In re T.P.

[Cite as In re T.P., 2022-Ohio-903.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: T.P. : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
:
: Case No. 21CA25
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Juvenile Division, case
no. 2202067
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 21, 2022
APPEARANCES:
For Appellee Knox Co. JFS: For Appellant Mother:
ASHLEY L. JOHNS DEVIN M. TRAINER
KNOX CO. JFS KNOX CO. PUBLIC DEFENDER
117 East High Street 110 East High Street
Mount Vernon, OH 43050 Mount Vernon, OH 43050
Knox County, Case No. 21CA25 2
Delaney, J.
{¶1} Mother L.P. appeals from the October 27, 2021 Judgment Entry of the Knox
County Court of Common Pleas, Juvenile Division granting permanent custody of her two
minor children, H.P. (“Daughter”) and T.P. (“Son”), to appellee Knox County Department
of Job and Family Services (“Agency”).
{¶2} The instant case is related to that of H.P., 5th District Knox 21CA24. The
cases are related but not consolidated.
FACTS AND PROCEDURAL HISTORY
{¶3} Mother is the biological mother of Daughter and Son. The identity of the
children’s father(s) is/are unknown. At the time of the permanent custody hearing on
September 28, 2021, Daughter was approximately 17 years old and Son was
approximately 7 years old.
{¶4} Until May 2020, Daughter and Son were in the legal custody of a family
named Keller. The Kellers do not appear in the instant case, have not had contact with
the Agency, and do not seek further custodial arrangements with the children.
{¶5} On May 4, 2020, the Agency filed an ex parte motion seeking temporary
custody of the children based upon allegations of physical abuse in the Keller home. The
trial court granted temporary custody of the children to the Agency. On May 5, 2020, the
Agency filed complaints alleging abuse, neglect, and dependency.
{¶6} The children were continued in the temporary custody of the Agency on
June 1, 2020. At an adjudicatory hearing on July 2, 2020, the trial court found the minor
children to be dependent pursuant to R.C. 2151.04(C) based upon agreement of the
parties and continued the Agency’s temporary custody. A dispositional hearing was held
Knox County, Case No. 21CA25 3
on July 29, 2020; the trial court adopted a case plan and continued the Agency’s
temporary custody. Review hearings were held on October 1, 2020, December 29, 2020,
and April 15, 2021; at each review, the trial court continued the Agency’s temporary
custody.
{¶7} On July 8, 2021, the Agency moved for permanent custody. An evidentiary
hearing was held on September 28, 2021. On October 27, 2021, the trial court filed a
judgment entry granting permanent custody of the children to the Agency.
Permanent custody motion arose from psychological evaluation of Mother
{¶8} The following evidence is adduced from the record of the permanent
custody hearing on September 28, 2021.
Mother’s interview with Dr. Robin Tener
{¶9} Dr. Robin Tener, a clinical psychologist, met with Mother in September 2021
to evaluate whether the children could be placed with her after removal from the Kellers.
At the time of this meeting, Mother was in the company of Caregiver, with whom Mother
lived at the time. Caregiver was responsible for driving Mother to and from doctor’s
appointments and supervising her general well-being. Tener opined that Mother was not
capable of taking care of herself without the close supervision of Caregiver.
{¶10} Tener perceived Mother to be very dependent on Caregiver, to the extent
that Mother did not know her own doctors or healthcare providers. Caregiver had to
provide all relevant information to Tener. Ultimately Mother’s relationship with Caregiver
ended due to a physical assault, although the roles of perpetrator and victim are not in
the record.
Knox County, Case No. 21CA25 4
{¶11} Mother could not complete all of the testing Tener required because she
was unable to understand the questions. Although Tener could read the questions to her,
Tener could not interpret or explain them for Mother. Consequently some portions of the
intellectual and cognitive testing remained incomplete. Tener testified Mother did not
have the intellectual capacity to read and understand the questions.
{¶12} Tener concluded she has “many, many concerns” about Mother’s ability to
function independently as an adult without a tremendous amount of external support.
Specifically, Tener cited Mother’s ability to make decisions, take medications, determine
her own safety, manage anger, determine the children’s needs, and understand her own
health and welfare requirements are significant deficits for Mother. Tener described
Mother as a very vulnerable person capable of being exploited.
