In re Jd.R.

[Cite as In re Jd.R., 2017-Ohio-2940.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 16AP-364
Jd.R., et al., : (C.P.C. No. 12JU-5813)
(C.R., : (REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on May 23, 2017
On brief: James S. Sweeney, for appellant.
On brief: Robert J. McClaren, for appellee, Franklin
County Children Services.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relation, Juvenile Branch
BRUNNER, J.
{¶ 1} Appellant-mother, C.R., appeals an April 13, 2016 judgment entry from the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch. The trial court in its entry granted appellee, Franklin County Children Services
("FCCS"), permanent custody of three of C.R.'s five minor children. Because we find that
the trial court did not abuse its discretion in denying C.R.'s request that the case be
continued, and because we find the trial court's decision was appropriately supported by
the evidence, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This Franklin C.P. case, No. 12JU-5813, commenced on April 26, 2012 on
FCCS' filing a complaint regarding all four of C.R.'s children then in existence, Jd., Kv.,
Jy., and Kh. (Apr. 26, 2012 Compl.) FCCS alleged in its complaint that C.R. was abusing
prescription pain pills and not adequately providing a safe home or food for the children.
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Id. FCCS also alleged that the two fathers1 of the four children gave cause for concern
related to propensities for domestic violence. Id. at 2. The same day the complaint was
filed the trial court granted emergency custody to FCCS. (Apr. 26, 2012 Emergency Care
Order.) Following hearings on April 27 and July 9, 2012, and with the recommendation
of a guardian ad litem for the children, the trial court ordered temporary custody of all
four children to FCCS. (July 18, 2012 Decision & Entry on Temporary Custody; May 3,
2012 Guardian ad Litem Report.)
{¶ 3} Following a number of continuances of the case and an extension of
temporary custody by the trial court, FCCS moved on September 12, 2013 for permanent
custody of all four children. (Sept. 12, 2013 Mot. for Permanent Custody; May 6, 2013
Decision & Entry Extending Temporary Custody.) FCCS alleged in its motion that the
children were doing well, having been placed in foster care on December 18, 2012.
(Sept. 12, 2013 Mot. for Permanent Custody at 4.) FCCS argued that C.R. had not pursued
drug abuse treatment, had taken only 10 out of 97 requested random drug screens, and
had produced a positive result in 9 out of the 10 she took. Id. at 5.
{¶ 4} After a number of failed attempts to place the children with relatives of the
parents and (for one brief period) to give temporary custody of Jd. and Jy. to their father,
on March 28, 2016, the trial court convened a hearing to decide the permanent custody
motion. See, e.g., Nov. 3, 2014 Temporary Custody Order; Jan 21, 2015 Entry
Terminating Custody to T.T. At the outset, the trial court noted that C.R. was present but
was serving at that time a sentence of incarceration for convictions for heroin trafficking.
(Mar. 28, 2016 Tr. at 7-12.) The trial court denied a motion to continue the case beyond
the hearing in order to permit C.R. time to be released from prison and to fashion living
arrangements to attempt to serve as an appropriate placement for the children. Id.
{¶ 5} The trial court also noted that during the pendency of case No. 12JU-5813,
C.R. had given birth to another child, L.R., and that permanent custody of that child was
being sought by FCCS in Franklin C.P. No. 14JU-13221. Id. at 6. But in that case, when
the trial court determined that proper service had not been obtained on the father of L.R.,
it continued the No. 14JU-13221 case. Id. at 74-76. The trial court additionally dismissed
1 Although both fathers contested the permanent custody motion filed by FCCS at points during the trial
court proceedings, neither has appealed. Accordingly, recitation of facts relative to their involvement in the
children's lives is abbreviated in this decision.
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No. 16AP-364
the custody motion of the father of Kv. and Kh. and granted his attorney leave to
withdraw. Id. at 77-78. Kv. and Kh.'s father was not personally present to prosecute his
custody motion, having been indicted for another felony, and he had not sufficiently
communicated with his attorney to enable the attorney to represent his interests. Id.
{¶ 6} Before addressing contested custody issues in the earlier filed case No.
12JU-5813 case, the trial court addressed a motion by the children's maternal
grandmother for custody of Kv. Id. at 50-63. It interviewed Kv. in camera. Kv. told the
court that living with C.R. was her first choice but, if that were not possible, she would like
to live with her grandmother. Id. at 28-30. After hearing testimony from Kv.'s
grandmother as to her interest in obtaining custody of Kv., and with the agreement of all
other interested parties to the suit, the trial court maintained wardship of Kv. but ordered
permanent legal custody to her maternal grandmother. Id. at 52-63; Mar. 31, 2016 Entry
Granting Custody of Kv. Thus, as the contested portion of the hearing commenced, the
only case remaining at issue was case No. 12JU-5813 with the hearing focused on
resolving custody issues for Jd., Jy., and Kh.
