In re C.M. , 2017 Ohio 57 ( 2017 )

[Cite as In re C.M., 2017-Ohio-57.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN THE MATTER OF: :
C.M. : CASE NO. CA2016-07-051
: OPINION
1/9/2017
:
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2012 JC 0432
Megan Salyers, 4725 Cornell Road, Cincinnati, Ohio 45241, guardian ad litem
Dever Law Firm, Scott Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio 45069,
for appellant
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
RINGLAND, J.
{¶ 1} Appellant, the biological mother of C.M. ("Mother"), appeals a decision of the
Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of
C.M. to appellee, the Clermont County Department of Job and Family Services ("CCDJFS").
For the reasons detailed below, we affirm.
{¶ 2} On January 9, 2012, CCDJFS filed a dependency complaint and requested
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temporary custody of C.M., who was less than two years old. The complaint alleged that
CCDJFS received a report stating that Mother had overdosed on heroin. Following a
hearing, C.M. was adjudicated a dependent child. C.M. remained in the custody of Mother,
but was subject to the protective supervision of CCDJFS.
{¶ 3} Mother's case plan including housing, income, mental health, drug treatment,
and parenting education. Mother made progress towards the completion of her case plan,
particularly with her completion of a substance abuse treatment program. However, the
record reflects that CCDJFS continued to express concerns with respect to Mother's maturity
and ability to parent. Throughout the pendency of these proceedings, C.M.'s father has
failed to enter into a case plan and has no involvement in this matter.
{¶ 4} The ensuing years brought continued involvement with Mother and CCDJFS.
On November 8, 2012, CCDJFS was granted temporary custody through an emergency
order. Following a hearing, C.M. was again placed with Mother, again subject to the
protective supervision of CCDJFS.
{¶ 5} C.M. was again removed on June 10, 2013 and temporary custody was granted
to the agency on August 16, 2013. CCDJFS moved for permanent custody on August 22,
2014. Following a hearing, CCDJFS was denied permanent custody of C.M. and Mother,
again, was able to obtain protective supervision of C.M. on April 10, 2015.
{¶ 6} CCDJFS moved for permanent custody a second time and a trial was held on
February 5, 2016. At the permanent custody hearing, the state presented the testimonies of
several CCDJFS caseworkers, the guardian ad litem ("GAL"), C.M.'s foster father, as well as
Mother's counselor and other individuals assigned to her case to assist with parenting and
responsibility issues.
{¶ 7} Mother testified in support of her case and also called an independent
homecare provider, her brother, and a neighbor. In addition, Maternal Grandmother testified
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in support of Mother and also in support of her own motion for custody.
{¶ 8} The GAL prepared a written report in which she recommended permanent
custody be granted to the agency. The GAL noted that Mother and C.M. are bonded, but
expressed serious concern with Mother's maturity and ability to parent. In addition, the GAL
testified that Maternal Grandmother was not a suitable placement, as she had not completed
a home study and there were concerns that Mother would continue to exert influence and
"run the show" with respect to C.M. In addition, there were concerns with Maternal
Grandmother's stability in her current living arrangement. While Maternal Grandmother
maintained an apartment, she did not have long-term plans at that residence and there were
concerns that she would return to her home in Moscow, Ohio. At the time, Maternal
Grandmother's son and his family resided in the Moscow home and had had been
uncooperative with CCDJFS. In her testimony, Maternal Grandmother admitted that her son
and his wife had a background that included "some things" on "the unacceptable list."
{¶ 9} After taking the matter under advisement, the juvenile court magistrate granted
permanent custody in favor of CCDJFS. Mother then filed objections to the magistrate's
decision, which were overruled. Mother now appeals the juvenile court's decision granting
permanent custody to CCDJFS, raising one assignment of error for review:
{¶ 10} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS DECISION
AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILD TO THE AGENCY
DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 11} In her sole assignment of error, Mother argues the juvenile court's decision
granting permanent custody of C.M. to CCDJFS was not in C.M.'s best interest and was not
supported by the weight of the evidence. After a thorough review of the record, we find
Mother's assignment of error is without merit.
{¶ 12} Before a natural parent's constitutionally protected liberty interest in the care
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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.{¶ 13} 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,
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.
{¶ 14} In this case, the juvenile court found by clear and convincing evidence that
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C.M. had been in the temporary custody of CCDJFS for more than 12 months of a
consecutive 22-month period as of the date the agency filed for permanent custody. Mother
does not dispute this finding. Rather, Mother contests the juvenile court's finding that
granting permanent custody of C.M. to CCDJFS was in his best interest.
{¶ 15} 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.
{¶ 16} In granting the motion for permanent custody, the juvenile court considered
each of 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 that C.M. and his father do not
have a relationship. Though Mother and C.M. do have a relationship and are bonded, the
juvenile court also found that their relationship is stressful. Mother has problems disciplining
C.M. and there are concerns about Mother's ability to parent. Mother has a pattern of failing
to develop a daily routine and repeatedly failed to ensure C.M.'s attendance at court-ordered
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educational daycare in a timely fashion and there was great concern that Mother would not
ensure C.M.'s attendance at school.
{¶ 17} In addition, the trial testimony highlights a concerning inability to parent. In
communications with C.M., Mother will often ask adult-style questions and is unable to
differentiate between age-appropriate behavior and topics. The majority of their visitation
time consists of playing videogames, instead of engaging in appropriate conversation.
