In re L.R. , 2019 Ohio 2305 ( 2019 )

[Cite as In re L.R., 2019-Ohio-2305.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: L.R. C.A. Nos. 29266
L.R. 29271
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 16-06-000495
DN 16-06-000496
DECISION AND JOURNAL ENTRY
Dated: June 12, 2019
HENSAL, Judge.
{¶1} Appellants Mother and Father appeal the judgment of the Summit County Court
of Common Pleas, Juvenile Division, that terminated their parental rights to their children 1-L.R.
and 2-L.R. and placed the children in the permanent custody of appellee Summit County
Children Services Board (“CSB” or “the agency”). This Court affirms.
I.
{¶2} Mother and Father are the biological parents of 1-L.R. (d.o.b. 2/9/14) and 2-L.R.
(d.o.b. 5/23/16). Both children are medically fragile and suffer from multiple serious conditions.
1-L.R. has chronically experienced a failure to thrive, gaining weight during his multiple
hospitalizations, but losing weight quickly again when back in the care of Mother and Father. 2-
L.R. was born extremely prematurely. At the time of 2-L.R.’s birth, 1-L.R. was receiving
treatment during one of his many hospitalizations. Based on the parents’ failure to manage 1-
2
L.R.’s medical conditions, CSB filed a complaint alleging that child to be neglected and
dependent. The same day, the agency filed a complaint alleging 2-L.R. to be a dependent child
based on Mother’s and Father’s failure to consistently feed and visit with the premature infant in
the hospital. By stipulation of the parties, both children were placed in the emergency temporary
custody of CSB upon their respective releases from the hospital.
{¶3} Based upon CSB’s dismissal of its allegations of neglect regarding 1-L.R. and one
of two allegations of dependency regarding 2-L.R., Mother and Father waived their rights to an
adjudicatory hearing and stipulated that both children were dependent pursuant to Revised Code
Section 2151.04(C). Thereafter, Mother and Father waived their rights to a dispositional hearing
and agreed to placement of the children in the temporary custody of CSB. Mother and Father
were to have supervised visitations with the children. The juvenile court adopted the agency’s
proposed case plan as the order of the court. Mother’s and Father’s initial objectives included
that they (1) work with medical professionals to understand how to care for the children’s
medical needs and demonstrate that ability, (2) obtain mental health assessments and follow all
recommendations, and (3) obtain and maintain safe and stable housing. The juvenile court
further found that CSB had used reasonable efforts to prevent the continued removal of the
children from their home.
{¶4} At the first review hearing, the magistrate again made the same reasonable efforts
finding. The children continued in the agency’s temporary custody. Five months later at another
review hearing, the magistrate once more found that CSB had used reasonable efforts to prevent
the continued removal of the children from their home. The magistrate maintained 1-L.R. and 2-
L.R. in the agency’s temporary custody but ordered a liberal increase in the parents’ visitation
3
based in part on the recommendation of the guardian ad litem that the children be returned to
Mother’s legal custody under protective supervision of CSB.
{¶5} On May 3, 2017, the agency filed an amended case plan, noting that the children
had been moved to an out-of-county foster home better equipped to handle the children’s
medical issues, and recognizing that there may be challenges to the parents’ ability to visit based
on the distance of the placement. CSB also added case plan objectives requiring Mother and
Father to submit to mental health diagnostic and parenting assessments at Summit Psychological
Associates. Approximately three weeks later, the agency filed a motion for permanent custody.
As grounds, CSB alleged that the children should not or cannot be returned to Mother and Father
based on their failures to remedy the conditions that led to the children’s removal, as well as the
parents’ chronic mental health and other delays that prevented them from providing an adequate
permanent home. Mother and Father each filed motions for legal custody.
{¶6} On July 5, 2017, CSB filed another amended case plan adding more requirements
for Mother and Father, including: (1) basic and specialized parenting education addressing the
children’s medical conditions and needs, (2) smoking cessation programs due to the children’s
respiratory issues, and (3) attendance at all medical and specialized educational services
appointments for the children. In addition, Father was required to (1) submit to a psychiatric
evaluation, and (2) participate in outpatient substance abuse treatment, abstain from drugs and
alcohol, and submit to urine screens. Father filed objections to the proposed amended case plan.