{¶ 7} The trial court conducted in camera interviews of both Jd. and Kh.2 Jd.,
almost age ten at the time of the interview, told the trial court judge that he preferred to
reside with his mother, C.R. (Mar. 28, 2016 Tr. at 16.) However, if that was not possible,
he wanted to live with his foster family. Id. Kh., who was approximately four and one-
half at the time of the interview, had less understanding of the nature of the proceedings.
However, she was clear that she wanted to stay with her foster family (which also had
temporary custody of Jy. and L.R.) "forever." Id. at 35-38.
{¶ 8} During the three-day hearing, four other witnesses testified: Erinn
Anderson (the caseworker for the case), Vicki Rush (the children's guardian ad litem),
T.T. (father of Jd. and Jy.),3 and C.R.
{¶ 9} Anderson testified that she had been the caseworker for C.R.'s family since
November 28, 2011. Id. at 173-74. She confirmed what the docket filings show, that FCCS
first received emergency custody of the children on April 27, 2012 and temporary custody
2 The trial court did not conduct an in camera interview of Jy. because of Jy.'s young age and Down's
syndrome condition, and she was considered to be verbally unable to express her wishes. See e.g., Mar. 29,
2016 Tr. at 102.
3 While T.T. contested the permanent custody motion by FCCS at the trial level, T.T. did not appeal and we
thus limit discussion of his testimony and arguments before the trial court.
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No. 16AP-364
following a hearing on July 9, 2012. Id. at 176-77. The case plan required C.R. to
complete an alcohol and drug assessment, follow through with treatment
recommendations, complete random urine screens, maintain housing, acquire legal
income, and link with designated programs including ones that addressed Jy.'s special
needs. Id. at 177-78. Kh. had been born opiate positive, indicating C.R.'s need for alcohol
and drug assessment and treatment. Id. at 178. But C.R. did not pursue testing and
treatment despite being given referrals to appropriate treatment centers. Id. at 178-80.
During the full course of the case, C.R. completed just 21 of 230 requested random drug
screens with the last one occurring on September 12, 2014. Id. at 180-81. Although
Anderson testified that C.R. maintained consistent employment throughout the case, it
did not provide C.R. with sufficient income to raise five children. Id. at 187-88. She did
not have stable housing outside of incarceration, as was her status at the time of the
hearing. Id. at 185-87.
{¶ 10} Though Anderson testified that the children seemed fond of their mother
and that visits with C.R. generally went well, there were long periods (mainly due to
incarceration) when C.R. did not visit her children. Id. at 189; Mar. 29, 2016 Tr. at 62-63.
In Anderson's judgment, only the oldest of C.R.'s children, Jd., had a real relationship
with C.R.; the others had spent the majority of their lives in foster care. (Mar. 28, 2016
Tr. at 191-92.) Anderson observed that C.R. was challenged during visits with the five of
them and had trouble managing and paying enough attention to all of them when they
were together. Id. at 188, 190-91.
{¶ 11} Anderson testified that Jd. had been placed in homes other than C.R.'s 12
times since FCCS had been involved with the family. (Mar. 29, 2016 Tr. at 33-34.) She
explained that Jd. had been in his current placement since January 20, 2015, when his
father returned him to the custody of FCCS shortly after receiving temporary custody. Id.
Anderson testified that Jd. had an excellent relationship with his current foster parents,
"Momma Dee" and "Momma Tabs," and they planned to adopt him if the trial court
granted permanent custody to FCCS. Id. at 35.
{¶ 12} Jy. and Kh. have experienced six and seven placements, respectively, during
their time in the FCCS system. Id. at 36. Anderson stated that both had been in their
current placement since July 31, 2013 with the exception of a brief interval in which Jy.
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No. 16AP-364
was placed with her father. Id. at 37. The relationship with their foster family was very
good. Id. at 38. Jy. and Kh. were bonded to each other and their foster mom and dad
whom they referred to as "Mom" and "Dad." Id. At the time of the hearing the other
child, L.R., was also placed with that foster family. Id. at 39. Anderson reported that the
foster family wished to adopt all three of the children if permanent custody were granted
to FCCS. Id. Anderson also noted that the foster family would be open to keeping the
siblings in touch with Jd. even if he were placed in a different household. Id. at 39-41.
