In re B.C.

2015 Ohio 265

• Court: Ohio Court of Appeals
• Decided: January 21, 2015
• Docket: 14-CA-88
• Status: Published

Opinion

[Cite as In re B.C., 2015-Ohio-265.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Sheila G. Farmer, P.J. B.C., JR. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : Case No. 14-CA-88 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. F2012-0600

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 21, 2015

APPEARANCES:

For Appellant-Mother For Appellee

MICHAEL R. DALSANTO J. ANDREW STEVENS 3 South Park Place, Suite 220 20 South Second Street, 4th Floor Newark, OH 43055 Newark, OH 43055

For Father Guardian ad Litem

ADAM O. JOHNSON BONNIE VANGELOFF 3 South High Street P.O. Box 4174 Canal Winchester, OH 43110 Dublin, OH 43016 Licking County, Case No. 14-CA-88 2

Farmer, J.

{¶1} On September 19, 2012, appellee, Licking County Department of Job and

Family Services, removed B.C., Jr., born August 29, 2010, from his home. Mother of

the child is appellant, Katelyn Speakman; father is B.C., Sr. On November 21, 2012,

the child was found to be dependent and was placed in appellee's temporary custody.

The child was placed with the maternal grandparents, Todd and Shelly Speakman.

{¶2} On August 12, 2013, appellee filed a motion for permanent custody of the

child due to the parents' failure to meet the objectives of the case plan. A hearing

before a magistrate was held on March 6, 2014. By decision filed March 24, 2014, the

magistrate recommended granting permanent custody of the child to appellee. Both

parents filed objections. By judgment entry filed September 11, 2014, the trial court

denied the objections and approved and adopted the magistrate's decision.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE."

II

{¶5} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF Licking County, Case No. 14-CA-88 3

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE."

III

{¶6} "THE TRIAL COURT'S DECISION DENYING AN EXTENSION WAS AN

ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT AND

I, II

{¶7} Appellant claims the trial court's decision that the child cannot be placed

with her within a reasonable amount of time and the child's best interest is best served

with the granting of permanent custody to appellee was against the sufficiency and

manifest weight of the evidence. We disagree.

{¶8} A trial court may grant an agency permanent custody of a child upon clear

and convincing evidence of certain factors set forth in R.C. 2151.414. Clear and

convincing evidence is that evidence "which will provide in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161

Ohio St. 469 (1954), paragraph three of the syllabus. See also, In re Adoption of

Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an

issue must be clear and convincing, a reviewing court will examine the record to

determine whether the trier of facts had sufficient evidence before it to satisfy the

requisite degree of proof." Cross at 477.

{¶9} On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and Licking County, Case No. 14-CA-88 4

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-

52; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. In weighing the

evidence, however, we are always mindful of the presumption in favor of the trial court's

factual findings. Eastley at ¶ 21.

{¶10} R.C. 2151.414(E) sets out the factors relevant to determining permanent

custody. Said section states in pertinent part as follows:

(E) In determining at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code whether a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents, the

court shall consider all relevant evidence. If the court determines, by clear

and convincing evidence, at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code 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 or should not be placed

with either parent:

(1) Following the placement of the child outside the child's home

and notwithstanding reasonable case planning and diligent efforts by the Licking County, Case No. 14-CA-88 5

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.

(16) Any other factor the court considers relevant.

{¶11} R.C. 2151.414(D) sets out the factors relevant to determining the best

interest of a child. Said section states relevant factors include, but are 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 Licking County, Case No. 14-CA-88 6

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.

{¶12} At the time of the hearing, the child had been placed with the maternal

grandparents and had been in appellee's temporary custody for over twelve months.

{¶13} The case plan for the parents included three issues: 1) substance abuse

including assessment and random drug screens; 2) home conditions; and 3) mental

health issues/domestic disturbances.

{¶14} In his decision filed March 24, 2014, the magistrate was very specific as to

appellant's failure to follow the case plan:

4. Since that adjudication in October of 2013, Ms. Speakman and

Mr. [C.] have not taken any of the requested drug tests, even after

agreeing to take a test. Both testified that they are not taking any pain

killers or other drugs now. The records from counseling show that the two

have done very little in terms of counseling, with both Ms. Speakman and

Mr. [C.] attending one session. At her session in January, 2014, Ms.

