In re A.J.M.

[Cite as In re A.J.M., 2012-Ohio-1751.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P. J.
Hon. Sheila G. Farmer, J.
A.J.M. and Hon. John W. Wise, J.
H.K.K. Case No. 11 CAF 12 0117
Alleged Dependent Children OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case Nos.
09-10-2174-01-C; 09-10-2175-01-C
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 18, 2012
APPEARANCES:
For Appellee For Appellant Mother
CAROL H. O'BRIEN SCOTT M. GORDON
PROSECUTING ATTORNEY 40 North Sandusky Street
KATHERYN L. MUNGER Delaware, Ohio 43015
ASSISTANT PROSECUTOR
140 North Sandusky Street, 3rd Floor For Larry Joey Hall
Delaware, Ohio 43015
DONALD G. WORLY
Guardian Ad Litem 43 East Central Avenue
Delaware, Ohio 43015
STEPHEN J. VATSURES
15 West Central Avenue For Robert Keeton
Delaware, Ohio 43015
DONALD R. REEDER
286 South Liberty Street
Powell, Ohio 43065
Delaware County, Case No. 11 CAF 12 0117 2
Wise, J.
{¶1} Appellant Carmen Keeton (“Mother”) appeals the November 30, 2011,
judgment entered in the Guernsey County Court of Common Pleas, Juvenile Division,
which terminated her parental rights, privileges and responsibilities with respect to her
two minor children, and granted permanent custody of the children to Appellee
Delaware County Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant-Mother is the biological mother of A.J.M. (dob 10/3/2003), and
H.K.K. (dob 12/20/2005). Larry Joey Hall is the biological father of A.J.M. and Robert
Keeton is the biological father of H.K.K. (T. at 10).
{¶3} Appellee Delaware County Department of Job and Family Services
(“DCDJFS”) became involved after the police had been called to the family home
approximately18 times for domestic violence and assault. The violence was precipitated
by alcohol use by Appellant-Mother and Robert Keeton. (T. at 211).
{¶4} On October 1, 2009, DCDJFS filed a complaint, alleging the children to be
dependent, and seeking temporary custody of the children. Protective supervision was
ordered on October 2, 2009. (T. at 211).
{¶5} On November 18, 2009, the children were removed and placed in foster
care due to an incident where the police were called to the Keeton home for domestic
violence. The police heard the children inside the home yelling, "Stop, Stop." (T. at 211-
212). Both parents had bruising from the domestic violence incident. (T. at 212).
{¶6} On November 19, 2009, following an ex parte hearing, the children were
placed in the temporary custody of DCDJFS.
Delaware County, Case No. 11 CAF 12 0117 3
{¶7} Appellant-Mother and the fathers of the two children admitted to the
Dependency Complaint and on December 19, 2009, the trial court adjudicated the
children to be dependent.
{¶8} On December 21, 2009 a case plan was adopted. (T. at 211).
{¶9} Pursuant to the case plan, Appellant-Mother was required to participate in
Adult Treatment Court for her drug and alcohol issues, follow recommendations of her
mental health assessment, complete a drug and alcohol assessment and follow the
recommendations, participate in domestic violence counseling, submit to random drug
and alcohol screens, sign releases of information, seek employment, have stable
housing and working utilities, and take a parenting class. (T. at 214, 226).
{¶10} On December 22, 2010, DCDJFS filed a Motion for Permanent Custody.
{¶11} In May, 2011, a trial commenced in this matter, resulting in denial of said
motion by the trial court. The Judgment Entry of denial was filed on June 17, 2011.
{¶12} On September 23, 2011, DCDJFS filed a second Motion for Permanent
Custody.
{¶13} The trial on the motion was held in November, 2011.
{¶14} At trial, testimony was presented that Appellant-Mother failed to complete
the case plan, admittedly still using marijuana and alcohol to the point of intoxication just
weeks before the final Permanent Custody trial, still not consistently engaged in mental
health counseling, and still without stable housing or employment. (T. at 368-369).
