In re E.-J. Children

[Cite as In re E.-J. Children, 2019-Ohio-1519.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: E.-J. CHILDREN : APPEAL NO. C-190007
TRIAL NO. F13-1048Z
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: April 24, 2019
Christopher P. Kapsal, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nick Gramke,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Marjorie Davis,
Assistant Public Defender, Guardian ad Litem, for I.E.-J. and C.E.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Judge.
{¶1} Mother appeals the juvenile court’s judgment awarding permanent
custody of her two children, I.E.-J., currently age ten, and C.E., currently age three,
to the Hamilton County Department of Job and Family Services (“HCJFS”). For the
following reasons, we affirm the grant of permanent custody of I.E.-J. to HCJFS but
reverse the award of permanent custody to HCJFS with respect to C.E.
Factual Background
{¶2} HCJFS first had contact with this family in 2013, but mother has had
previous involvement with child protective services in two different states. In May
2000, the Illinois Department of Children and Family Services became involved with
mother after her infant daughter died because of cosleeping with mother. The death
was ruled an accident, and a safety plan was put in place, with services offered to
mother. She refused the services, and the case was closed.
{¶3} In January 2007, the Iowa Department of Children Services (“DHS in
Iowa”) removed mother’s three children from her home, and eventually the Iowa
Juvenile Court in Scott County terminated mother’s parental rights in 2008. The
appellate court affirmed the termination of mother’s parental rights, citing as the
basis for its decision, mother’s history of domestic violence, substance abuse,
mental-health issues and her resistance to services. In 2009, mother gave birth to
I.E.-J.
{¶4} In 2010, DHS in Iowa temporarily removed I.E.-J. from mother’s care
because of drugs found in the home. I.E.-J.’s caretaker admitted to using crack
cocaine. Mother minimized the threats to I.E.-J. and refused services. I.E.-J. was
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OHIO FIRST DISTRICT COURT OF APPEALS
returned to mother with orders of protective supervision. The case was closed, and
eventually mother and I.E.-J. moved to Ohio.
{¶5} In April 2013, HCJFS removed I.E.-J. from mother’s care after she and
her boyfriend were both arrested for domestic violence. Mother allegedly chased her
boyfriend with a knife in I.E.-J.’s presence. At the request of HCJFS, mother
completed a diagnostic assessment, which indicated that mother had an anti-social
personality disorder. No treatment was recommended, however, because this
disorder is, according to experts, not amenable to treatment. HCJFS also requested
random drug screens, but mother missed several appointments. Eventually, custody
of I.E.-J. was remanded to mother with orders of protective supervision.
{¶6} HCJFS became involved with the family again in October 2016 when
mother brought C.E., born in July 2016, to Cincinnati Children’s Hospital where he
was diagnosed with a catastrophic brain injury. Mother reported that she had
swaddled C.E., then laid him on his back and went downstairs. When she came back
upstairs, he was face down on the bed with a bloody nose. HCJFS received interim
custody of both children due to the unknown cause of C.E.’s injury.
{¶7} While the children were in the interim custody of HCJFS, mother
completed a second diagnostic assessment, which reaffirmed mother’s diagnosis of
anti-social personality disorder. In addition, during this assessment, mother
reported that the night she brought C.E. to the hospital, she had a blood test, which
revealed that her blood-alcohol level was .09.
{¶8} Ultimately, the children were adjudicated dependent, but were
returned to mother’s care, with orders of protective supervision, because the medical
evidence did not indicate that mother was responsible for C.E.’s injury. In his
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OHIO FIRST DISTRICT COURT OF APPEALS
decision, the magistrate noted that the order regarding mother complying with
random drug screens was made because the hospital nurses had reported mother
smelled of alcohol on several occasions when she was visiting C.E.
{¶9} Beechacres Parenting Center completed a mental-health assessment
on I.E.-J. in 2016. At that time, I.E.-J. was living with mother, and mother reported
that I.E.-J. had been “kicked out” of a summer camp for “hitting” and another camp
for “throwing things.” Mother reported that I.E.-J. wrote “DIE” on the toilet at
home, put a hole in the wall, and would kick things out of anger. Previously, mother
had I.E.-J. enrolled in a school program that specifically helped children with
behavior issues. Mother reported that I.E.-J. did not listen to her, wandered off,
cried often, lied and tried to steal things. Mother mentioned that I.E.-J. would steal
things to give to other children to seek attention.
{¶10} I.E.-J. was diagnosed with oppositional defiant disorder, and it was
indicated that the “the frequency of these symptoms are all of the time and they are
impacting [I.E.-J.’s] functioning in a home and school setting.” I.E.-J. was also
diagnosed with post-traumatic stress disorder, evidenced by her nightmares, crying
and struggling with boundaries. The trauma underlying her stress was identified as
I.E.-J.’s repeated removal from mother’s care.
