In re M.G. , 2014 Ohio 974 ( 2014 )

[Cite as In re M.G., 2014-Ohio-974.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
IN THE MATTER OF: M.G. AND B.G., : OPINION
DEPENDENT CHILDREN.
: CASE NO. 2013-G-3162
Civil Appeal from the Geauga County Court of Common Pleas, Juvenile Division.
Case No. 11 JF 000046.
Judgment: Affirmed.
Brian A. Smith, 503 West Park Avenue, Barberton, OH 44203 (For Appellant Katherine
Grover).
James R. Flaiz, Geauga County Prosecutor, and Craig A. Swenson, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Appellee
Geauga County Job and Family Services).
Sarah L. Heffter, 401 South Street, Suite 2-B, Chardon, OH 44024 (Guardian ad
litem).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Katherine Grover, appeals the judgment of the Geauga County
Court of Common Pleas, Juvenile Division, terminating her parental rights concerning
her sons, M.G. and B.G. Upon review of the record, the trial court’s conclusions
concerning the best interest of the minor children are supported by competent, credible
evidence and, where required, are sufficient to support those findings by clear and
convincing evidence. Accordingly, we must affirm the judgment.
{¶2} The Geauga County Department of Job and Family Services (“GCJFS”)
filed a complaint on January 24, 2011, seeking temporary custody of appellant’s two
children, M.G. and B.G., born January 21, 2011. The complaint was based on
allegations that appellant suffered from schizophrenia and that she was unable to serve
as a suitable parent of the twins. The twins remained in their parents’ custody, under
court supervision, until the trial court granted GCJFS’ motion for emergency custody in
July 2011. Initially, appellant had to be supervised, primarily by her husband, the father
of the children, while caring for the twins. When her husband left the home, B.G. and
M.G. were removed and placed in temporary custody of GCJFS on July 14, 2011.
{¶3} GCJFS implemented a case plan with the goal of reunification. GCJFS
first filed a motion for permanent custody on September 16, 2011. After hearings, the
trial court denied the motion. GCJFS filed a second motion for permanent custody on
August 13, 2012. Again, after a hearing, the trial court denied the motion for permanent
custody. In doing so, the trial court issued “protective orders” for appellant, as follows:
Mother is ordered (1) to continue with and maintain her injection
medications as prescribed by her treating physician for as long as
so prescribed; and (2) to continue with her counseling and follow
the recommendations of her counselor.
The Court further orders that mother shall be required to have
supervision or childcare assistance when alone with the children
until further written order of the Court.
{¶4} On January 24, 2013, GCJFS filed a third motion for permanent custody.
In that motion, GCJFS noted that its temporary custody of the twins would typically
terminate effective January 24, 2013, because that “would be two years from the date
the complaint was filed in this case.” GCJFS also stated it was seeking permanent
custody of the twins because the concerns that led to their removal from their parents’
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custody still remain. On September 25, 2013, following a hearing, the trial court granted
GCJFS’ motion for permanent custody.
{¶5} Appellant filed a timely notice of appeal.
{¶6} Appellant’s first assignment of error states:
{¶7} “The Trial Court erred in finding that a grant of permanent custody was in
the best interest of M.G. and B.G. and was not supported by Clear and Convincing
Evidence as against the manifest weight of the evidence.”
{¶8} We recognize that the termination of parental rights is “the family law
equivalent of the death penalty.” In re Phillips, 11th Dist. No. 2005-A-0020, 2005-Ohio-
3774, ¶22, citing In re Hoffman, 97 Ohio St.3d 92, 95 (2002). This court has stated that
a parent is entitled to “fundamentally fair procedures in accordance with the due
process provisions under the Fourteenth Amendment to the United States Constitution
and Section 16, Article I of the Ohio Constitution.” In re Sheffey, 167 Ohio App.3d 141,
147 (11th Dist.2006).
{¶9} R.C. 2151.414 provides the two-pronged analysis a trial court must follow
in permanent custody proceedings. Pursuant to R.C. 2151.414(B)(1), a trial court may
grant permanent custody if the court determines at the permanent custody hearing—by
clear and convincing evidence—that 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, has not 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, or has not 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 if, as described in division
(D)(1) of section 2151.413 of the Revised Code, the child was
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previously in the temporary custody of an equivalent agency in
another state, 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.
