In re A.S.

2016 Ohio 1580

Opinion

[Cite as In re A.S., 2016-Ohio-1580.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

IN THE MATTER OF: : CASE NOS. CA2015-12-112 A.S., et al. : CA2015-12-113

: OPINION 4/18/2016 :

:

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 14-D000039

Richard D. Donenfeld, 120 West Second Street, Suite 2000, Dayton, Ohio 45402, guardian ad litem

Andrew J. Brenner, 7588 Central Parke Blvd., Mason, Ohio 45040, for appellant, D.S.

Jeffery E. Richards, 147 Miami Street, P.O. Box 536, Waynesville, Ohio 45068, for appellant, R.S.

David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice Drive, Lebanon, Ohio 45036, for appellee, Warren County Children Services

HENDRICKSON, J.

{¶ 1} Appellants appeal a decision of the Warren County Court of Common Pleas,

Juvenile Division, granting permanent custody of their children to appellee, Warren County

Children Services (WCCS). For the reasons detailed below, we affirm.

{¶ 2} Mother is the biological mother of J.S. and A.S. The father of J.S. is currently Warren CA2015-12-112 CA2015-12-113

incarcerated for drug trafficking. The putative father of A.S. has never been tested for

paternity and has had no involvement in this case. All parties were properly served. The

matter presently before the court involves the appeals filed by Mother and J.S.'s father.

{¶ 3} On September 12, 2014, WCCS filed a neglect and dependency complaint and

requested temporary custody of six-year-old J.S and three-year-old A.S. The complaint

alleged that WCCS received information that J.S. had been without routine medical or dental

care, and that her teeth were rotting. The referral noted concerns with the family's living

arrangements, including allegations that their home was infested with bed bugs and had no

running water. When the matter was initially referred to WCCS, A.S. could not be located.

Later, it was discovered that Mother had placed A.S. in the care of her ex-boyfriend, a man

she alleged had a violent past and had almost "beat her to death." Furthermore, the

complaint also detailed a previous interaction with WCCS, in which Mother had been charged

with child endangering after A.S. was found wandering outside of the family's apartment

complex unsupervised.

{¶ 4} At a subsequent hearing, the parties stipulated that the children were

dependent and the children were placed in the temporary custody of WCCS. A case plan

was prepared and adopted by the juvenile court. The case plan included requirements that

Mother, among other things: (1) attend drug, alcohol, and mental health assessments, (2)

submit to drug screens, (3) refrain from criminal activity, and (4) obtain stable housing.

{¶ 5} Throughout the pendency of this matter, Mother made some attempts to

comply with portions of the case plan, but was unreliable or failed to complete many of the

requirements. The record reflects that Mother completed drug and alcohol assessments and

also obtained employment. However, Mother also failed to appear for a number of drug

screens, and failed a number of the drug tests that she did appear for, testing positive for

cocaine, marijuana, and benzoylecgonine. In addition, Mother was sporadic in her visitation -2- Warren CA2015-12-112 CA2015-12-113

with the children and would go long periods of time without contacting WCCS.

{¶ 6} In September 2015, WCCS moved for permanent custody. A permanent

custody hearing was held on December 7, 2015. During the hearing, the state presented the

testimony of the WCCS caseworker. The caseworker testified about the conditions leading

to WCCS involvement, and stated that the children have since been placed in the same

foster family and shown great improvement in their health and behavior.

{¶ 7} The caseworker explained that when A.S. was placed in the temporary custody

of WCCS he demonstrated significant developmental delays. Despite being three years old

at the time, the caseworker stated that A.S. was almost completely nonverbal with verbal

skills comparable to a 15 to 18-month-old infant. Although Mother informed WCCS staff that

A.S. was diagnosed with autism, the caseworker testified that A.S. was tested and does not

have autism. While in his current placement, A.S. has received appropriate medical care and

cognitive attention. Initially, A.S.'s foster parents taught A.S. to communicate through sign

language. With the aid of speech therapy, A.S. is now verbal and has progressed to

approximately the vocabulary of a two year old.

{¶ 8} In reference to J.S., the caseworker further elaborated on the severe dental

neglect that she suffered while in her mother's care. In addition, the caseworker explained

that J.S. suffered from behavioral issues and problems with her fine motor skills. While in

WCCS's custody, J.S. has received appropriate dental care and is progressing in her use of

fine motor skills.

{¶ 9} With respect to Mother and her progress, the caseworker testified that Mother

did complete two drug and alcohol assessments, with neither assessment providing

recommendations. However, the caseworker also testified that there was doubt with respect

to Mother's candor in those assessments, as she repeatedly tested positive for drugs.

