In re M.R. , 2018 Ohio 5047 ( 2018 )

[Cite as In re M.R., 2018-Ohio-5047.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
CASE NOS. CA2018-07-145
M.R., et al. : CA2018-07-146
CA2018-07-147
:
OPINION
: 12/17/2018
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. JN2014-0287, JN2014-0288, and JN2015-0258
Jamie L. Landvatter, 10 Journal Square, Suite 300, Hamilton, Ohio 45011, guardian ad litem
D. Joseph Auciello, Jr., 6 South Second Street, Suite 309, Hamilton, Ohio 45011, for
appellant, A.R.
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
County Children Services
RINGLAND, P.J.
{¶ 1} Mother-appellant ("Mother"), appeals the decision of the Butler County Court of
Common Pleas, Juvenile Division, granting permanent custody of M.R., B.R., and E.C.R.
(referred to collectively, as the "children") to appellee, the Butler County Department of Job
and Family Services ("BCDJFS").
Butler CA2018-07-145,
CA2018-07-146, CA2018-07-147
{¶ 2} On July 24, 2014, BCDJFS filed complaints for M.R. and B.R. alleging
dependency and neglect. Mother gave birth to M.R. on May 3, 2010 and B.R. on June 2,
2011. On March 31, 2015, the juvenile court adjudicated M.R. and B.R. dependent. On July
15, 2015, Mother gave birth to E.C.R. On September 15, 2015, BCDJFS filed a complaint
alleging E.C.R. dependent. The juvenile court adjudicated E.C.R. dependent on December
10, 2015. Following the respective adjudications, BCDJFS implemented case plan services
for Mother and the children remained in Mother's care under protective supervision. On
September 22, 2015, the juvenile court granted BCDJFS temporary custody of the children
and the agency placed them in a foster home.
{¶ 3} On September 25, 2017, BCDJFS moved for permanent custody. The juvenile
court held four hearings between December 2017 and February 2018. The hearings
revealed the following facts.
{¶ 4} Kelly Hurley, the BCDJFS caseworker assigned to this case, testified the initial
concerns causing the children's removal from Mother's care included Mother's instability in
living arrangements, her lack of engagement in mental health treatment, her failure to ensure
the children's attendance at school, and possible physical abuse of another unrelated child in
the home by Mother's then boyfriend. The agency attempted to address these issues while
the children remained in Mother's custody by offering Mother mental health and parenting
services. However, Mother failed to stay compliant with these services, which led to the initial
removal in September 2015.
{¶ 5} Following removal, BCDJFS continued to provide intensive in-home parenting
programs, mental health services, visitation with the children, and permitted Mother to attend
the children's medical and mental health appointments. Initially, Mother's engagement with
mental health counseling improved, but over time Mother's attendance became sporadic and
she discontinued taking her prescribed psychiatric medications. The agency's concerns
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regarding Mother's living arrangements did not improve. Mother had approximately eight
different residences in three counties over the course of this case. Likewise, Mother was
sporadically employed throughout the case and mostly relied on her parents or her boyfriend
for financial assistance. Additionally, Mother failed to consistently take advantage of public
assistance programs to help meet the needs of the children.
{¶ 6} In August 2017, the children returned to Mother's custody for approximately five
weeks before being removed for a second time and placed back into foster care. During this
period, BCDJFS became concerned with M.R. and B.R. missing a significant amount of
school, Mother's inability to follow through with obtaining a pediatrician for two of the children,
Mother's failure to obtain health insurance, and Mother's mental health. Mother's mental
health was a concern because she began demonstrating aggressive behaviors towards
agency personnel, failed to consistently engage with counseling, and failed to consistently
take her prescribed medication.
{¶ 7} Following the second removal, the children returned to the same foster care
placement they had prior to reunification. Hurley testified the children were bonded with one
another and the foster family. The foster family was able to meet the children's basic needs
and ensure they received their necessary medical and psychiatric care. Hurley detailed that
the children's behavior significantly declined during reunification. Mother reported to Hurley
that M.R. would hurt herself when upset, B.R. had become physically aggressive, and E.C.R.
would bang her head on the floor, throw food, and try to bite Mother.
{¶ 8} The foster father testified and corroborated the behavioral regression discussed
by Hurley. He testified that the children thrived when placed with his family, bonded with
other family members, and they referred to himself and the foster mother as "New Mommy
and Daddy." The foster family indicated a desire to adopt the children if the juvenile court
granted permanent custody to BCDJFS.
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{¶ 9} Tiffany Penn from Pressley Ridge testified that she began working with Mother
in June or July 2016 with a goal of reunification. Penn was charged with observing visitation,
correcting Mother's parenting behaviors where appropriate, and teaching proper parenting
techniques. Penn testified Mother needed significant parenting education.
