In re C.M.

[Cite as In re C.M., 2015-Ohio-3971.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: C.M. : APPEAL NOS. C-150365
C-150396
: TRIAL NO. F04-2236Z
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Judgment Entered
Date of Judgment Entry on Appeal: September 30, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr.,
Assistant Prosecuting Attorney, for Appellant Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Megan E. Busam,
Attorney Guardian Ad Litem, for C.M.,
Elizabeth Powers, for Appellee Mother.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Appellants the Hamilton County Department of Job and Family
Services (“HCJFS”) and the attorney guardian ad litem (“GAL”) for the child, C.M.,
appeal the juvenile court’s judgment denying HCJFS’s motion for permanent custody
and awarding legal custody of C.M. to the mother. C.M.’s mother had permanently
lost custody of C.M.’s siblings just eight months earlier, so she was required to prove
by clear and convincing evidence that she could provide a legally secure permanent
placement and adequate care for C.M.’s health, welfare, and safety. Because she
failed to meet that burden, we reverse the judgment of the juvenile court and enter
judgment in favor of HCJFS on its motion for permanent custody.
Background
{¶2} C.M. is now almost four years old. C.M.’s mother has two other
children who are 11 and 15 years old, and her involvement with the juvenile court
began several years before C.M. was born.
{¶3} In January 2009, following the mother’s admission that she had
beaten the oldest sibling with a belt and caused injury, HCJFS obtained emergency
custody of the children. The mother was charged with child endangering and was
convicted of an attempt. The oldest sibling was adjudicated abused and dependent
and the other sibling was adjudicated dependent.
{¶4} The mother engaged in parenting, anger-management, and counseling
services and, in the fall of 2009, was granted unsupervised weekend visitation with
the children. But then she and a boyfriend got into a physical altercation in front of
the children. She and her boyfriend were arrested, and she was convicted of
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disorderly conduct. As a result, her visits with the children had to be supervised at
the Family Nurturing Center (“FNC”).
{¶5} After unsupervised visitation resumed in January 2010, C.M.’s siblings
witnessed another violent encounter while at their maternal grandmother’s home.
They saw their maternal uncle stab their mother’s boyfriend several times. So
visitation was again restricted to supervised status at the FNC.
{¶6} In March 2011, HCJFS filed for permanent custody of C.M.’s older
siblings. Evidentiary hearings on the motion began in September 2011 and
continued through January 2012.
{¶7} Meanwhile, C.M. was born in October 2011, and within a few days,
HCJFS obtained emergency custody of C.M. In December 2011, C.M. was
adjudicated abused and dependent and was placed in HCJFS’s temporary custody.
In October 2012, HCJFS moved for permanent custody of C.M.
{¶8} In December 2012, a magistrate recommended the award of
permanent custody of C.M.’s siblings to HCJFS. Objections were filed. In the
meantime, evidentiary hearings were conducted on the permanent-custody motion
pertaining to C.M.
{¶9} In March 2014, with respect to the permanent-custody matter
involving C.M.’s siblings, the juvenile court granted a motion to introduce new
evidence because so much time had passed following the last evidentiary hearing in
early 2012. The court ordered that the new evidence be heard in May 2014. In April
2014, HCJFS asked the court to join C.M.’s pending permanent-custody motion with
the proceedings on C.M.’s siblings, but the court refused.
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{¶10} On May 28 and 29, 2014, the juvenile court received additional
testimony and evidence with respect to the objections to the magistrate’s decision in
the matter of C.M.’s siblings. In September 2014, the court overruled the objections
and adopted the magistrate’s decision granting permanent custody of C.M.’s siblings
to HCJFS. This court affirmed the judgment in In re T.M. and J.M., 1st Dist.
Hamilton Nos. C-140528, C-140532 and C-140542 (Dec. 24, 2014).
{¶11} In January 2015, a few months after the juvenile court had granted
permanent custody of C.M.’s siblings to HCJFS, a magistrate recommended denying
permanent custody of C.M. to HCJFS. On May 28, 2015, the juvenile court overruled
the objections of HCJFS and the GAL and adopted the magistrate’s decision. HCJFS
and the GAL appeal.
The Appeals by HCJFS and the GAL
{¶12} In the first three assignments of error by HCJFS and in the two
assignments of error by the GAL, they challenge the juvenile court’s denial of
permanent custody to the agency as being against the weight and sufficiency of the
evidence. Specifically, they contend that the court failed to correctly apply the
statutory framework set forth in R.C. 2151.414.
{¶13} R.C. 2151.414, the statute governing motions for permanent custody,
has been amended recently. Therefore, we will apply the version that was in effect on
October 2, 2012, the date that the motion for permanent custody was filed. See In re
C.E.1, 1st Dist. Hamilton No. C-140674, 2015 Ohio App. LEXIS 1170 (Mar. 20, 2015).
