In re A.S. , 2016 Ohio 1580 ( 2016 )

[Cite as In re A.S., 2016-Ohio-1580.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN THE MATTER OF: :
CASE NOS. CA2015-12-112
A.S., et al. : CA2015-12-113
: OPINION
4/18/2016
:
:
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 14-D000039
Richard D. Donenfeld, 120 West Second Street, Suite 2000, Dayton, Ohio 45402, guardian
ad litem
Andrew J. Brenner, 7588 Central Parke Blvd., Mason, Ohio 45040, for appellant, D.S.
Jeffery E. Richards, 147 Miami Street, P.O. Box 536, Waynesville, Ohio 45068, for appellant,
R.S.
David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee, Warren County Children Services
HENDRICKSON, J.
{¶ 1} Appellants appeal a decision of the Warren County Court of Common Pleas,
Juvenile Division, granting permanent custody of their children to appellee, Warren County
Children Services (WCCS). For the reasons detailed below, we affirm.
{¶ 2} Mother is the biological mother of J.S. and A.S. The father of J.S. is currently
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incarcerated for drug trafficking. The putative father of A.S. has never been tested for
paternity and has had no involvement in this case. All parties were properly served. The
matter presently before the court involves the appeals filed by Mother and J.S.'s father.
{¶ 3} On September 12, 2014, WCCS filed a neglect and dependency complaint and
requested temporary custody of six-year-old J.S and three-year-old A.S. The complaint
alleged that WCCS received information that J.S. had been without routine medical or dental
care, and that her teeth were rotting. The referral noted concerns with the family's living
arrangements, including allegations that their home was infested with bed bugs and had no
running water. When the matter was initially referred to WCCS, A.S. could not be located.
Later, it was discovered that Mother had placed A.S. in the care of her ex-boyfriend, a man
she alleged had a violent past and had almost "beat her to death." Furthermore, the
complaint also detailed a previous interaction with WCCS, in which Mother had been charged
with child endangering after A.S. was found wandering outside of the family's apartment
complex unsupervised.
{¶ 4} At a subsequent hearing, the parties stipulated that the children were
dependent and the children were placed in the temporary custody of WCCS. A case plan
was prepared and adopted by the juvenile court. The case plan included requirements that
Mother, among other things: (1) attend drug, alcohol, and mental health assessments, (2)
submit to drug screens, (3) refrain from criminal activity, and (4) obtain stable housing.
{¶ 5} Throughout the pendency of this matter, Mother made some attempts to
comply with portions of the case plan, but was unreliable or failed to complete many of the
requirements. The record reflects that Mother completed drug and alcohol assessments and
also obtained employment. However, Mother also failed to appear for a number of drug
screens, and failed a number of the drug tests that she did appear for, testing positive for
cocaine, marijuana, and benzoylecgonine. In addition, Mother was sporadic in her visitation
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with the children and would go long periods of time without contacting WCCS.
{¶ 6} In September 2015, WCCS moved for permanent custody. A permanent
custody hearing was held on December 7, 2015. During the hearing, the state presented the
testimony of the WCCS caseworker. The caseworker testified about the conditions leading
to WCCS involvement, and stated that the children have since been placed in the same
foster family and shown great improvement in their health and behavior.
{¶ 7} The caseworker explained that when A.S. was placed in the temporary custody
of WCCS he demonstrated significant developmental delays. Despite being three years old
at the time, the caseworker stated that A.S. was almost completely nonverbal with verbal
skills comparable to a 15 to 18-month-old infant. Although Mother informed WCCS staff that
A.S. was diagnosed with autism, the caseworker testified that A.S. was tested and does not
have autism. While in his current placement, A.S. has received appropriate medical care and
cognitive attention. Initially, A.S.'s foster parents taught A.S. to communicate through sign
language. With the aid of speech therapy, A.S. is now verbal and has progressed to
approximately the vocabulary of a two year old.
{¶ 8} In reference to J.S., the caseworker further elaborated on the severe dental
neglect that she suffered while in her mother's care. In addition, the caseworker explained
that J.S. suffered from behavioral issues and problems with her fine motor skills. While in
WCCS's custody, J.S. has received appropriate dental care and is progressing in her use of
fine motor skills.
