In re P.S.V.

[Cite as In re P.S.V., 2013-Ohio-2307.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
IN THE MATTER OF: : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
P.S.V. :
:
DEPENDENT CHILD : Case No. 13CA6
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Juvenile Division
Case No. 2011-DEP-00120
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 31, 2013
APPEARANCES:
For Plaintiff-Appellee: For Mother-Appellant:
CHRISTOPHER ZUERCHER DAWN FESMIER PIGG
RICHLAND COUNTY CSB 28 Park Ave. West, Suite 501
731 Scholl Road Mansfield, OH 44902
Mansfield, OH 44907
Delaney, J.
{¶1} Mother-Appellant Leona Vasquez Lacey appeals the January 18, 2013
judgment entry of the Richland County Court of Common Pleas, Juvenile Division.
Plaintiff-Appellee is the Richland County Children Services Board (“RCCSB”).
FACTS AND PROCEDURAL HISTORY
{¶2} Leona Vasquez Lacey is the mother of P.S.V., born June 27, 2011.
Father is Matthew Young. P.S.V. was placed in the Emergency Shelter Care of
RCCSB on July 5, 2011. RCCSB intervened with P.S.V. because Mother had her
parental rights involuntarily terminated with respect to two older siblings of P.S.V. due
to Mother’s substance abuse/addiction. Mother has a history of substance abuse
involving IV heroin use and opiates. P.S.V. tested negative for drugs at birth. P.S.V.
was found to be a dependent child and on July 9, 2011, the trial court granted RCCSB
temporary custody of P.S.V.
{¶3} P.S.V. was placed with foster parents. The foster family also has
custody of P.S.V.’s sibling.
{¶4} Mother entered into a case plan on September 14, 2011. The case
plan required Mother to complete a mental health assessment and follow
recommendations, complete a drug assessment and follow recommendations,
complete parenting education, and stabilize income and housing. Supervised
visitation was established for Mother and P.S.V.
{¶5} RCCSB filed a Motion for Permanent Custody on October 3, 2012. The
trial court held a hearing on January 11 and 13, 2013. Mother appeared for trial and
was represented by counsel. Father did not appear but was represented by counsel.
The parties stipulated P.S.V. had been in the temporary custody of RCCSB for twelve
or more months out of a consecutive twenty-two month period. The following
evidence was adduced at trial.
{¶6} At the time of trial, Mother was 26 years old and eight months pregnant.
Mother’s husband was currently in prison and was the father of the unborn child.
Mother tested negative for drugs at trial.
{¶7} Mother submitted to a mental health assessment with Tom Day at Family
Life Counseling. He diagnosed Mother with bipolar 2 disorder. He stated Mother was
in sustained remission with regard to opiates dependency. Mother wanted to enter in-
patient drug treatment with New Beginnings. Day also coached Mother on her
parenting skills. Mother lost her eligibility for her medical card and for a period of time
could not receive counseling. She obtained her medical card when she became
pregnant with her fourth child and resumed counseling.
{¶8} In November 2011, Mother attempted suicide and was hospitalized.
{¶9} Mother resides with her mother and two sisters in her mother’s home. At
the time of the hearing, Mother’s stepfather did not reside with them because he was
in prison. Mother’s sisters both had infant children and were under RCCSB
supervision. Mother helps care for her niece and nephew. Mother attempted to reside
independently, but returned to her mother’s home.
{¶10} Mother does not have a driver’s license. She has no steady income,
other than babysitting for a relative once a week. At the time of the hearing, she had
applied for government assistance.
{¶11} Mother was scheduled for 27 supervised visits with P.S.V. She attended
13 of those visits. Mother did not visit with P.S.V. from May 2012 to October 2012.
The break in visitation was due to transportation issues and Mother’s struggles with
her mental health. When Mother did visit with P.S.V., Mother’s visits went well.
{¶12} The Guardian ad Litem testified at trial. She recommended Mother’s
parental rights be terminated and permanent custody be granted to RCCSB. P.S.V. is
bonded with her foster family and would be in her best interests to keep her with her
foster family. The foster family wishes to adopt P.S.V.
{¶13} On January 18, 2013, the trial court issued its judgment entry. It
terminated Mother’s and Father’s parental rights and granted permanent custody of
P.S.V. to RCCSB.
{¶14} It is from this decision Mother now appeals. Father has not appealed the
decision.
ASSIGNMENTS OF ERROR
{¶15} Mother raises three Assignments of Error:
{¶16} “I. THE COURT’S DECISION TO GRANT PERMANENT CUSTODY OF
THE CHILD TO RICHLAND COUNTY CHILDREN SERVICES WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT IN THE CHILD’S BEST
INTEREST.
{¶17} “II. THE COURT ERRED IN FINDING THAT THE MOTHER HAD
CONTINUOUSLY AND REPEATEDLY FAILED TO SUBSTANTIALLY REMEDY THE
CONDITIONS WHICH CAUSED HER CHILD TO BE PLACED OUTSIDE HER HOME,
PURSUANT TO R.C. 2151.414(E), IN VIEW OF THE EVIDENCE THAT MOTHER
DID SUBSTANTIALLY COMPLY WITH ALL REQUIREMENTS OF THE CASE PLAN.
{¶18} “III. THE COURT ERRED IN FINDING THAT IT IS IN THE BEST
INTEREST OF THE MINOR CHILD TO BE PLACED IN THE PERMANENT
CUSTODY OF CHILDREN SERVICES, PURSUANT TO R.C. 2151.414(D).”
