[Cite as In re N.P., 2015-Ohio-4912.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN RE: CASE NO. 9-15-22
N.P.,
ABUSED, NEGLECTED, OPINION
DEPENDENT CHILD.
[CRYSTAL R. - APPELLANT]
IN RE:
CASE NO. 9-15-23
C.R.,
ABUSED, NEGLECTED, OPINION
DEPENDENT CHILD.
[CRYSTAL R. - APPELLANT]
Appeals from Marion County Common Pleas Court
Juvenile Division
Trial Court No. 2012-AB-0040 & 2012-AB-0041
Judgments Affirmed
Date of Decision: November 30, 2015
APPEARANCES:
Kevin P. Collins for Appellant
Justin Kahle for Appellee
Case No. 9-15-22 and 9-15-23
WILLAMOWSKI, J.
{¶1} The appellant, Crystal R. (“Crystal”), brings these appeals from the
judgments of the Court of Common Pleas of Marion County, Family Division,
terminating her parental rights and granting permanent custody of the minor
children to the appellee Marion County Children Services Board (“MCCSB”).
Crystal claims that the trial court’s judgments are not supported by the evidence.
For the reasons set forth below, the judgments are affirmed.
{¶2} This case first started on March 26, 2012, when MCCSB filed a
complaint alleging that C.R. and N.P. were neglected and dependent children.
C.R. Doc. 1, N.P. Doc. 1. The complaints alleged that C.R. was born in February
of 2010 and N.P. was born in December of 2011 to Crystal and Carl P. (“Carl”).
Id. The complaints also alleged that the children were neglected as a result of
Crystal’s use of cocaine, marijuana, and heroin. Id. The children were not
removed from Crystal’s home at that time. C.R. Doc. 7, N.P. Doc. 7. However,
on April 19, 2012, the children were removed from the home after Crystal’s
mother, who was acting as the in-home safety plan monitor, had to leave the state.
C.R. Doc. 8, N.P. Doc. 8. The trial court granted emergency custody of the
children to MCCSB on April 20, 2012. C.R. Doc. 9, N.P. Doc. 9.
{¶3} An adjudication hearing was held in July. C.R. Doc. 28, N.P. Doc. 26.
The trial court entered judgment on August 3, 2012, finding the children to be
dependent and dismissing the neglect claim without prejudice. Id. The
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Case No. 9-15-22 and 9-15-23
dispositional hearing was held on September 20, 2012. C.R. Doc. 35, N.P. Doc.
32. On February 1, 2013, the trial court entered an agreed judgment entry
continuing the temporary custody of C.R. and N.P. with MCCSB. Id. The case
plan was incorporated into the disposition. C.R. Doc. 36, N.P. Doc. 33.
{¶4} On March 5, 2013, MCCSB filed a motion for an annual review of the
case and an extension of temporary custody. C.R. Doc. 37, N.P. Doc. 34. The
motion indicated that Crystal was complying with the case plan, was having
unsupervised visits in her home, and that reunification in the near future was
possible. Id. The trial court approved the annual review on April 30, 2013,
continuing MCCSB’s temporary custody of C.R. and N.P. C.R. Doc. 40, N.P.
Doc. 37.
{¶5} On September 13, 2013, MCCSB filed a new case plan with the trial
court indicating that Crystal was no longer compliant with the case plan. C.R.
Doc. 44, N.P. Doc. 40. The plan indicated that Crystal had failed a hair follicle
test, which indicated that she had used cocaine. Id. The plan also indicated that
Crystal was not following through with her counseling. Id. As a result, MCCSB
filed a motion for contempt indicating that Crystal was not following the court’s
order to comply with the case plan by 1) failing to follow the counseling
recommendations, 2) not visiting with the children since May of 2013, 3) failing to
cooperate with her caseworker, and 4) not cooperating with drug testing. C.R.
Doc. 45, N.P. Doc. 41.
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Case No. 9-15-22 and 9-15-23
{¶6} On February 13, 2014, MCCSB filed a motion for permanent custody
of C.R. and N.P. C.R. Doc. 57, N.P. Doc. 53. The motion indicated that the
children had been in the temporary custody of MCCSB for more than twelve
months of a consecutive 22 month period and that the children could not or should
not be placed with either parent within a reasonable amount of time. Id. The
motion also stated that Crystal had demonstrated a lack of commitment toward the
children by failing to visit with the children or meet with her caseworker from
May 2013 until December 2013. Id.