{¶ 13} Anderson stated that although C.R. testified that she was clean at the time
of the hearing, she never completed treatment or established that fact through regular
drug screens. Id. at 91. Having been the family's caseworker since FCCS' involvement in
2012, Anderson stated that she did not believe C.R.'s persistent challenges due to drugs,
lack of stable housing, and lack of sufficient employment to provide for five children
would change whether or not she was incarcerated. Id. Accordingly, Anderson
recommended permanent custody be granted to FCCS. Id. at 42-43.
{¶ 14} The guardian ad litem, Vicki Rush, testified that she had been the guardian
for the children since May 19, 2015. Id. at 93. She stated that visits with C.R. were often
somewhat chaotic. Id. at 94-95. She, too, stated that Jd. had a good relationship with
both of his foster mothers, and she corroborated what Jd. had told the trial court in
camera that he wanted to reside with C.R. but if he could not, would like to be adopted by
his foster family. Id. at 98-100. Rush likewise corroborated that Kh. wished to stay with
her foster parents. Id. at 101-02. Rush said that Jy. could not properly express herself but
her behavior had led Rush to believe that she wished to stay with her foster parents. Id.
Rush also testified that the children were all in prospective adoption placements with
foster parents who wanted to adopt. Id. at 128.
{¶ 15} C.R. appeared and testified during the hearing. She admitted that she was
incarcerated at the time of the hearing for two fifth-degree felony convictions of heroin
trafficking. (Mar. 28, 2016 Tr. at 85.) She clarified that her original sentence for these
convictions was to successfully complete "intervention in lieu of conviction."4 She had
been sentenced to prison for failing to complete the program. Id. at 87. Her "out date"
from prison was to be June 29, 2016, three months after her testimony, because she had
4 See R.C. 2951.041.
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No. 16AP-364
qualified for a Treatment Transfer Program that authorized early prison release directly
into inpatient treatment for a number of weeks (8 to 10, possibly more). Id. at 89-90;
(Mar. 29, 2016 Tr. at 140-42). C.R. testified that she had not used drugs while in prison
and that she had been attending 12-step meetings while in prison. (Mar. 28, 2016 Tr. at
101, 120.)
{¶ 16} C.R. did acknowledge that her children had been removed from her house
on April 26, 2012 and never returned because she abused and trafficked in drugs Id. at
90-92. She admitted that she never finished a treatment plan though she started twice.
Id. at 94-96. She confirmed that she had not submitted to a drug screen for two and one-
half years, since September 2014. Id. at 96-97. She at first attributed this to having been
incarcerated for eight months. Id. But she admitted that she did not submit to drug
screening when she was pregnant with L.R. The excuse she gave was being angry that
FCCS had taken her child on the conclusion that she was still abusing drugs, which she
denied. Id. She claimed to have taken only what the hospital had given her. Id. She also
offered an excuse for failing to show for drug screening that a warrant had been issued for
her arrest and the drug screening location was near a police station; again she asserted
she had been sober anyway. (Mar. 29, 2016 Tr. at 151-52.) She also excused her failure to
drug screen on her inability to find transportation even though she acknowledged she
generally found transportation to visits with her children and that FCCS had given her bus
passes. Id. at 152-54; Mar. 28, 2016 Tr. at 117-18. C.R. also claimed unspecified health
issues had prevented her from being accepted for treatment with one provider. (Mar. 28,
2016 Tr. at 100.)
{¶ 17} C.R. testified that when she was released from prison (and presumably after
completing inpatient treatment) she planned to move into an apartment her sister had
obtained for her and begin a job earning $70 per day as a mover with a company owned
by a friend. Id. at 106-07. She admitted that a job moving furniture might not be ideal
since her initial opiate addiction began in part out of the use of pain killers to treat
scoliosis. (Mar. 29, 2016 Tr. at 155-56.) C.R. testified that she had good earning potential
as a college graduate (with a degree as a medical assistant). Id. at 135. However, she also
testified that she was in GED classes at the prison because, although she maintained that
she had previously obtained a GED, she said the records had been lost. Id. at 137-39. She
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No. 16AP-364
testified that she had consistent employment in fast food, warehousing, babysitting, and
cleaning. Id. at 136. She said she planned to get a bigger house for her and her kids. Id.
at 134-35. Although she acknowledged that she could not care for her children while
incarcerated and addicted to drugs, she expressed confidence that she would be able to
when she was released and that they would all "just have a blast." Id. at 147.
{¶ 18} She confirmed that her relationship with her kids was good but suggested
that some of the problems were the result of FCCS intervention. Id. at 143-49. She
admitted that the foster family that had custody of Kh., Jy., and L.R. was providing a good
home for them. Id. at 156-57. However, she said she believed that Jd. would not turn out
to be a good person if she were not allowed to have custody of him. Id. at 163.
