In re R/G Children

[Cite as In re R/G Children, 2021-Ohio-839.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: R/G CHILDREN : APPEAL NO. C-200394
TRIAL NO. F17-243z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 19, 2021
Treleven & Klingensmith LLC and John Treleven, for Appellant Mother,
Stringer Law, LLC, and Elizabeth Stringer, for Appellant Petitioner,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas C. Varney,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Adams Law, LLC, and Aaren E. Meehan, for the Guardian Ad Litem.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Appellant mother and appellant petitioner, maternal grandmother,
appeal the decision of the Hamilton County Juvenile Court, granting permanent
custody of two children to the Hamilton County Department of Job and Family
Services (“HCJFS”) and denying the custody petition filed by grandmother. Both
raise a single assignment of error contending that the trial court erred in awarding
permanent custody to HCJFS. Grandmother also contends that the trial court erred
in denying her petition for custody. For the reasons discussed below, we find no
merit in their assignment of error, and we affirm the judgment of the trial court.
Factual Background
{¶2} Mother has two children S.R., born May 15, 2015, and K.G., born
August 12, 2017. HCJFS received interim custody of S.R. on February 1, 2017, via an
ex parte telephone emergency order, and S.R. was placed in a foster home. The
following day, the court granted interim custody to HCJFS. The facts that supported
interim custody to HCJFS were that her mother, who was also a minor, had engaged
in a heated altercation with grandmother. As a result, mother fled grandmother’s
home with S.R., and both were living in the home of mother’s cousin. The cousin,
who was in the custody of HCJFS, resided in independent living, which prohibited
mother and S.R. from living there. Mother also had open warrants for a domestic-
violence charge and truancy matters. Mother was placed in the interim custody of
HCJFS. S.R. was found to be dependent and neglected and committed to the
temporary custody of HCJFS.
{¶3} Four months later, mother gave birth to K.G. Two days after his birth,
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OHIO FIRST DISTRICT COURT OF APPEALS
K.G. was placed in the interim custody of HCJFS and was later adjudicated
dependent. He was placed in the same foster home with S.R.
{¶4} The juvenile court approved a case plan with a goal of family
reunification. The plan required mother to engage in individual counseling, to
engage in counseling with grandmother, complete parenting classes, obtain and
maintain stable housing and employment, visit consistently with the children, and to
participate in S.R.’s therapy at the Therapeutic Interagency Program (“TIP”) through
Cincinnati Children’s Hospital. Grandmother was also required to participate in the
TIP therapy after TIP sent a letter to the court requesting that grandmother
participate in the TIP therapy. At that time, S.R. had been diagnosed with
adjustment disorder. Mother successfully completed her therapy and parenting
classes, and HCJFS allowed mother to resume living in grandmother’s home.
Mother only attended eight out of 17 scheduled weekly TIP sessions. Although TIP
scheduled weekly sessions with mother, she failed to attend.
{¶5} In early 2018, mother and grandmother began unsupervised visits
with the children at grandmother’s home. The unsupervised visitation was
suspended a month later by HCJFS after K.G.’s alleged father had an unauthorized
visit with the child, and mother was charged with assault.1 Unsupervised visits
briefly resumed but were terminated when S.R. began exhibiting severe post-
traumatic stress disorder (“PTSD”) after visits with mother. Again, HCJFS requested
that both mother and grandmother participate in TIP therapy. Both mother and
grandmother believed that S.R.’s behaviors were due to separation from them and
1 The magistrate noted that the alleged visit occurred when mother and grandmother ran into
father at a bowling alley, and ordered that the child have no contact with the alleged father
during unsupervised visits.
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HCJFS involvement. Mother also believed that the TIP therapy triggered S.R.’s
trauma.
{¶6} In June 2018, K.G. was referred to TIP therapy and diagnosed with
separation anxiety disorder. At the beginning of his treatment, mother attended
seven out of ten sessions and then stopped attending. Grandmother did not attend
any sessions.
{¶7} S.R.’s mental-health issues continued to become more severe. S.R.
was diagnosed with PTSD, reactive attachment disorder, and intermittent explosive
disorder by her new therapist. Despite repeated requests, mother and grandmother
did not participate in any of S.R.’s therapy sessions with the new therapist. Both of
the foster parents participated in the children’s therapy sessions. The children
continued to make progress in therapy after the visits with mother were suspended.
{¶8} In November 2018, the trial court continued the suspension of
mother’s supervised visitations with S.R. because mother still had an open warrant
and failed to engage in TIP therapy. The court found that both mother and
grandmother had been repeatedly requested to engage in TIP but failed to do so.
Supervised visits with K.G. were scheduled to begin at the Family Nurturing Center
(“FNC”).
{¶9} On January 7, 2019, HCJFS filed a motion to modify temporary
custody of the children to permanent custody. Grandmother filed a petition for
custody on February 28, 2019. A magistrate denied grandmother’s custody petition
and granted permanent custody to HCJFS. Mother and grandmother filed
objections which were overruled by the trial court. Mother and grandmother
appealed challenging the sufficiency and the weight of the evidence supporting the
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trial court’s finding that a grant of permanent custody was in the children’s best
interest. The children’s guardian ad litem and HCJFS ask this court to affirm the
juvenile court’s judgment.
Law and Analysis
{¶10} R.C. 2151.414(B)(1) sets forth a two-pronged test for courts to apply
when determining whether to grant a motion for permanent custody to a public
children services agency. “The statute requires the court to find, by clear and
convincing evidence, that: (1) one of the enumerated factors in R.C.
