In re P.B.

2019 Ohio 2373

• Court: Ohio Court of Appeals
• Decided: June 17, 2019
• Docket: 18CA011448
• Status: Published

Opinion

[Cite as In re P.B., 2019-Ohio-2373.]

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

IN RE: P.B. C.A. No. 18CA011448 D.B. T.B. T.B. E.B. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 16JC49755 16JC49756 16JC49757 16JC50510 16JC50511

DECISION AND JOURNAL ENTRY

Dated: June 17, 2019

TEODOSIO, Presiding Judge.

{¶1} Appellant Mother appeals the judgment of the Lorain County Court of Common

Pleas, Juvenile Division, that terminated her parental rights and awarded permanent custody of

her five children to appellee Lorain County Children Services (“LCCS” or “the agency”). This

Court affirms.

I.

{¶2} Mother is the biological mother of P.B. (d.o.b. 1/31/09), D.B. (d.o.b. 10/9/11), 1-

T.B. (d.o.b. 6/18/13), 2-T.B. (d.o.b. 5/28/14), and E.B. (d.o.b. 11/7/15). Based on concerns

regarding Mother’s lack of supervision of the youngest four children, her struggle to provide for

the basic needs of all the children, her mental health, and the children’s exposure to domestic

violence in the home, LCCS filed complaints alleging that the children were neglected and 2

dependent. After adjudicatory hearings, the juvenile court found the five children to be

neglected and dependent. After the initial dispositional hearing, P.B., 2-T.B., and E.B. remained

with Mother under an order of protective supervision by the agency. D.B. and 1-T.B. were

placed in the temporary custody of LCCS. Over the course of the case below, all five children

were placed in the temporary custody of various relatives. When those placements disrupted, the

juvenile court awarded temporary custody of all five children to LCCS which placed them in

foster homes.

{¶3} Maternal Grandmother (“Grandmother”) filed a motion to intervene in the

proceedings. After the juvenile court granted her intervention, Grandmother filed motions for

legal custody of and visitation with the five children. LCCS filed a motion for permanent

custody. After a two-day hearing, the juvenile court granted the agency’s motion, terminated the

parents’ parental rights, and awarded permanent custody to LCCS. Mother filed a timely appeal

in which she raises one assignment of error for review. Neither Grandmother nor Father has

appealed.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY FINDING THAT IT WAS IN THE BEST INTERESTS OF THE MINOR CHILDREN TO BE PLACED IN THE PERMANENT CUSTODY OF LORAIN COUNTY CHILDREN SERVICES DESPITE THE FACT SUCH FINDING WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

{¶4} Mother argues that the juvenile court’s award of permanent custody of the

children was against the manifest weight of the evidence. This Court disagrees.

{¶5} In considering whether the juvenile court’s judgment is against the manifest

weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers 3

the credibility of witnesses and determines whether in resolving conflicts in the evidence, the

[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the

[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations

omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the

evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”

Id. at ¶ 21.

{¶6} 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 of the same parent has been adjudicated abused, neglected, or dependent

three times; or that the child cannot 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 agency is in the best interest of

the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and

2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). The best interest

factors include: the interaction and interrelationships of the child, the wishes of the child, the

custodial history of the child, the child’s need for permanence and whether that can be achieved

without a grant of permanent custody, and whether any of the factors outlined in R.C.

2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see also In re R.G., 9th Dist. Summit

Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11. Clear and convincing evidence is that which will

“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368

(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. 4

{¶7} In its motion for permanent custody, LCCS alleged as first-prong grounds that

D.B. and 1-T.B. had been in the temporary custody of the agency for 12 of the past 22 months

pursuant to R.C. 2151.414(B)(1)(d), and that none of the five children could or should be

returned to their parents pursuant to R.C. 2151.414(B)(1)(a). The agency premised its allegation

that the children should not be returned to the parents on the parents’ failure to remedy the

problems that initially caused the children’s removals from the home pursuant to R.C.

2151.414(E)(1), and on the parents’ demonstrated lack of commitment to the children pursuant

to R.C. 2151.414(E)(4). The five first-prong grounds are alternative findings; the agency must

prove only one to satisfy the first part of the permanent custody test. In re A.W., 9th Dist. Lorain

No. 17CA011123, 2017-Ohio-7786, ¶ 17, citing In re E.M., 9th Dist. Wayne No. 15CA0033,

2015-Ohio-5316, ¶ 12.

