In re M.M. , 2022 Ohio 1582 ( 2022 )

[Cite as In re M.M., 2022-Ohio-1582.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: M.M. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 2021CA00156
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2020 JCV00306
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 11, 2022
APPEARANCES:
For - Appellee For - Appellant
BRANDON J. WALTENBAUGH TY GRAHAM
Stark County JFS 4450 Belden Village St. N.W.
402 2nd St. SE Suite 703
Canton, OH 44702 Canton, OH 44718
[Cite as In re M.M., 2022-Ohio-1582.]
Gwin, P.J.
{¶1} Appellant-mother, R.M. [“Mother”] appeals the December 6, 2021 Judgment
Entry of the Stark County Court of Common Pleas, Family Court Division, which
terminated her parental rights with respect to her minor child M.M. (b. Mar 24, 2020) and
granted permanent custody of the child to appellee, Stark County Department of Jobs
and Family Services (”SCDJFS”).1
Facts and Procedural History
{¶2} Mother2 is the biological mother of M.M. b. Mar. 24, 2020. The case
involving M.M. was commenced March 26, 2020 with the filing of a complaint alleging
dependency and/or neglect. On May 20, 2020, the trial court found M.M. to be a
dependent child and placed him into the temporary custody of SCDJFS.
{¶3} The allegations of the complaint concerned Mother’s lengthy history with
children services agencies across the country, concerns about her criminal history,
parenting practices, and mental health, as well as Mother having a pending case in
Tuscarawas County regarding three other children. 1T. at 53.3
{¶4} Case plan objectives for Mother included obtain a psychological evaluation,
participate in Dialectical Behavior Therapy (“DBT”), anger management, Goodwill
Parenting, individual counseling, and have a medication consultation. 1T. at 57.
{¶5} On December 23, 2020, Mother filed a motion for immediate review. 1T. at
55. Specifically, Mother wanted to change counselors, change the provider of her
1 For the Father’s appeal see, In re M.M., 5th District Stark No. 2021CA00159. The instant appeal
focuses upon those facts relevant to Mother’s efforts to challenge the motion for permanent custody.
2 See, OH ST Supp. R. 44(H) and 45(D) concerning the use of personal identifiers.
3 For clarity, the transcript of the Permanent Custody hearing that took place in the trial court on
August 5, 2021 will be referred to as “__T.__, signifying the volume and the page number.
Stark County, Case No. 2021CA00156 3
parenting program, and/or because Goodwill Parenting was required by SCDJFS as part
of her case plan to re-enroll in that program. 1T. at 24; 36. The first time that Mother had
attended the Goodwill program a mutual decision was made to end the classes because
Mother was pregnant with M.M. 1T. at 36. SCDJFS only paid the program for the days
Mother attended. Id. SCDJFS only paid Mother to go to Goodwill once on a full-time basis
and then a short time before the parties agreed to end Mother’s participation due to her
pregnancy. Id. SCDJFS refused to pay for Mother to attend Goodwill Parenting again
even though it was a requirement of the Case Plan, and required that Mother pay for the
program herself. 1T. at 36. A hearing took place on January 6, 2021, wherein the trial
court overruled Mother’s requests. Specifically, the trial court found that M o t h e r had
already changed service providers multiple times throughout the case including, but
not limited to, counselors, psychological assessors, and parenting class providers, and
that more changes were not warranted. Judgement Entry, filed Jan. 7, 2021. (Docket
No. 64).
{¶6} On February 9, 2021, SCDJFS filed a motion seeking permanent custody
of the child. Mother filed a Motion on April 15, 2021 asking the Court to return the child
or in the alterative, extend temporary custody. (Docket No. 95). On April 15, 2021,
Mother filed a Motion to grant custody to her sister Jimilah Lundy. (Docket No. 94).
Mother’s motions were set for hearing at the same time as the hearing on the permanent
custody motion. Findings of Fact and Conclusions of Law, filed Dec. 6, 2021 at 33.
{¶7} The Father of the child filed a Motion requesting that this matter be
transferred to Tuscarawas County. The Court granted that Motion with an Order filed on
Stark County, Case No. 2021CA00156 4
April 19, 2021. However, on May 12, 2021, the Court vacated that Entry. Permanent
custody proceedings were set for August 5, 2021.
{¶8} The following evidence was presented during the hearing.
Mother’s case plan.
