In re T.P. , 2022 Ohio 2995 ( 2022 )

[Cite as In re T.P., 2022-Ohio-2995.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN RE:
CASE NO. 5-21-36
T.P.,
ABUSED, NEGLECTED AND
DEPENDENT CHILD. OPINION
[FAITH P. - APPELLANT]
IN RE:
CASE NO. 5-21-37
G.P.,
NEGLECTED AND DEPENDENT CHILD. OPINION
[FAITH P. - APPELLANT]
Appeals from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 20203021 AND 20203022
Judgments Affirmed
Date of Decision: August 29, 2022
APPEARANCES:
Linda Gabriele for Appellant
Justin Kahle for Appellee
Case Nos. 5-21-36 and 5-21-37
WILLAMOWSKI, J.
{¶1} Mother-appellant, Faith P. (“Faith”), appeals the December 8, 2021
decisions of the Hancock County Court of Common Pleas, Juvenile Division,
granting permanent custody of her minor children, G.P. and T.P., to the Hancock
County Job and Family Services (the “agency”). On appeal Faith claims that 1) the
judgment was against the manifest weight of the evidence; 2) the judgment was not
in the children’s best interest; 3) her due process rights were violated; and 4) that
the agency did not make reasonable efforts to find a relative placement. For the
reasons that follow, we affirm.
{¶2} G.P., born in June 2013, and T.P., born in May 2018, are the minor child
of Faith and Spencer P. (“Spencer”).1 ADoc. 1 and BDoc 1.2 On March 2, 2020,
Faith contacted the Findlay Police Department to report that she discovered bruises
on T.P.’s face and body after she left T.P. in the care of her boyfriend, D.S., on
March 1-2, 2020. ADoc. 1 and BDoc 1. The department contacted the agency to
come pick up G.P. as T.P. was being taken to the hospital and Faith was to be
arrested upon an outstanding warrant. ADoc. 1 and BDoc 1. The caseworker was
able to place G.P. with James R. (“James”), her maternal grandfather, at that time.
ADoc. 1 and BDoc. 1. T.P. was diagnosed with a radial buckle/break of her left
wrist and a small brain bleed on her right side. ADoc. 1 and BDoc. 1. T.P. was then
1
Even though Spencer appeared in the cases, Spencer failed to appear at the permanent-custody hearing.
2
The record for T.P. is identified at ADoc. The record for G.P. is identified as BDoc.
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taken to Toledo Children’s Hospital for further tests and treatment. ADoc. 1 and
BDoc. 1. Upon her release, she was placed with James as well. Tr. 93.
{¶3} On March 3, 2020, the agency filed complaints alleging G.P. to be a
neglected and dependent child and T.P. to be an abused, neglected, and dependent
child. ADoc. 1 and BDoc. 1. Following a probable-cause hearing, the trial court
concluded that probable cause existed to believe that G.P. was a neglected and
dependent child and that T.P. was an abused, neglected, and dependent child. ADoc.
8 and BDoc. 7. The trial court found that the agency had made reasonable efforts
to avoid removing the children from their home but it was in their best interest to be
placed in the temporary custody of the agency. ADoc. 8 and BDoc. 7. On March10,
2020, James contacted the Agency and told them that he could not keep T.P. because
she had too many follow up medical appointments at that time and he was unable to
miss that much work and keep his job. Tr. 93. On March 14, 2020, the children
were placed with their paternal aunt and uncle. Tr. 94-95. The agency filed a case
plan for the children on April 6, 2020. ADoc. 18 and BDoc. 16. The plan called
for Faith to 1) participate in a domestic violence victim program and 2) complete a
substance abuse/mental health assessment and follow the treatment
recommendations.3 ADoc. 18 and BDoc. 16.
3
Although services were offered to Spencer, we will not be discussing his requirements as he agreed to
permanent custody and is not appealing the trial court’s judgment. A review of the record shows that Spencer
made no progress on his requirements before asking to be removed from the case plan.