{¶7} On August 18, 2014, the Guardian Ad Litem, Nathan Witkin
(“Witkin”) filed his report. Doc. C.R. Doc. 130, N.P. Doc. 124. Witkin indicated
that he did not believe Crystal could parent the children because 1) she had
untreated drug abuse issues, 2) she was inconsistent and unstable, and 3) she
tended to try and avoid her problems. Id. Witkin indicated that Crystal’s drug use
appeared to indicate an inability to cope with daily stressors. Id. Witkin also
noted that Crystal lacked steady employment, lacked steady housing, failed to
follow through with her drug treatment plan, and missed many visits with the
children. Id. Another concern Witkin had was that Crystal, when confronted with
difficulties in her life, just tried to deny and avoid her problems by dropping out of
the case and visits for seven months. Id. Witkin concluded that although Crystal
“has the basic ability to raise the children, * * * she underestimates her own
problems and overvalues her inadequate efforts.” Id. at 7. Based upon all that he
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Case No. 9-15-22 and 9-15-23
had learned, Witkin recommended that permanent custody of the children be
granted to MCCSB. Id. at 11.
{¶8} Hearings on the motions for permanent custody were held on August
6, August 7, and September 23, 2014. C.R. Doc. 156., N.P. Doc. 145. At the start
of the first hearing, Carl advised the court that he wished to execute a permanent
surrender of his parental rights to the children. Id. After fully discussing the issue
with Carl, the trial court accepted the surrender and excused Carl from the
proceedings. Id. MCCSB then presented its case. On April 29, 2015, the trial
court entered judgments granting MCCSB’s motions for permanent custody. Id.
Crystal filed timely appeals from the judgments and on appeal raises the following
assignment of error.
The record contains insufficient evidence to prove clearly and
convincingly that granting permanent custody was in the best
interest of N.P. and [C.R.].
{¶9} The sole assignment of error claims that the trial court erred in
granting permanent custody of the children to MCCSB. The right to parent one's
own child is a basic and essential civil right. In re Murray, 52 Ohio St.3d 155, 556
N.E.2d 1169 (1990). “Parents have a ‘fundamental liberty interest’ in the care,
custody, and management of their children.” In re Leveck, 3d Dist. No. 5–02–52,
5–02–53, 5–02–54, 2003–Ohio–1269, ¶ 6. These rights may be terminated,
however, under appropriate circumstances and when all due process safeguards
have been followed. Id. When considering a motion to terminate parental rights,
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Case No. 9-15-22 and 9-15-23
the trial court must comply with the statutory requirements set forth in R.C.
2151.414. These requirements include, in pertinent part, as follows.
(B)(1) Except as provided in division (B)(2) of this section, the
court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to division (A) of
this section, by clear and convincing evidence, that it is in the
best interest of the child to grant permanent custody of the child
to the agency that filed the motion for permanent custody and
that any of the following apply:
***
(d) 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 * * *.
For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency
on the earlier of the date the child is adjudicated pursuant to
[R.C. 2151.28] or the date that is sixty days after the removal of
the child from home.
***
(C) In making the determination required by this section * * *, a
court shall not consider the effect the granting of permanent
custody to the agency would have upon any parent of the child.
A written report of the guardian ad litem of the child shall be
submitted to the court prior to or at the time of the hearing held
pursuant to division (A) of this section * * * but shall not be
submitted under oath.
R.C. 2151.414.
{¶10} The determination whether to grant a motion for permanent custody
requires a two-step approach. In re G.B., 10th Dist. Franklin No. 04AP–1024,
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Case No. 9-15-22 and 9-15-23
2005–Ohio–3141, ¶ 13. The first step is to determine whether any of the factors
set forth in R.C. 2151.414(B)(1) apply. Id. If one of those circumstances applies,
then the trial court must consider whether granting the motion is in the best
interest of the child by considering the factors set forth in R.C. 2151.414(D). Id.
{¶11} A review of the record in this case indicates that the children were
removed from their home on April 19, 2012. Sixty days from that date would be
June 18, 2012. The children were adjudicated to be dependent on August 3, 2012.
Thus, pursuant to statute, the date to be used for the purpose of determining a
twelve month period out of a consecutive twenty-two month period would be June
18, 2012, as it is the earlier date. The motion for permanent custody was filed on
February 13, 2014. This is almost twenty months in custody during a consecutive
twenty-two month period. Thus, the portion of the judgment entry finding that the
children were subject to the provisions of R.C. 2151.414(B)(1)(d) is supported by
the record. Crystal does not contest this finding.
{¶12} This then takes us to the second part of the analysis: the best
interests of the children factors set forth in R.C. 2151.414(D). These factors are 1)
the interaction and interrelationship of the child with parents, siblings, relatives,
foster parents, and anyone else who significantly affects the children; 2) the
wishes of the children; 3) the custodial history of the children; 4) the children’s
needs for permanency; and 5) any factors set forth in R.C. 2151.414(E)(7-11).
R.C. 2151.414(D). Although the trial court did not specifically address these
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Case No. 9-15-22 and 9-15-23
factors, there is evidence in the record to support the trial court’s conclusions
regarding the best interests of the children.
