In re K.L. , 2017 Ohio 9003 ( 2017 )

[Cite as In re K.L., 2017-Ohio-9003.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re K.L. Court of Appeals Nos. L-17-1201
L-17-1210
Trial Court No. JC 15250495
DECISION AND JUDGMENT
Decided: December 13, 2017
*****
Stephen D. Long, for appellant A.G.
Laurel A. Kendall, for appellant K.L.
Kevin J. Ankney, for appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellants, K.L. (“mother”) and A.G. (“father”), parents of K.L.,
individually filed appeals from the August 1, 2017 judgment of the Lucas County Court
of Common Pleas, Juvenile Division, granting permanent custody of K.L. to the Lucas
County Children Services Board (“LCCSB”). For the reasons which follow, we affirm
this consolidated appeal.
{¶ 2} The mother asserts the following assignments of error:
I. The trial court erred in granting appellee Lucas County Children
Services Board’s motion for permanent custody as it was against the
manifest weight of the evidence.
II. The state did not prove by clear and convincing evidence that
appellant failed continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child’s home, pursuant
to R.C. 2151.414(E)(1).
The father asserts the following single assignment of error:
THE TRIAL COURT ERRED IN GRANTING APPELLEE
LUCAS COUNTY CHILDREN SERVICES BOARD’S MOTION FOR
PERMANENT CUSTODY AS THE DECISION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 3} On September 28, 2015, LCCSB filed a complaint in dependency against the
mother and R.L., who was believed to be the “legal father” of K.L. LCCSB indicated
that an older sibling had been removed in May 2012 because of domestic violence
between the mother and R.L., unstable housing, and parental drug abuse and those same
issues applied to K.L. LCCSB sought temporary custody of K.L. and, initially, the
juvenile court granted LCCSB only protective supervision while the child remained with
the mother. LCCSB filed an amended complaint on December 16, 2015, adding that
2.
another incident of domestic violence had occurred and identifying A.G. as the putative
father, and again LCCSB moved for temporary custody.
{¶ 4} After the mother was arrested on December 22, 2015, she arranged for her
mother to pick up K.L. in violation of a prior court order prohibiting R.L. and the
maternal grandmother from having unsupervised visitation with K.L. K.L. was taken into
shelter care on December 23, 2015, and interim temporary custody was awarded to
LCCSB in an order journalized on December 29, 2015. LCCSB filed an amended
complaint on December 23, 2015, seeking temporary custody of K.L., which was granted
on December 29, 2015.
{¶ 5} K.L. was adjudicated by a magistrate to be a neglected and dependent child
by consent of the mother following a January 7, 2016 hearing (but the order was not
journalized until February 3, 2016). LCCSB’s temporary custody of K.L. was continued.
Dispositional review was scheduled for September 28, 2016. The finding of neglect and
dependency and the award of temporary custody to LCCSB was affirmed by the juvenile
court judge in a judgment entry filed February 22, 2016. Services were required to
continue for the mother for dual diagnosis assessment, mental health medication, trauma
counseling, and domestic violence services, with the goal of reunification.
{¶ 6} On January 27, 2016, A.G. was served with the complaint as the putative
biological father of K.L. A separate adjudication and dispositional hearing was held for
the putative fathers on March 4, 2016. In a March 9, 2016 judgment a magistrate found
A.L. did not appear and A.G. consented to a finding of dependency only and adoption of
3.
the findings of fact from the January 7, 2016 adjudication hearing. The temporary
custody award to LCCSB of January 7, 2016, was affirmed. On March 30, 2016, the
magistrate found that A.G. had been established as the biological father of K.L. and R.L.
was removed as a party. A.G. was ordered to make himself available for assessment by
LCCSB. On April 5, 2016, the trial judge affirmed the January 7, 2016 finding of neglect
and dependency and the award of temporary custody to LCCSB. A goal of reunification
was also approved.
{¶ 7} On May 10, 2016, LCCSB filed a discretionary motion for permanent
custody of K.L. Although LCCSB asserted its motion was filed pursuant to R.C.
