In re B. P.

2011 Ohio 1863

• Court: Ohio Court of Appeals
• Decided: April 18, 2011
• Docket: 10CA009934
• Status: Published

Opinion

[Cite as In re B. P., 2011-Ohio-1863.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

IN RE: B. P. C.A. No. 10CA009934

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09JC26865

DECISION AND JOURNAL ENTRY

Dated: April 18, 2011

CARR, Presiding Judge.

{¶1} Melissa L. appeals from a judgment of the Lorain County Court of Common

Pleas, Juvenile Division, that terminated her parental rights to her minor child, B.P., and placed

him in the permanent custody of the Lorain County Children Services Board (“LCCS”). This

Court affirms.

I.

{¶2} B.P. was born on February 20, 2009, and is the child of Melissa L. (“Mother”)

and Charles P. (“Father”). Both parents participated in the proceedings below, but only Mother

appealed from the judgment of the trial court.

{¶3} When B.P. was born, Mother was already engaged in another custody case

involving four older children, ranging in age from three to eleven years. LCCS had been

involved with the family since 2007, based upon concerns for Mother’s mental health, unsafe

and unsanitary conditions of the home, and the children’s poor school attendance. In August 2

2008, those four children were adjudicated abused, neglected, and dependent, and they were

placed in the temporary custody of the agency. B.P. was born six months later. LCCS initially

attempted to allow B.P. to remain in Mother’s home, as Mother was making some progress on

the case plan objectives put in place through the first proceeding. Soon, however, the agency

again developed concerns regarding the home environment and Mother’s ability to meet the

basic needs of B.P. Accordingly, LCCS filed a complaint regarding B.P. on July 23, 2009. That

complaint articulated concerns for the safety of B.P. based upon the large number of adults living

in Mother’s home, the unsanitary condition of the home, a limited supply of food, and a pending

eviction due to unpaid rent. In October 2009, the trial court adjudicated B.P. to be a dependent

child and placed him in the temporary custody of the agency. Three months later, the first case

resulted in a judgment involuntarily terminating Mother’s parental rights to the four older

children. This Court later affirmed that judgment. See In re M.M, J.H., M.H., L.L., 9th Dist.

Nos. 10CA009744, 10CA009745, 10CA009746, 10CA009747, 2010-Ohio-2278.

{¶4} On June 30, 2010, LCCS filed a motion for the permanent custody of B.P.

Following a hearing on the motion, the trial court granted permanent custody of B.P. to the

agency. Mother now appeals and assigns one error for review.

II.

ASSIGNMENT OF ERROR

“THE JUDGMENT GRANTING PERMANENT CUSTODY OF B.P. TO LORAIN COUNTY CHILDREN SERVICES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶5} Mother argues that the trial court erroneously determined that the weight of the

evidence supported a finding that B.P. could not be placed with either parent within a reasonable

time or should not be placed with a parent. 3

{¶6} Before a juvenile court may terminate parental rights and award permanent

custody of a child to a proper moving agency it must find clear and convincing evidence of both

prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the

temporary custody of the agency for at least 12 months of a consecutive 22-month period, or that

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

with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of

permanent custody to the agency is in the best interest of the child, based on an analysis under

R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see, also, In re William S.

(1996), 75 Ohio St.3d 95, 98-99. Clear and convincing evidence is that which will “produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, quoting Cross v. Ledford (1954), 161

Ohio St. 469, paragraph three of the syllabus.

{¶7} Following a hearing, the trial court found that B.P. could not be placed with either

of the child’s parents within a reasonable time and should not be placed with the child’s parents.

The trial court also found that it was in the best interest of the child to be placed in the permanent

custody of LCCS. On appeal, Mother does not challenge the finding regarding the best interest

of B.P., but rather challenges the finding that the child could not or should not be placed with a

parent as being unsupported by the weight of the evidence. For the reasons that follow, we find

her argument to be without merit.

{¶8} In considering whether a child could not be placed with either parent within a

reasonable time or should not be placed with a parent, the trial court is to consider all relevant

evidence. R.C. 2151.414(E). Furthermore, R.C. 2151.414(E) contains several factors, the

presence of any one of which requires the court, upon a finding of clear and convincing evidence 4

that the factor exists, to enter a finding that the child cannot be placed with a parent within a

reasonable time or should not be placed with a parent. Id.

{¶9} While the trial court did not explicitly cite to any of the factors in R.C.