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OHIO FIRST DISTRICT COURT OF APPEALS
Former R.C. 2151.414(D)(2)
{¶14} If the following factors exist under former R.C. 2151.414(D)(2),
permanent custody is determined to be in the best interest of the child, and the
juvenile court must commit the child to the permanent custody of the agency: (a) the
court determines by clear and convincing evidence that one or more of the factors in
division (E) of this section exist and the child cannot be placed with one of the
parents within a reasonable time or should not be placed with either parent; (b) the
child has been in an agency’s custody for two years or longer, and no longer qualifies
for temporary custody; (c) the child does not meet the requirements for a planned
permanent living arrangement; and (d) no relative or other interested person has
filed or been identified in a motion for legal custody of the child.
{¶15} In this case, there was no dispute that the latter three factors had been
met. C.M. had been in HCJFS custody for more than three and a half years and no
longer qualified for temporary custody; C.M. did not qualify for a planned permanent
living arrangement; and there was no other motion for legal custody of C.M. See
former R.C. 2151.414(D)(2)(b)-(d). Thus, the remaining question is whether the first
factor had been met.
{¶16} That question turns on former R.C. 2151.414(E). If at least one factor
under division (E) exists, permanent custody must be granted to the agency. Former
R.C. 2151.414(D)(2).
Former R.C. 2151.414(E)(11) and the Mother’s Burden of Proof
{¶17} Under former R.C. 2151.414(E)(11), the grant of permanent custody for
C.M.’s siblings triggered an automatic finding that C.M. could not be placed with the
mother within a reasonable time or should not be placed with the mother, unless the
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mother proved by clear and convincing evidence that, notwithstanding the prior
termination, she could provide a legally secure permanent placement and adequate
care for the health, welfare, and safety of C.M. See former R.C. 2151.414(E)(11).
{¶18} In this case, there is no dispute that C.M.’s mother had permanently
lost custody of two other children. Therefore, under former R.C. 2151.414(E)(11), it
was the mother’s burden to show that she could provide a legally secure permanent
placement for C.M. and provide adequate care for the child’s health, welfare, and
safety. See In re E.S., 1st Dist. Hamilton Nos. C-100725 and C-100747, 2011-Ohio-
586, ¶ 7.
{¶19} The juvenile court recognized that the burden was on C.M.’s mother to
demonstrate her ability to provide for C.M. And the court noted that the termination
of parental rights with respect to C.M.’s siblings presented a presumption that
permanent custody was in C.M.’s best interests. The court stated:
It appears inconsistent if there are different permanent custody
decisions concerning children in the same family. A permanent
commitment of one or more children in a family is persuasive
and must be considered as an important factor for subsequent
children appearing before the court. However, it is not
mandatory for the court to also commit all other children in a
family to permanent custody. Each child and circumstance
must be considered independently.
{¶20} In denying the permanent-custody motion by HCJFS, the juvenile
court found that C.M.’s mother had proved that she could provide a secure home and
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OHIO FIRST DISTRICT COURT OF APPEALS
adequate care for C.M.’s health, welfare, and safety. The court’s finding was based
on the mother’s testimony from the June 2014 hearing before the magistrate:
Since the HCDJFS had already provided services to the mother
and saw little if any internalization or improvement, the
HCDJFS did not truly provide any further services to the
mother. The mother reports that she obtained counselling on
her own and has completed it. She feels that she needs no
further counselling.
***
The mother testified that she has improved on her own without
new services, that she has separated herself from detrimental
associates, that she has maintained stable housing for a fairly
long period, that the [one] bedroom apartment is clean and
appropriate for placement of the child, that she has no
incidents of anger displays or new criminal charges for a long
time, and that she is committed to the child as [the] mother.
The mother believes that even without services she has been
able to change her life, remedy the circumstances that led to the
child’s removal, and is now able to safely care for her child.
{¶21} The court’s reliance on this testimony, however, is problematic given
that the court had explicitly rejected as untrustworthy the nearly identical testimony
by mother before the court itself in May 2014. And the mother produced no evidence
to demonstrate that in the one-month interim between the hearings, her living
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circumstances had improved or that she had remedied the conditions that had led to
the removal of her children.
{¶22} In its September 2014 entry granting permanent custody of C.M.’s
siblings to HCJFS, the juvenile court detailed episode after episode of violence from
the mother’s history and remarked that the “historical and continuing environment
of violence regarding this mother and her family is substantial.” The court found
that the mother had not been truthful with authorities about her children’s exposure
to violence and to her illicit drug use, and about whether her children had stayed
with unauthorized caregivers.
{¶23} The court found most disturbing the sudden about-face by C.M.’s
mother with respect to her involvement in the 2009 beating of C.M.’s oldest sibling.
At the May 2014 hearing, C.M.’s mother claimed, apparently for the first time, that
her boyfriend had struck her child. However, shortly after the incident, C.M.’s
mother had not only admitted that she had struck the child, but she had gone so far
as to demonstrate for investigators how she had folded a belt and struck the child.
She had entered a no-contest plea to attempted child endangering, and had
stipulated to the underlying allegations in the dependency complaint. What
concerned the court most about the mother’s May 2014 testimony was that if “the
mother is telling the truth now, that means that she protected the abuser of her child,
allowed her children to be removed from her and helped him escape justice.”
