[Cite as In re T.J., 2012-Ohio-3399.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN THE MATTER OF: T.J. :
: C.A. CASE NO. 25022
: T.C. NO. JC 2008-4382
: (Civil appeal from Common Pleas Court, Juvenile Division) :
:
..........
OPINION
Rendered on the 27th day of July , 2012.
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee State of Ohio
ANN M. CURRIER, Atty. Reg. No. 0082305, 4 W. Main Street, Suite 723, Springfield, Ohio 45502 Attorney for Defendant-Appellant Mother
DONOVAN, J.
{¶ 1} This matter is before the court on the Notice of Appeal of T.J.’s Mother 2
(“Mother”) filed February 3, 2012. Mother appeals from the January 12, 2012 decision of
the juvenile court which overruled her objections and the general objections of Maternal
Grandmother (“Grandmother”). The objections were made to a July 30, 2010 decision of
the Magistrate granting permanent custody of Mother's son, T.J., to the Montgomery County
Department of Job and Family Services - Children Services Division. (“MCCS” or
“Agency”). Upon review of the record, we conclude that the trial court possessed sufficient
clear and convincing evidence from which to support a permanent custody award to the
Agency.
{¶ 2} T.J. was born October 14, 2007 and was medically fragile at birth. He was
unable to keep formula down and was diagnosed with severe reflux and failure to thrive.
T.J. and Mother were living with Grandmother at her home along with several other family
members, specifically, Mother’s brother and sister, and three of Grandmother’s
grandchildren. After multiple hospitalizations in his early months, T.J. underwent a
fundoplication surgery and a gastrostomy to prevent reflux. Initially, T.J. was fed by a tube
through his nose but because he kept pulling it out, he was later implanted with a G-Tube for
feeding and nutrition. He required nighttime feedings to meet his nutritional needs.
{¶ 3} In May of 2008 T.J. was admitted to the hospital on several occasions.
After a May 1st hospitalization, Grandmother was given care of T.J.. She was instructed on
how to feed T.J. and was also educated about his medical needs. A few weeks later, MCCS
nurses visited T.J. and found him “dehydrated, listless and lethargic.” The nurses instructed
Grandmother to take T.J. to the hospital to obtain for him a specific high caloric formula.
At this time T.J. was significantly below the fifth percentile on the growth chart and weighed 3
ten pounds and six ounces, well below an ideal weight of sixteen pounds.
{¶ 4} Thereafter, on May 16, 2008, MCCS filed a Complaint for Neglect and
Dependency of minor child T.J. Interim Temporary Custody was granted the same day to
the Agency. The complaint identifies the father of T.J. as S.J. and indicates that his address
is unknown. The father has neither come forward nor expressed an interest in custody. On
May 20, 2008 the court appointed a Guardian ad Litem (“G.A.L.”) for T.J. and after
conducting a hearing on May 22, 2008, the magistrate found that it was in the best interest of
T.J. for interim temporary custody to remain with the Agency. That same day the court
appointed a G.A.L. for Mother.
{¶ 5} The magistrate issued an order of adjudication, finding T.J. dependent on
July 30, 2008. The court found, and the parties agreed that the child should be placed in
Grandmother’s temporary custody pending completion of a home study. However, Mother
was not to have any unsupervised contact with T.J. Thereafter, the record establishes that
Grandmother failed the home study. On January 27, 2009, the magistrate issued a decision
and order granting temporary custody back to MCCS. At this time the magistrate approved
an updated case plan in accordance with R.C. §2151.353(D). During this period of
temporary custody to the Agency, extended visitations were attempted at Grandmother’s
home on four weekends between May-June of 2009. The record establishes that even
though these were not overnight visits, T.J. lost weight each weekend. These visits were
discontinued and visitations returned to a couple days a week for five hours. MCCS filed
for Permanent Custody on September 1, 2009. An attached affidavit of Kamesha Johnson
noted that MCCS has not approved a home study on Grandmother because of her history 4
with the agency, the number of people living in her residence, hazards at the residence, and
Grandmother’s failure to consistently attend T.J.’s medical appointments. It also noted that
“Grandmother is almost always late to the appointments for T.J.*** [and] has also missed
eight appointments while T.J. was in her care.”
{¶ 6} On March 22, 23, and May 6, 2010 a trial was held before the Magistrate on
the Agency’s request for permanent custody. The Magistrate issued a Decision and
Magistrate’s Order Granting the Motion for Permanent Custody on July 30, 2010. The
magistrate found that T.J. cannot be placed with either parent in the foreseeable future and
that permanent custody to the Agency is in T.J.’s best interest.
