In re D.F. , 2017 Ohio 2711 ( 2017 )

[Cite as In re D.F., 2017-Ohio-2711.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF )
)
D.F., )
R.M., ) CASE NO. 16 NO 0439
Ru.M., )
D.M. ) OPINION
)
)
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division of Noble
County, Ohio
Case No. 214-3034, 3035, 3036, 3037
JUDGMENT: Affirmed
APPEARANCES:
For Appellee Kelly A. Riddle
Noble County Prosecutor
150 Courthouse
Caldwell, Ohio 43724
For Appellant Attorney Robert Henry
200 Putnam St., Suite 624
Marietta, Ohio 45750
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: May 5, 2017
[Cite as In re D.F., 2017-Ohio-2711.]
DONOFRIO, J.
{¶1} Appellant, Brandy M., appeals from a Noble County Common Pleas
Court judgment granting permanent custody of her four children to appellee, the
Noble County Department of Jobs and Family Services.
{¶2} Appellant is the mother of four children: D.F. (d.o.b. 9/23/01); R.M.
(d.o.b. 12/13/04); Ru.M. (d.o.b. 8/31/06); and (D.M. (d.o.b. 9/26/08). Appellant is
married to the father of the three younger children. The oldest child’s father is
unknown.
{¶3} Appellant, the father, the children, and appellant’s mother resided
together in Noble County. Sometime in 2014, R.M. disclosed to a teacher that her
father was inappropriately touching her at home.1
{¶4} On December 11, 2014, appellee filed a complaint asserting that the
children were abused and neglected. The complaint was based on allegations that
the father had been sexually abusing R.M., Ru.M., and D.M. and appellant knew of
the abuse and did nothing about it. The trial court granted appellee temporary
custody of the children. The children were placed in foster care. When the children
were removed from the home, the caseworker found that the home was filthy and
unsanitary with dog feces on the floor.
{¶5} The father was convicted of rape and gross sexual imposition for his
offenses against R.M. He is serving a prison term until 2031.
{¶6} The court appointed a guardian ad litem (GAL) for the children.
Appellant was granted unsupervised visitation in her home every Saturday.
{¶7} On January 20, 2015, the trial court adjudicated R.M. to be an abused
child and the other children to be neglected children. Appellant agreed with these
dispositions. The court found that the father pleaded guilty and had been convicted
of rape and gross sexual imposition perpetrated on R.M. A case plan was put in
place and the children remained in appellee’s custody in foster care.
{¶8} On July 22, 2015, appellee filed a motion for permanent custody of the
1 The first filing in this case is the complaint dated December 11, 2014. However, the parties make
reference to R.M.’s disclosure occurring on January 31, 2014, and the testimony suggests the children
may have been removed from appellant’s home at that time. A date certain for their removal is not
substantiated in the record, however.
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children. The motion asserted that the children had been in appellee’s temporary
custody for at least 12 months of a consecutive 22-month period. Appellee also
asserted that it received a report from a psychologist who interviewed appellant and
who had multiple concerns about appellant’s ability to protect the children and did not
believe the concerns could be cured by any type of treatment.
{¶9} On August 21, 2015, the grandmother filed a motion for custody of the
children. Based on her motion, the trial court made her a party to this case.
{¶10} Also on August 21, the trial court temporarily suspended appellant’s
visitation after the children returned from visits multiple times with lice. Visitation
resumed on September 12, 2015, with visitation occurring every Saturday from 8:30
a.m. until 3:00 p.m., in appellant’s home.
{¶11} The trial court held a hearing on appellee’s motion for permanent
custody on June 8, and October 26, 2015. It heard testimony from many witnesses
including appellant, the grandmother, the GAL, the caseworker, and the
psychologists and counselors involved.