(d) 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 or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶10} Appellant does not dispute the applicability of subsection (d) in this case:
both M.G. and B.G have been in the temporary custody of GCDJFS for at least 12
months of a consecutive 22-month period. In fact, the record indicates that M.G. and
B.G. had been in the custody of GCJFS for over 18 months at the time GCJFS filed its
third motion for permanent custody.
{¶11} Having determined that one of the four factors in R.C. 2151.414(B)(1)(a)-
(d) apply, the trial court must next decide, by clear and convincing evidence, whether
the award of permanent custody to an agency is in the child’s best interest based upon
a non-exclusive list of relevant factors set forth in R.C. 2151.414(D)(1):
(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;
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(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, or 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
and, as described in division (D)(1) of section 2151.413 of the
Revised Code, the child was previously in the temporary custody of
an equivalent agency in another state;
(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.
{¶12} “Clear and convincing evidence is more than a mere preponderance of the
evidence; instead, it is evidence sufficient to produce in the mind of the trier of fact a
firm belief or conviction as to the facts sought to be established.” In re Aiken, 11th Dist.
Lake No. 2005-L-094, 2005-Ohio-6146, ¶28.
{¶13} In addition, R.C. 2151.414(D)(2) states, “[i]f all of the following apply,
permanent custody is in the best interest of the child and the court shall commit the
child to the permanent custody of a public children services agency or private child
placing agency:
(a) The court determines by clear and convincing evidence that one
or more of the factors in division (E) of this section exist and the
child cannot be placed with one of the child’s parents within a
reasonable time or should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or
longer, and no longer qualifies for temporary custody pursuant to
division (D) of section 2151.415 of the Revised Code.
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(c) The child does not meet the requirements for a planned
permanent living arrangement pursuant to division (A)(5) of section
2151.353 of the Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal
custody of the child.
{¶14} In its judgment entry, the trial court examined both of the aforementioned
“best interest” prongs—R.C. 2151.414(D)(1) and R.C. 2151.414(D)(2). The civil
manifest weight of the evidence standard is applied in appellate review of cases
involving the termination of parental rights: “if the trial court’s grant of permanent
custody to the county is supported by some competent, credible evidence, we must
affirm the court’s decision.” In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-
1293, ¶91. However, this must be stated in relation to the trial court’s standard, as we
must determine if there is competent, credible evidence in the record that would allow
the trial court to have made its determinations by clear and convincing evidence.
{¶15} ‘[I]nherent within R.C. 2151.414(B)(1)(d) rests the finding that the
parent is unable, unsuitable, or unfit to care for the child. If the
child has been placed in a children services agency’s temporary
custody for at least twelve months of the prior twenty-two months,
some reason must exist why the child has not been in the parent’s
care. The reason normally would be because the parent has been
unable to demonstrate that the parent is able, suitable, or fit to care
for the child.’
In re A.J. and S.M., 11th Dist. Trumbull No. 2010-T-0041, 2010-Ohio-4553, ¶42, quoting
In re Workman, 4th Dist. Vinton No. 02CA574, 2003-Ohio-2220, ¶39. In effect, if a
parent has failed to achieve reunification within 12 months of a 22-month period, a
justifiable presumption of parental unfitness arises. See In re A.J. and S.M. at ¶43.
{¶16} On appeal, appellant argues the trial court’s decision to grant GCJFS’s
motion for permanent custody was based upon insufficient evidence. In her appellate
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brief, appellant frequently cites to testimony that occurred at the hearings relating to
GCJFS’s two previous motions for permanent custody, which were denied by the trial
court. The order that is the subject of the instant appeal, however, addresses only the
testimony and evidence presented at the hearing on the third motion for permanent
custody. The evidence and testimony from the two prior hearings is relevant only with
respect to whether the circumstances have or have not changed from the time those
hearings occurred.
{¶17} Notably, the trial court recognized in its judgment entry that “there is no
question that [appellant] has an intense desire to protect her twins. The issue in this
case is not [appellant’s] willingness to parent, but rather her ability to do so safely in
light of her schizophrenia.” The trial court repeatedly emphasized that appellant cares
deeply for the twins and will try to do anything for her children, but placement of the
children in appellant’s home “would not be in the best interest of the children because of
the safety concerns arising from her mental health condition and lapses in focus and
judgment.” The trial court found that appellant had not rebutted the presumption of
parental unfitness.