2151.353(B) and R.C. 2151.414, it was actually filed pursuant to R.C. 2151.353(C) and
R.C. 2151.413(A). LCCSB asserted that the factors of R.C. 2151.414(B)(1)(a), (b), and
(d) applied to warrant an award of permanent custody to LCCSB.
{¶ 8} Following a hearing on the motion on January 18-20, 2017, the trial court
denied the motion. The court found the mother had significantly addressed the case plan
services. The father was found to have completed a dual assessment and was referred for
substance abuse and anger management services. The court extended temporary custody
for six months to give the parents time to complete their case plan services, to July 20,
2017, and the hearing on the motion for permanent custody was continued until July 20,
2017.
{¶ 9} LCCSB filed its second motion for permanent custody on July 10, 2017,
asserting that the child cannot be placed with either parent within a reasonable time or
4.
should not be placed with the parents, R.C. 2151.414(B)(1)(a); the child has been in the
temporary custody of LCCSB for 13 of the past 22 months, R.C. 2151.414(B)(1)(d); the
mother and father have abandoned the child, R.C. 2151.413(B)(1)(b); and permanent
custody is in the child’s best interest, R.C. 2151.413(D).
{¶ 10} A hearing on the motion was held on July 20, 2017, which was limited to
the issue of whether the parents of K.L. had completed the services since the extension of
time had been granted in the court’s January 2017 order. The following evidence was
admitted.
{¶ 11} The LCCSB caseworker testified that LCCSB has been concerned about
the violent relationship between the mother and R.L., the father of the mother’s two older
children, and the mother’s deception about her ongoing relationship with R.L. and his
presence in the home. Over the prior six months, the caseworker testified, LCCSB had
assisted the mother to find other housing, but she had not secured other housing. In June
2017, the caseworker confronted the mother about R.L. living at her home after discovery
of three 911 calls made since January 2017, by R.L. or the mother, alleging domestic
violence between the two. The caseworker had also taken photographs depicting R.L.’s
car in front of the mother’s home on June 1 and June 13, 2017. When confronted, the
mother was angry that her privacy had been violated, and she was not willing to explain
or give a reason for contact with R.L. The guardian ad litem testified she was told by the
mother that she left her keys in the mailbox for the landlord to make repairs and later
found that R.L. had moved in and she could not make him leave. The guardian ad litem
5.
believed the mother had not been honest with the caseworker about living with R.L and
that the two had been living together for some time as evidenced by the 911 calls.
{¶ 12} The caseworker also testified she was approached by the mother in June
2017, for help with regard to evicting R.L. from her house. The caseworker suggested
that the mother consult with an attorney about obtaining a civil protection order against
R.L. The mother told the caseworker that she had contacted the police and was told they
could not do anything about R.L. The caseworker was informed by the mother that her
solution was to move into a YMCA battered women’s shelter on July 3, 2017, because no
men are allowed.
{¶ 13} The caseworker acknowledged the mother had successfully completed her
probation and her case was closed in February 2017. She had also continued her
counseling regarding domestic violence and had been taking her medication regularly.
The mother now receives Social Security and is financially able to take care of K.L.
While the mother tested positive for marijuana in January 2017, the caseworker testified
substance abuse had never been a major concern regarding the mother. The caseworker
had observed the mother visit the child on a regular basis and her parenting skills or
behavior with the child were appropriate.
{¶ 14} The caseworker also testified LCCSB referred the father five or six times
since January 2017, for several drug screens, and he tested positive for the use of
marijuana in all but one of the tests. The guardian ad litem testified these tests results
indicated a consistent usage or usage close to the time of the testing. In May 2017, she
6.
requested a drug test and the father refused admitting he would test positive for
marijuana. The father admitted he uses marijuana about once a week to treat an injury he
suffered in May 2017, because he has no insurance and cannot afford to go to the hospital
or pay for prescription medication.