{¶12} The trial court granted appellee’s motion for permanent custody. The
court found the father had been convicted of raping one of the children and the other
three children were living in the home when the rape occurred. It further found
appellant was unable or unwilling to prevent the children from suffering physical,
emotional, or sexual abuse. It noted that R.M. reported to appellant that her father
had sexually abused her and appellant refused to believe R.M., refused to
investigate, and failed to report the matter to authorities. The court found that
appellant still refuses to believe the abuse occurred even though the father has
confessed. The court went on to find that the best interest factors supported a
conclusion that permanent custody was in the children’s best interest. And the court
concluded that the children could not be placed with either parent within a reasonable
time.
{¶13} Appellant filed a timely notice of appeal on December 5, 2016. She
now raises two assignments of error. The grandmother did not file an appeal.
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{¶14} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). “Permanent
termination of parental rights has been described as ‘the family law equivalent of the
death penalty in a criminal case.’ In re Smith (1991), 77 Ohio App.3d 1, 16, 601
N.E.2d 45, 54.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). However,
this right is not absolute. In re Sims, 7th Dist. No. 02-JE-2, 2002-Ohio-3458, ¶ 23. In
order to protect a child's welfare, the state may terminate parents' rights as a last
resort. Id.{¶15} We review a trial court's decision terminating parental rights and
responsibilities for an abuse of discretion. Sims, 7th Dist. No. 02-JE-2, ¶ 36. Abuse
of discretion connotes more than an error of law or judgment; it implies that the
court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶16} Appellant’s first assignment of error states:
THE JUVENILE COURT ABUSED ITS DISCRETION, AND ITS
JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, WHEN IT FOUND THAT THE MOTHER WAS UNABLE
OR UNWILLING TO PREVENT FUTURE CHILD ABUSE PURSUANT
TO R.C. 2151.414(E)(14)[.]
{¶17} Appellant argues the trial court erred in failing to make findings going to
the statutory best interest factors other than finding that she is unwilling to prevent
her children from suffering physical, emotional, or sexual abuse. She claims there
was evidence as to several other best interest factors yet the trial court only cited the
one factor.
{¶18} Appellant further argues the trial court’s finding that she was unwilling to
prevent the abuse was not supported by the evidence. Instead, she claims the
evidence demonstrated that she was horrified by the sexual abuse and that she
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wanted to protect her children. Appellant points out there is no allegation that she
abused her children and the person who did abuse them is currently incarcerated.
And she asserts she complied with all of her case plan directives.
{¶19} Pursuant to R.C. 2151.414(B)(1):
[T]he 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:
(a) The child is not abandoned or orphaned, has not 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 * * * and the child cannot be
placed with either of the child's parents within a reasonable time or
should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(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, * * *.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated
an abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
{¶20} Thus, in order to grant permanent custody to the agency, the trial court
must make one of the five findings set out in R.C. 2151.414(B)(1)(a) through (e) and
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make a best interest finding.
{¶21} Clear and convincing evidence is evidence that produces in the mind of
the trier of fact a firm belief or conviction as to the facts sought to be established. In
re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985).
{¶22} In the present case, the trial court found that the children cannot be
placed with either parent within a reasonable time. Thus, it made the finding set out
in R.C. 2151.414(B)(1)(a). It also found that it was in the children’s best interest to
grant their permanent custody to appellee. Thus, the court made the two findings
necessary to grant permanent custody.
{¶23} In making its finding that the children could not be placed with either of
their parents within a reasonable time the court made separate findings as to each
parent.
{¶24} R.C. 2151.414(E) governs findings that a child cannot be placed with
either parent within a reasonable time or should not be placed with either parent.
Pursuant to that section:
If the court determines, by clear and convincing evidence, at a
hearing held pursuant to division (A) of this section * * * that one or
more of the following exist as to each of the child's parents, the court
shall enter a finding that the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent:
***
(7) The parent has been convicted of or pleaded guilty to one of
the following:
***
(d) An offense under section 2907.02 [rape], 2907.03, 2907.04,
2907.05, or 2907.06 of the Revised Code * * * and the victim of the
offense is the child, a sibling of the child, or another child who lived in
the parent's household at the time of the offense;
***
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(14) The parent for any reason is unwilling to provide food,
clothing, shelter, and other basic necessities for the child or to prevent
the child from suffering physical, emotional, or sexual abuse or
physical, emotional, or mental neglect.
