In re P.S.

2012 Ohio 3431

• Court: Ohio Court of Appeals
• Decided: July 16, 2012
• Docket: 2012CA00007
• Status: Published

Opinion

[Cite as In re P.S., 2012-Ohio-3431.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: : : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. IN RE P.S. : Hon. Julie A. Edwards, J. : : Case No. 2012CA00007 : : : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Juvenile Division Case No. 2011JCV01404

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: July 16, 2012

APPEARANCES:

For Father-Appellant: For SCDJFS-Appellee:

AMANDA E. JAMES LISA A. LOUY Stark County Public Defender Office Stark County Job and Family Services 200 W. Tuscarawas St. 221 – 3rd St. SE Suite 200 Canton, OH 44702 Canton, OH 44702 Delaney, P.J.

{¶1} Father-Appellant G.S. appeals the December 12, 2011 judgment entry of

the Stark County Court of Common Pleas, Juvenile Division, granting legal custody of

his child to a paternal relative and terminating the involvement of Appellee Stark

County Department of Job and Family Services (“SCDJFS”).

FACTS AND PROCEDURAL HISTORY

{¶2} Father is the parent of B.S. SCDJFS became involved with Father and

Mother in June 2010 due to the parents’ substance abuse issues. SCDJFS

established a case plan for the parents that required Mother and Father to complete

an evaluation at Northeast Ohio Behavioral Health, to complete an assessment at

Quest, to submit to urinalysis and hair follicle test weekly, to work with Help Me Grow,

and to attend Goodwill Parenting classes once substance abuse treatment was

complete. (T. 8.) Mother and Father were also required to find stable employment

and obtain a verification of all prescription medications. Id.

{¶3} Mother and Father did not comply with the case plan. Neither parent

successfully completed a substance abuse program. Father had positive urine

screens for phenobarbital, methamphetamine, opiates, and alcohol. (T. 9.) On July

18, 2011, the Stark County Court of Common Pleas, Juvenile Division awarded legal

custody of B.S. to a paternal relative residing in Akron, Ohio.

{¶4} P.S. was born on September 30, 2011. Father is the parent of P.S.

When P.S. was born, he tested positive for opiates and benzodiazepines. (T. 11.) He

also suffered from a heart condition. Id. Mother admitted she obtained limited

prenatal care while she was pregnant with P.S. Id. {¶5} P.S. was kept at Akron Childrens’ Hospital for five weeks after his birth

where the hospital implemented a morphine regimen to help P.S. with his withdrawal

symptoms. (T. 12.) When P.S. was released from the hospital, he was prescribed

phenobarbital to assist with his withdrawal. Id.

{¶6} On October 5, 2011, SCDJFS filed a complaint alleging P.S. to be

dependent and/or neglected and sought an order to grant legal custody of the child to

a relative. P.S. was committed to the temporary custody of the Akron, Ohio paternal

relative and SCDJFS was granted an order of protective custody. The trial court

entered pre-adjudicatory orders that Mother and Father submit to hair follicle tests and

urinalysis every Monday and Thursday. (T. 11.)

{¶7} The trial court held a dispositional hearing on December 12, 2011. At

the hearing, Mother and Father stipulated P.S. was a dependent child.

{¶8} Vicki Mitchell, intake and ongoing family services worker, testified at the

hearing. Mitchell testified that SCDJFS did not implement a case plan for Mother and

Father for P.S. because the sibling case plan had ended recently in July 2011 and

neither parent complied with the sibling case plan. (T. 13.) Mitchell also stated that

Father was not willing to go over a case plan at the pre-trial and refused to sign the

case plan. (T. 23.) Neither parent has complied with the pre-adjudicatory orders to

submit to weekly hair follicle tests or urinalysis. (T. 18.) Mitchell opined that if Father

would not comply with the basic court orders, Father would not comply with the case

plan. (T. 18.) Mitchell was unaware if Father was currently enrolled in substance

abuse treatment. (T. 13.) Father was unsuccessfully terminated from New Destiny Treatment Center. Id. While at New Destiny, Father had negative and positive urine

screens. (T. 20-21.)