{¶ 15} The father completed his anger management course in April 2017, and was
able to discuss the coping skills he has learned. He attended the program once a week for
ten weeks. He was never referred to repeat the course. As a result of completing the
course, his probation was terminated. The father testified he believed that as a result of
the course, he had been able to change his behavior. However the caseworker testified
she was still concerned about his anger management issues because he had become very
defensive during case reviews held in March and July 2017, when they discussed
completion of the dual assessment requested by LCCSB. The father raised his voice as
he opposed the need for the assessment. The dual assessment had been a requirement of
his case plan since it was determined that he was the father of the child. Although the
caseworker had made referrals to service providers four or five times since January 2017,
the father had not completed the assessment. The caseworker has never seen the father
inebriated. The guardian ad litem had little contact with the father except for one time
when he was at the mother’s apartment. The guardian ad litem recalled that the father
was supposed to stop using marijuana, but he had not. He was also not employed and did
not live in an appropriate house for the child because he lives in a camper, which lacks
running water, behind the home of his girlfriend’s aunt.
7.
{¶ 16} The father testified he had scheduled the dual assessment the day of trial to
be completed in the week following the trial. He further testified that he was unable to
get the assessment completed since January 2017, because he lost his job in February.
He also admitted that he became aggravated at the case reviews because the
caseworker was accusing him of slacking and was indicating they had already decided to
take his child away. He admitted he raised his voice, but when he realized he had, he
asked if the meeting was done and left. He had attempted to explain that after he lost his
job, he had spent his time trying to find a job and housing. He testified he has gone to the
library to submit applications at least six times a week. He was having trouble finding a
job because the dual assessment would require that he attend a three-hour session three
days a week and the bus ride takes approximately one hour plus the waiting time for the
bus.
{¶ 17} The caseworker testified the father regularly visited with K.L. and
requested cancelled visitations be made up, but they have not. The caseworker observed
the father interact with the child and believed his interactions were appropriate. The
father met monthly with the caseworker. The father testified he has a good relationship
with the mother and believed they would be able to work out a visitation schedule.
{¶ 18} The caseworker believed, however, that issuing permanent custody to
LCCSB would be in the best interests of the child because she is well taken care of in her
prospective adoptive home and there are no issues of domestic violence or substance use
concerns and she has contact with her biological siblings from time to time.
8.
{¶ 19} The guardian ad litem testified that she recommended the parental rights of
the mother and father be terminated because of their lack of progress to modify their lives
for the sake of the child.
{¶ 20} Upon completion of the hearing, the juvenile court granted the motion to
terminate the parental rights of the parents in its August 1, 2017 judgment and awarded
permanent custody of K.L. to LCCSB. The trial court found that R.C. 2151.414(B)(1)(d)
applied (that K.L. had been in temporary custody of the agency for 12 out of the past 22
consecutive months). Although the court believed this finding alone was sufficient to
terminate the parental rights of the mother and father, the court further found, pursuant to
R.C. 2151.414(B)(1)(a), that K.L. could not be returned to either parent within a
reasonable time. That finding was mandatory based on the court’s additional findings
that: the parents had failed to remedy the problems that initially caused K.L. to be
removed from her home, R.C. 2151.414(E)(1); the parents had each demonstrated a lack
of commitment toward the child by their unwillingness to provide an adequate permanent
home for their child, R.C. 2151.414(E)(4); and the mother’s parental rights were
previously terminated as to her other two children, R.C. 2151.414(E)(11).
{¶ 21} The juvenile court further determined that granting permanent custody of
K.L. to LCCSB was in K.L.’s best interest. While the mother had made progress in the
areas for which the court extended custody, the court indicated it never expected to learn
that the mother had allowed R.L. to move into her home during that time and only moved
to the shelter two weeks prior to trial after the caseworker had confronted the mother.
9.
The juvenile court also noted that while the father had completed his anger management
course, he had quit his job because he became angry with his supervisor and did not have
appropriate housing for K.L. Furthermore, he never completed the mental and drug
assessments required under the case plan, whether or not he would have been required to
seek treatment. The court did not find the father’s testimony to be credible regarding his
reasons for failing to complete the assessment. Furthermore, the court found that
appellant’s asserted need to smoke marijuana because of an injury in May 2017, did not
explain why he has been testing positive for marijuana use since January 2017. Both
parents appealed from the juvenile court’s judgment.
{¶ 22} We first address the mother’s assignments of errors. She argues in her first
assignment of error that the juvenile court’s findings of fact relating to whether she had
completed her case plan services were contrary to the manifest weight of the evidence.