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{¶4} An adjudication hearing was held on May 21, 2020. ADoc. 25 and
BDoc. 23. The trial court found by clear and convincing evidence that T.P. was an
abused, neglected, and dependent child and that G.P. was a neglected and dependent
child. ADoc. 25 and BDoc. 23. The trial court immediately proceeded to
disposition and ordered that the children remain in the temporary custody of the
agency. ADoc. 25 and BDoc. 23. On August 5, 2020, the agency filed an amended
case plan. ADoc. 33 and BDoc. 30. The new case plan required Faith to 1) complete
parenting classes; 2) visit with the children regularly; 3) complete a domestic
violence victim program; and 4) complete a substance abuse/mental health
assessment and follow treatment recommendations. ADoc. 33 and BDoc. 30.
{¶5} In early June, the paternal aunt and uncle learned that he had cancer and
notified the Agency that they would no longer be able to keep the children. Tr. 96.
The Agency placed the children with a foster family on June 17, 2020. Tr. 97. On
June 24, 2020, James filed motions to intervene in the cases. ADoc. 26 and BDoc.
25. On September 10, 2020, Spencer filed memoranda in opposition to James’
motions to intervene in the cases. ADoc. 35 and BDoc. 33. James filed motions for
legal custody or rights of companionship and visitation on October 28, 2020. ADoc.
37 and BDoc. 36. Following a hearing, the trial court granted James’s motions to
intervene in the cases. ADoc. 39 and BDoc. 38.
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{¶6} On January 21, 2021, the agency filed a semi-annual review of the case
plan. ADoc. 53 and BDoc. 47. The review noted that Faith had only attended one
session in the domestic violence victims group, but had failed to attend any other
sessions. ADoc. 53 and BDoc. 47. Faith had completed her substance abuse/mental
health issues assessment and had been identified as having an issue with opiates.
ADoc. 53 and BDoc. 47. Although Faith was engaged in services, she had been
advised to complete in-patient treatment and had not done so. ADoc. 53 and BDoc.
47. At that time Faith was attending her visitation with the children and the agency
noted that she was making some progress. ADoc. 53 and BDoc. 47.
{¶7} The agency filed an approved home study of James’ home on February
5, 2021. ADoc. 58 and BDoc. 53. A hearing on James’ motion for legal custody or
unsupervised visitation was held on January 4, 2021. ADoc. 59 and BDoc. 54.
Following the hearing, the trial court denied the motion for legal custody and the
motion for unsupervised visitation. ADoc. 59 and BDoc. 54.
{¶8} On July 12, 2021, the agency filed another semi-annual review of the
case plan. ADoc. 61 and BDoc. 56. In the review it was noted that Faith was now
in need of safe, stable and drug-free housing as she was temporarily living with
James. ADoc. 61 and BDoc. 56. The agency noted that although Faith had
attempted to complete parenting classes, she had not successfully completed the
classes. ADoc. 61 and BDoc. 56. Faith also was on probation through Ottawa
County at that time after being discharged from probation in Hancock County due
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to her non-compliance and a lack of motivation. ADoc. 61 and BDoc. 56. Faith
also had not successfully completed her domestic violence classes and would need
to restart the program due to lack of attendance. ADoc. 61 and BDoc. 56. The
agency did note that Faith had made some progress in her drug treatment program
due to her completing a program at the WORTH Center and also was continuing to
keep contact with the children, even while incarcerated. ADoc. 61 and BDoc. 56
Overall the agency determined that neither Faith nor James had made sufficient
progress on their case plan services to allow the children to be placed with either of
them. ADoc. 61 and BDoc. 56.