{¶ 10} Mother testified she desired to obtain custody of her children. She testified
she was fit to parent the children and that she had engaged with case plan services, such as
various parenting programs, mental health counseling, and visitation. Mother admitted that
she had lived at many residences throughout the pendency of this case, but that she had
resided at an apartment in Lebanon, Ohio for an extended period before moving to her
current residence in Kettering, Ohio. Mother testified her visitation became more liberalized
over time and that she was capable of meeting the children's basic needs. Mother confirmed
her prior mental health diagnoses, including bipolar disorder, separation anxiety, general
anxiety, depression, and post-traumatic stress disorder ("PTSD").
{¶ 11} On cross-examination, Mother detailed that she discontinued taking her
prescribed medications because her benefits lapsed and that said benefits were suspended
due to her failure to complete a required course. She indicated she had taken classes to
work as a state tested nurse aide. However, she could not do so until her driver's license
was reinstated. Mother confirmed the children's issues with school attendance and explained
that her father drove the children to their therapy appointments but would not return them to
school. Prior to the second removal, M.R. missed 7 of 12 school days, and B.R. missed 4 of
12. Additionally, the guardian ad litem ("GAL") for the children submitted a written report and
recommendation recommending a grant of permanent custody to BCDJFS.
{¶ 12} On March 7, 2018, the magistrate issued a decision granting permanent
custody to BCDJFS. Mother objected to the magistrate's decision and, on June 12, 2018, the
juvenile court overruled Mother's objection and adopted the magistrate's findings and orders.
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Mother appealed the juvenile court decision raising one assignment of error.
{¶ 13} Mother's Sole Assignment of Error:
{¶ 14} THE TRIAL COURT ERRED BY FINDING CLEAR AND CONVINCING
EVIDENCE TO SUPPORT TRANSFER OF PERMANENT CUSTODY TO CHILDREN'S
SERVICES FINDING THE FACTORS OF R.C. 2151.141(B) & (D) PRESENT.
{¶ 15} Mother asserts the juvenile court erred by granting permanent custody to
BCDJFS because its decision was not supported by clear and convincing evidence and
against the manifest weight of the evidence. Mother contends the juvenile court erred in
finding by clear and convincing evidence that granting permanent custody was in the
children's best interest.
{¶ 16} As an initial matter, BCDJFS asserts that Mother failed to file specific
objections and did not claim plain error on appeal; therefore, she waived the foregoing
arguments. Juv.R. 40(D)(3)(b)(iv) provides that, except for a claim of plain error, a party
waives the right to assign error on appeal with respect to the juvenile court's adoption of any
factual finding or legal conclusion "unless the party has objected to that finding or conclusion
as required by Juv.R. 40(D)(3)(b)." Objections must be specific and state with particularity all
grounds for objection. Juv.R. 40(D)(3)(b)(ii). Further, the failure "to file specific objections is
treated the same as the failure to file any objections." In re D.R., 12th Dist. Butler No.
CA2009-01-018, 2009-Ohio-2805, ¶ 29.
{¶ 17} Although Mother objected to the magistrate's decision, she did not specifically
object to the magistrate's best interest findings and did not claim plain error on appeal.
Rather, her objection included a nondescript statement asserting the magistrate abused its
discretion. Aside from asserting an incorrect standard of review, Mother's failure to file
specific objections is the same as failing to file any objections, and therefore, she is
precluded from raising the issue on appeal and from challenging the juvenile court's adoption
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of the magistrate's findings. See id. at ¶ 30. Therefore, her sole assignment of error is
overruled on this basis. Nevertheless, in the interest of justice, we will review the juvenile
court's decision to determine if was supported by clear and convincing evidence and not
against the manifest weight of the evidence. See, e.g., Miami Poplar Rentals, LLC v.
Hudoba, 12th Dist. Butler No. CA2013-06-094, 2014-Ohio-1323, ¶ 12.
{¶ 18} "The rights to conceive and to raise one's children have been deemed
'essential' * * *." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972), quoting Meyer
v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923). "Despite the fact that we have found
that parents who are suitable have a paramount right to raise and care for their children, it is
equally well settled that '[t]he fundamental interest of parents is not absolute.'" (Citations
omitted.) In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 40. "The constitutional right to
raise one's children does not include a right to abuse, exploit, or neglect them, nor is there a
right to permit others to do so." Id. "The state's power to terminate parental rights is
circumscribed * * *." Id. at ¶ 41, citing In re Cunningham, 59 Ohio St.2d 100, 105 (1979).
However, "when that authority is properly invoked, it is fully proper and constitutional to
remove children from their parents' care. [S]uch an extreme disposition is nevertheless
expressly sanctioned * * * when it is necessary for the 'welfare' of the child." In re AsF(F),
12th Dist. Madison Nos. CA2016-05-020 and CA2016-05-021, 2016-Ohio-7836, ¶ 12,
quoting R.C. 2151.01(A).
