there is competent, credible evidence to support the trial court’s finding that the
minor children cannot be placed with either parent within a reasonable amount of time
because the failure to substantially complete the case plan objectives and the failure of
the parents to reduce the risks posed when the children were removed are directly
attributable to the actions and inaction of Mother and Father. Mother’s second and
Father’s first assignment of errors are overruled.
Mother’s Third Assignment of Error and Father’s Second Assignment of Error
{¶42} Both Mother and Father allege the trial court erred in finding it is in the
best interest of G.P., K.P., and L.P. for permanent custody to be granted to SCDJFS.
Mother and Father argue it is in the best interest of the children to be placed with Luce
Stark County, Case No. 2013CA00126 & 2013CA00127 18
in Wisconsin. Father further contends the trial court erred in denying his motion for
extension of temporary custody to SCDJFS.
Best Interest
{¶43} 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 placement and whether that type of placement can be
achieved without a grant of permanent custody; and (e) whether any of the factors in
divisions (E)(7) to (11) of this section apply in relation to the parents and child. The
focus of the “best interest” determination is upon the child, not the parent, as R.C.
2151.414(C) specifically prohibits the court from considering the effect a grant of
permanent custody would have upon the parents. In re: Awkal, 95 Ohio App. 3d 309,
315, 642 N.E.2d 424 (8th Dist. 1994).
{¶44} We find the trial court did not err in finding that granting permanent
custody to SCDJFS is in the best interest of G.P., K.P., and L.P. As detailed above,
Mother and Father failed to make significant progress on their case plans and failed to
visit G.P., K.P., and L.P. While G.P., K.P., and L.P. will lose the minimal bond they
have with Mother and Father and it will be more difficult for them to see their siblings in
Wisconsin, this harm is outweighed by the benefits of permanency and stability. G.P.,
Stark County, Case No. 2013CA00126 & 2013CA00127 19
K.P., and L.P. will remain together in a foster home and are in close proximity to the
foster home of Z.T., one of Mother’s older children.
{¶45} Luce testified she sought custody of the children beginning in August of
2012. While Luce contacted Senff in August of 2012, Luce lived with her boyfriend who
had a criminal record. When Luce moved to Wisconsin, she requested a home study
which was initiated. However, on the date of the trial, Senff had not received notification
that Luce had passed the home study and Senff received indications that the individuals
in Wisconsin were having difficulty obtaining access to Luce and her home. Luce
testified that while she can obtain independent housing and is employed, she currently
does not have independent housing and her current living situation does not include
bedrooms for G.P., K.P., and L.P.
{¶46} Senff testified Luce never requested visitation with G.P., K.P., and L.P.
during the pendency of the case and that the children do not know Luce or have a bond
with her. Luce confirmed she never requested visitation, but stated it was because
Senff would never call her back if she called her to ask her something. When Senff left
Luce a message requesting an in-person interview when Luce came to town prior to the
trial date, Luce did not return her call. Luce stated her visits with Mother’s older children
in Wisconsin did not go well and one of the children’s therapists recommended a
suspension of visitation with Luce. Both Senff and Hunt testified they were concerned
by the close contact between Mother and Luce. Though Luce testified she was not
living with Mother and would not let Mother live with her, Luce also testified she did not
think Mother or Father posed a risk to the children. Luce admitted to smoking marijuana
with Mother many years ago when Mother was a teenager.
Stark County, Case No. 2013CA00126 & 2013CA00127 20
{¶47} Both Senff and Hunt testified that granting permanent custody to SCDJFS
is in the best interest of G.P., K.P., and L.P. Senff testified the children have been in
the same foster home together since February of 2013, are bonded to their foster
parents, and deserve permanency. In his report, Hunt determined the children were
doing well in their placement and the foster parents were providing them with stability
and comfort. Hunt spoke with Luce prior to the trial, but, as a result of his conversation
with her, did not seek to change the opinion contained in his report that the best interest
of G.P., K.P., and L.P. would be served by granting permanent custody to SCDJFS.
{¶48} Based on the foregoing, we find the trial court properly considered and
weighed the factors in R.C. 2151.414(D) and the trial court’s conclusion that the
granting of permanent custody to SCDJFS is in the best interest of G.P., K.P., and L.P.
is supported by competent and credible evidence.
Father’s Motion for Six-Month Extension
{¶49} Father argues the trial court erred when it denied his motion for a six-
month extension of temporary custody to SCDJFS. Father contends both he and
Mother have complied with portions of the case plan and are working towards
reunification. We disagree. A trial court’s decision to grant or deny an extension of
temporary custody is a discretionary one. See R.C. 2151.415(D)(1) and (2). Pursuant
to R.C. 2151.415(D)(1), a trial court can extend temporary custody for six months only if
it finds, by clear and convincing evidence, (1) that such an extension is in the best
interests of the child, (2) that there has been significant progress on the case plan, and
(3) that there is reasonable cause to believe that the child will be reunified with a parent
Stark County, Case No. 2013CA00126 & 2013CA00127 21
or otherwise permanently placed within the period of extension. See In re McNab, 5th
Dist. Nos. 2007 AP 11 0074, 2007 AP 11 0075, 2008-Ohio-1638.
{¶50} We find Father has failed to demonstrate an abuse of discretion by the
trial court in denying his motion for six-month extension. The testimony reflects that
because of Mother’s and Father’s decisions in failing to visit G.P., K.P., and L.P. since
May and August of 2012, failing to secure independent housing, failing to complete the
recommendations made after their parenting evaluations, Father’s continued positive
drug tests throughout the case, and both parents’ consistent failure to communicate with
the caseworker, Mother and Father have failed to make significant progress in their
case plan. Further, based on the evidence presented, there is not clear and convincing
evidence that a reasonable likelihood of reunification exists in six months. Mother and
Father are unemployed, are living in an extended-stay hotel, and have not addressed
the concerns present since the beginning of the case such as domestic violence, mental
health concerns, and substance abuse. As indicated by the trial court, Mother and
Father are not able to remedy the initial problems that existed at the beginning of the
case in the foreseeable future. As set forth more fully above, the evidence before the
trial court supports the conclusion that an extension of temporary custody is not in G.P.,
K.P., and L.P.’s best interests, but, rather, their interests are best served by an award of
permanent custody to SCDJFS. Father’s third assignment of error is overruled.
Stark County, Case No. 2013CA00126 & 2013CA00127 22
{¶51} Based on the foregoing, we find the trial court did not abuse its discretion
in granting permanent custody of G.P., K.P., and L.P. to SCDJFS. Mother’s and
Father’s assignments of error are overruled and the May 29, 2013 judgment entry of the
Stark County Common Pleas Court, Family Division, is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 1001
[Cite as In re G.P., 2013-Ohio-4692.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: G.P., K.P. AND L.P. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2013CA00126
For the reasons stated in our accompanying Memorandum-Opinion, the May 29,
2013 judgment entry of the Stark County Common Pleas Court, Family Court Division,
is affirmed. Costs to appellants.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: G.P., K.P. AND L.P. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2013CA00127
For the reasons stated in our accompanying Memorandum-Opinion, the May 29,
2013 judgment entry of the Stark County Common Pleas Court, Family Court Division,
is affirmed. Costs to appellants.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN