In re A.M.L.

2013 Ohio 2277

• Court: Ohio Court of Appeals
• Decided: June 3, 2013
• Docket: CA2013-01-010
• Status: Published

Opinion

[Cite as In re A.M.L., 2013-Ohio-2277.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE: :

A.M.L. : CASE NO. CA2013-01-010

: OPINION 6/3/2013 :

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2011-0109

Fran Sweeney, 7723 Tylers Place Boulevard, #129, West Chester, Ohio 45069-4684, Guardian Ad Litem

Amy R. Ashcraft, 240 East State Street, Trenton, Ohio 45067, for appellant

Michael T. Gmoser, Butler County Prosecuting Attorney, Nicole Salinas, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

M. POWELL, J.

{¶ 1} Appellant, C.L. (Mother), appeals a decision of the Butler County Court of

Common Pleas, Juvenile Division, granting permanent custody of her daughter A.M.L. to the

Butler County Department of Jobs and Family Services (the Agency).

{¶ 2} Mother was 16 years old when her daughter was born in February 2009. In

February 2011, both Mother and her own mother (Grandmother) were drug tested while in Butler CA2013-01-010

the juvenile court for a hearing on Mother's truancy charge and Grandmother's charge of

contributing to the delinquency of a minor. Mother tested positive for marijuana;

Grandmother tested positive for benzodiazepines.

{¶ 3} On March 3, 2011, the police and a life squad were dispatched to Mother's

school: Mother "was passed out" in the classroom after taking a non-prescribed Xanax. That

same day, following a home visit by the Agency to Mother's residence, A.M.L. was removed

by the police after all three adults in the home (Grandmother, the child's maternal great

grandmother (Great Grandmother), and the latter's boyfriend) appeared to be under the

influence as their eyes were bloodshot and their speech was slurred. None of the adults

knew of Mother's whereabouts. A.M.L. was subsequently placed with a foster family. She

has lived with the foster family since her March 2011 removal.

{¶ 4} On March 4, 2011, the Agency filed a complaint alleging that two-year old

A.M.L. was neglected and dependent. On March 25, 2011, the juvenile court adjudicated

A.M.L. dependent (the Agency withdrew its neglect complaint) and awarded temporary

custody to the Agency. A case plan was implemented to reunify Mother with her daughter.

The case plan required Mother to complete a Substance Abuse Mental Illness assessment

and follow all recommendations, obtain and maintain stable housing and income, and

participate in a parenting program.

{¶ 5} On March 26, 2012, the Agency moved for permanent custody of A.M.L. A

hearing on the motion revealed that during the 18-month period between the child's removal

and the permanent custody hearing, Mother (1) tested positive for various drugs on

numerous occasions, (2) was arrested and incarcerated several times, (3) was inconsistent in

visiting her daughter, (4) completed a substance abuse assessment but subsequently

refused to participate in, and failed to complete, any treatment program, and (5) failed to

complete any parenting program. While Mother was finally living independently in her own -2- Butler CA2013-01-010

apartment, she was still unemployed. In her post-hearing report, the child's guardian ad litem

(GAL) recommended that permanent custody be granted to the Agency.

{¶ 6} By decision filed on November 6, 2012, the magistrate found by clear and

convincing evidence that A.M.L. had been in the temporary custody of the Agency for 12 or

more months of a consecutive 22-month period, and that it was in the best interest of A.M.L.

to grant permanent custody to the Agency. Mother filed objections to the magistrate's

decision. On January 14, 2013, the juvenile court overruled the objections and affirmed the

magistrate's decision.

{¶ 7} Mother appeals, raising two assignments of error. For ease of discussion, the

two assignments of error will be addressed together.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

GRANTING THE BCCS'S MOTION FOR PERMANENT CUSTODY.

{¶ 10} Assignment of Error No. 2:

{¶ 11} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY

GRANTING THE STATE'S MOTION FOR PERMANENT CUSTODY.

{¶ 12} Mother argues that the juvenile court's decision granting permanent custody to

the Agency was not in A.M.L.'s best interest and that such finding was against the manifest

weight of the evidence.

{¶ 13} "Before a natural parent's constitutionally protected liberty interest in the care

and custody of her child may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards have been met." In re E.P., 12th Dist. Nos.

CA2011-07-126 and CA2011-07-129, 2011-Ohio-6225, ¶ 14, citing Santosky v. Kramer, 455

U.S. 745, 102 S.Ct. 1388 (1982). An appellate court's review of a juvenile court's decision

regarding permanent custody is limited to whether sufficient credible evidence exists to -3- Butler CA2013-01-010

support the juvenile court's determination. In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-

6892, ¶ 16 (7th Dist.).

{¶ 14} Pursuant to R.C. 2151.414(B)(1), a juvenile court must apply a two-part test in

determining whether to terminate parental rights and award permanent custody to a children

services agency. First, the court must find that the grant of permanent custody to the agency

is in the best interest of the child, utilizing, in part, the factors set forth in R.C. 2151.414(D).