Furthermore, agency caseworkers testified about a number of situations highlighting Mother's
impulsive behavior and inability to control C.M. As one example, a CCDJFS caseworker
explained that during one visit to the agency, a fire alarm sounded and everyone was
evacuated from the building. As Mother, C.M., and the caseworker were reentering the
building, C.M. chose to hold the caseworker's hand. Mother became offended by this act and
threatened not to visit C.M. again and walked away from him, leaving him in tears. In another
instance, a CCDJFS caseworker made an unannounced visit to Mother's home to discover
that C.M. had been left at home unattended.
{¶ 18} Regarding Maternal Grandmother, there is justified concern that Maternal
Grandmother is not a suitable placement. Despite the lengthy proceedings, Maternal
Grandmother did not take the necessary steps to offer an alternative arrangement until the
very end of these proceedings. Though Maternal Grandmother currently resides in an
appropriate home, she admitted that she does not have a long-term plan in that residence
and there is concern that she will move back to her home in Moscow, which would not be
appropriate considering concerns about the other individuals residing there.
{¶ 19} To the contrary, the juvenile court found that "there is no doubt that the foster
family has had a significantly positive impact upon C.M.'s life." The trial court noted that a
more structured family environment has alleviated many of the behavioral issues that C.M.
exhibits with Mother. The foster family attends to C.M.'s educational and emotional needs
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and their family structure provides C.M. with ample interaction with extended family. Despite
initial concerns that C.M. may require special education services due to developmental
delays, those concerns were later resolved as C.M. presents as a very intelligent child who
enjoys reading with the foster family and keeping a reading journal. In addition, the record
reflects that C.M. is very bonded with the foster family. The foster family has expressed a
desire to adopt C.M. should permanent custody be granted to the agency.
{¶ 20} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile court stated that the
child's wishes had been expressed to the GAL and C.M. expressed his desire to remain with
the foster family, but still be able to visit Mother.
{¶ 21} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed C.M.'s
custodial history and found that C.M. had been in the temporary custody of the agency for 12
or more months of a consecutive 22-month period.
{¶ 22} In considering R.C. 2151.414(D)(1)(d), the juvenile court found C.M. is in need
of a legally secure placement, the agency can provide the necessary legally secure
placement, and such placement is the only way C.M.'s needs can be achieved. The juvenile
court noted that Mother had attended many of the programs mandated by her case plan, but
had failed to demonstrate the desire and motivation to apply those lessons to her daily life.
Mother does not accept guidance from others, as she believes that CCDJFS is to blame for
C.M.'s removal from her home.
{¶ 23} In sum, Mother was given one final chance to prove that she could care for
C.M., but has failed to rectify the very serious concerns about her ability to parent. The most
recent attempts at parenting indicate that Mother cannot control C.M., and that she cannot
refrain from loud outbursts in front of the child, or make C.M.'s health and welfare her first
priority. While in the care of the foster family, C.M. has been afforded the stability and
security that he requires.
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{¶ 24} With respect to Maternal Grandmother, the juvenile court found that her
situation was "unsuitable." Again, Mother does not have long-term plans in her current living
arrangement and there are concerns that Mother has not been forthright with the agency, as
evidenced by Maternal Grandmother not informing the agency that she had another child in
her care. In addition, Maternal Grandmother's inability to control Mother will likely continue to
keep C.M.'s life in chaos.
{¶ 25} Based on these findings, the juvenile court found by clear and convincing
evidence that it was in C.M.'s best interest to grant permanent custody to CCDJFS. On
appeal, Mother disputes the juvenile court's findings and argues that the evidence did not
support the grant of permanent custody. In so doing, Mother alleged that she has maintained
her sobriety and has secured stable housing. In addition, Mother states that the evidence
shows that she knows how to support C.M. and can provide him with a healthy and safe
environment. Although Mother agrees that certain provisions of the case plan have not been
followed, she alleges that many of these alleged violations were mere "technical violations"
and do not reflect agency concerns. In sum, Mother believes that the evidence
demonstrated that placement with her would be appropriate and legally secure.
{¶ 26} We have carefully and thoroughly reviewed the evidence in this case and find
that the juvenile court's determination regarding the best interest of C.M. is supported by
clear and convincing evidence and was not against the manifest weight of the evidence. This
matter has a lengthy and concerning history. Though Mother has made progress in the
treatment of her drug addiction and shown positive growth in other areas, the record reflects
that C.M.'s best interests are best served through a grant of permanent custody to CCDJFS.
Mother has had over four years to improve the situation in her household. Still, Mother does
not seem able to control herself or recognize the full extent of her parental responsibilities
with respect to the care of C.M. As this court has stated previously, "a parent is afforded a
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reasonable, not an indefinite, period of time to remedy the conditions causing the children's
removal." In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 23; In re
A.M.L., 12th Dist. Butler No. CA2013-01-010, 2013-Ohio-2277, ¶ 32. While Mother has
shown some ability to work within the confines of her case plan, it was too little, too late. The
record clearly indicates that Mother is incapable of taking care of C.M. on a consistent basis.
{¶ 27} Therefore, having found no error in the juvenile court's decision granting
CCDJFS permanent custody of C.M. Mother's single assignment of error is overruled.
{¶ 28} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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