{¶ 7} Mother and Grandmother filed objections to this decision and order on
August 11, 2010, and then supplemented the objections after receipt of the transcript on
April 26, 2011. MCCS responded on June 20, 2011. The objections relate to the following
magistrate’s conclusions: Mother and Grandmother failed to remedy the conditions causing
T.J.’s removal; a lack of commitment to T.J. was demonstrated; there are no ready, willing,
and able relatives to assume custody; and that permanent custody to the Agency is in the best
interests of T.J. On January 12, 2012, the Juvenile Court overruled the objections and
adopted the magistrate’s decision awarding permanent custody to the agency pursuant to
R.C. § 2151.414. It is from this judgment that Mother now appeals.
{¶ 8} Mother’s first assignment of error is as follows:
THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR
PERMANENT CUSTODY TO MCCS WHEN MCCS FAILED TO SHOW,
BY CLEAR AND CONVINCING EVIDENCE, THAT T.J. SHOULD NOT 5
OR COULD NOT BE PLACED WITH MOTHER WITHIN A
REASONABLE AMOUNT OF TIME.
{¶ 9} Mother contends that the court should not have granted permanent custody
to the Agency because she substantially completed her case plan objectives and, therefore,
remedied the conditions that caused the initial removal of T.J. from the home. Mother also
asserts that clear and convincing evidence does not establish that her mental illness is an
impediment to placement with her within one year. Finally, she asserts that MCCS has
failed to prove that she has demonstrated a lack of commitment to the child. We disagree.
{¶ 10} We have held that the law governing the termination of parental rights is as
follows:
The Revised Code authorizes a trial court to terminate parental rights
and grant permanent custody to the State upon a finding, by clear and
convincing evidence, that permanent custody is in a child’s best interest and
that the child has been in the State’s custody for at least twelve of the
preceding twenty-two months. R.C. 2151.414(B)(1)(d). Alternatively, a
trial court is authorized to grant permanent custody to the State if it finds, by
clear and convincing evidence, that permanent custody is in the child’s best
interest and that the child cannot be placed with a parent within a reasonable
period of time or should not be placed with either parent. R.C.
2151.414(B)(2).
When considering a motion for permanent custody, a trial court must
apply R.C. 2151.414(E), which identifies factors for determining whether a 6
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 exist, “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.”***. In re H.T. & Z.T., 2d Dist. Greene Nos.
10-CA-29, 10-CA-30, 2011-Ohio-1285, ¶22-23; In re K.B.F., 2d Dist.
Montgomery No. 24891, 2012-Ohio-1855, ¶ 51.
The trial court found by clear and convincing evidence that §2151.414(E)(1),(2) and (4)
were satisfied.
A. §2151.414(E)(1)
{¶ 11} R.C. 2151.414(E)(1) directs the court to consider whether: the parent has
failed continuously and repeatedly to substantially remedy the conditions causing the child
to be placed outside the home* * *The court shall consider parental utilization of medical,
psychiatric, psychological, and other social and rehabilitative services and material
resources that were made available.
{¶ 12} The conditions that warranted the removal of the child were noted in an
affidavit of Gloria A. Washington attached to the initial complaint for temporary custody.
The affidavit indicates, that “it was discovered that the special formula that the child was
prescribed ran out and Maternal Grandmother did not request additional formula from
anyone, but instead began feeding the child from a different formula and water. This
resulted in the child having diarrhea and making the weight situation worse.”
{¶ 13} It is undisputed that T.J. is medically fragile, failed to thrive and lost weight 7
since May 1, 2008. MCCS had legitimate concerns about the home environment and the
number of people living at Mother and Grandmother’s residence and the cigarette smoking
in the household. At the permanent custody hearing, MCCS caseworker Kamesha Johnson
testified on the subject of Mother and Grandmother’s case plans and the goal of
reunification. Mother’s case plan was “to have a Crisis Care assessment and follow any and
all recommendations. Mom is to engage in ongoing mental health services. Mom is to
visit with [T.J.], and also to have parenting classes.” These goals were not fully achieved.
{¶ 14} As to Grandmother’s ability to care for T.J., Rosemary Carr, an MCCS
nurse testified that while T.J. was in foster care he “was making a straight line up the growth
chart” but when he was placed with Grandmother “he made a very slow progression* * *
because [his growth] was going up and down and up and down.” Further, she stated that in
spite of her repeated suggestion for Grandmother to get T.J. on a feeding schedule,
Grandmother failed to do so.