{¶13} At the time of the initial meeting with Tener, Mother was married but had
little or no contact with Husband. Mother said Husband was not supportive of her financial
or emotional needs and failed to communicate for months at a time while he visited an
ex-wife and children in his country of origin. Mother told Tener Husband “married her for
a green card” two months after she met him and she intended to divorce him. Mother
married Husband at the instigation of Brother-in-Law, who was married to Mother’s
neighbor, Sister-in-Law. Mother described frustration with her marriage because
Husband failed to acknowledge any relationship with her. Tener also testified Mother
knew Daughter expressed a lot of anxiety regarding Mother’s relationship with Husband,
and Daughter does not want to live with Husband.
{¶14} Mother’s hope for reunification with the children in March 2021, therefore,
depended upon her plan for the children to move into the trailer with her and Caregiver.
Knox County, Case No. 21CA25 5
This was never a viable option, however, because Caregiver told Mother there was no
room in the trailer for the children. Moreover, the Agency would not approve placement
of the children in Caregiver’s home because Caregiver had her own history with
Children’s Services.
{¶15} However, when Mother’s relationship with Caregiver fell through, she
moved to Columbus with Husband, which will be addressed infra.
{¶16} Tener noted that Mother’s mental, emotional, and physical problems cannot
be resolved. Mother was born with fetal alcohol syndrome and has significant
impairments in her cognitive functions and reasoning processes. In Tener’s opinion,
Mother lacks the basic necessary skills to care for herself and her minor children, and no
programming exists that can resolve these difficulties.
Daughter’s institutionalization
{¶17} At the time of the permanent custody hearing, Daughter was
institutionalized at Fox Run Center for Children and Adolescents, and a therapist testified
about her treatment there.
{¶18} Daughter has diagnoses of major depressive disorder, ADHD, anxiety
disorder, and confirmed childhood physical abuse. She was also undergoing evaluation
for additional possible diagnoses of P.T.S.D. and childhood sexual abuse. Daughter was
admitted to the facility in June 2021 and as of September, treatment had just begun
because it took months to stabilize her behaviors. The therapist testified that Daughter
has attempted suicide many times; self-harms; has frequent suicidal ideations; refuses
school and therapy groups; and suffers from severe depression. Daughter was on
numerous restrictions in the facility to keep her safe; for example, she was observed every
Knox County, Case No. 21CA25 6
5 minutes and allowed limited clothing to prevent her from harming herself. Daughter
was expected to remain at Fox Run until at least summer 2022, and the therapist testified
it is impossible to predict what her discharge plan will look like. Daughter’s history of
trauma, self-harm, grief, and loss will continue to require intensive therapy.
{¶19} The therapist also testified about Daughter’s relationship with Mother; during
her time at Fox Run, Mother and Daughter have had one supervised phone call. The
call was “pleasant” but Mother made unfulfilled promises to Daughter, a habit of
Mother’s which characterizes her relationship with both children. The therapist said
Mother’s unfulfilled promises lead to “increased behaviors” by Daughter, and Daughter
has not asked to speak to Mother again. In therapy, Daughter has stated she is afraid of
Mother; she described living in a cluttered home with Mother and having to care for her
sibling because Mother would disappear for hours at a time.
{¶20} Ultimately, the therapist concluded, Daughter cannot function in a living
environment with Mother and such an arrangement would not be safe for Mother or the
children. Daughter needs permanency, stability, and adults who are willing and able to be
consistently engaged with her.
Son is stable in foster home
{¶21} The family’s ongoing caseworker testified about her history with the case
and each child individually.
{¶22} After removal from the Kellers, Son was ultimately placed with Foster
Mother, where he remains to this day. Son is described as stable and well-adjusted; he
does well in the foster home and has a good relationship with other foster children in the
home. Son is in therapy to maintain his stability and does have supervised visitation with
Knox County, Case No. 21CA25 7
Mother. Mother is appropriate with Son although their relationship is more like friends
than parent and child; for example, Mother frequently brought Son large amounts of candy
until she recently understood he needs to eat more healthfully. Again, Mother makes
many promises to Son that are not fulfilled.
