In re A.N.F.

[Cite as In re A.N.F., 2018-Ohio-3689.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: :
A.N.F., : No. 17AP-905
(C.P.C. No. 15JU-15028)
(K.B., :
(REGULAR CALENDAR)
Appellant). :
:
DECISION
Rendered on September 13, 2018
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
On brief: Yeura Venters, Public Defender, and Ian J. Jones,
for appellant K.B.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
HORTON, J.
{¶ 1} Appellant-mother, K.B., appeals from a December 8, 2017 judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
that terminated her parental rights and granted permanent custody of her minor daughter,
A.N.F. ("A.F."), to Franklin County Children Services ("FCCS"). For the following reasons,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The facts and procedural history, as relevant to this appeal, are as follows. On
December 11, 2015, FCCS filed a complaint in Franklin C.P. No. 15JU-15028 on behalf of
A.F., a minor born on May 22, 2015, alleging two counts of abuse, one count 0f neglect, and
one count of dependency, and named appellant as mother and D.F. as father.1
1The putative father, D.F., was later excluded by DNA testing as the biological father of A.F. and was
dismissed as a party to this action on June 14, 2017.
No. 17AP-905 2
{¶ 3} At the time the complaint was filed, the family had already been involved with
FCCS for six years. Appellant had lost legal custody of one child, A.W., to the child's father
in a juvenile dependency action, Franklin C.P. N0. 13JU-9661, but had parenting time
rights. Another child, K.M.B., had been adjudicated neglected and dependent in
November 2011, and permanent custody had been granted to FCCS in Franklin C.P.
No. 11JU-11768. In addition, another child, A.B., had died when she was six months old.
{¶ 4} By way of history, appellant has been convicted of five felonies and has been
incarcerated multiple times. Appellant pled guilty to criminal endangering of her son,
K.M.B, in May 2012. In July 2012, she was indicted for forgery and receiving stolen
property, and pled guilty to both counts. When A.F. was born, she and appellant tested
positive for marijuana, but A.F. remained with appellant. However, when A.F. was
approximately four months old, appellant was indicted for tampering with evidence and
gross abuse of a corpse. She would later plead guilty to both charges. Appellant also had a
history of mental health problems. There were concerns of schizophrenia, depression, and
possible Munchausen syndrome.
{¶ 5} The complaint alleges A.F. and other siblings were left unsupervised in the
home for an unknown period of time. On September 14, 2015, a dead man was found in the
home's basement. D.F. and appellant were suspects in that apparent homicide. Shortly
after, appellant and D.F. were arrested and incarcerated and A.F. was removed and, after a
temporary order of custody to FCCS on September 15, 2015, was placed in a foster home
where she has remained until the present.
{¶ 6} At the adjudication hearing on February 1, 2016, the abuse counts were
dismissed and, in an uncontested proceeding, A.F. was found to be neglected and
dependent. The court made the child a ward of the court and committed her to the
temporary custody of FCCS. A case plan hearing and an annual review hearing was
scheduled. On August 18, 2016, the magistrate issued a Civ.R. 60(A) decision adjudicating
A.F. to be dependent only. This was adopted by the court.
{¶ 7} On August 19, 2016, FCCS filed a motion for permanent custody of A.F. On
October 26, 2017, FCCS filed another motion for permanent custody to add the allegation
of FCCS custody for 12 or more months of a consecutive 22-month period. Eventually, on
November 27, 2017, a trial was held on the motion. Testifying at the trial were appellant,
No. 17AP-905 3
attorney John Ryerson as Guardian ad Litem for A.F., and caseworker David Phinney from
The Buckeye Ranch.
{¶ 8} At the trial, the following facts were noted by the trial court. Appellant's case
plan was filed on February 9, 2016, and was approved and adopted as a court order, and
clearly states the requirements for reunification with A.F. Appellant was to obtain/maintain
stable appropriate housing; provide proof of legal verified income; complete an alcohol or
other drug ("AOD") assessment and follow through with all recommendations; allow A.F.,
along with herself, to actively participate in the Infant Wellness Program and Help Me
Grow; complete drug screens through ACS; comply with any and all requirements of
probation; sign the release of information for service providers; and, make herself available
to meet with the caseworker at least once monthly. Appellant was also to visit with A.F.
{¶ 9} All reviews indicate appellant made insufficient progress on the case plan.