R.C. 2151.414(E)(7)(d),(14).
{¶25} As to the father, the trial court found R.C. 2151.414(E)(7)(d) applied
because the father was convicted of raping R.M.
{¶26} As to appellant, the court found R.C. 2151.414(E)(14) applied because
she was unable or unwilling to prevent a child from suffering physical, emotional, or
sexual abuse. It based this finding on its finding that R.M. told appellant that the
father had sexually abused her yet appellant failed to report the matter to authorities,
did not believe R.M., and failed to even investigate. The court further found that to
this date, appellant still fails to believe the abuse even though the father confessed.
Finally, the court found appellant lacks the capacity and/or will to reasonably parent
the children.
{¶27} Appellant argues the evidence does not support the trial court’s R.C.
2151.414(E)(14) finding. But clear and convincing evidence supports the court’s
finding.
{¶28} Debbie Schockling is the caseworker for this case. Schockling testified
regarding R.M.’s disclosure of the sexual abuse to appellant and her grandmother.
Schockling stated that R.M. told appellant and her grandmother about the sexual
abuse but they called her a liar and did not believe her. (Tr. 32). They blamed R.M.
for the breakup of their family. (Tr. 32). They visited the father in jail. (Tr. 32). They
allowed the children to talk on the phone with the father while he was in jail. (Tr. 32).
If the children did not want to speak with the father, appellant would get mad at them.
(Tr. 32).
{¶29} Candy Barr, the children’s therapist, testified that R.M. had disclosed an
incident where the father was in bed with R.M. and appellant walked in on them. (Tr.
94). She stated that appellant asked what was going on but did not pursue the issue
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any further. (Tr. 95).
{¶30} Barr also testified about a conversation between her, appellant, and
Ru.M. She testified Ru.M. was talking about a time he was playing behind his
father’s chair and the father became irritated with him. (Tr. 95). Ru.M. stated that the
father then cut him on the chest with a pocket knife. (Tr. 95). Ru.M. showed Barr the
scar. (Tr. 95). When Ru.M. disclosed this incident, appellant jumped up and put her
finger in Ru.M.’s face and said, “It didn’t happen that way. A dog scratched you.”
(Tr. 95).
{¶31} Appellant claimed she did not know about the abuse when it was going
on. (Tr. 127). She also stated that after the father was arrested she would visit him
in jail so she could figure out what was going on and why he would put her through
this. (Tr. 128). Appellant admitted she and her mother were both living in the home
when the father molested R.M. (Tr. 134-135). She claimed she did not know what
the father was doing and claimed R.M. never told her about the abuse. (Tr. 135).
When asked whether she believed the father molested R.M., appellant responded, “I
don’t know what to believe” and then later, “I can’t say it did [happen] and I can’t say
it didn’t. I did not see it.” (Tr. 136). She then stated that she still does not know what
happened and does not want to know. (Tr. 136-137). Again she questioned why the
father would put her through this. (Tr. 138).
{¶32} This evidence supports the trial court’s finding that appellant was
unable or unwilling to prevent a child from suffering physical, emotional, or sexual
abuse. The evidence supports a conclusion that R.M. disclosed to appellant that her
father was abusing her and appellant did nothing. Appellant even walked in on one
incident of abuse and only asked what was happening. She did nothing to protect
her child from the sexual abuse. Even after the father pleaded guilty and was serving
a prison sentence for raping R.M., appellant still did not believe that he raped R.M.
Moreover, when Ru.M. disclosed that the father had cut him with a knife, leaving a
scar on his chest, appellant defended the father and told Ru.M. the scar was from a
dog scratching him.
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{¶33} Thus, the trial court’s finding that the children cannot be placed with
appellant is supported by competent, credible evidence.
{¶34} Appellant also argues in this assignment of error that the trial court
erred by failing to make specific findings going to each of the best interest factors.