{¶23} After removal from the Kellers and before her placement at Fox Run,
Daughter had a chaotic history of placements. She was hospitalized several times for
suicidal ideations. She was initially placed with the same Foster Mother as Son, but
Foster Mother was not equipped to handle Daughter’s special needs. Daughter had
several behavioral placements and acted out severely, running away, self-harming, and
becoming violent with staff. She was moved to a group home; in that setting, she was
aggressive with residents and staff, was hospitalized at least four times, and ran away
twice. During one of the runaway periods, Daughter was sexually assaulted. Ultimately
Daughter was institutionalized at Fox Run and for therapeutic reasons, she has no
visitation with Mother.
{¶24} Mother has been compliant with the Agency and is “easy to work with.” The
caseworker noted Mother works on her mental health, has obtained stable housing, and
is “appropriate” with the children, but she has not been ordered to complete a parenting
class because she could not understand the class. The caseworker has visited Mother’s
residence in Columbus with Husband, which is very clean and stocked with Mother’s
medications and groceries.
{¶25} There are no appropriate kinship placements for the children. Although
Mother requested a background check for Husband, the caseworker could not reach
Husband and his green card was due to expire soon. Husband spends significant
Knox County, Case No. 21CA25 8
amounts of time outside the country and has little or no contact with Mother during those
periods. Husband has had no contact at all with Daughter and has had only phone
contact with Son.
{¶26} The caseworker testified that the psychological evaluation of Mother by Dr.
Tener is the basis for the permanent custody motion. Despite Mother’s good relationship
with the Agency, the Agency must pursue permanent custody of the children because
Mother is not capable of meeting their needs.
Testimony of Mother, Husband, and Sister-in-Law
{¶27} Mother testified on her own behalf and clearly loves her children. She said
she is learning to take better care of herself and described a positive living environment
with Husband and Sister-in-Law. Mother acknowledged she once believed Husband
married her for a green card but said he is now supportive. She acknowledged she is still
learning how to address her children’s needs.
{¶28} Husband testified he does not speak English well and his green card is
expiring soon, although he has applied for a new one. He works for Door Dash and a
moving company. He doesn’t understand the question when asked if he has a criminal
record. He has children of his own, including a son who lives with him in the Columbus
residence, which Husband owns with his cousin.
{¶29} Sister-in-Law is in the process of divorcing Husband’s brother, whose
whereabouts are unknown. She has a 14-year-old child but gave legal custody of the
child to a relative. She met Mother when they were neighbors and introduced Mother to
Husband. Sister-in-Law does not know Mother’s children or anything about their needs.
Knox County, Case No. 21CA25 9
Guardian ad litem recommends permanent custody
{¶30} Finally, the trial court admitted the written report of the guardian ad litem
(GAL) and asked the GAL for his opinion on the record. The GAL recommended that the
trial court grant the motion for permanent custody and noted the children have not been
in Mother’s physical custody for over 5 years. The GAL is sympathetic to Mother and her
efforts, but Mother’s deficiencies cannot be remedied and the needs of the children are
too great. The GAL further noted the children are not bonded to each other and do not
want to live together in the same environment; Daughter has been violent toward Son.
Neither Daughter nor Son have asked to live with Mother.
{¶31} The trial court took the matter under advisement and on October 27, 2021,
issued a Judgment Entry granting permanent custody of the children to the Agency.
{¶32} Mother now appeals from the trial court’s Judgment Entry.
{¶33} Mother raises one assignment of error:
ASSIGNMENT OF ERROR
{¶34} “THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS
OF THE CHILDREN WOULD BE SERVED BY GRANTING PERMANENT CUSTODY
WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
ANALYSIS
{¶35} In her sole assignment of error, Mother argues the trial court’s decision
granting permanent custody of the minor children to the Agency is against the manifest
weight and sufficiency of the evidence. We disagree.
{¶36} R.C. 2151.414(B)(1) states permanent custody may be granted to a public
or private agency if the trial court determines by clear and convincing evidence at a
Knox County, Case No. 21CA25 10
hearing held pursuant to division (A) of R.C. 2151.414 that it is in the best interest of the
child and any of the following apply:
(a) The child is not abandoned or orphaned * * * and the child
cannot be placed with either of the child's parents within a
reasonable time or should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the
child who are able to take permanent custody.
(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 * * *
(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.
