In re C.M.

2017 Ohio 57

• Court: Ohio Court of Appeals
• Decided: January 9, 2017
• Docket: CA2016-07-051
• Status: Published

Opinion

[Cite as In re C.M., 2017-Ohio-57.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN THE MATTER OF: :

C.M. : CASE NO. CA2016-07-051

: OPINION 1/9/2017 :

:

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 2012 JC 0432

Megan Salyers, 4725 Cornell Road, Cincinnati, Ohio 45241, guardian ad litem

Dever Law Firm, Scott Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio 45069, for appellant

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

RINGLAND, J.

{¶ 1} Appellant, the biological mother of C.M. ("Mother"), appeals a decision of the

Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of

C.M. to appellee, the Clermont County Department of Job and Family Services ("CCDJFS").

For the reasons detailed below, we affirm.

{¶ 2} On January 9, 2012, CCDJFS filed a dependency complaint and requested Clermont CA2016-07-051

temporary custody of C.M., who was less than two years old. The complaint alleged that

CCDJFS received a report stating that Mother had overdosed on heroin. Following a

hearing, C.M. was adjudicated a dependent child. C.M. remained in the custody of Mother,

but was subject to the protective supervision of CCDJFS.

{¶ 3} Mother's case plan including housing, income, mental health, drug treatment,

and parenting education. Mother made progress towards the completion of her case plan,

particularly with her completion of a substance abuse treatment program. However, the

record reflects that CCDJFS continued to express concerns with respect to Mother's maturity

and ability to parent. Throughout the pendency of these proceedings, C.M.'s father has

failed to enter into a case plan and has no involvement in this matter.

{¶ 4} The ensuing years brought continued involvement with Mother and CCDJFS.

On November 8, 2012, CCDJFS was granted temporary custody through an emergency

order. Following a hearing, C.M. was again placed with Mother, again subject to the

protective supervision of CCDJFS.

{¶ 5} C.M. was again removed on June 10, 2013 and temporary custody was granted

to the agency on August 16, 2013. CCDJFS moved for permanent custody on August 22,

2014. Following a hearing, CCDJFS was denied permanent custody of C.M. and Mother,

again, was able to obtain protective supervision of C.M. on April 10, 2015.

{¶ 6} CCDJFS moved for permanent custody a second time and a trial was held on

February 5, 2016. At the permanent custody hearing, the state presented the testimonies of

several CCDJFS caseworkers, the guardian ad litem ("GAL"), C.M.'s foster father, as well as

Mother's counselor and other individuals assigned to her case to assist with parenting and

responsibility issues.

{¶ 7} Mother testified in support of her case and also called an independent

homecare provider, her brother, and a neighbor. In addition, Maternal Grandmother testified -2- Clermont CA2016-07-051

in support of Mother and also in support of her own motion for custody.

{¶ 8} The GAL prepared a written report in which she recommended permanent

custody be granted to the agency. The GAL noted that Mother and C.M. are bonded, but

expressed serious concern with Mother's maturity and ability to parent. In addition, the GAL

testified that Maternal Grandmother was not a suitable placement, as she had not completed

a home study and there were concerns that Mother would continue to exert influence and

"run the show" with respect to C.M. In addition, there were concerns with Maternal

Grandmother's stability in her current living arrangement. While Maternal Grandmother

maintained an apartment, she did not have long-term plans at that residence and there were

concerns that she would return to her home in Moscow, Ohio. At the time, Maternal

Grandmother's son and his family resided in the Moscow home and had had been

uncooperative with CCDJFS. In her testimony, Maternal Grandmother admitted that her son

and his wife had a background that included "some things" on "the unacceptable list."

{¶ 9} After taking the matter under advisement, the juvenile court magistrate granted

permanent custody in favor of CCDJFS. Mother then filed objections to the magistrate's

decision, which were overruled. Mother now appeals the juvenile court's decision granting

permanent custody to CCDJFS, raising one assignment of error for review:

{¶ 10} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS DECISION

AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILD TO THE AGENCY

DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 11} In her sole assignment of error, Mother argues the juvenile court's decision

granting permanent custody of C.M. to CCDJFS was not in C.M.'s best interest and was not

supported by the weight of the evidence. After a thorough review of the record, we find

Mother's assignment of error is without merit.

{¶ 12} Before a natural parent's constitutionally protected liberty interest in the care -3- Clermont CA2016-07-051

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.

{¶ 13} 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,

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.

{¶ 14} In this case, the juvenile court found by clear and convincing evidence that -4- Clermont CA2016-07-051

C.M. had been in the temporary custody of CCDJFS for more than 12 months of a

consecutive 22-month period as of the date the agency filed for permanent custody. Mother

does not dispute this finding. Rather, Mother contests the juvenile court's finding that

granting permanent custody of C.M. to CCDJFS was in his best interest.

{¶ 15} 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.

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

each of 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 that C.M. and his father do not

have a relationship. Though Mother and C.M. do have a relationship and are bonded, the

juvenile court also found that their relationship is stressful. Mother has problems disciplining

C.M. and there are concerns about Mother's ability to parent. Mother has a pattern of failing

to develop a daily routine and repeatedly failed to ensure C.M.'s attendance at court-ordered

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educational daycare in a timely fashion and there was great concern that Mother would not

ensure C.M.'s attendance at school.

