In re A.S. , 2017 Ohio 8984 ( 2017 )

[Cite as In re A.S., 2017-Ohio-8984.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: A.S. C.A. No. 28743
I.S.
J.S.
A.S.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 16-02-0107
DN 16-02-0108
DN 16-02-0109
DN 16-02-0110
DECISION AND JOURNAL ENTRY
Dated: December 13, 2017
SCHAFER, Presiding Judge.
{¶1} Appellant-Father appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that terminated his parental rights to his minor children A.S., I.S., J.S.,
and Am.S., and placed the children in the permanent custody of Summit County Children
Services Board (“CSB”). This Court affirms.
I.
{¶2} Father is the established biological father of A.S. (d.o.b. 5/30/09), I.S. (d.o.b.
10/27/12), J.S. (d.o.b. 10/31/13), and Am.S. (d.o.b. 1/27/16). The biological mother of all four
children abandoned the children and is not a party to this appeal. Mother and Father have never
been married but have apparently cohabited as domestic partners. There is a history of domestic
violence between the parents, and Father was on probation for third degree felony domestic
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violence against Mother during the proceedings. He was also subject to a temporary protection
order and prohibited from having any contact with Mother.
{¶3} The family has had prior involvement with CSB. A.S. was twice before removed
from her parents’ care. She was adjudicated dependent in 2009, and dependent and neglected in
2010. In both prior cases, the child was reunified with her parents. CSB again became involved
with the family in late 2015, after receiving an intake report after the police investigated another
domestic violence incident between Mother and Father. When the police arrived, they found
evidence of drugs in the home. Father was arrested for violating the temporary protection order
issued in favor of Mother.
{¶4} CSB began to work informally with the family and instituted a voluntary case
plan to provide for the safety, stability, and security of the children. When neither parent was
able to demonstrate the ability to provide the necessary care to maintain the children in a safe,
stable, and secure environment, the agency filed complaints alleging all four children to be
dependent. After an adjudicatory hearing, the juvenile court found the children to be dependent
and placed them in the temporary custody of CSB. The juvenile court adopted the agency’s case
plan as the order of the court. At first, Mother attempted to comply with case plan objectives,
but she quickly ceased any involvement in the case. According to the magistrate’s findings at
periodic review hearings, Father’s case plan compliance was sporadic.
{¶5} Nine months after the initiation of these cases, CSB filed a motion for permanent
custody. The agency alleged that the first prong of the permanent custody test was satisfied
because (1) Mother abandoned the children pursuant to R.C. 2151.414(B)(1)(b); and (2) A.S.
was adjudicated an abused, neglected, or dependent child on three separate occasions; and I.S.,
J.S., and Am.S. were removed from the custody of parents where another child of the parents
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(A.S.) had previously been adjudicated abused, neglected, or dependent on three separate
occasions pursuant to R.C. 2151.414(B)(1)(e). The agency further alleged that permanent
custody was in the best interest of the children. Almost six months later, Father filed a
competing motion for legal custody, or alternatively, for a six-month extension of temporary
custody.
{¶6} The children had been out of the parents’ care for almost 18 months, when the
juvenile court held the final dispositional hearing. The trial court granted CSB’s motion for
permanent custody and terminated Mother’s and Father’s parental rights. Father filed a timely
appeal in which he raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S DECISION TO GRANT CSB’S MOTION FOR
PERMANENT CUSTODY WHILE DENYING FATHER’S MOTION FOR A
SIX-MONTH EXTENSION IS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶7} Father argues that the juvenile court’s award of permanent custody to CSB, in lieu
of a six-month extension of temporary custody, was against the manifest weight of the evidence.
This Court disagrees.
{¶8} In considering whether the juvenile court’s judgment is against the manifest
weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 20. When weighing the
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evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
{¶9} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency, it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
child or another child of the same parent has been adjudicated abused, neglected, or dependent
three times; or that the child cannot be placed with either parent, based on an analysis under R.C.
