[Cite as In re M.C., 2014-Ohio-4521.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
CASE NOS. CA2014-05-098
M.C., et al. : CA2014-05-099
: OPINION
10/13/2014
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2012-03-026
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for Butler County
Childrens Services
Amy Ashcraft, 240 East State Street, Trenton, Ohio 45067, Guardian Ad Litem
Dawn S. Garrett, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249, for
appellant
Jeannine C. Barbeau, 3268 Jefferson Avenue, Cincinnati, Ohio 45220, for children
S. POWELL, J.
{¶ 1} Appellant, the mother of M.C. and G.T., 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.
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{¶ 2} Appellant is the mother of five children. The three youngest children were born
after Butler County Children Services began working with the family, and are not involved in
this appeal, as they were all born outside of, and have never resided in, Butler County.
{¶ 3} Appellant's family has a history with Butler County Department of Job and
Family Services that dates back to 2007 when M.C. and G.T. were removed from their
parents' home.1 Problems at the time of the 2007 complaint included G.T.'s diagnosis of
failure to thrive, substance abuse by the parents, G.T.'s hospitalization for an unexplained
injury that was later determined to be caused by abuse, along with additional concerns
regarding the family as expressed by hospital staff.
{¶ 4} Various services were provided for the family over the next several years, and
at times the parents made some measure of progress, but yet failed to ever complete case
plan requirements. Ultimately, the agency's request for permanent custody was denied in
March 2012, and the court ordered that the children be reunified with their parents. M.C. and
G.T. were placed back in their parents' home in March 2012. At this time, the parents had
two younger sons in the home who were born after the case began and after the family
moved from Butler County to Warren County.
{¶ 5} On July 20, 2012, four months after the children had been returned to their
parents, the agency filed new complaints alleging that M.C. and G.T., who were now eight
and five years old respectively, were dependent children. The complaint indicated that after
the children were placed back in the custody of their parents, the father was arrested for
domestic violence involving the mother. A police report indicated the father was intoxicated
and threatened to kill the mother.
1 M.C.'s biological father is unknown. G.T.'s father was found in loco parentis of M.C. during the case, and for
ease of discussion, will be referred to as "father" in this opinion.
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{¶ 6} The complaint also indicated that G.T.'s ongoing behavioral problems had
escalated to the point that the child was attempting to harm himself by wrapping a cord
around his neck, holding a knife to his neck, and running in front of cars. When police were
called to the home, G.T. threw various items at police officers when they arrived. The
complaint indicated that G.T. had stated he wanted to kill his brothers and that he caused
bruises to the two-year-old and slammed the one-year-old to the floor, hitting his younger
sibling's head. According to the complaint, G.T. was hospitalized on two occasions because
of these behavioral issues.
{¶ 7} In addition, the complaint stated that the agency visited the home several times
in July 2012, and the home was dirty, cluttered and unsafe. The home was cluttered with
garbage and clothing on the floor, the beds did not have sheets or blankets on them,
exposed food was found inside and outside the home, boards with nails were lying in the
backyard, and dangerous items, such as knives and scissors were within reach of the
children.
{¶ 8} The complaint also indicated that agency workers smelled an odor or marijuana
at the house and that the parents refused to complete a drug screen. In addition, the
complaint stated that the agency had received reports that the mother was stressed in
dealing with the children. The agency requested permanent custody of M.C. and G.T. in the
complaint.
{¶ 9} An adjudication hearing was held on July 31, 2012. The parents failed to
appear and the children were adjudicated dependent. The parents failed to pursue visitation
with the children until they requested visitation in November 2012. However, because the
children had not had contact with their parents for several months, and a dispositional
hearing was scheduled within a few weeks, a therapist for the children recommended visits
not resume until a custody decision was made. The magistrate considered the issue, and
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ordered that the parents' visitation be scheduled with the first two visits including only M.C.
and G.T, along with their parents. After those two visits, the younger children were allowed to
attend. On January 31, 2013, the parents began attending therapeutic visitations with the
children at the Family Connections visitation center.
{¶ 10} After a dispositional hearing, the magistrate denied the agency's request for
permanent custody. The magistrate determined that it was not in the children's best interest
to grant permanent custody, ordered the mother to apply for therapeutic services in Warren
County, and ordered that the children be placed back in the home after a new residence and
therapeutic services were in place.
