In re A.C. , 2014 Ohio 4402 ( 2014 )

[Cite as In re A.C., 2014-Ohio-4402.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: A.C. :
: Appellate Case No. 26211
:
: Trial Court Case No. 2012-5146
:
: (Civil Appeal from Common
: Pleas Court, Juvenile Division)
:
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OPINION
Rendered on the 3rd day of October, 2014.
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APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 West
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton, Ohio
45402
Attorney for Appellant/Father
MELISSA M. REPLOGLE, Atty. Reg. No. 0084215, 2312 Far Hills Avenue, Suite 145, Dayton,
Ohio 45419
Attorney for Appellee/Mother
JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 N. Ludlow Street, Suite 386, Dayton,
Ohio 45402
Guardian Ad Litem
.............
HALL, J.
{¶ 1} J.C. (“Father”) appeals from the trial court’s judgment entry awarding
Montgomery County Children Services (MCCS) permanent custody of his child, A.C.
{¶ 2} Father advances two assignments of error in this expedited appeal. First, he
contends the trial court erred in granting MCCS permanent custody where the agency failed to
prove by clear and convincing evidence that such a disposition was in the child’s best interest.
Second, he claims the grant of permanent custody was erroneous because MCCS failed to prove
by clear and convincing evidence that the child could not be placed with him within a reasonable
time.
{¶ 3} The record reflects that A.C. was born in January 2012. At the time of birth,
Father was residing with R.J. (“Mother”), the child’s mother. In the proceedings below, Father
testified that he was A.C.’s primary care-giver for about six months after birth. In the first half of
2012, Father and Mother’s relationship deteriorated. Father moved to New Paris, Ohio. For a
short time, Mother and A.C. rejoined him there. According to Father, Mother and the child then
moved out.
{¶ 4} In July 2012, MCCS filed a dependency complaint, alleging that A.C. lacked
adequate parental care and that the child’s condition or environment warranted intervention.1
More specifically, the complaint alleged, among other things, that both parents had
substance-abuse problems, that Father had domestic-violence issues, that both parents were
unemployed, and that Mother had periods of homelessness and unstable housing. The agency
became involved upon learning that Mother had left A.C. in the care of a third party and had not
1
The complaint also addressed another of Mother’s children who has a different father. That child is not at issue here.
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returned or been heard from for eight days. (Tr. at 44). After an order of interim temporary
custody to MCCS, A.C. was adjudicated dependent. MCCS then obtained full temporary custody
in October 2012. While in the agency’s care, A.C. resided in a foster home, where she remained
throughout the proceedings below.
{¶ 5} In May 2013, MCCS moved for permanent custody, arguing that Mother had not
followed through with her case plan and that she had continued to test positive for amphetamines,
benzodiazepines, cocaine, and opiates. As for Father, MCCS asserted that he had maintained
little contact with the agency or with A.C. The matter proceeded to an August 2013 hearing on
the permanent-custody issue and other motions.2 Based on the evidence presented, a magistrate
awarded MCCS permanent custody of A.C. Father timely objected. On April 9, 2014, the trial
court filed a decision and judgment entry in which it independently reviewed the record, made its
own findings, addressed and overruled all objections, and adopted the magistrate’s decision.
(Doc. #4). This timely appeal by Father followed.3
{¶ 6} The standards governing permanent-custody determinations are as follows:
R.C. 2151.414 establishes a two-part test for courts to apply when
determining a motion for permanent custody to a public services agency. The
statute requires the court to find, by clear and convincing evidence, that: (1)
granting permanent custody of the child to the agency is in the best interest of the
child; and (2) either the child (a) cannot be placed with either parent within a
2
The disposition of one of Mother’s other children with a different father also was addressed at the hearing. That issue is not before
us.
3
Mother has not challenged the permanent-custody decision and has not participated in this appeal.