{¶ 19} Following the hearing, the trial court granted FCCS' permanent custody
motion. (April 13, 2016 Jgmt. Entry.) C.R. now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 20} C.R. asserts two assignments of error for our review:
[1.] THE TRIAL COURT'S FINDING THAT FCCS' MOTION
FOR PERMANENT CUSTODY WAS SUPPORTED BY CLEAR
AND CONVINCING EVIDENCE WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE
[2.] THE TRIAL COURT ABUSED ITS DISCRETION BY
DENYING APPELLANT C.R.'S MOTION FOR A
CONTINUANCE
III. DISCUSSION
A. Second Assignment of Error—Whether the Trial Court Abused its
Discretion in Denying C.R. a Continuance to Permit her to be Released
from Prison and Complete her Case Plan
{¶ 21} At the outset of the hearing on granting permanent custody of C.R.'s
children to FCCS, C.R. moved for a continuance of unspecified length to permit her time
to be released from prison and complete treatment through an inpatient program.
(Mar. 28, 2016 Tr. at 7-8.) FCCS and the guardian ad litem opposed the motion on the
grounds that C.R. had already had years in which to complete her case plan and seek
treatment and had not done so. Id. at 8-10. In addition, they argued that the inpatient
program could be lengthy, might not even commence for over a month, and that the
children needed permanence. Id. The remaining parties to the case supported the
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No. 16AP-364
continuance. Id. at 10-12. The trial court denied the continuance on several grounds: the
children had been waiting a long time already, the permanent custody motion had been
pending for years, there was no clarity about how long the continuance would be (it could
have been lengthy), and the case had been delayed long enough. Id. at 12. In short, the
trial court found that the interests of the children in seeing the case concluded with
permanency outweighed C.R.'s interest in having yet another opportunity to complete her
case plan. Id. C.R. now argues that the trial court abused its discretion in reaching this
conclusion.
{¶ 22} "The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge." State v. Unger, 67 Ohio St. 2d 65, 67 (1981).
"There are no mechanical tests for deciding when a denial of a continuance is so arbitrary
as to violate due process. The answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at the time the request is
denied." Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
In evaluating a motion for a continuance, a court should note,
inter alia: [1] the length of the delay requested; [2] whether
other continuances have been requested and received; [3] the
inconvenience to litigants, witnesses, opposing counsel and
the court; [4] whether the requested delay is for legitimate
reasons or whether it is dilatory, purposeful, or contrived; [5]
whether the defendant contributed to the circumstance which
gives rise to the request for a continuance; and [6] other
relevant factors, depending on the unique facts of each case.
Unger at 67-68; see also, e.g., State v. Lauer, 10th Dist. No. 15AP-405, 2016-Ohio-505,
¶ 16. In examining the evidence before the trial court according to the factors set forth by
Unger, it is apparent that the trial court did not abuse its discretion.
{¶ 23} The delay requested by C.R. would likely have been lengthy. She essentially
sought yet another opportunity to "show the Court that she [could] be successful in []
treatment." (Mar. 28, 2016 Tr. at 8.) In order to meet that goal she would have needed to
be released from prison and then complete at least an inpatient treatment program. Her
release date may have been in late June or April depending on whether C.R.'s view of the
programs was correct or not. Id. at 89. But even by C.R.'s testimony, the inpatient
treatment (constituting a period during which she would not be allowed to have her
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No. 16AP-364
children) would have been at least eight to ten weeks and there was to be another round of
treatment after that. (Mar. 29, 2016 Tr. at 149-51.)
{¶ 24} Numerous other continuances had already occurred in the case. The
family's case had been continued 12 times, at least half of which were at the request of
C.R. (sometimes joined by other parties). (Apr. 24, 2013 Cont.; Oct. 23, 2013 Cont.;
Nov. 26, 2013 Cont.; Jan. 13, 2014 Cont.; Mar. 31, 2014 Cont.; June 16, 2014 Cont.;
Nov. 3, 2014 Cont.; Jan. 21, 2015 Cont.; Mar. 3, 2015 Cont.; Apr. 27, 2015 Cont.; June 9,
2015 Cont.; Nov. 4, 2015 Cont.)
{¶ 25} Although most parties did not oppose C.R.'s motion, the children were left
with the uncertainty of having to wait still longer for a resolution of what was to be each
child's permanent situation. The trial court recognized this as a significant concern.
(Mar. 28, 2016 Tr. at 12.) We agree that this is a legitimate basis on which the trial court
could exercise its discretion and deny C.R.'s request for continuance.