{¶ 15} Additional evidence of Mother and Grandmother’s failure to remedy the
conditions requiring T.J.’s removal are established by T.J’s G.A.L., Richard Smith’s
testimony which noted T.J.’s weight issues while in Grandmother’s care. As G.A.L.,
Smith collected and plotted T.J.’s weights and measurements from the GI appointments
along with the MCCS nurses. Smith was able to keep a record of T.J.’s progress as well as
who was caring for him when the measurements were taken. Smith testified that during the
four months T.J. was returned to Grandmother and Mother “he fell further off the growth
charts.” As to the attempts at reunification, Smith noted that the Court attempted extended
visits during the four weekends in May-June 2009. Smith emphasized that during the 8
weekdays in foster care, T.J. showed steady weight gain whereas during the four weekend
visits with Mother and Grandmother, T.J. showed a steady loss in weight.
{¶ 16} The caseworker, Ms. Johnson, testified that the home study failed in part
because “T.J. will be sharing a room with [Grandmother]. And any child over the age of
one cannot share a room with an adult. Also, another reason that the home failed is that
there was more people–there was too many people in the home.” At the hearing,
Grandmother testified that several family members moved out the week before the trial. But
Johnson’s “primary concern was for the failed home study was because of the Children
Services past history with Grandmother.” Grandmother’s history with the Agency occurred
ten years earlier, but according to Johnson the Agency policy is that whenever an abuse or
neglect case is substantiated, it must be considered in placing a child in that person’s home.
The history did include substantiated abuse and neglect.
{¶ 17} The court adopted the magistrate’s decision which held that Mother did not
make satisfactory progress on her case plan and that although Mother initially attended the
crisis care assessment and attempted to engage in mental health counseling and visits with
the child, she had not been fully compliant with her mental health care and has repeatedly
refused to attend parenting classes. It was emphasized that Mother received the parenting
schedule at Charles Drew Health Center in 2009, and again in February of 2010, but that
Mother refused to go because she does not want T.J. for herself but wished for T.J. to be
placed with Grandmother.
{¶ 18} Accordingly, an analysis of §2151.414(E)(1) supports a finding in favor of
the agency. 9
B. §2151.414(E)(2)
{¶ 19} §2151.414(E)(2) requires the court to consider whether a parent’s mental
illness is so severe that it makes the parent unable to provide an adequate permanent home
for the child at the present time or within one year after the court holds a permanent custody
hearing. Mother had been diagnosed with Bi-Polar Disorder as well as anger and substance
abuse issues. She stopped taking her medication (Lithium) during pregnancy and did not
resume until she began the case plan. Ms. Johnson testified that Mother began compliance
with her Crisis Care assessment but due to lack of compliance was discharged from the
mental health provider. At the time of the hearing she was not seeing a mental health
counselor in accordance with Agency directives. The court found clear and convincing
evidence to support a conclusion that Mother could not provide an adequate permanent
home for the child within one year due to her ongoing mental illness.
C. §2151.414(E)(4)
{¶ 20} In addressing §2151.414(E)(4),the court considered whether: The parent
has demonstrated a lack of commitment toward the child by failing to regularly support,
visit or communicate with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the child. The court
acknowledged that Mother visited the child and wished for continued visitation, but that it
was evident that Mother was no longer interested in custody of the child for herself. The
feeding specialist and PACE worker both testified that when Mother attended the
appointments she never worked with T.J., instead Grandmother did. Furthermore, the Court
credited the G.A.L.’s opinion that placement with Mother is not possible in the foreseeable 10
future and that the Mother has demonstrated a lack of commitment toward the child by
abdicating all parental duties to her mother. Although interaction between T.J. and Mother
was appropriate, Mother’s actions were “not always as you would expect a mother to,
because I think she’s sort of relinquished that role to her mother.”
{¶ 21} Thus, we find that the there was competent and credible evidence to
support the trial court’s conclusion that Mother had abdicated her interest in attaining
custody of T.J. The first assignment of error is overruled.
{¶ 22} Mother’s second assigned error is as follows:
BY CLEAR AND CONVINCING EVIDENCE, THAT IT WAS IN T.J.’S
BEST INTEREST FOR PERMANENT CUSTODY TO BE GRANTED.
{¶ 23} Mother contends that T.J.’s actions and her testimony establish that T.J.’s
wishes are for custody to be with his biological family and that the final (D)(1) “best
interest” factor about alternative placements should have resulted in Grandmother receiving
custody. Appellant contends that Grandmother is a viable custodian because she remedied
the failed home study concerns and substantially complied with the case plan objectives.