{¶ 15} Second, the court must find that any of the following apply: the child is

abandoned; the child is orphaned; the child has been in the temporary custody of the agency

for at least 12 months of a consecutive 22-month period; or, where the preceding factors do

not apply, the child cannot be placed with either parent within a reasonable time or should

not be placed with either parent. R.C. 2151.414(B)(1)(a), (b), (c), and (d); In re E.B., 12th

Dist. Nos. CA2009-10-139 and CA2009-11-146, 2010-Ohio-1122, ¶ 22. Only one of those

findings must be met for the second prong of the permanent custody test to be satisfied. In

re T.D., 12th Dist. No. CA2009-01-002, 2009-Ohio-4680, ¶ 15.

{¶ 16} In the case at bar, the juvenile court found A.M.L. had been in the temporary

custody of the Agency for more than 12 months of a consecutive 22-month period as of the

date the Agency filed its permanent custody motion. Mother does not dispute this finding.

The record contains competent credible evidence supporting this finding. The second prong

of the permanent custody test is therefore satisfied.

{¶ 17} Mother, however, disputes the juvenile court's finding that granting permanent

custody of A.M.L. to the Agency was in the child's best interest. Specifically, Mother asserts

that given her completion of a substance abuse assessment, the fact she was about to start

the Adult Drug Court program, her bond with her daughter, and the magistrate's recognition

(in Mother's words) that "Mother could possibly achieve the necessary traits and skills to

provide permanency to the child," the juvenile court erred in granting permanent custody to -4- Butler CA2013-01-010

the Agency.1

{¶ 18} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a

permanent custody hearing, the juvenile court must consider all relevant factors, including,

but not limited to: (a) the interaction and interrelationship of the child with the child's parents,

siblings, relatives, foster caregivers and out-of-town 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; (c) the custodial history of the child, including

whether the child has been in the temporary custody of a children services agency for 12 or

more months of a consecutive 22-month period; (d) the child's need for a legally secured

permanent placement and whether that type of placement can be achieved without a grant of

permanent custody to the agency; and (e) whether any of the factors in R.C. 2151.414(E)(7)

to (11) apply in relation to the parents and child.

{¶ 19} With regard to R.C. 2151.414(D)(1)(a), the juvenile court found that A.M.L. was

two years old when she was removed from Mother's home and placed in foster care, and that

she has been living with the same foster family for nearly 18 months. The court also found

that A.M.L. is bonded with the foster family and doing well in their care. The foster mother

testified that A.M.L. (1) is very comfortable in their home, (2) is bonded to the foster family,

and especially to their nine-year-old son, (3) never mentions Mother at home, and (4) is not

affected when a visit with Mother is cancelled. Following visitation with Mother, A.M.L.

"transitions right back into the [foster] home fine." The foster mother indicated her family's

desire to adopt A.M.L. if she was placed in the permanent custody of the Agency.

{¶ 20} Before A.M.L. was removed from Mother's home, both lived at various times

1. In his decision, the magistrate stated: "It might theoretically be possible for mother to address her drug dependency, learn appropriate parenting skills, obtain stable housing and income in order to provide for [A.M.L.]. However, mother has not demonstrated her interest [in] taking advantage of available services to address her needs and become an effective parent. Based upon mother's track record in this case, mother is not likely to remedy the issues which brought the case to the court in the first place." -5- Butler CA2013-01-010

with Grandmother or Great Grandmother. No evidence was presented as to A.M.L.'s

relationship with Grandmother. No evidence was presented as to A.M.L.'s relation with Great

Grandmother at the present time (before the removal, Great Grandmother and her boyfriend

provided care for the child when needed).

{¶ 21} The juvenile court found that the interaction between Mother and her daughter

during supervised visits "demonstrat[ed] a loving and nurturing bond." Mother testified that

visitation always goes well, she has a very close relationship with A.M.L., and the two of them

have a "mother daughter bond." The record indicates that following A.M.L.'s removal in

March 2011, Mother consistently visited her daughter twice a week (two hours each time)

until September 2011. Thereafter, Mother became inconsistent, visiting at first only once a

week, and subsequently visiting every other week. Due to incarceration and her drug

addiction, Mother missed her daughter's birthday in February 2012 and did not visit at all

between March 16 and August 29, 2012. Mother visited A.M.L. twice right before the

permanent custody hearing.

{¶ 22} With regard to R.C. 2151.414(D)(1)(b), the juvenile court did not conduct an in

camera interview of A.M.L., but noted the GAL's recommendation that permanent custody be

granted to the Agency.

{¶ 23} With regard to R.C. 2151.414(D)(1)(c), the juvenile court found that at the time

of the permanent custody hearing, A.M.L. had been in the Agency's custody and in the care

of her foster family for approximately 18 months.