{¶ 26} C.R. unquestionably contributed to the circumstances that made the
continuance request necessary. She repeatedly failed to submit to drug screens, complete
treatment, or complete her case plan when she could have chosen to comply. (Mar. 28,
2016 Tr. at 94-97, 177-87; Mar. 29, 2016 Tr. at 91, 94-96.) She failed to abstain from drug
trafficking which led to her indictment for two felony counts of heroin trafficking.
(Mar. 28, 2016 Tr. at 85.) When she failed to complete the intervention in lieu of
conviction plan, which would have allowed her to avoid conviction and imprisonment for
her crimes (id. at 87), C.R.'s priorities became clear.
{¶ 27} The trial court did not abuse its discretion in denying the continuance.
C.R.'s second assignment of error is overruled.
B. First Assignment of Error—Whether the Trial Court Erred Granting
Permanent Custody of Jd., Jy., and Kh. to FCCS
{¶ 28} When proceeding under R.C. 2151.414(B)(1), a decision to award permanent
custody requires the trial court to take a two-step approach. First, the trial court must
find whether any of the following apply:
(a) The child is not abandoned or orphaned, has not been in
the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, or has not
been in the temporary custody of one or more public children
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No. 16AP-364
services agencies or private child placing agencies for twelve
or more months of a consecutive twenty-two-month period if,
as described in division (D)(1) of section 2151.413 of the
Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state, 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.
(d) The child has been in the temporary custody of one or
more public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-
two-month period, or the child has been in the temporary
custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an
equivalent agency in another state.
(e) The child or another child in the custody of the parent or
parents from whose custody the child has been removed has
been adjudicated an abused, neglected, or dependent child on
three separate occasions by any court in this state or another
state.
R.C. 2151.414(B)(1)(a) through (e).
{¶ 29} Once the trial court finds that one of these circumstances applies, the trial
court then must determine whether, "by clear and convincing evidence," the movant has
shown that a grant of permanent custody is in the "best interest of the child." R.C.
2151.414(B)(1). Clear and convincing evidence is that degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the facts to be established.
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. It is more than
a mere preponderance of the evidence but does not require proof beyond a reasonable
doubt. Id.
{¶ 30} In C.R. and her children's case, it is undisputed that her children were in the
custody of the agency for 12 months out of a consecutive 22-month period in accord with
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No. 16AP-364
division (B)(1)(d) of R.C. 2151.414. (Jan. 13, 2017 C.R. Brief at 7.) This shifts the analysis
to whether the trial court had before it clear and convincing evidence to determine that it
was "in the best interest of the child to grant permanent custody of the child to the agency
that filed the motion for permanent custody." R.C. 2151.414(B)(1). R.C. 2151.414(D) sets
forth relevant factors to consider in determining the best interests of the children:
(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 services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
period, or the child has been in the temporary custody of one
or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency
in another state;
(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.
R.C. 2151.414(D)(1)(a) through (e). The additional factors referenced in R.C.
2151.414(D)(1)(e) are:
(7) The parent has been convicted of or pleaded guilty to one
of [a number of offenses apparently inapplicable in this case].
(8) The parent has repeatedly withheld medical treatment or
food from the child when the parent has the means to provide
the treatment or food, and, in the case of withheld medical
treatment, the parent withheld it for a purpose other than to
treat the physical or mental illness or defect of the child by
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No. 16AP-364
spiritual means through prayer alone in accordance with the
tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm
two or more times due to alcohol or drug abuse and has
rejected treatment two or more times or refused to participate
in further treatment two or more times after a case plan
issued pursuant to section 2151.412 of the Revised Code
requiring treatment of the parent was journalized as part of a
dispositional order issued with respect to the child or an order
was issued by any other court requiring treatment of the
parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily
terminated with respect to a sibling of the child pursuant to
this section or section 2151.353 or 2151.415 of the Revised
Code, or under an existing or former law of this state, any
other state, or the United States that is substantially
equivalent to those sections, and the parent has failed to
provide clear and convincing evidence to prove that,
notwithstanding the prior termination, the parent can provide
a legally secure permanent placement and adequate care for
the health, welfare, and safety of the child.
R.C. 2151.414(E)(7) through (11). The trial court considered all of these factors in reaching
its conclusion that it was in the best interest of C.R.'s children that FCCS be awarded
permanent custody of her children.