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reasonable period of time or should not be placed with either parent if any one of
the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and
no relatives are able to take permanent custody of the child; or (d) has been in the
temporary custody of one or more public or private children services agencies for
twelve or more months of a consecutive twenty-two month period. * * *
R.C. 2151.414(D) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (1)
the interaction and interrelationship of the child with the child's parents, relatives,
foster parents and any other person who may significantly affect the child; (2) the
wishes of the child; (3) 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; (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 to the agency; and (5) whether any of the factors in
R.C. 2151.414(E)(7) through (11) are applicable.
In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14–15. {¶ 7 } Here the trial
court made the findings required to award MCCS permanent custody. Specifically, it found by
clear and convincing evidence that A.C. could not be placed with either parent within a
reasonable time and that an award of permanent custody to the agency was in the child’s best
interest. Although Father challenges both determinations, we find clear and convincing evidence
to support them.
[Cite as In re A.C., 2014-Ohio-4402.]
{¶ 8} The trial court found that A.C. could not be placed with either parent within a
reasonable time pursuant to R.C. 2151.414(E)(1), which provides:
(E) In determining * * * whether a child cannot be placed with either
parent within a reasonable period of time * * *, the court shall consider all
relevant evidence. If the court determines, by clear and convincing evidence, at a
hearing * * * that one or more of the following exist as to each of the child’s
parents, the court shall enter a finding that the child cannot be placed with either
parent within a reasonable time * * *:
(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.
R.C. 2151.414(E)(1).
{¶ 9} Here the trial court determined that both parents had made inadequate progress
on their case-plan objectives, despite having opportunities to do so, and that A.C. could not be
placed with them within a reasonable time. During the hearing below, MCCS caseworker Paula
Long identified Father’s case-plan objectives as (1) completing substance-abuse treatment and
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following recommendations, (2) participating in a batterer’s intervention group, (3) participating
in parenting education, (4) complying with the terms of probation, (5) signing necessary releases,
and (6) maintaining income and housing. (Tr. at 56).
{¶ 10} Long testified that Father was referred for substance-abuse treatment because of
drug and alcohol use and his three OVI offenses. (Id.). To Long’s knowledge, Father had failed to
follow through on a referral for a substance-abuse assessment. (Id.). Between September 2012
and May 2013, Father also had failed to have contact with her despite her scheduling home visits
and visits for him with A.C. (Id. at 57). Long mailed him referrals and left phone messages, but
very seldom got any response. (Id. at 65-66). In May or June 2013, Father finally contacted her
and informed her he was about to be sent to the River City Correctional facility. (Id.).
{¶ 11} With regard to the domestic-battery issue, Long stated that Father was on
probation for felony domestic violence and that he had failed to follow through on a referral to a
batterer’s-intervention program.4 (Id.). Father also had failed to follow through with a referral for
parenting classes. (Id. at 57-58). In addition, Father had visited A.C. only one time in the
roughly thirteen months or so that MCCS had been involved in the case. (Id. at 57-58, 71). Long
testified: “He missed two visits in a row, and, well, he’s never come. I mean, he just—he didn’t
come to visit at all.” (Id. at 65). According to Long, Father had attributed his lack of visits to his
heavy use of alcohol. (Id. at 71, 85).
{¶ 12} With regard to income, Long testified that Father had reported working a
construction job the prior summer before being laid off. To her knowledge, he had no income at
4
The record reflects that Father had been convicted of third-degree felony domestic violence in 2011. (Tr. at 134). That offense was
his fourth domestic-violence conviction. (Id. at 140-141).
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the time of the hearing. (Id. at 58-59).
{¶ 13} Finally, with regard to housing, Long noted that Father was residing at the River
City Correctional facility, where a substance-abuse treatment program was offered. (Id. at 59). He
was sent there in lieu of a ninety-day jail sentence in Preble County for a third OVI offense that
occurred in June 2013 and/or for a community control violation on his 2011 felony
domestic-violence conviction. (Id. at 31, 131, 134-135, 139). According to Long, Father planned
to live with his grandmother upon his release from the River City facility. Long deemed
grandmother’s house “appropriate.” (Id. at 58).
