In re S.H.

[Cite as In re S.H., 2013-Ohio-4441.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. Sheila G. Farmer, P.J.
S.H. (MINOR CHILD) : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin
:
: Case No. 13CA17
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
2112001
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 7, 2013
APPEARANCES:
For Appellant For Appellee
JOHN A. DANKOVICH MICHAEL D. SCHLEMMER
One Public Square 117 East High Street
Mount Vernon, OH 43050 3rd Floor
Mount Vernon, OH 43050
Knox County, Case No. 13CA17 2
Farmer, P.J.
{¶1} On January 3, 2011, appellee, the Knox County Department of Job &
Family Services, filed a complaint for temporary custody of S.H. born May 13, 2010,
alleging the child to be neglected and dependent. Mother of the child is appellant,
Rebecca Johnson; father is Jeremy Hayes. An adjudicatory hearing was held on
March 22, 2011 wherein the parents admitted to dependency. The trial court found the
child to be dependent and granted temporary custody to appellee. The determination
was journalized via judgment entry filed April 11, 2011.
{¶2} On December 6, 2012, appellee filed a motion for permanent custody of
the child based upon the parents' failure to comply with the case plan. A hearing
commenced on April 4, 2013. By journal entry filed June 7, 2013, the trial court
granted permanent custody of the child to appellee.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED IN FINDING REASONABLE EFFORTS
WERE MADE TOWARD REUNIFICATION."
II
{¶5} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE CHILD S.H. WOULD BE SERVED BY GRANTING
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE."
Knox County, Case No. 13CA17 3
I, II
{¶6} Appellant claims the trial court erred in finding reasonable efforts toward
reunification were made, and permanent custody was in the best interest of the child.
We disagree.
{¶7} A trial court may grant an agency permanent custody of a child upon clear
and convincing evidence of certain factors set forth in R.C. 2151.414. Clear and
convincing evidence is that evidence "which will provide 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 (1954), paragraph three of the syllabus. See also, In re Adoption of
Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an
issue must be clear and convincing, a reviewing court will examine the record to
determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof." Cross, at 477.
{¶8} R.C. 2151.414(E) sets out the factors relevant to determining permanent
custody. Said section states the following in pertinent part:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the
court shall consider all relevant evidence. If the court determines, by clear
and convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Knox County, Case No. 13CA17 4
Revised Code that one or more of the following exist as to each of the
child's parents, the court shall enter a finding that the child cannot be
placed with either parent within a reasonable time or should not be placed
with either parent:
(1) Following the placement of the child outside the child's home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused
the child to be placed outside the home, the parent has failed continuously
and repeatedly to substantially remedy the conditions causing the child to
be placed outside the child's home. In determining whether the parents
have substantially remedied those conditions, the court shall consider
parental utilization of medical, psychiatric, psychological, and other social
and rehabilitative services and material resources that were made
available to the parents for the purpose of changing parental conduct to
allow them to resume and maintain parental duties.
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for the child;
(16) Any other factor the court considers relevant.
{¶9} R.C. 2151.414(B)(1)(d) states the following:
Knox County, Case No. 13CA17 5
(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:
(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, or 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 and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
{¶10} R.C. 2151.414(D) sets out the factors relevant to determining the best
interests of the child. Said section states relevant factors include, but are 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;
Knox County, Case No. 13CA17 6
(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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(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.
{¶11} In its journal entry filed June 7, 2013, the trial court specifically found, "by
clear and convincing evidence that in spite of reasonable case planning and diligent
efforts by CSU/KCDJFS, this child cannot be safely returned to either of her parents at
this time or in the foreseeable future." The trial court further found the child had been
in appellee's temporary custody "for the past two years. This far exceeds the statutory
Knox County, Case No. 13CA17 7
standard for granting motions for permanent custody, which is 12 months out of a
consecutive 22 month period." This court has adopted the position that proof of
temporary custody with an agency for twelve or more months of a consecutive twenty-
two-month period alone is sufficient to award permanent custody. In the Matter of A.S.,
V.S., and Z.S., 5th Dist. Delaware No. 13 CAF 050040, 2013-Ohio-4018.
