In re A.D.

[Cite as In re A.D., 2014-Ohio-5083.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

IN THE MATTER OF: :

A.D., et al. : CASE NO. CA2014-06-014

: OPINION
11/17/2014
:

:

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 13AND0772 and 13AND00773

Kristina M. Osterle, P.O. Box 314, Washington C.H., Ohio 43160, guardian ad litem

Jennifer J. Hitt, 63 North Main Street, Suite B, London, Ohio 43140, for appellant, M.S.

Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington
C.H., Ohio 43160, for appellee, Fayette County Dept. of Job & Family Services

RINGLAND, P.J.

{¶ 1} Appellant, the mother of A.D. and G.D. (Mother), appeals a decision of the

Fayette County Court of Common Pleas, Juvenile Division, granting permanent custody of

the two children to Fayette County Children Services (Agency). For the reasons stated

below, we affirm the decision of the juvenile court.

{¶ 2} Since August 2009, Mother has been serving a term of community control in
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connection with her felony conviction for receiving stolen property. During that time, Mother

has battled drug addiction, violated her probation, and served jail time. In 2011, the Agency

received temporary custody of A.D. and G.D. for 11 months. At the close of the Agency's

case, A.D. and G.D. were placed in the custody of their Father, who resides in Florida. While

Father had custody of the children, Mother attended and completed an inpatient drug

treatment program. In October 2013, Father relinquished custody of the children to Mother.

{¶ 3} Mother had custody of the children for approximately a month when she was

arrested on November 5, 2013 for failing to report to her probation officer. Mother tested

positive for marijuana, heroin, and cocaine and was incarcerated. On November 6, 2013, the

Agency filed a motion for emergency temporary custody of A.D. and G.D., which the trial

court granted that same day. The Agency also filed a complaint alleging that A.D. and G.D.

were neglected and dependent children and sought permanent custody of the children.

Thereafter, the juvenile court found that A.D. and G.D. are dependent children and it is in the

children's best interest to remain in the temporary custody of the Agency pending disposition

of the case.

{¶ 4} In December 2013, Mother's community control was revoked and she was

sentenced to a six-month term of imprisonment. During this time, Mother's husband

(Stepfather) was also incarcerated on drug-related charges. On December 12, 2013, the

Agency filed a case plan to reunify Mother with A.D. and G.D. The case plan required

Mother to remain drug free and complete drug and mental health treatment programs, attend

parenting classes, and provide for the children's basic needs.

{¶ 5} On April 17, 2014, the juvenile court held a hearing regarding the Agency's

request for permanent custody of A.D. and G.D. Father permanently surrendered his

parental rights to the children. At the time of the hearing, Mother remained incarcerated but

was scheduled to be released from prison in one week.

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{¶ 6} Jack Anders, the Chief Probation Officer for Fayette County Adult Probation

Department, testified that Mother was placed on community control in 2009. Anders

explained that Mother struggled with an opiate addiction and, through the assistance of the

Probation Department, participated in several outpatient and inpatient drug treatment

programs. Mother only completed one of the inpatient treatment programs. During Mother's

probation, she was jailed on numerous occasions for positive drug screens. In June 2011,

Mother was arrested for driving without a license when police found her asleep in her car at a

stop sign. Mother admitted she had been using narcotics and police found drug

paraphernalia in her home. Later, in September 2011, Mother received a probation violation

for failing to report to her probation officer and failing to take a drug test. As a result of this

violation, Mother's probation was extended for another five years. After this violation, Mother

did not receive another probation violation but was placed in jail several times by her

probation officer due to her drug issues.

{¶ 7} Anders testified that in 2013, Mother attended and completed an inpatient drug

treatment program. Mother remained sober until the fall of 2013 when Anders found Mother

with drug paraphernalia. In November 2013, Mother was arrested for failing to report to her

probation officer and failing to take a drug test. Eventually, Mother's probation was revoked

which led to her six-month jail sentence.

{¶ 8} Margo Robinson, the Agency case worker assigned to the family, also testified

regarding Mother's struggles with drug addiction. Robinson explained that Mother does not

have a driver's license, has not been employed since 2011, is married to Stepfather who also

struggles with substance abuse, lives off Stepfather's disability check, and had not arranged

for suitable housing when she was released from jail. Additionally, the Agency has concerns

with Mother's mental health and there are allegations of violence between Mother and

Stepfather.