{¶35} In determining whether it is in the child's best interest to grant custody
to the agency, the court shall consider:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, * * * with due regard for the maturity
of the child;
(c) The custodial history of the child, including whether 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 * * *;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child [regarding certain
crimes, withholding food or medical treatment, drug and alcohol abuse,
abandonment, and having previously had parental rights terminated].
R.C. 2151.414(D)(1).
{¶36} In this case, the trial court simply found: “A consideration of the factors
found in R.C. 2151.414(D) supports a conclusion that permanent custody is in the
best interests of the children.” The court did not elaborate further.
{¶37} Earlier in its judgment entry, the court addressed two of the five best
interest factors when discussing why the children could not be placed with either
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parent. The court found that R.C. 2151.414(E)(7) applied in this case because the
father was convicted of raping one of the children. This goes to the best interest
factor set out in R.C. 2151.414(D)(1)(e). Additionally, the court found that the
children have been in appellee’s temporary custody for 12 or more months of a
consecutive 22-month period. This finding is relevant as to the children’s custodial
history, which is the best interest factor set out in R.C. 2151.414(D)(1)(c). Thus, the
court did make findings as to two of the five factors.
{¶38} Moreover, although it would have been the better practice to make
specific findings, the trial court was not required to make specific findings as to each
best interest factor as appellant alleges.
{¶39} Other courts have found that the trial court’s indication that it
considered the R.C. 2151.414(D)(1) best interest factors is sufficient. For instance, in
In re M.R., 3d Dist. No. 4-12-18, 2013-Ohio-1302, ¶ 78, the court found that, “[w]hile
it is far from the better practice, we find that the trial court's citation to the appropriate
statute when making its best interest finding meets its obligation, albeit to the
minimum extent possible, in demonstrating that the R.C. 2151.414(D) factors were
considered.” And in In re R.H., 9th Dist. Nos. 11CA010002, 11CA010003, 2011-
Ohio-6749, ¶ 18, the court found: “In this case, although the better practice would
have been for the trial court to more fully articulate its reasoning for its ultimate best
interest finding, Father has failed to demonstrate that the trial court committed
reversible error by failing to do so.”
{¶40} Furthermore, an examination of the evidence reveals that clear and
convincing evidence supports the trial court’s best interest determination.
{¶41} In addition to the testimony set out above, Debbie Schockling, the
caseworker testified that she met with R.M. at her school and R.M. disclosed to her
that the father had inappropriately touched her. (Tr. 26). She stated the children
were immediately removed from the home and placed in foster care. (Tr. 26).
Schockling testified that at that time, the plan was to reunite the children with
appellant. (Tr. 26). Appellee set up visitation with appellant, suggested counseling,
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and worked on a reunification plan. (Tr. 27). Schockling stated that appellant
followed the case plan. (Tr. 27). There were some issues, however, Schockling
stated. For instance, for a period of time during the summer, there was an issue with
lice where appellee had to suspend visitation until appellant could remedy the
situation. (Tr. 27). Schockling stated that appellant has moved three times during
the pendency of this case and her current trailer is now suitable for children. (Tr. 27-
28). However, at the time the children were removed, appellant’s house was filthy
and unsanitary. (Tr. 29). Schockling also testified that when the children were
removed, they had issues with medical and dental care not being kept up to date.
(Tr. 30).
{¶42} Additionally, Schockling stated that the children are frightened that the
father could get out of prison and harm them and they do not feel safe with appellant.
(Tr. 33-34). Schockling stated that it also came out that the father sexually abused
two of the other children too. (Tr. 46).
{¶43} Finally, Schockling testified that appellant loves her children and the
children still have a bond with appellant. (Tr. 44-45). And she acknowledged that
appellant has been compliant with her case plan. (Tr. 45). Nonetheless, Schockling
stated that she still has concerns that rose to the level of seeking permanent custody.
(Tr. 45-46).
{¶44} Chastity Wheeler is the foster care coordinator that handled this case.
Wheeler testified that the children want to return home to a certain degree but they
are also fearful to go home. (Tr. 61). In addition to fear of their father, the children
also fear not having enough food to eat or somewhere to live if they are returned to
appellant. (Tr. 61). Wheeler testified that three of the children were sexually abused
by the father while living at home with appellant and their grandmother. (Tr. 62).