2151.414(E), the detailed findings in its journal entry make it apparent that 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; R.C. 2151.414(E)(2), chronic mental or emotional illness; and R.C. 2151.414(E)(11),

parental rights involuntarily terminated with respect to a sibling. In her appeal, Mother has not

challenged the findings in regard to a particular factor, nor has she argued that the failure to cite

a particular factor is reversible error. Instead, she has challenged only the broader determination

that B.P. cannot or should not be placed with a parent. In addressing Mother’s argument, we

reiterate here that “the better practice would be for the trial court to indicate the specific factor or

factors in R.C. 2151.414(E) upon which it is relying in reaching its determination, so that proper

review is ensured.” In re S.C., 9th Dist. No. 04CA008469, 2004-Ohio-4570, at ¶30.

{¶10} Mother’s reunification case plan indicated that she should participate in a

parenting assessment and an education program with an in-home parenting mentor, obtain

appropriate housing and gainful employment in order to meet the basic needs of her child, and

participate in a mental health assessment and follow any recommendations. Mother was also

offered weekly visitation with her child.

{¶11} According to the caseworker, when B.P. was removed from the home, he had no

affect and displayed no emotion. He did not laugh or cry. He was fine physically, but he

appeared to have been emotionally neglected. At eight months of age, he was not able to sit up,

hold his head up for more than a split second, or roll over. The caseworker believed that Mother

was not able to provide for his emotional needs and that Mother’s lack of active interaction with 5

the child contributed to his poor development. By way of contrast, within five days of being

placed with foster parents and having received intense interaction in that home, B.P. was rolling

over, sitting up on his own, and trying to hold his head up. It took the child several months to

show emotions such as crying or even indicating that he was hungry. The caseworker explained

that, one year later, B.P. has made a great deal of progress. She did not believe that this change

was merely the result of age, but rather resulted from the constant good interaction and emotional

support B.P. was receiving from the foster parents.

{¶12} The trial court found that Mother had not made significant progress on her case

plan and had not demonstrated an ability to meet the child’s basic needs or safely parent her

child. In order to address parenting skills, Mother had been referred to an in-home parenting

mentor, who found it necessary to focus first on Mother’s ability to meet her own basic needs.

The mentor terminated his services after only a couple of months because Mother was not

following through with his advice. The caseworker testified similarly that Mother failed to

implement her suggestions on parenting, including increasing her interaction with B.P.

{¶13} In addition, the trial court found that Mother’s housing and employment were not

stable. Mother was evicted from a trailer early in the proceedings, placed B.P. in Blessing House

while she stayed in motel rooms for about a month, and then stayed in another residence for

approximately eight months. She and the maternal grandmother stayed together in the motel

rooms and in their last residence. At the time of the permanent custody hearing, Mother and the

maternal grandmother had not paid any rent for five or six months and they were aware that their

residence was in foreclosure. Significantly, Mother had saved no money, had no plans for

another place to live, and had nowhere to go. Mother had no regular employment, but had

worked periodic jobs for temporary agencies. She and the maternal grandmother purportedly 6

shared expenses. The maternal grandmother testified that Mother contributed money when she

was able. The caseworker testified that Mother was behind on all her bills and that Mother had

often provided her with false information about employment and housing.

{¶14} The trial court expressed particular concern that Mother had not resolved the

mental health issues that had existed since the first case. According to Mother’s counselor,

Mother had not completed her mental health treatment. Mother began attending counseling

sessions in September 2008, as part of the first case. Initially, her attendance was fairly

consistent, but it gradually deteriorated. Mother stopped attending counseling altogether in

October 2009, just about the time of B.P.’s adjudication and disposition. The counseling agency

closed Mother’s case two months later. Mother testified that she had been prescribed medication

for her depression, but was told to stop taking it when she became pregnant. Mother reengaged

in counseling in May 2010, after a bout of depression that reached its worst point on Mother’s

Day. During the next five months, Mother attended six counseling sessions and missed three.

{¶15} Mother’s counselor stated that Mother had not fully addressed past abuse and

traumatic experiences and that omission affected her ability to avoid the unhealthy choices she

had been making. The caseworker stated that Mother failed to accept responsibility for her bad

decisions and had a problem telling the truth, which resulted in unsafe situations. The

caseworker explained, for example, that if Mother had been honest about being behind in her

trailer payments, she could have helped her devise a plan to avoid eviction. The caseworker also

stated that Mother has not accepted responsibility for the removal of her child, but instead

claimed that “her ex-husband tried to steal her child and sell him in Peru.” Finally, the

caseworker stated that Mother exercised poor judgment when she took B.P. to visit a registered

sex offender. The sex offender was an uncle who lived near Mother’s home. He testified at the 7

permanent custody hearing that Mother would bring B.P. to his house every other week during

her scheduled visitations.