{¶11} In October 2017, HCJFS moved for interim and permanent custody of
the children. With respect to C.E., HCJFS indicated in its complaint that C.E. had
been ready for discharge from the hospital since July 2017, but mother refused to
give her consent to transfer C.E. to a long-term-care facility. HCJFS also noted that
C.E.’s father had no contact with him. With respect to I.E.-J., HCJFS indicated that
mother had missed most of her urine screens, and of the two screens taken by that
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OHIO FIRST DISTRICT COURT OF APPEALS
time, one was “abnormal.” The juvenile court magistrate denied the motion for
interim custody and held that before it could address the permanent-custody motion,
HCJFS must hold a “permanency staffing” to determine if the agency wanted to seek
permanent custody as a disposition.
{¶12} In November 2017, I.E.-J. was removed from mother’s care, for the
fourth time, after mother’s arrest in Kentucky for driving under the influence of
alcohol and having an open container in the car. Mother had left I.E.-J. in the care of
a person HCJFS had not approved, and the caretaker was unable and/or unwilling to
care for I.E.-J. the following day. Additionally, HCJFS was unable to reach mother
following her release from jail. Because of these circumstances, HCJFS filed an
amended complaint for permanent custody of the children.
{¶13} At the adjudication and disposition hearings, the HCJFS caseworker
testified that mother had requested additional services, so HCJFS offered mother the
option of submitting to a hair-follicle test in place of the toxicology screens, and
completing a parenting evaluation. The HCJFS caseworker testified that mother
refused the hair-follicle test, and, due to scheduling conflicts, ultimately decided that
she did not want to complete the parenting evaluation.
{¶14} At the conclusion of the adjudication and disposition hearings, the
magistrate adjudicated C.E. and I.E.-J. dependent and denied HCJFS’s motion for
permanent custody of the children. With respect to C.E., the magistrate noted that
C.E. could not be returned to his mother’s care because of his medical needs, and
that he had been successfully transferred to St. Joseph’s Infant home, a long-term-
care nursing facility, with the consent of his mother. The magistrate therefore
awarded HCJFS temporary custody to determine whether it actually needed
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OHIO FIRST DISTRICT COURT OF APPEALS
permanent custody of C.E. in order to continue his placement at the long-term-care
facility.
{¶15} With respect to I.E.-J., the magistrate noted mother’s many missed
screens and found that mother was intentionally avoiding toxicology screens. Due to
her lack of attendance, the magistrate determined that the screens could not rule out
ongoing alcohol use despite two negative screens. The magistrate also noted that
even though the charges in Kentucky against mother were eventually dismissed
without prejudice, the testimony of the arresting officer presented by HCJFS
established that mother was found asleep at the wheel of a car with an open
container and that she was highly intoxicated. Despite these findings, the magistrate
found it was in the best interest of I.E.-J. to remand custody to mother with orders of
protective supervision because (1) there had been no evidence presented that
mother’s suspected alcohol abuse had harmed I.E.-J.; (2) I.E.-J. was bonded to
mother; and (3) I.E.-J. had not adjusted well to foster care.
{¶16} HCJFS filed objections to the magistrate’s decision, which the juvenile
court sustained, finding that mother’s alcohol abuse had harmed I.E.-J. when mother
had left her without adequate supervision on at least one occasion. Accordingly, the
juvenile court determined that it was in the best interest of the children to be
committed to the permanent custody of HCJFS since the children could not and
should not be returned to either of their parents.
{¶17} This appeal followed.
{¶18} In her first assignment of error, mother contends that the juvenile
court erred by granting permanent custody of C.E. to HCJFS. We agree.
{¶19} The juvenile court’s entry stated in part,
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OHIO FIRST DISTRICT COURT OF APPEALS
[t]he Magistrate’s Decision is rejected as the
judgment of this Court as it pertains to [I.E.-J.]. The
Magistrate’s Decision regarding [C.E.] is accepted and
approved as the judgment of the court. Therefore,
based upon clear and convincing evidence presented
and in the best interest of the child, [I.E.-J.] and
[C.E.] are committed to the Permanent Custody of
Hamilton County Job and Family Services. It is in the
best interest of the children to be placed in
Permanent Custody.
{¶20} Given that the juvenile court specifically adopted that part of the
magistrate’s decision denying HCJFS’s motion for permanent custody of C.E., we
believe that the court’s following sentence, which committed both children to the
permanent custody of HCJFS, was a clerical error. This conclusion is supported by
the fact that the juvenile court’s analysis in its entry focused solely on I.E.-J.
