[Cite as State v. Hoskins, 2018-Ohio-3280.]
IN RE: G/D CHILDREN. : APPEAL NOS. C-180170
C-180179
: TRIAL NO. F06-2742Z
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 17, 2018
Christopher P. Kapsal, for Appellant Mother,
Laursen & Lucas and Erik W. Laursen, for Appellant Grandmother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Donald D. Clancy, III,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Roberta J. Barbanel, Guardin ad Litem, for G/D Children.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} In these consolidated appeals, mother and maternal grandmother each
appeal from the judgment of the Hamilton County Juvenile Court adopting the
magistrate’s decision and granting permanent custody of three of mother’s minor
children, D.G., H.D., and A.D. (“the children”), to the Hamilton County Department
of Job and Family Services (“HCJFS”). We affirm.
Abuse and Endangerment of the Children
{¶2} D.G., H.D., and A.D. were born in 2001, 2008, and 2009,
respectively. In March 2013, HCJFS received an allegation of abuse and
endangerment of the children due to domestic disturbances at mother’s home.
Mother and her husband were intoxicated and were fighting while the children were
present. Cincinnati police reported frequent contacts with the family. HCJFS
intervened with a family safety plan, placed the children with grandmother, and
recommended intensive, outpatient substance-abuse treatment for mother. The
children were adjudged abused and dependent, and were placed in temporary
custody of the HCJFS on April 11, 2014.
{¶3} HCJFS devoted substantial resources to remediating the problems
facing the children and their ability to return to the care of mother. But mother
failed to complete the court-ordered case-plan services, including therapy and
substance-abuse treatment.
{¶4} In early June 2016, HCJFS learned that some of the other eight
grandchildren in grandmother’s care had received significant physical injuries at the
hands of her adult son. Despite evidence of physical injuries inflicted on the other
children, grandmother and her son denied harming the children. The children
reported being beaten by the son, and stated that they were afraid to return to
grandmother’s house. HCJFS also learned of serious allegations of sexual conduct
2
OHIO FIRST DISTRICT COURT OF APPEALS
inflicted upon some of the other 11 minor children in grandmother’s care. HCJFS
also learned that D.G. had raped one of his eight-year-old cousins while in
grandmother’s care. In response, HCJFS immediately removed D.G., H.D., and A.D.
from grandmother’s home.
{¶5} A diagnostic assessment of mother prepared in July 2016 by the
Family Access to Integrated Recovery agency found that despite her earlier
participation in treatment, mother remained in need of additional substance-
abuse treatment. It recommended that mother engage in an outpatient
substance-abuse treatment program and that she remain involved in a sobriety-
maintenance program.
HCJFS’s Motion for Permanent Custody
{¶6} In light of grandmother’s inability to protect the children from harm
and the lack of progress that mother had made on her case plan, on July 11, 2016,
HCJFS filed a motion for permanent custody of the children and permanent
termination of mother’s parental rights. Grandmother filed her own motion for legal
custody of D.G., H.D., and A.D.
{¶7} An evidentiary hearing was held on the two motions in April 2017.
The magistrate received testimony from the children’s HCJFS case worker, a
specialist from the Family Nurturing Center who had observed mother’s interactions
with the children during facilitated visitation, the most restrictive visitation level at
the center, a character witness for mother, and from mother herself.
{¶8} The case worker testified regarding the serious nature of the abuse at
grandmother’s home, that grandmother refused to accept any responsibility for the
abuse, and that grandmother was not able to protect the children. The case worker
noted that D.G., the oldest of the children, expressed his wish not to return to his
grandmother’s care. The case worker testified that mother, as she acknowledged had
not completed the 2016 substance-abuse treatment program because mother
3
OHIO FIRST DISTRICT COURT OF APPEALS
believed that it was not necessary. Mother had also failed to appear for toxicology
screenings in 2016 and April 2017. Despite mother’s unsubstantiated contention
that she was unable to make the screenings because of work commitments, the case
worker testified that mother had failed to respond at all to his communications to
appear for testing.
{¶9} The case worker also testified to HCJFS’s inability to inspect the safety
and suitability of mother’s various dwellings as proposed homes for the children
were she to regain custody. Mother refused to identify for the case worker which unit
she sublet in an apartment complex. When mother was forced to leave the
apartment because the tenant was evicted, she moved to a hotel where she resided at
the time of the hearing.
