In re A.C.

2014 Ohio 4402

Opinion

[Cite as In re A.C., 2014-Ohio-4402.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: A.C. : : Appellate Case No. 26211 : : Trial Court Case No. 2012-5146 : : (Civil Appeal from Common : Pleas Court, Juvenile Division) :

........... OPINION Rendered on the 3rd day of October, 2014. ...........

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Appellant/Father

MELISSA M. REPLOGLE, Atty. Reg. No. 0084215, 2312 Far Hills Avenue, Suite 145, Dayton, Ohio 45419 Attorney for Appellee/Mother

JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 N. Ludlow Street, Suite 386, Dayton, Ohio 45402 Guardian Ad Litem

............. HALL, J.

{¶ 1} J.C. (“Father”) appeals from the trial court’s judgment entry awarding

Montgomery County Children Services (MCCS) permanent custody of his child, A.C.

{¶ 2} Father advances two assignments of error in this expedited appeal. First, he

contends the trial court erred in granting MCCS permanent custody where the agency failed to

prove by clear and convincing evidence that such a disposition was in the child’s best interest.

Second, he claims the grant of permanent custody was erroneous because MCCS failed to prove

by clear and convincing evidence that the child could not be placed with him within a reasonable

time.

{¶ 3} The record reflects that A.C. was born in January 2012. At the time of birth,

Father was residing with R.J. (“Mother”), the child’s mother. In the proceedings below, Father

testified that he was A.C.’s primary care-giver for about six months after birth. In the first half of

2012, Father and Mother’s relationship deteriorated. Father moved to New Paris, Ohio. For a

short time, Mother and A.C. rejoined him there. According to Father, Mother and the child then

moved out.

{¶ 4} In July 2012, MCCS filed a dependency complaint, alleging that A.C. lacked

adequate parental care and that the child’s condition or environment warranted intervention.1

More specifically, the complaint alleged, among other things, that both parents had

substance-abuse problems, that Father had domestic-violence issues, that both parents were

unemployed, and that Mother had periods of homelessness and unstable housing. The agency

became involved upon learning that Mother had left A.C. in the care of a third party and had not

1 The complaint also addressed another of Mother’s children who has a different father. That child is not at issue here. 3

returned or been heard from for eight days. (Tr. at 44). After an order of interim temporary

custody to MCCS, A.C. was adjudicated dependent. MCCS then obtained full temporary custody

in October 2012. While in the agency’s care, A.C. resided in a foster home, where she remained

throughout the proceedings below.

{¶ 5} In May 2013, MCCS moved for permanent custody, arguing that Mother had not

followed through with her case plan and that she had continued to test positive for amphetamines,

benzodiazepines, cocaine, and opiates. As for Father, MCCS asserted that he had maintained

little contact with the agency or with A.C. The matter proceeded to an August 2013 hearing on

the permanent-custody issue and other motions.2 Based on the evidence presented, a magistrate

awarded MCCS permanent custody of A.C. Father timely objected. On April 9, 2014, the trial

court filed a decision and judgment entry in which it independently reviewed the record, made its

own findings, addressed and overruled all objections, and adopted the magistrate’s decision.

(Doc. #4). This timely appeal by Father followed.3

{¶ 6} The standards governing permanent-custody determinations are as follows:

R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The

statute requires the court to find, by clear and convincing evidence, that: (1)

granting permanent custody of the child to the agency is in the best interest of the

child; and (2) either the child (a) cannot be placed with either parent within a

2 The disposition of one of Mother’s other children with a different father also was addressed at the hearing. That issue is not before us. 3 Mother has not challenged the permanent-custody decision and has not participated in this appeal. 4

reasonable period of time or should not be placed with either parent if any one of

the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and

no relatives are able to take permanent custody of the child; or (d) has been in the

temporary custody of one or more public or private children services agencies for

twelve or more months of a consecutive twenty-two month period. * * *

R.C. 2151.414(D) directs the trial court to consider all relevant factors

when determining the best interest of the child, including but not limited to: (1)

the interaction and interrelationship of the child with the child's parents, relatives,

foster parents and any other person who may significantly affect the child; (2) the

wishes of the child; (3) 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; (4) 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; and (5) whether any of the factors in

R.C. 2151.414(E)(7) through (11) are applicable.