{¶8} Mother erroneously argues that the juvenile court found that all five children had

been in the temporary custody of LCCS for 12 of 22 months. The judgment entry recites a

finding that only D.B. and 1-T.B. were in the agency’s temporary custody for at least 12 months.

Considering the statutory guideline for determining when a child has entered the temporary

custody of the agency, and not considering other times when the children were in the temporary

custody of relatives or returned to shelter care, the record indicates that D.B. and 1-T.B. were in

LCCS’s temporary custody for approximately 336 days, i.e., fewer than 12 months. This

conclusion is immaterial under the circumstances, however, as the juvenile court also found that

LCCS satisfied the first prong of the permanent custody test by presenting clear and convincing

evidence to establish that all five children cannot or should not be returned to the parents.

{¶9} Mother failed to challenge the juvenile court’s finding, which is fully supported

by the record, that the children cannot or should not be returned to the parents based on their 5

failures to remedy the problems underlying the children’s removals and/or their demonstrated

lack of commitment. As only one R.C. 2151.414(B)(1) finding is required to satisfy the first

prong of the permanent custody test, and Mother has not challenged the R.C. 2151.414(B)(1)(a)

finding, the first prong is satisfied.

{¶10} Mother next challenges the juvenile court’s second-prong finding that an award of

permanent custody was in the children’s best interest. Although Mother argues regarding a child

identified as “E.S.,” this Court presumes that designation is a typographical error. Accordingly,

we consider the evidence with regard to the best interest of P.B., D.B., 1-T.B., 2-T.B., and E.B.

{¶11} Father had limited involvement with the children during the case and failed to

participate in any of his case plan objectives.

{¶12} While the children were still in Mother’s legal custody, they lived with

Grandmother while Mother served a three-month jail sentence. After Mother’s release from jail,

the children remained with Grandmother for another six months as Mother tried to resettle her

life. After LCCS became involved, the children have not all resided together, although each

child has resided with at least one other sibling. They have been placed with various relatives, in

and outside Ohio, and with various foster care providers. At the time of the permanent custody

hearing, P.B., D.B., and 1-T.B. were together in one foster home; while 2-T.B. and E.B. were

together in another foster home.

{¶13} Mother admitted that she only attended 20 of the 41 offered visits with the

children. She was late for five of those visits but still allowed to spend time with the children.

Mother frequently brought other people to the visits. Although she was required to bring

diapers, wipes, and food to visits, Mother typically relied on her friends and family who joined

her to bring such things to visits. The caseworker described the visits as chaotic, as Mother had a 6

hard time handling five children at once. Even after the agency expanded her visits to three

hours, wherein she saw the girls during the first two hours and the boys during the last two hours

with a one hour overlap, Mother continued to struggle to control the situation. The guardian ad

litem reported that Mother would play a little with the children but that she quickly became

overwhelmed.

{¶14} Mother loves the children, and they were always happy to see her. The older

children who could communicate did not talk about Mother outside of visitations. All five

children have developed strong sibling bonds. They also love and share somewhat of a bond

with Grandmother. They are well adjusted and comfortable in their foster homes.

{¶15} The guardian ad litem reported that nine year old P.B. indicated that she wants to

live with her siblings. According to the guardian, the other four children were too immature to

express their wishes. He recommended that the children be placed in the permanent custody of

LCCS in their best interest based on the parents’ lack of desire to work on their case plan

objectives and the inappropriate environment in Grandmother’s home.

{¶16} LCCS developed a case plan designed to facilitate reunification and offer

permanency for the children. Mother’s case plan objectives included (1) demonstrating the

ability to meet the children’s basic needs, (2) attending parenting classes and demonstrating the

ability to offer consistency and appropriate discipline, (3) obtaining a mental health assessment

and following all recommendations, and (4) obtaining a domestic violence assessment and

following all recommendations. Mother made virtually no progress on her case plan objectives.