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{¶ 9} Robinson explained that the Agency received temporary custody of the children

in 2011 because there were concerns over Mother's drug use. Father initially received

custody of the children but agreed to relinquish custody to Mother after a year.

Subsequently, Mother relapsed, her probation was revoked, and the Agency again received

temporary custody of the children. Robinson testified that A.D. has used drugs, G.D. has cut

herself, and both children are very angry with Mother and do not want to live with her

anymore. Father has agreed to terminate his parental rights. The grandmother of the girls

stated she would not take custody of the children until Mother's parental rights were

terminated. The Agency also contacted a cousin who was deemed inappropriate for

placement.

{¶ 10} Lastly, Mother testified at the hearing that she was due to be released from jail

in one week. Upon release, Mother plans to live with her sponsor in Fayette County and the

children can live in the sponsor's home as well. Mother stated that while in jail she attended

substance abuse meetings five days a week and that she underwent a mental health

assessment and she was cleared. Once she is released, Mother plans to end her

relationship with Stepfather due to his history of drug abuse and to find employment.

{¶ 11} In an entry dated June 17, 2013, the juvenile court found by clear and

convincing evidence that it was in the best interest of A.D. and G.D. to grant permanent

custody to the Agency. The court also found that the Agency had made reasonable efforts

toward reunifying the family.

{¶ 12} Mother now appeals, asserting two assignments of error.

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING

THAT [THE AGENCY] MADE REASONABLE EFFORTS TO MAKE IT POSSIBLE FOR THE

MINOR CHILDREN TO RETURN HOME TO [MOTHER].

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{¶ 15} Mother argues that the juvenile court erred in granting permanent custody to

the Agency because the Agency had not made reasonable efforts to reunify the family.

Mother maintains that the Agency should have given her more time to comply with the case

plan because during the time the Agency had temporary custody of the children, she was

incarcerated.

{¶ 16} 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, 138 Ohio App.3d 510, 520 (12th

Dist.2000).

{¶ 17} Except for a few narrowly defined statutory exceptions, R.C. 2151.419 requires

a children services agency to make reasonable efforts to reunify a family prior to the

termination of parental rights. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 21. The

children services agency shall have the burden of proving that it made those reasonable

efforts. R.C. 2151.419(A)(1). While the court is not required to make a reasonable efforts

determination at a hearing on a permanent custody motion, this finding must have been

made at other stages of the child-custody proceeding. In re C.F. at ¶ 42. In this case, the

juvenile court made reasonable efforts findings both prior to the hearing on the permanent

custody motion and in its decision granting permanent custody.

{¶ 18} As this court has stated, "[i]n determining whether the agency made reasonable
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efforts to prevent the removal of the child from the home, the issue is not whether the agency

could have done more, but whether it did enough to satisfy the reasonableness standard

under the statute." In re K.L., 12th Dist. Clermont No. CA2012-08-062, 2013-Ohio-12, ¶ 18,

citing In re K. M., 12th Dist. Butler No. CA2004-02-052, 2004-Ohio-4152, ¶ 23. "Reasonable

efforts" does not mean all available efforts. Otherwise, there would always be an argument

that one more additional service, no matter how remote, may have made reunification

possible. In re K.L. at ¶ 18.

{¶ 19} Upon a review of the record, the Agency made reasonable efforts to reunify the

children with Mother or other family members. The Agency has been involved with the family

for several years and Mother has failed to remain drug free, provide for the children's basic

needs, or provide a safe home for the children. Mother has participated in numerous drug

treatment programs yet continues to relapse. Mother has failed to obtain employment and

does not have a driver's license. She is married to Stepfather who struggles with drug

addiction and was incarcerated at the time of the permanent custody hearing. Additionally,

the children do not wish to live with Mother anymore and while in the custody of Mother, the

children experimented with drugs and self-inflicted cutting. The Agency has also made

reasonable efforts to reunify the children with other family members. Father has surrendered

his parental rights to the children. The Agency contacted a cousin who was deemed

inappropriate for placement and the children's maternal grandmother did not want custody

until Mother's parental rights were terminated.