{¶ 14} The record reflects that Father entered the River City facility in late June 2013
and that his stay was anticipated to be up to six months. (Id. at 32-33). The batterer’s intervention
program that was part of Father’s case plan was not available at River City. Given his failure to
follow up on a referral prior to being sent to River City, he would have to wait until his release to
start it. (Id. at 86).
{¶ 15} When asked why she believed Father could not be reunited with A.C. within a
reasonable time, Long responded: “He just began treatment. I’m not sure how long it’s going to
take for him to complete the treatment. It is a voluntary program. He could leave. He’s not had a
relationship with [A.C.]. He’s only visited with her once. And then, again, he’s not completed his
case plan objectives.” (Id. at 81).
{¶ 16} A.C.’s guardian ad litem, attorney James Armstrong, also testified at the
permanent-custody hearing. Armstrong stated that he met with Father once when the case
was opened. (Id. at 113). He described later making efforts to reach Father and leaving
numerous messages. (Id.) He eventually located Father at the Preble County jail shortly
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before the transfer to the River City facility. (Id. at 114). When asked why he believed
Father could not be reunited with A.C. within a reasonable time and why an extension of
temporary custody should not be ordered, Armstrong explained:
Well, [Father] is in his program now. The information I had was that it
was a voluntary program. I—in light of his appearance here in jail dress, I’m
not sure it’s a voluntary program, because I would think that he could have
simply showed them his paperwork and been permitted to come without being
conveyed by the police.
But it’s mainly his lack of ongoing substance abuse issues, including
the OVI, his third OVI, from a few months ago, and primarily his lack of
engagement with [A.C.].
He’s had one visit and [A.C.] is 19 months old, and she has—she’s
pretty much assimilated into the foster family. They have young children in
the home. I mean, that’s—that’s basically become her family at this point in
time.
***
[Permanent custody] was my recommendation, and—and just to say,
part of that also is that July was the—was the [expiration] of the temporary
custody, so an extension would take us through sometime in January. So if
[Father] does complete the program, as Ms. Long indicated, he’s going to
come out of the program; he still has to do the domestic violence and still has
to—has to demonstrate some period of sobriety.
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I believe his second OVI was in 2008, so that was five years ago, and
he’s still continuing to engage in the same type of, you know, behaviors,
which indicates that it’s longstanding, and that usually indicates it takes a
longer period of time for recovery.
And then, of course, he would have to come out and try to develop a
relationship with [A.C.].
And so we’re talking—I mean, there’s not going to be any possibility
of reunification with [Father] during the period of first extension. The only
possibility would be the—at the end of the second extension, and that would
be—you know, that would be somewhat questionable even at that point.
(Tr. at 115-117).
{¶ 17} In our view, the record supports a finding that Father continuously and
repeatedly failed to make substantial progress on his case plan despite reasonable and diligent
efforts by MCCS to assist him. The trial court did not err in finding by clear and convincing
evidence that A.C. could not be reunited with him within a reasonable time. In opposition to
this conclusion, Father opines that he could have completed “most” of his case-plan
objectives by the time a first extension of temporary custody would have expired, if one had
been granted. (Appellant’s brief at 5-6).5 He also argues that he had a “bond” with A.C. and
that his one visit went well. (Id.).
5
Father claims he actually did complete the case-plan objectives after the permanent-custody hearing, that he now has been
released from the River City facility, that he is gainfully employed, and that he has weekly visits with A.C. (Appellant’s brief at 6). But these
alleged post-judgment facts are not in evidence. The question before us is whether the evidence before the trial court supports its judgment,
not whether Father may have taken positive steps after the trial court’s decision.