{¶9} On August 24, 2021, the agency filed motions for permanent custody
of G.P. and T.P. ADoc. 63 and BDoc. 58. The basis for the agency’s motions was
that 1) the children could not be placed with Faith or Spencer within a reasonable
time, 2) the children had been in the temporary custody of the agency for more than
twelve out of a consecutive twenty-two month period, and 3) the children were
abandoned. ADoc. 63 and BDoc. 58. On November 4, 2021, the trial court entered
a finding that the agency had “made reasonable efforts to finalize a permanency
plan” for the children. ADoc. 86 and BDoc. 79. A new GAL filed his report and
recommendation on November 10, 2021. ADoc. 87 and BDoc. 81. The GAL noted
that the children visited and had phone calls with James, while receiving phone calls
from Faith. ADoc. 87 and BDoc. 81. He noted that the children entered foster care
from relative placements on June 15, 2020. ADoc. 87 and BDoc. 81. The GAL
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stated that he attempted to arrange a visit with Faith at the Ohio Reformatory for
Women, where she was currently incarcerated, but no visit had occurred at that time.
ADoc. 87 and BDoc. 81. Throughout the case plan, Faith had been incarcerated
multiple times. ADoc. 87 and BDoc. 81. The GAL stated that James had
completed the mental health assessment, but did not follow the recommendations.
ADoc. 87 and BDoc. 81. The GAL noted that the children “have a great relationship
with their grandfather” and it would be in their best interest for them to continue the
relationship through visitation. ADoc. 87 and BDoc. 81. He reported that the foster
family invited James to the children’s soccer games and birthday parties. Finally,
the GAL recommended that the trial court grant the agency’s motion for permanent
custody, but order that James continue with visitation while Faith’s contact be
terminated. ADoc. 87 and BDoc. 81.
{¶10} James filed new motions for legal custody on November 22, 2021.
ADoc. 91 and BDoc. 84. On November 30, 2021, Faith filed a motion to be
conveyed to the hearing. ADoc. 94 and BDoc. 87. The motion to convey was
denied. ADoc. 95 and BDoc. 82. On December 2, 2021, Teresa R. (“Teresa”), the
children’s maternal great-grandmother, filed motions for legal custody. ADoc. 96
and BDoc. 89.
{¶11} On December 6 and 7, 2021, a hearing was held on the motions filed
by the agency, James, and Teresa. ADoc. 102 and BDoc. 95. At the beginning of
the hearing, Spencer indicated, through his attorney, that he agreed with the
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Agency’s motion for permanent custody and stipulated such. Tr. 9. Counsel for
Faith objected to her not being allowed to attend the hearing in person, instead only
via audio. Tr. 14. The trial court overruled the objection. Tr. 14. Following the
hearing, the trial court granted the Agency’s motion for permanent custody. ADoc.
102 and BDoc. 95. Faith filed her notices of appeal on December 15, 2021 and
amended notices of appeal on December 21, 2021.4 ADoc. 105, 113 and BDoc. 98,
106. She raises four assignments of error on appeal.
First Assignment of Error
The Juvenile Court’s Decision is Against the Manifest Weight of
the Evidence as the Agency Did Not Prove By Clear and
Convincing Evidence That it Should Be Granted Permanent
Custody of the Children.
Second Assignment of Error
The Juvenile Court Abused its Discretion in Finding That
Permanent Custody to the Agency Was in the Minor Children’s
Best Interest.
Third Assignment of Error
Denial of Mother-Appellant’s Motion to Appear in Person
Violated Her Right to Due Process Under the US and Ohio
Constitutions.
Fourth Assignment of Error
The State Did Not Make Reasonable Efforts To Facilitate a
Relative Placement For the Children.
4
Spencer did not file a notice of appeal.
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Granting of Agency’s Motion for Permanent Custody
{¶12} In her first and second assignments of error Faith argues that the trial
court erred by granting permanent custody of T.P. and G.P. to the agency.
Specifically, Faith argues under her first assignment of error that the trial court’s
decision granting permanent custody of T.P. and G.P. to the agency is against the
manifest weight of the evidence. Faith then argues in the second assignment of error
that the trial court’s decision was not in the best interest of the children.
{¶13} The right to parent one's own child is a basic and essential civil right.