{¶ 10} In addition, the caseworker testified about Mother's sporadic attendance at -3- Warren CA2015-12-112 CA2015-12-113

visitation and medical appointments, as well as her transient lifestyle. Although the children

had consistently scheduled medical appointments every week, the caseworker stated that

Mother attended only five out of the 52 appointments. Furthermore, although Mother's

visitation schedule was suspended following positive drug screens, the caseworker testified

about her attendance and timeliness for those visitation sessions. At the visitation sessions,

Mother was on time for a dozen visits, but was late to eight sessions, and cancelled ten other

sessions. Finally, the caseworker also testified about the lengthy periods of limited or no

contact between the agency and Mother and the difficulty in making contact. For example,

the caseworker noted that Mother had seven different phone numbers and four different

addresses throughout the progression of this case.

{¶ 11} Thereafter, Mother testified on her own behalf. In her testimony, Mother

admitted to using marijuana and the prescription drug Xanax, but she denied that she was a

drug addict. Although Mother acknowledged her sporadic attendance, she primarily noted

that she was unable to attend many of the visitation and medical appointments because she

had transportation issues and was also very busy working several jobs. Despite the fact that

she had not completed the entire case plan, Mother stated that she should retain custody of

the children because she is bonded with them and, as their mother, is in the best position to

care for them.

{¶ 12} Following the presentation of the evidence, the juvenile court granted the

motion for permanent custody. Mother and J.S.'s father have separately appealed the

juvenile court's decision.

Mother's Appeal

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION FOR

PERMANENT CUSTODY. -4- Warren CA2015-12-112 CA2015-12-113

{¶ 15} In her sole assignment of error, Mother argues the juvenile court erred by

granting permanent custody in favor of WCCS. After a thorough review of the record, we find

Mother's assignment of error is without merit.

{¶ 16} 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 for permanent custody have been met.

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review

of a juvenile court's decision granting permanent custody is limited to whether sufficient

credible evidence exists to support the juvenile court's determination. In re M.B., 12th Dist.

Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. A reviewing court

will reverse a finding by the juvenile court that the evidence was clear and convincing only if

there is a sufficient conflict in the evidence presented. Id.

{¶ 17} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and

award permanent custody to a children services agency if it makes findings pursuant to a

two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. 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 of R.C. 2151.414(D). In re D.K.W., 12th Dist. Clinton

No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Second, the court must find that any of the

following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in

the temporary custody of the agency for at least 12 months of a consecutive 22-month

period; (4) where the preceding three factors do not apply, the child cannot be placed with

either parent within a reasonable time or should not be placed with either parent; or (5) the

child or another child in the custody of the parent from whose custody the child has been

removed, has been adjudicated an abused, neglected, or dependent child on three separate

occasions. R.C. 2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033, -5- Warren CA2015-12-112 CA2015-12-113

2015-Ohio-3709, ¶ 10. Only one of those findings must be met for the second prong of the

permanent custody test to be satisfied. In re A.W., 12th Dist. Fayette No. CA2014-03-005,

2014-Ohio-3188, ¶ 12.

{¶ 18} In the present case, the juvenile court found by clear and convincing evidence

that Mother had abandoned J.S. within the meaning of R.C. 2151.414(B)(1)(b) and also

found that the children could not be placed with either parent within a reasonable time

pursuant to R.C. 2151.414 (B)(1)(a). With respect to the abandonment claim, the evidence

supported a finding that Mother had not contacted J.S. since June of 2015, at least 90 days

prior to the motion for permanent custody. Mother does not dispute the abandonment issue

with respect to J.S., but instead challenges the juvenile court's decision that A.S. could not be

placed with either parent within a reasonable time.

{¶ 19} Despite Mother's arguments to the contrary, we find the evidence supports, by

clear and convincing evidence, the juvenile court's decision. In the present case, A.S.'s

putative father has had no contact with the child and has not even consented to a paternity

test. Therefore, A.S. cannot be placed with his father within a reasonable time.

{¶ 20} With respect to Mother, as discussed in more detail below, Mother has failed to

complete her case plan and has failed to remedy the conditions that necessitated the

removal of the children. Specifically, the juvenile court found that Mother failed to utilize

rehabilitative services and material resources for the purposes of changing parental conduct.