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{¶ 18} We note, however, that MCCS was not required to seek an extension of
temporary custody. Under R.C. 2151.415(A), the agency was entitled to move for permanent
custody rather than to seek an extension.6 Given the agency’s decision to seek permanent
custody, the relevant question is whether clear and convincing evidence supports the trial
court’s finding that A.C. could not be returned to Father within a reasonable time. We believe
that it does. Father was unemployed at the time of the custody hearing and residing in a
residential treatment facility in lieu of a jail sentence imposed in connection with his most
recent OVI offense. Father was anticipating a stay of at least several more months. At the
time of the hearing, he had not completed various aspects of his case plan and had shown
little initiative in following up with his caseworker or with referrals to assist him. He also had
maintained almost no contact with his child for more than a year.
{¶ 19} As for Father’s argument about his bond with A.C. and his positive visit,
those facts relate more to the best-interest issue. In any event, the record reflects that Father
saw his child—who was about six months old when MCCS became involved and about
nineteen months old at the time of the hearing—just once in roughly thirteen months.
Although he blamed a lack of transportation, caseworker Long testified that he had attributed
his lack of visits to heavy drinking. We note too that Father had transportation available when
he committed his third OVI offense during the pendency of this case. In short, nothing in
Father’s argument persuades us the trial court erred in finding that A.C. could not be placed
with him within a reasonable time.
6
We note too that an extension of temporary custody is not warranted unless “there has been significant progress on the case plan
of the child” and “there is reasonable cause to believe that the child will be reunified with one of the parents or otherwise permanently placed
within the period of extension.” R.C. 2151.415(D)(1).
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{¶ 20} The record also supports the trial court’s finding that an award of permanent
custody to MCCS was in the child’s best interest. On this issue, Father notes that “visitation”
was not a formal part of his case-plan objectives. He also points out that he became
incarcerated on the most recent OVI offense in June 2013 and could not visit thereafter. He
attributes his lack of prior visitation to “transportation issues.” Father additionally argues that
he was a “daily part” of his child’s life for the first six months. Finally, he stresses that his
one visit with the child went well.
{¶ 21} In finding that A.C.’s best interest was served by awarding permanent
custody to MCCS, the trial court properly considered the statutory best-interest factors. (Doc.
#4 at 7-8). With regard to the child’s interaction and interrelationship with others and her
custodial history, the trial court noted that A.C. had been in the same foster placement since
July 2012. The foster family included one of A.C.’s siblings and three other children. A.C.
was bonded with her foster parents, who desired to adopt. (Tr. at 75-76, 79). As for Father,
the trial court noted that he had attended only one visitation session. (Id. at 71). The trial
court also found a need for A.C. to obtain a legally secure placement, which it determined
could not be done without an award of permanent custody to MCCS. On this issue, the trial
court noted that Father had not satisfactorily addressed his substance abuse and domestic
violence issues at the time of the hearing. The trial court also noted the absence of any other
relatives who were willing and able to care for A.C. As a result, the trial court agreed with the
guardian ad litem’s assessment that an award of permanent custody was in the child’s best
interest.
{¶ 22} Upon review, we see no basis for reversing the trial court’s best-interest
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determination, which is supported by the record. As for Father’s arguments, the fact that
“visitation” was not identified as a formal case-plan objective does not mean the trial court
could not consider his lack of visitation when considering A.C.’s best interest. Although
Father became incarcerated in June 2013, we note that A.C. went into MCCS’s care in the
summer of 2012. Thus, Father’s incarceration fails to explain his lack of visits for most of the
time at issue. The trial court also was free to disbelieve Father’s claim that a lack of
transportation prevented him from visiting. As noted above, caseworker Long testified that
Father had attributed his lack of visits to heavy drinking, not transportation issues. Moreover,
the fact that Father committed an OVI offense during the pendency of this case suggests he
did have some transportation. Finally, the fact that Father may have been the primary
care-giver for the first six months of A.C.’s life does not demonstrate error in the trial court’s
best-interest finding. As noted above, Father had seen the child only once since that time.
{¶ 23} Based on the reasoning set forth above, we overrule Father’s assignments of
error and affirm the judgment of the Montgomery County Common Pleas Court, Juvenile
Division.
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DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
April F. Campbell
Lucas W. Wilder
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Melissa M. Replogle
James S. Armstrong
Hon. Anthony Capizzi