{¶ 20} While the current case plan was filed when Mother was incarcerated, the

evidence demonstrated that the Agency has been involved with Mother and the children for

years and the Agency has made reasonable efforts to reunify the family. Therefore, the

juvenile court did not err in finding throughout the case that the Agency made reasonable

efforts to reunite the children with their family.

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{¶ 21} Mother's first assignment of error is overruled.

{¶ 22} Assignment of Error No. 2:

{¶ 23} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

FOUND BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTEREST

OF THE MINOR CHILDREN TO GRANT PERMANENT CUSTODY TO [THE AGENCY]

WITHOUT EVALUATING THE LESS RESTRICTION [sic] OPTION OF PLANNED

PERMANENT LIVING ARRANGEMENTS FOR THE MINOR CHILDREN.

{¶ 24} Mother argues that the juvenile court erred in finding that it was in the best

interest of the children to grant permanent custody to the Agency. Specifically, Mother

argues the Agency did not review the children's need for a legally secure permanent

placement and whether that type of placement could have been achieved by a planned

permanent living arrangement.

{¶ 25} 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)-(d); In re E.B., 12th Dist. Warren Nos. CA2009-10-139

and CA2009-11-146, 2010-Ohio-1122, ¶ 22. Only one of those findings must be met for the

second prong of the permanent custody test to be satisfied. In re T.D., 12th Dist. Preble No.

CA2009-01-002, 2009-Ohio-4680, ¶ 15.

{¶ 26} The juvenile court found by clear and convincing evidence that the children
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cannot be placed with Mother or Father within a reasonable time and should not be placed

with either parent. Father had permanently surrendered his parental rights for both children.

The Court also found that the children could not be placed with Mother within a reasonable

time because at the time of the hearing, Mother was due to be released from prison in one

week; she had relapsed into drug use despite participating in numerous drug treatment

programs; she had not sought employment since the Agency's involvement; she is married to

Stepfather who was incarcerated and struggles with substance abuse; and she does not

have suitable housing and is unable to meet the children's basic needs.

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

permanent custody hearing, the court shall consider all relevant factors, including but not

limited to:

(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;

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

R.C. 2151.414(D)(1).

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

have had no interaction with Mother for six months due to Mother's incarceration. Father

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had custody of the children for a year but experienced considerable difficulty with the

children in the home and agreed to return custody to Mother in the fall of 2013. During the

case, Father permanently surrendered his rights to each child. With respect to R.C.

2151.414(D)(1)(b), the juvenile court found that both A.D. and G.D. are very angry with

Mother and have expressed a desire not to have any contact with Mother. At the time of the

hearing, the children were 16 years old and 14 years old.

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

Agency has had temporary custody of A.D. and G.D. twice in the past three years. The

Agency received temporary custody of the children in both instances due to Mother's drug

issues. With respect, to R.C. 2151.414(D)(1)(d), the juvenile court found that the children

are in need of legally secure placement which Mother is unable to provide.

{¶ 30} In regards to Mother's argument that the appropriate disposition would have

been a planned permanent living arrangement, we remind Mother that the juvenile court was

without authority to place the children in a planned permanent living arrangement, as the

Agency did not file a motion requesting such a disposition. In re A.B., 110 Ohio St.3d 230,

2006-Ohio-4359, ¶ 37. Moreover, the Agency had no obligation to request such a

disposition. In re C.T., 12th Dist. Butler No. CA2008-07-180, 2009-Ohio-1037, ¶ 34.

{¶ 31} Based on consideration of the statutory factors, the juvenile court determined by

clear and convincing evidence that it was in the best interest of A.D. and G.D. to grant

permanent custody to the Agency. After careful review, we find the juvenile court's decision is

supported by the evidence and it is in the best interest of the children to grant permanent

custody to the Agency. The evidence establishes that the children cannot be placed with

either parent within a reasonable time and should not be placed with either parent.

Additionally, the evidence supports that granting permanent custody to the Agency is in the

best interest of the children. Mother has struggled with drug addiction for years, had

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completed several drug treatment programs yet continues to relapse, is married to a drug

addict, and has failed to obtain employment. Both A.D. and G.D. expressed to the court that

they do not wish to live with Mother anymore, A.D. has substance abuse problems, and G.D.

has cut herself. Therefore, the juvenile court did not err in determining that it was in the best

interest of the children to grant permanent custody to the Agency.

{¶ 32} Mother's second assignment of error is overruled

{¶ 33} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

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