In re E.M

2013 Ohio 333

• Court: Ohio Court of Appeals
• Decided: February 4, 2013
• Docket: CA2012-09-068
• Status: Published

Opinion

[Cite as In re E.M, 2013-Ohio-333.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN RE: : CASE NO. CA2012-09-068 E.M., et al. : OPINION : 2/4/2013

:

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 2010 JC 04203

Amanda List, 2400 Clermont Center Drive, Suite 204-A, Batavia, Ohio 45103, Guardian Ad Litem

Brafford & Phillips, Suellen Brafford, 285 East Main Street, Batavia, Ohio 45103, for appellant

D. Vincent Faris, Clermont County Prosecuting Attorney, David H. Hoffmann, 123 North Third Street, Batavia, Ohio 45103-3033, for appellee

Anita Bechmann, 2340 Clermont Center Drive, Batavia, Ohio 45103, for Daniel M.

M. POWELL, J.

{¶ 1} Appellant, the biological mother of four children, appeals a decision of the

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

the children to a children services agency. Clermont CA2012-09-068

{¶ 2} Clermont County Department of Job and Family Services filed a complaint on

November 30, 2010, alleging M.M., appellant's youngest child, was an abused child. The

complaint alleged the child tested positive for cocaine and opiates at the time of his birth on

November 21, 2010. The child underwent methadone treatment in the hospital for

withdrawal. The complaint also alleged that the father refused to complete a drug screen

despite multiple opportunities. In addition, the complaint alleged that the father was charged

with aggravated robbery and abduction and there was a current warrant for his arrest. The

agency also alleged in the complaint that M.M.'s three older siblings were dependent children

based on the same facts. The three older children were removed from the home and all four

children were placed in the temporary custody of the agency.

{¶ 3} On January 25, 2011, M.M. was adjudicated an abused child and his siblings

were adjudicated dependent children. Although they were initially placed with their paternal

grandmother, the placement did not pass a home study, and all four children were placed in

a foster home.

{¶ 4} Appellant initially entered into drug treatment, but did not successfully complete

the treatment. She tested positive for cocaine in February 2012, and admitted to the

caseworker that she was using cocaine. The agency then moved for permanent custody of

the children on March 22, 2012.

{¶ 5} At a June 19, 2012 hearing on the permanent custody motion, the agency

caseworker testified that the children have been in agency custody since November 30,

2010. The caseworker testified that the children's father was convicted of and sentenced on

criminal charges at the end of 2010. Because he was incarcerated, no case plan was

prepared for the father.

{¶ 6} A case plan was prepared for appellant that required her to complete substance

abuse treatment, maintain sobriety, obtain and maintain housing and a source of income and -2- Clermont CA2012-09-068

to attend visitation with the children. The caseworker testified that appellant did not complete

the case plan. According to the caseworker, appellant spent a month in treatment at

Northland at the beginning of the case. She attended a 90-day program at Stepping Stones

in Portsmouth, Ohio, and asked for two extensions, but left before completing the second

extension and never returned. The caseworker stated that the treatment center does not

consider appellant as having successfully completed the program. The agency asked

appellant to follow up on her substance abuse treatment with Clermont Recovery Center

(CRC) and about a month later, appellant began services at the facility. In February 2012,

she failed a drug screen at CRC, and in May 2012, she failed another drug test and stopped

going to CRC. At the time of the hearing, appellant was not engaged in treatment. At the

hearing, the caseworker stated that appellant has an appointment scheduled at the end of

the week to try and get back into services at CRC.

{¶ 7} The caseworker stated that appellant acknowledges that she needs drug

addiction treatment, and has been candid about her drug use with the caseworker. Appellant

shared with the caseworker that she was positive for cocaine in February and opiates in

March. According to the caseworker, the mother claims she is on "benzos" for an ongoing

seizure disorder, which has resulted in some positive tests, but has not been able to provide

documentation for the agency. The caseworker indicated appellant reported that she does

not have a doctor and goes to the emergency room for her medication, but appellant has not

signed releases to allow the agency to verify the medical condition and use of prescription

medication.

{¶ 8} With regard to housing, the caseworker testified that she was "not entirely sure"

where appellant lived for the first part of the case because appellant has not given an

address until very recently. She indicated appellant was "bouncing around," living where she

could with family and friends. In December 2011, appellant obtained a trailer that the

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caseworker described as a "work in progress." According to the caseworker, appellant has

done some work to the trailer, but more work is needed. The caseworker testified that

appellant says she is working "under the table" but there has been no verification of her

employment. The agency asked the employer to provide a letter, but has not received any

response.