2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of
the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and
2151.414(B)(2); see also In re William S., 75 Ohio St. 3d 95, 97-99 (1996). Clear and convincing
evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as
to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St. 3d 361, 368
(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶10} The juvenile court found that the first prong of the permanent custody test was
satisfied because (1) Mother had abandoned the children (R.C. 2151.414(B)(1)(b)), and (2) A.S.
had been adjudicated a dependent and/or neglected child on three separate occasions (R.C.
2151.414(B)(1)(e)). Father does not challenge these findings; rather, he solely challenges the
finding that permanent custody was in the best interest of the children. Father moreover argues
that a six-month extension of temporary custody was in the children’s best interest.
{¶11} The decision to grant or deny an extension of temporary custody lies in the
discretion of the juvenile court. In re P.B., 9th Dist. Summit No. 23276, 2006-Ohio-5419, ¶ 36,
citing R.C. 2151.415(D)(1) and (2). The juvenile court is authorized to exercise its discretion to
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extend temporary custody only if it finds, by clear and convincing evidence, the following three
things: “‘(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 or otherwise permanently placed within the period of
extension.’” In re J.P.-M., 9th Dist. Summit Nos. 23694 and 23714, 2007-Ohio-5412, ¶ 12,
quoting In re P.B. at ¶ 36. Before the juvenile court may grant either permanent custody or a six-
month extension of temporary custody, it must conduct a best interest analysis. In re S.D., 9th
Dist. Lorain Nos. 15CA010864 and 15CA010867, 2016-Ohio-1493, ¶ 30. Accordingly, “[i]f
permanent custody was in the children’s best interests, the alternative disposition of extending
temporary custody was not.” Id., citing In re I.A., 9th Dist. Summit No. 26642, 2013-Ohio-360,
¶ 10; see also In re N.M., 9th Dist. Summit No. 28118, 2016-Ohio-5212, ¶ 18.
{¶12} When determining whether a grant of permanent custody is in a child’s best
interest, the juvenile court must consider all the relevant factors, including those enumerated in
R.C. 2151.414(D)(1): the interaction and interrelationships of the child, the wishes of the child,
the custodial history of the child, the child’s need for permanence and whether that can be
achieved without a grant of permanent custody, and whether any of the factors outlined in R.C.
2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see also In re R.G., 9th Dist. Summit
Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11.
Interaction and interrelationships of the children
{¶13} The first best interest factor requires the juvenile court to consider the “interaction
and interrelationship of the child[ren] with the child[ren]’s parents, siblings, relatives, foster
caregivers and out-of-home providers, and any other person who may significantly affect the
child[ren.]” R.C. 2151.414(D)(1)(a).
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{¶14} It is unclear how much involvement Father had in the children’s lives prior to this
case, given the ages of the three youngest children and the 2-year no contact order established in
2015. As to the oldest child, A.S. was earlier twice removed from her parents’ custody. During
the 18 months that this case was pending, Father was not consistent in visiting with the children.
He missed multiple visits and was removed from the visitation schedule per agency protocol.
After he requested that his visits be reinstated, CSB required him to call in to confirm each visit
due to the children’s placement in a foster home an hour away. Father missed some visits due to
his failure to call the agency by the designated time to arrange for the children’s transportation.
The guardian ad litem reported that when Father did appear for visitation, he had difficulties
addressing the needs of all four children at once. Although this improved slightly over time,
Father still struggled to keep up with all four children during visitation. The guardian further
reported that Father clearly loves his children and that they do share a bond.
{¶15} The four children were placed in the same foster home together. At first, A.S.
assumed a caretaker role in relation to her younger siblings, but she became less vigilant as she
acclimated to the security and stability in the foster home. The children enjoy a very close
relationship with one another. Brothers I.S. and J.S. are particularly close given their closeness
in ages. Am.S. enjoys imitating her older siblings and strives to keep up with them. All four
children express affection for their foster family and one another. Although the foster family is
not able to adopt the children, their placement in the foster home is secure until a permanent
home can be found.
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Wishes of the children
{¶16} The second best interest factor requires consideration of the “wishes of the
child[ren], as expressed directly by the child[ren] or through the child[ren]’s guardian ad litem,
with due regard for the maturity of the child[ren.]” R.C. 2151.414(D)(1)(b).