{¶ 19} The state must prove by clear and convincing evidence that the statutory
standards for permanent custody have been met before a natural parent's right to custody
can be terminated. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388 (1982); In re
E.G., 12th Dist. Butler No. CA2013-12-224, 2014-Ohio-2007, ¶ 6. "Clear and convincing
evidence is that measure or degree of proof which will produce in the mind of the trier of facts
a firm belief or conviction as to the allegations sought to be established." Cross v. Ledford,
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161 Ohio St. 469, 477 (1954). This 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. An appellate court will not reverse a finding by the
juvenile court that the evidence was clear and convincing absent sufficient conflict in the
evidence. Id.{¶ 20} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14. When considering a manifest weight of the evidence challenge, the reviewing court
weighs the evidence and all reasonable inferences, considers the credibility of the witnesses
and determines whether in resolving conflicts, the trial court clearly "lost its way" and created
such a "manifest miscarriage of justice" that the judgment must be reversed, and a new trial
ordered. In re S.M., 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 10.
{¶ 21} "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 T.P., 12th Dist. Clermont No. CA2016-03-012, 2016-Ohio-5780, ¶ 13.
First, the court must find that the grant of permanent custody to the agency is in the best
interest of the children. R.C. 2151.414(B)(1). In so doing, the court shall consider all
relevant factors, including, but not limited to, the factors enumerated in R.C. 2151.414(D).
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 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
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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) thru (e); In re C.B.,
12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10. To satisfy part two of the
permanent custody test, only one of the above five findings need be met. In re A.W., 12th
Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 12.
{¶ 22} 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.
{¶ 23} In granting BCDJFS' motion for permanent custody, the juvenile court
considered each of the best interest factors in light of the evidence presented at the hearings.
With respect to the first statutory factor, the juvenile court found that following the initial
removal, Mother's interactions with the children during visitation were observed to be positive
and age appropriate. The children displayed happiness during visitation and are bonded to
Mother. Upon their brief return to Mother's custody, the children displayed several behavioral
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issues. E.C.R. displayed severe temper tantrums, frequently banged her head on the floor,
and bit Mother and the other children. M.R. was physically aggressive, slapped and kicked
her brother, and was defiant with Mother, including severe meltdowns and physical violence
towards Mother and herself. B.R. was physically and verbally aggressive and displayed
anxiety symptoms.
{¶ 24} The juvenile court found that after the second removal the children's behavior
improved and that the children adjusted back to the rules and routines of the foster home.
The children are doing well in their foster care placement and positively proceeding in
therapy. Additionally, the foster family expressed an interest in adopting the children.
{¶ 25} In consideration of the second statutory factor, the juvenile court did not
conduct an interview with the children. Rather, the juvenile court relied on the GAL's report to
convey the children's wishes, which indicated M.R.'s desire to remain with her foster family.
Further, the GAL recommended the children remain together and be placed in the permanent
custody of BCDJFS.
{¶ 26} With respect to the third statutory factor, the juvenile court reviewed the
children's custodial history and found the children were adjudicated dependent and had been
in the temporary custody of BCDJFS for 12 or more months of a consecutive 22-month
period.
{¶ 27} In considering the fourth statutory factor, the juvenile court found the children's
need for a legally secure placement could only be achieved by granting permanent custody
to BCDJFS. Specifically, the juvenile court found the children are clearly in need of a legally
secure placement, as they have resided in foster care for an extended period. The juvenile
court noted the agency's greatest concerns at the initial removal were Mother's mental health
and her ability to provide consistent, appropriate parenting for the children. Throughout the
case, BCDJFS provided Mother with multiple services, including three parenting education
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programs, mental health treatment, and financial assistance, including gas vouchers,
furniture, groceries, and clothing. However, Mother inconsistently engaged in these services.
The juvenile court characterized her engagement as "minimal." The juvenile court found
Mother failed to adequately address her mental health issues, which has impacted her ability
to adequately parent the children. Further, Mother failed to maintain stable, independent
housing and employment, and did not take advantage of the opportunity to attend the
children's medical and therapy appointments.
{¶ 28} Despite completing some services, Mother failed when given the opportunity to
demonstrate advancement in her ability to appropriately parent the children. The juvenile
court found that upon reunification, Mother failed to take appropriate steps to transfer the
children's medical and educational services to providers close to her residence. Mother
claimed she made arrangements for M.R. and B.R. to attend mental health treatment, but the
juvenile court found she failed to so. Further, Mother failed to take the children to follow up
medical and dental appointments and to establish a pediatrician for M.R. and E.C.R. The
juvenile court further found Mother failed to timely enroll M.R. and B.R. in school, and when
school began, Mother failed to ensure the children's attendance, as M.R. missed 7 of 12 days
and B.R. missed 4 of 12 days.