In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). “Parents have a
‘fundamental liberty interest’ in the care, custody, and management of their
children.” In re Leveck, 3d Dist. No. 5–02–52, 5–02–53, 5–02–54, 2003–Ohio–
1269, ¶ 6. These rights may be terminated, however, under appropriate
circumstances and when all due process safeguards have been followed. Id. When
considering a motion to terminate parental rights, the trial court must comply with
the statutory requirements set forth in R.C. 2151.414. These requirements include,
in pertinent part, as follows.
(B)(1) Except as provided in division (B)(2) of this section, the
court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to division (A) of
this section, by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody of the child to the
agency that filed the motion for permanent custody and that any
of the following apply:
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(a) The child is not abandoned or orphaned, has not 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, * * * and the
child cannot be placed with either of the child’s parents within a
reasonable time or should not be placed with the child’s parents.
***
(d) 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 * * *.
***
For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency
on 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 the home.
***
(C) In making the determination required by this section * * *, a
court shall not consider the effect the granting of permanent
custody to the agency would have upon any parent of the child. A
written report of the guardian ad litem of the child shall be
submitted to the court prior to or at the time of the hearing held
pursuant to division (A) of this section * * * but shall not be
submitted under oath.
If the court grants permanent custody of a child to a movant
under this division, the court, upon the request of any party, shall
file a written opinion setting forth its findings of fact and
conclusions of law in relation to the proceeding. The court shall
not deny an agency’s motion for permanent custody solely
because the agency failed to implement any particular aspect of
the child’s case plan.
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R.C. 2151.414. A court’s decision to terminate parental rights will not be
overturned as against the manifest weight of the evidence if the record contains
competent, credible evidence by which a court can determine by clear and
convincing evidence that the essential statutory elements for a termination of
parental rights have been established. In re S.L., 3d Dist. Shelby Nos. 17-17-17,
17-17-18, 17-17-19, 2018-Ohio-900, ¶ 24.
{¶14} The determination whether to grant a motion for permanent custody
requires a two-step approach. In re L.W., 3d Dist. Marion Nos. 9-16-55, 9-16-56,
2017-Ohio-4352, ¶ 5. The first step is to determine whether any of the factors set
forth in R.C. 2151.414(B)(1) apply. Id. If one of those circumstances applies, then
the trial court must consider whether granting the motion is in the best interest of
the child by considering the factors set forth in R.C. 2151.414(D). Id.{¶15} A review of the record in this case shows that the children were
removed from the home on March 3, 2020, and placed with family members. Tr.
93. On June 17, 2020, the children were moved to a foster placement. Tr. 97. The
children remained in foster care from that time forward. Tr. 97. The Agency filed
its motion for permanent custody on August 24, 2021. Thus, the children spent
more than 12 months out of the preceding 22 months in the custody of the Agency.
This meets the requirement of R.C. 2151.414(B)(1)(d).
{¶16} “Once a trial court has determined that one of the enumerated
provisions in R.C. 2151.414(B)(1) applies, it then must determine by clear and
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convincing evidence whether granting the agency permanent custody of the child is
in the child's best interest.” In re A.N., 3d Dist. Marion No. 9-19-79, 2020-Ohio-
3322, ¶ 5.
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section * * * the 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 * * * 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.
R.C. 2151.414. A trial court must either specifically address each of the required
factors or otherwise provide some affirmative indication that it considered the listed
factors. A.N. supra.
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{¶17} Here, the trial court specifically addressed the statutory factors. As to
the first factor, the interactions and interrelationships of the children, the trial court
found that the children had been out of the home since March 2, 2020 and had been
moved multiple times through no fault of their own. ADoc. 102 and BDoc. 95. The
trial court noted that both of the children were thriving in the current placement.
ADoc. 102 and BDoc. 95. The trial court noted that the children were bonded to
Faith, James, and Teresa as well as the foster family. ADoc. 102 and BDoc. 95.
Because of this, the trial court found that this factor supported both granting and
denying the motion for permanent custody.