After a hearing, the magistrate rejected the July 5, 2017 amended case plan and adopted the May
3, 2017 amended case plan.
{¶7} CSB opposed Father’s objections to the July 5, 2017 amended case plan. The
guardian ad litem filed a report recommending rejection of the July 5, 2017 amended case plan.
4
After a hearing, the magistrate adopted the July 5, 2017 amended case plan except for the
requirement for Father to participate in drug and alcohol treatment and submit to urine screens.
Instead, the magistrate ordered Father to complete a drug and alcohol abuse evaluation. Father
moved to set aside the magistrate’s order. The juvenile court denied Father’s motion and
adopted the July 5, 2017 amended case plan with the modifications ordered by the magistrate.
{¶8} Mother’s and Father’s parenting assessments identified delays hindering their
abilities to appropriately parent their medically fragile children. Accordingly, CSB moved to
withdraw its motion for permanent custody, and instead moved for a retroactive first six-month
extension of temporary custody, as well as a second six-month extension, to allow the parents
time to work on those issues in pursuit of reunification.
{¶9} The visiting judge assigned to proceed over the permanent custody hearing held a
status hearing and issued the following orders. He removed the agency protective caseworker
and ordered the appointment of a different caseworker. The visiting judge adopted the
recommendations in the most recent report of the guardian ad litem, specifically: (1) to maintain
the children in CSB’s temporary custody; (2) that CSB allow Mother and Father access to the
children’s online MyChart accounts relating to medical appointments and reports; (3) that CSB
provide Mother and Father with immediate training relating to the children’s gastronomy tube
(“G-tube”) feedings; (4) that CSB allow visitations outside the visitation center once the parents
have demonstrated the ability to administer G-tube feedings appropriately; (5) that CSB ensure
that the children continue to receive developmental treatment; (6) that CSB continue providing
transportation assistance to Mother and Father; (7) that Mother and Father attend all of the
children’s medical appointments and follow through as advised; (8) that Mother and Father
maintain safe and stable housing; and (9) that Mother continue counseling and complete
5
parenting classes. In addition, the juvenile court ordered the guardian ad litem to coordinate with
the children’s medical professionals to create a check list for the parents to facilitate G-tube
feedings. Medical professionals were ordered to supervise the children’s feedings by Mother and
Father until the professionals determined that the parents could feed 1-L.R. and 2-L.R. without
supervision. The visiting judge thereafter had no further involvement in the case below.
{¶10} A new caseworker was appointed to oversee the case. At the same time, a new
court appointed special advocate assumed the role of the guardian ad litem to represent the best
interest of the children.
{¶11} At a review hearing 23 months into the case, the magistrate found that CSB had
used reasonable efforts to prevent the continued removal of the children from their home. No
party moved to set aside the magistrate’s order. Two weeks later, CSB filed its second motion
for permanent custody. Mother and Father filed individual motions for legal custody.
{¶12} At the permanent custody hearing, the parties stipulated to CSB’s allegation that
the children had been in the temporary custody of the agency for 12 of the prior 22 consecutive
months. After finding that it was in the best interest of the children, the juvenile court placed 1-
L.R. and 2-L.R. in the permanent custody of CSB. The juvenile court further found that the
agency had used reasonable efforts to prevent the continued removal of the children from their
home. Mother and Father filed timely appeals in which they each raise two assignments of error.
This Court consolidates the parents’ assignments of error where they address the same issues to
facilitate review.
MOTHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
[CSB] OF [THE CHILDREN] WHEN THE AGENCY FAILED TO PROVIDE
REFERRALS TO ACCESSIBLE SERVICES, COMPLY WITH COURT
6
ORDERS, AND MAKE REASONABLE EFFORTS TO REUNIFY THE
FAMILY.
FATHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY OF
[THE CHILDREN] TO [CSB] WHEN THE AGENCY FAILED TO COMPLY
WITH COURT ORDERS AND PROVIDE REASONABLE EFFORTS TO
REUNIFY THE FAMILY.
{¶13} Mother and Father argue that the juvenile court erred by granting permanent
custody of the children to CSB, because the agency failed to use reasonable efforts to reunify the
children with their parents. This Court disagrees.