ANALYSIS
I., II., and III.
{¶19} We consider Mother’s Assignments of Error together because they are
interrelated. Mother argues the trial court erred in granting permanent custody of
P.S.V. to RCCSB and the decision was not in the child’s best interest. We disagree.
{¶20} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
competent, and credible evidence upon which the finder of fact could base its judgment.
Cross Truck Equipment Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 1982
WL 2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent,
credible evidence going to all the essential elements of the case will not be reversed as
being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54
Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶21} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evident in the
parties' demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St .3d 415, 419, 674 N.E.2d 1159 (1997).
{¶22} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶23} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, 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; (b) the
child is abandoned; (c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶24} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) 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.
{¶25} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial
court will usually determine whether one of the four circumstances delineated in R.C
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶26} In this case, the trial court found by clear and convincing evidence the
child had been in the temporary custody of a public children services agency for twelve
or more months of a consecutive twenty-two-month period pursuant to R.C.
2151.414(B)(1)(d). Mother does not challenge the trial court's finding. This finding
alone, in conjunction with a best-interest finding, is sufficient to support the grant of
permanent custody. In re Calhoun, 5th Dist. No.2008CA00118, 2008–Ohio–5458, ¶ 45.
{¶27} The trial court found P.S.V. could not be placed with Mother or Father
within a reasonable time or should not be placed with either parent. If the child is not
abandoned or orphaned, the focus turns to whether the child cannot be placed with
either parent within a reasonable period of time or should not be placed with the
parents. Under R.C. 2151.414(E), the trial court must consider all relevant evidence
before making this determination. The trial court is required to enter such a finding if it
determines, by clear and convincing evidence, that one or more of the factors
enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of the child's
parents.
{¶28} The trial court found that notwithstanding the reasonable case planning
and diligent efforts of RCCSB to assist Mother to remedy the problems that initially
caused the child to be placed outside the home, Mother failed continuously and
repeatedly to substantially remedy the conditions causing the child to be placed
outside of the home. R.C. 2151.414(E)(1). Mother argues the evidence shows she
was substantially compliant in some areas and making significant progress in other
areas. The evidence shows Mother substantially complied with the case plan
requirements, but the statute provides that she substantially remedy the conditions
that caused her child to be placed outside of the home. Mother attended mental
health counseling for a period of time, but stopped after she lost her medical card. In
November 2011, Mother made a suicide attempt, which required hospitalization.
Mother has regained her medical card due to her current pregnancy. Mother is in
sustained remission as to her opiates dependency, but she and her counselor feel it
would be beneficial for her to be placed in an in-patient drug treatment program. At
the time of the hearing, Mother was dependent upon her mother for housing and
transportation, and Mother had no independent source of income
{¶29} The trial court further found Mother demonstrated a lack of commitment
toward the child by failing to regularly support, visit, or communicate with the child, or
by other actions showing an unwillingness to provide an adequate permanent home
for the child. R.C. 2151.414(E)(4). When Mother visited with P.S.V., her visits went
appropriately. However, Mother attended 13 of 27 scheduled visits, which amounted
to approximately 10 months of missed visitation. The missed visits were due in part to
transportation issues. Mother missed other visits due to her suicide attempt and her
mental health struggles.
{¶30} Under R.C. 2151.414(E)(11), the trial court found that Mother had her
parental rights involuntarily terminated with respect to a sibling of the child and Mother
failed to present clear and convincing evidence that, notwithstanding the prior
termination, Mother can provide a legally secure placement and adequate care for the
health, welfare, and safety of the child. There is no dispute RCCSB was granted
permanent custody of Mother’s two children prior to P.S.V. The trial court’s decision
under R.C. 2151.414(E)(11) is supported by the evidence presented under R.C.
2151.414(E)(1).
{¶31} We next turn to the issue of best interest. We have frequently noted,
“[t]he discretion which the juvenile court enjoys in determining whether an order of
permanent custody is in the best interest of a child should be accorded the utmost
respect, given the nature of the proceeding and the impact the court's determination
will have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist.
No.2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio
App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). The trial court determined it was in
the best interest of the child to be placed in the permanent custody of RCCSB
pursuant to R.C. 2151.414(D), and we agree.
{¶32} The child was 17 months old at the time of the hearing. The GAL
recommended it was in the child’s best interest that Mother’s parental rights be
terminated and permanent custody awarded to RCCSB. P.S.V. was bonded with her
foster family, whom also has custody of her sibling. The foster family has cared for
P.S.V. since birth and wishes to adopt her. Mother had appropriate visits with P.S.V.,
but P.S.V. did not appear to regard her as a mother figure compared to P.S.V.’s
behavior with her foster mother.
{¶33} Based on the foregoing, we find that the trial court did not err in finding
that P.S.V. could not or should not be placed with Mother within a reasonable period
of time and that the grant of permanent custody to the agency was in the child’s best
interest.
{¶34} Mother’s Assignments of Error are overruled.
CONCLUSION
{¶35} The Assignments of Error of Mother-Appellant Leona Vasquez Lacey are
overruled. The judgment of the Richland County Court of Common Pleas, Juvenile
Division is affirmed.
By: Delaney, J.
Farmer, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
PAD:kgb
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
:
IN THE MATTER OF: :
: JUDGMENT ENTRY
P.S.V. :
:
DEPENDENT CHILD :
: Case No. 13CA6
:
:
:
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas, Juvenile Division is affirmed. Costs
assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE