In re K.B.

[Cite as In re K.B., 2014-Ohio-3654.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
CASE NOS. CA2014-02-042
K.B., et al. : CA2014-02-043
CA2014-02-044
:
OPINION
: 8/20/2014
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2010-0118
Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for appellant
Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315
High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Children Services
Thomas Hodges, 708 Walnut Street, Suite 600, Cincinnati, Ohio 45202, for K.G.
Dawn Garrett, 9453 Waterstone Boulevard, Cincinnati, Ohio 45249, for M.W.
John Ford, Legal Aid Society of Southwest Ohio, LLC, 10 Journal Square, Third Floor,
Hamilton, Ohio 45011, Guardian Ad Litem for K.B.
Amy Ashcraft, 240 East State Street, Trenton, Ohio 45067, Guardian Ad Litem for K.K. and
Z.B.
M. POWELL, J.
{¶ 1} Appellant, the biological mother of three children, appeals a decision of the
Butler County Juvenile Court granting legal custody of one child to his father, legal custody of
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another child to his grandmother, and permanent custody of the third child to a children
services agency.
{¶ 2} Butler County Department of Job and Family Services filed a complaint on
March 30, 2010 alleging that appellant's three children were neglected and dependent. At
the time, appellant's two sons, Z.B. and K.B., were six and eleven years old respectively, and
her daughter, K.K., was two years old. The agency was granted temporary custody and the
children were placed in a foster home.
{¶ 3} The complaint was filed after the agency received a report that K.K. was
hospitalized at Shriner's Hospital with severe burns after pulling a pot off the stove. The
report stated that appellant was belligerent and threatening toward hospital staff, telling a
social worker that she would be killed the next day. The report also indicated that appellant
threatened to take the child out of the hospital against medical advice and that the child's
condition was deteriorating and she would most likely need surgery. The report further stated
that appellant was taken to University Hospital for a psychological evaluation due to her
behavior.
{¶ 4} According to the complaint, when appellant returned from University Hospital,
she was asked to sign a contract agreeing that she would not be aggressive towards
Shriner's hospital staff or security. Appellant refused to sign the document. Appellant's
behavior escalated and she was arrested for menacing and disorderly conduct. The
complaint also alleged that appellant had an extensive history of criminal charges dating from
2004 to present. This history included four menacing charges, two charges for disorderly
conduct, one assault charge, and one charge of domestic violence.
{¶ 5} The complaint further alleged that appellant had previous involvement with
Children Services and a history of belligerent, uncooperative, combative and threatening
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attitude toward agency staff. The complaint stated that the agency had received reports in
2009 that appellant was homeless and had threatened to drown herself and her children.
The complaint indicated that appellant has a history of bipolar disorder and was not
compliant with treatment or medications.
{¶ 6} The children were adjudicated neglected and dependent and temporary
custody with the agency was continued. A case plan was prepared with reunification as the
goal. Over the next year, appellant made some measure of progress. Visitation progressed
from being supervised at the agency to unsupervised overnight and weekend visits. At a
review hearing in late May 2011, K.K. was placed in the temporary custody of her mother,
with the boys returning to their mother's custody at the end of the school year in early June.
The court indicated it would consider returning legal custody to the mother at the August
review hearing if things continued to progress.
{¶ 7} At the August 2011 review hearing, some concern was expressed that appellant
was homeless and living with her sister after being evicted for failing to pay rent, although
appellant was to move into a new home soon. Concern was also expressed that during the
summer, the children were living with or staying with other people for long periods of time,
such as K.B. living in Alabama with his father and K.B. staying for weeks with his paternal
grandmother. The court further expressed concern because appellant had prematurely
stopped going to counseling, the children were no longer in therapy, and appellant had been
arrested after a domestic violence incident with her brother.
{¶ 8} In early December 2011, appellant was charged with domestic violence for an
incident involving K.K., who had a large bump on her head. Consequently, the children were
placed back in the temporary custody of the agency and placed in foster homes. In February
2012, Z.B. was placed in the home of his paternal grandmother. On April 13, 2012, the
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agency filed a motion requesting permanent custody of K.B. and K.K. and requesting that
legal custody of Z.B. be granted to his paternal grandmother.
{¶ 9} A hearing on the motions began on October 17, 2012 and continued over
several dates, finally concluding on March 6, 2013. The magistrate issued decisions on
August 2, 2013, placing Z.B. in the legal custody of his paternal grandmother, placing K.B. in
the legal custody of his father, and granting permanent custody of K.K. to the agency. After a
hearing, the trial court overruled objections to the magistrate's decision.
