[Cite as In re N.C.1, 2014-Ohio-2430.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: N.C.1, A.C., and N.C.2. : APPEAL NO. C-140097
TRIAL NO. F01-2211x
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 6, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest Lee, Assistant
Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family
Services,
Leslie Kennedy, for Appellee Guardian Ad Litem,
Timothy McKenna, for Appellant Mother,
Roberta Barbanel, for A.C.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Appellant mother appeals the judgment of the Hamilton County
Juvenile Court terminating her parental rights and granting permanent custody of her
sons, N.C.1, A.C., and N.C.2, to the Hamilton County Department of Job and Family
Services (“HCJFS”). She challenges the weight of the evidence supporting the trial
court’s judgment. After reviewing the record, mother’s arguments, and the applicable
law, we conclude the trial court’s judgment is supported by competent, credible
evidence, and therefore, affirm its decision to terminate her parental rights and
award permanent custody of her three sons to HCJFS.
Juvenile Court Proceedings
{¶2} Mother has four children with father. N.C.1, A.C., and N.C.2 are the
three youngest children. In 2010, mother was homeless, and left the children in the
custody of their maternal grandmother. The maternal grandmother contacted 241-
KIDS, and the children were placed in the protective supervision of HCJFS in April
2010. When the maternal grandmother reported she could no longer care for the boys
and the parents failed to follow through with services, the court terminated the order of
protective supervision and granted HCJFS’s motion for interim custody in May 2010.
{¶3} While the boys were in foster care, they made allegations that they
had been sexually abused by an older brother. In August 2010, the boys were
adjudicated dependent and HCJFS was granted temporary custody of them. In March
and August 2011, the juvenile court granted HCJFS extensions of temporary custody.
{¶4} In January 2012, HCJFS moved for permanent custody of the boys.
In April 2013, the magistrate heard testimony from N.C.1’s and N.C.2’s therapists, the
HCJFS caseworker, a support worker in the foster care program for N.C.1, and mother’s
case manager and therapist. The magistrate granted HCJFS’s motion for permanent
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custody in September 2013. Mother filed a timely objection, arguing the magistrate’s
decision was not supported by the weight of the evidence. In January 2014, the trial
court overruled mother’s objection and adopted the magistrate’s decision terminating
her parental rights and granting permanent custody of N.C.1, A.C., and N.C.2 to HCJFS.
Weight of the Evidence
{¶5} In a single assignment of error, mother argues the trial court’s
judgment granting permanent custody of N.C.1, A.C., and N.C.2 to HCJFS was contrary
to the manifest weight of the evidence.
{¶6} A trial court is authorized to terminate parental rights and to grant
permanent custody to a children services agency if it finds by clear and convincing
evidence that the children’s best interest would be served by a grant of permanent
custody to the agency and that one of the four conditions enumerated in R.C.
2151.414(B)(1)(a) through (d) has been met. See R.C. 2151.414(B); In re W.W., 1st Dist.
Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 48; Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus (clear and
convincing evidence is that which produces in the mind of the trier of fact “a firm belief
or conviction as to the facts sought to be established”). This court “will not substitute
[it’s] own judgment for that of the trial court applying a clear and convincing standard
where some competent and credible evidence supports the trial court’s determinations.”
In re W.W. at ¶ 46.
{¶7} Mother argues that there is no competent and credible evidence to
support the juvenile court’s finding pursuant to R.C. 2151.414(B)(1)(a) that the
children could not be placed with her within a reasonable period of time or that it
was in the best interests of N.C.1, A.C., and N.C.2 to grant permanent custody to
HCJFS.
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{¶8} R.C. 2151.414(E) identifies factors for determining whether a 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 exists, 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.
See In re W.W. at ¶ 54-58. Pertinent here, the trial court found that mother’s failure
to substantially remedy the conditions that caused the children to be placed outside
the home, and her chronic mental illness and mental retardation, made her unable to
provide an adequate permanent home at the present time, or as anticipated, within
one year of the hearing. See R.C. 2151.414(E)(1) and (2).
{¶9} In determining the best interests of N.C.1, A.C., and N.C.2, the trial
court made findings based on the following statutory factors: (1) the interaction and
interrelationship of the children with their parents, siblings, relatives, foster
caregivers, out-of-home providers, and any other person who may significantly affect
the children; (2) the wishes of the children, as expressed directly by the children or
through the children’s guardian ad litem; (3) the custodial history of the children,
including whether the children have been in the temporary custody of public or
private children services agencies for 12 or more months; and (4) the children’s need
for a legally-secure placement and whether that type of placement can be achieved
without a grant of permanent custody. The trial court did not find any of the factors
in R.C. 2151.414(E)(7) through (11) applicable to mother. See R.C. 2151.414(D)(1);
In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, at ¶ 90-
91.
{¶10} Mother contends that she visited with her children regularly and
interacted with them appropriately. She notes her bond with the children and that
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she loves them. She further argues that a legally-secure placement can be made
without a grant of permanent custody to HCJFS. She stresses her completion of
some case-plan objectives and insists that if she were given more time she could
complete the others. Finally, she argues she could protect the children by separating
them from their older brother and by reporting any harm to them.
{¶11} After reviewing the record, we find competent, credible evidence to
support the juvenile court’s findings that the children could not be placed with
mother within a reasonable period of time and that it was in their best interests to
grant permanent custody to HCJFS.
