In re Z.C.

2014 Ohio 3290

• Court: Ohio Court of Appeals
• Decided: July 28, 2014
• Docket: CA2014-02-049 CA2014-02-050
• Status: Published

Opinion

[Cite as In re Z.C., 2014-Ohio-3290.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE: : CASE NOS. CA2014-02-049 Z.C., et al. : CA2014-02-050

: OPINION 7/28/2014 :

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2011-0356

Jeannine Barbeau, 3268 Jefferson Avenue, Cincinnati, Ohio 45220, guardian ad litem

Dawn S. Garrett, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, for appellant, T.W.

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Children's Services

Gregory L. Peck, 3426 Indian Creek Road, Oxford, Ohio 45056, for A.W.

PIPER, J.

{¶ 1} Appellant, the biological mother of Z.C. and R.C., appeals a decision of the

Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of the

two children to a children services agency. Butler CA2014-02-049 CA2014-02-050

{¶ 2} Appellant is the mother of three children. Her oldest child, S.C., who was four

years old at the start of this case, has a different father. Prior to the start of this case, the

three children lived with appellant and her husband, who is the father of the two boys

involved in this appeal. At the start of the case, Z.C. and R.C. were two years and one year

old, respectively.

{¶ 3} The Children Services Division of the Butler County Department of Job and

Family Services began working with appellant's family in January 2011 after the agency

received a referral regarding the condition of the home. A caseworker visited and found the

home in poor condition, with dirty dishes all over the kitchen, dog feces and urine on the floor

and an infestation of roaches. On a visit the following day, the worker observed Z.C. for the

first time and noticed bruises on his arm and red marks in a row on his back. Because of

behavioral and developmental issues, the children were referred to the Help Me Grow

program.

{¶ 4} A second referral was received in March 2011 involving the condition of the

home. Middletown Police were also called and found dog and cat feces throughout the

home, including in the children's bedrooms. They also found an infestation of bugs and

many dirty diapers on the floor. The police officers did not feel it was a safe environment for

the children and S.C.'s father took all three children for two weeks until the parents could

improve the condition of the home enough for the children to return home. Although there

was some improvement, concerns regarding the condition of the home continued over the

next months, including problems with animal feces in the house and on the children's

blankets, the children's beds were nailed to the floor without sheets, multiple animals were in

the home, the children were dirty and had lice. It was also reported that the children were

displaying behavioral problems, and there was minimal food and the children appeared

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hungry. The caseworker reported that appellant would make some improvements, but the

home would soon return to disarray.

{¶ 5} The agency worked with the family for around seven months and provided

resources to aid improvement, including the Development of Living Skills (D.L.S.) program.

However, because many of the problems persisted and additional concerns surfaced, on

August 15, 2011, the agency filed a complaint alleging that the children were neglected and

dependent. At a hearing on the complaint, a caseworker explained that the agency gave the

family time to make improvements, but the parents were not following through with the

recommendations to get the help they needed. She indicated that all three children were

displaying behaviors that were concerning and the condition of the home had deteriorated.

In particular, the agency was concerned about an incident in which Z.C. sat on S.C. and

wrapped a phone cord around her neck. The caseworker also testified that with regard to the

condition of the house, the parents said they were moving out of the roach-infested house at

the beginning of August, but had not, so the agency filed the dependency and neglect

complaint.

{¶ 6} The trial court found that the children were neglected and dependent. Z.C. and

R.C. were placed in a foster home on removal and throughout the case have remained in

that same foster home. S.C. was placed in the custody of her father and is not a party to this

case involving her half-brothers.

{¶ 7} A case plan was prepared that required the parents to complete the D.L.S.

parenting program, maintain stable housing and income, limit the total number of pets in the

home to no more than two, complete mental health evaluations and recommendations, and

participate in family therapy and counseling. The parents were also granted supervised

visitation, with the opportunity for liberalized visitation. Although there was some

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improvement at times, over the course of the case, the level of progress by the parents was

inconsistent.

{¶ 8} Early in the case, a psychological evaluation was completed for Z.C., which

indicated he engaged in aggressive behavior with his siblings and children at daycare,

throwing his head back when angry. It was also reported that Z.C. had nightmares frequently

when he was at home, but since being in foster care the nightmares and incidents of throwing

his head back had reduced. It was also reported that his behavior had improved with the use

of redirection, but the child still required constant supervision. It was further reported that the

child gorges himself on food, was behind on his shots and there were concerns with speech

and balance problems. The psychologist concluded that Z.C. was behaviorally responding in

ways that reflect the environment he was living in and diagnosed adjustment disorder with

mixed disturbance of emotions and conduct. The psychologist recommended family

counseling and that the parents participate in parenting classes to learn the fundamental

skills of parenting.