{¶ 11} The trial court considered the agency's objections to the magistrate's decision
and found that one month after the magistrate's decision, the family moved to Hamilton
County. In addition, the court found that the parents have a lengthy history of unstable
residences, residing in at least three separate counties since the filing of the complaint in July
2012. The court also found that the children had very little contact with their parents in the
last twelve months.
{¶ 12} The court found the agency's objection to the magistrate's decision well-taken
and remanded the case to the magistrate for further proceedings regarding disposition on the
request for permanent custody, ordering that the agency's request for permanent custody be
continued in progress. The trial court ordered the magistrate to conduct in camera interviews
with M.C. and G.T., and also ordered the agency to conduct a home study on the parents'
current residence. The trial court instructed that on remand, the magistrate should determine
if it is in the children's best interest to file a reunification plan or whether the agency's request
for permanent custody should be granted. The court further ordered that the parties were to
appear in court on November 22, 2013 for a hearing in front of the magistrate.
{¶ 13} On October 8, 2013, the magistrate issued an order granting an emergency ex
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parte order that visitation was to only include M.C. and G.T., and not the three younger
children, unless their attendance was recommended by the family therapist. This order was
requested on the basis that visitation center staff reported that visits were chaotic because of
the behavioral needs of the three younger children and it was difficult for the parents to focus
on M.C. and G.T. during visits.
{¶ 14} The court fully considered the issue at a shelter care hearing on November 1,
2013. The court reviewed a letter written by the family therapist regarding the chaotic nature
of the visits and the need for the children to engage solely with their parents at visitation in
order to rebuild a healthy attachment and parent-child bond. In response, appellant testified
regarding her position on the motion. Appellant indicated that since the order restricting
visitation was put in place, she had to cancel two visitations because she does not trust
people to babysit the three younger children. She further admitted that she was presented
with several alternatives which would allow the visitations to occur, including having agency
workers watch the younger children, and for her and the father to alternate time during visits
or alternate visitation weeks. However, appellant indicated she was unwilling to participate in
any of the alternatives offered. She indicated that if she was not allowed to bring the younger
children, she probably would not attend future visitations. She further indicated she was
aware the visitation therapist was recommending therapy for the father and herself, but she
did not care what the therapist was ordering.
{¶ 15} The magistrate issued an order continuing the restriction on visitation and
finding that the therapist's recommendations were akin to medical advice as they related to
the well-being of the children. The court further found that the parents rejected reasonable
offers from the agency which would have alleviated their problems with visitation. The
parents failed to attend any further visitations.
{¶ 16} As instructed by the trial court, the magistrate held a hearing on November 22,
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2013, regarding the permanent custody request. Both parents failed to attend the hearing.
The parties presented arguments on their positions regarding the request for permanent
custody. The court indicated that in camera interviews were scheduled with both children in
December, and a decision would be issued after the interviews were completed.
{¶ 17} The magistrate subsequently held in camera interviews with the children. On
February 10, 2014, the magistrate issued a decision, finding permanent custody was in the
best interest of the children. Appellant's objections to the decision were overruled by the trial
court on April 24, 2014.
{¶ 18} Appellant now appeals the trial court's decision to grant permanent custody of
M.C. and G.T. to the agency and raises the following single assignment of error for our
review:
{¶ 19} THE COURT'S ADJUDICATION OF DEPENDENCY AND DISPOSITIONAL
ORDER OF PERMANENT CUSTODY[,] DENYING LEGAL CUSTODY TO THE MOTHER
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WAS BASED ON
IMPROPERLY CONSIDERED HEARSAY EVIDENCE WAS BASED ON INSUFFICIENT
EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDINGS AND THE EVIDENCE FAILED
TO MEET THE REQUISITE CLEAR AND CONVINCING STANDARD. [sic.]
{¶ 20} Before a natural parent's constitutionally protected liberty interest in the care
and custody of her children 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
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conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th
Dist.).
{¶ 21} 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;
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.
{¶ 22} The juvenile court found by clear and convincing evidence, and appellant does
not dispute, that M.C. and G.T. 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 request
for permanent custody. 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.
