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In re K.C.

Court of Appeals of Ohio, Ninth District, Lorain

June 18, 2018

IN RE: K.C.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 16JC49445

          DENISE E. FERGUSON, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and PREETHI KISHMAN, Assistant Prosecuting Attorney, for Appellee.

          ELAINE CARLIN, Guardian ad Litem.

          MICHAEL TOWNE, Guardain ad Litem.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, JUDGE.

         {¶1} Appellant Mother appeals the judgment of the Lorain County Court of Common Pleas, Juvenile Division, that terminated her parental rights and awarded permanent custody of the child, K.C., to appellee Lorain County Children Services ("LCCS"). This Court affirms.

         I.

         {¶2} Mother is the biological mother of a son, K.C. (d.o.b. 3/14/11). Father has never been involved in the child's life, and he has not appealed the award of permanent custody. Mother is also the biological mother of two older daughters who were placed in the custody of their maternal grandmother ("Grandmother"). LCCS became involved with K.C. after Grandmother contacted the agency to inform it that she no longer wished to maintain the younger daughter in her home. Knowing that Mother had K.C. in her home, the agency investigated in hopes of placing the younger daughter in Mother's care. During its investigation, however, LCCS became concerned about the health and well-being of K.C. The then four-year- old child was nonverbal, and Mother and the child appeared to have no engagement with one another. Mother's affect and behavior indicated that she had mental health issues. In addition, there was almost no food in the home, and Mother was not scheduled to receive any additional monetary benefits for several days. The agency opened a case and worked informally with Mother for more than a year to help her learn how to meet the basic needs of the child to keep him safe and on track developmentally.

         {¶3} Based on her mental health issues, Mother continued receiving services from a community psychiatric supportive treatment case manager at Nord Center, as well as a money management caseworker from El Centro de Servicios Sociales. Despite these services, as well as LCCS' interventions to facilitate the child's evaluation and enrollment in early education services, to counsel and redirect Mother during frequent home visits, and to assist Mother with shopping and transportation, Mother continued to struggle. Issues regarding the lack of food in Mother's home, her failure to follow through with speech services for K.C., her failure to interact with the child, and her lack of insight regarding these problems persisted.

         {¶4} LCCS filed a complaint alleging neglect and dependency, but retained the child in his home with Mother. Thereafter, K.C. was adjudicated a neglected and dependent child and placed in the temporary custody of LCCS. The agency then removed K.C. from Mother's home and placed him in a foster home. Approximately ten months later, LCCS filed a motion for permanent custody. After a two-day hearing, the juvenile court issued a judgment granting permanent custody of K.C. to LCCS and terminating all parental rights. Mother filed a timely appeal in which she raises one assignment of error for review.

         II.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY FINDING IT WAS IN THE BEST INTERESTS OF THE CHILD K.C. TO BE PLACED IN THE PERMANENT CUSTODY OF LCCS EVEN THOUGH IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶5} Mother argues that the juvenile court's judgment awarding permanent custody of K.C. to LCCS was against the manifest weight of the evidence.

         {¶6} In considering whether the juvenile court's judgment is against the manifest weight of the evidence, this Court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new [hearing] ordered." (Internal quotations and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court "must always be mindful of the presumption in favor of the finder of fact." Id. at ¶ 21.

         {¶7} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; the child or another child of the same parent has been adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). The best interest factors include: the interaction and interrelationships of the child, the wishes of the child, the custodial history of the child, the child's need for permanence and whether that can be achieved without a grant of permanent custody, and whether any of the factors outlined in R.C. 2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see also In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11. Clear and convincing evidence is that which will "produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

         {¶8} In this case, by the plain language of her stated assignment of error, Mother purports to challenge solely the juvenile court's second-prong finding that an award of permanent custody was in the child's best interest. Rather than focusing her argument on the best interest factors, however, Mother addresses matters more relevant to the juvenile court's first-prong finding that K.C. cannot be placed with her within a reasonable time or should not be placed with her. In fact, Mother concludes her discussion by asserting that she "believes that there is not clear and convincing evidence that K.C. could not or should not be placed with her within a reasonable period of time." Because of the significant fundamental interests implicated when a parent loses custody of a child, as well as facts which are arguably relevant to both a first-prong and second-prong discussion, this Court will conduct a manifest weight analysis regarding both prongs of the permanent custody test. To the extent that Mother has raised the issue of plain error, she has failed to make any argument in that regard. Instead, she merely cites law relevant to such a discussion. Accordingly, we decline to consider whether the juvenile court committed plain error in awarding permanent custody of K.C. to LCCS.

         {¶9} In its motion for permanent custody, LCCS alleged the sole first-prong ground that K.C. cannot be placed with either parent within a reasonable time or should not be placed with either parent pursuant to R.C. 2151.414(B)(1)(a). In support, the agency alleged only two Subsection (E) factors relative to Mother. Specifically, it alleged that (1) Mother had "failed to substantially remedy the problems that initially caused the child to be placed outside of the home * * *, pursuant to R.C. 2151.414(E)(1);" and (2) Mother "suffers from chronic mental illness, chronic emotional illness, intellectual disability, that is so severe that it makes [her] unable to provide an adequate permanent home for the child pursuant to R.C. 2151.414(E)(2)[.]" As to Father, the agency alleged his failure to remedy problems (R.C. ...


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