[Cite as In re L.W.J., 2014-Ohio-4181.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: L.W.J. and J.J. : APPEAL NOS. C-140282
C-140283
:
TRIAL NO. F12-220Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 24, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Geers,
Assistant Prosecuting Attorney, for Appellant Hamilton County Department of Job
and Family Services,
Megan Busam, Attorney Guardian Ad Litem, for Appellants L.W.J. and J.J.,
Elizabeth Powers Mitts, Attorney Guardian Ad Litem, for Appellee Mother,
W. Edward Clore, for Appellee Mother.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Judge.
{¶1} The Hamilton County Department of Job and Family Services
(“HCJFS”) appeals the juvenile court’s judgment denying it’s motion for permanent
custody of L.W.J. and J.J. (“the children”) and granting permanent custody of the
children to their mother, the appellee. The guardian ad litem (“GAL”) for the
children also appeals the juvenile court’s judgment awarding permanent custody to
the mother. Because the mother failed to complete court-ordered substance-abuse
and mental-health treatment and failed to secure independent, permanent housing
that was appropriate for the children, we reverse the juvenile court’s judgment
denying HCJFS’s motion for permanent custody.
Facts
{¶2} The mother had two children, L.W.J. who was born on February 7,
2008, and J.J. who was born on March 27, 2009. The children were removed from
the mother’s home in June 2011 because of the deplorable and unsafe living
conditions. Because of the condition of the home, the mother was charged with and
convicted of child endangerment in August 2011. She was placed on community
control, and ordered to complete parenting classes and to report for random
toxicology screens. The children were placed with a maternal aunt under a safety
plan. On December 15, 2011, the mother moved in with the aunt, but two weeks
later, the aunt said that the mother and children could no longer stay with her. On
December 30, 2011, the mother signed a voluntary agreement placing the children in
the interim custody of HCJFS.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} In February 2012, the children were adjudicated dependent and
neglected. At the dependency hearing, the mother stipulated to the following facts:
the house that the mother and children had been living in was “deplorable and not
safe for children to remain in the home”; the outside of the house was structurally
unsound and there was furniture littering the property; there was trash all over the
inside of the home, with medication bottles lying within the reach of the children;
there was molded food on the table, crawling with roaches; there was no edible food
in the refrigerator, only dead roaches and roach droppings; there were roaches
crawling over the food in the cabinets; there was black mold in the bathrooms; and
the carpet in the house was so dirty, it was almost black.
{¶4} Following the dependency hearing, HCJFS was awarded temporary
custody of the children. The juvenile court then ordered the mother to complete a
previously scheduled diagnostic assessment and follow through with any
recommended services. Further, the mother was ordered to “comply with random
drug screens,” “obtain and maintain sobriety,” “successfully complete parenting
classes,” “attend [supervised] visits” and “obtain and maintain stable appropriate
housing and income.” The visits were supervised because the mother had arrived at
one visit under the influence of “something” and smelling of marijuana.
{¶5} At the review hearing in May 2012, HCJFS reported that the mother
remained without appropriate housing, and had missed multiple visits with the
children as well as the scheduled diagnostic assessment. The court again ordered the
mother to obtain appropriate stable housing, attend visits and complete parenting
classes. But the mother missed most of the visits in July and August 2012, and tested
positive for cocaine in June 2012, and for marijuana in July 2012. Eventually, the
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OHIO FIRST DISTRICT COURT OF APPEALS
mother completed the diagnostic assessment, and she was diagnosed with depressive
disorder, cannabis dependence, alcohol abuse and borderline intellectual
functioning. It was recommended that the mother attend individual therapy and
receive substance-abuse treatment.
{¶6} The mother consistently visited with the children in October and
November 2012. In December 2012, the court ordered the mother to complete
“outpatient substance abuse treatment,” continue to visit the children, and obtain
and maintain stable housing and income.
{¶7} Three months later, in March 2013, the court was notified that the
mother had been terminated from services for substance-abuse and mental-health
treatment because of her failure to comply with the programs. The mother had also
been terminated from the parenting program at Beech Acres because she had failed
to complete the parenting coach session. The mother was also still living in the home
from which the children had been removed. The HCJFS caseworker reported that
the mother had been referred to another program for substance-abuse and mental-
health treatment and that the intake was scheduled soon. The court ordered the
mother to attend that intake appointment, visit the children every week and look at
housing options.