{¶ 23} 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;
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(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 24} In the magistrate's initial decision denying permanent custody, the magistrate
found that the family had a lengthy history with children services that began in 2007. The
magistrate noted that the agency also filed complaints regarding the two younger siblings, but
the complaint was dismissed due to lack of jurisdiction because the family was living in
Warren County and the two youngest children had never resided in Butler County. The
magistrate also noted that the agency made a referral to Warren County Children Services,
but that agency investigated and closed their case as unsubstantiated. The magistrate
further reviewed the procedural history of the case, including the parents' failure to appear at
several court hearings.
{¶ 25} In the decision, the magistrate considered the statutory best interest factors and
found that M.C. has a strong bond with her mother. The magistrate found M.C. is very
attached to G.T., but that her relationship with her younger brother has been described as
"parentified." The magistrate also found that M.C. often talks about her younger half-siblings.
{¶ 26} The magistrate found that G.T., who was removed from the home at the age of
11 months, also has a bond with his parents, but the bond is not as strong as his sister's.
The magistrate echoed the concern that G.T. may be developing attachment issues, as
discussed by G.T.'s attorney. The magistrate reviewed the children's placements, finding
that they had been in five foster homes during the course of both cases. In the current case,
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they were placed in a therapeutic foster home. Their behaviors have improved in this home
and they enjoy activities with the extended foster family. The foster mother indicated at the
hearing that they are not interested in adoption, but she would like to remain involved in the
children's lives.
{¶ 27} The magistrate also found that there was no request for an in camera interview
with the children, but the court considered the recommendations of the children's guardian ad
litem and the attorney for the children. The guardian ad litem advocated that permanent
custody be granted to the agency. The attorney for the children argued that the motion for
permanent custody should be denied because the agency had not done enough to reunify
the family.
{¶ 28} With regard to the custodial history of the children, the magistrate determined
that M.C. and G.T. were placed in the agency's temporary custody in December 2007 to
March 2012, with an extended visit occurring from December 2008 to May 2009. They were
placed in the temporary custody of the parents in March 2012, and were back in the
temporary custody of the agency in July 2012.
{¶ 29} The magistrate determined that the children are in need of a legally secure
placement. The magistrate found that G.T. has exhibited severe behavioral issues, both at
home and in foster placements. He is doing well in his current placement in a therapeutic
foster home, but because the foster parents are not interested in adopting, he will face more
uncertainty. M.C. has continued to question whether it was her fault that she was removed
from her parents' home.
{¶ 30} The magistrate reviewed the agency's involvement and determined that the
agency's lack of action after the court denied the agency's motion for permanent custody in
February 2012 was particularly egregious. The agency did not implement a reunification
plan, but instead advised the foster mother to schedule three weekend visits, and then on the
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fourth weekend, the children were returned to their parents permanently. For the first four
weeks, caseworkers did not visit the family to determine how the reunification was
progressing and the agency did not offer to help locate services for the family in Warren
County. The magistrate also considered the testimony of a Warren County therapist from the
Solutions agency who was contacted by the mother regarding possible therapy for G.T. and
the family.
{¶ 31} In addition to the problems due to the agency, the magistrate found that the
parents' actions were also detrimental to the children's well-being, and that the parents
contributed to the problems in the case. The magistrate discussed the parents' failure to
appear at crucial hearings, and failure to bring matters to the court's attention that would
have better helped the court to fashion orders for the reunification of the family. The
magistrate also found that the parents failed to demonstrate effort to attend visits, finding that
the mother did not make a real effort to begin visitation until November 2012. The magistrate
found the parents exacerbated the situation due to their extreme animosity toward the
agency.
{¶ 32} Based on a review of the problems the magistrate found on the part of both the
agency and the parents, the magistrate determined that it could not find that permanent
custody was the only way a legally secure placement could be achieved. The magistrate
found that the children could be maintained in the home if a service such as Solutions were
in the home helping with the transition and meeting the children's therapeutic needs.
However, the magistrate noted that the parents reported that they were in the process of
obtaining a new home in Warren County.