Furthermore, there is evidence that Mother has been abusing drugs during the pendency of

this case and has been sporadic in both her visitation with the children and in the attendance

of the children's medical appointments. As the record clearly and convincingly supports the

juvenile court's decision that the children cannot be placed with either parent within a

reasonable time, we will address Mother's remaining claim that the juvenile court erred by

finding that it was in the children's best interest to be in the permanent custody of WCCS. -6- Warren CA2015-12-112 CA2015-12-113

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

permanent custody hearing:

[T]he court shall consider all relevant factors, including, but not limited to the following:

(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.

{¶ 22} In granting the motion for permanent custody, the juvenile court considered the

best interest factors in light of the evidence presented at the hearing. With respect to R.C.

2151.414(D)(1)(a), the juvenile court found the children have been placed in a stable foster

home, established a relationship with their foster parents, and are happy in their current

placement. The juvenile court also found that the children have been thriving since their

arrival in the foster home and the foster family has expressed their desire for a permanent

placement.

{¶ 23} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile court indicated that it

did not conduct an in camera review, but that the guardian ad litem recommended that the

court grant permanent custody to WCCS.

{¶ 24} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that the -7- Warren CA2015-12-112 CA2015-12-113

children have been in the custody of WCCS since September 12, 2014 and have remained in

the custody of the WCCS throughout the pendency of this case.

{¶ 25} In considering R.C. 2151.414(D)(1)(d), the juvenile court found the children are

in need of a legally secure placement, the agency can provide the necessary legally secure

placement, and such placement is the only way the children's needs can be met. The

juvenile court stated that none of the children's parents have been able to meet the children's

needs and failed to remedy the conditions that necessitated removal.

{¶ 26} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court referenced its

prior findings that Mother had not had any contact with J.S. in over 90 days and had

abandoned her.

{¶ 27} Based on these factors the juvenile court found by clear and convincing

evidence that it was in the children's best interest to grant permanent custody to WCCS. We

have carefully and thoroughly reviewed the evidence in this case and find that the juvenile

court's determination regarding the best interest of the children is supported by clear and

convincing evidence.

{¶ 28} Throughout the pendency of this matter, Mother has been sporadic in her

visitation with the children, has failed to maintain contact with WCCS, and failed to complete

the necessary case plan services. While Mother claims to be busy working and has the

ability to care for the children, she has not demonstrated that she can rectify the very serious

medical, dental, and developmental concerns that necessitated WCCS involvement. Since

the children have been removed from her care and placed with a foster family, they have

received appropriate care and have "thrived" in that placement. The children's foster family

has taken the steps necessary to treat those concerns and have been instrumental in helping

the children overcome their behavioral and cognitive issues. Our conclusion is further

supported by the fact that Mother has admitted to using drugs while supervising the children, -8- Warren CA2015-12-112 CA2015-12-113

and has tested positive for drugs during the course of these proceedings. Nevertheless,

Mother fails to acknowledge any possibility of drug addiction or seek help to resolve those

issues.

{¶ 29} In light of the foregoing, we find the juvenile court's decision was supported by

clear and convincing evidence and find no error in the juvenile court's decision to grant

permanent custody of the children to WCCS. Mother's sole assignment of error is overruled.

Father's Appeal

{¶ 30} Counsel for J.S.'s father has filed a brief with this court pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967), which: (1) indicates that a careful review of

the record from the proceedings below fails to disclose any errors by the trial court prejudicial

to the rights of father upon which an assignment of error may be predicated; (2) lists one

potential error "that might arguably support the appeal," Anders at 744; (3) requests that this

court review the record independently to determine whether the proceedings are free from

prejudicial error and without infringement of father's constitutional rights; (4) requests

permission to withdraw as counsel for father on the basis that the appeal is wholly frivolous;

and (5) certifies that a copy of both the brief and motion to withdraw have been served upon

father.

{¶ 31} Having allowed J.S.'s father sufficient time to respond, and no response having

been received, we have accordingly examined the record and find no error prejudicial to his

rights in the proceedings in the trial court. Therefore, the motion of counsel for J.S.'s father

requesting to withdraw as counsel is granted, and J.S.'s father's appeal is hereby dismissed

for the reason that it is wholly frivolous.

Conclusion

{¶ 32} Mother's assignment of error is overruled and the juvenile court's decision

granting permanent custody to WCCS is affirmed. J.S.'s father's appeal is dismissed and his -9- Warren CA2015-12-112 CA2015-12-113

counsel's request to withdraw is granted.

{¶ 33} Judgment affirmed.

M. POWELL, P.J., and PIPER, J., concur.

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