Speakman acknowledged ongoing opiate use and also was inquiring of Licking County, Case No. 14-CA-88 7

the counselor how she could obtain anti-depressants. Mr. [C.]'s records

indicate that he denied any problems or issues with substance abuse or

anything else, and indicated that he was only in counseling so he could

"get (his) kids back." Ms. Speakman testified that she did not want to

engage in counseling, as she believed that anything she said in

counseling would be "twisted" and used against her. Likewise, she

testified that she would not take drug tests, as those results would be used

against her as well.

8. A great deal of testimony was presented on visits and the

relationship between Ms. Speakman and Mr. [C.] with the child. The

testimony was uncontroverted that visits go well and the child is closely

bonded to his parents. There were some issues brought up by the

visitation coordinator, such as the name issue described above or some

teasing of the child such as telling him the police were coming for him

when a siren could be heard in the visit room.

{¶15} A review of the hearing transcript indicates despite having done a drug

assessment at Mid Ohio, appellant failed to follow-through regarding drug treatment and

failed to take drug screens at least twenty-one times. T. at 41-45. The home still lacked

smoke detectors as required, but other conditions were resolved. T. at 46-47.

Appellant failed to obtain counseling for mental health issues after a referral to

Moundbuilders/Behavioral Healthcare Partners. T. at 47. There have been no

domestic disturbances since September 2012. T. at 59. Licking County, Case No. 14-CA-88 8

{¶16} Appellant admitted to not following through on counseling and not taking

drug screens since October 2013. T. at 9, 11-12, 74-76. She stated "I don't have a

problem with talking to somebody, but you come here and these people twist it and use

it against you and everything else." T. at 74. She admitted to not being totally honest in

the counseling sessions. T. at 74-75. She refused to take drug tests "because I took

one for them here at the court date for [another child] when they came and took her." T.

at 75. She complied and they found drugs in her system "and they still came and took

my daughter." T. at 76. Her opinion was "I'm damned if I do and I'm damned if I don't."

Id.

{¶17} The undisputed facts substantiate the trial court's approval and adoption of

the magistrate's decision finding that reunification with appellant was not possible after a

reasonable amount of time pursuant to R.C. 2151.414(E)(1).

{¶18} As for best interest, appellant argues their visitations with the child

established their interactions with the child have been positive and the child has bonded

with them, and the guardian ad litem recommended legal placement of the child with the

maternal grandparents. Appellant argues the trial court erred in not taking these factors

into consideration.

{¶19} As explained by the trial court in its judgment entry filed September 11,

2014:

1. The magistrate was required to consider the guardian ad litem's

recommendations. The magistrate was not required to follow the guardian

ad litem's recommendations. The magistrate's analysis of the guardian ad Licking County, Case No. 14-CA-88 9

litem's recommendations were clearly and thoroughly set forth in his

written decision. It is worthy to note that the guardian ad litem did not

believe that this child should be returned to either of the natural parents.

{¶20} In his decision, the magistrate thoroughly discussed the issue of

grandparent placement as follows:

7. The child is placed with his maternal grandparents. He has been

in that placement since the removal. As far as the child is concerned, this

placement has gone very well and [B.], Jr. is doing well in the placement.

Mr. Speakman testified that he and his wife wish to pursue an adoption if

that becomes an option. While [B.], Jr. has done well in the placement,

there have been issues between the grandparents and the parents. Both

Ms. Speakman and Mr. [C.] testified that they do not get along with the

grandparents and they see the situation as being one where the

grandparents are actually interfering in the case. An example was where

Mr. [C.] was chastising [B.], Jr. for not using the name "[B.]," and instead

calling himself "Leo." Apparently, this is the name used by the

grandparents in the home and the parents do not approve of this. The

concern they expressed is that if the grandparents obtain some type of

custody through this case, Mr. [C.] will never see [B.], Jr. again because of

the bad blood between the grandparents and him. When asked, Mr.

Speakman testified that he did not wish to have legal custody but then Licking County, Case No. 14-CA-88 10

also testified that he would be open to such an idea if a third party would

facilitate and supervise visits.

{¶21} The magistrate then concluded in pertinent part:

1. First, it must be noted that while there was a great deal of

discussion about granting legal custody to a relative, there is no motion for

legal custody before the court. No motion for legal custody has ever been

filed in this case. Revised Code 2151.353(A)(3) states that a court may

grant legal custody "to either parent or to any other person who, prior to

the dispositional hearing, files a motion requesting legal custody of the

child or is identified as a proposed legal custodian in a complaint or motion

filed prior to the dispositional hearing by any party to the proceedings." As

no motion was ever filed, this option is not available in this case.