{¶ 31} In reviewing a trial court's decision that the statutory elements are satisfied
in a permanent custody case, a trial court's determination will not be reversed unless it is
against the manifest weight of the evidence. In re Andy-Jones, 10th Dist. No. 03AP-1167,
2004-Ohio-3312, ¶ 28. " 'Judgments are not against the manifest weight of the evidence
when all material elements are supported by competent, credible evidence.' " In re
K.M., 10th Dist. No. 15AP-64, 2015-Ohio-4682, ¶ 14, quoting In re J.T., 10th Dist. No.
11AP-1056, 2012-Ohio-2818, ¶ 8.
1. Factor (D)(1)(a)—Relationship Between Children and Biological
Mother, Siblings, and Foster Parents
{¶ 32} The caseworker, Anderson, testified that the children seemed fond of their
mother and that visits with C.R. generally went well. (Mar. 29, 2016 Tr. at 62-63.)
However, Anderson testified that C.R. was challenged during visits with her children in
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No. 16AP-364
paying sufficient attention to all five children or managing them, and she often raised her
voice when trying to do so. (Mar. 28, 2016 Tr. at 188-91.) There were also long periods
(mainly due to incarceration) in which C.R. did not visit her children. Id. at 189. In
Anderson's judgment, only the eldest child, Jd., had a real relationship with C.R., owing to
the fact that the other children had spent the majority of their lives in foster care. Id. at
191-92. C.R. confirmed that her relationship with her kids was good and that her kids call
her "mom" and run to her "with open arms and open heart." (Mar. 29, 2016 Tr. at 143.)
Her testimony indicated a belief that to the extent there are problems with the
relationships they are the result of FCCS intervention. Id. at 143-49.
{¶ 33} Caseworker Anderson testified that the eldest, Jd., had been in his current
placement since January 20, 2015, when his father returned him to the custody of FCCS
shortly after receiving temporary custody. (Mar. 29, 2016 Tr. at 33-34). Anderson
testified that Jd. had an excellent relationship with his current foster family, whom he
called Momma Dee and Momma Tabs, and that they planned to adopt him in the event
that the trial court granted permanent custody to FCCS. Id. at 35. Anderson said that Jy.
and Kh. had been in their current placement since July 31, 2013 with the exception of a
brief interval in which Jy. was placed with her father. Id. at 37. Jy.'s and Kh.'s
relationship with their foster family was very good. Id. at 38. The two children were
bonded with one another and with their foster mom and dad whom they referred to as
mom and dad. Id. At the time of the hearing the other child, L.R. was also placed with
Jy.'s and Kh.'s foster family. Id. at 39. Anderson testified that the foster family wished to
adopt all three of the children if permanent custody were granted to FCCS. Id. Anderson
also testified that the foster family would be open to keeping the siblings in touch with Jd.
although he would be placed in a different household. Id. at 39-41.
{¶ 34} The trial court's discussion on this factor reflects competent, credible
evidence from the transcript and other evidence in the record. (April 13, 2016 Jgmt. Entry
at 9-12.) The trial court's findings on this factor were not against the manifest weight of
the evidence.
2. Factor (D)(1)(b)—The Wishes of the Children
{¶ 35} The trial court's decision reflects that it interviewed the children who were
capable of expressing themselves and the interviews are part of the record. (Apr. 13, 2016
Jgmt. Entry at 13.) Jd., who was almost ten at the time of the interview, told the trial
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No. 16AP-364
court judge that his first preference was to reside with his mother, C.R. (Mar. 28, 2016 Tr.
at 16.) However, if that was not possible, he stated that he wanted to live with his foster
family. Id. Kh., who was approximately four and one-half at the time of the interview,
had less of a grasp of the nature of the proceedings. However, she was clear that she
wanted to stay with her foster family "forever," which also was fostering Jy. and L.R. Id.
at 35-38.
{¶ 36} The guardian ad litem's testimony corroborated what Jd. had expressed to
the trial court in his in camera interview that he wanted to reside with C.R. but if he could
not, would like to be adopted by his foster family. (Mar. 29, 2016 Tr. at 99-100.) The
guardian ad litem likewise corroborated Kh.'s wishes, explaining that Kh. wished to stay
with her foster parents. Id. at 101-02. The guardian ad litem testified that Jy. could not
sufficiently express herself, but from what she had observed of Jy.'s behavior, she believed
that Jy. wished to stay with her foster parents. Id.
{¶ 37} The trial court's decision is based on competent and credible evidence from
the record that clearly and convincingly are not against the manifest weight of the
evidence as to this factor.