{¶ 23} The statutory findings the juvenile court must make before making a final
permanent custody award must be supported by clear and convincing evidence. R.C.
2151.414(B)(1); In re L.H., 9th Dist. Summit No. 28685, 2017-Ohio-8472, ¶ 11. Clear
and convincing evidence is the “measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
10.
{¶ 24} When reviewing a juvenile court’s judgment under a manifest weight of the
evidence standard, the appellate 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.) State v. Thompkins, 78 Ohio St. 3d
380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1st Dist.1983); Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179,
972 N.E.2d 517, ¶ 20. When weighing the evidence, this court “must always be mindful
of the presumption in favor of the finder of fact.” Id. at ¶ 21. Deference is given to the
juvenile court’s determinations of credibility of the witnesses, “which are crucial in these
cases, where demeanor and attitude are not reflected well by the written record.” In re
E.W., 4th Dist. Athens No. 17CA10, 2017-Ohio-7258, ¶ 34 (citations omitted). See also
In re E.B., 10th Dist. Franklin Nos. 16AP-352, 16AP-395, 16AP-443, 16AP-448, 2017-
Ohio-2672, ¶ 50-51.
{¶ 25} In this case, the mother argues that the juvenile court erred in finding that
her brief contact with R.L. during the pendency of the case in June 2017 indicated that
she had not resolved the situation which caused the removal of K.L. She contends there
was evidence R.L. moved into her home without her permission; she sought the
assistance of the agency; and she resolved the issue by moving into the YMCA to get
away from R.L. The mother argues the juvenile court judged the mother’s temporary
11.
contact with R.L. too harshly and ignored all of the positive actions she had taken in
completing her case plan.
{¶ 26} The mother’s argument raises a question of credibility rather than manifest
weight. There was conflicting evidence presented regarding the mother’s reestablishment
of a relationship with R.L. and why she moved to the YMCA shelter. While the mother
testified that she was attempting to avoid R.L. and correct the problem, the caseworker
testified the mother acknowledged her continuing relationship with R.L. only after she
was caught and moved to the YMCA just before the upcoming hearing.
{¶ 27} Upon a review of the evidence in this case, we find the juvenile court found
the mother’s characterization of her situation with R.L. was not credible. The court also
found her move to the YMCA was too late to be a significant factor in the determination
of whether she had complied with the case plan requirements. Both of these findings
were supported by competent and credible evidence and were not contrary to the manifest
weight of the evidence. Therefore, we find the mother’s first assignment of error not
well-taken.
{¶ 28} In her second assignment of error, the mother argues LCCSB did not prove
by clear and convincing evidence that appellant failed continuously and repeatedly to
substantially remedy the conditions which caused the child to be removed in the first
place, the R.C. 2151.414(E)(1) factor.
{¶ 29} The mother assigns only one of the court’s R.C. 2151.414(E) findings was
erroneous. Since the trial court found two additional factors also applied, R.C.
12.
2151.414(E)(4) and (11), either of those two findings would support the juvenile court’s
finding under R.C. 2151.414(B)(1)(a) that the child cannot be placed with the mother
within a reasonable time or should not be placed with the mother. R.C. 2151.414(B)(1).
Nonetheless, because this case involves a termination of parental rights, we address the
mother’s argument.
{¶ 30} K.L. was removed from her home because of the domestic violence
between the mother and R.L., unstable housing, and parental drug abuse. At the prior
hearing on the motion for permanent custody, the trial court found that the mother had
significantly addressed the case plan services. However, after the six-month extension,
R.L. had moved back in with the mother sometime between January 2017 and July 2017.
During that time, his car was seen on the premises multiple times and multiple 911 calls
were made. Another domestic violence situation occurred which led to felony charges
being filed against R.L. When confronted, the mother admitted that R.L. had moved into
her home but asserted she had no control over the situation. The mother did not leave
R.L. and moved into the YMCA housing only three weeks prior to the hearing on the
motion for permanent custody.
