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In re K.L.

Court of Appeals of Ohio, Tenth District

August 13, 2013

In re: K.L. et al., (K.L., Appellant).
v.
In re: K.L. et al., (T.S., Appellant).

APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, C.P.C. No. 10JU-06-9005.

Giorgianni Law LLC, and Paul Giorgianni, for appellant K.L.

Yeura R. Venters, Public Defender, and Allen V. Adair, for appellant T.S.

Robert J. McClaren, for appellee Franklin County Children Services.

DECISION

CONNOR, J.

(¶ 1} Appellants, T.S. ("Mother") and K.L. ("Father"), appeal from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting appellee, Franklin County Children Services' ("FCCS") motion for permanent custody of K.L. and K.L.

I. FACTS AND PROCEDURAL HISTORY

(¶ 2} On March 19, 2010, Mother gave birth to twin sons K.L. and K.L. Blood work revealed that one of the twins was born with marijuana in his system and the other was positive for "Benzo, " which is the common name for a class of pain medication. Prior to the birth of the twins, Mother had entered into a voluntary case plan with FCCS. The stated grounds for the case plan were Mother's drug use, parental suitability, and mental health issues. Mother had been a party to a similar case plan with respect to each of her other three children, due to concerns with drug use, parental suitability, and mental health issues. A few months before the birth of K.L. and K.L., Father was convicted of a drug-related felony and confined to a state prison.

(¶ 3} Pursuant to a temporary custody order, FCCS took custody of the twins on March 23, 2013 and placed them under the care of foster parents, a married couple with children of their own. Christian St. Claire, a child protection specialist employed by the Buckeye Ranch, was the designated caseworker when K.L. and K.L were born. According to St. Claire's testimony, the plan requirements were as follows:

[Attorney McClaren:] Now regarding the case plan. Do you recall what was included in the case plan for the mother to complete?
[St. Claire:] Yes.
[Attorney McClaren:] And what were those items?
[St. Claire:] She needed to complete a drug and alcohol assessment and follow the recommendations from that; parenting classes; a psychological evaluation; stability which included housing and income. And with the psychological evaluation mom had mental health concerns so we wanted her to engage in treatment for those service - - for those issues as well.

(Jan. 23, 2013 Tr. 81-82.)

(¶ 4} St. Claire testified that, during the time she was on the case, Mother never completed a drug assessment, never completed a drug treatment program, never submitted to a mental health assessment, and never demonstrated sobriety. In March 2011, Mother spent two weeks in county jail on a drug-related charge.

(¶ 5} In May 2011, Abigail Cantrell, a case manager with the Parents and Family Services Network, inherited the case plan from St. Claire. Cantrell managed the case until FCCS moved for a permanent custody determination on July 20, 2011. Cantrell testified that Mother did not make progress on the case plan during the two-month period she worked with her. According to Cantrell, Mother tested positive for marijuana and she was not receiving treatment. In August 2011, Mother pleaded guilty to deception to obtain dangerous drugs, a third degree felony.

(¶ 6} Gay Lynn McKenzie, a child welfare caseworker, managed the case for FCCS. McKenzie testified that she took over the case, the case plan was as follows:

[Attorney McClaren:] Now when you've been the caseworker what - - what elements have been on the case plan?
[McKenzie:] Mom needs to complete the alcohol and drug assessment and treatment for - - the recommendations of that assessment. She needs to do random drug screens; parenting classes; a psychological evaluation; obtain and maintain stable housing and legal income.
[Attorney McClaren:] Have you sent mother letters regarding the case plan?
[McKenzie:] Yes.
[Attorney McClaren:] And what's the purpose in sending her a letter?
[McKenzie:] To remind her to keep it in the forefront of her mind of the things that need to be completed on her case plan - - for - - .
[Attorney McClaren:] And do you know - - I'm sorry. Go ahead.
[McKenzie:] - - for reunification to occur.

(Jan. 23, 2013 Tr. 140-41.)

(¶ 7} McKenzie testified that, during the period of time she worked the case, Mother completed a mental health assessment and a parenting class, but she never completed a drug treatment program and never demonstrated sobriety. McKenzie also had concerns about the stability of Mother's housing situation and she was unable to obtain proof of Mother's employment.

(¶ 8} On August 12, 2012, Mother took up residence in a five-bedroom home at 360 Governor's Square in Columbus. The home is owned by Mother's oldest child's paternal grandmother. Mother lives there with the grandmother, child, and the child's father.

(¶ 9} In Fall 2012, Mother was incarcerated for a short time due to a probation violation before she was transferred to Maryhaven for treatment. She currently receives outpatient counseling services two days per week from Southeast Mental Health Center. She has recently seen a psychiatrist who diagnosed post-traumatic stress disorder and anxiety. In spite of Mother's drug dependency and mental health issues, she has been consistent in exercising her visitation with the twins.

(¶ 10} On or about the Thanksgiving holiday in 2012, McKenzie was contacted by Toya Freeman who is the mother of another child by the twins' father. Freeman told McKenzie that she was interested in gaining custody of her child's half-brothers, K.L. and K.L.

(¶ 11} On January 25, 2013, the trial court conducted an evidentiary hearing on FCCS's motion for permanent custody. On March 1, 2013, the trial court ordered that K.L. and K.L. be "permanently committed to FRANKLIN COUNTY CHILDREN SERVICES for the purpose of adoption." (Emphasis sic.) (Permanent Custody Judgment Entry, 6.)

(¶ 12} Both Mother and Father have appealed to this court from the judgment of the trial court.

II. STANDARD OF REVIEW

(¶ 13} A trial court's determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence. In re Andy-Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312. Judgments supported by some competent, credible evidence as to each of the essential elements of the case are not against the manifest weight of the evidence. In re R.G., 10th Dist. No. 12AP-748, 2013-Ohio-914, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), paragraph one of the syllabus.

(¶ 14} Clear and convincing evidence is that degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the facts to be established. Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. It is more than a mere preponderance of the ...


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