{¶ 17} In addition, the trial testimony highlights a concerning inability to parent. In

communications with C.M., Mother will often ask adult-style questions and is unable to

differentiate between age-appropriate behavior and topics. The majority of their visitation

time consists of playing videogames, instead of engaging in appropriate conversation.

Furthermore, agency caseworkers testified about a number of situations highlighting Mother's

impulsive behavior and inability to control C.M. As one example, a CCDJFS caseworker

explained that during one visit to the agency, a fire alarm sounded and everyone was

evacuated from the building. As Mother, C.M., and the caseworker were reentering the

building, C.M. chose to hold the caseworker's hand. Mother became offended by this act and

threatened not to visit C.M. again and walked away from him, leaving him in tears. In another

instance, a CCDJFS caseworker made an unannounced visit to Mother's home to discover

that C.M. had been left at home unattended.

{¶ 18} Regarding Maternal Grandmother, there is justified concern that Maternal

Grandmother is not a suitable placement. Despite the lengthy proceedings, Maternal

Grandmother did not take the necessary steps to offer an alternative arrangement until the

very end of these proceedings. Though Maternal Grandmother currently resides in an

appropriate home, she admitted that she does not have a long-term plan in that residence

and there is concern that she will move back to her home in Moscow, which would not be

appropriate considering concerns about the other individuals residing there.

{¶ 19} To the contrary, the juvenile court found that "there is no doubt that the foster

family has had a significantly positive impact upon C.M.'s life." The trial court noted that a

more structured family environment has alleviated many of the behavioral issues that C.M.

exhibits with Mother. The foster family attends to C.M.'s educational and emotional needs -6- Clermont CA2016-07-051

and their family structure provides C.M. with ample interaction with extended family. Despite

initial concerns that C.M. may require special education services due to developmental

delays, those concerns were later resolved as C.M. presents as a very intelligent child who

enjoys reading with the foster family and keeping a reading journal. In addition, the record

reflects that C.M. is very bonded with the foster family. The foster family has expressed a

desire to adopt C.M. should permanent custody be granted to the agency.

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

child's wishes had been expressed to the GAL and C.M. expressed his desire to remain with

the foster family, but still be able to visit Mother.

{¶ 21} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed C.M.'s

custodial history and found that C.M. had been in the temporary custody of the agency for 12

or more months of a consecutive 22-month period.

{¶ 22} In considering R.C. 2151.414(D)(1)(d), the juvenile court found C.M. is in need

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

placement, and such placement is the only way C.M.'s needs can be achieved. The juvenile

court noted that Mother had attended many of the programs mandated by her case plan, but

had failed to demonstrate the desire and motivation to apply those lessons to her daily life.

Mother does not accept guidance from others, as she believes that CCDJFS is to blame for

C.M.'s removal from her home.

{¶ 23} In sum, Mother was given one final chance to prove that she could care for

C.M., but has failed to rectify the very serious concerns about her ability to parent. The most

recent attempts at parenting indicate that Mother cannot control C.M., and that she cannot

refrain from loud outbursts in front of the child, or make C.M.'s health and welfare her first

priority. While in the care of the foster family, C.M. has been afforded the stability and

security that he requires. -7- Clermont CA2016-07-051

{¶ 24} With respect to Maternal Grandmother, the juvenile court found that her

situation was "unsuitable." Again, Mother does not have long-term plans in her current living

arrangement and there are concerns that Mother has not been forthright with the agency, as

evidenced by Maternal Grandmother not informing the agency that she had another child in

her care. In addition, Maternal Grandmother's inability to control Mother will likely continue to

keep C.M.'s life in chaos.

{¶ 25} Based on these findings, the juvenile court found by clear and convincing

evidence that it was in C.M.'s best interest to grant permanent custody to CCDJFS. On

appeal, Mother disputes the juvenile court's findings and argues that the evidence did not

support the grant of permanent custody. In so doing, Mother alleged that she has maintained

her sobriety and has secured stable housing. In addition, Mother states that the evidence

shows that she knows how to support C.M. and can provide him with a healthy and safe

environment. Although Mother agrees that certain provisions of the case plan have not been

followed, she alleges that many of these alleged violations were mere "technical violations"

and do not reflect agency concerns. In sum, Mother believes that the evidence

demonstrated that placement with her would be appropriate and legally secure.

{¶ 26} We have carefully and thoroughly reviewed the evidence in this case and find

that the juvenile court's determination regarding the best interest of C.M. is supported by

clear and convincing evidence and was not against the manifest weight of the evidence. This

matter has a lengthy and concerning history. Though Mother has made progress in the

treatment of her drug addiction and shown positive growth in other areas, the record reflects

that C.M.'s best interests are best served through a grant of permanent custody to CCDJFS.

Mother has had over four years to improve the situation in her household. Still, Mother does

not seem able to control herself or recognize the full extent of her parental responsibilities

with respect to the care of C.M. As this court has stated previously, "a parent is afforded a -8- Clermont CA2016-07-051

reasonable, not an indefinite, period of time to remedy the conditions causing the children's

removal." In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 23; In re

A.M.L., 12th Dist. Butler No. CA2013-01-010, 2013-Ohio-2277, ¶ 32. While Mother has

shown some ability to work within the confines of her case plan, it was too little, too late. The

record clearly indicates that Mother is incapable of taking care of C.M. on a consistent basis.

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

CCDJFS permanent custody of C.M. Mother's single assignment of error is overruled.

{¶ 28} Judgment affirmed.

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

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