{¶ 10} Appellant now appeals the trial court's decisions regarding custody of her three
children. She raises the following four assignments of error for our review:
{¶ 11} THE TRIAL COURT'S DECISION AND ORDER GRANTING PERMANNET
CUSTODY OF K.K. TO THE BUTLER COUNTY DEPARTMENT OF JOB AND FAMILY
SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 12} THE TRIAL COURT'S DECISION AND ORDER GRANTING LEGAL
CUSTODY OF K.B. TO FATHER WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 13} THE TRIAL COURT'S DECISION AND ORDER GRANTING LEGAL
CUSTODY OF Z.B. TO PATERNAL GRANDMOTHER WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 14} THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF MOTHER IN ALLOWING THE ADMISSION OF HEARSAY EVIDENCE.
Permanent Custody Hearing
{¶ 15} At the permanent custody hearing, agency caseworker Tara Eve testified that
she had previously worked with the family in a voluntary case in 2008. She was the
caseworker on the current case when it began in April 2010 until September 2011. Eve
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indicated that she was concerned with the family being in an environment where appellant
could not control her anger and frustration. The goal was for appellant to learn coping skills
to control her anger through counseling and therapeutic services and to not present her
anger and frustration in front of the children.
{¶ 16} The caseworker testified that although parents can become angry and upset at
agency workers when their children are removed, appellant's behavior escalated to a point
where there was considerable derogatory profanity and the caseworker felt threatened. The
caseworker testified that appellant did not understand why her children were removed and
the caseworker tried to explain to appellant that her threatening behavior at the hospital and
appellant's instability were the reason for the removal. The caseworker testified that after a
therapeutic session to discuss the case and throughout her continued involvement with
appellant, things between them improved.
{¶ 17} The caseworker indicated the agency received several requests to perform
home studies for possible family members as alternative placements for the children, but
none of these studies were completed due to the relatives withdrawing from the process.
She indicated there was some delay in getting the children into counseling, but they started
attending prior to reunification with appellant.
{¶ 18} The caseworker testified that appellant has a history of instability regarding
housing and there were inconsistent stories regarding how K.K. was burned. She discussed
the case plan requirements and stated that although appellant did an adult diagnostic
assessment of function with Dr. Onady, appellant refused to do a psychological evaluation
and that a parenting class was not part of the case plan because appellant was previously
unsuccessful in the Development of Living Skills program. She indicated visits initially went
poorly because appellant was focused on the caseworker and had discussions in front of the
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children, but the visits improved over time. She testified that although there were still
concerns, she was in favor of reunification in May 2011.
{¶ 19} During the period of reunification, the caseworker met with the family frequently.
She indicated that during the summer of 2011, appellant lost her housing due to eviction and
was living with her sister. She also testified that during the course of the case, appellant was
incarcerated several times, including an arrest for a domestic violence incident with her
brother.
{¶ 20} Carla Day testified that she was the caseworker from August 2011 forward.
She indicated that at the time she received the case, the children were in the temporary
custody of appellant, although none of the children were physically living with appellant. The
concerns at the time included housing and the need for the family to follow through with
mental health treatment. The caseworker stated that appellant quit therapy for a while
because she was overwhelmed. In addition, K.K. had been excluded from the therapeutic
preschool program she was enrolled in because appellant failed to follow through with the
paperwork and requirements. The caseworker testified that the children were removed from
the home by the Middletown Police in December 2011 because of a concern that K.K. had
been abused by appellant.
{¶ 21} The relationship between the second caseworker and appellant deteriorated
and in January 2012, appellant said she no longer trusted the caseworker and did not want to
meet with her unless her attorney was present. The caseworker testified that she observed
appellant having difficulty getting along with several members of the agency and displaying
angry, aggressive, rude and demeaning behavior. She described an incident in which she
was transporting appellant and when appellant got angry, she threw a glass bottle at her
nephew in the car. After the children were removed the second time, family therapy was
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recommended. Appellant started family therapy, but recommendations were made that
appellant not attend until her own mental health stability would allow her to do so.
{¶ 22} Day stated that the agency filed the motions for permanent and legal custody
because of the amount of time the children had spent in foster care and because there were
no further case plan services the agency could offer appellant that would increase the
likelihood of safety for the children. The caseworker indicated she had no concerns
regarding Z.B.'s placement with his paternal grandmother. She stated that in her limited
contacts with K.B.'s father, he presented as a responsible parent and she would likely
support placement with him if the Alabama home study were approved. The caseworker
further indicated that for K.K. there were no possible alternative placements.
{¶ 23} The caseworker stated that her current concerns regarding reunification now
were the instability of housing and that appellant's behavior and aggression had not subsided
in any way that would indicate the children would be safe over an extended period of time.
There was also concern that appellant had multiple arrests, had failed to follow through with
the case plan when she had the children, and current visits with the children were not going
well. The caseworker testified that appellant was now involved in counseling, but indicated
that the counselor's focus was on appellant, while the agency's focus was on safe parenting
for the children.