{¶17} The guardian ad litem reported that A.S. initially expressed a desire to live with
Mother. After not seeing Mother for over a year, A.S. told the guardian that she wanted to live
with Father. I.S., J.S., and Am.S. are too young to articulate their wishes. The guardian ad litem
recommended permanent custody in the best interest of the children, and further recommended
that the children not be separated from one another.
Custodial history of the children
{¶18} The third best interest factor requires consideration of the children’s custodial
history, including whether they have been in the temporary custody of CSB for 12 or more
months of a consecutive 22-month period. R.C. 2151.414(D)(1)(c).
{¶19} A.S. has been removed from her parents’ custody on three separate occasions
during her eight years of life. All of the children spent the past 18 months together in the same
foster home. Because of the 2-year no contact order in effect between Mother and Father since
2015, Father would have had limited contact with the children during that time when they were
in Mother’s care.
The children’s need for a legally secure permanent placement; less restrictive options
{¶20} The fourth best interest factor requires the juvenile court to consider the children’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[.]” R.C. 2151.414(D)(1)(d).
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{¶21} Father has been involved with CSB on three separate occasions for a number of
years. He also has a significant criminal history with regard to domestic violence convictions.
Based on historic and ongoing issues, CSB crafted the following case plan objectives for Father:
(1) obtain a substance abuse assessment, follow through with all treatment recommendations,
and submit to weekly urine drug screens; (2) comply with the terms of his probation, including
engaging in all court-ordered counseling; (3) complete parent education classes; (4) complete the
Fame Fathers program; (5) obtain and maintain safe and stable housing, and demonstrate the
ability to provide for the basic needs of the children; and (6) and establish paternity.
{¶22} Father’s probation officer had been supervising Father for almost two years at the
time of the hearing. The probation officer testified that he has seen some progress in the past
two years, but that “as always,” Father consistently fails to follow up on what he needs to do.
Approximately 90 days before the hearing, the probation officer sent Father to a halfway house
(Oriana) “to try to get him stable” to give Father a better chance at reunification with the
children. Although Father tested positive for amphetamines a few times early in his placement,
he did fairly well in the structured setting. Upon release from Oriana, however, Father began
missing appointments with counselors and his probation officer, sometimes because he “forgot.”
The probation officer testified that his current concerns regarding Father include his ability to
maintain sobriety; his inconsistency in attending treatment services; and his failure to obtain
housing, which was a problem the “whole time.”
{¶23} The psychological assistant who conducted Father’s parenting evaluation testified
that Father failed to appear for his first two scheduled appointments in October and November
2016. Father only submitted to a parenting evaluation about a month before the hearing. He
dropped in unannounced at Summit Psychological Associates without an appointment, and by
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sheer happenstance the evaluator was able to see him that day. Father continues to minimalize
the impact that his substance abuse issues have had on his life. In addition, he denies culpability
for any domestic violence and blames Mother for creating those violent encounters. The
caseworker, too, testified that Father refuses to take responsibility for the issues that led to the
removal of the children in this case, and in the prior two cases. She noted that Father denies that
he has a drug problem or any issue with domestic violence, despite three convictions.
{¶24} Father’s parenting evaluation gave rise to diagnoses of a substance abuse related
disorder relative to alcohol, cannabis, and amphetamines; an other-specified personality disorder
with antisocial traits; and bipolar disorder. He presents with maladaptive traits that interfere with
his ability to maintain healthy relationships. The evaluator opined that Father has “very little
insight into his situation” and “lack[s] significant parenting knowledge.” Based on Father’s
dismissive attitude regarding his mental health and substance abuse issues, the evaluator testified
that it is unlikely that Father would take any treatment services seriously.
{¶25} The caseworker testified that Father has been very inconsistent in his attempts to
comply with his case plan objectives. Of significant concern was Father’s lack of effort to
address his substance abuse issues. After submitting to a substance abuse assessment, Father
was terminated from intensive outpatient treatment at Community Health Center due to
numerous missed appointments. From mid-May 2016 until January 2017, Father submitted only
seven of his required weekly urine screens. In five of those screens, he tested positive for
amphetamines. The case worker testified that the agency presumes that a client’s failure to
submit to a drug screen indicates that the screen would have been positive. Since his release
from Oriana on June 8, 2017, Father submitted one urine screen, which was negative; but he
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failed to submit any additional samples prior to the hearing at the end of July 2017. Moreover,
Father has failed to identify any individuals in his life who could provide sobriety support.
