In re A.S.

2013 Ohio 294

• Court: Ohio Court of Appeals
• Decided: February 1, 2013
• Docket: 25313, 25317
• Status: Published

Opinion

[Cite as In re A.S., 2013-Ohio-294.]

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

IN RE: : : Appellate Case Nos. 25313 A.S., K.S. and W.S. : Appellate Case Nos. 25317 : : Trial Court Case Nos. JC 07-3714 : Trial Court Case Nos. JC 07-3716 : Trial Court Case Nos. JC 07-3717 : : (Juvenile Appeal from : (Common Pleas Court) : ...........

OPINION

Rendered on the 1st day of February, 2013.

...........

JEAN M. STEIGERWALD, Atty. Reg. #0036741, Post Office Box 373, Dayton, Ohio 45409-0373 Attorney for Appellant, T.S.

RANDALL L. STUMP, Atty. Reg. #0020613, 131 North Ludlow Street, Suite 1200, Dayton, Ohio 45402 Attorney for Appellant, W.S.

JAMES S. ARMSTRONG, Atty. Reg. #0020638, 131 North Ludlow Street, Suite 386, Dayton, Ohio 45402 Attorney for Appellees, minor children, A.S. and W.S.

KATHRYN L. BOWLING, Atty. Reg. #0084442, 111 West First Street, Suite 581, Dayton, Ohio 45402 Attorney for Appellee, minor child, K.S. MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Appellee, Montgomery County Children Services

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

FAIN, P.J.

{¶ 1} T.S. and W.S. appeal separately from the trial court's judgment entry

overruling their objections to a magistrate's decision and awarding Montgomery County

Children Services (“MCCS”) permanent custody of their children, A.S., K.S., and W.S. 1

They contend that the evidence does not support the court’s finding that the award of custody

to MCCS is in the best interest of the children. We conclude that there is credible evidence in

the record to support the decision. Accordingly, the judgment of the juvenile court is

Affirmed.

I. The Course of Proceedings

{¶ 2} The record reflects that the trial court adjudicated the children dependent in

response to a complaint filed by MCCS in 2007. After obtaining temporary custody, MCCS

moved for permanent custody in April 2009. A magistrate held a hearing on the motion. Based

on the evidence presented, the magistrate awarded MCCS permanent custody of the children.

The parents filed objections to the magistrate’s decision. The juvenile court held a hearing

prior to ruling on the objections. During the hearing, the parties stipulated that a change of

circumstances had occurred since the magistrate’s award of permanent custody to the agency.

1 T.S. and W.S. have other children who are not the subject of this appeal. In this opinion, “the children” refers to A.S., K.S., and W.S., who are the subject of this appeal. 3

Specifically, the children’s foster parent at that time had indicated that she was willing and

able to adopt all three children. Subsequently, she decided that she could not adopt the

children as previously planned. Thus, the court dismissed the objections and the matter was

remanded to the magistrate for further evidence regarding the best interest of the children.

{¶ 3} A hearing was conducted in July 2011 following which the magistrate again

awarded permanent custody of the children to the agency. The parents filed objections, which

the juvenile court overruled. The parents appeal.

II. There Is Evidence in the Record to Support the Trial Court’s

Finding, by Clear and Convincing Evidence, that an Award

of Permanent Custody to MCCS Is in the Best Interests of the Children

{¶ 4} The parents’ sole assignment of error states as follows:

THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO MONTGOMERY COUNTY CHILDREN SERVICES

BECAUSE THAT AGENCY FAILED TO PROVE BY CLEAR AND

CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE

BEST INTEREST OF THE CHILDREN AT ISSUE IN THIS APPEAL.

{¶ 5} T.S. and W.S. contend that the evidence does not support the trial court’s

finding that awarding permanent custody to MCCS is in the best interest of the children.

{¶ 6} In In re M.R., 2d Dist. Greene No. 2010 CA 64, 2011-Ohio-3733, ¶ 24-26, we

addressed the standards for determining motions for permanent custody:

R.C. 2151.413 dictates when a children services agency may seek 4

permanent custody of a child. With some exceptions, R.C. 2151.413(D)

generally requires a children services agency to pursue permanent custody of a

child that has been in the agency's temporary custody for twelve or more

months of a consecutive twenty-two month period. * * *

* * * If the child has been in the custody of the children services agency

for twelve or more months of a consecutive twenty-two month period at the

time the motion for permanent custody is filed, the court need only determine

whether permanent custody is in the child's best interest. R.C.

2151.414(B)(1)(d). The court need not consider whether the child can be placed

with either parent within a reasonable time or should not be placed with the

child's parents, as would be required under R .C. 2151.414(B)(1)(a). In re C.

W., 104 Ohio St.3d 163, 166–167, 2004–Ohio–6411, at ¶ 21. All of the court's

findings must be supported by clear and convincing evidence. R.C.

2151.414(E); In re J.R., Montgomery App. No. 21749, 2007–Ohio–186, ¶ 9.

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 5

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.

{¶ 7} “A reviewing court must affirm a trial court's decision regarding permanent

custody unless it is unsupported by clear and convincing evidence, a level of proof that

produces a firm belief as to the facts sought to be established.” In re T.J., 2d Dist.