{¶ 24} Rhonda Sneed, an agency worker who supervised visitations when the children
were first removed testified that visits were "up and down" and depended on appellant's
mood, but she was usually able to settle appellant down and visits were productive. She
indicated appellant's interaction with the first caseworker was "rocky" but got better and
appellant's interaction with staff depended on her mood.
{¶ 25} Robin Hostetler, a therapist who began conducting in family therapy in February
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2012, after the children were removed the second time, testified that her goal was to work
towards reunification and help the family with relationships and communication. She said
she met with the family for one hour a week and then supervised visitation for an hour. She
testified that at the beginning, she thought she had a pretty good relationship with appellant,
but appellant became more volatile and combative and their relationship went downhill as
time passed. The therapist testified that although she gave feedback when appellant was
doing things well, problems arose any time she made suggestions regarding parenting skills
or concerns over how the children were behaving. She indicated appellant would respond
with silence, or an attitude with rolling her eyes, and that appellant often had abrasive
responses to the emotions of the children.
{¶ 26} Hostetler testified progress was inconsistent. She indicated appellant's moods
are flexible and not stable at all, and the children are guarded in their interactions with
appellant. Her concerns involved appellant's instability and the therapist explained that while
the children love their mother, they are confused and fearful of her behavior. She stated that
visits where appellant's attorney and GAL attended went "uncharacteristically well" and
appellant was not as aggressive, and had more careful, guarded behaviors.
{¶ 27} The therapist indicated that appellant's behavior led to her recommendation
that appellant stop attending the family therapy because the therapist's relationship with
appellant was becoming more harmful to the children. She indicated because of the issues
involved, she felt a new therapist would be beneficial for the family.
{¶ 28} The second family therapist, Mary Oenbrink, also testified and explained that
she performs family therapy with the children and supervises visits. She indicated that the
therapeutic visits were needed because visits were unpredictable and appellant needed to be
supervised and given feedback on her interactions with the children. She stated that she
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initially would give appellant feedback on visits prior to her visitation time, but appellant would
become frustrated before the visit and have difficulty with the children. She stated that she
now gives the information to appellant's therapist so she can process it and there is less
likelihood appellant will become angry and frustrated before the visit. She indicated she has
seen appellant verbally aggressive with the children and the children do not feel safe being
able to express themselves to appellant. She indicated when she began family therapy the
children were resistant and were concerned that what they said would get back to appellant.
{¶ 29} Oenbrink indicated that her biggest concern with the visits was appellant's
unpredictability and that appellant becomes angry about minor things like they were major
incidents. She also expressed concern regarding some of appellant's conversations with
K.K. and stated that appellant "stresses the children out" when visits are volatile. She
explained that appellant will get angry and then "cold" in her reactions with the children.
{¶ 30} Kristin Hoffman, a licensed social worker who is the program director at the
visitation center where visitations took place after the second removal, testified that she
covered one of the family's visits personally, observed other visits and has been asked to
intervene in visits. She described a conflict with the case manager in February 2012 in which
a deputy was involved and she tried to deescalate the situation.
{¶ 31} Hoffman indicated a new therapist was assigned because of consistent
complaints from appellant. She testified she has seen "physical advancement" from
appellant towards the caseworker, but no contact. She indicated that appellant has made
some progress, but still struggles significantly with control of her emotions. Hoffman
explained that appellant is not currently in family therapy because she has not reached the
point of emotional stability needed to reengage in family therapy.
{¶ 32} Dr. Alice Onady, a psychiatrist at Community Behavioral Health, testified that
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she began seeing appellant in October 2010. Appellant was initially seeing another
psychiatrist at the office, but because of a disagreement, Dr. Onady agreed to see appellant.
Appellant was diagnosed as bi-polar with a paranoid personality disorder. Dr. Onady
indicated this diagnosis includes mood swings, angry outbursts, conflicts with others,
depression, agitation and poor coping skills. Dr. Onady indicated appellant meets with an
individual therapist and then met with appellant every two to three months for medication
management.
{¶ 33} Dr. Onady indicated that on more than one occasion, appellant had problems
and conflicts with the office staff. Dr. Onady testified that she discharged appellant from
treatment because of several situations in which appellant was inappropriate with her staff.
When the psychiatrist attempted to discuss appellant's behavior with her on the day of an
incident, and told appellant she could not work with her if she were disruptive, appellant said
she did not want to continue treatment. She indicated that while she deals with patients who
have mental health problems, it is not common to terminate patients in this manner.
{¶ 34} Dr. Onady testified appellant made progress during treatment, and overall there
was some improvement, but it was not consistent. She indicated some concern with
appellant's ability to parent as the psychiatrist indicated appellant needs to be able to control
her anger.