{¶18} The second factor is the wishes of the child, expressed either directly
or through the GAL. The GAL testified that T.P. indicated she wanted to live with
the foster family. ADoc. 102. G.P. told the GAL that she wanted to live with the
foster family. BDoc. 95. However, the trial court noted that the foster mother
testified that G.P. had told her that G.P. wished to live with James. BDoc. 95. The
trial court concluded that this factor weighed in favor of granting permanent custody
to the agency. ADoc. 102 and BDoc. 95.
{¶19} The third factor addresses the custodial history of the children and
whether they have been in the Agency’s custody for at least 12 out of a consecutive
22 month period. As noted above, the children had been in the temporary custody
of the Agency for more than 12 out of a consecutive 22 month period prior to the
filing of the motion for permanent custody. The trial court determined that this
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factor weighed in favor of granting the Agency’s motion for permanent custody.
ADoc. 102 and BDoc. 95.
{¶20} The fourth factor addresses the children’s need for legally secure and
permanent placements and how this could be achieved. The trial court noted that
Karmen Lauth (“Lauth”), the case plan supervisor, testified that the children were
in need of a legally secure and permanent placement and that the placement could
not be achieved without terminating the parental rights of Faith and Spencer. ADoc.
102 and BDoc. 95. The trial court agreed with the determination and found that
Faith was not in a position to care for the children. ADoc. 102 and BDoc. 95. The
trial court then determined that termination of Faith’s parental rights was in the best
interests of the children. ADoc. 102 and BDoc. 95.
{¶21} A review of the record shows that all of the findings of the trial court
were supported by the record. Keshia Olague testified that she reviewed the
visitations and noted that the children appeared bonded with James and Teresa.
Tammy Alvarado (“Alvarado”) testified that as the case worker, she had no issues
with either Faith’s or James’ visits with the children as they went well. Tr. 111-12.
Lauth testified that the children were attached to Faith. Tr. 149. The foster mother
testified that the children get very excited about visiting with Faith, James, and
Teresa. Tr. 200-202. The children come out of the visits happy and they look
forward to seeing them. Tr. 200-202. She specifically noted that the interactions
with James and Teresa are very important to both children. Tr. 214. The GAL
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testified that the children have a great relationship with James and he recommended
the relationship continue even after parental rights were terminated. Tr. 200-21.
This testimony supports the trial court’s conclusions about the interrelationship.
{¶22} Additionally, there was testimony about the other factors as well. The
GAL specifically testified as to what the children had indicated was their preference
for where they lived. Tr. 218. The foster mother testified that GP had said she
wanted to live with James. Tr. 213. Lauth testified about the children’s need for a
permanent placement. Tr. 159-161. The custodial history of the children was set
forth in the record for the trial court to review. Given the evidence before it, the
trial court could determine that the evidence clearly and convincingly showed that
the granting of the motion for permanent custody was in the children’s bests
interests.
{¶23} As there was clear and convincing evidence that one of the factors
under R.C. 2151.414(B)(1) was present, the trial court did not err in finding such.
Additionally, there was clear and convincing evidence that the granting of the
Agency’s motion for permanent custody was in the best interest of the children. The
first and second assignments of error are overruled.
Right to Appear at the Hearing
{¶24} In the third assignment of error, Faith claims that the trial court erred
in denying her request to be transported to the hearing from prison. Generally,
parents of a child have a constitutionally protected right to be present at a permanent
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custody hearing, but this right is not absolute if the parent is incarcerated. In re
A.W., 3d Dist. Defiance Nos. 4-16-23, 4-16-24, and 4-16-25, 2017-Ohio-1486, ¶ 15.
“[T]he failure to transport a parent from prison to a permanent custody hearing does
not violate a parent’s due process rights when: 1) the parent is represented at the
hearing by counsel; 2) a full record of the hearing is made; and 3) any testimony
that the parent wishes to present is able to be presented by deposition or by other
means.” Id. The decision whether to transport an incarcerated parent to the
permanent custody hearing is left to the discretion of the trial court. Id. at ¶ 16.