{¶8} In July 2013, the mother’s attorney asked for a GAL to be appointed
for the mother because she was having difficulty understanding the legal
proceedings. A GAL was appointed.
{¶9} Eventually, HCJFS moved to modify its temporary custody of the
children to permanent custody. Darrell Walton, the maternal grandmother’s fiancé,
also filed a petition for custody of the children. Walton and the maternal
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OHIO FIRST DISTRICT COURT OF APPEALS
grandmother had been approved to visit with the children, and had been doing so
with the mother in recent months. A permanent-custody hearing was held in
October and November 2013.
Permanent-Custody Hearing
{¶10} At the permanent-custody hearing, HCJFS presented the testimony of
Candace Baird, an HCJFS caseworker. Baird testified that HCJFS was seeking
permanent custody of the children because: (1) the children had been out of the
mother’s care since June 2011; (2) the mother had been unable to find permanent
appropriate housing; and (3) the mother had refused to complete the services offered
to her for parent coaching and substance-abuse and mental-health treatment. Baird
testified that the mother refused to complete the services because she felt that she
did not need those services. Baird testified that although the mother had been
visiting the children consistently for the past six months and was affectionate and
loving with them, one month prior to the permanent-custody hearing, the mother
had told Baird that she did not want custody of the children and instead wanted the
children’s maternal grandmother to have custody. The mother also self-reported
that she was still using drugs as of September 2013.
{¶11} Baird noted that the mother had not moved out of the house she had
been living in with the children until it had been condemned. When that occurred,
the mother had moved into the house where Walton and the children’s maternal
grandmother lived. She had only been living there one month at the time of the
permanent-custody hearing.
{¶12} Finally, Baird testified that the children had been living with the same
foster family since being placed in the care of HCJFS. The foster parents had been
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OHIO FIRST DISTRICT COURT OF APPEALS
taking the children to speech services, doctor appointments and school. The foster
parents had bonded with the children and wanted to adopt them.
{¶13} Laura Rudolph-Young, the HCJFS employee who had completed the
home study for Walton and the maternal grandmother, testified that the house itself
was appropriate for the children to inhabit. But she was concerned about Walton’s
past domestic-violence history with women other than the maternal grandmother.
And she was also concerned about the grandmother’s history with the children’s
service agency. Apparently, the mother and her siblings had been removed from
grandmother’s care so grandmother did not raise the mother. Despite these
concerns, Rudolph-Young noted that Walton did have custody of his three children,
and that he had lived with grandmother for six years and there had been no reports
of domestic violence.
{¶14} Antoinette Atar Cottingham testified for HCJFS. She is currently an
employee with HCJFS, but had previously worked at Beech Acres Parenting Center
where the mother was ordered to attend parenting classes. Cottingham testified that
the mother was hard to get in touch with, and did not successfully complete the
parenting course at the time that Cottingham worked at Beech Acres.
{¶15} Walton testified that he had custody of his biological children and that
he wanted custody of the mother’s children. He testified he was bonded to them and
that he had an appropriate house. He also indicated that the mother was living with
him “until she gets a place.”
{¶16} The mother presented the testimony of Zach Vargo, the visitation
supervisor at the Family Nurturing Center (“FNC”) where visits between the mother
and the children had occurred. Vargo testified that for the previous two months, the
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OHIO FIRST DISTRICT COURT OF APPEALS
mother’s attendance had been almost perfect, and that during the visits, the mother
was engaged with the children and the children seemed happy to see her. He also
testified that the mother had recently been able to redirect the children’s bad
behavior and that, although he had initially had concerns about the mother’s “mental
and emotional issues,” he had not had those concerns recently.
{¶17} On cross-examination, Vargo conceded that the visits between the
mother and the children occurred in a very controlled environment with several staff
members present.
{¶18} Although the children’s GAL did not testify, in her report she
recommended that HCJFS be awarded permanent custody of the children because of
the mother’s lack of participation in the services offered. The children were too
young at the time of the report to express their wishes. The GAL noted that the
children had bonded with their foster family.