{¶ 31} While the mother had made progress in some of the areas for which the
court extended custody, the court found the mother had continued her relationship with
R.L. The mother argues this one “mistake” should not be determinative of her progress,
especially in light of the fact that she moved to the YMCA to get away from R.L.
13.
{¶ 32} We find the manifest weight of the evidence supports the juvenile court’s
finding that the mother had not been able to utilize her case plan services to protect
herself and her child from domestic violence. Her continuing relationship with R.L. was
one of the major reasons for the removal of K.L. and the mother’s actions reflect she is
unable to protect the child from R.L. The mother’s second assignment of error is not
well-taken.
{¶ 33} Next, we address the father’s sole assignment of error that the juvenile
court’s judgment was contrary to the manifest weight of the evidence. Again, the court
made several findings which individually support the termination of the father’s parental
rights and an award of permanent custody to LCCSB. We address each factor
individually.
{¶ 34} First, the father asserts that the R.C. 2151.414(B)(1)(d) finding is erroneous
arguing that LCCSB obtained temporary custody on January 7, 2016, when K.L. was
adjudicated dependent and LCCSB was awarded temporary custody. Therefore, at the
time LCCSB filed its second motion for permanent custody on July 10, 2016, K.L. had
been in the temporary custody of LCCSB for only 18 months of temporary custody.
Although we find the temporary custody time period asserted is incorrect, we find the
father’s argument well-taken.
{¶ 35} K.L. was removed from the mother’s custody and placed in the temporary
custody of LCCSB on December 23, 2015, pursuant to an ex parte order journalized
December 24, 2015. Therefore, for purposes of the “sunset” date, the temporary custody
14.
order would have terminated on December 23, 2016, one year after the date the child was
first placed in shelter care. R.C. 2151.353(G). But, temporary custody was extended in
this case to July 20, 2016. R.C. 2151.414(D).
{¶ 36} Once an agency has acquired temporary custody, it may file a motion under
R.C. 2151.415(A) at any time and request any of the six types of dispositional orders set
forth in the statute, which includes an award of permanent custody to the agency. R.C.
2151.353(C); R.C. 2151.413(A); In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 22; In re H.F., 120 Ohio St. 3d 499, 2008-Ohio-6810, 900 N.E.2d 607,
¶ 14. This discretionary motion must be filed by the earlier of 30 days before the
temporary custody order expires or the date set for the dispositional hearing. R.C.
2151.415(A). Furthermore, the agency must allege, with particularity, that at least one of
the factors of R.C. 2151.414(B)(1) existed at the time of the filing of the motion. Juv.R.
19; In re C.W., 104 Ohio St. 3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 24, citing In re
K. G., 9th Dist. Wayne Nos. 03CA0066, 03CA0067, 03CA0068, 2004-Ohio-1421, ¶ 28.
{¶ 37} However, an agency must file a motion for permanent custody if 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” (the “12 of 22 consecutive months” rule). R.C. 2151.413(D)(1). The time
period of temporary custody is defined as beginning “the earlier of the date the child is
adjudicated pursuant to [R.C. 2151.28] or the date that is sixty days after the removal of
the child from home.” Id. See also R.C. 2151.414(B)(1). In other words, the statute
15.
requires that an agency file for permanent custody before the sunset date if it has had
temporary custody of the child for 12 months or more of the prior consecutive 22-month
period, which ends on the date the motion for permanent custody is filed. In re S.K., 2d
Dist. Clark No. 2008 CA 67, 2008 CA 68, 2008 CA 69, 2009-Ohio-427, ¶ 31. An agency
cannot use R.C. 2151.414(B)(1)(d) as a basis for a permanent custody award unless the
time requirements are completed prior to filing its motion. Juv.R. 19; R.C. 2151.414(A);
In re C.W., paragraph one of the syllabus; In re J.B., 6th Dist. Sandusky Nos. S-14-005,
S-14-006, S-14-007, S-14-008, S-14-009, S-14-012, S-14-013, S-14-014, 2015-Ohio-460,
¶ 69; In re E.P., 6th Dist. Wood No. WD-09-070, 2010-Ohio-3529, ¶ 56-58.