{¶ 35} Corinne Pearson, a therapist at Access Counseling, indicated that she first met
with appellant in August 2010 and prepared a treatment plan that focuses on the negative
consequences of anger. Pearson has been working with appellant to facilitate impulse
control thought modeling and increasing sensitivity to consequences. Pearson indicated that
appellant struggled through 2011 with minimal progress, but has made dramatic progress
since May 2012. The therapist stated that appellant still has "much to do." When
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questioned, she indicated that it was difficult to estimate, but reunification may be possible in
six months with supports in place.
{¶ 36} Deanna Proctor, the CEO of Access Counseling, testified that she has not had
any problems with appellant and has seen growth over the past year. She indicated
appellant now processes things before reacting. Debra Cotter, the clinical director at Access,
also indicated that she first met appellant in 2010 when she assigned Pearson as appellant's
therapist and that she has seen improvement in appellant. She indicated appellant does a
better job at managing her emotional behavior.
{¶ 37} Theresa Paul, a mental health therapist, testified that she was approached by
Corrine Pierson, appellant's therapist, to provide supplemental material on anger
management. She testified that she presented tools and skills to appellant to use and
worked with appellant to examine her thoughts, feelings and behaviors and how they are
connected. Paul indicated that appellant was receptive and understood the material. She
indicated that appellant has the tools to manage her anger, but cannot predict how appellant
will implement them.
{¶ 38} Donna Vondrell, the case manager for K.K.'s preschool, testified that she met
with appellant about seven months prior to her testimony, and again about a month prior. In
the first meeting, she indicated appellant became irate with people and felt that they were not
"on her side." The case manager indicated she saw a great difference in how appellant
handled herself at the second meeting and was able to "hold her tongue." She indicated that
during the second meeting, she could tell appellant wanted to say something, but knew it was
not in her best interest.
{¶ 39} Nancy Baker, the director of K.K.'s preschool, testified that she is responsible
for the operation of the program and the staff. She explained that the therapeutic preschool
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addresses both academic studies and social-emotional skills. The preschool is working with
K.K. on individual therapy to address her anger and aggressing issues and to develop
effective coping skills. She indicated that K.K. was excluded from the program for a few
weeks at the end of November 2011 because she was missing a physical examination and
shot record which appellant failed to submit. When K.K. was placed back into foster care,
her caregiver submitted the documentation and K.K. resumed preschool.
{¶ 40} Baker also testified that she scored assessments taken by K.K. and appellant in
order to determine therapy needs. K.K. scored in the clinical range on the anger and
aggression scale and on the disassociation scale. Appellant scored on the high-risk indexes
in the areas of expectations of children scale, parental empathy towards children's needs
scale and use of corporal punishment scale.
{¶ 41} Jennifer Minnick, a professional clinical counselor at K.K.'s therapeutic
preschool program, indicated that she has been working with the child to improve and
increase self-expression, specifically anger-related behavior. She indicated that K.K. has
anger issues and does not have good coping skills. The child responds by screaming, crying,
hitting, kicking and punching when she does not get her way or is disappointed.
{¶ 42} Minnick indicated she is working with the child to develop safer, more effective
ways to process her feelings. The counselor indicated that K.K.'s behavior changes
negatively around visits. The child expresses that she wants visits to go well , but she is
worried about what is going to happen. The child worries about whether something the
children say in the visit will make appellant angry. The counselor indicated that K.K. requires
significant understanding and patience, along with a good routine and schedule. She
indicated being with a caregiver who responds with volatile behavior would exacerbate the
situation.
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{¶ 43} Middletown Police Officer Gary Bender testified that on December 18, 2012, he
received a disturbance call at one o'clock in the morning. The police officer found appellant
involved in a verbal argument with another person and arrested appellant on a bench
warrant.
{¶ 44} Appellant testified that she works two part-time jobs and is trying to receive
Social Security disability benefits because of her mental health problems. She stated that
she doesn't trust anyone at Children's Services and that the people who are saying her
children are stressed are lying because they do not want appellant to have her children. She
stated that if her children are upset at visits, it is because they want to come home. She
denied that her paranoia has anything to do with how she views Children's Services.
{¶ 45} Several witnesses testified on behalf of appellant, including her sister, other
family members and acquaintances. The witnesses indicated appellant is a good mother,
loves her children and they have not seen her physically touch the children. Some of the
witnesses indicated appellant is not angry unless she is pushed or provoked.
{¶ 46} The foster parent for K.K. testified that he had all three children in his home
after the first removal and maintained a relationship with the children after they were reunited
with their mother. He indicated that when he initially took the children home on reunification,
appellant did not appear prepared to parent them. He took food and groceries to appellant's
house and helped with the children a few times while encouraging and supporting appellant.