Specifically, visits with A.F., even after appellant was released from incarceration, were
inconsistent with over 50 percent missed. In regards to stable housing, appellant has
provided a 2-year lease on an appropriate home for children, however, the trial court states
that it "may be a stretch to claim she has maintained stable housing when she has only lived
there three months, and has not provided proof she is current with her rent and water bill
of $600 per month." (Dec. 8, 2018 Decision and Jgmt. Entry at 11.) Appellant has worked
only sparingly throughout the case. She has never provided proof of employment except
showing on her phone proof of her recent employment for just one month.
{¶ 10} An AOD assessment was just taken in March 2017, but there is no evidence
of completion of AOD treatment. There is no evidence she participated in the Infant
Wellness Program or Help Me Grow. She has not participated in a parenting class.
Performance of drug screens throughout the case has been, in the trial court's word,
"abysmal." (Decision and Jgmt. Entry at 12.) In August 2015, when she linked with ACS,
she had one clean screen, one dirty screen, missed five screens, and missed thirty calls. She
was incarcerated from September 2015 to January 14, 2016, pending a criminal trial. Her
bond was revoked and she was again incarcerated. Once freed, she relinked with ACS on
May 5, 2016, but from that date until July 30, 2016, she never called in once nor performed
one drug screen at ACS. Failure of consistent random screening, and failure to complete
AOD treatment for two years, "cannot lead the court to the conclusion that her drug issues
have been resolved to insure the safety of her child." (Decision and Jgmt. Entry at 12.)
No. 17AP-905 4
{¶ 11} Appellant was also referred to counseling in January 2016. Her psychologist
recommended long term psychotherapy, parenting classes, and continued drug screens.
None of those recommendations were completed. Appellant was referred for a mental
health assessment in March 2017, where she did take two mental health assessments and
began counseling in April or May. However, she has been inconsistent in compliance, still
exhibiting erratic, emotional behavior, much trauma and loss.
{¶ 12} The trial court noted that appellant has had:
[R]epeated incarcerations for felonies and absconding. She lost
one infant who died at six months under mysterious
circumstances. One child, after she faked his illness to
hospitalize him was permanently committed to FCCS in 2014.
* * * Yet the causes for removal of these children continued
unabated and still have throughout [A.F.'s] case. While mother
appears to have begun to address her problems, she has in no
way successfully completed a case plan which has travelled over
many cases for six years, and this particular child for over two
years. The child cannot be returned to mother within a
reasonable period of time.
(Decision and Jgmt. Entry at 13-14.)
{¶ 13} On December 8, 2017, the trial court issued its decision and judgment entry
stating:
[A.F.] is integrated into a foster family where foster parents
wish to adopt her and where all of her needs have been
successfully fulfilled. They are the only family with whom she
has ever resided.
Given these facts, [A.F.] is in great need of a secure permanent
placement to continue her development physically,
educationally, emotionally, and socially, which cannot be
achieved without a grant of permanent custody to the agency
for purposes of adoption.
***
Clear and convincing evidence exists that granting FCCS'
request for Permanent Custody is in [A.F.'s] best interest.
Under R.C. §2151.414(B)(1)(d), there is clear and convincing
evidence that the child has been in the custody of Franklin
County Children Services for more than 12 out of 22
consecutive months.
***
No. 17AP-905 5
The Court has carefully reviewed the testimony and evidence
presented, the entire file, and the applicable law. The Court
hereby finds that Permanent Custody is in [A.F.'s] best interest.
Accordingly, the Court hereby GRANTS FCCS's request for
Permanent Custody. Therefore, [A.F.] is committed to the
Permanent Custody of FCCS for the purposes of adoption.
Based upon the foregoing findings of fact, and pursuant to R.C.
§2151.417, the Court hereby determines that continuation in
the child's own home would be contrary to the child's best
interests; that Franklin County Children Services has made
reasonable efforts to prevent or eliminate the need for removal
of said child from the child's own home. Reasonable efforts
have also been made to finalize the permanency plan in effect
for the child.
Id. at 14-15.
II. ASSIGNMENT OF ERROR
{¶ 14} Appellant appeals and asserts as the sole assignment of error:
THE TRIAL COURT ERRED WHEN IT FOUND THAT THE
AGENCY HAD MADE REASONABLE EFFORTS TO RETURN
THE CHILD TO HER MOTHER'S HOME.
III. DISCUSSION
{¶ 15} A trial court's determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence. In re Andy-
Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28. Permanent custody judgments
which are supported by some competent, credible evidence going to all essential elements
of a case will not be reversed as being against the manifest weight of the evidence.