3. Factor (D)(1)(c)—The Children's Custody History
{¶ 38} From April 26, 2012 when C.R.'s children were removed from her home,
until the hearing at the end of March 2016, the children were in the custody of FCCS and
lived in a variety of placements. (FCCS Ex. 10.) The only exception to this was a period
from November 3, 2014 to January 21, 2015, when the trial court ordered that T.T. had
temporary custody of Jd. and Jy. before returning them to FCCS on January 17, 2015,
having made the self-determination he was incapable of taking care of the children.
(Nov. 3, 2014 Temporary Custody Order; Jan 21, 2015 Entry Terminating Temporary
Custody to T.T.; Jan. 21, 2015 Findings of Fact & Law.)
{¶ 39} The record shows that the trial court convincingly and clearly found from
competent and credible evidence before it that the children's history with the agency
supported a finding that it was in the children's best interest on this factor to grant the
motion for permanent custody.
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No. 16AP-364
4. Factor (D)(1)(d)—The Children's Need for Secure Placement and
Whether that Can be Achieved without Granting Custody to FCCS
{¶ 40} At the time of the hearing, Jd., Jy., and Kh. had been in the temporary
custody of FCCS (with one short break for Jd. and Jy.) since April 26, 2012, almost 4
years. (FCCS Ex. 10.) Ten-year-old Jd. had experienced 12 placements during his
involvement with FCCS constituting nearly half his life. (Mar. 29, 2016 Tr. at 33-34.) Jy.
and Kh., who are even younger than Jd., had lived in 6 and 7 placements respectively
during their time in FCCS' temporary custody. Id. at 36. For Kh., who was just 4 and one-
half, she had virtually never known anything but temporary placements. By the time of
the hearing in 2016, the record showed that C.R.'s children needed a secure placement as
their home and family environment.
{¶ 41} The trial court determined that placement with the fathers of these children
was not appropriate and those findings have not been appealed. (Apr. 13, 2016 Jgmt.
Entry at 16-17.) The analysis for this factor centers on whether C.R. could have served the
children's need for secure placement.
{¶ 42} C.R. did not ever complete both drug abuse assessment and treatment,
although she was referred throughout the course of this case to various treatment centers.
(Mar. 28, 2016 Tr. at 178-80.) During the 4 years of the case before the trial court, C.R.
completed just 21 of 230 requested random drug screens with the last one occurring on
September 12, 2014. Id. at 180-81. She gave divergent explanations for why she failed to
complete treatment or regularly submit to drug screens—blaming her failure on being
incarcerated, on being angry at FCCS' allegedly untrue insistence that she was abusing
drugs, on fear of being arrested on a warrant, on her inability to obtain transportation
(despite clear indications in the record of help available from FCCS), and even on the
treatment center itself allegedly turning her away for unspecified health concerns.
(Mar. 28, 2016 Tr. at 96-97, 100, 117-18; Mar. 29, 2016 Tr. at 151-54.) Although C.R. was
consistently employed (albeit in a variety of short-term occupations), the occupations did
not provide sufficient income for C.R. to care for her children. (Mar. 28, 2016 Tr. at 188.)
C.R. was incarcerated at the time of the hearing but made representations that her sister
had found an apartment for C.R. and her children. The trial court apparently found the
prospects of the apartment being available on both C.R.'s release from prison and her
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No. 16AP-364
completing a subsequent required course of drug treatment (part of the program for early
prison release) were not credible. Id. at 185-87.
{¶ 43} C.R. testified that once out of prison she would complete treatment and
things would change, but her testimony about how she would accomplish all necessary to
provide a secure placement for her children was inconsistent. C.R. testified that after her
release from prison, she foresaw herself getting a large home that would accommodate
her, her mom, and her five children. (Mar. 29, 2016 Tr. at 134-35.) But she also testified
that upon her release she planned to move into an "affordable apartment" and work
moving furniture for $70 per day (despite having abused pain pills prescribed for scoliosis
and later the illegal drug of heroin). (Mar. 28, 2016 Tr. at 106-07; Mar. 29, 2016 Tr. at
155-56.) C.R. also testified in response to the question, "Do you -- do you feel like you're
at a place mentally and with your addiction that you could parent your children?":
A. Where I'm at now? No. But when I get out, absolutely. I
know that I could take all five of my children home and know
that I would just have a blast with them. Going outside
playing 'cause (sic) I am ADHD as well and I have a lot of
energy and I just love my children so much.
(Mar. 29, 2016 Tr. at 147.) The FCCS caseworker testified that most of C.R.'s children
hardly knew her because they were so young when the case began and they were removed
from her home. (Mar. 28, 2016 Tr. at 191-92.) The eldest, Jd., was five at the time of the
initial removal, and Jy. and Kh. were approximately one and one-half years and six-
months, respectively when the case began. (Apr. 26, 2012 Compl. at 1.)