In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14–15. {¶ 7 } Here the trial

court made the findings required to award MCCS permanent custody. Specifically, it found by

clear and convincing evidence that A.C. could not be placed with either parent within a

reasonable time and that an award of permanent custody to the agency was in the child’s best

interest. Although Father challenges both determinations, we find clear and convincing evidence

to support them. [Cite as In re A.C., 2014-Ohio-4402.] {¶ 8} The trial court found that A.C. could not be placed with either parent within a

reasonable time pursuant to R.C. 2151.414(E)(1), which provides:

(E) In determining * * * whether a child cannot be placed with either

parent within a reasonable period of time * * *, the court shall consider all

relevant evidence. If the court determines, by clear and convincing evidence, at a

hearing * * * 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 * * *:

(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 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.

R.C. 2151.414(E)(1).

{¶ 9} Here the trial court determined that both parents had made inadequate progress

on their case-plan objectives, despite having opportunities to do so, and that A.C. could not be

placed with them within a reasonable time. During the hearing below, MCCS caseworker Paula

Long identified Father’s case-plan objectives as (1) completing substance-abuse treatment and 6

following recommendations, (2) participating in a batterer’s intervention group, (3) participating

in parenting education, (4) complying with the terms of probation, (5) signing necessary releases,

and (6) maintaining income and housing. (Tr. at 56).

{¶ 10} Long testified that Father was referred for substance-abuse treatment because of

drug and alcohol use and his three OVI offenses. (Id.). To Long’s knowledge, Father had failed to

follow through on a referral for a substance-abuse assessment. (Id.). Between September 2012

and May 2013, Father also had failed to have contact with her despite her scheduling home visits

and visits for him with A.C. (Id. at 57). Long mailed him referrals and left phone messages, but

very seldom got any response. (Id. at 65-66). In May or June 2013, Father finally contacted her

and informed her he was about to be sent to the River City Correctional facility. (Id.).

{¶ 11} With regard to the domestic-battery issue, Long stated that Father was on

probation for felony domestic violence and that he had failed to follow through on a referral to a

batterer’s-intervention program.4 (Id.). Father also had failed to follow through with a referral for

parenting classes. (Id. at 57-58). In addition, Father had visited A.C. only one time in the

roughly thirteen months or so that MCCS had been involved in the case. (Id. at 57-58, 71). Long

testified: “He missed two visits in a row, and, well, he’s never come. I mean, he just—he didn’t

come to visit at all.” (Id. at 65). According to Long, Father had attributed his lack of visits to his

heavy use of alcohol. (Id. at 71, 85).

{¶ 12} With regard to income, Long testified that Father had reported working a

construction job the prior summer before being laid off. To her knowledge, he had no income at

4 The record reflects that Father had been convicted of third-degree felony domestic violence in 2011. (Tr. at 134). That offense was his fourth domestic-violence conviction. (Id. at 140-141). 7

the time of the hearing. (Id. at 58-59).

{¶ 13} Finally, with regard to housing, Long noted that Father was residing at the River

City Correctional facility, where a substance-abuse treatment program was offered. (Id. at 59). He

was sent there in lieu of a ninety-day jail sentence in Preble County for a third OVI offense that

occurred in June 2013 and/or for a community control violation on his 2011 felony

domestic-violence conviction. (Id. at 31, 131, 134-135, 139). According to Long, Father planned

to live with his grandmother upon his release from the River City facility. Long deemed

grandmother’s house “appropriate.” (Id. at 58).