{¶ 9} The caseworker further testified that appellant has visitation with her children

one time per week and that the children are bonded to their mother. She indicated appellant

has been consistent in her visits with the children nearly every week and has missed only one

or two visits. She indicated the children were initially placed with their paternal grandmother

and great-grandmother, but were placed in a foster home when the home study "fell-

through." She indicated the children express most often that they want to live with their

grandmother. The caseworker stated that the current foster family is unable to adopt the

children, but the agency has identified a family who is interested in adopting all four children

and that family is in the process of completing the requirements for adoption. An agency

adoption supervisor testified at the hearing and discussed the process of adoption for the

children, which includes the children living in the potential home for six months before the

adoption.

{¶ 10} All of the children have special needs. The foster mother testified that the two

oldest children were not in counseling when they moved into her home, but based on some

concerns the foster mother experienced with the children, the children began counseling.

E.M., who was 10 years old at the time of the hearing, did well in counseling sessions. She

sees an eye doctor and is on an I.E.P. for math, reading and writing.

{¶ 11} The foster mother testified that K.M., who was eight years old at the time of the

hearing, attended counseling, and is still in need of the counseling sessions. K.M. has

adjustment disorder and depressive symptoms. The foster mother testified that K.M. also -4- Clermont CA2012-09-068

sees an eye doctor and they are in the process of developing an I.E.P. for a learning

disability.

{¶ 12} D.M., who was three years old at the time of the hearing, had eye surgery,

attended Early Head Start and attended occupational therapy. He has been diagnosed with

a sensory disorder and post-traumatic stress disorder. D.M. is on medication for severe

behavior problems experienced in the home.

{¶ 13} M.M. was treated for difficulty swallowing and aspirating liquids at birth and the

foster mother testified that he has not grown out of the condition. He attended early Head

Start and Help Me Grow programs and has some fine motor skills problems as a result of his

drug addiction.

{¶ 14} Appellant also testified at the permanent custody hearing. She stated that she

has been in her current home for one and one-half months. She explained that she had to

tear down walls and take everything out because of mold, and is putting in new floors and

walls, but the process is stalled because she needs more money to continue.

{¶ 15} Appellant indicated that she left during her second extension of drug addiction

treatment because she felt she was "getting nowhere" with her kids and wanted to be closer

to them. Appellant stated she did not feel she needed to be at the treatment facility because

she had been through the treatments.

{¶ 16} Appellant testified that she reported her failed drug screens to the caseworker.

She claimed that the caseworker said appellant did not need paperwork to verify her

prescription drug use and the caseworker did not ask for a medical release. Appellant

claimed she was not at CRC on May 9, 2012, when a drug test was positive, and said she

would have called the caseworker if she had a positive test. Appellant claimed the positive

test for opiates was due to a prescription she got at the hospital after she had a seizure and

fell. She testified that she missed a lot of appointments at CRC because transportation was -5- Clermont CA2012-09-068

an issue. She admitted that she has struggled with a drug problem all her life and as recently

as February was doing cocaine.

{¶ 17} A Child Support Enforcement Agency worker testified that a child support order

was established for appellant on April 1, 2011. The worker stated that appellant owes

$4,184.90 on the child support order and the agency received only $358.12 in payments from

a wage assignment order from a job appellant had with Belcan in January. Appellant testified

that she is currently working a roofing job at $8.50 an hour for 35 hours a week that is "under

the table." She explained that she is not able to drive and relies on her parents and mother-

in-law to take her where she needs to go.

{¶ 18} A magistrate granted the motion for permanent custody, finding that the

children had been in agency custody 12 of 22 months and that granting permanent custody

was in the best interest of the children. After a hearing, objections to the magistrate's

decision were overruled on September 12, 2012. Appellant now appeals the trial court's

decision to grant permanent custody of the children to the agency and raises the following

assignment of error for our review:

{¶ 19} THE TRIAL COURT ERRED WHEN IT FOUND, BY CLEAR AND

CONVINCING EVIDENCE, THAT GRANTING PERMANENT CUSTODY OF THE

CHILDREN TO THE CLERMONT COUNTY DEPARTMENT OF JOB & FAMILY SERVICES

("AGENCY") WAS IN THE BEST INTEREST OF THE CHILDREN.

{¶ 20} 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 Starkey, 150 -6- Clermont CA2012-09-068

Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). 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. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th

Dist.).

{¶ 21} 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. 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). Second, the

court must find that any of the following apply: the child is abandoned; the child is orphaned;

the child has been in the temporary custody of the agency for at least 12 months of a

consecutive 22-month period; or 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. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Nos. CA2009-10-

139, CA2009-11-146, 2010-Ohio-1122, ¶ 22.

{¶ 22} The juvenile court found by clear and convincing evidence, and appellant does

not dispute, that the children have been in the temporary custody of the agency for more than

12 months of a consecutive 22-month period as of the date the agency filed the permanent

custody motion. However, appellant does dispute the juvenile court's finding that granting

permanent custody of the children to the agency is in the children's best interest.