{¶ 44} As for other potential permanent placements, the potential pool consisted of
C.R.'s sister and mother. Yet even by C.R.'s own admission, her sister could not take the
children long-term and her mother was only willing to take (and did, in fact, take) custody
of Kv. (Mar. 28, 2016 Tr. at 119.)
{¶ 45} The evidence showed that the foster parents of Jd., Jy., and Kh. were ready
and willing to adopt them if permanent custody were awarded to FCCS and that the
children were amenable and even favorable to this. Id. at 16, 35-38; Mar. 29, 2016 Tr. at
35, 39, 128.
{¶ 46} The trial court clearly and convincingly found, based on competent and
credible evidence on this factor, that the children were in need of legally secure
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No. 16AP-364
permanent placement that could not be achieved without granting permanent custody to
FCCS. We find that the trial court's decision on this statutory factor was not against the
manifest weight of the evidence.
5. Factor (E)(7)—Convictions of Parents
{¶ 47} There was no evidence that any parent committed any of the relevant
offenses in this case. Thus, the trial court correctly accorded this factor no weight.
6. Factor (E)(8)—Withholding Food or Medical Treatment
{¶ 48} Our review of the record shows the trial court correctly determined that this
factor plays no role in this case.
7. Factor (E)(9)—Risk of Harm from Drug or Alcohol Abuse
{¶ 49} There was evidence that C.R. twice began and failed to ever finish drug
treatment as required by her case plan and as contemplated in R.C. 2151.414(E)(9).
(Mar. 28, 2016 Tr. at 94-96, 178-80.) However, no evidence was presented at the hearing
on the direct topic of whether C.R. "placed [any of her children] at substantial risk of
harm two or more times due to alcohol or drug abuse." R.C. 2151.414(E)(9).
Consequently, the trial court was correct in failing to make any finding on this factor.
8. Factor (E)(10)—Whether the Children have been Abandoned
{¶ 50} C.R. has contested this case and relatively consistently visited the children,
except during occasions in which she was hospitalized or incarcerated. (Mar. 28, 2016 Tr.
at 107-11, 189.) Hence, C.R. has not abandoned the children and the trial court was
correct in not concluding that she had.
9. Factor (E)(11)—Whether Parents have had Parental Rights
Involuntarily Terminated with Respect to a Sibling of the Children
{¶ 51} The record in this case reflects that C.R. acquiesced in her mother taking
custody of Kv. during the hearing. (Mar. 28, 2016 Tr. at 60-62.) However, the record
does not clearly show that this was an involuntary termination of rights in the manner
intended by R.C. 2151.414(E)(11). Thus, the trial court was correct to conclude that on the
record before it, this factor did not play a role.
10.Overall Weighing of the Factors and the Best Interest of the
Children
{¶ 52} The evidence showed that the relationship between C.R. and her children
(except for Jd.) was superficially good but limited in depth due to the fact that the
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No. 16AP-364
children have been in the system rather than with her for most of their lives. As for Jd.,
the oldest, he wanted to live with his mother, but he was agreeable to being adopted. The
other children's first preference (to the extent it could be expressed) was to be adopted.
The children's lengthy custody history and number and variety of placements showed a
need for permanence of legal placement. This included the trial court's consideration of
competent and credible evidence in this regard and that supported its finding that other
relatives of the children (other than grandmother who was only able to take Kv.), were
unsuitable for the children's needs. The evidence clearly and convincingly supports the
trial court's conclusion that FCCS was the only practical option for the children's secure
placement.
{¶ 53} Accordingly, we find that it was not against the manifest weight of the
evidence for the trial court to have determined that it was in the children's best interest to
be placed permanently with FCCS when considering the factor of their secure placement.
{¶ 54} Overall, the trial court discussed and considered each factor in light of the
evidence before it and did not err in its recitation on any individual factor. Nor did the
trial court err in considering and weighing the evidence before it as to each factor when it
reached the ultimate decision that it is in the best interests of the children to deny their
mother any further permanent custody of them. Accordingly, C.R.'s first assignment of
error is overruled.
IV. CONCLUSION
{¶ 55} The trial court did not err in failing to grant a continuance to C.R. to permit
her to be released from prison, attend treatment, and work her case plan given that the
case had been ongoing for 4 years, had been continued 12 times, and C.R. had already had
ample opportunity to complete her case plan and yet had barely started. The trial court's
decision to grant permanent custody of Jd., Jy., and Kh. to FCCS was clearly and
convincingly based on competent, credible evidence and not against its manifest weight.
Accordingly we overrule both of C.R.'s assignments of error and affirm the judgment of
the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.