{¶ 9} With respect to Mother and her progress, the caseworker testified that Mother
did complete two drug and alcohol assessments, with neither assessment providing
recommendations. However, the caseworker also testified that there was doubt with respect
to Mother's candor in those assessments, as she repeatedly tested positive for drugs.
{¶ 10} In addition, the caseworker testified about Mother's sporadic attendance at
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visitation and medical appointments, as well as her transient lifestyle. Although the children
had consistently scheduled medical appointments every week, the caseworker stated that
Mother attended only five out of the 52 appointments. Furthermore, although Mother's
visitation schedule was suspended following positive drug screens, the caseworker testified
about her attendance and timeliness for those visitation sessions. At the visitation sessions,
Mother was on time for a dozen visits, but was late to eight sessions, and cancelled ten other
sessions. Finally, the caseworker also testified about the lengthy periods of limited or no
contact between the agency and Mother and the difficulty in making contact. For example,
the caseworker noted that Mother had seven different phone numbers and four different
addresses throughout the progression of this case.
{¶ 11} Thereafter, Mother testified on her own behalf. In her testimony, Mother
admitted to using marijuana and the prescription drug Xanax, but she denied that she was a
drug addict. Although Mother acknowledged her sporadic attendance, she primarily noted
that she was unable to attend many of the visitation and medical appointments because she
had transportation issues and was also very busy working several jobs. Despite the fact that
she had not completed the entire case plan, Mother stated that she should retain custody of
the children because she is bonded with them and, as their mother, is in the best position to
care for them.
{¶ 12} Following the presentation of the evidence, the juvenile court granted the
motion for permanent custody. Mother and J.S.'s father have separately appealed the
juvenile court's decision.
Mother's Appeal
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION FOR
PERMANENT CUSTODY.
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{¶ 15} In her sole assignment of error, Mother argues the juvenile court erred by
granting permanent custody in favor of WCCS. After a thorough review of the record, we find
Mother's assignment of error is without merit.
{¶ 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 M.B., 12th Dist.
Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. 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. Id.
{¶ 17} 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. In re G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. 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). In re D.K.W., 12th Dist. Clinton
No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Second, the court must find that any of the
following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in
the temporary custody of the agency for at least 12 months of a consecutive 22-month
period; (4) 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; or (5) the
child or another child in the custody of the parent from whose custody the child has been
removed, has been adjudicated an abused, neglected, or dependent child on three separate
occasions. R.C. 2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033,
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2015-Ohio-3709, ¶ 10. Only one of those findings must be met for the second prong of the
permanent custody test to be satisfied. In re A.W., 12th Dist. Fayette No. CA2014-03-005,
2014-Ohio-3188, ¶ 12.
{¶ 18} In the present case, the juvenile court found by clear and convincing evidence
that Mother had abandoned J.S. within the meaning of R.C. 2151.414(B)(1)(b) and also
found that the children could not be placed with either parent within a reasonable time
pursuant to R.C. 2151.414 (B)(1)(a). With respect to the abandonment claim, the evidence
supported a finding that Mother had not contacted J.S. since June of 2015, at least 90 days
prior to the motion for permanent custody. Mother does not dispute the abandonment issue
with respect to J.S., but instead challenges the juvenile court's decision that A.S. could not be
placed with either parent within a reasonable time.
{¶ 19} Despite Mother's arguments to the contrary, we find the evidence supports, by
clear and convincing evidence, the juvenile court's decision. In the present case, A.S.'s
putative father has had no contact with the child and has not even consented to a paternity
test. Therefore, A.S. cannot be placed with his father within a reasonable time.
{¶ 20} With respect to Mother, as discussed in more detail below, Mother has failed to
complete her case plan and has failed to remedy the conditions that necessitated the
removal of the children. Specifically, the juvenile court found that Mother failed to utilize
rehabilitative services and material resources for the purposes of changing parental conduct.