{¶16} When Mother reengaged in counseling in May 2010, she was advised to have a

psychiatric assessment and to participate in Dialectical Behavior Therapy (“DBT”), a group

therapy program that met weekly for a year and addressed emotion regulation, co-dependency

issues, and healthy coping skills. Mother attended one session before the permanent custody

hearing. In its appeal, LCCS criticizes Mother for only attending one session, but, at the same

time, concedes that Mother began the sessions at the first available opportunity after the program

was recommended to her. Both the counselor and caseworker were hopeful that the DBT group

would permit Mother to internalize certain concepts and successfully apply them to her life, but

neither witness could guarantee that Mother would be able to do so. The caseworker also opined

that a year “in Limbo” was too long for B.P. to wait on something that may not be successful.

The trial court concluded that B.P. could not wait a year before achieving permanency.

{¶17} As to Father, the trial court found that he had failed to maintain sobriety. There

was evidence before the trial court that he had relapsed at least twice in the last year. In addition,

Father refused to do additional drug tests that were requested by the caseworker. Father also

failed to demonstrate a commitment to his child given that he missed 13 visits in the last two

months and had been inconsistent in attending visits during the three months before that. At one

time, LCCS had hoped to place B.P. with Father and his long-time girlfriend, Pat, who seemed to

provide good care to B.P. during visits. There was conflicting testimony, however, as to whether

Pat was willing to accept a permanent role in the care of B.P. In addition, Pat testified that

Father would leave home for several days at a time, although she did not believe he would

continue to do so if B.P. were permanently placed with them. Father was unemployed and had 8

no income of his own. He relied largely on Pat’s employment for financial support. Father had

applied for social security disability, but his eligibility was not resolved at the time of the

hearing. Father was on probation for non-support of two other children. Ultimately, the trial

court was not convinced that their home would be a stable placement for B.P.

{¶18} Regarding the second prong of the permanent custody test, the trial court found

that it was in the best interest of B.P. to be placed in the permanent custody of the agency. See

R.C. 2151.414(D)(1). The caseworker testified on the subject of the parents’ relationships with

the child. She stated that B.P. “absolutely” had a bond with Mother and a less strong bond with

Father. There was also evidence before the trial court, however, that Mother did not actively

interact with her child during visits. The maternal grandmother often interacted more with the

child than Mother did. The trial court found that Mother’s interaction with B.P. was “average at

best” and had been minimal in recent months. Father’s attendance at visitation had declined

sharply in recent months.

{¶19} Mother and Father each testified at the hearing. They each claimed to love B.P.

and to be able to provide a good home for him. Several friends and relatives testified in support

of the parents’ efforts to regain custody and regarding the parents’ relationships with B.P. In

general, those witnesses stated that they believed each parent loved B.P. and that B.P. seemed

happy in the parent’s care. These witnesses essentially stated that they had no concerns about

either parent’s ability to care for B.P.; that Mother had mood swings, but they did not interfere

with her ability to meet the child’s needs; and that Father had a history of alcohol problems, but

that those problems were under control.

{¶20} B.P.’s custodial history is that he had resided with Mother for the first five months

of his life and then resided in a foster home for a year. The caseworker explained that B.P. had a 9

very strong attachment to his foster parents, as well as to an older half-brother, who resided in

the same home. B.P.’s foster parents had a monthly visitation plan with the foster parents of

B.P.’s three other siblings in order that all the children could maintain those relationships. B.P.’s

foster parents would like to adopt him if permanent custody is awarded to the agency.

{¶21} Because of B.P.’s young age, the guardian ad litem expressed the wishes of the

child. She believed that permanent custody was in B.P.’s best interest. She had worked with

Mother for a year in the first case before continuing to work with her in the present case. She

testified that although Mother was excited to see B.P. at visits, there was very little interaction

between them. She particularly noted that she had seen no change in Mother’s parenting ability

from the time of her initial observations until the time of the hearing. The guardian ad litem

expressed concern with Mother’s lack of follow-through in such things as finding housing,

obtaining regular employment, and implementing suggestions regarding the care of B.P. She

noted that Father interacted well with B.P. when he attended visits, but that he was very

inconsistent in his attendance. She also expressed concern with Father’s dependence on Pat for

income and support.