{¶ 14} The record reflects that Father entered the River City facility in late June 2013

and that his stay was anticipated to be up to six months. (Id. at 32-33). The batterer’s intervention

program that was part of Father’s case plan was not available at River City. Given his failure to

follow up on a referral prior to being sent to River City, he would have to wait until his release to

start it. (Id. at 86).

{¶ 15} When asked why she believed Father could not be reunited with A.C. within a

reasonable time, Long responded: “He just began treatment. I’m not sure how long it’s going to

take for him to complete the treatment. It is a voluntary program. He could leave. He’s not had a

relationship with [A.C.]. He’s only visited with her once. And then, again, he’s not completed his

case plan objectives.” (Id. at 81).

{¶ 16} A.C.’s guardian ad litem, attorney James Armstrong, also testified at the

permanent-custody hearing. Armstrong stated that he met with Father once when the case

was opened. (Id. at 113). He described later making efforts to reach Father and leaving

numerous messages. (Id.) He eventually located Father at the Preble County jail shortly 8

before the transfer to the River City facility. (Id. at 114). When asked why he believed

Father could not be reunited with A.C. within a reasonable time and why an extension of

temporary custody should not be ordered, Armstrong explained:

Well, [Father] is in his program now. The information I had was that it

was a voluntary program. I—in light of his appearance here in jail dress, I’m

not sure it’s a voluntary program, because I would think that he could have

simply showed them his paperwork and been permitted to come without being

conveyed by the police.

But it’s mainly his lack of ongoing substance abuse issues, including

the OVI, his third OVI, from a few months ago, and primarily his lack of

engagement with [A.C.].

He’s had one visit and [A.C.] is 19 months old, and she has—she’s

pretty much assimilated into the foster family. They have young children in

the home. I mean, that’s—that’s basically become her family at this point in

***

[Permanent custody] was my recommendation, and—and just to say,

part of that also is that July was the—was the [expiration] of the temporary

custody, so an extension would take us through sometime in January. So if

[Father] does complete the program, as Ms. Long indicated, he’s going to

come out of the program; he still has to do the domestic violence and still has

to—has to demonstrate some period of sobriety. 9

I believe his second OVI was in 2008, so that was five years ago, and

he’s still continuing to engage in the same type of, you know, behaviors,

which indicates that it’s longstanding, and that usually indicates it takes a

longer period of time for recovery.

And then, of course, he would have to come out and try to develop a

relationship with [A.C.].

And so we’re talking—I mean, there’s not going to be any possibility

of reunification with [Father] during the period of first extension. The only

possibility would be the—at the end of the second extension, and that would

be—you know, that would be somewhat questionable even at that point.

(Tr. at 115-117).

{¶ 17} In our view, the record supports a finding that Father continuously and

repeatedly failed to make substantial progress on his case plan despite reasonable and diligent

efforts by MCCS to assist him. The trial court did not err in finding by clear and convincing

evidence that A.C. could not be reunited with him within a reasonable time. In opposition to

this conclusion, Father opines that he could have completed “most” of his case-plan

objectives by the time a first extension of temporary custody would have expired, if one had

been granted. (Appellant’s brief at 5-6).5 He also argues that he had a “bond” with A.C. and

that his one visit went well. (Id.).

5 Father claims he actually did complete the case-plan objectives after the permanent-custody hearing, that he now has been released from the River City facility, that he is gainfully employed, and that he has weekly visits with A.C. (Appellant’s brief at 6). But these alleged post-judgment facts are not in evidence. The question before us is whether the evidence before the trial court supports its judgment, not whether Father may have taken positive steps after the trial court’s decision. 10

{¶ 18} We note, however, that MCCS was not required to seek an extension of

temporary custody. Under R.C. 2151.415(A), the agency was entitled to move for permanent

custody rather than to seek an extension.6 Given the agency’s decision to seek permanent

custody, the relevant question is whether clear and convincing evidence supports the trial

court’s finding that A.C. could not be returned to Father within a reasonable time. We believe

that it does. Father was unemployed at the time of the custody hearing and residing in a

residential treatment facility in lieu of a jail sentence imposed in connection with his most

recent OVI offense. Father was anticipating a stay of at least several more months. At the

time of the hearing, he had not completed various aspects of his case plan and had shown

little initiative in following up with his caseworker or with referrals to assist him. He also had

maintained almost no contact with his child for more than a year.