{¶14} Revised Code Section 2151.419 addresses when the juvenile court must
determine whether the child protection agency has made reasonable efforts towards reunification
of the children with their parents. This Court recently noted the well settled conclusion that “the
statute imposes no requirement for such a determination at the time of the permanent custody
hearing unless the agency has not established that reasonable efforts have been made prior to that
hearing.” (Internal quotations omitted.) In re J.W., 9th Dist. Summit Nos. 28966 and 28976,
2018-Ohio-3897, ¶ 6 (superseded in part on other grounds), quoting In re A.C.-B., 9th Dist.
Summit Nos. 28330 and 28349, 2017-Ohio-374, ¶ 22; see also In re C.F., 113 Ohio St. 3d 73,
2007-Ohio-1104, ¶ 41-43 (concluding that a reasonable efforts determination is necessary at a
permanent custody hearing only if the agency has not demonstrated its use of reasonable efforts
prior to that time).
{¶15} In this case, the juvenile court found that CSB had used reasonable efforts to
prevent the continued removal of the children from their home at the adjudicatory and initial
dispositional hearings. The trial court made findings at two subsequent review hearings that
7
CSB had used reasonable efforts to prevent the continued removal of the children from their
home. Although the magistrate later found, after the sunset dispositional hearing almost a year
after the initiation of the cases, that CSB had not used reasonable efforts to finalize a
permanency plan for the children, that finding was solely for purposes of the annual judicial
determination required to maintain Title IV-E funding eligibility for the children. Specifically,
the magistrate found that the caseworker had not been to the parents’ home for two to three
months, had not made any referrals for parenting education for Mother and Father, and had
delayed making referrals for the parents’ mental health assessments. In addition, the magistrate
found that the prior foster family had failed to take the children to medical appointments; that the
agency relocated the children out of county, making it difficult for Mother and Father to attend
appointments based on a lack of transportation; and that the bus passes provided by CSB were
ineffective to allow Mother and Father to travel outside of Summit County for appointments.
The magistrate then adopted the May 3, 2017 amended case plan. The juvenile court adopted the
magistrate’s findings and orders.
{¶16} A couple months later, after a hearing and consideration of post-hearing motions,
the juvenile court adopted the July 5, 2017 amended case plan with certain modifications set
forth earlier in this opinion. Thereafter, CSB withdrew its motion for permanent custody and
requested two six-month extensions of temporary custody to give Mother and Father time to
work on their most recent case plan objectives. At a review hearing five months later, the
magistrate issued an order finding that CSB had used reasonable efforts to prevent the continued
removal of the children from their home. Neither parent moved to set aside that order.
{¶17} CSB filed its second motion for permanent custody. Mother and Father each filed
motions for legal custody, with protective supervision if necessary. At another sunset hearing
8
held two years and one day after the agency filed its complaints, the magistrate again found that
CSB had used reasonable efforts. Neither parent filed objections to the magistrate’s decision,
and the juvenile court adopted the magistrate’s findings and orders.
{¶18} Notwithstanding the agency’s earlier failure to use reasonable efforts to finalize a
permanency plan, the juvenile court consistently found that CSB had used reasonable efforts to
prevent the continued removal of the children from their home. As neither parent disputed those
findings of the magistrate via motions to set aside or objections, Mother and Father have
forfeited their challenge to the agency’s use of reasonable efforts on appeal except for a claim of
plain error. See In re J.W., 2018-Ohio-3897, at ¶ 7, citing In re S.D., 9th Dist. Lorain Nos.
15CA010864 and 15CA010867, 2016-Ohio-1493, ¶ 25; see also Juv. R. 40(D)(3)(b)(iv). As
neither Father nor Mother have alleged plain error, this Court will not construct an argument on
his or her behalf. See In re N.C., 9th Dist. Summit Nos. 27116 and 27118, 2015-Ohio-1627, ¶
62, citing Juv.R. 40(D)(3)(b)(iv), App.R. 12(A)(2), and App.R. 16(A)(7). Furthermore, as
neither parent has provided the transcripts of the hearings at which the juvenile court made its
reasonable efforts determinations, we are constrained to presume regularity regarding those
determinations. See In re S.D. at ¶ 25, citing In re T.K., 9th Dist. Summit No. 24006, 2008-
Ohio-1687, ¶ 22.