{¶21} To the extent this was not a clerical error, we hold that the juvenile
court erred in granting permanent custody of C.E. to HCJFS as an initial disposition
following a finding of dependency. Given that C.E. has been admitted to an
appropriate long-term-care facility with the consent of mother, a grant of temporary
custody to HCJFS is in the best interest of C.E. so that the agency can determine
whether a termination of parental rights is necessary to maintain C.E. at his current
long-term-care facility.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} The first assignment of error is sustained, and this case is remanded to
the juvenile court to correct its clerical error.
{¶23} In her second assignment of error, mother argues that the trial court
erred by adjudicating I.E.-J. dependent. Because mother did not object to the
magistrate’s finding of dependency, we may only review for plain error. See In re
Etter, 134 Ohio App. 3d 484, 631 N.E.2d 694 (1st Dist.1998). Plain error is not
favored in civil cases and “may be applied only in the extremely rare case involving
exceptional circumstances where error, to which no objection was made at the trial
court seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself.”
State v. Morgan, 153 Ohio St. 3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 40, citing
Goldfuss v. Davidson, 79 Ohio St. 3d 116, 679 N.E.2d 1099 (1997).
{¶24} A finding of dependency must be supported by clear and convincing
evidence. Juv.R. 29(E)(4). At the custody proceeding, it was established that mother
was arrested in Kentucky and spent the night in jail. Although mother left I.E.-J.
with a caretaker, this caretaker testified she was not expecting to care for I.E.-J.
overnight and was unable to care for her the next day. R.C. 2151.01(C) provides that
a dependent child is any child whose condition or environment is such as to warrant
the state, in the interests of the child, in assuming the child’s guardianship. Because
the evidence demonstrated there was no one to care for I.E.-J. during mother’s arrest
and brief stay in jail, there was clear and convincing evidence to support the juvenile
court’s finding of dependency. The second assignment of error is overruled.
{¶25} In mother’s third and final assignment of error, she argues that the
court’s judgment awarding permanent custody of both children to HCJFS was
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OHIO FIRST DISTRICT COURT OF APPEALS
against the manifest weight of the evidence and not supported by sufficient evidence.
We first note that we have already determined that the juvenile court made a clerical
error in awarding HCJFS permanent custody of C.E., and have held that if it was not
a clerical error, it was not in C.E.’s best interest to award permanent custody to
HCJFS. To that extent, we sustain mother’s third assignment of error. We now
address whether the court’s award of permanent custody of I.E.-J. to HCJFS was
proper.
{¶26} The trial court’s award of permanent custody must be supported by
clear and convincing evidence. In re W.W., 1st Dist. Hamilton No. C-110363, 2011-
Ohio-4912, ¶ 46. “Clear and convincing evidence” is evidence sufficient to “produce
in the mind of the trier of fact a firm belief or conviction as to the facts sought to be
established.” In re K.H., 119 Ohio St. 3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶
42, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus. We will not substitute our own judgment for that of the trial
court applying a clear-and-convincing standard where there is ample competent and
credible evidence supporting the trial court’s determination. See In re A.J.O. and
M.N.O., 1st Dist. Hamilton No. C-180680, 2019-Ohio-975, ¶ 6.
{¶27} The disposition of a child determined to be dependent, abused or
neglected is controlled by R.C. 2151.353, and the court may enter any order of
disposition provided for in R.C. 2151.353(A). But before the court can grant
permanent custody of a child to the agency, the court must determine: (1) pursuant
to R.C. 2151.414(E) that the child cannot or should not be placed with one of her
parents within a reasonable time; and (2) pursuant to R.C. 2151.414(D), that the
permanent commitment is in the best interest of the child. R.C. 2151.353(A)(4).
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OHIO FIRST DISTRICT COURT OF APPEALS
Cannot and Should Not be Placed with Mother
{¶28} Under R.C. 2151.414(E), the juvenile court must find that a child
cannot be placed with either parent within a reasonable time or should not be placed
with either parent if it determines that one of the factors listed in R.C. 2151.414(E)(1)
through (16) exists as to each of the child’s parents.
{¶29} Here, the juvenile court found by clear and convincing evidence that
father had abandoned I.E.-J., see R.C. 2151.414(E)(1), and that mother had had her
parental rights involuntarily terminated with respect to a sibling of I.E.-J., and had
failed to provide clear and convincing evidence to prove that, notwithstanding the
prior termination, she could provide a legally secure permanent placement and
adequate care for the health, welfare, and safety of I.E.-J. See R.C. 2151.414(E)(11).