{¶12} The pertinent period of time in consideration is May 13, 2010 (birth of the
child) to December 6, 2012 (filing of the motion for permanent custody). The trial court
found the child was placed in appellee's temporary custody on March 22, 2011. The
permanent custody motion was filed almost twenty-one months later on December 6,
2012. Therefore, R.C. 2151.414(B)(1)(d) has been met.
{¶13} Appellee formulated a case plan for the parents and amended it several
times. Each case plan's linchpin was the need for appellant to obtain stable, suitable
housing and a job, as well as mental health and drug and alcohol assessments. T. at
12-16. From the time of the child's birth, appellant has been virtually homeless,
"[u]pwards of 15 to 18" times throughout the case. T. at 124. She survived by staying
with friends and relatives, agency housing until she was evicted for non-payment of
rent, and a hotel until the hotel closed. T. at 38, 53, 62, 63-67, 72, 84-85, 98-99, 102-
105, 112, 117-118, 119-120, 185-186, 193-196. Most of appellant's housing problems
were the result of a lack of finances and employment, and the child's father living with
her on and off and not contributing. T. at 40-41, 46, 49-50, 55-56, 61, 68, 70, 74-75,
108-109, 193.
{¶14} Despite the litany of living places, appellant thought she was not homeless
because she always found some place to go. T. at 196-197. At the time of the
Knox County, Case No. 13CA17 8
hearing, appellant was working with Moundbuilder's Guidance Center (kna Behavioral
Healthcare Partners), trying to obtain a place to live, but it could take a couple weeks.
T. at 186. In the meantime, she was staying with the child's father and a known
sexually oriented sex offender. T. at 75, 100, 119, 133-134, 191-193. Appellant only
formulated a plan for housing stability some twenty-four months after the child was
placed in appellee's temporary custody.
{¶15} Appellant completed an alcohol and drug assessment one month before
the hearing. T. at 15, 91. At the same time, she started taking medications for
depression and anxiety disorder. T. at 122-123. She did not follow through with
domestic violence classes. T. at 15, 117. Appellant attended 176 of the 208
scheduled visitations; many times she did not interact with the child, slept, texted,
argued with the child's father or joked about alcohol binges. T. at 68-69, 73-74, 76-77,
103, 110, 147, 149, 154. Once the parents appeared at a visitation with all of their
belongings in garbage bags as they were homeless. T. at 99.
{¶16} Appellee's involvement with appellant began prior to S.H. being born. T.
at 9. Appellee became involved due to complaints of neglect involving S.H.'s older
half-sibling. Id. At the time of the hearing, the older half-sibling was sixteen years old
and under a planned permanent living arrangement with appellee. T. at 13, 23. After
S.H. was born, appellee provided hotel placement, paid the deposit and rent for an
apartment, helped obtain needed birth certificates, provided a Pack-N-Play, gave
appellant formula, helped get appellant's medical card reinstated, set up 208
visitations, provided transportation, and helped with Christmas gifts and furniture. T. at
19, 28-29, 39, 58, 62, 65, 79, 143, 149. In fact, appellee gave appellant a second
Knox County, Case No. 13CA17 9
chance when it dismissed an earlier permanent custody motion that had been filed on
May 14. 2012.
{¶17} It is abundantly clear that appellant has been victimized by the fathers of
her two children, and has severe depression and an anxiety disorder that adds to her
dependent personality. T. at 216, 218, 223-224. Because of her emotional distress
and rigid parenting style, she has difficulty parenting. T. at 220-221. The psychologist
that evaluated appellant opined her ability to complete the case plan was "guarded." T.
at 232. Appellant has been alone and struggling most of her life. T. at 174. Although
all of these factors make appellant a sympathetic person, it is the best interests of the
child that is the central issue.
{¶18} The child has been in foster care with the same foster parents for slightly
over two years. T. at 138. It is a prospective adoptive home, and the child is doing
very well and has bonded with the foster parents, as well as appellant. T. at 138-139.
{¶19} We find the record as a whole supports the trial court's conclusions that
appellee made reasonable efforts and permanent custody to appellee is in the best
interests of the child.
{¶20} Assignments of Error I and II are denied.
Knox County, Case No. 13CA17 10
{¶21} The judgment of the Court of Common Pleas of Knox County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. Patricia A. Delaney
_______________________________
Hon. Craig R. Baldwin
SGF/sg 919
[Cite as In re S.H., 2013-Ohio-4441.]
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
S.H. (MINOR CHILD) : JUDGMENT ENTRY
:
:
: CASE NO. 13CA17
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Knox County, Ohio, Juvenile Division is
affirmed. Costs to appellant.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. Patricia A. Delaney
_______________________________
Hon. Craig R. Baldwin