{¶ 38} In this case, the adjudication hearing involving the father was held
March 4, 2016, and the judgment was issued March 9, 2016; but the date of the child’s
removal from her home (December 23, 2015), plus 60 days, was February 21, 2016.
Therefore, the consecutive 22-month time period began February 21, 2016, and would
have ended December 21, 2017. LCCSB could only file a motion for permanent custody
based on R.C. 2151.414(B)(1)(d) after December 22, 2017, if during that time it had
temporary custody of the child for at least a 12-month period. Furthermore, the agency
was required to file for permanent custody before the sunset date for expiration of the
temporary custody, December 24, 2017. It is clear that the intent of R.C. 2151.413(D)(1)
and 2151.414(B)(1)(d) compel the agency to file for permanent custody before the sunset
date and, if reunification has not occurred within that time period, after at least 12 months
16.
of temporary custody out of the 22 months of consecutive involvement of the agency, the
agency can be awarded permanent custody.
{¶ 39} LCCSB filed its first motion for permanent custody on May 10, 2016, and
renewed the motion on July 10, 2017. Even as of the later date, K.L. had been in the
temporary custody of the agency for more than 12 months, but not “of a consecutive 22-
month time period” before the filing of the motion.
{¶ 40} LCCSB argues we should reject our strict interpretation of R.C.
2151.414(B)(1)(d) because the agency would have to wait 22 months to file for permanent
custody. LCCSB cites in support to In re J.R., 5th Dist. Stark No. 2016CA00018, 2016-
Ohio-2703, ¶ 49, citing In re Vann, 5th Dist. Stark No. 2005CA00127, 2005-Ohio-4398,
¶ 18 (father’s appeal) (see also In re Vann, 5th Dist. Stark No. 2005CA00130, 2005-Ohio-
4706, ¶ 24 (mother’s appeal) and In re T.B., 9th Dist. Summit No. C.A. 21124, 2002-Ohio-
5036, ¶ 23, and In re I.D., 7th Dist. Columbiana No. 09 CO 13, 2009-Ohio-6805, ¶ 44.
{¶ 41} In the case of In re Vann, 5th Dist. Stark No. 2005CA00127, 2005-Ohio-
4398, the agency was granted temporary custody of a father’s children approximately one
month after they were born prematurely and with disabilities. The father had been
incarcerated for some of that time and never visited the children. The trial court
terminated the father’s parental rights and awarded permanent custody to the agency
based upon former R.C. 2151.414(B)(1)(b), the children were abandoned, and former
R.C. 2151.414(B)(1)(d), the children had been in the temporary custody of the agency for
12 or more months of a consecutive 22-month period and should not be placed with
17.
either parent at this time or within a reasonable time. The father objected to the second
finding on the ground that the agency had temporary custody for nearly 14 months, not
22 months as required by R.C. 2151.414(B)(1)(d). The appellate court noted that the
motion for permanent custody did not allege R.C. 2151.414(B)(1)(d) as a basis for an
award of permanent custody and that this second finding was unnecessary since only one
finding was required. Furthermore, the court held that “an agency can file for permanent
custody any time after the child has been in the agency’s continuous custody for at least
twelve months.” Id., citing In re C.W., 104 Ohio St. 3d 163, 2004-Ohio-6411, 818 N.E.2d
1176.
{¶ 42} In the case of In re T.B., a child was placed in the temporary custody of the
agency in March 2000. At a sunset hearing in April 2001, the court granted a six-month
extension of temporary custody. The agency filed a motion for permanent custody in
September 2001. The mother argued on appeal that R.C. 2151.414(B)(1)(d) requires that
the 22-month time period expire before a court could make a finding that a child has been
in the custody of a public agency for 12 of the last 22 consecutive months. The appellate
court dismissed this argument, holding that:
There is nothing in the plain language of the statute that requires a
public agency to wait until a child has been in its custody for twenty-two
months before filing a motion for permanent custody. The statute requires
only that the child must have been in the custody of a public agency for
twelve or more months of a consecutive twenty-two month period. This
18.
might include a situation where a child had been in temporary custody for
six months on one occasion, was briefly out of agency custody, and then
returned to temporary custody for another six months - all within a
consecutive twenty-two month period. It may also include a situation
where a child has been in the temporary custody of an agency for twelve
consecutive months. In either event, once a child has been in temporary
custody for at least twelve months out of twenty-two consecutive months,
the second prong of the two-part test set forth in R.C. 2151.414(B) (1) is
met. In this case, T.B. was in custody for over fifteen consecutive months.