{¶ 9} D.L.S. began working with the family for a second time. Reports from the

program indicate that the parents felt they knew how to parent and disputed the information

provided by D.L.S. workers. Reports indicated the parents had an inability to understand the

health issues involved with a home that was not kept clean and that the parents frequently

gave excuses why they were not able to maintain the home. Reports also indicated the

parents had expectations that were out of line with what small boys were developmentally

capable of doing. The D.L.S. worker concluded that the concerns/weaknesses of the parents

were not due to a lack of ability or skills, but instead were due to a lack of motivation and a

resistance to follow through with the skills acquired. The worker concluded that the parents

have the skills and knowledge, but due to a lack of motivation and consistency in many areas

they only marginally completed the program. -4- Butler CA2014-02-049 CA2014-02-050

{¶ 10} The parents and children also were provided in-home family therapy. The

family therapist provided notes of the therapy sessions. Within these notes, the therapist

indicated that the parents verbalized they do not want to change their parenting practice and

feel there is nothing they need to improve.

{¶ 11} The agency eventually filed for permanent custody of Z.C. and R.C. on January

23, 2013. At the hearing, an agency supervisor, appellant, father and grandmother testified.

The agency supervisor testified that the agency's concerns that led to filing the permanent

custody motion include an unstable living environment, lack of income, an inability of the

parents to apply what they learned at D.L.S. and at family counseling, and the failure to

complete case plan services.

{¶ 12} Appellant testified that the children have expressed to her several times that

they want to go home with her. She stated that she is living in her mother's three-bedroom

house. The people currently living in the house include appellant's mother, the children's

father and an aunt and uncle, although, according to appellant, the aunt and uncle were

planning on moving out of the home in a week. The house is owned by the grandmother's

common law husband who is living in Louisiana. Evidence was presented to show that the

house is in foreclosure and that there are three dogs, a cat, a ferret and a rabbit in the home.

The grandmother testified that the house is not in foreclosure and the bank is working with

her "husband" so that he can keep the property. In her testimony, the boys' grandmother

also indicated that she wanted the children to go back with their parents, but if it was not

possible, she asked that she be considered as an alternative placement.

{¶ 13} In addition to the testimony at the hearing, documentary evidence in the form of

social summaries, D.L.S. reports, family therapist reports, counselors' reports, and

psychological evaluations of Z.C. and his parents were all admitted into evidence.

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{¶ 14} After considering the evidence, a magistrate determined that it was in the best

interest of the children to grant permanent custody to the agency. The trial court overruled

objections and adopted the magistrate's decision.

{¶ 15} Appellant now appeals the trial court's decision to grant permanent custody to

the agency. She raises the following sole assignment of error for our review:

{¶ 16} THE COURT'S DECISION AND ORDER OF PERMANENT CUSTODY AND

DENIAL OF LEGAL CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S

FINDINGS AND THE EVIDENCE PRESENTED FAILED TO MEET THE REQUISITE CLEAR

AND CONVINCING STANDARD.

{¶ 17} Before a natural parent's constitutionally protected liberty interest in the care

and custody of her child may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards for permanent custody have been met.

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review

of a juvenile court's decision granting permanent custody is limited to whether sufficient

credible evidence exists to support the juvenile court's determination. In re Starkey, 150

Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding

by the juvenile court that the evidence was clear and convincing only if there is a sufficient

conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th

Dist.).

{¶ 18} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and

award permanent custody to a children services agency if it makes findings pursuant to a

two-part test. First, the court must find that the grant of permanent custody to the agency is

in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the

court must find that any of the following apply: the child is abandoned; the child is orphaned; -6- Butler CA2014-02-049 CA2014-02-050

the child has been in the temporary custody of the agency for at least 12 months of a

consecutive 22-month period; or where the preceding three factors do not apply, the child

cannot be placed with either parent within a reasonable time or should not be placed with

either parent. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Warren Nos.

CA2009-10-139, CA2009-11-146, 2010-Ohio-1122, ¶ 22.

{¶ 19} The juvenile court found by clear and convincing evidence, and appellant does

not dispute, that the children have been in the temporary custody of the agency for more than

12 months of a consecutive 22-month period as of the date the agency filed the permanent

custody motion. However, appellant does dispute the juvenile court's finding that granting

permanent custody of the children to the agency is in the children's best interest.