{¶45} Wheeler also testified that her agency could assist appellee in
searching for an adoptive family that would take all four children if appellee received
permanent custody. (Tr. 60).
{¶46} Gary Wolfgang is a psychologist and clinical counselor who evaluated
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appellant. Wolfgang testified as to his concerns with appellant. He was concerned
with the fact that she was sexually abused in the past and had not adequately
processed that abuse. (Tr. 71-72). He was concerned with appellant’s thoughts,
feelings, and attitudes toward the abuse her children suffered. (Tr. 72). He stated
appellant did not want to know what happened to the children or how often they were
abused. (Tr. 72). Wolfgang stated appellant did not know the duration or intensity of
the abuse or any detail as to what her children had gone through. (Tr. 72). This
caused him to be very concerned with how appellant would handle their trauma. (Tr.
72). Wolfgang was also concerned with appellant’s ability to pick future partners.
(Tr. 72). Additionally, Wolfgang was concerned that appellant lacked in her own self-
care. (Tr. 72). He was concerned that she did not tend to her own medical needs.
(Tr. 72-73). Wolfgang opined that all of these issues suggested significant problems
would be very likely if the children were returned to appellant. (Tr. 73).
{¶47} In addition to her testimony discussed above, Candy Barr, the children’s
therapist, testified about each of the children when she first met them. She stated
that R.M. had been acting as the parent figure in the home. (Tr. 88). The other
children looked to her for rules and discipline. (Tr. 88). She stated that D.F.
exhibited a lot of fear symptoms and an unwillingness or inability to process his
feelings. (Tr. 89). Ru.M., Barr stated, was very fearful of knives and of people
getting out of prison. (Tr. 89-90). She stated he has also acted out by touching the
other children inappropriately. (Tr. 90). D.M., Barr stated, had refused to eat and
had been very stressed. (Tr. 90). Barr testified that since they have been in foster
care, all of the children had improved physically, socially, emotionally, and
cognitively. (Tr. 90). When asked about her recommendation, Barr stated that while
she believed that appellant cared about the children, she opined appellant had
missed so much and failed to address so much that it would be very difficult for the
children to go home and be safe. (Tr. 92). Barr based her opinion on the pervasive
sexual abuse and neglect that happened with appellant in the home that she did
nothing about. (Tr. 92).
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{¶48} Additionally, Barr testified regarding the children’s wishes and
concerns. She stated that R.M. and Ru.M. have expressed that they are very
concerned about returning home due to concerns for their safety, about the father
getting out of prison, about being forced to have contact with the father, about food,
and about general security. (Tr. 101). D.F., who has always denied any abuse,
wanted to return home. (Tr. 104).
{¶49} Julie E. is the children’s foster mother. She stated that when the
children first came into her care, they were all very fearful. (Tr. 112). Additionally,
the children had to stay in her sight at all times due to inappropriate behavior among
them. (Tr. 113). She had to put baby monitors in their bedrooms so that they could
be monitored at night. (Tr. 113). Since they have been in her care, however, Julie
testified that they have all showed progress in school and in their behavior. (Tr. 113-
115). Julie testified that when the children come home from their weekly visits with
appellant, the children, especially D.M, act out. (Tr. 115-116). She stated that
recently appellant has had boyfriends over while the children were there and that has
caused the children stress and nightmares. (Tr. 116). She stated that appellant
allowed one of the boyfriends to live with her because he did not have anywhere else
to live. (Tr. 119).
{¶50} Julie testified that sometimes the children get along and other times
they do not. (Tr. 116). She pointed out that when they first came into her care all of
the children looked to R.M. as the one in charge. (Tr. 116-117).
{¶51} Julie testified that she was not considering adopting the children. (Tr.
118). She also stated that appellant attends all of her visits. (Tr. 118-119).
{¶52} In addition to her testimony discussed above, appellant testified that
she currently lives in a three-bedroom trailer with her mother. (Tr. 122-123).