In those cases, the courts held the “12 of 22 consecutive month” rule did
not require the agency to have had been involved in the child’s case for 22
consecutive months, because the earlier of the child’s removal or
adjudication as a neglected, dependent, or abused child, before the agency
could assert R.C. 2151.414(B)(1)(d) as grounds for finding that a child
cannot or be placed with the parents within a reasonable time or should not
be placed with the parents. Id. at ¶ 23.
{¶ 43} Other courts have interpreted R.C. 2151.414(B)(1)(d) in the same manner.
In re N.R., 12th Dist. Butler No. CA2007-12-314, 2008-Ohio-1993, ¶ 18; In re P.C., 9th
Dist. Summit No. 21734/21739, 2004-Ohio-1230, ¶ 21. Other courts have merely
applied the statute in this way. See In re R.T., 2016-Ohio-8490, 79 N.E.3d 138, ¶ 2-3
(8th Dist.) (permanent custody granted based on R.C. 2151.414(B)(1)(d) where the child
19.
has been in the temporary custody of the agency since a few days after his birth until
approximately 17 months later).
{¶ 44} We have rejected the argument of LCCSB that the “22-consecutive month”
period has no relationship to the agency’s involvement for purposes of applying R.C.
2151.414(B)(1)(d). In re J.B., 6th Dist. Sandusky Nos. S-14-005, S-14-006, S-14-007, S-
14-008, S-14-009, S-14-012, S-14-013, S-14-014, 2015-Ohio-460, ¶ 69; In re K.H., 191
Ohio App. 3d 251, 2010-Ohio-5172, 945 N.E.2d 1074, ¶ 42 (6th Dist.). Accord In re
S.K., 2d Dist. Clark Nos. 2008 CA 67, 2008 CA 68, 2008 CA 69, 2009-Ohio-427, ¶ 31.
{¶ 45} An agency may file for permanent custody at any time for another other
reason set forth in R.C. 2151.414(B)(1); In re C.W., 104 Ohio St. 3d 163, 2004-Ohio-
6411, 818 N.E.2d 1176, ¶ 27. But, if the basis for the motion is R.C. 2151.414(B)(1)(d),
the statute clearly requires the agency must have had temporary custody of the child for
“12 months or more of a consecutive twenty-two-month period.” See In re C.W. at ¶ 7-9.
{¶ 46} The dual legislative purpose behind the statutory scheme, including the “12
of 22 consecutive months” rule is set forth in R.C. 2151.01 and 2151.413(D): The
statutes were designed to protect the interest of the child to have custody issues resolved
within a reasonable time, to protect the constitutional and statutory rights of the parents,
and allow sufficient time for reunification of the family. See R.C. 2151.353(G)
(temporary custody orders terminate after one year); R.C. 2151.415(D)(4) (temporary
custody can be extended for no more than two, six-month extensions); In re C.B., 129
20.
Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 20, Brown, J., concurring; In re
C.W., at ¶ 22-23.
{¶ 47} The Ohio Supreme Court recognized in In re C.W. at ¶ 20, that the “12 of
22 consecutive months” provision of the statute was part of an alteration to the
permanent-custody statute to limit the temporary custody status and mandate a time when
an agency must file for permanent custody. While the C.W. court holding recognized that
the statute guarantees parents at least “12 months to work toward reunification” before
the agency can file for permanent custody, that holding did not eliminate the need for 22-
consecutive months of agency involvement to have transpired. Id. at ¶ 22.
{¶ 48} The purpose of the “12 of 22 consecutive months” clause is clear when it is
read in conjunction with R.C. 2151.413(D), which provides that the agency who has had
temporary custody of a child for 12 months of a 22-month consecutive period must file a
motion for permanent custody. When such a motion is filed, the basis for awarding
permanent custody is R.C. 2151.414(B)(1)(d). The General Assembly has determined
that it is in the best interest of the parties that custody issues be resolved within 24
months. See R.C. 2151.353(G) (temporary custody orders terminate after one year); R.C.
