In re S.B.

2012 Ohio 991

• Court: Ohio Court of Appeals
• Decided: March 12, 2012
• Docket: 11CA0095-M
• Status: Published

Opinion

[Cite as In re S.B., 2012-Ohio-991.]

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

IN RE: S.B. C.A. No. 11CA0095-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 2010 06 NE 0022

DECISION AND JOURNAL ENTRY

Dated: March 12, 2012

BELFANCE, Judge.

{¶1} Appellant, Andrea P. (“Mother”), appeals from a judgment of the Medina County

Court of Common Pleas, Juvenile Division, that terminated her parental rights to one of her

minor children and placed the child in the permanent custody of Medina County Job and Family

Services (“MCJFS”). For the reasons that follow, we affirm.

I.

{¶2} Mother is the natural mother of S.B., born December 11, 2009. On June 14,

2010, MCJFS filed a complaint, alleging that six-month-old S.B. was a dependent and neglected

child because Mother had left him in the care of unrelated adults whom she barely knew and the

condition of her home was unsafe and unsanitary. On July 19, 2010, Mother stipulated to an

adjudication of dependency and the allegation of neglect was dismissed.

{¶3} Mother has an older child, A.P., who is the subject of a separate child dependency

case with MDJFS. That child was removed from Mother’s custody more than one year before 2

S.B. was born, and apparently has never been returned to Mother’s home. The agency’s primary

concerns about Mother’s ability to provide a suitable home for her children are her mental

illness, which she has been unable to stabilize through treatment and medication, and the lack of

cleanliness and stability in her home, including her repeated pattern of allowing people to stay in

her home who have violent and/or criminal histories or otherwise pose a threat to her children.

According to Mother’s original caseworker, her inability to control her emotions has also led to

her involvement in criminal activity, which resulted in convictions of child endangering, cruelty

to animals, and receiving stolen property during the first few months of the case planning period.

{¶4} At the age of 16, Mother was first diagnosed with bipolar disorder, a diagnosis

that mental health professionals have confirmed repeatedly. Although she has apparently

received psychiatric treatment and taken a variety of medications since then, she has been unable

to consistently stabilize her extreme mood swings, which has resulted in repeated psychiatric

hospitalizations. More recently, Mother has also been diagnosed with panic disorder, post-

traumatic stress disorder, and borderline personality disorder. She also has a long history of

cutting herself as a self-harming behavior.

{¶5} Throughout this case, Mother was inconsistent with her mental health treatment

and continued to have extreme mood swings. According to MJCFS, she also continued her

pattern of exercising poor judgment by involving herself with inappropriate men and allowing

them and others to stay at her home on a regular basis. Consequently, on May 12, 2011, MCJFS

moved for permanent custody of S.B. It alleged that permanent custody was in the best interest

of S.B. and that he could not be returned to Mother’s care within a reasonable time or should not

be returned to her based on four alternate factors under R.C. 2151.414(E)(1), (2), (4), and (6).

S.B.’s father, who is not a party to this appeal, also filed a motion for legal custody. 3

{¶6} Following a hearing on both dispositional motions, the trial court found that S.B.

could not be placed with Mother within a reasonable time or should not be placed with her, based

on each of the alternate grounds alleged by MCJFS, and that permanent custody was in his best

interest. Consequently, it terminated Mother’s parental rights and placed S.B. in the permanent

custody of MCJFS. Mother appeals and raises one assignment of error.

II.

THE TRIAL COURT’S TERMINATION OF MOTHER’S PARENTAL RIGHTS AND GRANTING PERMANENT CUSTODY OF THE CHILD TO [MCJFS] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WHERE AGENCY FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT SUCH A JUDGMENT WAS IN THE BEST INTEREST OF THE CHILD.

