In re N.K.

2019 Ohio 371

• Court: Ohio Court of Appeals
• Decided: February 6, 2019
• Docket: 29074
• Status: Published

Opinion

[Cite as In re N.K., 2019-Ohio-371.]

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

IN RE: N.K. C.A. No. 29074 C.K. M.K. N.K. C.K. APPEAL FROM JUDGMENT D.K. ENTERED IN THE N.K. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 17-04-000222 DN 17-04-000223 DN 17-04-000224 DN 17-04-000225 DN 17-04-000226 DN 17-04-000227 DN 17-04-000228

DECISION AND JOURNAL ENTRY

Dated: February 6, 2019

SCHAFER, Judge.

{¶1} Appellant, Tina B. (“Mother”), appeals from a judgment of the Summit County

Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed her

seven minor children in the permanent custody of Summit County Children Services Board

(“CSB”). This Court affirms.

I.

{¶2} Mother is the biological mother of N.K., born March 23, 2007; C.K., born April

23, 2008; M.K., born April 21, 2010; N.K., April 20, 2011; C.K., born September 19, 2013;

D.K., born October 7, 2014; and N.K., born November 29, 2016. The father of these seven

children (“Father K.”) did not appeal from the trial court’s judgment. 2

{¶3} CSB has a lengthy history with this family, dating back to March 2001, with

Mother’s oldest two children, C.H. and B.H., who are now adults and are not parties to this

appeal. At the time C.H. and B.H. were removed from Mother’s home, they were only one and

two years old. C.H. had numerous bruises and other injuries on his body and B.H. was suffering

from untreated pneumonia. Mother later agreed that she had not been meeting the children’s

basic needs, including providing them with appropriate medical treatment for their injuries and

illnesses.

{¶4} During that case, C.H. was adjudicated abused and dependent and B.H. was

adjudicated neglected. Among other things, the case plan required that Mother engage in

ongoing treatment to address her mental health problems and to demonstrate that she could

provide for the basic needs of her children. The trial court later found that Mother complied with

the requirements of the case plan. On October 15, 2001, C.H. and B.H. were returned to

Mother’s custody under an order of protective supervision. The trial court terminated protective

supervision and closed that case on April 9, 2002.

{¶5} CSB filed complaints in a second case on November 12, 2008. That case again

involved C.H. and B.H. as well as the two oldest children at issue in this appeal. The complaint

in that case alleged that Father K. had been physically abusing C.H., who is not his child. C.H.

was adjudicated abused, neglected, and dependent. The other children, including B.H., were

adjudicated dependent. The case plan required Father K. to vacate the premises and have no

contact with the children. The children were initially allowed to remain with Mother, under an

order of protective supervision, but were removed from her custody shortly afterward and placed

in the temporary custody of CSB. 3

{¶6} During the 2008 case, the reunification goals focused on obtaining mental health

treatment for the children and Mother. Mother disclosed that she had also been a victim of abuse

as a child and that she had a long history of mental health problems. Mother began mental health

counseling and treatment with psychiatric medication. The children were eventually returned to

her custody and the case was closed during March 2011.

{¶7} Mother gave birth to another child during the second case and, before the current

case began on April 5, 2017, she gave birth to four more children. The complaints in this case

alleged that B.H., then still a minor, and these seven children were abused and/or dependent

children because Mother’s now-adult son, C.H., had sexually abused several of them. In

addition to Mother’s long history with CSB, the complaints further alleged that Mother had been

abusing drugs and had been aware of the sexual abuse allegations but had done nothing to protect

her minor children. The agency also alleged that the children had been left to fend for

themselves to meet even their basic needs.

{¶8} Mother later agreed to adjudications of dependency of B.H. and these seven

children and that the children should be placed in the temporary custody of CSB. This was the

third time that B.H. was adjudicated a neglected and/or dependent child. See R.C.

2151.414(B)(1)(e). The case plan in this case again focused on Mother’s mental health, poor

decision making, and her more recent problem with drug abuse.