After the children were removed the second time, they went to another foster home for a
time, then K.K. and K.B. were placed back in his home, although only K.B. is currently in his
home. He indicated that K.B. "shuts down" after visits with his mother and takes a day or
two to bounce back.
{¶ 47} Z.B.'s paternal grandmother testified that she has been his custodian since
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January 2012 and that he stayed with her most of the summer of 2011. She indicated that
Z.B. becomes upset after visits and it takes days to reassure him. She stated that she is
willing to raise Z.B. until he is 18. She indicated that she would supervise visits with his
mother and/or father and would follow all court orders if the child were in her legal custody.
{¶ 48} K.B.'s father testified at the hearing that he graduated from high school and
attended one and one-half years of college. He stated that he first met K.B. in 2011 when
the child came to stay with him in Alabama for the summer. He testified that he has been
working full time since December 2010 and that his wife works as a surgical technician at a
hospital. He testified that he has criminal convictions for possession of drugs in 2004 and
was in federal prison for possession of a firearm until October 2010. K.B.'s father testified
that he coaches football, basketball and baseball in the small town where he lives. He
testified that he would be willing to take legal custody of K.B. and provided a letter signed by
several community members expressing support for him.
Permanent Custody of K.K.
{¶ 49} Before a natural parent's constitutionally protected liberty interest in the care
and custody of her child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met.
Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review
of a juvenile court's decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court's determination. In re Starkey, 150
Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding
by the juvenile court that the evidence was clear and convincing only if there is a sufficient
conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th
Dist.).
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{¶ 50} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. First, the court must find that the grant of permanent custody to the agency is
in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the
court must find that any of the following apply: the child is abandoned; the child is orphaned;
the child has been in the temporary custody of the agency for at least 12 months of a
consecutive 22-month period; or where the preceding three factors do not apply, the child
cannot be placed with either parent within a reasonable time or should not be placed with
either parent. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Warren Nos.
CA2009-10-139, CA2009-11-146, 2010-Ohio-1122, ¶ 22.
{¶ 51} The juvenile court found by clear and convincing evidence, and appellant does
not dispute, that K.K. has been in the temporary custody of the agency for more than 12
months of a consecutive 22-month period as of the date the agency filed the permanent
custody motion. However, appellant does dispute the juvenile court's finding that granting
permanent custody of the children to the agency is in the child's best interest.
{¶ 52} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a
permanent custody hearing:
[T]he court shall consider all relevant factors, including, but not
limited to the following:
(a) The interaction and interrelationship of the child with the
child's 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, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public children
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services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two month period * * *;
(d) 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 to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 53} With respect to R.C. 2151.414 (D)(1)(a), the juvenile court found that K.K. and
appellant love each other and have a bond and that K.K. enjoys seeing appellant and her
brothers at visitations. The court also found that the guardian ad litem reported that K.K. has
behavioral issues in the days surrounding visits and this behavior was confirmed by K.K.'s
therapist. The court also noted there was testimony that while K.K. is excited about visits,
she also worries because sometimes her statements anger appellant and K.K. has
expressed fear toward her. The court also indicated that during the period appellant was
participating in family therapy with the children, the therapists testified that K.K. did not want
to share her feelings based on appellant's intimidating demeanor in the sessions.
{¶ 54} The court also found that K.K. has been placed in several foster homes during
the case, and in September 2012 moved to her current foster home where she has
remained. The court found that the guardian ad litem reported K.K. is very comfortable in the
home and with her foster mother. The court also found that there was no evidence K.K. has
ever had contact with her father. During the case, three men were listed as K.K.'s father and
eventually her biological father was identified through DNA testing. K.K.'s father failed to
appear at any of the hearings or to contact the agency about his daughter.
{¶ 55} With respect to R.C. 2151.414(D)(1)(b), the juvenile court indicated that no in
camera interview with K.K. was requested or performed. The court found there was evidence
that K.K. has stated that she would like to live with appellant. The court also found that K.K.'s
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guardian ad litem recommended that K.K. be placed in the permanent custody of the agency.
{¶ 56} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that K.K. has
been in the temporary custody of the agency for more than 12 of 22 months. The court
indicated that as of the date of the last hearing on March 6, 2013, K.K. had been residing in
foster care for approximately 30 months.
{¶ 57} With respect to R.C. 2151.414 (D)(1)(d), the juvenile court found that it is clear
that K.K. is in need of a legally secure placement as she has resided in foster care for
approximately 30 months during the case. The court further found that the agency presented
clear and convincing evidence that appellant is not in a position to assume her parental
responsibilities at this time or in the near future. The court found appellant has been
diagnosed with bi-polar disorder, personality disorder and post-traumatic stress disorder.