{¶19} Moreover, at the permanent custody hearing, Mother and Father both stipulated to
a finding that the children had been in the temporary custody of CSB for at least 12 of the prior
22 months. Both parents asserted that they were merely challenging the agency’s assertion that
an award of permanent custody was in the best interest of the children.
{¶20} Revised Code Section 2151.413(D)(3)(b) expressly prohibits the agency from
moving for permanent custody on the basis that a child has been in the agency’s temporary
9
custody for 12 of 22 months if, when required to do so, the agency “has not provided the services
required by the case plan to the parents of the child or the child to ensure the safe return of the
child to the child’s home.” Accordingly, inherent in an agency’s “12 of 22” allegation is that it
has engaged in reasonable efforts towards reunification.
{¶21} In this case, CSB alleged as its sole first-prong basis for permanent custody that
1-L.R. and 2-L.R. had been in its temporary custody for at least 12 of the prior 22 months. There
is no dispute that CSB was not relieved of its duty to use reasonable efforts to facilitate
reunification of the children with Mother and Father. By stipulating to CSB’s “12 of 22”
allegation, Mother and Father necessarily recognized that the agency had used reasonable efforts
to prevent the continued removal of the children from their home. Compare In re H.S., 9th Dist.
Summit Nos. 28944 and 28948, 2018-Ohio-3360, ¶ 14-24 (where the parents did not stipulate to
a “12 of 22” finding and the evidence demonstrated that the agency had failed to use reasonable
efforts in support of reunification). Mother’s and Father’s first assignments of error are
overruled.
MOTHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT’S GRANT OF PERMANENT CUSTODY TO [CSB]
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FATHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
[CSB] AS IT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶22} Mother and Father argue that the juvenile court’s award of permanent custody of
the children to CSB was against the manifest weight of the evidence. This Court disagrees.
{¶23} 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
10
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.
{¶24} 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
Revised Code Section 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 Section 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).
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.
{¶25} Revised Code Section 2151.414(D) provides guidance regarding the best interest
determination. Subsection (D)(1) lists factors that the juvenile court must consider and weigh in
its determination. Those 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
11
and whether that can be achieved without a grant of permanent custody, and whether any of the
factors outlined in Section 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. Subsection (D)(2),
however, provides a checklist of circumstances, where the existence of all mandates a finding
that permanent custody is in the best interest of the children. Those circumstances include: one
or more Subsection (E) factors exist and the child cannot be placed with the parents within a
reasonable time, the child has been in agency custody for two years or longer and is no longer
eligible for temporary custody pursuant to Revised Code Section 2151.415, the child is ineligible
for a planned permanent living arrangement, and no relative or other interested third party is
seeking legal custody of the child. R.C. 2151.414(D)(2)(a)-(d).
{¶26} CSB alleged that permanent custody was in the best interest of 1-L.R. and 2-L.R.
pursuant to both Subsection (D)(1) and (2), and the juvenile court made findings as to both.
Because this Court concludes that the evidence demonstrated that an award of permanent
custody was in the children’s best interest pursuant to consideration of the factors listed in
Section 2151.414(D)(1), we decline to consider the applicability of Section 2151.414(D)(2) to
this case.
{¶27} To the extent that Mother and Father continue to argue that CSB failed to use
reasonable efforts to facilitate reunification, this Court declines to address that issue beyond our
discussion relating to the parents’ first assignments of error. We further disagree with the
parents’ assertion that they had only five months in which to complete their case plan objectives.
Although the agency filed its second motion for permanent custody five months after the juvenile
court removed the then-current caseworker and added additional requirements to the case plan it
adopted a month earlier for both CSB and the parents, the permanent custody hearing was not
12
held for another five-and-a-half months. Accordingly, Mother and Father had almost eleven
months in which to work to complete their current objectives.