{¶17} Although Mother had keys to an apartment for which she had a $0 rent obligation

and a utilities subsidy, the evidence indicated that she had abandoned those premises. The

utilities had been shut off, mail had piled up in the mailbox, there was no food or toiletries in the 7

apartment, and there was trash strewn throughout the home. One bare mattress was on the floor

in one of the bedrooms. Mother had not responded to two notices of abandonment posted on her

apartment door. Mother continued to cash her utilities subsidy checks but used that money for

other bills. It was unknown where Mother was residing, although Grandmother testified that

Mother had been with her during the three days prior to the hearing. Mother worked at various

jobs sporadically during the pendency of the case but never demonstrated that she could

financially meet the needs of five children. Despite numerous scheduled and unannounced home

visits by the caseworker between April and August 2018, Mother was never home.

{¶18} Although the caseworker let Mother use her phone to schedule parenting classes,

Mother never followed through by attending group- or class sessions. The caseworker

coordinated with an outside provider to work with Mother in her own home to address parenting

and mental health issues, but Mother missed all four appointments by failing to be home at the

scheduled times. Mother demonstrated limited parenting skills during visits, threatening to

“whoop” the children, telling the children she was getting sick of them, and losing track of them

at the visitation center. Mother often cried during visits.

{¶19} Based on Mother’s reports of being overwhelmed and asking LCCS to take the

children, the agency referred her for a mental health assessment. Mother attended the assessment

which indicated a need for ongoing counseling. Mother attended one counseling session but

missed every additional session scheduled from April 2017 through January 2018. The

counselor for the children made a mental health referral for an in-home assessment for Mother in

February, but Mother failed to be present at home at the time scheduled for that appointment.

Mother repeatedly asserted that she has no mental health issues and does not require counseling

or other treatment. 8

{¶20} Based on incidents of domestic violence between Mother and Father, and physical

violence between Mother and Father’s paramour, LCCS referred Mother for a domestic violence

assessment at Genesis House. Mother completed the assessment and was directed to participate

in either group sessions or address domestic violence issues with a mental health counselor,

whichever option Mother chose. Mother attended one group session in November 2017 and one

in January 2018. She continued, however, to have a relationship with Father. Although she

testified at the hearing that she and Father were no longer involved, she did not discount the

possibility of a future relationship with him.

{¶21} The agency looked at 37 relatives and friends of the family for placement

consideration. LCCS conducted, or caused to have conducted, five home studies of relatives and

friends. All persons who were determined to be appropriate potential caregivers for the children

withdrew their interest in pursuing custody. The agency did not support Grandmother’s request

for legal custody based on Grandmother’s criminal history, history with the agency, domestic

violence issues in her home, and her ongoing mental health issues that she did not address

consistently. Grandmother’s mental health records were admitted into evidence. They indicate a

history of trauma, suicide attempts, substance abuse issues, and mental health diagnoses which

require multiple medications which Grandmother admitted she had stopped taking.

{¶22} The evidence indicates that the children’s need for permanency cannot be met

without a grant of permanent custody to LCCS. The children are in two different foster-to-adopt

homes, but the agency believed it reasonably could find one home to adopt them all together.

{¶23} Based on a review of the evidence, this is not the exceptional case where the trier

of fact clearly lost its way and created a manifest miscarriage of justice by terminating Mother’s

and Father’s parental rights and awarding permanent custody of the children to LCCS. Mother 9

was overwhelmed by the effort required to care for five children. She was unable to maintain an

appropriate home with working utilities and basic necessities. She denied having mental health

issues despite an assessment to the contrary. She refused to participate in mental health and

domestic violence counseling in any meaningful way. The evidence demonstrated that neither

Mother, nor any other family member or friend, was capable and/or willing to provide a

permanent and appropriate home for the children. Under the circumstances, the juvenile court’s

finding that an award of permanent custody of P.B., D.B., 1-T.B., 2-T.B., and E.B. to LCCS was

in the best interest of the children is not against the manifest weight of the evidence. Mother’s

assignment of error is overruled.

III.

{¶24} Mother’s sole assignment of error is overruled. The judgment of the Lorain

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 Lorain, 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 10

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.

THOMAS A. TEODOSIO FOR THE COURT

CALLAHAN, J. SCHAFER, J. CONCUR.

APPEARANCES:

JUSTIN MILLER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and EMILY W. KIRSCH, Assistant Prosecuting Attorney, for Appellee.

JAMES DICKEY, Guardian ad Litem.

K.S., pro se, Appellee.

D.B., pro se, Appellee.