{¶ 23} Appellant first argues that the court abused its discretion in finding clear and

convincing evidence to grant permanent custody to the agency. However, appellant's

argument regarding this issue focuses on the court's dependency finding and the decision to

place the children into foster care. Appellant contends that a dependency finding is based on

whether a child is receiving proper care. She argues that the older three children lived with

the parents without any concerns of the agency until the youngest child was born, and there -7- Clermont CA2012-09-068

was no indication that the agency needed to place the children in foster care.

{¶ 24} We need not reach the merits of this argument, however. An order adjudicating

a child abused, neglected or dependent and awarding temporary custody is a final

appealable order. In re Murray, 52 Ohio St.3d 155 (1990). The determination that a child is

abused, neglected or dependent and award of temporary custody to a children services

agency cannot be raised on appeal from a court's decision to grant permanent custody. In re

H.F., 120 Ohio St.3d 499, 2008-Ohio-6810.

{¶ 25} Appellant also argues that the trial court abused its discretion in granting

permanent custody to the agency. She argues that the best interest factors support her

argument. She contends the children are bonded to her, want to remain with family, that she

spent six months in treatment and was unable to work on her case plan during that time.

She also argues that the children will have to be moved again to be adopted and K.M. has

adjustment disorder and depressive symptoms, causing her to struggle with changes in her

environment. Appellant argues that she has obtained employment, is engaged in drug

treatment and has housing, and she can provide a permanent home for the children.

{¶ 26} 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

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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.

{¶ 27} With respect to R.C. 2151.414 (D)(1)(a), the juvenile court found that the

evidence indicated that appellant is bonded to her children and the children are bonded to

her. In considering R.C. 2151.414(D)(1)(b), the court found that according to the caseworker,

the children most frequently expressed a desire to live with their paternal grandmother. The

court further found that they have also expressed to the caseworker that they would like to

live with their mother, but have strongly expressed that they want to live with their

grandmother. The court further found that the guardian ad litem's report indicated that the

two older children, E.M. and K.M., wish to live with their grandmother but the younger two

children cannot state their preference of residency.

{¶ 28} With respect to R.C. 2151.414 (D)(1)(c), the juvenile court found the parents

cared for the three older children before they were taken into agency custody and the

caseworker acknowledged this was a significant amount of time. The court further found that

at the time of the hearing, the children had been in the same foster home for more than a

year and that they have been in the temporary custody of the agency for more than 12 of 22

months.

{¶ 29} In considering R.C. 2151.414(D)(1)(d), the court found that the children need a

legally secure, permanent placement. The guardian ad litem recommended permanent

custody for the children and recommended that a permanent placement be identified and the

children start a transition. The court further found that the paternal grandmother and great-

grandmother asked to be considered for placement, but the home study was not approved. -9- Clermont CA2012-09-068

The court further considered the fact that the current foster parents did not want to adopt the

children, but noted that the caseworker reported a family who was willing to take all four

children. The court further indicated that an adoption supervisor detailed the steps

necessary for adoption approval, including the required six-month placement period.

{¶ 30} The court also found that the foster mother testified regarding the special needs

of the children, along with the educational and other services the children require. The court

found that "unquestionably, further changes in placement would be disruptive; particularly

with respect to the three older children who have emotional issues."

{¶ 31} The court considered the fact that the father was incarcerated and the fact that

appellant admits that she has had drug problems in the past. The court found that appellant

described what she was doing to control her drug problem and that she had only recently

made efforts to provide stable housing. The court found that appellant thinks if she were

given more time, she would get the house in order and complete the Clermont Recovery

Center program.

{¶ 32} The court concluded that the case began over one and one-half years prior to

the hearing because of the consequences of appellant's drug use and its impact on her

youngest child. The court found that appellant indicated drugs were involved all her life and

she knew she had to "get right" when she lost her children. The court noted appellant used

cocaine in February 2012 and has not successfully completed treatment.

{¶ 33} The court determined that appellant cannot presently provide the kind of legally

secure placement the children, all of whom have special needs, require. The court further

found that based on appellant's history and conduct over the course of the agency's attempt

for over 18 months to reunify her children with her, it does not appear that the children could

be placed with appellant in a reasonable time. The court stated that although it will require

another placement and a legal waiting period for adoption, the type of legally secure - 10 - Clermont CA2012-09-068

placement the children need cannot be achieved without a grant of permanent custody to the

agency.

{¶ 34} Based on consideration of the above factors, the court determined that it was in

the best interest of the children to grant permanent custody to the agency. We find no error

in this determination. The court recognized that the children are bonded to appellant and that

an additional placement and waiting period would have to be completed before an adoption

could take place. The court recognized that the children have special needs and need

permanency in their lives. Although appellant has made some progress, she still struggles

with addiction, does not have housing that is currently appropriate for the children, and

cannot provide the stability the children need. Appellant's assignment of error is overruled.

{¶ 35} Judgment affirmed.

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

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