{¶13} The first factor is the relationship between the children and the other
people in their lives. Testimony was presented that shows that C.R. and N.P. call
their foster mother “Mommy” and call Crystal by her name. Sept. 23, 2014 Tr. at
7-8. The foster mother testified that the children were integrated into her family
and were loved by all of the family members. Aug. 6, 2014 Tr. at 143. The
children have bonded with the other children in the home as well as with the foster
parents. Id. at 143-44. While the children initially were upset when Crystal
stopped visiting, they adjusted Id. at 150. When the visits resumed, the children
did not appear to know who Crystal was. Id. In the foster mother’s opinion, the
young age of the children has allowed them to “move on” and become a part of
her family and she would like to make that relationship permanent. Id. at 144-
150. Crystal testified that she loved her children, but admitted that she could not
parent the children at that time. Aug. 7, 2014 Tr. at 8, 23. Crystal admitted that
the foster mother loved the children and that the children were doing well in that
placement. Id. at 39. The foster mother also indicated that if she were able to
adopt the children, she intended to keep contact with both Crystal and Carl so that
a relationship of some sort could be maintained with the children. Aug. 6, 2014
Tr. at 146-49.
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Case No. 9-15-22 and 9-15-23
{¶14} The second factor addresses the wishes of the children as expressed
through the guardian ad litem. The children in this case were four years old and
two years old at the time of the hearing. Witkin indicated that the best interest of
the children would be served by terminating the parental rights of Crystal.
{¶15} The third factor considers the custodial history of the children. The
children had been in the foster home since April 19, 2012. At the time of the
placement, C.R. was approximately 26 months of age. N.P. was four months of
age. At the time of the hearing, C.R. had spent over half of her life in the foster
home, while N.P. had spent the majority of her life in the foster home. The
children had no contact with Crystal as she ceased all contact with them for more
than seven months of that time.
{¶16} In the fourth factor, the trial court must consider the child’s need for
permanency. The majority of these children’s lives had been spent in foster care.
At the time of the hearing, Crystal was not capable of parenting and it was
unknown how long her recovery from use of illegal drugs would take. The
children were very young. C.R. was enrolled in preschool. Aug. 6, 2014 Tr. 138.
N.P. had spent every birthday and every Christmas with her foster family. Id. at
137-38. The children considered themselves to be a part of that family. Sept. 23,
2014 Tr. at 8.
{¶17} The fifth and final factor would be any of the statutory factors set
forth in R.C. 2151.414(E)(7-11). One of these factors addresses whether the
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Case No. 9-15-22 and 9-15-23
parents abuse drugs and refuse to either participate in treatment, fail to complete
treatment, or reject offered treatment. R.C. 2151.414(E)(9). Although the case
plan required Crystal to seek treatment for her drug use and she began treatment
several times, she never completed it. Aug. 6, 2014 Tr. 30-31, 64-68, 74-75, 100-
106. Crystal frequently failed her drug screens, indicating that treatment was still
necessary. Id. at 43-46, 92, 158. On the first day of the hearing, the trial court
asked Crystal to take a drug screen that day, but she declined. Id. at 114-15.
When asked, Crystal admitted that she was still using marijuana the week before
the hearings. Aug. 7, 2014 Tr. 27. Crystal also admitted that did not wish to
participate in group counseling and had been terminated from counseling for non-
compliance several times. Id. at 33.
{¶18} A second concern under the fifth factor would be Crystal’s apparent
abandonment of the children for several months. R.C. 2151.414(E)(10). From the
beginning of June 2013 until the end of December 2013, Crystal disappeared and
no one had any contact with her. Aug. 6, 2014 Tr. 64, 122. Crystal admitted that
she had just given up and did not make any attempt to see her children or contact
anyone, including her caseworker or the GAL, related to the case during that time.
Aug. 7, 2014 Tr. 15-20. The effect on the children during that time was that the
children “moved on”. Aug. 6, 2014 Tr. 150.
{¶19} A review of the record shows that there is competent and credible
evidence regarding each of the five factors set forth in R.C. 2151.414(D) to
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Case No. 9-15-22 and 9-15-23
support the trial court’s conclusion that it would clearly and convincingly be in the
best interest of the children to terminate the parental rights of Crystal. Although
Crystal may love her children, as is argued in her brief, this alone is not sufficient.
The effect of the trial court’s decision on the parent is not to be considered. R.C.
2151.414(C). The determination as to whether to terminate parental rights is left
to the discretion of the trial court. In re H.M., 3d. Dist. Logan Nos. 8-13-11, 8-13-
12, 8-13-13, 2014-Ohio-755, 9 N.E.3d 470. As long as there is competent credible
evidence to support the judgment by clear and convincing evidence, the appellate
court shall affirm the judgment of the trial court. Id. at ¶ 26. The evidence in this
case indicates that the trial court’s judgments are clearly and convincingly
supported by competent and credible evidence. Therefore, the assignment of error
is overruled.
{¶20} Having found no error prejudicial to appellant in the particulars
assigned and argued, the judgments of the Court of Common Pleas of Marion
County, Family Division, are affirmed.
Judgments Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/hlo
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In re N.P.
Combined Opinion