{¶28} As noted above, Mother and Father stipulated that 1-L.R. and 2-L.R. had been in
the temporary custody of CSB for at least 12 of the prior 22 months when the agency filed its
motion for permanent custody. Accordingly, they limit their challenge to the juvenile court’s
determination that CSB satisfied the second prong of the permanent custody test. Although
neither parent cites any best interest factors, this Court reviews the juvenile court’s determination
that an award of permanent custody was in the children’s best interest within the proper legal
context.
Custodial history of the children
{¶29} 1-L.R. was not yet two-and-a-half years old when he was removed from his
parents’ home. During the time the child was in Mother’s and Father’s custody, he spent a lot of
time in the hospital because of complications due to prematurity and his many medical issues. 2-
L.R. was never in her parents’ custody, because CSB received a springing order of emergency
temporary custody within days of the child’s birth. Upon her ultimate release from the hospital
after birth, the child was placed in foster care. Although the children have been in three different
foster homes during the case, they had been residing in the third home for 21 months at the time
of the permanent custody hearing.
Interactions and interrelationships of the children
{¶30} Reports indicated that the children have a bond with Mother and Father, although
1-L.R. appeared more closely connected with his parents than 2-L.R. did. The children’s
occupational therapist from Stark County Board of Developmental Disabilities met twice with
Mother and Father during sessions with the children. Although Mother was receptive to
13
instruction regarding using age-appropriate toys and activities with the children, she did not take
any initiative to extend the play concepts or her interactions with the children during the second
session. Mother confined her activities to merely imitating the therapist. Father confined his
interactions during the session to 1-L.R. and did not attempt to engage with 2-L.R.
{¶31} According to the foster mother, 2-L.R. becomes clingy and cries when it is time
for visitation. While 1-L.R. is always excited to see Mother and Father, the child appears “on
edge” after visits, requiring a lot of redirection and reassurance from his foster mother. The
child’s teacher noticed that 1-L.R. is sometimes upset and hits and yells after visits with Mother
and Father.
{¶32} The caseworker expressed concerns regarding the parents’ interactions with the
children. Mother and Father do not use age-appropriate or developmentally-appropriate toys
with the children. Repeatedly, and despite the caseworker’s guidance, Father would merely give
his keys to 1-L.R. to keep the child occupied. While Mother would interact with the children,
Father spent the bulk of his time at visitations sitting on the couch.
{¶33} The children have been placed together throughout the case. They are both happy
and well acclimated to their environment in foster care.
Wishes of the children
{¶34} The children are too young to express their wishes. The guardian ad litem opined
that permanent custody would be in the best interest of the children.
The children’s need for permanence
{¶35} Both children are extremely medically fragile and developmentally delayed.
Some conditions arose as a result of the children’s premature births. All conditions require
regular appointments and ongoing treatment and monitoring. Both children are on modified
14
diets with food restrictions and require the ongoing care of a dietician. 1-L.R. and 2-L.R. are too
young to meet any of their own basic and special needs and require the consistent assistance of
committed caregivers who understand the significance and severity of their conditions.
{¶36} 1-L.R. suffers from bronchopulmonary dysplasia (a chronic lung disease), asthma,
swallowing issues, pulmonary hypertension, chronic kidney disease, autism, epilepsy, and vision
problems. He wears braces on his legs. The braces are fitted to the child’s body and must be
positioned correctly to work effectively and maintain their physical integrity. The child is
dependent on a G-tube for all nutrition, fluids, and medication intake. He may not take any
liquids or feedings by mouth. 1-L.R. receives three one-hour feedings each day and a 10-hour
continuous feeding overnight. It is critical that the child consistently receive feedings at the
prescribed rate and volume to prevent the risk of dehydration which exacerbates his kidney
dysfunction. At best, the child’s kidneys function at a 50-60% efficiency rate even with
dedicated commitment to his strict feeding regimen, so diversion from those requirements leads
to medical distress and hospitalization. At the age of four-and-a-half years, 1-L.R.’s kidneys are
the size of a newborn’s. The child’s asthma is severe. He requires daily treatments, including an
inhaled steroid and various allergy medications, plus an Albuterol inhaler as needed. 1-L.R.
requires an environment free from irritants, including cigarette smoke and residue, scented
candles, and air fresheners, to prevent flare ups. In addition to routine medical care, 1-L.R. sees
specialists in nephrology, gastroenterology, developmental pediatrics, developmental
psychology, neurology, and ophthalmology.