{¶ 33} As mentioned above, after the remand by the trial court and further
proceedings, the magistrate issued a decision granting the agency's request for permanent
custody. In this decision, the magistrate again reviewed the children's custodial history,
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finding that the children have been in the agency's custody for yet another year since the
time of the previous decision. The magistrate found that since the time of the previous
decision, the parents again uprooted the family and moved to Hamilton County and were
evicted, without reporting the move to the agency. The agency later received a report that
the family was residing at the Value Inn in Lebanon, Warren County, but the inn staff
indicated that there was no one with the family name registered. The agency located the
mother at the maternal grandmother's home in Hamilton several times, but the mother
insisted they were not living there and that they were staying at the hotel.
{¶ 34} The magistrate further found that despite its efforts, the agency was unable to
complete the home study because the mother continued to avoid initiating the process
despite being urged several times to do so by the home study specialist. The parents then
moved to a residence in South Lebanon, asking the agency to help them obtain furniture.
{¶ 35} The magistrate reviewed the problems with visitations, which occurred in a
supervised setting due to the parents' unstable living environment. The magistrate indicated
that an order was issued that the three younger children not attend the therapeutic visitations
unless recommended by the family therapist. The therapist reported that after the order, the
next few visits were much more beneficial for M.C. and G.T. and the family appeared to be
moving toward being more productive in building positive experiences and rebuilding healthy
and secure parent-child relationships. However, soon after, the parents stopped attending
visits.
{¶ 36} The magistrate found that throughout the pendency of the two cases, the case
plan has always delineated that the parents must provide a safe and stable residence for the
children. In addition the parents were to demonstrate an ability to meet the children's
therapeutic needs, particularly G.T.'s behavioral needs. The magistrate found that since the
time of the previous decision, the parents failed to meet these two goals. The magistrate
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indicated that concern was expressed in the previous decision regarding the parents'
residence and possible relocation, and since that time, the parents failed to maintain a
residence.
{¶ 37} The magistrate further found that the parents failed to demonstrate an
understanding of M.C. and G.T.'s emotional issues based on their lack of follow-through with
the family therapist's recommendations. Based on a review of the evidence, the magistrate
determined that there was clear and convincing evidence that the parents failed continuously
and repeatedly to remedy the conditions causing the children to be placed outside the home.
{¶ 38} The magistrate indicated that it previously faulted the agency for placing the
children back in the home in March 2013 with no further services or supervision. The
magistrate found, however, that after the trial court remanded the case, the agency
attempted to provide therapeutic services to the family, but the parents chose to reject those
services. The magistrate also found that the parents were ordered to complete the home
study, but were unable to maintain a stable residence for any length of time.
{¶ 39} The magistrate indicated that the previous decision essentially gave the parents
another chance to demonstrate that they could provide a stable environment for the children.
{¶ 40} The magistrate also considered the guardian ad litem's recommendation that
the children be placed in the permanent custody of the agency and considered the in camera
interviews it conducted with the children.
{¶ 41} The magistrate discussed the emotional and psychological needs of the
children based on evidence presented previously and determined that the children need
stability. The magistrate concluded that, after reviewing the previous evidence along with the
events that occurred after the magistrate's previous decision, it was unwilling to gamble on
the children's future any longer by continuing a "waiting game" to see if the parents could
maintain a stable residence and meet the children's therapeutic needs. The magistrate
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found that the agency had presented clear and convincing evidence that the parents are not
in the position to provide the needed stability now, or in the near future. The magistrate
concluded that the children cannot be placed with the parents within a reasonable time and
permanent custody was in the children's best interest. As mentioned above, after
considering the mother's objections, the trial court adopted the magistrate's decision.
{¶ 42} On appeal, appellant first argues that the facts did not support a dependency
finding, do not support continued removal from the home, do not reflect reasonable efforts by
the agency and do not support a finding by clear and convincing evidence that permanent
custody is justified. Appellant's brief reviews the statutory standards for granting permanent
custody and recites facts she contends support her position. She argues the children are
bonded to the parents and despite investigations by Warren County Children Services,
custody of the three younger children remains with their parents. She argues a legally
secure placement can be achieved without a grant of permanent custody.
{¶ 43} As support, appellant argues there were no hazardous conditions in the home
in July 2012 to support the children's removal, and the "shakiness of the grounds in this case
is apparent from the bizarre procedural history." She argues there were never sufficient
grounds for the removal of the children, the agency did not attempt a true reunification and
the mother was unable to visit in a reasonable manner without bringing her other children
based only on a hearsay report.
