In re N.C.1

2014 Ohio 2430

Opinion

[Cite as In re N.C.1, 2014-Ohio-2430.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: N.C.1, A.C., and N.C.2. : APPEAL NO. C-140097 TRIAL NO. F01-2211x :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 6, 2014

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest Lee, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,

Leslie Kennedy, for Appellee Guardian Ad Litem,

Timothy McKenna, for Appellant Mother,

Roberta Barbanel, for A.C.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Judge.

{¶1} Appellant mother appeals the judgment of the Hamilton County

Juvenile Court terminating her parental rights and granting permanent custody of her

sons, N.C.1, A.C., and N.C.2, to the Hamilton County Department of Job and Family

Services (“HCJFS”). She challenges the weight of the evidence supporting the trial

court’s judgment. After reviewing the record, mother’s arguments, and the applicable

law, we conclude the trial court’s judgment is supported by competent, credible

evidence, and therefore, affirm its decision to terminate her parental rights and

award permanent custody of her three sons to HCJFS.

Juvenile Court Proceedings

{¶2} Mother has four children with father. N.C.1, A.C., and N.C.2 are the

three youngest children. In 2010, mother was homeless, and left the children in the

custody of their maternal grandmother. The maternal grandmother contacted 241-

KIDS, and the children were placed in the protective supervision of HCJFS in April

2010. When the maternal grandmother reported she could no longer care for the boys

and the parents failed to follow through with services, the court terminated the order of

protective supervision and granted HCJFS’s motion for interim custody in May 2010.

{¶3} While the boys were in foster care, they made allegations that they

had been sexually abused by an older brother. In August 2010, the boys were

adjudicated dependent and HCJFS was granted temporary custody of them. In March

and August 2011, the juvenile court granted HCJFS extensions of temporary custody.

{¶4} In January 2012, HCJFS moved for permanent custody of the boys.

In April 2013, the magistrate heard testimony from N.C.1’s and N.C.2’s therapists, the

HCJFS caseworker, a support worker in the foster care program for N.C.1, and mother’s

case manager and therapist. The magistrate granted HCJFS’s motion for permanent

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custody in September 2013. Mother filed a timely objection, arguing the magistrate’s

decision was not supported by the weight of the evidence. In January 2014, the trial

court overruled mother’s objection and adopted the magistrate’s decision terminating

her parental rights and granting permanent custody of N.C.1, A.C., and N.C.2 to HCJFS.

Weight of the Evidence

{¶5} In a single assignment of error, mother argues the trial court’s

judgment granting permanent custody of N.C.1, A.C., and N.C.2 to HCJFS was contrary

to the manifest weight of the evidence.

{¶6} A trial court is authorized to terminate parental rights and to grant

permanent custody to a children services agency if it finds by clear and convincing

evidence that the children’s best interest would be served by a grant of permanent

custody to the agency and that one of the four conditions enumerated in R.C.

2151.414(B)(1)(a) through (d) has been met. See R.C. 2151.414(B); In re W.W., 1st Dist.

Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 48; Cross v. Ledford, 161

Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus (clear and

convincing evidence is that which produces in the mind of the trier of fact “a firm belief

or conviction as to the facts sought to be established”). This court “will not substitute

[it’s] own judgment for that of the trial court applying a clear and convincing standard

where some competent and credible evidence supports the trial court’s determinations.”

In re W.W. at ¶ 46.

{¶7} Mother argues that there is no competent and credible evidence to

support the juvenile court’s finding pursuant to R.C. 2151.414(B)(1)(a) that the

children could not be placed with her within a reasonable period of time or that it

was in the best interests of N.C.1, A.C., and N.C.2 to grant permanent custody to

HCJFS.

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{¶8} R.C. 2151.414(E) identifies factors for determining whether a child

cannot or should not be placed with either parent within a reasonable time. If a

court finds, by clear and convincing evidence, that any one of the R.C. 2151.414(E)

factors exists, 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.

See In re W.W. at ¶ 54-58. Pertinent here, the trial court found that mother’s failure

to substantially remedy the conditions that caused the children to be placed outside

the home, and her chronic mental illness and mental retardation, made her unable to

provide an adequate permanent home at the present time, or as anticipated, within

one year of the hearing. See R.C. 2151.414(E)(1) and (2).

{¶9} In determining the best interests of N.C.1, A.C., and N.C.2, the trial

court made findings based on the following statutory factors: (1) the interaction and

interrelationship of the children with their parents, siblings, relatives, foster

caregivers, out-of-home providers, and any other person who may significantly affect

the children; (2) the wishes of the children, as expressed directly by the children or

through the children’s guardian ad litem; (3) the custodial history of the children,

including whether the children have been in the temporary custody of public or

private children services agencies for 12 or more months; and (4) the children’s need

for a legally-secure placement and whether that type of placement can be achieved

without a grant of permanent custody. The trial court did not find any of the factors

in R.C. 2151.414(E)(7) through (11) applicable to mother. See R.C. 2151.414(D)(1);

In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, at ¶ 90-

91.

{¶10} Mother contends that she visited with her children regularly and

interacted with them appropriately. She notes her bond with the children and that

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she loves them. She further argues that a legally-secure placement can be made

without a grant of permanent custody to HCJFS. She stresses her completion of

some case-plan objectives and insists that if she were given more time she could

complete the others. Finally, she argues she could protect the children by separating

them from their older brother and by reporting any harm to them.

{¶11} After reviewing the record, we find competent, credible evidence to

support the juvenile court’s findings that the children could not be placed with

mother within a reasonable period of time and that it was in their best interests to

grant permanent custody to HCJFS.