Montgomery No. 25022, 2012-Ohio-3399, ¶ 25. If the juvenile court's judgment is

“supported by some competent, credible evidence going to all the essential elements of the

case,” an appellate court may not reverse the judgment. In re A.S., 2d Dist. Montgomery No.

22269, 2007–Ohio–6897, ¶ 15, quoting State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54

(1990).

{¶ 8} The record demonstrates that K.S. and A.S. are residing with the same foster

family and that they are bonded to that family. W.S. is residing with a separate foster family

and is bonded to that family. The foster parents are willing to adopt the children and are also

willing to maintain relationships between the siblings following adoption.

{¶ 9} While the children are aware that T.S. and W.S. are their parents, they do not

appear to have a strong bond with either of their parents. The children have been in the

temporary custody of the MCCS for almost five years; at the time of the final hearing, they

had been in custody for four years. During that time the parents were inconsistent, at best,

with their visitations. From October 2009 through November 2010, the parents exercised

only seven scheduled visits with the children. There was a period of six months during which

there were no visits. From November 2010 until the final hearing in July 2011, the mother 6

exercised seventeen out of fifty-three scheduled visits, while the father exercised only ten.

The parents cancelled two of three scheduled overnight visits.

{¶ 10} At the time of the hearings, the children were ages eight, six and four, and the

court determined that they were too young to express their wishes meaningfully. A guardian

ad litem appointed to represent the children recommended that the children be returned to their

parents. The GAL testified that she had been to a “couple” of visits in the last year and

“things when I have been there, have worked out pretty well.” However, the father was not

present at these visitations. She further testified that she did not make an attempt to speak

with the children regarding their wishes, but noted that they “really aren’t clear at all about

where they want to live.” She testified that she did not have any concerns regarding the

ability of W.S. and T.S. to parent the children. She further testified that she had not spoken to

any of the therapists treating the children in the year prior to the hearing. She also testified

that she had not observed the children in their current foster homes.

{¶ 11} . The record shows that a case plan was established, intended to help T.S. and

W.S. regain custody. However, the mother never completed a requested parenting

assessment, and she was not attending counseling as requested. The parents failed to provide

documentation regarding their bills, income and budgeting, as required by the case plan.

They demonstrated resistance to that requirement. The caseworker was not able to go into the

parents’ home after the father made a threatening comment toward her. The parents were

required to undergo marriage counseling due to the instability of their marriage, but failed to

do so. Indeed, some visitation was missed because, following an argument, the father left the

mother and took at least one of their other children who was living in their home out of the 7

county. The record also shows that when MCCS made referrals to two different reunification

specialists, the parents cancelled all scheduled meetings and never met with either of the

specialists.

{¶ 12} During the visitations that actually took place at MCCS, the parents did not

engage the children and relied on agency staff or foster parents for guidance and help with

managing the children. The visits were “loud and chaotic,” and an MCCS supervisor had to

intervene on a couple of occasions when the children were being allowed to run along the

backs of couches. The father used physical discipline on the children during visits, despite

having been informed that he should not do so. One child even presented with bruises

following the father’s discipline. The father informed MCCS staff that he would not refrain

from using physical discipline. There is evidence that the father becomes angry when the

caseworker attempted to correct his parenting techniques. The evidence shows that the father

permitted A.S. to bully K.S., merely observing the bullying without intervening. The record

also reflects that the father would be the primary caregiver for the children if they were

returned to their parents.

{¶ 13} All of the children have special needs with regard to their mental health care,

and require therapy for those issues. The parents have shown no interest in the therapy the

children have received. The only contact they had with any of the therapists treating the

children involved a threatening phone call to one of the therapists made by the mother.

{¶ 14} A.S. has some serious dental problems, which require treatment. During one

visitation, the parents were instructed not to give A.S. soda or candy, because she had an

abscessed tooth that was scheduled to be pulled. The parents ignored the instruction and gave 8

the child soda. The record also shows that K.S. lacks self-esteem and that the father has

made disparaging remarks to her about her weight, at least some of which were delivered in

the presence of A.S.

{¶ 15} The juvenile court found that the children are strongly bonded to their foster

parents. The court found that the parents have not met their case plan objectives and have not

demonstrated an ability to care for the children or to meet their needs with regard to attending

therapy. The court noted that the parents had failed to visit on a consistent basis during the

more than four years that the children had been in the temporary custody of MCCS. The

court found that the children had a need for legally secure placement and that such placement

was best met by awarding permanent custody to MCCS.

{¶ 16} We conclude that there is competent, credible evidence in the record to

support the trial court’s finding, by clear and convincing evidence, that an award of permanent

custody to MCCS is in the best interests of the children. Accordingly, the parents’ sole

assignment of error is overruled.

III. Conclusion

{¶ 17} The sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

DONOVAN and HALL, JJ., concur. 9

Copies mailed to:

Jean M. Steigerwald Randall L. Stump James S. Armstrong Kathryn L. Bowling Mathis H. Heck, Jr. Michele D. Phipps Hon. Nick Kuntz