{¶18} At the hearing on the third motion for permanent custody, the trial court
heard testimony from Michelle Warren, a GCJFS social worker; Jennifer Moore-
Mallinos, an early childhood mental health consultant with Catholic Charities; Darlene
Grover, the paternal grandmother of the twins; Susan Whittaker, a psychiatric nurse
practitioner with Beacon Health; Steve Roos, a therapist with Beacon Health; Dr. Nancy
Huntsman, a psychologist; Jim [last name intentionally deleted], the foster parent; and
Attorney Sarah Heffter, the guardian ad litem. Also present were appellant and the
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children’s father, both represented by counsel. Issues relating to the credibility of
witnesses and the weight to be given to the evidence are primarily for the trier of fact to
decide. Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 80 (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 (1997).
{¶19} We first analyze whether the trial court’s conclusions with regard to the
factors enumerated in R.C. 2151.414(D)(1) are supported by competent and credible
evidence, thus allowing the trial court to make its determination by clear and convincing
evidence.
{¶20} The record contains evidence that illustrates the interaction and
interrelationship of the children with the children’s parents and foster parents. R.C.
2151.414(D)(1)(a). The trial court found, and the record supports, that the twins have
bonded with their foster parents and are thriving in that environment. Ms. Michelle
Warren, the GCJFS caseworker, testified that appellant is active during her visits with
the twins and that the twins recognize appellant. There is, however, evidence that the
twins sometimes regress after their visits with appellant. Furthermore, Jennifer Moore-
Mallinos, the court-appointed parent monitor, expressed concern about appellant’s
ability to set boundaries, stating that appellant indicated she does not like to tell the
twins, “no.”
{¶21} Additionally, the guardian ad litem, Sarah Heffter, expressed that the
situation has not only failed to improve since the last permanent custody hearing, but it
has regressed. R.C. 2151.414(D)(1)(b). Attorney Heffter noted she would be “very
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concerned” for the twins’ safety if they were returned to appellant. She noted that, in
her observation, appellant was lethargic and unable to respond quickly to stimuli.
{¶22} Moreover, there is the matter of the custodial history of the twins, as well
as their need for a legally-secure, permanent placement, and whether that type of
placement could be achieved without a grant of permanent custody to the county. R.C.
2151.414(D)(1)(c)-(d). The twins have been in foster care for most of their lives. They
were placed in foster care when appellant’s husband left the home, as appellant was to
be supervised while with her children at all times. When GCJFS obtained temporary
custody, a case plan went into effect with the goal of reunification. A case plan was
established that addressed appellant’s mental health with the support of her husband.
During the pendency of this case, appellant was diagnosed with schizophrenia and
began receiving bi-weekly injections of anti-psychotic medication. The trial court noted
that the length of temporary custody by GCJFS was necessary to address appellant’s
illness.
{¶23} Noting that appellant does not have any relatives or other potential
placements for the children, the trial court addressed whether appellant could provide a
legally secure placement for the twins. The trial court recognized that the possibility of
future removal of the twins does not support termination and, therefore, focused on the
present and ongoing issue of the children’s safety. See In re Williams, 11th Dist.
Geauga Nos. 2003-G-2498 & 2003-G-2499, 2003-Ohio-3550, ¶44. The record
demonstrates that there are significant concerns with the twins’ safety because of
appellant’s schizophrenia and her husband’s failure to supervise her while with the
children. Appellant exhibits lapses in focus and parental judgment. For example, Ms.
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Moore testified that she observed appellant cross the street while pushing the twins in
the stroller without looking for oncoming traffic. Dr. Nancy Huntsman, a psychologist
appointed by the trial court, testified regarding whether appellant was mentally
competent and capable to raise her twins without daily supervision. Dr. Huntsman
opined that these lapses in judgment exhibited by appellant caused significant concerns
that appellant would not be able to attend to the twins’ safety. The trial court found, and
the record supports such finding, that “placing the children in an ongoing ‘at risk’
environment is not in the children’s best interest.”
{¶24} The trial court further assessed the factors set forth in R.C.
2151.414(E)(7)-(11). The trial court noted that although appellant has three other
children that have been removed from her care, she has never had her parental rights
involuntarily terminated. Therefore, none of the factors enumerated in R.C.
2151.414(E)(7)-(11) were applicable to appellant.