{¶37} 2-L.R. suffers from allergies, gastrointestinal intolerances, respiratory issues,
swallowing issues, and cerebral palsy. She also receives some nutrition and medications via a G-
tube, although she is in the process of weaning from tube feedings. She requires an extensive
15
number of medications, including gastrointestinal medications, an inhaler, and an EpiPen in case
of emergency. Like her brother, 2-L.R. requires an environment free from respiratory irritants.
All food the child takes by mouth must be pureed to the proper consistency to prevent choking
and aspiration. She too wears braces on her legs. In addition to normal pediatric care, the child
has regular appointments with specialists in developmental pediatrics, physiatry,
gastroenterology, and immunology.
{¶38} A psychology assistant (“Mr. S.”) at Summit Psychological Associates, whom the
trial court qualified as an expert regarding parenting evaluations, administered multi-day
assessments of both Mother and Father. The assessments included personality tests, intelligence
tests, interviews, and self-reporting. Mr. S. identified multiple issues which impacted both
parents’ abilities to adequately parent the children.
{¶39} Mr. S. opined that Father presented as immature, self-indulgent, manipulative,
and chronically maladjusted. Father admitted to a history of suicidal ideations, as well as
homicidal ideations when angered or provoked. He also reported that he suffers from
hypertension and diabetes, but that he has not taken medications for those conditions since 2012.
He was adamant that he would not take medications for mental health issues if prescribed.
Based on the evaluation, Mr. S. diagnosed Father with unspecified personality disorder with
antisocial traits and mild alcohol disorder. He further provisionally diagnosed Father with
bipolar II disorder and moderate cannabis use disorder in sustained remission. Mr. S. opined that
Father requires mental health treatment to address his many issues, particularly impulse control.
{¶40} Father demonstrated a significant lack of parenting knowledge, as well as an
unawareness of his deficits in caring for his children. He was unable to identify potential
medical conditions that would require treatment, developmental stages of childhood, and
16
community resources he could access to obtain information or assistance. Specific to his
children, Father acknowledged that 1-L.R. has medical issues, but he believed that the child’s
medications had been discontinued. Father denied that 2-L.R. required specialized care and
treatment. When questioned about discipline, Father asserted that he would not discipline the
children because they have no behavioral issues. Father demonstrated a lack of understanding
regarding CSB’s involvement with the family. Father believed that the agency took the children
merely because 1-L.R. had too many medical appointments.
{¶41} Mr. S. recommended that Father quit smoking, attend all of the children’s medical
appointments, and obtain a psychiatric evaluation, substance abuse treatment, and parenting
education including instruction on how to care for the children’s medical needs. Were Father to
fail to follow through with those recommendations, Mr. S. opined that the children would be at
risk for harm from neglect in Father’s care.
{¶42} Mr. S. described Mother as an individual who was attempting to portray herself
very favorably during her parenting evaluation, to the extent that she denied problems that
virtually every person acknowledges and experiences. She too was unable to identify common
childhood illnesses, signs and symptoms of medical emergencies, childhood developmental
milestones, and community resources to address concerns. Mother knew that 1-L.R. has a G-
tube for feeding but was unable to describe the child’s medical issues and treatments. For
example, she did not understand that 1-L.R. requires regular weight checks and maintenance,
that the child has asthma and uses an inhaler, and that smoking around the child is
contraindicated. Mother was unable to identify the symptoms of kidney disease. She asserted
that she would let 1-L.R. decide when and what to eat. Mother was aware that 2-L.R. ate every
three to four hours, but she did not acknowledge any other issues for that child.
17
{¶43} Mr. S. diagnosed Mother with borderline intellectual functioning and an
unspecified personality disorder based on her self-centered behaviors and lack of regard for the
children’s medical needs. He recommended that Mother quit smoking, attend parenting classes
including one-on-one instruction for caring for the children’s specialized needs, and attend all
medical appointments for the children.