{¶24} In addition, the court noted that the mother had denied that she had
an anger-control problem and refused further services to address her anger despite
her continued aggressive behavior. The court also noted that the mother did not
have an adequate apartment, and had no income.
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{¶25} The court concluded that a legally secure permanent placement for
C.M.’s siblings could not be achieved without a grant of permanent custody to the
agency because of “the continued violent environment of the mother and her
demonstrated limited ability to comprehend the special needs of her children.”
{¶26} The court determined that C.M.’s siblings could not be placed with
their mother within a reasonable period of time and should not be placed with her.
The court found that, notwithstanding reasonable case planning and diligent efforts
to assist her, C.M.’s mother had failed continuously and repeatedly to remedy the
conditions causing C.M.’s siblings to be placed outside the home. See former R.C.
2151.414(E)(1). The court found that:
the mother fails to recognize the danger posed to the children
through contact with others who have violent histories and
have been violent in the presence of the children and placed
them in danger. This dangerous risk makes the children’s
placement with their mother a threat to the children’s safety.
***
[Her] history of anger and violence, her violent environment,
and her reliance on her family for support places these children
at risk. The mother doesn’t appreciate the risk to her children
by association with her relatives. Even as the mother professes
that she can parent the children safely and will stay away from
the grandmother, uncle and other individuals, her promises are
viewed in the low credibility of her testimony and her repeated
actions ignoring court orders to stay away from others as well
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as her history of concealment of her actions from child care
authorities.
{¶27} As we have noted, a court is required to find that the child cannot be
placed with either parent within a reasonable time or should not be placed with
either parent once the court has determined by clear and convincing evidence that
one or more of the enumerated factors exists. Former R.C. 2151.414(E); In re
Williams, 75 Ohio St. 3d 95, 99, 661 N.E.2d 738 (1996). In this case, the court could
deny permanent custody of C.M. to the agency only upon a finding that C.M.’s
mother had proved by clear and convincing evidence that she could provide a legally
secure permanent placement and adequate care for the health, welfare, and safety of
C.M. See former R.C. 2151.414(E)(11).
{¶28} A determination of whether the mother sufficiently demonstrated that
she could provide for a secure placement and adequate care for C.M. is obviously
guided by an examination of the relatively tight timeline in this case. The juvenile
court granted permanent custody of C.M.’s siblings to HCJFS on September 1, 2014.
We affirmed that judgment on December 24, 2014. Three weeks later, a magistrate
denied permanent custody of C.M. to HCJFS. The juvenile court took no additional
evidence and overruled objections to the magistrate’s denial in May 2015.
{¶29} In other words, between the juvenile court’s September 2014 finding
that C.M.’s siblings should not be placed with their mother and the January 2015
finding by the magistrate that C.M. could be placed with the mother, no additional
evidence had been taken. So there was no evidentiary basis for a determination that
C.M. should be placed with the mother.
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{¶30} To demonstrate her ability to provide a legally secure permanent
placement and adequate care for C.M.’s health, welfare, and safety, the mother
offered a single exhibit, consisting of visitation records from the FNC. However,
those records and the testimony by FNC workers confirmed that, from the time that
C.M. was born, the mother’s visits at FNC had remained at the highest level of
supervision. During visits with her three children at the FNC, the mother often
bickered with the father of one of the children in front of the children. At one visit,
the two of them got into a very loud argument and had to be separated from the
children. Occasionally, the mother had fallen asleep while she was visiting the
children, and would have to be woken by a facilitator.
{¶31} Although the mother had consistently attended visitation at FNC and
had developed a bond with C.M., the juvenile court found that they did not have a
real parent-child relationship because C.M. had never been in her care and the
relationship had consisted of “artificial” interaction at the FNC for the entirety of
C.M.’s life. This finding cast further doubt on the mother’s suitability as a parent.
{¶32} Following our review of the extensive record in this case, we conclude
that the mother failed to demonstrate by clear and convincing evidence that she was
capable of providing C.M. with a legally secure permanent placement and adequate
care for C.M.’s health, welfare, and safety. See former R.C. 2151.414(E)(11). Eastley
v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517; In re A.B., 1st
Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247. As a result, the
juvenile court was required to enter a finding that the child could not be placed with
her within a reasonable time or should not be placed with her. See id.; former R.C.
2151.414(E). Consequently, all four factors under former R.C. 2151.414(D)(2) were
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met, and a grant of permanent custody to HCJFS was mandatory. See former R.C.
2151.414(D)(2).
{¶33} Accordingly, we hold that the juvenile court erred by denying HCJFS’s
motion for permanent custody and by remanding custody to the mother. We sustain
the first three assignments of error by HCJFS and the two assignments of error by
the GAL. And we decline to address HCJFS’s fourth assignment of error regarding
protective supervision because it is moot. Consequently, we reverse the judgment of
the juvenile court and enter judgment in favor of HCJFS on its motion for permanent
custody of C.M.
Judgment accordingly.
HENDON, P.J., CUNNINGHAM and MOCK, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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