2151.415(D)(4) (temporary custody can be extended for no more than two, six-month
extensions). If the 22-consecutive months does not mean 22 months of agency
involvement, there was no need to set forth that number in the statute. Instead, the statute
would have required permanent custody to have been sought after 12 months of
21.
temporary custody had expired, regardless of whether temporary custody was intermittent
or continuous.
{¶ 49} We conclude the trial court erred in finding that R.C. 2151.414(B)(1)(d)
could be a basis for awarding permanent custody. However, there were other grounds for
the award of permanent custody and, therefore, this error is not reversible error.
{¶ 50} The father next argues that the R.C. 2151.414(E)(4) finding was mentioned
at the hearing, but was not part of the August 1, 2017 final judgment. We disagree. The
court held in its judgment that it found “pursuant to R.C. 2151.414(E)(1), (4), and (11) by
clear and convincing evidence that the minor child * * * cannot and should not, be placed
with either parent within a reasonable time.” Clearly R.C. 2151.414(E)(11) was
applicable only to the mother. However, the court specifically found that neither parent
remedied the problems that caused the child’s removal and they “have failed
continuously and repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home.” That finding alone was sufficient to support the
juvenile court’s award of permanent custody to LCCSB.
{¶ 51} With respect to the R.C. 2151.414(E)(4) finding, the court found regarding
A.G. “the following facts were proven by clear and convincing evidence”: A.G. was
referred to substance abuse treatment but was unsuccessfully discharged for non-
compliance; he had failed to undergo dual diagnostic assessment to determine whether he
needed services regarding substance abuse and mental health; he was on probation, he
has tested positive for marijuana use numerous times; he did not go to testing on
22.
occasion, once because he acknowledged he did not go because he would test positive for
marijuana; he did not have independent housing and lives in a camping trailer behind his
girlfriend’s aunt’s backyard; he has not worked since February 2017; he has been
supplied with bus tokens to assist with transportation but asserts he has issues with
transportation; and he did not engage in case plan services.
{¶ 52} Upon a review of the evidence, we find these factual findings are supported
by clear and convincing evidence and are not contrary to the manifest weight of the
evidence.
{¶ 53} Finally, the father asserts the juvenile court’s determination that R.C.
2151.414(B)(1)(a) applies in this case was contrary to the manifest weight of the
evidence because the court’s finding that R.C. 2151.414(E)(1) (that the father had not
substantially remedied the circumstances which caused K.L. to be removed from her
home) was not supported by clear and convincing evidence. He argues that because K.L.
was removed from her mother’s home solely because of domestic violence between the
mother and R.L., R.C. 2151.414(E)(1) cannot be applied to A.G. We disagree.
{¶ 54} While this case is unique in that the A.G. was not responsible for the
removal of K.L. from her mother’s home, the father’s lack of participation in K.L.’s life
at that time caused her to be placed with the agency. Furthermore, even after A.G. was
identified as the biological father of K.L., the juvenile court adjudicated her a dependent
and neglected child as to the father and continued temporary custody to the agency
because A.G. could not provide a home for K.L. Therefore, the basis for K.L.’s
23.
“removal” from the father’s home, or failure to be placed in his home, was the father’s
inability to care for his child. Furthermore, there was clear and convincing evidence that
the father failed to remedy the reasons why K.L. could not be placed with him as he
failed to complete the required case plan services and he still lacked sufficient housing at
the time of the permanent custody motion hearing. We find the juvenile court’s findings
were not contrary to the manifest weight of the evidence and that the R.C.
2151.414(E)(1) factor was properly found to apply to the father.
{¶ 55} Therefore, we find the father’s sole assignment of error not well-taken.
{¶ 56} Having found that the trial court did not commit error prejudicial to
appellants and that substantial justice has been done, the judgment of the Lucas County
Court of Common Pleas, Juvenile Division, is affirmed. Appellants are ordered to
equally share the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
24.
In re K.L.
C.A. Nos. L-17-1201
L-17-1210
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
25.