Appellant testified she receives social security because she is unable to work due to
having suffered several strokes. (Tr. 124). Appellant testified that she has never
missed a visit with the children. (Tr. 125). She also stated she has complied with her
case plan including having a psychological evaluation and attending counseling. (Tr.
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125). However, she stated that she only talked about the abuse her children suffered
once or twice during counseling because she does not like to talk about it. (Tr. 127).
{¶53} Finally, the grandmother testified. The grandmother stated that she
believed that the father abused the children based on the fact that he pleaded guilty.
(Tr. 142). She admitted that she lived in the home while the abuse was occurring.
(Tr. 143). The grandmother also admitted that R.M. told her that her father had
sexually abused her and the grandmother told R.M. that she did not believe her. (Tr.
156). She admitted she did nothing to investigate R.M.’s disclosure to her. (Tr. 156).
The grandmother stated that she too had a case plan that she complied with
including counseling. (Tr. 146). The grandmother testified that when appellant was
younger, appellant’s father sexually abused appellant and instead of reporting it to
authorities, the grandmother beat him with a baseball bat. (Tr. 146, 155).
{¶54} In addition to the testimony, the court also considered the GAL’s report.
The GAL reported that appellant’s current home was in a suitable condition for
habitation with the exception of needing one more bed. At his visit with the children
in 2015, they expressed a desire to return home. But in 2016, Ru.M. expressed his
desire to remain in foster care with his siblings. Ru.M. expressed fear of his father
and fear that appellant and the grandmother would not provide food for the children.
D.F. expressed his desire to return to appellant. R.M. and D.M. expressed a desire
to return to appellant but also expressed anxiety about appellant’s ability to protect
them and provide them with sufficient food. The GAL reported that the children are
doing well in school while in foster care.
{¶55} The GAL recommended that the court grant the permanent custody
motion. He based this opinion on numerous observations. Appellant and
grandmother continued to allow the children to have telephone contact with the
father. During one such call, the father threatened R.M. The foster mother reported
working to keep the children from acting out sexually and fighting with each other yet
appellant reports she has no issues during visitation. Despite appellant’s statement,
the children return from appellant’s care with bruises and red marks they report stem
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from fighting. This leads to the conclusion that appellant is either lying about the
fighting or is ignorant of it. This also caused the GAL to believe that sexual contact
may be occurring at appellant’s home, which is either unknown or unmitigated. The
GAL found significant an observation from appellant’s psychologist that the children
would be exposed to neglectful and harmful parental behaviors and circumstances if
they were returned to appellant’s care.
{¶56} As to the first best interest factor, the children’s interaction and
interrelationship with others, the evidence suggested that despite the abuse that
occurred under appellant’s watch, the children still have a bond with appellant. The
evidence also suggested that the children behave as siblings do with each other,
sometimes getting along and sometimes arguing. The evidence also demonstrated
that the three boys all look to R.M. as a mother figure. R.M. had assumed the role as
the parent of her siblings while they resided with appellant. The evidence also
demonstrated that since entering foster care, the children’s behavior, relationships,
and school performance had all improved.
{¶57} As to the second best interest factor, the children’s wishes, the
evidence demonstrated several things. First, D.F. has always expressed a desire to
return home. Second, although they initially wanted to return home, over time R.M.,
Ru.M., and D.M., now have mixed feelings. Ru.M. wants to remain in foster care with
his siblings. R.M. and D.M. have expressed some desire to return home but have
also expressed fear and anxiety about returning home. Their fear goes to their basic
needs of security and having enough food not being met by appellant.
{¶58} As to the third best interest factor, the custodial history of the children,
the testimony indicated the children had been in appellee’s temporary custody since
February 2014. The first filing in this case, however, was in December 2014. Thus,
there is some uncertainty as to when the children entered appellee’s temporary
custody. Nonetheless, by the time of the final hearing on October 26, 2016, the
children had been in appellee’s temporary custody for a minimum 22 months and
possibly for as many as 33 months.