{¶9} The parents have not had any visitation with P.S. because they have not

complied with the court orders for testing. (T. 13.)

{¶10} While SCDJFS initially moved to grant legal custody to the Ohio paternal

relative, SCDJFS now moved to grant legal custody to a paternal relative residing in

Arizona. (T. 12.) The Arizona paternal relative was approved by the ICPC Home

Study Process. (T. 12.)

{¶11} The Ohio paternal relative testified. She also has legal custody of B.S.,

the sibling of P.S. She obtained custody of B.S. when he was six months old and he

was two years old at the time of the hearing. (T. 37.) The Ohio paternal relative

stated she could no longer care for P.S. due to her family circumstances and the strict

regimen of P.S.’s medical care. (T. 32.) P.S. must have a dose of phenobarbital at

exactly the same time twice a day or P.S. will suffer from painful withdrawal

symptoms. (T. 30.) P.S. must be kept in a dark and quiet room to limit his stimulation.

(T. 38-39.) The Ohio paternal relative discussed P.S. with her sister residing in

Arizona. The Arizona paternal relative volunteered to care for P.S. (T. 32.)

{¶12} The Arizona paternal relative testified that she and her family were

prepared to care for P.S. (T. 43-45.) She had arranged for P.S.’s medical care, even

considering the affect on P.S. to travel across two time zones. (T. 43.) She testified

she and her sister would work to maintain a relationship between P.S. and B.S. (T.

44-45.) {¶13} Father testified at the hearing. He stated he was in a drug treatment

plan and would like the opportunity to work on his case plan. (T. 51.)

{¶14} The guardian ad litem recommended legal custody be granted to the

Arizona paternal relative.

{¶15} On December 12, 2011, the trial court issued its judgment entry granting

legal custody of P.S. to the Arizona paternal relative. The trial court found SCDJFS

made reasonable efforts to prevent the removal of P.S. through the sibling case plan

and that parents continued to test positive for drugs. The trial court found it was in the

best interests of the child to grant legal custody to the Arizona paternal relative and to

terminate the involvement of SCDJFS.

{¶16} It is from this decision Father now appeals.

ASSIGNMENT OF ERROR

{¶17} Father raises one Assignment of Error:

{¶18} “THE JUDGMENT OF THE TRIAL COURT GRANTING LEGAL

CUSTODY OF THE MINOR CHILD TO PATERNAL RELATIVES AND TERMINATING

SCDJFS INVOLVEMENT WAS AN ABUSE OF DISCRETION.”

ANALYSIS

{¶19} Father argues in his sole Assignment of Error the trial court abused its

discretion in granting legal custody of P.S. to the Arizona paternal relative by finding

SCDJFS made reasonable efforts to prevent the removal of the child and it was in the

best interests of the child.

{¶20} We first note this was a grant of legal custody, not permanent custody.

Legal custody does not divest parents of residual parental rights, privileges, and responsibilities. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, at

¶ 17. This means Father may petition the court for a modification of custody in the

future. Id.

{¶21} We recognize that the right to parent one's children is a fundamental

right. Troxel v. Granville, 530 U.S. 57, 66 (2000); In re Hayes, 79 Ohio St.3d 46, 48,

679 N.E.2d 680 (1997). “However, government has broad authority to intervene to

protect children from abuse and neglect.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-

1104, 862 N.E.2d 816, at ¶ 28.

{¶22} R. C. 2151.353 (A)(3) states in relevant part: “If a child is adjudicated an

abused, neglected, or dependent child, the court may make any of the following orders

of disposition:”

(3) Award legal custody of the child to either parent or to any other

person who, prior to the dispositional hearing, files a motion requesting

legal custody of the child or is identified as a proposed legal custodian in

a complaint or motion filed prior to the dispositional hearing by any party

to the proceedings. A person identified in a complaint or motion filed by a

party to the proceedings as a proposed legal custodian shall be awarded

legal custody of the child only if the person identified signs a statement of

understanding for legal custody that contains at least the following

provisions:

(a) That it is the intent of the person to become the legal custodian

of the child and the person is able to assume legal responsibility

for the care and supervision of the child; (b) That the person understands that legal custody of the child in

question is intended to be permanent in nature and that the

person will be responsible as the custodian for the child until the

child reaches the age of majority. Responsibility as custodian for

the child shall continue beyond the age of majority if, at the time

the child reaches the age of majority, the child is pursuing a

diploma granted by the board of education or other governing

authority, successful completion of the curriculum of any high

school, successful completion of an individualized education

program developed for the student by any high school, or an age

and schooling certificate. Responsibility beyond the age of

majority shall terminate when the child ceases to continuously

pursue such an education, completes such an education, or is

excused from such an education under standards adopted by the

state board of education, whichever occurs first.

(c) That the parents of the child have residual parental rights,

privileges, and responsibilities, including, but not limited to, the

privilege of reasonable visitation, consent to adoption, the

privilege to determine the child's religious affiliation, and the

responsibility for support;

(d) That the person understands that the person must be present

in court for the dispositional hearing in order to affirm the person's

intention to become legal custodian, to affirm that the person understands the effect of the custodianship before the court, and

to answer any questions that the court or any parties to the case

may have.

{¶23} Unlike in a permanent custody proceeding where a juvenile court's

standard of review is by clear and convincing evidence, the standard of review in legal

custody proceedings is preponderance of the evidence. In re A.C., 12th Dist. No.

CA2006-12-105, 2007-Ohio-3350 at ¶ 14; In re Nice, 141 Ohio App.3d 445, 455, 751

N.E.2d 552 (7th Dist. 2001).

REASONABLE EFFORTS

{¶24} Pursuant to R.C. 2151.419, the agency that removed the child from the

home must have made reasonable efforts to prevent the removal of the child from the

child's home, eliminate the continued removal of the child from the home, or make it

possible for the child to return home safely. The statute assigns the burden of proof to

the agency to demonstrate it has made reasonable efforts. The statute provides in

determining whether reasonable efforts were made, the child's health and safety is

paramount.

{¶25} Various sections of the Revised Code provide that an agency has a duty

to make reasonable efforts to preserve or reunify the family unit. For example, R.C.

2151.412 requires the agency to prepare and maintain a case plan; R.C. 2151.414

requires an agency to make reasonable case planning and diligent efforts to assist

parents to remedy the problems that caused removal of the child. In Re C.F., 113 Ohio

St.3d 73, 2007–Ohio–1104, 862 N.E.2d 816 at ¶ 29. However, the Revised Code does

not expressly address what constitutes reasonable efforts. Id. {¶26} This Court has found where the evidence establishes that the agency

provided services designed to alleviate the problem that led to the child's removal, made

diligent efforts to assist the parents in remedying the problem, and attempted to

transition the child back into the family home, the agency has proven reasonable efforts.

In re K.R., Stark App. No.2009 CA 00061, 2009-Ohio-4350.

{¶27} Father argues SCDJFS did not make reasonable efforts to alleviate the

problems that led to the removal of P.S. from the parental home because SCDJFS did

not implement a case plan for Father as to P.S. Vicki Mitchell, the ongoing family

services worker, testified she attempted to implement a case plan for Father at the

pre-trial, but he refused to go over the case plan or sign the case plan. (T. 23.) As

such, there was no case plan in effect for Father as to P.S.

{¶28} The facts and circumstances of this case, however, demonstrate that

SCDJFS met its burden to show it made reasonable efforts to alleviate the problems

that led to P.S.’s removal. The family in this case came to the attention of SCDJFS

because of the parents’ substance abuse issues. In June 2010, SCDJFS

implemented a case plan for Mother and Father as to B.S., the sibling of P.S., to

prevent the removal of B.S. from the home. At the time of their involvement, Mother

was pregnant with P.S. On July 18, 2011, the trial court granted legal custody of B.S.

to the Ohio paternal relatives due to the parents’ failure to comply with the case plan.