{¶ 58} The court determined that "[t]hroughout this case, the chief concern of the
agency and this court has been mother's inability to consistently manage her explosive anger
and the intimidating behavior that accompanies the anger." The court noted that the case
was initiated because of appellant's behavior at the hospital after K.K. suffered burns in
March 2010. Although the children were placed back in appellant's temporary custody, they
were removed a second time in December 2011 due to concerns that appellant had
physically and emotionally abused K.K.
{¶ 59} The court found that throughout the case, the evidence demonstrated that
appellant has a volatile temper. The court reviewed angry episodes with many of the
therapists, police officers and caseworkers. The court also noted that Dr. Onady accepted
appellant as a patient after a disagreement with another doctor, but appellant was then
terminated from Dr. Onady's care due to abusive treatment of the office staff. The court
further noted that both family therapists testified that appellant had angry and combative
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behavior which led to their decision to terminate her from family therapy sessions.
{¶ 60} The court indicated that appellant's therapist testified at length that she has
made some improvements in her ability to use anger management techniques she has
learned in therapy. The court concluded, however, that it was not convinced based on the
three years the case was pending, that appellant has demonstrated a sufficient ability to curb
her volatility on a regular basis. The court noted that it was not until mid-2012, after the case
was already over two years old, that appellant finally began to exhibit some progress in her
anger management. The court stated that during appellant's testimony, "she virtually
seethed with anger against BCDJFS, squarely blaming her predicament on the caseworkers
and agency's supervisors."
{¶ 61} The court concluded that appellant took little responsibility for her own actions
and how those actions have caused the children to languish in foster care or with relatives.
The court found that appellant "continues to argue that society in general is to blame for her
problems, despite all of the help that she has been provided by BCDJFS and the case plan
providers, including her own therapist and guardian ad litem."
{¶ 62} The court found that based on reviewing all of the evidence, it was not
convinced the children would be safe from further emotional and physical abuse if placed
back in appellant's custody. The court reviewed the testimony of the therapists involved in
the case and found that appellant has not been receptive to any criticism or direction from the
family therapists and has insisted that her own therapist and guardian ad litem be present at
visits to keep her calm. The court found there were concerns about appellant's ability to
handle her children in an emotionally sound manner if they were returned. In addition, the
court found that appellant's therapist testified that because of K.K.'s own behavioral and
emotional issues, she needs a caregiver capable of providing understanding, patience,
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unconditional love and good routines to meet her needs. The court concluded that there are
serious concerns about whether appellant is stable enough to meet her children's needs in a
crisis in a calm, patient manner, when she is unable to attend visits without help and cannot
engage in family therapy with her children.
{¶ 63} The court also considered the fact that despite appellant's recent progress in
anger management with her therapist, police were called in December 2012 because of a
reported argument involving appellant. The court noted that on that date, appellant was
arrested for an outstanding warrant and while the case has been pending, appellant was
arrested several times, usually involving issues of anger and confrontation. Finally, the court
found that although caseworkers testified they spoke with numerous persons, there are no
other appropriate persons available to parent the child. Based on a review of the facts
relevant to this factor, the court determined that a legally secure placement cannot be
achieved for K.K. without a grant of permanent custody to the agency.
{¶ 64} With regard to other best interest factors, the court found that K.K.'s father
abandoned her based on the fact that he has had no contact with the child since the case
began in March 2010. The court also reviewed the history of the case and determined that
after 36 months, appellant failed to remedy the conditions that caused K.K. to be placed
outside her home. Based on a review of all the factors, the court concluded that it was in
K.K.'s best interest to be placed in the permanent custody of the agency.
{¶ 65} On appeal, appellant raises issues regarding her progress in mental health
treatment and other aspects of the case plan, her love and bond with the children, and the
effect of granting permanent custody of K.K. on her relationship with her brothers, and she
argues that she is making progress. She also disputes much of the testimony and attributes
problems with children services to personality conflicts.
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{¶ 66} Appellant's arguments on appeal largely center on differing views of appellant's
progress and the manner of her interaction with persons involved, including the children.
However, issues of credibility are for the trier of fact, not the appellate court, to determine. In
re G.N., 170 Ohio App.3d 7, 2007-Ohio-126, ¶ 24 (12th Dist.). It is well-established that the
juvenile court had the opportunity to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of the
testimony. In re B.J., 12th Dist. Butler No. CA2011-10-192, 2012-Ohio-3127, ¶ 20. Deferring
to the trial court on matters of credibility is "crucial in a child custody case, where there may
be much evidence in the parties' demeanor and attitude that does not translate to the record
well." Davis v. Flickinger, 77 Ohio St.3d 415, 419 (1997).