In re Brofford, 83 Ohio App. 3d 869, 876-77 (10th Dist.1992). "In reviewing a judgment
granting permanent custody to FCCS, an appellate court 'must make every reasonable
presumption in favor of the judgment and the trial court's findings of facts.' " In re
J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8, quoting In re P.G., 10th Dist. No.
11AP-574, 2012-Ohio-469, ¶ 37. "Furthermore, 'if the evidence is susceptible of more than
one construction, we must give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the [juvenile] court's verdict and judgment.' "
In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59, quoting Karches v.
Cincinnati, 38 Ohio St. 3d 12, 19 (1988).
No. 17AP-905 6
{¶ 16} A parent's liberty interest "in the care, custody, and control of their
children" is a fundamental right guaranteed by the Due Process Clause of the Fourteenth
Amendment. Troxel v. Granville, 530 U.S. 57, 65 (2000). Thus, termination of parental
rights "should be an alternative of 'last resort.' " In re D.A., 113 Ohio St. 3d 88, 2007-Ohio-
1105, ¶ 11, quoting In re Cunningham, 59 Ohio St. 2d 100, 105 (1979). A parent faced with
the state's motion for permanent custody " 'must be afforded every procedural and
substantive protection the law allows.' " In re D.A. at ¶ 10, quoting In re Hayes, 79 Ohio
St.3d 46, 48 (1997). "The fundamental interest of parents is not absolute, however. Once
the case reaches the disposition phase, the best interest of the child controls." In re D.A. at
¶ 11. To terminate parental rights, a court must find "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," after considering the best
interests of the child in light of a number of statutory factors. R.C. 2151.414(B)(1).
{¶ 17} Initially, we note that while appellant does not raise the issue in an
assignment of error, she attempts to challenge the trial court's finding that A.F. is a
dependent child. Appellant alleges that A.F. was removed from her because she was
arrested and held on charges based on an incident for which she was not responsible.
Appellant further claims that when she was released from jail, the reason for the child's
removal no longer existed. However, there was no timely appeal of the adjudication of
dependency and the grounds for removal.
{¶ 18} This court is without the power to reexamine the trial court's dependency
adjudication. The statute is clear: "The adjudication that the child is an abused, neglected,
or dependent child and any dispositional order that has been issued in the case under
section 2151.353 of the Revised Code pursuant to the adjudication shall not be
readjudicated at the hearing" on a motion for permanent custody. R.C. 2151.414(A)(1).
A trial court's adjudication of dependency is a final appealable order. In re Murray, 52 Ohio
St.3d 155 (1990), syllabus. Furthermore, the Supreme Court of Ohio has expressly held that
there is no exception to the 30-day time limit for filing an appeal under App.R. 4 of an
adjudication of abuse, dependency, or neglect to allow the matter to be re-litigated if an
agency subsequently seeks permanent custody of a child. In re H.F., 120 Ohio St. 3d 499,
504, 2008-Ohio-6810, ¶ 15.
No. 17AP-905 7
{¶ 19} In this case, appellant did not appeal the dependency adjudication of A.F.
The issue of A.F.'s dependency adjudication is settled and appellant may not re-litigate that
determination. See also In re E.R. J.R., 10th Dist. No. 17AP-82, 2017-Ohio-7188, ¶ 50,
holding that "this court is without the power to reexamine the trial court's dependency
adjudication."
{¶ 20} We now turn to appellant's assignment of error. Appellant alleges that FCCS
did not make reasonable efforts to reunify the child with appellant. Under R.C.
2151.413(D)(1), "[i]f a 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 agency with custody shall file a motion
requesting permanent custody of the child." The statute also defines several circumstances
when an agency may not file such a motion. Under R.C. 2151.413(D)(3)(b), an agency
may not file for permanent custody "[i]f reasonable efforts to return the child to the child's
home are required under section 2151.419 of the Revised Code, [and] the agency has
not provided the services required by the case plan to the parents of the child or the child
to ensure the safe return of the child to the child's home." R.C. 2151.419(A)(1) states that an
agency must prove that it has made "reasonable efforts to prevent the removal of the child
from the child's home, to eliminate the continued removal of the child from the child's
home, or to make it possible for the child to return safely home."
{¶ 21} However, the reasonable efforts requirement under "R.C. 2151.419(A)(1) does
not apply in a hearing on a motion for permanent custody filed pursuant to R.C. 2151.413."