Mother asserts that the testimony on T.J.’s weight loss was not sufficient to show by clear
and convincing evidence that it was caused by the visitations to Grandmother, and lastly that
Grandmother’s unemployment and lack of income did not matter because Caresource aid
would be available to the family.
{¶ 24} The trial court must apply R.C. 2151.414(D), which list the non-exclusive 11
“best interest” factors to consider in granting permanent custody. The factors include: (a)
the interaction and interrelationship of the child with the biological family, foster family, and
any other person who may significantly affect the child; (b) the wishes of the child as
expressed directly or through the G.A.L. with due regard for the maturity of the child; (c) the
custodial history of the child; (d) 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; and (e) whether any of the factors listed in (E)(7) to (11) apply to the parents
and the child.
{¶ 25} “A reviewing court must affirm a trial court’s decision regarding permanent
custody unless it is unsupported by clear and convincing evidence, a level of proof that
produces a firm belief as to the facts sought to be established.” In re H.T. & Z.T., supra, ¶
24. If the juvenile court’s judgment is “supported by some competent, credible evidence
going to all the essential elements of the case,” an appellate court may not reverse the
judgment. In re A.S., 2d Dist. Montgomery No. 22269, 2007-Ohio-6897, ¶15, quoting State
v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
{¶ 26} As we have previously held, “‘courts do not have to first consider placing
children with relatives before they may award permanent custody to a children services
agency’* * *Instead, the trial court must determine what placement would be in the best
interest of the child.” In re A.U., 2d Dist. Montgomery Nos. 20583, 20585,
2004-Ohio-6219, citing In re Amanda Williams, 2d Dist. Montgomery No.18217, 2000 WL
1299540, *3 (Sept. 15, 2000). In re A.U. involved an appeal requesting custody to a
grandmother. The Court held that the she was not a suitable custodian because she 12
repeatedly failed the home study, did not complete the case plan, and was not financially
able to support the child. Id. at ¶ 36. After determining the mother was not appropriate and
neither were other relatives, the court ruled that the trial court considered all aspects of the
child’s life and relationships when determining permanent custody and that ultimately the
record, by clear and convincing evidence, showed that the best interest of the child was not
served by placement with the relative, but instead the best interest of the child dictated
permanent custody to the Agency. Id. at ¶ 38.
{¶ 27} Herein, the trial court concluded that factors (a), (b) and (e) do not favor
either position. First, the testimony has shown a bond and connection between both the
biological family and the foster family. T.J. has bonded with Mother and Grandmother but
more so with the latter, and also a strong bond existed with the foster family, including
calling the foster mother “Nana.” Secondly, although T.J.’s G.A.L. expressed his
preference for permanent custody to the Agency, this factor does not favor either position
because at the time of the hearing T.J. was two years of age and too young to express his
wishes. Lastly, the court concluded that the factors (E)(7) to (11) do not apply to this case.
{¶ 28} Whereas factors (a), (b) and (e) did not favor either position, the court
found by clear and convincing evidence that factors (c) and (d) strongly favored a
permanent custody award to the Agency. Like In re A.U., the court considered all aspects of
the child’s life and relationships as well as possible placement with Grandmother. The
custodial history of T.J. as well as his need for a legally secure permanent placement support
the court’s conclusion that T.J.’s best interest is served by an award of custody to the
Agency. 13
{¶ 29} As to the custodial history of T.J., the court noted that T.J. has been in
foster care or under MCCS supervision the majority of his life. At the time of the hearing,
ten of the past fifteen months were in Agency care. After the first award of temporary
custody of T.J. to the Agency in May of 2008 he was returned to Grandmother’s care in
August or September of 2009, and then returned to Agency custody in January of 2010,
where he has remained ever since. Djuan Malone from the Parent and Child Enrichment
program (PACE) has been working with T.J. since July 2008. She noted that T.J. was
attending PACE for his “global delays” and provision of “gross motor skills, cognitive skills,
language, fine motor skills ***[and] social-emotional.” Malone testified that T.J. has
shown significant improvement. While in foster care, she noted that at ten months T.J. was
not crawling but has since shown improvement and is now able to walk and run.
{¶ 30} Rosie Owens, the Health Services supervisor at MCCS, testified as to her
involvement with T.J. since May of 2008. In May of 2008, Owens was one of the nurses
who suggested that Grandmother take T.J. to the hospital because he “was small, lethargic,
[and] had some drainage from the tube.” As supervisor, Owens was involved with the
extended visitation attempt with Grandmother in May-June of 2009. Owens weighed T.J.
before he went to Grandmother’s on Fridays and then after each visit on Mondays. Owens
noted that T.J. gained steadily during the week days but that “he had a [weight]loss every
weekend from that Friday evening to that Monday evening.” The feeding requirements at
that time were for T.J. to consume 4-6 ounces of food orally but if he failed to do so, then he
was to have a bolus feed directly through his G-Tube site. Owens testified that Grandmother
told her that T.J. was taking the food orally but it was her opinion that the weight loss during 14
this period was not consistent with the amount of food T.J. should have been receiving.