{¶ 67} We have carefully reviewed the evidence in this case and find that the trial
court's findings are supported by the record. The trial court considered and weighed the
evidence in light of each of the factors, including the effect of granting permanent custody on
the sibling relationship, and in a thorough decision made findings that are supported by the
record. Appellant's first assignment of error is overruled.
Legal Custody of K.B. and Z.B.
{¶ 68} In her second and third assignments of error, appellant argues that the trial
court's decisions to award legal custody of K.B. to his father and to award legal custody of
Z.B. to his paternal grandmother are against the manifest weight of the evidence.
{¶ 69} Unlike permanent custody, legal custody does not terminate the parent-child
relationship; rather the parent retains residual parental rights and responsibilities. In re M.A.,
12th Dist. Butler No. CA2011-02-030, 2012-Ohio-545, ¶ 16. When determining legal custody
pursuant to an action involving an abused, neglected or dependent child, the paramount
concern is the best interest of the child and the court should consider the totality of the
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circumstances affecting the best interest of the child. Id.{¶ 70} An appellate court reviews a juvenile court's custody determination for an abuse
of discretion. Id. at ¶ 1. An abuse of discretion implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). The discretion afforded to a juvenile court in custody matters "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. The knowledge a trial court
gains through observing the witnesses and the parties in a custody proceeding cannot be
conveyed to a reviewing court by a printed record." In re A. W.-G., 12th Dist. Butler No.
CA2003-04-099, 2004-Ohio-2298, ¶ 6, quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
{¶ 71} Accordingly, an appellate court will not reverse a judgment as being against the
manifest weight where the "award of custody is supported by a substantial amount of credible
and competent evidence." In re T.M., 12th Dist. Butler No. CA2007-01-019, 2007-Ohio-6034,
¶ 28, citing Davis v. Flickinger, 77 Ohio St.3d 415 (1997).
{¶ 72} Appellant argues in her second assignment of error that the court abused its
discretion in awarding legal custody of K.B. to his father because the child had little prior
contact with his father, the Alabama home study was denied due to the father's criminal
history and because K.B. will be separated from other family members due to the distance
between Alabama and Ohio.
{¶ 73} The trial court considered the best interest factors as they relate to K.B. and
found that K.B. did not have a relationship with his father until the summer of 2011. The
court found that the father testified that he did not learn of K.B.'s existence until a few years
ago. The court indicated that during the case, the father was in prison part of the time, but
during the summer of 2011, appellant sent K.B. to Alabama for several weeks to visit his
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father. During this time, K.B. also met many of his paternal relatives who reside in the same
area, including his father's other children.
{¶ 74} The court also found that the father appeared in court on June 15, 2012 and
began driving to Ohio to attend court hearings and also attended visits with K.B. at the
agency. The court indicated that the father attended all subsequent hearings except one
where the court excused his attendance due to vacation time issues. The court further found
that the father would typically drive all night from Alabama to be present at hearings. The
court found the father has been employed with the same company for over a year, has
several children he supports and coaches football and basketball. The court also found that
the father has numerous relatives living nearby to provide a support system. The court noted
that the caseworker observed a visit and indicated that the two have a comfortable, warm
relationship and the father is encouraging and supportive of the child.
{¶ 75} The court continued by noting that the interstate home study on father was
denied due to the father's criminal history and current probationary status. However, the
court determined that the father was very open about his criminal history and the last
conviction was in 2008 for possession of a firearm by a felon. In addition, K.B.'s current
foster family was requesting that the child be placed in another foster home. The court also
considered the guardian ad litem's recommendation that K.B. be placed in the legal custody
of his father. The court also considered whether K.B. could be placed with appellant and for
the same reasons as discussed above regarding K.K., found that K.B. could not be placed
with appellant.
{¶ 76} The court considered the evidence and the factors weighing against the father,
but found that since his release from prison, the father appears to have achieved stability in
his life. The court found that these facts, along with consideration of K.B.'s current age of 14
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and the lack of any concerns during K.B.'s visit in 2011, weighed in favor of placing K.B. with
his father.
{¶ 77} After reviewing the record, we find no error in the trial court's decision to place
K.B. in the legal custody of his father. Although there were some concerns based on the
father's criminal history and the amount of prior contact, the court weighed these facts with
the father's current stability, familial support system, and dedication to his son and
determined it was in K.B.'s best interest to be placed with his father. The trial court's decision
is not against the manifest weight of the evidence. Accordingly, appellant's second
assignment of error is overruled.
{¶ 78} In her third assignment of error, appellant argues that the court abused its
discretion in awarding legal custody of Z.B. to his paternal grandmother because appellant
was making progress in therapy. She essentially reiterates the same arguments in her first
assignment of error, arguing that the evidence was conflicting regarding her behavior and
that she has been actively involved in mental health treatment.