{¶44} Mother and Father received training regarding G-tube feedings when 1-L.R. was
released to their care after initial implementation of tube feedings. In addition, they were
notified of every medical appointment for each child, and Mother had access to MyChart, an
online service to access appointment information for the children. In January 2018, CSB
contracted with a registered nurse/certified pediatric nurse practitioner to provide one-on-one
training for Mother and Father to properly conduct G-tube feedings for both children. Despite
these opportunities and trainings, Mother and Father were not able to demonstrate the ability or
understanding of how to properly, consistently, and safely administer the children’s G-tube
feedings. The nurse testified that Mother understood the need for the G-tubes; skin care around
the button sites; how to prime the pump, hook it up, monitor, disconnect, and trouble shoot minor
problems like a kinked tube. Because of the invasive nature of replacing buttons in the
children’s stomachs, Mother and Father only practiced on a doll. The nurse was satisfied with
the parents’ foundational knowledge, but she admitted that everything was already prepared for
the parents to feed the children at visits. The nurse could not say that Mother and Father would
be able to prepare the children’s formulas, medications, and equipment for use away from a
controlled environment.
{¶45} The children are authorized to receive new buttons quarterly. The buttons must
be turned to unlock them to accomplish feedings. They are sturdy mechanisms and designed to
18
last up to six months. Nevertheless, 1-L.R.’s button has had to be replaced frequently after
feedings by Mother and Father because of excessive leaking due to hyper-turning of the lock.
Mother and Father denied noticing any problems with the children’s buttons. Leaking buttons
are cause for serious concerns for the health of the children because they receive medications via
G-tube and their fluid/dietary needs are so strict. Variances in food and liquids intake are
particularly problematic for 1-L.R. who will suffer significant problems due to his kidney
dysfunction.
{¶46} The second caseworker worked with Mother and Father for 11 months prior to the
permanent custody hearing. She attended every medical appointment for the children (11 for 1-
L.R.; eight for 2-L.R.) during that time. Mother only attended approximately half of the
appointments, while Father attended fewer than that. Important and current information was
presented at every appointment. On some occasions when Mother and Father appeared for
medical appointments, they chose to remain in the lobby area to take or make phone calls instead
of attending the appointment where they could ask questions and receive important information.
{¶47} Mother and Father maintained consistent housing throughout the case, although
there were issues for concern. The refrigerator had not been working for a couple months at the
time of the hearing, the hot water heater was broken, and the apartment reeked of body odor,
cigarette smoke, and air fresheners used to try to mask the odors. Mother and Father repeatedly
declined to participate in smoking cessation classes despite the grievous effects of second- and
third-hand smoke on their asthmatic children. So bad was the situation that 1-L.R. would cough,
sneeze, and require removal to a well ventilated area after merely hugging Father whose clothes
had absorbed the smell of cigarettes. Routinely after visits with Mother and Father, the children
required the use of inhalers because of their exposure to respiratory irritants.
19
{¶48} Although there exist no specialized parenting classes to address the particular
needs of these medically fragile children, Mother and Father had the opportunity to learn how to
care for the children by attending their medical appointments. In addition, they received one-on-
one training from a nurse trained in G-tube feedings. They were trained and assisted during
visits to properly put on the children’s leg braces. Moreover, Mother and Father received the
services of Fast Track at two separate points during the case. Their case manager from Fast
Track met with Mother and Father in their home based on two separate referrals. Although the
program lasts three months, the first case manager worked with Mother and Father for a full year
based on their cooperation. The second case manager worked with the parents for three months
but had to terminate them unsuccessfully for failure to keep appointments. Although Mother and
Father made some progress, much of the time was spent addressing Mother’s anxiety and both
parents’ anger due to the agency’s involvement. Accordingly, the Fast Track case manager was
unable to focus on helping the parents to work on case plan compliance.
{¶49} The parents continually failed to make appointments with providers. After the
Fast Track case manager handed Father a phone to schedule an appointment with Summit
Psychological, Father overslept and missed the appointment. Although he rescheduled, he
missed the subsequent appointment too. To help Mother and Father understand the medical
needs of the children, the case manager directed them to make note cards listing the children’s
medications and their purposes. Mother and Father never did that. The guardian ad litem
provided Mother and Father with a notebook to list their questions and concerns for medical
professionals and to note information during visitations, e.g., amounts of the children’s feedings
and whether diapers were changed. The parents failed to use the notebook.