{¶37} R.C. 2151.414(B) provides a two-pronged analysis the trial court is required
to apply when ruling on a motion for permanent custody. In practice, the trial court will
determine whether one of the four circumstances delineated in R.C. 2151.414(B)(1)(a)
through (d) is present before proceeding to a determination regarding the best interest of
the child.
{¶38} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear
Knox County, Case No. 21CA25 11
and convincing evidence” as “[t]he measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985). In reviewing whether the trial court based its
decision upon clear and convincing evidence, “a reviewing court will examine the record
to determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990);
See also, C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
If the trial court's judgment is “supported by some competent, credible evidence going to
all the essential elements of the case,” a reviewing court may not reverse that judgment.
Schiebel, 55 Ohio St.3d at 74.
{¶39} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984): The
underlying rationale of giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony. Moreover, deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evident in the
Knox County, Case No. 21CA25 12
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); see, also, In re: Christian,
4th Dist. Athens No. 04CA10, 2004-Ohio-3146; In re: C.W., 2nd Dist. Montgomery No.
20140, 2004-Ohio-2040.
R.C. 2151.414(B)(1)(d)
{¶40} In the instant case, the trial court concluded that R.C. 2151.414(B)(1)(d)
applied to the children, to wit, they were in the temporary custody of the Agency for twelve
or more months of a consecutive twenty-two-month period. The children were placed in
the temporary custody of the Agency on May 4, 2020, over sixteen months before the
hearing took place. We find the trial court's judgment on this point is supported by
competent, credible evidence. Schiebel, supra, 55 Ohio St.3d at 74. Mother does not
dispute this fact.
{¶41} This Court has adopted the position that proof of temporary custody with an
agency for twelve or more months of a consecutive twenty-two-month period alone is
sufficient to award permanent custody. Matter of O.M., 5th Dist. Coshocton No.
20CA0017, 2021-Ohio-1310, 2021 WL 1424200, ¶ 33 citing In the Matter of A.S., V.S.,
and Z.S., 5th Dist. Delaware No. 13 CAF 050040, 2013-Ohio-4018. Therefore, a finding
that grounds existed for permanent custody cannot be against the manifest weight of the
evidence. Matter of L.G., 5th Dist. Stark No. 2020-CA-00139, 2021-Ohio-743, ¶ 36.
Reasonable Period of Time
{¶42} Having determined the children were in the temporary custody of the
Agency for over twelve months of a consecutive twenty-two-month period, the trial court
was not required to make findings as to a reasonable period of time under R.C.
Knox County, Case No. 21CA25 13
2151.414(E). Nevertheless, the trial court additionally found the children could not be
placed with Mother within a reasonable period of time and should not be placed with
Mother. See, In re DA.J., 8th Dist. Cuyahoga No. 110393, 2012-Ohio-3102, ¶ 61.
{¶43} R.C. 2151.414(E) sets out the factors relevant to determining whether a
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. The section states in pertinent part the following:
(E) In determining at a hearing held pursuant to division (A) of
this section or for the purposes of division (A)(4) of section 2151.353
of the Revised Code whether a child cannot be placed with either
parent within a reasonable period of time or should not be placed
with the parents, the court shall consider all relevant evidence. If the
court determines, by clear and convincing evidence, at a hearing
held pursuant to division (A) of this section or for the purposes of
division (A)(4) of section 2151.353 of the Revised Code that one or
more of the following exist as to each of the child's parents, the court
shall enter a finding that the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child's home. In
Knox County, Case No. 21CA25 14
determining whether the parents have substantially remedied those
conditions, the court shall consider parental utilization of medical,
psychiatric, psychological, and other social and rehabilitative
services and material resources that were made available to the
parents for the purpose of changing parental conduct to allow them
to resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness,
intellectual disability, physical disability, or chemical dependency of
the parent that is so severe that it makes the parent unable to provide
an adequate permanent home for the child at the present time and,
as anticipated, within one year after the court holds the hearing
pursuant to division (A) of this section or for the purposes of division
(A)(4) of section 2151.353 of the Revised Code;
* * **.
(16) Any other factor the court considers relevant.