{¶ 79} In the same manner as in K.K. and K.B.'s cases, the court considered whether
Z.B. could be placed with appellant and found that he could not be placed with her within a
reasonable time. The court indicated that Z.B.'s father was incarcerated for a period of time
from 2011-2012 and since his release, the grandmother has supervised visits between Z.B.
and his father. The court considered the guardian ad litem's report and recommendation that
Z.B. be placed with his paternal grandmother.
{¶ 80} The court indicated the grandmother has continued to meet the child's needs
and provide a stable home for the child for over a year. She enrolled Z.B. in football and
baseball. The grandmother helps Z.B. with his homework every day and the child achieves
good grades and has made friends at school. The court also indicated that it considered the
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in camera interview with the child. Based on consideration of all the facts, the trial court
concluded that it was in Z.B.'s best interest to be placed in the legal custody of his
grandmother.
{¶ 81} After reviewing the record in this case, we find no error in the trial court's
decision. For the reasons discussed above, the court did not err in finding Z.B. could not be
placed with appellant. The grandmother has been providing a safe, stable home for the child
for over a year where he is doing well. The guardian ad litem recommended that legal
custody of the child be granted to the grandmother. The trial court's decision is not against
the manifest weight of the evidence. Appellant's third assignment of error is overruled.
Hearsay
{¶ 82} In her fourth assignment of error, appellant argues that the trial court erred in
allowing hearsay evidence in the form of a report from K.K.'s preschool and the testimony of
caseworker Carla Day. Appellant concedes that these issues were not raised in objections
and are therefore subject to review for plain error.
{¶ 83} Hearsay is inadmissible in hearings on motions for permanent custody. In re
W.R., 12th Dist. Fayette No. CA2011-08-016, 2012-Ohio-382, ¶ 22. However, it is well-
established that as the fact-finder, a trial court is presumed to have considered only properly
admissible evidence unless the record affirmatively demonstrates otherwise. In re A.F., 12th
Dist. Butler No. CA2011-12-233, 2012-Ohio-2958, ¶ 33. Therefore, the admission of hearsay
evidence in cases involving the termination of parental rights, even if error, is not considered
prejudicial unless it is shown that the judge relied on improper evidence in making his
decision. In re C.J., 8th Dist. Cuyahoga No. 100532, 2014-Ohio-2403.
{¶ 84} Appellant first argues that the trial court erred in admitting a report prepared by
the director of K.K.'s preschool. She argues that the report included information from other
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preschool workers and the director testified that she was asked to prepare the report for
court. She argues that the information in the report included K.K.'s issues with anger and
aggression and that the director testified extensively over objection about the content of the
information. Appellant also argues that the court erred in allowing caseworker Carla Day to
testify that the Middletown police believed that appellant physically abused K.K. in the
December 2011 incident.
{¶ 85} Appellant contends that the prejudicial effect of this information is "apparent"
because the court indicated the paramount issue in the case was appellant's anger and
children's reaction to the anger. She further contends that prejudice from the statement
regarding Middletown police is apparent because the court indicated it was concerned about
the children's safety and the only allegation of physical harm was from the December 2011
incident.
{¶ 86} Regardless of whether the evidence is hearsay, appellant fails to establish that
she was prejudiced in any manner by either the preschool director's report or by the
statement involving the Middletown police. In both instances, the evidence was presented in
other form.
{¶ 87} First, the evidence in the preschool director's report was corroborated by other
witnesses who testified regarding matters in the report, including the director herself and
K.K.'s therapist at the preschool. In addition, several witnesses testified regarding appellant
and K.K.'s behavior. Accordingly, as there was other evidence of appellant's anger issues,
and K.K.'s issues, appellant has not established that this report was the basis for the trial
court's determinations regarding appellant's anger and K.K.'s emotional issues. In addition,
when the court admitted the report, it indicated that it would consider the portions of the
report regarding matters the director personally observed, but the court stated that the report
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also included hearsay, which it would not consider. Given that the court clearly understood
the report contained hearsay and stated it would not consider those portions of the report,
appellant has not established any prejudice by its admission.
{¶ 88} With regard to the statement regarding the Middletown Police Department,
appellant has also failed to establish prejudice from this statement. The record contains
several statements regarding the removal of the children in December 2011, and that
appellant was charged with domestic violence following the incident. The nature of the
injuries was the subject of a prior hearing before the court and the basis of an emergency
shelter care hearing. In addition, appellant has not established that the court relied on this
incident, and not appellant's propensity for anger and aggression in discussing concern for
the physical and emotional safety of the children.
{¶ 89} As appellant has not established she was prejudiced by the statements,
appellant's fourth assignment of error is overruled.
{¶ 90} Judgment affirmed
HENDRICKSON, P.J., and PIPER, J., concur.
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