{¶12} The record reflects that at the time the boys came into the care of

HCJFS, mother was struggling to manage their behaviors, meet their mental-health

and educational needs, and to get them to school on a consistent basis. N.C.1 has

been diagnosed with anxiety and developmental delays. A.C. has been diagnosed

with attention deficit hyperactivity disorder and developmental delays. N.C.2 has

been diagnosed with a severe speech impediment and developmental delays.

{¶13} The boys’ father was diagnosed with paranoid schizophrenia. He

has a history of sexually and physically abusing all three boys. He had no

involvement with HCJFS and his whereabouts have been unknown throughout the

proceedings.

{¶14} Mother suffers from mild mental retardation and was diagnosed

with depression. She was also a victim of domestic violence at the hands of father.

She admitted to being overwhelmed with the care of the children. The court ordered

mother to complete a psychological evaluation, maintain stable housing and income,

engage in the boys’ therapies, and complete parenting education.

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{¶15} While in foster case, the boys made allegations of sexual abuse by

an older brother, and eventually had to be separated because of sexually-reactive

behavior with each other. The boys have also been in multiple placements because of

aggressive behaviors. In March 2011, A.C. was hospitalized and placed in Cincinnati

Children’s Residential treatment. Mother did not participate in case-management

services at Centerpoint or family therapy while A.C. was placed at Cincinnati

Children’s Residential.

{¶16} In June 2011, N.C.1 made allegations of sexual abuse against

mother. The court suspended mother’s visits with N.C.1 and ordered her to complete

a sexual offender diagnostic assessment (“SODA”). Following the assessment, the

court ordered mother to undergo treatment and education for sexual abuse. In

August 2011, the court found that N.C.2 was suffering from post-traumatic stress

disorder, and displaying signs of psychosis, requiring intense therapy and

medisomatic services and constant supervision. N.C.2 had also disclosed that he had

been physically and sexually abused by his parents and his brothers.

{¶17} In January 2012, the guardian ad litem filed a motion to terminate

mother’s visits with all three children at the request of their therapists. All three

boys were struggling to manage their behaviors following visits with mother. The

trial court granted the motion in August 2012, when, despite therapy and continued

visits with mother, the children’s anxiety over her visits did not resolve.

{¶18} At the time of the permanent custody trial in April 2013, the boys

had been in the custody of HCJFS since May 2010, and mother still had not

completed all of her case-plan goals. She had completed parenting education, but

she had been unable to maintain consistent and stable housing. She was in her

fourth home since December 2011, and would not let the caseworker visit her. She

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had attended individual counseling 11 times, but she had not attended since

December 2012. She had not visited with the boys since August 2012, when the trial

court had suspended her visits because their anxiety over her visits had not resolved.

Mother’s therapist testified that because her visits with the boys had never resumed,

she had a difficult time understanding the impact of the sexual abuse on them.

Mother had also failed to complete the sexual offender treatment recommended in

her SODA.

{¶19} N.C.2 and A.C. had made progress, but they were still struggling

with anxiety and depression. A.C. was still in a structured residential setting where

he could see his individual therapist and participate in group therapy on a weekly

basis. A.C. was expected to be discharged from the residential setting to a

therapeutic foster home in June 2013. A.C. wanted to visit with his brothers and his

mother.

{¶20} N.C.2’s therapist testified that he had continued to talk about the

physical and sexual abuse that he had experienced at the hands of his parents and his

brothers; he was physically and verbally aggressive with his peers and with adults; he

made inappropriate sexual comments; and he displayed extreme anxiety where he

had to rock himself to self-soothe. His therapist recommended that family therapy

not begin until mother had completed the treatment recommended in her SODA.

She further testified that N.C.2 had expressed intense fears about living with his

brothers, and had told her that he would run away if he had to live with them again.

{¶21} N.C.1’s therapist testified that he has expressed frustration that

mother does not believe his reports of abuse and that N.C.1 is concerned that mother

will be unable to keep him safe. He had made progress in his therapy following the

termination of his visits with mother. He was more even tempered, his social skills

7 OHIO FIRST DISTRICT COURT OF APPEALS

and manners had improved, and he had bonded with his foster mother. N.C.1,

however, had recently been displaying some schizophrenic tendencies, including

some auditory and visual hallucinations, which was concerning.

{¶22} Both N.C.1 and N.C.2 had expressed a desire to be adopted by their

foster parents, and did not want to reunify with their parents. A.C., however, had

expressed a desire to live with mother. The guardian ad litem for N.C.1 , N.C.2, and

A.C. recommended that HCJFS be granted permanent custody of all three boys. The

In re Williams attorney for A.C., conveyed that it was A.C.’s wish to be placed with

mother. See In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110.

{¶23} The ongoing caseworker recommended that custody of all three

boys be granted to HCJFS. She testified that their basic needs, their therapeutic and

behavioral needs, and their safety needs were all being met in HCJFS’s custody. She

acknowledged that mother had bonded with her children and that she loved them,

but she testified that given mother’s own mental-health needs, the history of physical

and sexual abuse the boys had suffered, and mother’s inability to protect the boys,

that their best interests would be served by a grant of permanent custody to HCJFS.

{¶24} Based upon our review of the record and the applicable law, we

hold that the trial court’s judgment awarding permanent custody of N.C.1, A.C., and

N.C.2 was supported by competent, credible evidence. We, therefore, overrule

mother’s sole assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

CUNNINGHAM, P.J, and HILDEBRANDT, J., concur.

Please note: The court has recorded its own entry this date.