{¶44} A trial court may base its decision that a child cannot be placed with either
parent within a reasonable time, or should not be placed with either parent, upon the
existence of any one of the R.C. 2151.414(E) factors. The existence of one factor alone
will support a finding that the child cannot be placed with either parent within a reasonable
time or should not be placed with either parent. See, e.g., In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 50; In re William S., 75 Ohio St.3d 95, 99, 661 N.E.2d
738 (1996).
Knox County, Case No. 21CA25 15
{¶45} In the instant case, the trial court did not explicitly cite to a single factor in
R.C. 2151.414(E). However, the detailed findings in the October 27, 2021 judgment entry
and the entire record in this matter make it apparent the trial court relied on several of the
factors in R.C. 2151.414(E), including R.C. 2151.414(E)(1), failure to remedy conditions
and R.C. 2151.414(E)(2), chronic mental illness or intellectual disability. See, In re B.W.,
5th Dist. Tuscarawas No. 2016 AP 09 0045, 2017-Ohio-605, ¶ 39, appeal not allowed,
149 Ohio St.3d 1409. The trial court noted Mother’s significant cognitive deficits and their
effect on her ability to understand her own needs and those of her children. No
programming is available to sufficiently remedy Mother’s organic mental and emotional
issues, which include a traumatic brain injury, depressive disorder, impulse control issues,
ADHD, and possible borderline personality disorder.
Best Interests
{¶46} Mother’s sole assignment of error contends that the trial court’s analysis of
the best interests of the children is against the manifest weight and sufficiency of the
evidence.
{¶47} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interest of a child:
(D)(1) In determining the best interest of a child at a hearing
held pursuant to division (A) of this section or for the purposes of
division (A)(4) or (5) of section 2151.353 or division (C) of section
2151.415 of the Revised Code, the court shall consider all relevant
factors, including, but not limited to, the following:
Knox County, Case No. 21CA25 16
(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 * *
*;
(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.
{¶48} Both the caseworker and the GAL testified it would be in the children’s best
interests to be placed in the permanent custody of the Agency. Neither child has
expressed a desire to live with Mother, and Daughter strongly does not want to live with
Mother, especially if Mother is living with Husband. The GAL recommends that Daughter
and Son should not live together in the same environment because Daughter can be a
danger to Son. Both children have achieved a degree of stability in their current
Knox County, Case No. 21CA25 17
placements; the record establishes that bringing them into Mother’s environment could
be catastrophic for all three.
{¶49} Mother contends, though, that the case plan should have been extended
and left open for the purpose of establishing legal custody of the children to Husband
and/or Sister-in-Law. As appellee points out, neither of those people filed motions for
legal custody. Both of these people testified at the hearing and it is not evident either
wants custody of the children or understands the needs of the children.
{¶50} Moreover, as demonstrated by the tragic record of this case, Mother herself
does not have the ability to care for the children’s unique needs, and both children are
presently in appropriate, safe placements where their needs are being met. Husband
claimed he cannot understand English to the extent that he could not tell the trial court
whether he wants or accepts custody of the children, or whether he has any criminal
record. He is absent from Mother’s life for long periods of time. Mother’s argument
ignores the fact that as of the hearing date, Husband’s green card was about to expire
and his continued residency is questionable at best.
{¶51} Sister-in-Law admittedly orchestrated Mother’s marriage to Husband and
was unaware of the special needs of Mother’s children. Sister-in-Law voluntarily
relinquished custody of her own child to a relative. She did not demonstrate to the trial
court that she is in any position to help Mother appropriately care for her own needs or
those of the children.
{¶52} Meanwhile, the children's needs are being addressed in their respective
placements. The children deserve permanency and Mother is not presently in a position
to provide for their needs. Along with the trial court, GAL, therapists, and doctors who
Knox County, Case No. 21CA25 18
have evaluated Mother, we recognize her love for her children and her best attempts to
create an environment in which she can reunite with the children, but the organic issues
are too significant to be remedied.
{¶53} The trial court's finding that the best interests of the children are served by
a grant of permanent custody to the Agency is not against the manifest weight of the
evidence and is supported by sufficient evidence.
{¶54} Mother’s sole assignment of error is overruled.
CONCLUSION
{¶55} Mother’s sole assignment of error is overruled and the judgment of the Knox
County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J.,
Wise, Earle, P.J. and
Wise, John, J., concur.