2151.414(B)(1)(a)-(e) applies, and (2) permanent custody is in the best interest of the
child under R.C. 2151.414(D)(1)(a)-(e). See R.C. 2151.414(B)(1).” In re D.M., 1st Dist.
Hamilton No. C-200043, 2020-Ohio-3273, ¶ 23.
{¶11} 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 W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-
Ohio-4912, ¶ 46, quoting In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895
N.E.2d 809, ¶ 42. An examination into the sufficiency of the evidence requires this
court to determine whether the juvenile court had sufficient evidence before it to
satisfy the clear-and-convincing standard. In re R.M.S., 1st Dist. Hamilton Nos. C-
190378, C-190386 and C-190405, 2019-Ohio-4281, ¶ 27. When reviewing a
challenge to the manifest weight of the evidence, we must review the record to
determine whether the trial court lost its way and committed such a manifest
miscarriage of justice that its judgment must be reversed. Id.{¶12} Because both appellants acknowledge that both children had been in
the temporary custody of HCJFS for more than 12 months of a consecutive 22-month
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period, we need only determine whether clear and convincing evidence supported
the trial court’s finding that a grant of permanent custody was in both children’s best
interest.
{¶13} In determining whether permanent custody is in a child’s best interest,
the 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 child’s
wishes; (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
(E)(11) apply. See R.C. 2151.414(D)(1)(a)-(e); In re S.G., 1st Dist. Hamilton No. C-
200261, 2020-Ohio-5244, ¶ 36.
{¶14} The factors listed in R.C. 2151.414(E)(7) to (11) include whether (1) the
parent had been convicted of or pleaded guilty to certain criminal offenses; (2) the
parent had repeatedly withheld medical treatment or food from the child when the
parent had the means to provide the treatment and food; (3) the parent had placed
the child at substantial risk of harm two or more times due to alcohol or drug abuse
or had refused to participate in further treatment two or more times; (4) the parent
had abandoned the child; and (5) the parent had had parental rights involuntarily
terminated with respect to a sibling of the child, and the parent had failed to provide
clear and convincing evidence that the parent can provide a legally secure permanent
placement and adequate care for the health, welfare and safety of the child. In re
B/K Children, 1st Dist. Hamilton No. C-190269, 2019-Ohio-5503, ¶ 14-15.
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{¶15} “No single factor is given greater weight or heightened significance.”
In re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 35. As
long as the court considered all the factors, it need not specifically enumerate those
factors in its decision. See In re A.F., 1st Dist. Hamilton Nos. C-200230 and C-
200231, 2020-Ohio-5069, ¶ 23; In re B/K Children at ¶ 16. The weight to be given to
the individual factors lies within the trial court’s discretion. In re M., R. & H.
Children, 1st Dist. Hamilton No. C-170008, 2017-Ohio-1431, ¶ 34.
{¶16} The record supports the court’s findings under R.C. 2151.414(B)(1)(a)-
(c) that the children are bonded together and bonded with their foster parents and
foster siblings. The guardian ad litem recommended that the children be placed in
the permanent custody of HCJFS. The evidence demonstrated that S.R. did not do
well physically or mentally after unsupervised visitation with mother. Both children
were doing well with their foster family, and the foster family has continued to
engage with the therapy for the children.
{¶17} Both mother and grandmother challenge the court’s finding under R.C.
2151.414(B)(1)(d) that the children are in need of a legally secure placement that
cannot be achieved without a grant of permanent custody because mother and
grandmother did not understand the therapeutic needs of the children and failed to
attend the TIP therapy. The record shows that S.R. has significant mental-health
needs and K.G. requires therapy. In April, August, and November of 2018, HCJFS
requested that both of them participate in TIP sessions. Although mother attended
approximately eight TIP sessions for S.R. in early 2018, she was inconsistent and
stopped attending the sessions by April 2018. Despite the repeated requests,
grandmother joined mother for one session in March 2018, but never attended
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again. In December 2018, mother attended eight out of 17 sessions for K.G., and
again stopped participating. Grandmother did not engage in K.G.’s TIP therapy and
admittedly had no bond or relationship with K.G.
{¶18} Mother did not testify or present any evidence explaining why she
failed to engage in the TIP therapy. Grandmother acknowledged that the HCJFS
caseworker asked her to participate in the TIP therapy and continued to ask her to
participate in TIP sessions when they appeared in court. She testified that she
believed that the therapy she had completed before mother came home was a
substitute for TIP sessions. Grandmother further explained that when she attempted
to engage in the TIP program, the case was closed.
{¶19} The record contains clear and convincing evidence to support the
court’s finding that mother and grandmother do not understand the mental-health
needs of the children, made no effort to understand the needs of the children, and
are unable to provide for the children’s special needs. Both mother and grandmother
dismissed the seriousness of the children’s mental-health issues and believed that
the issues stem solely from the separation of the children from the family and HCJFS
involvement. Although grandmother testified that she would continue the children’s
therapy, the court did not find her testimony to be credible.
{¶20} Finally, under R.C. 2151.414(E)(7) to (11), the court found that mother
had abandoned the children by failing to visit the children for over 90 days.
However, mother did not challenge that finding or offer any argument or reasoning
as to how the court erred. The burden of affirmatively demonstrating error on
appeal rests with the appellant. See App.R. 9 and 16(A)(7).
{¶21} Based on this record, there was clear and convincing evidence to
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support the trial court’s findings that the children needed a legally secure placement,
rather than a grant of legal custody to grandmother, and permanent custody with
HCJFS was in the best interest of both children.
Conclusion
{¶22} We overrule the sole assignment of error and affirm the judgment of
the trial court.
Judgment affirmed.
MYERS and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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