{¶ 29} Finally, the juvenile court found that Mother failed to demonstrate an ability to
handle the children's behaviors, which as described above, significantly deteriorated upon
reunification. The juvenile court found that Mother "demonstrated a marked lack of control
over her anger, and displayed (in front of the children) angry, aggressive behaviors evincing
ongoing mental health concerns." The concerns that led to the initial removal were markedly
similar to the concerns that arose during reunification and caused the second removal.
Therefore, the juvenile court found that Mother failed to demonstrate she could provide for
the basic needs of the children and that they could be safely returned to her care.
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{¶ 30} With respect to the fifth statutory factor, the juvenile court found that none of
the factors in R.C. 2151.414(E)(7) thru (11) apply to this case.
{¶ 31} Based on the foregoing, the juvenile court found by clear and convincing
evidence that it was in the children's best interest to grant permanent custody to BCDJFS.
The juvenile court also found that pursuant to R.C. 2151.414(B) and (E), the children could
not be placed with Mother within a reasonable time or should not be placed with her.
However, we need not consider this finding, as the juvenile court's finding the children were
adjudicated dependent and had been in the temporary custody of BCDJFS for 12 or more
months of a consecutive 22-month period was supported by clear and convincing evidence.
In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 12.
{¶ 32} After thoroughly reviewing the record, we find the juvenile court's determination
regarding the best interest of the children is supported by clear and convincing evidence.
Although Mother testified she loves her children and believes reunification is in their best
interest, there are compelling reasons to weigh the best interest factors in favor of permanent
custody to BCDJFS.
{¶ 33} The record contains extensive evidence regarding Mother's continued inability
to demonstrate that she can provide for the children's basic needs. At the outset of this case,
the children remained in Mother's care under protective supervision. However, Mother chose
not to take advantage of this opportunity to alleviate the agency's concerns, as the children
were removed due to instability in living arrangements, Mother's lack of engagement with
case plan services, and her inability to ensure the children's attendance at school. During
the pendency of this case, Mother did engage with parenting classes, visitation, and some
mental health services. However, her participation in case plan services in its totality has
been sporadic. She failed to consistently engage with mental health services and to take
prescribed psychiatric medication, she was only intermittently employed, and failed to obtain
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a stable residence, as she resided at approximately eight different locations in three counties
throughout this case.
{¶ 34} Nevertheless, BCDJFS provided Mother another opportunity to demonstrate
she could meet the children's needs when custody was briefly returned. This period lasted a
mere five weeks before the children were removed from her care for a second time. During
this five-week period, Mother failed to ensure the children regularly attended school, to obtain
health insurance, to obtain a pediatrician for two of the children, and to consistently engage
with mental health services. Mother demonstrated aggressive behaviors towards BCDJFS
personnel and the children likewise began demonstrating behavioral issues. Thus, despite
the diligent efforts of BCDJFS to provide an opportunity for reunification through case plan
services, Mother failed to demonstrate any real progress in her ability to adequately parent
and provide for the children. Rather, the same concerns that caused the first removal
similarly led to the second removal. See In re E.W., 12th Dist. Warren Nos. CA2017-01-001
thru CA2017-01-003, 2017-Ohio-7215, ¶ 39 (affirming grant of permanent custody where the
parent failed to make any meaningful progress in demonstrating she could provide for the
children).
{¶ 35} "It is important to have finality in custody determinations to protect the best
interest of the child[ren]." In re A.L.A., 11th Dist. Trumbull No. 2016-T-0022, 2016-Ohio-
5887, ¶ 20. The initiation of this case occurred approximately three and one-half years ago.
During this time, Mother has demonstrated that she can neither provide for the children's
basic needs nor consistently address her own mental health issues. Mother has consistently
failed to follow through despite exhaustive efforts by BCDJFS. The children need to know
whom they may rely upon for their care and nurture, and as the juvenile court found, the only
way to achieve this is by a stable, permanent, and healthy home environment.
{¶ 36} Moreover, the children are bonded to one another and with their foster family,
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who have expressed a desire for adoption. The foster family has been able to meet the
children's basic needs and ensure they receive the medical and psychiatric care they need.
The behavioral concerns at the time of the second removal have mostly subsided and the
children are doing well and engaging in counseling. Additionally, the caseworker and the
GAL recommended granting permanent custody to BCDJFS.
{¶ 37} Therefore, the juvenile court's determination regarding the best interest of the
children is supported by clear and convincing evidence and not against the manifest weight
of the evidence.
{¶ 38} Accordingly, Mother's sole assignment of error is overruled.
{¶ 39} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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