{¶10} Mother testified that she no longer drank alcohol, that she did not feel
it necessary to complete substance-abuse treatment as she had already had
treatment in the past, and that the treatment interfered with her work schedule. She
maintained that she had not been in contact with her husband for over two years,
although the marriage had not been terminated by divorce, and that she had
interacted well with the children during supervised visits. She also claimed to have
leased an apartment for the family, but acknowledged that it was not yet ready for
occupancy and was unable to specify when it would be ready.
{¶11} Grandmother did not appear at the hearing. Her counsel was present
and argued that as grandmother had been found to be an appropriate custodian in
the past and as HCJFS had returned one of her older grandchildren to her care, she
was a proper custodian for the children. The children’s guardian ad litem also
participated in the hearings, and agreed with HCJFS that it was in the best interests
of the children for them to be placed in the permanent custody of HCJFS.
{¶12} On November 28, 2016, the magistrate issued a detailed written
decision granting HCJFS’s motion for permanent custody and denying
4
OHIO FIRST DISTRICT COURT OF APPEALS
grandmother’s motion for legal custody of the children. It was undisputed that
neither of the two fathers played any role in the lives of the children. The magistrate
then found that clear and convincing evidence established that the children could not
and should not be placed with mother within a reasonable time, and that their return
to mother’s home would be contrary to be their best interests and welfare. The
magistrate noted that mother had failed to remedy the conditions that had prompted
the children’s removal from her home, and that her alcohol dependence made her
unable to provide an adequate home for the children.
{¶13} The magistrate also found that the children had been in the temporary
custody of HCJFS for 12 or more months of a consecutive 22-month period. When
HCJFS moved for permanent custody, they had been in temporary custody over 27
consecutive months. In light of these findings, the magistrate determined that it was
in the best interests of the children to grant HCJFS’s motion for permanent custody.
The magistrate also denied grandmother’s motion for legal custody, noting her
inability to protect the children from harm.
{¶14} Mother filed a one-paragraph objection to the magistrate’s decision.
Grandmother also filed an objection alleging that, in reaching his decision, the
magistrate had improperly weighed the facts. At the objections hearing, the juvenile
court entertained the arguments of counsel but heard no new evidence. After
reviewing the record, including a transcript of the proceedings before the magistrate,
the juvenile court overruled the objections, adopted the magistrate’s decision, and
entered judgment granting HCJFS’s motion for permanent custody and denying
grandmother’s motion for legal custody. Both mother and grandmother appealed.
Mother’s Appeal of Permanent Custody
{¶15} In her sole assignment of error, mother challenges the weight and the
sufficiency of the evidence adduced to support the juvenile court’s decision to award
permanent custody to HCJFS.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Parents who are suitable persons have a paramount right to the
custody of their minor children. In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d
1047 (1977); see In re Bailey, 1st Dist. Hamilton No. C-040014, 2005-Ohio-3039, ¶
13. But the fundamental interest of a parent “is not absolute.” In a custody
determination, “the best interest of the child controls.” In re D.A., 113 Ohio St.3d 88,
2007-Ohio-1105, 862 N.E.2d 829, ¶ 11.
{¶17} R.C. 2151.414 governs the procedures that apply when, as here, a
children-services agency has moved for permanent custody under R.C. 2151.413. The
version of R.C. 2151.414 in effect when HCJFS moved for permanent custody
provided that before a juvenile court may terminate parental rights and place
children in the permanent custody of a children-services agency, it must determine
by clear and convincing evidence (1) that one or more of the conditions listed in R.C.
2151.414(B)(1) apply, and (2) that it is in the best interest of the children to grant
permanent custody to the agency by considering the factors in R.C. 2151.414(D) and
(E) with respect to each child. See former R.C. 2151.414; see also In re A.B., 1st Dist.
Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 13; In re C.L., 1st Dist.
Hamilton No. C-170169, 2017-Ohio-7184, ¶ 18.
{¶18} Here, we cannot say that the juvenile court clearly lost its way and
created a manifest miscarriage of justice when evaluating the evidence. See In re
A.B. at ¶ 16. Mother had admitted that she failed to complete the substance-abuse
treatment specified in the 2016 diagnostic assessment, failed to submit to toxicology
screenings, and failed to complete other parts of the case plan. Despite the efforts of
a nurturing coach, mother had not been able to advance beyond the most restrictive
level of supervised visitation with the children. And this record does not reflect that
mother was able to provide stable housing for the children.