{¶29} P.S. was born 74 days later on September 30, 2011. P.S. was born

addicted to drugs. SCDJFS obtained pre-adjudicatory court orders to require Mother

and Father obtain hair follicle analysis and urinalysis as to their substance abuse

issues. Mother and Father did not comply with these orders. {¶30} We find no error under the facts and circumstances of this case for the

trial court to rely on the sibling case plan to find that SCDJFS made reasonable efforts

to eliminate the continued removal of P.S. The circumstances of this case show that

since June 2010, SCDJFS attempted to alleviate the substance abuse issues in the

home to prevent the removal of B.S. While these attempts were occurring, Mother

was pregnant with P.S. On July 18, 2011, the evidence shows Mother and Father did

not comply with their case plan as to B.S. and 74 days later, P.S. was born addicted to

drugs. After P.S.’s birth, there is evidence to show that Father would not enter into a

case plan as to P.S. and would not comply with the pre-adjudicatory orders from the

trial court.

BEST INTERESTS

{¶31} Father next argues it was not in the best interests of the child to award

legal custody of P.S. to the Arizona paternal relative and terminate SCDJFS

involvement. In this type of dispositional hearing, the focus must be the best interest

of the child. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188; In re

Nawrocki, 5th Dist. No. 2004-CA-0028, 2004-Ohio-4208.

{¶32} R. C. 2151.414(D) provides factors to be considered in making a best-

interest-of-the-child determination:

In determining the best interest of a child at a hearing held pursuant to

division (A) of this section or for the purposes of division (A)(4) or (5) of

section 2151.353 or division (C) of section 2151.415 of the Revised

Code, the court shall consider all relevant factors, including, but not

limited to, the following: (1) 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;

(2) 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;

(3) 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 ending on or after March 18, 1999;

(4) 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;

(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

{¶33} A trial court's determination on legal custody should not be overruled

absent a showing of an abuse of discretion. In re Unger, 5th Dist. No. 04CA6, 2005-

Ohio-2414. An abuse of discretion is when the trial court's judgment is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

{¶34} Father argues it is in P.S.’s best interests to remain in Ohio where P.S.

can be close to his sibling and his parents. We disagree.

{¶35} The testimony in this case shows that P.S. has two supportive relatives

willing to take him in, care for him, and meet his burdensome medical needs. The Ohio paternal relative testified she was willing to take P.S. as she did with B.S., but

due to her increasing familial duties, she recognized her limitations and could not

provide P.S. with the care he deserved. (T. 30-31.) She contacted her sister who

volunteered to care for P.S. (T. 31.) The Arizona paternal relative testified she was

prepared to meet P.S.’s medical needs. (T. 43.) Her family was excited to care for

P.S. (T. 42.) She was committed to maintaining the bond between B.S. and P.S.

through family visits. (T. 45.) She further understood that she would be required to

facilitate visitation between P.S. and his parents if that came to be. (T. 47.)

{¶36} As the Ohio paternal relative stated, “I do wish that anybody that has this

situation can go find help and get themselves better. But on the other hand, my

position with the child is, is that they can’t wait til their mom and dad have an

epiphany. Okay. They, they grow every day. And they need somebody to be there

when they wake up and when they need their lunch and when they need their diaper

changed and they need all of this. * * * And they need, and they need to go on with

their lives.” (T. 36.)

{¶37} We find no abuse of discretion for the trial court to determine the

preponderance of the evidence established it was in P.S.’s best interests to grant legal

custody to the Arizona paternal relative and to terminate the involvement of SCDJFS. CONCLUSION

{¶38} For the foregoing reasons, Father’s sole Assignment of Error is

overruled.

{¶39} The judgment of the Stark County Court of Common Pleas, Juvenile

Division, is affirmed.

By: Delaney, P.J.

Gwin, J. and

Edwards, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JULIE A. EDWARDS

PAD:kgb IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: : : : JUDGMENT ENTRY : : IN RE P.S. : : Case No. 2012CA00007 : : : :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas, Juvenile Division is AFFIRMED. Costs

assessed to Appellant.