{¶ 44} We find no merit to appellant's arguments. Appellant argues that the children
should not have been adjudicated dependent because the parents were not present at the
hearing and the court failed to grant a continuance. However, the parents were informed of
the date of the hearing, yet failed to attend. The court waited 25 minutes, but the parents still
did not appear. The state and guardian ad litem objected to a continuance, as the date had
been set and the parents notified. The court denied the continuance finding that the parents
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were aware of the date, and had time to arrange for transportation, but failed to do so. The
court then proceeded with the adjudication based on the allegations in the complaint. We
find no error in the court’s decision to deny the continuance and proceed with the
adjudication.
{¶ 45} To the extent that appellant is arguing that the agency never should have
been involved, this issue is moot, as the agency was, in fact, involved and the children were
found dependent after the parents failed to appear at the adjudication.
{¶ 46} Once the children were removed from the home and adjudicated dependent,
the parents did very little to establish that the children could be returned within a reasonable
time. They initially failed to set up visits with the children which caused further problems in
the parent-child relationship. Even after the magistrate denied permanent custody and the
court was considering the objections, the parents failed to visit the children because of the
restriction that the younger children not attend visits. Appellant refused to consider the
possible accommodations presented to her that would allow her and the father to visit the
children without their younger siblings. Appellant demonstrated an unwillingness to do
whatever was necessary to reunite with her children.
{¶ 47} To the extent that appellant argues the visitation restriction was ordered based
on hearsay in the therapist's report, we note that the decision regarding the visitation
2
restriction was made at a shelter care hearing, and not at the permanent custody hearing.
Permanent custody hearings are the exception to the general rule that hearsay can be
considered in juvenile custody dispositions. See Juv.R. 34(B)(2) and (I). Moreover, it was
2. We note that appellant's hearsay argument in her brief largely relates to the court's decision to restrict
visitation, and not the trial court's decision to admit this report at the permanent custody hearing. The focus of
the decision was on appellant's failure to visit and to meet the emotional needs of the children, not the
correctness of this report. Regardless, we note that even without the admission of this exhibit, the evidence
supports a finding that permanent custody is in the children's best interest.
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appellant's response to this decision that was the basis for the court's determinations in this
case. Appellant disagreed with the decision and wanted the younger children to attend
visitations, but yet once this decision was made, appellant chose not to visit or to accept any
accommodations that would allow her to visit.
{¶ 48} In addition, as discussed above, the court's decision was based on a finding
that the children could not be placed with their parents within a reasonable time. Initially, the
magistrate found that because the agency had failed to provide support for the family during
the reunification in March 2012, it was possible that the parents could provide a home within
a reasonable amount of time. As the magistrate discussed, the decision essentially gave the
parents a second chance.
{¶ 49} However, even given more time, appellant failed to establish that the children
could be returned to her home and instead, the children's need for stability increased as
further time in foster care passed. Appellant failed to visit, evidencing an indifference to the
emotional needs of the children where the relationship with their parents was concerned. In
addition, the family moved several times, and as mentioned by the trial court failed to
establish a safe home environment for the children. Despite the home study investigator's
multiple contacts with appellant, no home study was ever completed. Appellant's inaction in
the case led to the trial court's determination that appellant was unable to remedy the
conditions that led to the children's removal.
{¶ 50} Appellant also argues that the agency failed to provide reasonable efforts to
reunite the family. However, the agency provided therapeutic visitation for the parents to
work on their bond with the children. When problems arose and the restriction regarding the
younger children was imposed, appellant simply failed to visit because she disagreed with
the decision, evidencing a lack of commitment to do whatever reunification required. On
remand, the agency attempted to perform a home study, but again, due to appellant's
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inaction and the family's frequent moves and the agency's inability to locate the family, this
requirement was not completed.
{¶ 51} After carefully reviewing all of the evidence, we find the trial court's decision to
grant permanent custody is supported by the evidence. The parents were essentially given a
second chance at reunification, but failed to avail themselves of the opportunities presented
which would allow them to establish that they could provide a safe and stable home for the
children. Despite appellant's arguments to the contrary, the court's finding that appellant was
unable to provide a legally secure placement for M.C. and G.T. is supported by the evidence.
Appellant's sole assignment of error is overruled.
{¶ 52} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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