{¶19} Following the hearing, the court denied Walton’s petition for custody,
denied HCJFS’s motion for permanent custody, terminated HCJFS’s temporary
custody of the children and remanded custody of the children to the mother with
orders of protective supervision to HCJFS. The orders of supervision were that the
mother must (1) continue to live with Mr. Walton and the maternal grandmother; (2)
comply with random drug screens, and if any screen is positive, then immediately
engage in substance-abuse treatment; (3) maintain sobriety; and (4) engage in family
therapy with the children. The court noted that the orders of protective supervision
terminated on December 9, 2014.
{¶20} In awarding custody to the mother, the court focused on the mother’s
good visits with the children at FNC. The court noted that although the mother’s
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OHIO FIRST DISTRICT COURT OF APPEALS
lack of follow through on mental-health and substance-abuse treatment was
concerning, HCJFS had failed to show how these concerns prevented the mother
from “parenting.” Nevertheless, the court noted that the orders of protective
supervision addressed the concerns the court had regarding the mother’s lack of
engagement in treatment.
{¶21} HCJFS and the children’s GAL filed objections to the court’s decision.
While the objections were pending, the children’s GAL filed a review report in April
2014, indicating that the oldest child was in kindergarten and that he had expressed
that he wanted to live with “Nana,” his foster mother.
{¶22} Following a hearing on the objections, the juvenile court overruled the
objections and adopted the magistrate’s decision remanding custody to the mother.
In its decision, the court noted that although the mother “has untreated mental
health and substance abuse issues” and that her “borderline functioning, her lack of
income, her marijuana use and her mental health issues likely contributed to her
acceptance of past living in squalor with her children,” the mother “now lives with
the maternal grandmother and Mr. Walton” and that “[i]f the mother remains there,
the physical conditions of the prior house and cleanliness concerns that originally led
to the removal of the children will be relieved.” The court also noted that there was
not a “sufficient nexus of the mother’s drug use or mental health to the detriment of
these children.”
Appeal
{¶23} HCJFS, asserting a single assignment of error, and the children’s GAL,
asserting two assignments of error, appealed the juvenile court’s decision.
Collectively, the assignments challenge the juvenile court’s determination that it was
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OHIO FIRST DISTRICT COURT OF APPEALS
in the best interest of the children to deny HCJFS’s motion for permanent custody
and instead, remand custody to the mother.
{¶24} A juvenile 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 one of the four conditions enumerated in R.C. 2151.414(B)(1)(a)
through (d) has been met and that the children’s best interest would be served by a
grant of permanent custody to the agency. See R.C. 2151.414(B); In re W.W., 1st Dist.
Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 48.
{¶25} R.C. 2151.414(B)(1) permits a court to grant permanent custody of a
child to a children services agency if (a) the child is not abandoned or orphaned and
has not been in agency custody for 12 months, but cannot be placed with either
parent within a reasonable time or should not be placed with either parent, (b) the
child is abandoned, (c) the child is orphaned and no relatives are able to take
permanent custody, or (d) the child has been in the temporary custody of one or
more children services agencies for 12 months of a consecutive 22-month period.
{¶26} Below, it was undisputed that the children had been in the temporary
custody of HCJFS for 12 months of a consecutive 22-month period, so the condition
under 2151.414(B)(1)(d) has been satisfied. Thus, the only issue before the juvenile
court, when considering the objections to the magistrate’s decision denying
permanent custody to HCJFS, was what was in the best interest of the children.
Best Interest
{¶27} In assessing the best interest of a child, the court must consider “all
relevant factors,” including (1) the child’s interaction with parents, siblings, relatives,
foster caregivers and out-of-home providers, and any other person who may
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OHIO FIRST DISTRICT COURT OF APPEALS
significantly affect the child, (2) the wishes of the child, as expressed by the child or
the child’s guardian ad litem, (3) the custodial history of the child, (4) the child’s
need for legally secure placement and whether that type of placement can be
achieved without a grant of permanent custody, and (5) whether any of the factors
under R.C. 2151.414(E)(7) through (11) apply. R.C. 2151.414(D)(1)(a)-(e).
{¶28} After reviewing the record, we hold that there was clear and
convincing evidence that it was in the children’s best interest to grant permanent
custody to HCJFS, and thus, that the juvenile court erred by denying HCJFS’s
motion for permanent custody and remanding custody to the mother.
{¶29} Initially, we note that none of the factors set forth under R.C.
2151.414(E)(7) through (11) apply. Therefore, we only consider the first four factors
in the best-interest analysis set forth above.