{¶9} Although there were numerous goals on the case plan for Mother, the most

significant goal was for Mother to stabilize her mental health. Mother had been diagnosed with

bipolar disorder at the age of eleven, has been hospitalized for psychiatric treatment repeatedly,

and her primary source of income is disability benefits that she receives because of her serious

mental health problems. 4

{¶10} Mother had stopped taking psychiatric medication shortly before this case began

and was exhibiting symptoms of mania when she received her psychological evaluation in this

case. During this case, Mother was diagnosed with additional, serious mental health disorders,

but she refused to admit that she had any mental health problems or to engage in ongoing

treatment. CSB was also concerned that Mother continued to make poor choices by involving

herself in violent relationships and, more recently, had started abusing drugs. Mother refused to

work on the treatment goals of the case plan and did not visit her children on a regular basis.

{¶11} On January 24, 2018, CSB moved for permanent custody of these seven children.

Following a hearing, the trial court terminated parental rights and placed the children in the

permanent custody of CSB. Mother appeals and raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT’S DECISION TO TERMINATE PARENTAL RIGHTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]

{¶12} Mother’s first assignment of error is that the trial court’s permanent custody

decision was not supported by the evidence presented at the hearing. 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; the child or another child in a parent’s custody has

been adjudicated abused, neglected, or dependent on three separate occasions; or 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 5

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., 75 Ohio St.3d 95, 99 (1996).

{¶13} The trial court found that CSB satisfied the first prong of the permanent custody

test for several alternative reasons, including that B.H., another child who had been in Mother’s

custody, had been adjudicated neglected or dependent on three separate occasions. See R.C.

2151.414(B)(1)(e). Mother does not dispute that the evidence supported this first-prong finding.

{¶14} Instead, Mother argues that permanent custody was not in the best interest of the

children but that, instead, the court should have granted a six-month extension of temporary

custody. The trial court had authority to extend temporary custody only if it also found that

Mother had made “significant progress” on the goals of the case plan and that there was

reasonable cause to believe that the children would be reunified with her or otherwise

permanently placed during the extension period. In re J.G., 9th Dist. Summit No. 29106, 2018-

Ohio-5222, ¶ 8, quoting R.C. 2151.415(D)(1).

{¶15} The record in this case reveals that Mother had failed to make even minimal

progress on the reunification goals of the case plan. Instead, she continued to abuse drugs, was

convicted for drug-related crimes, and did not follow through with counseling and medication for

her multiple, serious mental health diagnoses. Mother also failed to visit her children on a

regular basis, even when she was not incarcerated.

{¶16} “Moreover, the trial court was required to conduct a best interest analysis to

determine whether to place the children in the permanent custody of CSB or to extend temporary

custody.” In re J.G. at ¶ 9. When determining the child’s best interest under R.C. 2151.414(D),

the juvenile court must consider all relevant factors, including the interaction and

interrelationships of the children, the children’s wishes, the custodial history of the children, and 6

the need for permanence in their lives. R.C. 2151.414(D)(1); In re R.G., 9th Dist. Summit Nos.

24834 and 24850, 2009-Ohio-6284, ¶ 11.

{¶17} Mother’s visits with the children were always closely monitored because she

failed to comply with the requirements of the case plan and CSB remained concerned about her

behavior around the children. Mother frequently behaved inappropriately around the children,

including insulting them, defying the directions of the visitation supervisors, and discussing

graphic and inappropriate details about her life. Mother’s drug use continued, her attendance at

visits became more sporadic, and she was ultimately convicted of aggravated possession of

drugs. Mother was initially placed on probation but, according to her probation officer, Mother

had not been complying with the conditions of her probation. Mother stopped visiting the

children approximately one month before the hearing.

{¶18} Although the oldest three children had expressed their desire to return to Mother’s

custody, CSB presented evidence that these children suffered from serious emotional problems.