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

decision was against the manifest weight of the evidence. Before a juvenile court may terminate

parental rights and award to a proper moving agency permanent custody of a child, it must find

clear and convincing evidence of both prongs of the permanent custody test that: (1) the child is

abandoned, orphaned, has been in the temporary custody of the agency for at least 12 months of

the prior 22 months, or that 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)

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). See R.C. 2151.414(B)(1) and (2); see also In re William S., 75

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

{¶8} The trial court found that S.B. could not be placed with Mother within a

reasonable time or should not be placed with her based on the existence of four factors set forth

in R.C. 2151.414(E). Specifically, the trial court based its conclusion on its findings that:

Mother had failed to substantially remedy the conditions that had caused S.B. to be placed 4

outside her home, R.C. 2151.414(E)(1); she suffered from a chronic mental illness that prevented

her from providing an adequate home for S.B. at that time or within the next year, R.C.

2151.414(E)(2); she demonstrated a lack of commitment to S.B. by failing to support him, R.C.

2151.414(E)(4); and she had been convicted of the offense of child endangering and S.B.’s half-

sibling, A.P., was the victim of that offense, R.C. 2151.414(E)(6). Mother does not dispute any

of the trial court’s findings on the R.C. 2151.414(E) factors. Instead, she confines her challenge

on appeal to the trial court’s finding that permanent custody was in the best interest of S.B.

{¶9} When determining whether a grant of permanent custody is in a child’s best

interests, the juvenile court must consider the following factors:

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;

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;

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 * * *;

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[.]

R.C. 2151.414(D)(1)(a)-(d).1

{¶10} Mother argues that the trial court’s best interest finding was against the manifest

weight of the evidence. When evaluating whether a judgment is against the manifest weight of

the evidence in a permanent custody case, this Court reviews the entire record and:

“weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that

1 The factor set forth in R.C. 2151.414(D)(1)(e) is not relevant in this case. 5

the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the [judgment].”

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist.1983). Accordingly, before reversing a judgment as being against the

manifest weight of the evidence in this context, this Court must determine whether the trier of

fact, in resolving evidentiary conflicts and making credibility determinations, clearly lost its way

and created a manifest miscarriage of justice. See In re M.C., 9th Dist. No. 24797, 2009-Ohio-

5544, ¶ 8, 17.

{¶11} Mother’s interaction with S.B. during the 14 months prior to the permanent

custody hearing was limited to supervised visitation. Mother was never permitted to have

unsupervised visits in her home because she had not been consistent with her mental health

treatment and had been unable to stabilize her mood swings. She also continued to have a

variety of adult men and women staying in her home, most of whom were unknown to MCJFS

and some of whom had criminal histories. The trial court expressed concern that Mother

appeared to put her own needs ahead of those of S.B. by engaging in a series of romances with

inappropriate men, rather than concentrating on the reunification goals of the case plan. The

court further emphasized that by bringing criminals into her home and engaging in criminal

activity herself, Mother’s home continued to be an unsuitable environment that would expose

S.B. to crime and, given her repeated convictions, there was a risk that she would abandon him

due to incarceration.

{¶12} MCJFS was particularly concerned about Mother’s involvement with a man

named Roger, who had an extensive history of violent crimes. Mother repeatedly told the

agency that Roger was out of her life, but he was observed at her home repeatedly. During this 6

case, Roger was absent from Mother’s life only while he was incarcerated, first for a thirty-day

sentence and later during a one-year sentence. The caseworker expressed further concern that, in

addition to Roger, Mother was involved with a series of different men, each of whom appeared

to be residing in her home during their romantic involvement.

{¶13} Mother’s interaction with S.B. was affected by her unstable mental health. As

noted already, Mother does not dispute the trial court’s finding that she suffers from a chronic

mental illness that prevented her from providing a suitable home for her child at the time of the

permanent custody hearing or within the next year. See R.C. 2151.414(E)(2). Although Mother

regularly visited S.B. and her interaction was observed to be fairly positive, the in-home service

provider who worked with Mother on parenting skills expressed concern about Mother’s ability

to behave appropriately with S.B. without continual redirection. In fact, she testified that Mother

was receptive to redirection of her inappropriate behavior only “some of the time[.]” The

witness further explained that, when Mother did not respond to her suggestions, she often did not

know whether Mother was simply not listening to her or whether Mother’s ability to respond was

affected by her mental illness.