{¶22} As the magistrate acknowledged in his decision on page 8, the decision of

placement rests with appellee once permanent custody is granted. Appellee's ongoing

social worker assigned to the case, Matthew Tracy, opined the following (T. at 51-52):

I did talk with the grandparents at length multiple times about

different options for permanency between legal custody and permanent

custody and kind of what that entails. Licking County, Case No. 14-CA-88 11

With talking with them and kind of talking with my supervisor and

kind of staffing this case, came to the conclusion that permanent custody

is the best option for BJ at this time. I don't feel that the parents are in any

position now or in the near future to be able to take care of [B.], or BJ. I

also think that there's definitely some really hard feelings between the

parents and the grandparents where I don't think there could be

supervised visitations during those type of things.

***

Once again, I - - I feel it's in the best interest of - - of BJ to be

placed in the permanent custody of the Agency so that we can do an

adoption. At this point Mrs. and Mr. Speakman have indicated that they

would adopt BJ if the Agency were to be granted permanent custody.

{¶23} Upon review, we find sufficient clear and convincing evidence to support

the trial court's decision on best interest and the granting of permanent custody of the

child to appellee.

{¶24} Assignments of Error I and II are denied.

{¶25} Appellant claims the trial court abused its discretion in not granting an

extension of the temporary custody order and deferring ruling on the motion for

permanent custody. We disagree.

{¶26} Pursuant to R.C. 2151.415(D)(1), if an agency requests an extension of

temporary custody for a period of up to six months, a trial court may grant an extension Licking County, Case No. 14-CA-88 12

"if it determines at the hearing, by clear and convincing evidence, that the extension is

in the best interest of the child, 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." In

order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

{¶27} At the conclusion of the permanent custody hearing during closing

statements, appellant's counsel requested an extension (T. at 97-98):

I believe that the evidence did not show that Mom is abusing

prescription drugs. The home is clean and appropriate. The allegations

that were in the complaint have been remedied, or the issues that were in

the complaint have been remedied, and there have been no domestic

violence issues or reports. And so we are asking - - we are asking the

Court to grant an extension.

We do believe that the only reason that a legal custody motion

attached to the statement of understanding - - and a statement of

understanding were not presented to the Court or filed with the Court is

because it was not in maternal grandparents' best interest, not because it

was not in [B.], Junior's, best interest.

We don't believe that the grandparents are willing to work with Dad.

We believe that the grandparents are willing to work with Mom, but we Licking County, Case No. 14-CA-88 13

don't believe that - - we don't believe that they're willing to work with Dad,

and that is why they did not agree to legal custody at this time. That does

not mean that it was not in [B.], Junior's, best interest.

So since [B.], Junior, is the reason why we're here today, and since

the statute refers to his best interest and not the caregivers', then we are

asking that an extension of temporary custody be granted so that maybe

we can all work together even further to see if we can remedy the situation

short of permanent custody of [B.], Junior, to the State - - to the - - and

therefore the Agency, Your Honor.

{¶28} After an examination of the testimony, we concur with the magistrate's

assessment of this request in his decision on page 9:

Finally, with respect to granting an extension to pursue a legal

custody option, the undersigned can really see no basis for an extension.

The statute requires that, to grant an extension, a court must find "by clear

and convincing evidence, that the extension is in the best interest of the

child, there has been significant progress on the case plan of the child,

and there is a 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). Factually, the evidence presented

showed minimal progress in terms of the case plan. Minimal substance

abuse counseling has occurred. Minimal mental health counseling has Licking County, Case No. 14-CA-88 14

occurred. All the two have managed to do is clean their house enough so

that when someone comes to check, it meets minimal standards. Even

more that this, we have two people who have for the last several months

refused to comply with the case plan as ordered by this court and take

drug tests. This isn't just a lack of progress, but a choice to not do what is

being asked, which gives little hope for great improvement during an

extension period. Also, there is no real cause to believe that granting an

extension at this point will result in reunification or permanency of some

type. The whole reason that an extension was suggested was to allow

counsel to look for the possibility of another option in place of the one that

is actually available now.

{¶29} Upon review, we find the trial court did not abuse its discretion in not

granting an extension of the temporary custody order.

{¶30} Assignment of Error III is denied. Licking County, Case No. 14-CA-88 15

{¶31} The judgment of the Court of Common Pleas of Licking County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.

SGF/sg 1222