20
{¶50} The guardian ad litem reported that Mother and Father were not appropriate
caregivers for the children. The family home was cluttered and smelled excessively of body
odor and cigarette smoke. A full ashtray was observed on a table during the guardian’s visit to
the home a week earlier. The refrigerator and hot water heater were not working. Despite a
surplus of income to meet their basic needs, Mother and Father claimed to be unable to pay for
services relevant to the care of their children. Furthermore, the agency established that although
Mother and Father had a surplus of $800 per month after paying bills and buying necessities,
Mother and Father asserted that $20 weekly parenting education classes were cost prohibitive.
{¶51} Of particular concern to the guardian ad litem was Mother’s and Father’s lack of
basic understanding regarding the needs of the children. Despite repeated assistance, Mother and
Father frequently put the children’s leg braces on the wrong legs and upside down. The parents
have overfed 1-L.R. at visits despite the importance that the child receive prescribed measured
quantities during feedings. Mother admitted to feeding 1-L.R. sherbet and lemonade by mouth
even though she knew the child was not allowed to take any food orally. The parents would
rarely engage in a dialogue with medical professionals. When questioned about the children’s
care, Mother and Father would assert that they understood, but then they could not explain
important medical terms and care instructions. The guardian ad litem reported that the parents’
pretending to understand the children’s special needs put 1-L.R. and 2-L.R. at significant risk of
neglect and harm. The guardian ad litem asserted that the best interest of the children required
that they be placed in the permanent custody of CSB to ensure that their special needs would be
met consistently and safely.
{¶52} Because of the numerous special needs of the children, they require an
environment where their needs will be met on a consistent basis. 1-L.R. and 2-L.R. require
21
caregivers who understand their medical conditions and needs and are willing and able to attend
all appointments, maintain an irritant-free environment, and pay close attention to the preparation
and administration of their medications and feedings.
Applicability of Revised Code Section 2151.414(E)(7)-(11) factors
{¶53} No factors listed in Section 2151.414(E)(7)-(11) are applicable to this case.
Conclusion
{¶54} Based on a review of the record, this is not the exceptional case where the finder
of fact clearly lost its way and created a manifest miscarriage of justice in awarding permanent
custody of 1-L.R. and 2-L.R. to CSB. The evidence demonstrates that the children are medically
fragile and require consistent specialized care to meet their needs and ensure their health, safety,
and welfare. Despite the intervention of multiple service providers, Mother and Father have not
developed an understanding regarding the significance of the children’s medical conditions and
treatments. Minor deviations from prescribed feedings can easily result in the need for
hospitalization. Attendance at all medical appointments is necessary to ensure that the children’s
current needs are being met. Mother and Father have failed to attend many medical
appointments, claiming to have overslept or not being aware of appointment times despite access
to MyChart. Although they could complete G-tube feedings in a controlled environment where
everything had been prepared for them, Mother and Father demonstrated no understanding of
what was required to prepare the children’s food and medications themselves. Frequently, the
children’s G-tube buttons leaked after feedings by the parents. Mother and Father overfed 1-
L.R. and gave him food by mouth, despite knowing that that was proscribed. Not only was the
family home rife with respiratory irritants that would send the children into distress, Mother and
Father did not ensure that they wore irritant-free clothing during visitations. While no party
22
disputed that Mother and Father love the children, they demonstrated no understanding or ability
to keep the children healthy. Under the circumstances, the juvenile court’s finding that an award
of permanent custody of 1-L.R. and 2-L.R. was in the best interest of the children was not
against the manifest weight of the evidence. Accordingly, Mother’s and Father’s second
assignments of error are overruled.
III.
{¶55} Mother’s and Father’s assignments of error are overruled. The judgment of the
Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JENNIFER HENSAL
FOR THE COURT
23
CALLAHAN, P. J.
CARR, J.
CONCUR.
APPEARANCES:
PAMELA A. HAWKINS, Attorney at Law, for Appellant.
MADELINE LEPIDI-CARINO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
CHRISTINE BOLLMAN, Attorney for the Guardian ad Litem.