{¶14} Although Mother has been diagnosed with bipolar disorder, panic disorder, post-

traumatic stress disorder, and borderline personality disorder, the concern about her inability to

stabilize her mental health focused primarily on the diagnosis of bipolar disorder. According to

her former therapist, Mother requires ongoing counseling, once or twice a week, and medication

management with a psychiatrist to stabilize her mood swings. During the pendency of this case,

however, Mother did not receive counseling as often as needed, as she saw her counselor only

about twice a month. Moreover, she was not able to stabilize her mood swings through 7

medication management because she continued to have shifts between periods of mania and

extreme depression.

{¶15} The agency’s concern about Mother becoming involved with and opening her

home to a series of men who were unknown to MCJFS was further magnified by evidence that

Mother relied on the men in her life to make her feel safe and protect her from her suicidal

tendencies. Mother admitted that, rather than reaching out to mental health professionals when

she needed help with extreme depression, she would stay at home under the watch of her then-

boyfriend, where she felt safe. During one visit by a home service provider, Mother was

observed wandering around aimlessly, appearing to be depressed. Her boyfriend was hiding

sharp objects in the home because he feared that Mother would attempt to harm herself.

{¶16} On April 11, 2011, the boyfriend actually pried pills from Mother’s hand to

prevent her from overdosing on medication. Because Mother had acted on her suicidal thoughts,

she was admitted to a hospital psychiatric ward for two days. During her psychiatric evaluation,

she admitted that her bipolar mood swings were not regulated, that she was having trouble

sleeping, and that she was having both suicidal and homicidal thoughts. At that time, she had

been under the care of the same psychiatrist for two years and the same counselor for several

months, yet she did not reach out to either of them for help when she was feeling suicidal.

{¶17} After her release from the hospital, Mother continued in counseling on an

inconsistent basis with the same therapist for approximately three more months, but she stopped

seeing that counselor approximately one month before the permanent custody hearing. Although

Mother told the caseworker that she had transportation problems and planned to start seeing

another therapist, at the time of the permanent custody hearing, Mother was not involved in

therapy with any mental health professional. 8

{¶18} Because S.B. was less than two years old at the time of the permanent custody

hearing, the guardian ad litem spoke on his behalf. She opined that permanent custody was in

S.B.’s best interest due to Mother’s failure to stabilize her serious mental health problems. The

guardian expressed particular concern that Mother had failed to commit to regular mental health

treatment and that, at the time of the hearing, she was not engaged in any therapy. The guardian

further emphasized that S.B. was bonded with his foster family and was doing very well in that

stable environment.

{¶19} S.B.’s custodial history included the first six months of his life that were spent in

Mother’s custody in an unstable environment that had already led to the removal of his older

half-sibling from the home. For the year prior to the hearing, S.B. resided with the same foster

family that included his older half-sibling, A.P., and the foster parents’ six-year-old son. S.B.

had adjusted well to the only home that he had ever known and had become bonded with his

half-sibling, as well as the foster parents and their own child.

{¶20} Finally, there was evidence to support the trial court’s conclusion that S.B. was in

need of a legally secure permanent placement and that such a placement would only be achieved

by granting MCJFS permanent custody. S.B. had been living in a temporary placement for

more than a year and MCJFS presented substantial evidence that Mother was not able to provide

him with a suitable home at that time or any time in the foreseeable future. There were also no

suitable relatives who were willing and able to provide S.B. with a safe and stable home.

{¶21} There was substantial evidence from which the trial court could conclude by clear

and convincing evidence that permanent custody was in the best interest of S.B. Consequently,

we cannot say that the trial court lost its way or created a manifest miscarriage of justice by

placing S.B. in the permanent custody of MCJFS. Mother’s assignment of error is overruled. 9

III.

{¶22} Mother’s assignment of error is overruled. The judgment of the Medina 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 Medina, 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.

EVE V. BELFANCE FOR THE COURT

MOORE, P. J. CARR, J. CONCUR 10

APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

JENNIFER A. MOORE, Attorney at Law, for Appellee.

JENNIFER D. MAYTAC, Guardian ad Litem.