Specifically, appellant argues that appellant has a bonded relationship with the children,

along with a home and income, making permanent custody inappropriate.

{¶ 20} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a

permanent custody hearing:

[T]he court shall consider all relevant factors, including, but not limited to the following:

(a) 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;

(b) 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;

(c) 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 * * *;

(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;

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(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

{¶ 21} With respect to R.C. 2151.414(D)(1)(a), the juvenile court found that the

parents were consistent in attending visits when the visits occurred in their home with the

D.L.S. instructor or the family therapist. The court indicated that due to the parents' unstable

living situation, visits were moved to Family Connections in February 2014 and visits

remained at the center. The court found that concerns have been raised by persons

supervising and observing the visits regarding the parents' inability to consistently

demonstrate implementation of the parenting skills they have been taught through the D.L.S.

{¶ 22} The court indicated that appellant testified that Z.C. did not want to leave her

and that the child has run into the street to avoid getting into the foster parent's car. In

addition, appellant testified that R.C. stated in family counseling that he is afraid of never

seeing his mother again. The court found, however, that the family therapist's report

indicates that the children are avoidant with regards to their parents. In addition, the court

found that the foster mother reported that during the week after visits, the children do not talk

or ask about their parents. The family therapist reported that in a family session on August

15, 2013, the children appeared to be emotionally withdrawn.

{¶ 23} The court further indicated that the children have resided in the same foster

home since their removal and that the guardian ad litem reports that both children are happy

and comfortable in the foster home and bonded to the foster parent.

{¶ 24} With respect to R.C. 2151.414(D)(1)(b), the juvenile court indicated that it did

not conduct an in camera interview with the children, but considered the report of the

guardian ad litem, who recommended that the children be placed in the permanent custody

of the agency.

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{¶ 25} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that the

children have been in the custody of the agency since August 15, 2011. The court further

found that the agency filed for permanent custody on January 30, 2013 and the children had

been in agency custody for 16 months at that time. Accordingly, the court found that the

children had been in agency custody for 12 or more months of a consecutive 22-month

period.

{¶ 26} With respect to R.C. 2151.414 (D)(1)(d), the juvenile court determined it was

clear that the children needed a legally secure placement as they had been in foster care for

approximately 25 months while the case was pending. The court found that while there was

some evidence that the parents made some progress in developing better parenting skills,

the agency presented evidence "replete with examples where the parents have resisted

implementing certain skills and failed to address the safety concerns" delineated by the

D.L.S. educator. The court found that before the complaint was filed, D.L.S. worked with the

parents from March 2011 until July 2011 when services were terminated due to a lack of

attendance. Then, as part of the case plan adopted by the court, the parents again

participated in D.L.S. for a whole year.

{¶ 27} However, in her final report, the D.L.S. educator indicated that an ongoing issue

with the parents was their strong belief that the children should "just know" to stay away from

things and the parents expect this type of behavior from their very young children. The court

indicated examples of what it indicated were "unrealistic expectations from the parents, which

included the parents keeping medications and a tattoo table and supplies within areas the

children could reach. The court found that despite discussions with the D.L.S. instructor and

the family therapist, the parents refused to change the location of the medication and tattoo

table, stating that the children should know not to touch certain things.

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{¶ 28} The court also reviewed the evidence regarding home sanitation and found that

when the children were attending visits in the home, it was vacuumed and clutter free, but

daily routines of keeping other parts of the house clean were marginal, including things like

black mold on the toilet bowl and dog feces on the stairs. The court found that the experts

noted that these concerns/weaknesses were not due to the parents' lack of ability or skills,

but were due to a lack of motivation and a resistance to follow through with the skills they

acquired. The court found this lack of motivation and progress concerning because of the

developmental and behavioral issues that have been diagnosed for the children after being

placed in foster care.

{¶ 29} The court indicated that Z.C. is currently receiving occupational therapy and

reviewed the findings of a psychologist who evaluated the child after his removal from the

home. The psychologist determined that Z.C. "appears to be responding in ways that seem

to reflect his environment he lived in." The psychologist indicated that being left unattended

in his room most of the day is apparent in the way the child copes with stressors, such as

throwing his head back when angry and that the child does not appear to have received

much guidance or discipline. The psychologist noted that since being in foster care, Z.C.'s

needs are being met and his behaviors have gradually decreased, but his symptoms of

aggression could get worse if he is left in an environment where he is left unattended and is

not receiving guidance or discipline from his caregivers. The psychologist noted that Z.C. is

"at risk for developing Oppositional Defiant Disorder and other mental behaviors if the

parents do not change the way they raise him."