{¶30} The juvenile court’s findings are supported by ample evidence in the
record. Father has not seen I.E.-J. in over six years. And mother had her parental
rights terminated by an Iowa court with respect to three of her children due to issues
with domestic violence, mental health and substance abuse. Mother has not
demonstrated that she can provide a legally secure permanent placement for I.E.-J.
despite the prior termination of parental rights. I.E.-J. has been removed from
mother’s care four times—once in Iowa because of illegal drugs found in the home;
twice because mother was arrested (once for domestic violence and once for driving
while under the influence for alcohol/having an open container) and once because of
a catastrophic injury to I.E.-J.’s brother, on a night when mother’s blood-alcohol
level was .09. Further, out of the over 20 urine screens that HCJFS scheduled for
mother, she only attended four. One of those four screens was returned “abnormal”
and two were not random, because mother knew when she would be tested. The
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OHIO FIRST DISTRICT COURT OF APPEALS
record also demonstrated that mother has a history of refusing services provided to
her, and her lack of attendance at the toxicology screens and her refusal to submit to
a hair-follicle test and complete a parenting evaluation demonstrate that. At this
time, a problem with abusing alcohol cannot be ruled out because of a lack of
completion of services. The court’s finding that I.E.-J. cannot and should not be
returned to either parent is properly supported in the record.
Best Interest
{¶31} In assessing the best interest of a child for purposes of a permanent-
custody determination, a juvenile court must consider all relevant factors, including:
(a) the child’s interaction with parents, siblings, relatives, foster caregivers and out-
of-home providers, and any other person who may significantly affect the child; (b)
the wishes of the child; (c) the custodial history of the child; (d) the child’s need for a
legally secure placement and whether that type of placement can be achieved without
a grant of permanent custody; and (e) whether any of the factors under R.C.
2151.414(E)(7) to (11) apply. See R.C. 2151.414(D)(1)(a)-(e); In re Z.P., 1st Dist.
Hamilton Nos. C-160572, C-160584 and C-160620, 2018-Ohio-6987, ¶ 31.
{¶32} Mother argues that because (1) she has a strong bond with I.E.-J., (2)
I.E.-J. desires to live with mother, and (3) I.E.-J. has not adjusted well to foster care,
that it is in I.E.-J.’s best interest to be placed in mother’s care with orders of
protective supervision. But the juvenile court found that the other factors to
consider under R.C. 2151.414(D) demonstrate that it was in I.E.-J.’s best interest to
be placed in the permanent custody of HCJFS. That finding is supported by clear
and convincing evidence in the record.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} With respect to the children’s interaction with significant others, the
court noted that I.E.-J. was bonded with mother and had not adjusted well to foster
care. I.E.-J. had difficulty living with mother as well, displaying significant
behavioral issues. See R.C. 2151.414(D)(1)(a). And, in considering the wishes of the
child, the court noted that I.E.-J. desired to live with mother. See R.C.
2151.414(D)(1)(b). The court also considered the custodial history of I.E.-J. and her
need for a legally secure and permanent placement, noting that I.E.-J. had been
adjudicated dependent and removed from mother’s care four different times by
courts in two different states, and that I.E.-J. had been in the temporary care of
HCJFS for more than 12 months at the time of the court’s permanent-custody
determination. See R.C. 2151.414(D)(1)(c) and (d).
{¶34} Finally, the court noted that the factors in R.C. 2151.414(E)(9) and (11)
applied. First, mother left I.E.-J. without adequate supervision on at least one
occasion due to alcohol abuse, and I.E.-J. was removed from mother’s care in Iowa
due to drugs found in the home and the use of drugs by I.E.-J.’s caretaker. Second,
mother had her parental rights terminated with respect to three of I.E.-J.’s siblings
while residing in Iowa. Mother refused services through DCS in IA, and has
consistently either refused or failed to complete services through HCJFS relating to
similar issues that led to mother’s parental rights being terminated for I.E.-J.’s older
siblings. See R.C. 2151.414(D)(1)(3).
{¶35} Accordingly, after our review of the record, we hold that the juvenile
court’s determinations are supported by clear and convincing evidence, and are not
against the manifest weight of the evidence. The record reflects that I.E.-J. cannot be
placed with mother within a reasonable time, or should not be placed with mother,
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OHIO FIRST DISTRICT COURT OF APPEALS
and that her best interest would be served by a grant of permanent custody.
Therefore, with respect to I.E.-J., we overrule the third assignment of error in part.
With resepct to C.E., we sustain the assignment of error in part.
Conclusion
{¶36} The judgment of the trial court awarding permanent custody of I.E.-J.
to HCJFS is affirmed. We reverse the part of the trial court’s judgment awarding
permanent custody of C.E. to HCJFS and remand this cause to the juvenile court to
correct its entry and enter an award of temporary custody of C.E. to HCJFS.
Judgment affirmed in part, reversed in part, and cause remanded.
MYERS, J., concurs.
ZAYAS, J., concurs in judgment only.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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