Furthermore, there is evidence that Mother has been abusing drugs during the pendency of
this case and has been sporadic in both her visitation with the children and in the attendance
of the children's medical appointments. As the record clearly and convincingly supports the
juvenile court's decision that the children cannot be placed with either parent within a
reasonable time, we will address Mother's remaining claim that the juvenile court erred by
finding that it was in the children's best interest to be in the permanent custody of WCCS.
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{¶ 21} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a
permanent custody hearing:
[T]he court shall consider all relevant factors, including, but not
limited to the following:
(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.
{¶ 22} In granting the motion for permanent custody, the juvenile court considered the
best interest factors in light of the evidence presented at the hearing. With respect to R.C.
2151.414(D)(1)(a), the juvenile court found the children have been placed in a stable foster
home, established a relationship with their foster parents, and are happy in their current
placement. The juvenile court also found that the children have been thriving since their
arrival in the foster home and the foster family has expressed their desire for a permanent
placement.
{¶ 23} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile court indicated that it
did not conduct an in camera review, but that the guardian ad litem recommended that the
court grant permanent custody to WCCS.
{¶ 24} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that the
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children have been in the custody of WCCS since September 12, 2014 and have remained in
the custody of the WCCS throughout the pendency of this case.
{¶ 25} In considering R.C. 2151.414(D)(1)(d), the juvenile court found the children are
in need of a legally secure placement, the agency can provide the necessary legally secure
placement, and such placement is the only way the children's needs can be met. The
juvenile court stated that none of the children's parents have been able to meet the children's
needs and failed to remedy the conditions that necessitated removal.
{¶ 26} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court referenced its
prior findings that Mother had not had any contact with J.S. in over 90 days and had
abandoned her.
{¶ 27} Based on these factors the juvenile court found by clear and convincing
evidence that it was in the children's best interest to grant permanent custody to WCCS. We
have carefully and thoroughly reviewed the evidence in this case and find that the juvenile
court's determination regarding the best interest of the children is supported by clear and
convincing evidence.
{¶ 28} Throughout the pendency of this matter, Mother has been sporadic in her
visitation with the children, has failed to maintain contact with WCCS, and failed to complete
the necessary case plan services. While Mother claims to be busy working and has the
ability to care for the children, she has not demonstrated that she can rectify the very serious
medical, dental, and developmental concerns that necessitated WCCS involvement. Since
the children have been removed from her care and placed with a foster family, they have
received appropriate care and have "thrived" in that placement. The children's foster family
has taken the steps necessary to treat those concerns and have been instrumental in helping
the children overcome their behavioral and cognitive issues. Our conclusion is further
supported by the fact that Mother has admitted to using drugs while supervising the children,
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and has tested positive for drugs during the course of these proceedings. Nevertheless,
Mother fails to acknowledge any possibility of drug addiction or seek help to resolve those
issues.
{¶ 29} In light of the foregoing, we find the juvenile court's decision was supported by
clear and convincing evidence and find no error in the juvenile court's decision to grant
permanent custody of the children to WCCS. Mother's sole assignment of error is overruled.
Father's Appeal
{¶ 30} Counsel for J.S.'s father has filed a brief with this court pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), which: (1) indicates that a careful review of
the record from the proceedings below fails to disclose any errors by the trial court prejudicial
to the rights of father upon which an assignment of error may be predicated; (2) lists one
potential error "that might arguably support the appeal," Anders at 744; (3) requests that this
court review the record independently to determine whether the proceedings are free from
prejudicial error and without infringement of father's constitutional rights; (4) requests
permission to withdraw as counsel for father on the basis that the appeal is wholly frivolous;
and (5) certifies that a copy of both the brief and motion to withdraw have been served upon
father.
{¶ 31} Having allowed J.S.'s father sufficient time to respond, and no response having
been received, we have accordingly examined the record and find no error prejudicial to his
rights in the proceedings in the trial court. Therefore, the motion of counsel for J.S.'s father
requesting to withdraw as counsel is granted, and J.S.'s father's appeal is hereby dismissed
for the reason that it is wholly frivolous.
Conclusion
{¶ 32} Mother's assignment of error is overruled and the juvenile court's decision
granting permanent custody to WCCS is affirmed. J.S.'s father's appeal is dismissed and his
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counsel's request to withdraw is granted.
{¶ 33} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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