Appellant was homeless and living in the cemetery just a few weeks prior to the
permanent custody trial. (T. at 159). Appellant had failed to secure employment, her
last job being in May, 2009. (T. at 376).
Delaware County, Case No. 11 CAF 12 0117 4
{¶15} The trial court heard evidence from caseworkers that Appellant-Mother did
engage in services for periods of time, but was not consistent. (T. at 348-349). The
caseworkers testified that during supervised visitations with the children, Appellant-
mother spent time on the telephone instead of focusing her attention on her children
and failed to discipline the children and instead sent them out of the room to sit with the
caseworker. (T. at 135-138, 142-149, 161, 166). Appellant-Mother also failed to show
at scheduled supervised visits or had them canceled due to positive drug screens. (T. at
31-33, 215, 145, 168). Appellant-Mother also missed A.J.M.’s birthday visit because
she woke up late. (T. at 28-29).
{¶16} Evidence was presented that both boys have been diagnosed with ADHD
behavioral disorders and that A.J.M. also has cognitive and speech delays. (T. at 14).
{¶17} The trial court also heard testimony that the children’s current foster family
is a “very loving family with a lot of structure.” (T. at 281). Testimony was presented
that many of the aggressive behaviors the boys had been exhibiting had largely stopped
since they had been placed in this foster home. (T. at 281).
{¶18} The Court Appointed Special Advocate (CASA) testified that the boys
indicated that they consider their foster family to be their family and that they would like
to stay there, that they call it home. (T. at 284).
{¶19} Additionally, the Guardian Ad Litem, in his report, stated that he was in
favor of the permanent custody motion.
{¶20} Further, evidence was presented as to a recent altercation between
Appellant-Mother and her brother which resulted in a no trespass order against
Appellant-Mother. (T. at 370).
Delaware County, Case No. 11 CAF 12 0117 5
{¶21} By Judgment Entry filed November 30, 2011, the trial court terminated
Mother’s parental rights, privileges, and obligations with respect to her minor children,
and granted permanent custody of the children to DCDJFS.
{¶22} It is from this judgment entry Mother appeals, assigning as error:
ASSIGNMENT OF ERROR
{¶23} “I. THE TRIAL COURT’S FINDING THAT IT WOULD BE IN THE
CHILDREN’S BEST INTEREST TO GRANT PERMANENT CUSTODY TO THE
DELAWARE COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶24} This case comes to us on the expedited calendar and shall be considered
in compliance with App.R. 11.2(C).
I.
{¶25} 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 fact finder could base its judgment.
Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. 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. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.
{¶26} 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
Delaware County, Case No. 11 CAF 12 0117 6
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.
{¶27} 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.
{¶28} 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.
Delaware County, Case No. 11 CAF 12 0117 7
{¶29} 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, the 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.
{¶30} 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.
{¶31} In this case, Appellant-Mother concedes that the children were in the
temporary custody of DCDJFS for twelve or more months of a consecutive twenty-two
month period. Appellant-Mother challenges only the best interest finding.
{¶32} As set forth in our statements of the facts and case, supra, Mother was
unable to remedy the problems which caused the initial removal of the children from her
custody. Mother failed to comply with or complete her case plan. Based upon the
foregoing reasons and the entire record in this matter, we find the trial court’s decision
to grant permanent custody to DCDJFS was not against the manifest weight of the
evidence. Further, the trial court’s decision to terminate Appellant-Mother’s parental
rights was supported by clear and convincing evidence.
Delaware County, Case No. 11 CAF 12 0117 8
{¶33} Appellant-Mother’s sole Assignment of Error is overruled.
{¶34} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Delaware County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0329
Delaware County, Case No. 11 CAF 12 0117 9
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
A.J.M. and :
:
H.K.K. : JUDGMENT ENTRY
:
Alleged Dependent Children : Case No. 11 CAF 12 0117
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Delaware County, Ohio, is
affirmed.
Costs assessed to Appellant.
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JUDGES