{¶25} We hold that the competent, credible evidence at the permanent custody
hearing clearly and convincingly supports the trial court’s finding that it is in the best
interest of the minor children to be permanently placed in the custody of GCJFS.
{¶26} Next, we analyze whether the trial court’s finding that the present case
exhibits the four factors enumerated in R.C. 2151.414(D)(2) was supported by
competent, credible evidence to meet the required standard. As noted above, section
(D)(2)(a) indicates the trial court must find, by clear and convincing evidence, “that one
or more of the factors in division (E) of this section exist and the child cannot be placed
with one of the child’s parents within a reasonable time or should not be placed with
either parent.” The trial court found, and the record supports a finding by clear and
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convincing evidence, that appellant has continuously failed to substantially remedy the
conditions causing the children to be placed outside appellant’s home and that
appellant’s chronic mental illness is so severe that it makes her unable to provide an
adequate permanent home for the children. R.C. 2151.414(E)(1)-(2).
{¶27} Ms. Warren testified that appellant did not utilize the many forms of
support offered. For instance, when confronted with an issue regarding the lack of an
individual to supervise appellant with her visitation, Ms. Warren set-up a “care.com”
account to explore candidates to provide supervision during visits with the children.
Appellant was required to finish this process, but she failed to do so.
{¶28} The trial court recognized that appellant’s mental health condition, alone,
does not make her an “unsuitable” parent. Instead, the trial court was required to find
that appellant cannot provide an adequate home because of her mental health
condition. The testimony presented at the hearing supports the trial court’s finding that
although appellant is receiving active treatment, she still suffers from lapses that would
impair her ability to attend to the twins. The record demonstrates that, if the twins were
reunified with their parents, they would not be supervised while in appellant’s care.
Without this supervision, the safety of the twins would be compromised. Dr. Huntsman,
the court-appointed psychologist, opined, “with reasonable psychological certainty, that
[appellant] lacks the mental competency and capacity to parent her boys adequately.”
{¶29} The record further establishes that the twins have also been in the custody
of GCJFS for more than two years. R.C. 2151.414(D)(2)(b). Moreover, the twins do not
meet the requirements for a planned permanent living arrangement (“PPLA”). In In re
A.B., 110 Ohio St.3d 230 (2006), the Ohio Supreme Court held that unless the children
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services agency moves for a PPLA placement of the child, pursuant to R.C.
2151.353(A)(5), the trial court lacks authority to consider such a dispositional option. In
this case, there is no indication the agency sought a PPLA as an alternative to
permanent custody. Accordingly, placement into a PPLA was not a viable dispositional
order in this case. Further, no motions for legal custody of the twins have been filed
with the trial court by anyone other than appellant and GCJFS. See R.C.
2151.414(D)(2)(d).
{¶30} We find that the competent, credible evidence at the permanent custody
hearing supports the trial court’s determination that the factors enumerated in R.C.
2151.414(D)(2) exist and, where necessary, supports the finding by clear and
convincing evidence. Therefore, permanent custody is in the best interest of the
children, and the court’s order committing the minor children to be permanently placed
in the custody of GCJFS should be affirmed.
{¶31} Appellant’s first assignment of error is without merit.
{¶32} Appellant’s second assignment of error alleges:
{¶33} “The trial court failed to sign the Nunc Pro Tunc Judgment Entry dated
September 25, 2013, as required by Civil Rule 58(A).”
{¶34} Appellant argues the trial court failed to sign the judgment entry dated
September 25, 2013, as required by Civ.R. 58(A). A review of such judgment entry
indicates that it is, in fact, signed by the trial court. Consequently, appellant’s second
assignment of error is without merit.
{¶35} Based on the opinion of this court, the judgment of the Geauga County
Court of Common Pleas, Juvenile Division, is hereby affirmed.
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THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
____________________
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
{¶36} The difficulties associated with mental illness are complicated by the
challenges of parenting two small children. The difficulties of being a parent and the
spouse of a person with mental illness are challenging even on the best of days. The
mother’s and father’s inability to follow a case plan and a safety plan which would keep
these children safe is the primary reason in the record for the granting of permanent
custody. I understand the arguments raised by the parents in this matter: if intensive
community support were available they may have had the ability to successfully parent
these children and keep them safe. Sadly, the statute as written by the legislature does
not require such efforts by the community.
{¶37} Reluctantly, I must concur.
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