{¶19} While mother had taken some steps toward remedying the problems
that had led to removal of the children, even substantial completion of a case plan
6
OHIO FIRST DISTRICT COURT OF APPEALS
does not, in and of itself, require that children be reunified with a parent who has
failed to remedy the conditions which led to removal in the first place. See In re I.K.,
1st Dist. Hamilton No. C-150667, 2016-Ohio-659, ¶ 14.
{¶20} After reviewing the record, we hold that the juvenile court’s
determinations are amply supported by the evidence. It is undisputed that the
condition set forth in R.C. 2151.414(B)(1)(d) was met as the children had been in the
temporary custody of HCJFS for 12 or more months of a consecutive 22-month
period. While the court was not required to make the further finding that the
children could not or should not be placed with either parent, it nonetheless did so.
Since the fathers had not participated in reunification services and the record
reflected mother’s failure to remedy the conditions that had prompted the children’s
removal, the court’s determination was amply supported by the record . See former
R.C. 2151.414(B); see also In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-
150310, 2015-Ohio-3247, at ¶ 30-31.
{¶21} We also conclude that the juvenile court did not lose its way in making
a best-interests determination under former R.C. 2151.414(D) and (E). The
magistrate and the juvenile court examined each factor as it related to the children.
The children had been in agency care for nearly three years. Mother had not
progressed beyond supervised visitation with them, had not remedied the chemical
dependency issues that prompted the children’s removal, and had not demonstrated
an ability to provide the children with long-term stability. The guardian ad litem
urged an award of permanent custody to HCJFS. Despite grandmother’s motion for
legal custody of the children, the finding that grandmother could not protect the
children from abuse supported the conclusion that there were no other relatives
suitable to care for the children. See former R.C. 2151.414(D)(2)(d).
{¶22} Based on this record, the juvenile court’s determination that it was in
the children’s best interest to terminate mother’s parental rights so as to facilitate a
7
OHIO FIRST DISTRICT COURT OF APPEALS
secure and stable placement was amply supported by clear and convincing evidence
and was not against the weight of the evidence. See In re A.B. at ¶ 28.
{¶23} Moreover, the record reflects substantial, credible evidence on the
elements of HCJFS’s motion for permanent custody. Therefore, the juvenile court
could have reasonably concluded that HCJFS had carried its burden and the award
of custody to HCJFS was supported by sufficient evidence. See id. at ¶ 14-15.
Mother’s assignment of error is overruled.
Grandmother’s Motion for Legal Custody
{¶24} In her single assignment of error, grandmother maintains that the
juvenile court erred in denying her motion for legal custody. The gravamen of her
argument on appeal is that once mother’s custody rights had been permanently
terminated, the court should have granted legal custody of the children to her.
{¶25} After a child is adjudicated abused, neglected, or dependent, the trial
court may award legal custody of the child to “any other person,” who, like
grandmother here, has filed a motion requesting legal custody of the child. See
former R.C. 2151.353(A); see also former R.C. 2151.414(D)(2)(d). When determining
to whom legal custody should be awarded, the juvenile court should base its
determination on the best interest of the child. The factors found in R.C. 2151.414
are a useful framework for the court’s best-interest determination. See In re A.C., 1st
Dist. Hamilton No. C-140273, 2015-Ohio-153, ¶ 5-6. We will not reverse the juvenile
court’s award of custody absent an abuse of its broad discretion. See id. at ¶ 6. An
abuse of discretion is more than an error of law or judgment; it is a decision that is
unreasonable, arbitrary, or unconscionable. See id.; see also In re D.M., 1st Dist.
Hamilton No. C-140648, 2015-Ohio-3853, ¶ 11.
{¶26} Here, grandmother argued that because she had played a significant
role in the children’s lives, and because HCJFS had returned one of 11 of her
grandchildren to her care, she was a suitable custodian for the children. But in their
8
OHIO FIRST DISTRICT COURT OF APPEALS
analysis of the best-interest factors, the magistrate and the juvenile court found that
grandmother’s home was not a viable placement option for the children.
Grandmother continued to deny the substantial medical and testimonial evidence
that physical and sexual abuse had taken place in her home. In earlier testimony
before the magistrate, she admitted that she had no safety plan in place to prevent
subsequent abuse if the children were to be returned to her care.
{¶27} In light of these facts, we cannot say that the juvenile court abused its
discretion in reaching its well-supported decision denying grandmother’s motion
seeking legal custody. See In re A.C. at ¶ 6. Grandmother’s assignment of error is
overruled.
{¶28} Therefore, the judgment of the juvenile court is affirmed.
Judgment affirmed.
MOCK, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
9