{¶25} Here, Faith was incarcerated at the time of the hearing and filed a
motion to be transported to the hearing. The trial court denied the motion, so she
was not physically present at the hearing. However, she was represented by counsel
during the hearing, a full record of the hearing was made, and she was offered the
opportunity to present testimony. Additionally, while Faith was not physically
present for the hearing, she was able to participate electronically for most of the
hearing by phone and by zoom. Her counsel cross-examined all of the witnesses
and was offered the opportunity to present testimony. When the trial court asked
Faith’s counsel if he intended to call any witnesses, counsel responded “I did not.”
Tr. 225. Given that Faith was able to participate electronically in the majority of
the hearing, was represented by counsel, chose not to testify when given the
opportunity, and a full record of the hearing was made, her due process rights were
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not violated. As such, the trial court did not abuse its discretion in denying Faith’s
motion to transport her to the hearing. The third assignment of error is overruled.
Relative Placement
{¶26} In her final assignment of error, Faith claims that the Agency failed to
make reasonable efforts to place the children with a relative. Faith argues that if the
trial court determined that the children could not be placed in her legal custody, the
trial court should have awarded legal custody of the children to James.5 In support
of her argument, Faith refers to R.C. 2151.412(H)(2), which states that if the parents
cannot care for a child, the case plan should place the child in the legal custody of
the child’s extended family. However, the language of this statute is precatory, not
mandatory as is shown by the use of the word “should” instead of “shall”. In re
M.O., 4th Dist. Ross No. 10CA3189, 2011-Ohio-2011, ¶ 15.
[T]his statute does not command the juvenile court to act in a
specific manner. Instead, it sets out general, discretionary
priorities to guide the court. So while the guidelines may be
helpful to the juvenile court, it is not obligated to follow them.
Therefore, the juvenile court's judgment is not in error simply
because the court chose not to follow one of these suggested
guidelines.
In re Halstead, 7th Dist. Columbiana No. 04 CO 37, 2005 -Ohio- 403, ¶ 39
(discussing prior version of the statute with almost identical language). “Moreover,
this legislation is relevant to case planning efforts during the temporary placement
5
Teresa also filed a motion for legal custody, but scant evidence was presented on her motion at trial and
Faith does not present any arguments on that motion, so we will focus on James’ motion for legal custody.
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of a child in the midst of a custodial proceeding as opposed to a determination on
the best interests of that child at the conclusion of a permanent custody proceeding.”
In re J.A., 9th Dist. Summit No. 24134, 2008-Ohio-3635, ¶ 26.
{¶27} The evidence in this case does show that James and the children were
very bonded with each other. The GAL even recommended that it would be in the
best interest of the children to continue contact with their grandfather. By all
accounts, James was a wonderful grandfather whose interaction with the children
was very positive. There is also no dispute that his home was appropriate for the
children as his home study was approved. However, there was evidence that James
was required to complete certain requirements by the court. These included 1)
obtaining a drug abuse/mental health assessment and following through with all
recommendations and 2) completing a CRAFT class so he would know how to
protect the children from the parents when they were under the influence of drugs.
James took two assessments in early 2020, but refused to follow up on the
recommendations because he disagreed with them. He did complete a third
assessment, but not until just before the court date. The record does not show what
the requirements of that assessment were. James had not been able to complete the
CRAFT class, though he claimed it was because of staffing and no evidence was
presented that contradicted this. Additionally, James had one drug screen returned
positive for marijuana and he admitted that he had used it on one occasion. The
evidence in this case is such that the trial court could conclude, by clear and
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convincing evidence that permanent custody was in the children’s best interests. As
such, the trial court did not err in denying the motions for legal custody filed by
James and the fourth assignment of error is overruled.
{¶28} Having found no prejudicial error in the particulars assigned and
argued, the judgments of the Hancock County Court of Common Pleas, Juvenile
Division, is affirmed.
Judgments Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
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