{¶ 24} With regard to R.C. 2151.414(D)(1)(d), the juvenile court found that Mother had

not complied with any of the requirements of the case plan, and that A.M.L.'s need for a

legally secure placement could not be achieved without a grant of permanent custody to the

Agency.

{¶ 25} As noted earlier, the case plan required Mother to complete a Substance Abuse -6- Butler CA2013-01-010

Mental Illness assessment and follow all recommendations, obtain and maintain stable

housing and income, and participate in a parenting program. The parenting program started

in July 2011. The juvenile court found that Mother (1) attended in-home lessons for the first

five weeks but subsequently either canceled or missed seven in-home lessons, (2) was

officially terminated from the program on October 31, 2011 after failing to respond to an

earlier warning letter, and (3) has not completed any parenting program.

{¶ 26} At the time of the permanent custody hearing, Mother had been living

independently in her own apartment for three weeks. This was the first time she was living

on her own. Before that, when she was not incarcerated, she lived with either Grandmother

or Great Grandmother. The juvenile court found that Mother had not paid rent yet.

According to Mother, the landlord was "working with her" until she had a job. At the hearing,

Mother was unemployed but testified a job was being held at a Taco Bell, where she would

be able to schedule her work hours around her Butler County Felony Drug Court schedule in

the event she was accepted into the program. The juvenile court found that Mother provided

no verification of her pending employment with Taco Bell. During the 18-month period

between the child's removal and the permanent custody hearing, Mother was never

employed.

{¶ 27} The juvenile court found that Mother completed a substance abuse assessment

in January 2012, attended an Intensive Outpatient Program for a short time and then never

returned, and subsequently refused multiple times to participate in any substance abuse

treatment program. The record shows that Mother completed a substance abuse

assessment on May 4, 2011, one day after testing positive for marijuana, and an updated

substance abuse assessment on January 30, 2012, four days after testing positive for

marijuana. During the course of the proceedings, Mother tested positive for drugs numerous

times, including marijuana, opiates, benzodiazepines, and amphetamine.

-7- Butler CA2013-01-010

{¶ 28} Mother was convicted in October 2011 of OVI and failure to report an accident

for driving intoxicated and hitting a parked car at a gas station. She was arrested in

November 2011 for domestic violence against a sibling. She was incarcerated in December

2011 for unpaid fines. On April 21, 2012, she was arrested for unpaid fines and was found to

be in possession of drugs (heroin and Klonopin, a benzodiazepine) which she ingested while

in police custody. As a result of the incident, she was charged with several felony drug

offenses. She was incarcerated from April 21 to August 29, 2012.

{¶ 29} After months of denying she had a substance abuse problem and refusing to

participate in or complete any substance abuse treatment program, Mother eventually

admitted she was a drug addict. She also admitted at the hearing she did not become

serious about her drug addiction until she faced prison time on her felony drug charges. As

the juvenile court found, "Mother is currently waiting to see if she has been accepted into the

Butler County Felony Drug Court program for treatment in lieu of incarceration on pending

drug charges." The court noted that "Mother will face felony prison time if she is not

accepted into the program."

{¶ 30} Mother testified that while she still is a drug addict, she is not currently using

and has no desire to use. She also testified her drug addiction "had a very strong hold on

[her]." Mother explained that she initially smoked marijuana, but became addicted to

prescribed medication following the death of her son in the fall of 2010 (no evidence was

presented as to the son). She eventually started using heroin.

{¶ 31} Finally, with regard to R.C. 2151.414(D)(1)(e), the juvenile court found that

Mother had refused on many occasions to engage in any of the substance abuse programs

offered (thus meeting the factor in R.C. 2151.414[E][9]).

{¶ 32} In light of the foregoing, and after a thorough review of the record, we find that

the juvenile court's decision granting permanent custody to the Agency is in A.M.L.'s best -8- Butler CA2013-01-010

interest and not against the manifest weight of the evidence. See In re S.S., 2d Dist. No.

2011-CA-07, 2011-Ohio-5697 (upholding a grant of permanent custody in light of mother's

total lack of progress on case plan services and her failure to become and remain drug free).

A juvenile court "is not required to deny [a] permanent custody motion simply based upon the

groundless speculation that the mother might successfully complete her drug treatment, * * *

and remain drug-free." In re J.C., 4th Dist. No. 07CA834, 2007-Ohio-3783, ¶ 25. "[A] parent

is afforded a reasonable, not an indefinite, period of time to remedy the conditions causing

the children's removal." In re L.M., 11th Dist. No. 2010-A-0058, 2011-Ohio-1585, ¶ 50.

Although at the time of the permanent custody hearing, Mother had taken some small steps

toward recovery and compliance with the case plan, it was too little, too late. Further, there is

no indication Mother has remedied her substance abuse problem.

{¶ 33} Therefore, having found no error in the juvenile court's decision granting the

Agency permanent custody of A.M.L., Mother's two assignments of error are overruled.

{¶ 34} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

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