The older children had suffered serious trauma through the sexual abuse by C.H. and also

suffered from unrelated mental illness and/or cognitive delays. One of the children also suffered

horrible guilt about the family’s situation because he had reported the abuse by C.H. Therapists

testified that the children were just beginning to learn how to deal with their emotions and

communicate their feelings. The younger children were too young to express their wishes. The

guardian ad litem believed that permanent custody was in the best interest of all the children

because their basic and emotional needs were being met in a stable environment away from their

parents.

{¶19} During this case, the children lived outside Mother’s custody for less than a year

but they had finally achieved some stability in their lives. While they had lived with Mother, 7

their basic and special needs had been neglected and many of them had been the victims of

repeated sexual abuse in their own home. All of these children were in need of a legally secure

permanent placement and CSB had been unable to locate any suitable relatives who were willing

and able to provide a permanent home for any of them. The trial court reasonably concluded

permanent custody was in their best interests. Mother’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT MOTHER’S MOTION FOR LEGAL CUSTODY WHERE CSB FAILED TO USE REASONABLE REUNIFICATION EFFORTS TO REUNITE APPELLANT MOTHER AND HER MINOR CHILD[REN.]

{¶20} Mother’s second assignment of error is that CSB failed to exert reasonable efforts

to reunify Mother with her children because it did not arrange for Mother to attend parenting

education classes, but instead focused on her first addressing her mental health problems.

Although Mother asserts throughout her brief that she was making significant progress on the

goals of the case plan, as explained already, she was not.

{¶21} Of greatest concern to CSB were Mother’s untreated mental health problems and

resulting drug usage and history of making poor choices for herself and her family. Before

Mother could benefit from parenting classes and many other case plan services, it was

fundamental that she stabilize her mental health. Nevertheless, Mother refused to even admit

that she had mental health or substance abuse problems or to engage in any treatment. The

undisputed evidence before the trial court demonstrated that Mother’s inability to be reunited

with her children was the result of her own refusal to comply with the requirements of the case

plan, not because of a lack of reunification efforts by CSB. Mother’s second assignment of error

is overruled. 8

ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED RECORDS WITHOUT MANDATORY NOTICE TO ALL PARTIES.

{¶22} Mother’s final assignment of error is that the trial court erred in admitting certain

exhibits into evidence because CSB had failed to provide defense counsel with the written notice

that it would be subpoenaing those records from certain mental health agencies. Trial counsel

raised this objection at the hearing and, after a lengthy discussion on the record, the trial court

allowed the exhibits to be admitted.

{¶23} To establish reversible error, Mother must demonstrate an error in the trial court

proceedings that resulted in prejudice to her defense. See, e.g., In re P.T., 9th Dist. Summit No.

24207, 2008-Ohio-4690, ¶ 17. Even if Mother could establish that she was deprived of proper

notice that CSB intended to introduce these exhibits, she must establish that the lack of notice

hampered her counsel’s ability to prepare a defense. Although Mother’s counsel raised a timely

objection to the introduction of this evidence, counsel did not request a continuance of the

hearing or a recess to enable defense counsel to review the exhibits to prepare to defend against

them. See In re R.R., 9th Dist. Summit No. 27572, 2015-Ohio-5245, ¶ 21 (emphasizing that a

continuance could have avoided any prejudice caused by a lack of notice about evidence to be

considered by the trial court.).

{¶24} Mother’s only argument on appeal is that some of the information in the records

predated this case. The agency is not precluded from admitting evidence from prior cases

involving the same parent. In fact, CSB had moved for permanent custody on several alternative

grounds, including that this case involved the third adjudication of B.H. as a neglected and/or

dependent child. To establish that ground, the agency necessarily needed to present clear and 9

convincing evidence that B.H. had been adjudicated in two prior cases and the reasons for those

adjudications. Mother’s third assignment of error is overruled.

III.

{¶25} Mother’s assignments of error are overruled. The judgment of the Summit

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 Summit, 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(C). 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.

JULIE A. SCHAFER FOR THE COURT 10

CARR, P. J. HENSAL, J. CONCUR.

APPEARANCES:

RHONDA L. KOTNIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.