The weekend visits ended because of T.J.’s weight loss and the difficulty of continuously
transporting T.J. between the homes. This evidence supports the finding that the best
interest of T.J. is served by an award of permanent custody to the Agency.
{¶ 31} As to R.C. 2151.414(D)(1)(d) and T.J.’s need for a legally secure
permanent placement and whether that can be achieved with or without permanent
placement to the Agency, the court concluded that T.J. is in desperate need of a legally
secure placement which supports Agency custody. In addition to possible placement with
Mother, the court also considered Grandmother and any other potential relative for
placement.
{¶ 32} As to other alternative placements, Johnson testified that it was not until
March of 2010 that the maternal aunt requested a home study. She was purportedly unable
to request one earlier because she was living with Grandmother. She had allegedly moved
out right before the hearing. On these facts, the aunt was not a viable placement for T.J.
{¶ 33} Clearly the court did fully consider potential placement with Grandmother.
The court found that the testimony at the hearing established that Grandmother had made
steps to complete her case plan, but continuously missed medical appointments.
Furthermore, T.J. displayed a more consistent growth pattern while in foster care. The court
found that Grandmother did not adequately complete her case plan objectives, and did not
demonstrate an ability and willingness to appropriately address T.J.’s medical needs. At the
time of hearing Grandmother was unemployed and her income could not be documented.
Grandmother missed four of six appointments to address T.J.’s nutritional needs and was 15
late to a fifth just before the final hearing on May 6, 2010.
{¶ 34} We find competent, credible evidence from which the trial court properly
concluded that the statutory elements for termination of parental rights were established. The
trial court held that although the Mother began mental health counseling she was terminated
from the program and forced to restart. Furthermore, the testimony of Johnson establishes
that Mother refused to attend parenting classes as required by her case plan. Mother has also
abdicated her interest in attaining custody and instead wishes for Grandmother to have
custody of T.J.. Furthermore, the testimony from the hearing, evidences a lack of
commitment of Mother to participate in a case plan and attend appointments. Although T.J.
exhibited a bond with Grandmother, the Court correctly found that custody with
Grandmother was also not suitable because she demonstrated a lack of commitment to attend
appointments, neglected to remedy the failed housing study concerns until the week before
trial, and had eight prior substantiated abuse claims with MCCS.
{¶ 35} Clear and convincing evidence establishes that the factors set forth in R.C.
2151.414(D) support a finding of Agency permanent placement for T.J. Competent
credible evidence also supports the determination that T.J. could not be placed with either
parent in a reasonable period of time as set forth in R.C. 2151.414(B). Like the petitioning
relative in In re A.U., Grandmother did not complete her case plan, continuously missed
appointments, and repeatedly failed to remedy the circumstances that failed the home study.
Mother argues that T.J.’s wishes are reflected in his bond with her and Grandmother.
Although there is evidence of a bond with the biological family, there is also repeated
testimony from the nurses, G.A.L., and caseworker that T.J. was likewise bonded to the 16
foster family. As noted by the trial court, this factor under best interest considerations in
R.C. 2151.414 does not favor either side. Thus, the trial court based its decision upon the
other factors, including the custody history of T.J. and his need for a legally secure
permanent placement.
{¶ 36} The court correctly found that the Agency made reasonable efforts to
prevent T.J.’s removal and work towards reunification but permanent custody to MCCS is in
the best interest of the child pursuant to §2151.414(D)(1). The court correctly held that
placement with the parents is not possible in the reasonable future under §2151.414(E)
because the father has not come forward and has expressed no interest in custody and
Mother has failed to complete her case plan objectives. We conclude that the trial court
considered all aspects of the child’s life, relationships, and permanent custody needs when
determining what would be in T.J.’s best interest. Competent and credible evidence
establishes that T.J. cannot be placed with Mother within a reasonable time, and
Grandmother is not a suitable alternative. Thus, the permanent custody award to the
Agency is in T.J.’s best interest. Mother’s second assignment of error is overruled.
{¶ 37} Having overruled both of Mother’s assigned errors, the judgment of the
trial court is affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Michele D. Phipps Ann M. Currier Hon. Nick Kuntz 17