{¶ 19} As for Father’s argument about his bond with A.C. and his positive visit,

those facts relate more to the best-interest issue. In any event, the record reflects that Father

saw his child—who was about six months old when MCCS became involved and about

nineteen months old at the time of the hearing—just once in roughly thirteen months.

Although he blamed a lack of transportation, caseworker Long testified that he had attributed

his lack of visits to heavy drinking. We note too that Father had transportation available when

he committed his third OVI offense during the pendency of this case. In short, nothing in

Father’s argument persuades us the trial court erred in finding that A.C. could not be placed

with him within a reasonable time.

6 We note too that an extension of temporary custody is not warranted unless “there has been significant progress on the case plan of the child” and “there is reasonable cause to believe that the child will be reunified with one of the parents or otherwise permanently placed within the period of extension.” R.C. 2151.415(D)(1). 11

{¶ 20} The record also supports the trial court’s finding that an award of permanent

custody to MCCS was in the child’s best interest. On this issue, Father notes that “visitation”

was not a formal part of his case-plan objectives. He also points out that he became

incarcerated on the most recent OVI offense in June 2013 and could not visit thereafter. He

attributes his lack of prior visitation to “transportation issues.” Father additionally argues that

he was a “daily part” of his child’s life for the first six months. Finally, he stresses that his

one visit with the child went well.

{¶ 21} In finding that A.C.’s best interest was served by awarding permanent

custody to MCCS, the trial court properly considered the statutory best-interest factors. (Doc.

#4 at 7-8). With regard to the child’s interaction and interrelationship with others and her

custodial history, the trial court noted that A.C. had been in the same foster placement since

July 2012. The foster family included one of A.C.’s siblings and three other children. A.C.

was bonded with her foster parents, who desired to adopt. (Tr. at 75-76, 79). As for Father,

the trial court noted that he had attended only one visitation session. (Id. at 71). The trial

court also found a need for A.C. to obtain a legally secure placement, which it determined

could not be done without an award of permanent custody to MCCS. On this issue, the trial

court noted that Father had not satisfactorily addressed his substance abuse and domestic

violence issues at the time of the hearing. The trial court also noted the absence of any other

relatives who were willing and able to care for A.C. As a result, the trial court agreed with the

guardian ad litem’s assessment that an award of permanent custody was in the child’s best

interest.

{¶ 22} Upon review, we see no basis for reversing the trial court’s best-interest 12

determination, which is supported by the record. As for Father’s arguments, the fact that

“visitation” was not identified as a formal case-plan objective does not mean the trial court

could not consider his lack of visitation when considering A.C.’s best interest. Although

Father became incarcerated in June 2013, we note that A.C. went into MCCS’s care in the

summer of 2012. Thus, Father’s incarceration fails to explain his lack of visits for most of the

time at issue. The trial court also was free to disbelieve Father’s claim that a lack of

transportation prevented him from visiting. As noted above, caseworker Long testified that

Father had attributed his lack of visits to heavy drinking, not transportation issues. Moreover,

the fact that Father committed an OVI offense during the pendency of this case suggests he

did have some transportation. Finally, the fact that Father may have been the primary

care-giver for the first six months of A.C.’s life does not demonstrate error in the trial court’s

best-interest finding. As noted above, Father had seen the child only once since that time.

{¶ 23} Based on the reasoning set forth above, we overrule Father’s assignments of

error and affirm the judgment of the Montgomery County Common Pleas Court, Juvenile

Division.

.............

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

April F. Campbell Lucas W. Wilder 13

Melissa M. Replogle James S. Armstrong Hon. Anthony Capizzi