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{¶59} As to the fourth best interest factor, the children’s need for a legally
secure permanent placement and whether that type of placement can be achieved
without a grant of permanent custody, the testimony indicates that appellant cannot
provide a secure home for the children and the foster mother was not willing to adopt
them. The foster care coordinator indicated that if the court granted the permanent
custody motion, her agency would help in the adoption process to look for a family
that would adopt all four children.
{¶60} And as to the final best interest factor, whether any of the factors in
R.C. 2151.414(E)(7) to (11) applied to the parents and children in this case, as
discussed above, R.C. 2151.414(E)(7) applies because the father was convicted of
raping R.M.
{¶61} The best interest factors weigh in favor of granting permanent custody
to appellee. Although the children are still somewhat bonded to appellant, they are
afraid to return to her care, with the exception of D.F. Appellant demonstrated to
them that she could not keep them safe and provide for their basic needs. Moreover,
since entering foster care, all of the children have shown improvement in their
behavior, relationships, and school performance. Additionally, the children have
been living in limbo for the past two to three years. They cannot return home and
their foster mother is not seeking to adopt them. Without a grant of permanent
custody, they will not be able to have a legally secure, permanent placement. For all
of these reasons, the trial court did not abuse its discretion in finding that it was in the
children’s best interest to grant the permanent custody motion.
{¶62} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶63} Appellant’s second assignment of error states:
THE JUVENILE COURT ABUSED ITS DISCRETION, AND ITS
JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE WHEN IT FOUND THAT REASONABLE EFFORTS WERE
MADE TO PREVENT REMOVAL, AND TO ELIMINATE THE
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CONTINUED REMOVAL OF THE CHILDREN, OR TO MAKE IT
POSSIBLE FOR THE CHILDREN TO RETURN HOME SAFELY BY
CONTINUALLY WORKING WITH THE APPELLANT, BUT FAILURE
OR INABILITY OF THE APPELLANT TO REASONABLY COMPLY
RESULTED IN FAILURE.
{¶64} Here appellant contends she complied completely with her case plan
but, nonetheless, the trial court found her failure or inability to reasonably comply with
the case plan resulted in a failure. Appellant argues there was no more she could
have done to complete her case plan. Appellant points out that appellee’s witness
testified that she completed all parts of her case plan and never missed a visit with
the children. And she notes that she resolved all cleanliness issues at her house.
Finally, she asserts the only negative conclusions about her came from the GAL’s
report, which was filed one year prior to the permanent custody hearing, and those
were contradicted at the hearing.
{¶65} Compliance with a case plan alone does preclude a trial court from
granting an agency’s motion for permanent custody. In the Matter of C.G., 7th Dist.
No. 16 JE 0023, ¶ 88, citing In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932
N.E.2d 360, ¶ 25 (8th Dist.). “[A] parent can successfully complete the terms of a
case plan yet not substantially remedy the conditions that caused the children to be
removed — the case plan is simply a means to a goal, but not the goal itself.” Id.{¶66} In this case, despite appellant’s compliance with visitation and
counseling, the conditions that caused the children to be removed from the home
have not been remedied. At the time of the hearing, appellant was still in denial
about the abuse her children suffered. Despite the fact that the father pleaded guilty
to raping one of the children, appellant stated that she was not sure what to believe.
Moreover, three of the children were still fearful of returning to appellant’s care due to
concerns that appellant could not provide them with safety, security, and food. Thus,
even though appellant demonstrated compliance with the case plan, she had not
come to terms with the abuse her children suffered at the hands of their father and
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her role in allowing it to occur.
{¶67} Additionally, appellant asserts the GAL report was not current because
it was filed a year prior to the permanent custody hearing.
{¶68} The GAL did submit a report on December 15, 2015, which was
approximately six months prior to the first date of the permanent custody hearing
(June 8, 2016). But the GAL submitted a supplement to his report on July 5, 2016,
which was in between the two permanent hearing dates (June 8, and October 26,
2016). Thus, the trial court did have a current report from the GAL.
{¶69} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶70} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.