{¶ 30} The court also found that the father and mother were referred to counseling, but

both were discharged for lack of attendance. In addition, the court found that the mother and

father failed to demonstrate a source of income. During the case, appellant only worked a

few days through a temporary service and the father has had sporadic employment. - 10 - Butler CA2014-02-049 CA2014-02-050

{¶ 31} The court reviewed the evidence regarding the sanitation issues in the home

throughout the course of the case. The court noted that early in the case the condition of the

home was "deplorable" and although the parents moved to a residence that was somewhat

better, there continued to be problems, such as dog feces not being cleaned up, despite the

D.L.S. instructor's urging the parents to do so. In addition, the court noted that it had ordered

the parents to have no more than two pets in the home, but the parents failed to follow this

ruling at times during the case and they are now living in a small three-bedroom home with

four other adults, three dogs, a ferret and a rabbit. The court concluded that by their actions,

the parents have demonstrated an inability to make good judgments, causing concern

regarding the parents' ability to make good judgments about the safety of their children.

{¶ 32} The court also reviewed the parents' residences throughout the case and

determined that they have moved several times, including living in a motel at one point, and

that at the time of the hearing they were living in the grandmother's residence which is owned

by the grandmother's "common law husband" who resides in Louisiana. The court found that

no one living in the home has proprietary rights to the residence and the grandmother did not

appear to be aware of the legal status of the house. The court was also concerned because

the grandmother indicated in her testimony that a male friend of hers also lives in the house.

{¶ 33} Based on a review of the evidence presented, the trial court determined that the

parents failed to demonstrate that they can provide for the needs of the children on a

consistent basis. The court indicated the parents had to be prompted by providers several

times before following any advice. The court concluded that although the parents have

marginally improved their ability to parent, it is not in the children's best interest to "gamble on

the possibility that the parents may in the future be able to obtain and maintain stability in

their living conditions or to meet their children's developmental needs." The court concluded

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that despite two years of involvement in multiple case plan services, the parents failed to

rectify the issues which caused the children to be placed in foster care.

{¶ 34} The court also determined that no other appropriate relatives or persons are

available to parent the children. The court indicated that the grandmother testified that she

was seeking placement of the children with her. However, the grandmother failed to file a

motion for legal custody, and did not complete the home study process. In addition, she lives

in a home that appears to have a foreclosure proceeding pending. Based on a review of all

the evidence under this factor, the court determined that a legally secure placement cannot

be achieved without a grant of permanent custody to the agency.

{¶ 35} Based on a review of the factors for determining the best interest of the

children, the trial court found by clear and convincing evidence that granting permanent

custody of the children to the agency was in the children's best interest. On appeal,

appellant argues that the parents cured the underlying home sanitation issues and that the

R.C. 2151.414(D)(1) best interest factors weigh in her favor because the children are bonded

with her and the grandmother and want to come home, and that a legally secure placement

can be achieved without a grant of permanent custody to the agency.

{¶ 36} However, after a thorough review of all the evidence submitted in this case, we

find the trial court's decision is supported by the record and is not against the manifest weight

of the evidence. Although the parents were given six months before the complaint was filed,

and over two years before the permanent custody hearing began, the problems with the

home and their parenting still existed. Although there was a measure of progress at certain

points in the case with the house, the parents failed to consistently maintain a clean, safe

and stable home for the children.

{¶ 37} In the same manner, although the parents participated in the D.L.S program

two times, they were unable or unwilling to implement the lessons and provide a safe - 12 - Butler CA2014-02-049 CA2014-02-050

environment for the children and to meet their developmental needs. Evidence was

presented to show the psychological problems the children had from their environment and

the progress made by the children in the foster home. Evidence was presented to show that

placing them back in that environment would be harmful, and that the parents were unable or

unwilling to make the changes in their parenting that would provide a physically,

psychologically and developmentally safe environment for the children.

{¶ 38} Finally, although appellant argues permanent custody should not have been

granted because the grandmother is an appropriate placement, we find the court's decision

to the contrary is supported by the evidence. The grandmother failed to file a motion for legal

custody or to have a home study completed. She is living in a home with several other

people and multiple pets. In addition, the grandmother does not have any proprietary rights

to the home which is in foreclosure. We find no error in the trial court's determination on this

issue.

{¶ 39} Accordingly, appellant's sole assignment of error is overruled.

{¶ 40} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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