In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, ¶ 43. This is because a child support agency
must have proven reasonable efforts prior to filing a motion for permanent custody. In re
E.R. J.R. at ¶ 53. "If the agency has not established that reasonable efforts have been made
prior to the hearing on a motion for permanent custody, then it must demonstrate such
efforts at that time." In re C.F. at ¶ 43. Thus, if the record reflects that the trial court has
made a finding that the children services agency has made reasonable efforts as required
by R.C. 2151.419(A)(1), the 2151.413(D)(3)(b) prohibition on filing a motion for permanent
custody does not apply. See In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 40.
{¶ 22} Here, the magistrate filed a decision on February 9, 2016, which was adopted
by the trial court. The decision included the following finding: "Continuation in the child's
own home would be contrary to the child's welfare and that reasonable efforts have been
No. 17AP-905 8
made to prevent or eliminate the need for removal of said child from the child's own home."
(Feb. 9, 2016 Mag. Decision at 1.) At that time, the permanency goal for A.F. was
reunification, pursuant to the case plan in effect. (Feb. 9, 2016 Case Plan at 1.) These
findings satisfy the reasonable efforts requirement under R.C. 2151.419(A)(1). In re K.L. at
¶ 40. Accordingly, the R.C. 2151.413(D)(3)(b) prohibition did not apply, and FCCS
appropriately filed the motions for permanent custody on August 19, 2016, and October 26,
2017.
{¶ 23} In addition, reasonable efforts were not required in this case. R.C.
2151.419(A)(2)(e) provides that:
(2) If any of the following apply, the court shall make a
determination that the agency is not required to make
reasonable efforts to prevent the removal of the child from the
child's home, eliminate the continued removal of the child from
the child's home, and return the child to the child's home:
***
(e) The parent from whom the child was removed has had
parental rights involuntarily terminated with respect to a
sibling of the child pursuant to section 2151.353, 2151.414, or
2151.415 of the Revised Code or under an existing or former law
of this state, any other state, or the United States that is
substantially equivalent to those sections.
Appellant's child, K.M.B., was involuntarily committed to the permanent custody of FCCS.
As such, the trial court was required to make a determination that reasonable efforts were
not required. Thus, as a matter of law, reasonable efforts to reunify with appellant were
not required by FCCS. See In re R.B., 6th Dist. No. L-09-1274, 2010-Ohio-4710, ¶ 23; In re
Craig, 5th Dist. No. 2006P030014, 2006-Ohio-3026, ¶ 17; In re Brown, 5th Dist. No.
2008 CA 00029, 2008-Ohio-3655, ¶ 26. However, as demonstrated below, FCCS
attempted reasonable efforts to engage appellant in completing a reunification case plan.
{¶ 24} Although the trial court was not required to address the issue of reasonable
efforts when considering the agency's request for permanent custody, the trial court
specifically found that FCCS made reasonable efforts to prevent or eliminate the need for
removal of said child from the child's own home, and that reasonable efforts have also been
made to finalize the permanency plan in effect for the child. Based on our review of the
record, this determination was not against the manifest weight of the evidence.
No. 17AP-905 9
{¶ 25} The record shows that a case plan was developed and efforts were made to
assist appellant in possibly reunifying with A.F. Some of those efforts included: (1) linking
her to counseling services to address the issues of schizophrenia, depression, and possible
Munchausen syndrome; (2) drug screening and referrals to drug and alcohol services in the
home; (3) attempting to improve the quality of her time with A.F.; and (4) the caseworker
offered to have her call times changed to help her screen and, in fact, did do so on several
occasions. However, appellant's incarceration, failing to cooperate with case services, and
other factors prevented her from complying with the case plan.
{¶ 26} Finally, we note that appellant does not expressly present a manifest weight
challenge in her assignment of error to the trial court's decision that clear and convincing
evidence exists that granting FCCS's request for permanent custody is in A.F.'s best interest.
Nevertheless, in the interest of justice and due to the fundamental right at stake in
this appeal, we consider such a review warranted. See, e.g., Hungler v. Cincinnati, 25 Ohio
St.3d 338, 341 (1986) (interpreting the "discretionary" language of App.R.12(A) to allow
an appellate court to consider "errors not assigned by the parties"). Thus, based on our
review of the record developed in the trial court, there was competent, credible evidence to
support the trial court's conclusion that granting the motion for permanent custody would
be in the best interests of A.F. Accordingly, the trial court's decision was not against the
manifest weight of the evidence.
IV. DISPOSITION
{¶ 27} Based on the above, we overrule appellant's assignment of error and affirm
the judgment of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch.
Judgment affirmed.
DORRIAN, J., concurs.
LUPER SCHUSTER, J., concurs in judgment only.
_________________