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In re G.C.

Court of Appeals of Ohio, Twelfth District, Butler

June 12, 2017

IN THE MATTER OF: G.C., et al.

         APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. JN2014-0082 and JN2014-0083

          Steven R. Sharpe, Legal Aid Society of Southwest Ohio, Guardian Ad Litem for children.

          Michael O. Finnigan, Guardian Ad Litem for mother.

          Amy R. Ashcraft, for appellant, A.S.

          Engel & Martin, LLC, Mary K. Martin, for appellant, M.C.

          Michael T. Gmoser, Butler County Prosecuting Attorney, for appellee, Butler County Children Services.

          OPINION

          S. POWELL, P.J.

         {¶ 1} Appellants, the biological parents ("Mother" and "Father") of G.C. and P.C. (referred to collectively as the "children"), appeal a decision of the Butler County Court of Common Pleas, Juvenile Division, denying appellants' individual motions for legal custody and granting permanent custody of the children to appellee, the Butler County Department of Job and Family Services ("BCDJFS").

         {¶ 2} On March 5, 2014, BCDJFS filed a complaint alleging dependency and neglect, and requested temporary custody of the children. The complaint alleged BCDJFS received reports alleging drug abuse by Mother, a history of domestic violence between Mother and Father including, but not limited to, Father's prior convictions for felonious assault and domestic violence against Mother and an anonymous call regarding ongoing verbal and physical altercations between the parents, reports of inadequate feeding of the children and possible abuse, a threatening incident between Father and the children's day care facility, and an unannounced home visit where Mother appeared "extremely overwhelmed and unable to cope with the children's behavior." Based on these allegations, the magistrate found probable cause to issue an emergency order necessary to prevent immediate or threatened harm to the children and placed them in the temporary custody of BCDJFS.

         {¶ 3} On April 1, 2014, the parties stipulated to a finding of dependency and neglect, without naming a perpetrator of the neglect. Based on this agreement, the magistrate made such finding and adopted the facts as set forth in the complaint. BCDJFS developed case plans for the parents with the goal of reunification. The case plans required the parents to participate in domestic violence assessments, obtain and maintain stable housing and income, complete parenting education services, participate in random drug screenings including substance abuse assessments following any positive tests, and psychological assessments. Throughout the time the children were in the temporary custody of BCDJFS, the parents completed many of the services required in their individual case plans, including regularly attending visitation. Overtime, the parents' visitation progressed to overnight unsupervised visits until a physical altercation occurred on July 25, 2015 (hereinafter, referred to as the "July 2015 altercation").

         {¶ 4} The physical altercation involved Mother, Father, and Paternal Grandfather, and occurred in the presence of the children. The altercation ended when police removed Mother from Paternal Grandfather's residence. Following this incident, the magistrate granted BCDJFS's motion to change visitation to supervised visits. On August 17, 2015, Father requested a shelter care hearing due to the change in visitation. Following a hearing on the matter, the magistrate continued the modified supervision schedule.

         {¶ 5} Both Mother and Father individually moved for legal custody of the children, and on September 25, 2015, BCDJFS moved for permanent custody of the children. The magistrate held a trial on the three pending motions over several dates beginning on April 11, 2016. At trial, the magistrate heard testimony from three visitations specialists, Paternal Grandfather, Father, three parenting instructors, two caseworkers, Mother's therapist, Maternal Grandmother, Mother, Foster Mother, and the children's guardian ad litem ("GAL").

         {¶ 6} The visitation specialists collectively testified they observed a bond between Father and the children, did not identify any concerns with Father's interaction with the children, and stated Father appropriately disciplined the children when required. One specialist stated she would be comfortable moving Father to the highest level of visitation, which requires the least amount of supervision during visits.