The children’s relationships with others and their wishes
{¶30} The record demonstrates that although the mother eventually began to
visit more consistently with the children and that she had progressed somewhat in
parenting skills, the fact remained that any parenting by the mother took place in a
well-controlled environment with members of FNC present to assist. All of the
mother’s interaction with the children took place under the highest form of
supervision; there was no in-home visitation or overnights with the children. And
there could not have been because the mother chose not to move out of the house
that the children had been removed from due to its deplorable living conditions.
There was also evidence presented that the mother was affectionate with the children
at visitations and was bonded with them, yet one month before the permanent-
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OHIO FIRST DISTRICT COURT OF APPEALS
custody hearing, she had told the HCJFS caseworker that she did not want custody of
the children.
{¶31} Further, the evidence showed that the children were bonded with their
foster parents, who took good care of the children and wanted to adopt them. At the
time of the permanent-custody hearing, the children were too young to express their
wishes, but in a recent GAL report submitted to the court the oldest child expressed a
desire to live with the foster parents.
Custodial History
{¶32} The children have been out of the mother’s care since June 2011, and
had been in the care of HCJFS for almost two years when the permanent-custody
hearing occurred.
Legally Secure Placement
{¶33} There was clear and convincing evidence that it was not possible to
obtain a legally secure placement for the children without a grant of permanent
custody to HCJFS. The mother had untreated mental-health and substance-abuse
issues and refused to seek treatment, even after being ordered to do so by the
juvenile court. The mother had also been ordered to obtain and maintain an income,
but the record is unclear as to whether the mother had done so. The mother failed to
find appropriate, permanent housing for the children during the two years that the
children were in the temporary custody of HCJFS. She only moved from the home
that the children had been removed from because the house was being condemned.
At that point, one month before the permanent-custody hearing, she moved in with
the maternal grandmother and Walton, but Walton testified that that living
arrangement was only temporary. There was never any evidence presented that the
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OHIO FIRST DISTRICT COURT OF APPEALS
mother could provide appropriate, permanent housing for the children in the future,
and, as noted above, she certainly had not done so in the past. And it seems highly
unlikely, given the mother’s failure to participate in mental-health and substance-
abuse treatment, that the mother will find appropriate, permanent housing in the
future—the juvenile court even found that the mother’s untreated substance-abuse
and mental-health issues “likely contributed to her acceptance of past living in
squalor with her children.”
{¶34} Considering that the mother had not remedied the reason why the
children had been removed from her care, that she had refused to obey court orders
to participate in substance-abuse and mental-health treatment, and had told the
HCJFS case worker one month prior to the permanent-custody hearing that she did
not want custody of the children, it is apparent that a legally secure placement for the
children is only possible with a grant of permanent custody to HCJFS.
Sufficient Nexus Not Required
{¶35} In its decision, the juvenile court acknowledged but disregarded the
mother’s lack of compliance with the court’s orders to complete substance-abuse and
mental-health treatment, because HCJFS had not shown “a sufficient nexus of the
mother’s drug use or mental health to the detriment of these children.” But HCJFS
was not required to show that the mother’s mental-health and substance-abuse
issues during the reunification process adversely affected the children. In re W.W.,
1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 84-85. HCJFS is
only required to demonstrate that a parent’s mental condition actually interferes
with the parent’s ability to provide adequate care for the child in the adjudicatory
phase when HCJFS is seeking a finding of dependency under R.C. 2151.04(B). This
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OHIO FIRST DISTRICT COURT OF APPEALS
requirement is not applicable where HCJFS has previously been awarded temporary
custody of the children and is now seeking permanent custody. Id.
{¶36} Nevertheless, the fact that the mother remained in the home the
children had been removed from for “deplorable living conditions” instead of seeking
permanent, appropriate housing for the children was competent, credible evidence
demonstrating that the mother’s untreated issues kept her from providing adequate
care for the children.
{¶37} Based on the foregoing, we hold that the juvenile court’s finding that it
was not in the best interest of the children to grant permanent custody to HCJFS was
against the manifest weight of the evidence. See Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517. The juvenile court erred by denying HCJFS’s
motion for permanent custody and remanding custody to the mother. Accordingly,
we sustain the three assignments of error, and remand this cause to the juvenile
court with instructions to grant HCJFS’s motion for permanent custody.
Judgment accordingly.
CUNNINGHAM, P.J., and Hendon, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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In re L.W.J.
Combined Opinion