{¶12} The record reflects that at the time the boys came into the care of
HCJFS, mother was struggling to manage their behaviors, meet their mental-health
and educational needs, and to get them to school on a consistent basis. N.C.1 has
been diagnosed with anxiety and developmental delays. A.C. has been diagnosed
with attention deficit hyperactivity disorder and developmental delays. N.C.2 has
been diagnosed with a severe speech impediment and developmental delays.
{¶13} The boys’ father was diagnosed with paranoid schizophrenia. He
has a history of sexually and physically abusing all three boys. He had no
involvement with HCJFS and his whereabouts have been unknown throughout the
proceedings.
{¶14} Mother suffers from mild mental retardation and was diagnosed
with depression. She was also a victim of domestic violence at the hands of father.
She admitted to being overwhelmed with the care of the children. The court ordered
mother to complete a psychological evaluation, maintain stable housing and income,
engage in the boys’ therapies, and complete parenting education.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} While in foster case, the boys made allegations of sexual abuse by
an older brother, and eventually had to be separated because of sexually-reactive
behavior with each other. The boys have also been in multiple placements because of
aggressive behaviors. In March 2011, A.C. was hospitalized and placed in Cincinnati
Children’s Residential treatment. Mother did not participate in case-management
services at Centerpoint or family therapy while A.C. was placed at Cincinnati
Children’s Residential.
{¶16} In June 2011, N.C.1 made allegations of sexual abuse against
mother. The court suspended mother’s visits with N.C.1 and ordered her to complete
a sexual offender diagnostic assessment (“SODA”). Following the assessment, the
court ordered mother to undergo treatment and education for sexual abuse. In
August 2011, the court found that N.C.2 was suffering from post-traumatic stress
disorder, and displaying signs of psychosis, requiring intense therapy and
medisomatic services and constant supervision. N.C.2 had also disclosed that he had
been physically and sexually abused by his parents and his brothers.
{¶17} In January 2012, the guardian ad litem filed a motion to terminate
mother’s visits with all three children at the request of their therapists. All three
boys were struggling to manage their behaviors following visits with mother. The
trial court granted the motion in August 2012, when, despite therapy and continued
visits with mother, the children’s anxiety over her visits did not resolve.
{¶18} At the time of the permanent custody trial in April 2013, the boys
had been in the custody of HCJFS since May 2010, and mother still had not
completed all of her case-plan goals. She had completed parenting education, but
she had been unable to maintain consistent and stable housing. She was in her
fourth home since December 2011, and would not let the caseworker visit her. She
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had attended individual counseling 11 times, but she had not attended since
December 2012. She had not visited with the boys since August 2012, when the trial
court had suspended her visits because their anxiety over her visits had not resolved.
Mother’s therapist testified that because her visits with the boys had never resumed,
she had a difficult time understanding the impact of the sexual abuse on them.
Mother had also failed to complete the sexual offender treatment recommended in
her SODA.
{¶19} N.C.2 and A.C. had made progress, but they were still struggling
with anxiety and depression. A.C. was still in a structured residential setting where
he could see his individual therapist and participate in group therapy on a weekly
basis. A.C. was expected to be discharged from the residential setting to a
therapeutic foster home in June 2013. A.C. wanted to visit with his brothers and his
mother.
{¶20} N.C.2’s therapist testified that he had continued to talk about the
physical and sexual abuse that he had experienced at the hands of his parents and his
brothers; he was physically and verbally aggressive with his peers and with adults; he
made inappropriate sexual comments; and he displayed extreme anxiety where he
had to rock himself to self-soothe. His therapist recommended that family therapy
not begin until mother had completed the treatment recommended in her SODA.
She further testified that N.C.2 had expressed intense fears about living with his
brothers, and had told her that he would run away if he had to live with them again.
{¶21} N.C.1’s therapist testified that he has expressed frustration that
mother does not believe his reports of abuse and that N.C.1 is concerned that mother
will be unable to keep him safe. He had made progress in his therapy following the
termination of his visits with mother. He was more even tempered, his social skills
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and manners had improved, and he had bonded with his foster mother. N.C.1,
however, had recently been displaying some schizophrenic tendencies, including
some auditory and visual hallucinations, which was concerning.
{¶22} Both N.C.1 and N.C.2 had expressed a desire to be adopted by their
foster parents, and did not want to reunify with their parents. A.C., however, had
expressed a desire to live with mother. The guardian ad litem for N.C.1 , N.C.2, and
A.C. recommended that HCJFS be granted permanent custody of all three boys. The
In re Williams attorney for A.C., conveyed that it was A.C.’s wish to be placed with
mother. See In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110.
{¶23} The ongoing caseworker recommended that custody of all three
boys be granted to HCJFS. She testified that their basic needs, their therapeutic and
behavioral needs, and their safety needs were all being met in HCJFS’s custody. She
acknowledged that mother had bonded with her children and that she loved them,
but she testified that given mother’s own mental-health needs, the history of physical
and sexual abuse the boys had suffered, and mother’s inability to protect the boys,
that their best interests would be served by a grant of permanent custody to HCJFS.
{¶24} Based upon our review of the record and the applicable law, we
hold that the trial court’s judgment awarding permanent custody of N.C.1, A.C., and
N.C.2 was supported by competent, credible evidence. We, therefore, overrule
mother’s sole assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J, and HILDEBRANDT, J., concur.
Please note:
The court has recorded its own entry this date.
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