{¶22} There was evidence before the trial court that supported its conclusion that B.P.

needed permanency and that neither of his parents could provide it. The caseworker testified that

Mother had made only minimal progress on her case plan. Although Mother had improved the

physical condition of her living arrangements at one point, she was about to lose her housing

again and had no plans for another place to live. Moreover, the caseworker testified that Mother

had previously lost custody of four children, and she had made no significant changes in her

ability to provide safe, lasting care for this child. She also believed that alcohol dependence

made Father unable to provide a home for B.P. According to the caseworker, the testimony that 10

Father leaves home for days at a time and missed many visits with his son is reflective of the bad

choices he makes. She concluded that neither parent is in a position to provide safe care of the

child and that B.P. does not deserve to wait any longer for permanency. She believed that

permanent custody was in the best interest of the child. Neither parent offered suitable relative

placements.

{¶23} In addition to a general claim that the agency did not establish that B.P. could not

or should not be placed with a parent, Mother argues that despite the agency’s stated goal of

reunification, LCCS had actually been seeking to obtain permanent custody of B.P. since

December 2009. In support of her argument, Mother refers to a statement in the December 2009

Semiannual Administrative Review indicating that the agency intended to file for permanent

custody “within the next few weeks.” The full paragraph is as follows:

“During this review period, LCCS was granted permanent custody of [B.P.’s] four older siblings. The issues that originally caused LCCS to become involved with this family two years ago have [not] been resolved. [Mother] has no stable housing, no employment, and no way to meet her own basic needs independently of other people. [Father] also has no way to support himself seperate (sic) from his girlfriend, and that relationship is fairly unstable. [B.P.] would be at high risk of continued neglect if [he] was to be reunified with either of his parents at this time. LCCS does intend on filing for PC of [B.P.] within the next few weeks.” (Emphasis added.)

LCCS could have filed for permanent custody of B.P. in December 2009, but it could also wait

until June 30, 2010, as it did. In her brief, Mother has not provided any argument as to prejudice

accruing to her by the delay in filing the motion, nor has she specifically pointed to a lack of

effort by the agency after December 2009. It is not for this Court to develop arguments for the

parties or speculate as to any existing prejudicial impact.

{¶24} A review of the record demonstrates, to the contrary, that LCCS continued its

reunification efforts after the review in December 2009. In fact, shortly after that review, the 11

agency was actively involved in attempting to arrange for a placement of B.P. with Father and

Pat. Even the foster mother testified that she understood a placement with Father was

“inevitable” at that point. Several Friday-to-Sunday visits had taken place in Father’s home, and

the agency proceeded along those lines from February 2010 until May 2010, when that option

was no longer considered viable. During the same time period, LCCS also continued

reunification efforts with Mother. For example, when Mother had transportation problems in

February 2010, the agency started transporting the child to Mother’s home for visits. This

arrangement involved weekly four-hour visits and lasted from February 2010 until September

2010, when a medical doctor suggested that visits be moved back to the visitation center because

residual cigarette smoke in Mother’s home aggravated B.P.’s asthma. In addition, the record

demonstrates that Mother was newly referred for a psychiatric evaluation in May 2010, and that

she also reengaged in counseling at that time. The caseworker even attended counseling sessions

with Mother in the summer of 2010 in an effort to accelerate some positive results. In the

absence of any concrete argument with references to facts of record, we find no merit in

Mother’s unsupported allegation that the agency had been seeking to obtain permanent custody

of B.P. since December 2009.

{¶25} Mother also complains that “LCCS was unwilling to concede that if [Mother]

internalized the concepts presented in the dialectical therapy group, she would be in a position to

be reunified with B.P.” The facts in evidence do not compel such a conclusion by the

caseworker or the counselor, and any such claim would have been entirely hypothetical.

{¶26} Upon consideration, this Court concludes that there was ample evidence before

the trial court from which it could determine that B.P. could not be placed with either parent

within a reasonable time or should not be placed in the care of either parent. Consequently, the 12

trial court did not err in terminating Mother’s parental rights and placing B.P. in the permanent

custody of LCCS. Mother’s sole assignment of error is overruled.

III.

{¶27} Mother’s assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

WHITMORE, J. DICKINSON, J. CONCUR 13

APPEARANCES:

HOLLACE B. WEIZEL, Attorney at Law, for Appellant.

DENNIS P. WILL, Prossecuting Attorney, and AMY L. PRICE, Assistant Prosecuting Attorney, for Appellee.