{¶26} Although Father completed the Fame Fathers program (a support group, rather
than parenting instruction), Father failed to engage in any parenting classes. The caseworker
first referred Father for parenting classes in February 2016, at Summit Psychological Associates,
and later at Greenleaf. At the end of June 2017, Father was finally scheduled to begin parenting
education at Summit Psychological, but he failed to appear for that appointment. By the time of
the hearing, Father had missed four classes. The caseworker testified that parenting education
was a critical component of Father’s case plan; because these are four young children at different
developmental stages, and the caseworker observed deficiencies in Father’s ability to supervise
and interact with the children during visits.
{¶27} Also of critical significance was Father’s failure to obtain safe and stable housing.
The caseworker testified that Father’s housing situation had been unstable throughout A.S.’
whole life. The probation officer echoed that housing was consistently an issue for Father during
the past two years. At the time of the hearing, Father was living with his aunt in a home that the
probation officer described as chaotic. In addition, one of the inhabitants of that home used
drugs, presenting an untenable situation for Father’s sobriety and the children’s safety. Father
admitted to his probation officer that his current living arrangements were not appropriate for the
children. Although Father received housing referrals from both Oriana and the CSB caseworker,
he failed to pursue any of those options.
{¶28} Both the caseworker and guardian ad litem testified that the children require
permanency in their lives and that there is no option for permanency short of permanent custody,
given (1) Mother’s abandonment of the children, (2) Father’s lack of progress on his case plan
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objectives and inability to demonstrate that he could provide a safe and stable home
environment, and (3) no viable relative or third-party placements. The children have
experienced stability in the foster home for 18 months. Although it is not a foster-to-adopt
home, the guardian reported that the children could remain in that placement together until a
suitable adoptive home was found.
Applicability of R.C. 2151.414(E)(7)-(11) factors
{¶29} Mother abandoned the children pursuant to R.C. 2151.414(E)(10). No
R.C.2151.414(E)(7)-(11) factor applies to Father.
Conclusion
{¶30} The record demonstrates that this is not a case where the juvenile court clearly
lost its way and created a manifest miscarriage of justice in finding that it was in the best interest
of the children to be placed in the permanent custody of CSB. See Eastley, 132 Ohio St. 3d 328,
2012-Ohio-2179, at ¶ 20. There is an abundance of clear and convincing evidence to
demonstrate that Father had not only failed to address and overcome his substance abuse issues,
but he continued to deny that amphetamine abuse was even an issue for him. Moreover, he
denied any issues involving domestic violence despite three convictions. The only time that
Father managed to demonstrate any consistency in either addressing various issues or visiting the
children was when he was in a highly structured setting like a halfway house. Without structured
supervision and forced accountability, Father lost motivation and failed to appear for probation
and treatment appointments, required classes, and visitations. As a result, Father was never able
to demonstrate that he had attained any insight to address the issues which prevented him from
providing for the basic needs of the children. Under these circumstances, the children would be
exposed to insecurity, instability, and potential harm were they to be returned to Father’s care.
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Accordingly, the evidence supported the juvenile court’s finding that permanent custody was in
the best interest of the children. Therefore, the juvenile court’s termination of Father’s parental
rights and award of permanent custody were not against the manifest weight of the evidence.
{¶31} Because this Court concludes that an award of permanent custody of A.S., I.S.,
J.S., and Am.S. to CSB was in the children’s best interest, a six-month extension of temporary
custody was contrary to the children’s best interest. See In re S.D., 2016-Ohio-1493, at ¶ 30.
Moreover, Father failed to make significant progress on his case plan, and there was no
reasonable cause to believe that the children could have been reunified with Father in the limited
time remaining for a first six-month extension of temporary custody. Father’s assignment of
error is overruled.
III.
{¶32} Father’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JACLYN PALUMBO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.