         {¶ 7} Paternal Grandfather testified Father currently resides with him and has been there for approximately two years, but Father did not reside with him when the magistrate granted temporary custody of the children to BCDJFS. Mother also resided with Paternal Grandfather from approximately winter 2014 to mid-summer 2015, including during the July 2015 altercation. Regarding the altercation, Paternal Grandfather testified an argument between Father and Mother woke him up in the middle of the night. Paternal Grandfather proceeded to walk upstairs where he saw Mother hitting Father, which prompted Paternal Grandfather to ask Mother to stop. In response, Mother leapt downstairs where she proceeded to yell and hit Paternal Grandfather, who physically removed Mother from the house until the police arrived. Paternal Grandfather further testified the children witnessed the altercation and that Father and Mother often verbally fought. Following the July 2015 altercation, Mother resided at Paternal Grandfather's residence for approximately two to three weeks.

         {¶ 8} Father and Mother each testified describing their relationship as "volatile." Before initiation of the present case, Father testified he called BCDJFS several times due to ongoing concerns about the children when they resided solely with Mother. Mother testified they began their relationship in 2005 and within less than a year, Father became physically aggressive. Father testified he served four years in prison for his prior convictions for felonious assault and domestic violence wherein a gun was involved and Mother was the victim. Despite these convictions, their relationship continued throughout Father's incarceration and after his release, resulting in the birth of the children. In addition to these convictions, Father also has a domestic violence conviction involving a different victim, as well as a disorderly conduct conviction that arose from a different altercation with Mother. Father testified there have been many domestic disturbances between him and Mother.

         {¶ 9} Father further testified that Mother would come over and see the children during his unsupervised visitation before the magistrate granted Mother unsupervised visitation, which ceased following the July 2015 altercation. Father testified the July 2015 altercation began when he confronted Mother regarding a text message on her phone revealing her intent to have sexual relations with someone else. The confrontation escalated when Father broke Mother's phone over his knee, which prompted Mother to become upset and begin hitting him. Despite Mother's forced removal from the residence the night of the altercation, she returned after a couple of days for approximately two to three weeks. Mother's testimony contradicted Father's testimony regarding who was the aggressor. Mother testified Father confronted her, and then, proceeded to choke her and break her phone. Father indicated he does not intend to get back together with Mother, but both Mother and Father testified they believed they could co-parent the children.

         {¶ 10} With respect to his case plan services, Father indicated he has learned to better control his emotions and anger, especially around the children. Jane Behari, Father's parenting instructor since December 2015, testified regarding an incident where Father became upset, which made her feel threatened because of his escalating body language and choice of words. Despite this incident, she had no present concerns at the hearing regarding the parenting skills Father demonstrated during visits and she stated he has improved his ability to control his emotions. The caseworkers assigned to this case testified there were ongoing concerns following the July 2015 altercation with Mother and Father's ability to follow court orders and that the couple may have been engaged in an ongoing relationship at the time of the filing for permanent custody. The caseworkers further identified Father's prior marijuana usage and the parents' inability to co-parent considering the history of domestic violence as continued concerns for reunification. In addition to these concerns, the caseworkers testified Father completed his case plan services, there is a strong bond between Father and the children, Father obtained stable housing and employment, and has had mostly negative drug screens.

         {¶ 11} Finally, the GAL for the children cited several reasons in his written report and recommendation for the magistrate to place the children in the permanent custody of BCDJFS. The GAL described Father's severe history of domestic violence that has continued throughout the pendency of this case as well as Mother's instability due to mental health concerns. The GAL expressed his continued doubts the parents will end their relationship, which has generated substantial violence, including violence in front of the children. Despite substantial compliance by Mother and Father with their respective case plans, the GAL asserted there is no suitable placement available for the children other than granting permanent custody to BCDJFS because placing the children with Mother or Father would place them in substantial risk. Additionally, the GAL cited the healthy and supportive relationship the children have established with the foster parents and foster siblings, who have demonstrated the ability to meet the needs of the children and have expressed a desire for adoption.

         {¶ 12} Following the conclusion of the hearings, the magistrate granted BCDJFS's permanent custody motion and denied Mother and Father's respective legal custody motions. Both parents objected to the magistrate's findings. The juvenile court held a hearing on the matter, and then, overruled the parents' objections. The present appeals followed.

         Father's Appeal

         {¶ 13} Assignment of Error No. 1:

         {¶ 14} THE TRIAL COURT ERRED IN NOT REVIEWING THE ENTIRE RECORD PRIOR TO AFFIRMING ...


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