{¶9} The initial concerns leading to the Tuscarawas County Children Service's
involvement with Mother’s three other children were Mother’s criminal history,
homelessness, mental health, and Mother’s medication compliance. 1T. at 8-9. On
August 28, 2019, Mother’s three children were removed from her custody and placed in
the temporary custody of Tuscarawas County Children Services. 1T. at 11. Tuscarawas
County implemented a case plan consisting of a psychological evaluation conducted by
Dr. Aimee Thomas at Lighthouse, Goodwill Parenting classes, stable housing and
income, individual counseling, a substance abuse assessment, medication compliance,
and no criminal conduct. Id. at 15.
{¶10} The parties agreed that Mother secured stable housing and reliable income
through Social Security and has consistently maintained both through the course of the
case. 1T. at 49; 51; 89.
{¶11} Mother successfully completed her drug assessment and treatment. 1T. at
51; Findings of Fact and Conclusions of Law, filed Dec. 6, 2021 at 16.
Mother’s mental health evaluation
{¶12} Dr. Aimee Thomas a psychologist and Licensed Professional Clinical
Counselor for Lighthouse Family Center met with Mother and completed Mother’s
Stark County, Case No. 2021CA00156 5
parenting evaluation report on January 13, 2020. 1T. at 85; Exhibit 44; Findings of Fact
and Conclusions of Law, filed Dec. 6, 2021 at 43.
{¶13} Mother reported to Dr. Thomas that Mother has nine children, none of which
is in Mother’s care. 1T. at 86. The children either were removed from Mother’s custody
by children services agencies or were placed with family members.
{¶14} Mother reported that the Director of Tuscarawas County Family Services
was a demon. 1T. at 87. Mother showed Dr. Thomas a picture of the director dressed in
a Halloween costume, and reported that she was sure the Director was trafficking in
children. The director of Tuscarawas County Job and Family Services obtained a civil
protection order against Mother during the pendency of the case in Tuscarawas County.
(See SCDJFS Exhibit 1).
{¶15} Dr. Thomas noted that Mother had been exposed to “exceptionally poor
parental role modeling” which has significantly affected Mother’s mental health. 1T. at
88. Dr. Thomas testified that Mother disclosed significant criminal history, including
selling drugs, prostitution, and ten domestic violence convictions. Dr. Thomas testified
that Mother was not receptive to using medication to address her mental health issues.
{¶16} Dr. Thomas diagnosed Mother with bipolar disorder with psychosis, post-
traumatic stress disorder, cannabis use disorder in remission, stimulant use disorder in
remission, other specified personality disorder with borderline paranoia and anti- social
4 Actually, Mother completed two (2) assessments in this case. Dr. Thomas completed the first
assessment. This first assessment was a parenting assessment. (SCDJFS Exhibit 4). Dr. Dean completed
the second assessment. The second assessment, which was a psychological assessment, occurred at
Mother's request. (SCDJFS Exhibit 2) Dr. Dean did not testify during the permanent custody proceedings.
Both assessments resulted in similar conclusions for Mother. Findings of Fact and Conclusions of Law,
filed Dec. 6, 2021 at 43.
Stark County, Case No. 2021CA00156 6
traits. 1T. at 92. Dr. Thomas opined that unless Mother is stable and taking care of
herself, she will be unable to meet the child’s needs. 1T. at 93.
{¶17} Dr. Thomas recommended,
Mother, participate in comprehensive mental health treatment
services. Um, specifically dialectical behavioral therapy um that focused on
coping skills. It was evident that she needed additional support with
managing her emotions. I recommended that she participate in a
psychiatric evaluation. Um, in my opinion based on the severity of her
mental health symptoms including the paranoid delusions, she really
needed medication to stabilize her. Um, I recommended that she submit
urine screens due to her historic use of marijuana and cocaine to ensure
that she is sober. Um, there were concerns that she had money um that it
appeared in excess of Social Security benefits. So I recommended the
agency Tuscarawas County ascertain how she is able to um provide for the
family with this extra money. I recommended she participate in anger
management treatment. Um, I recommended that before she participates
in Goodwill Parenting that she is stabilize in psychotropic medications.
1T. at 93. Dr. Thomas opined that Mother’s frequent attempts to change mental health
counselors,
Well it reflects this desire to have people tell her what she wants to
hear versus what she needs to hear. And had the first one or two therapists
perhaps held her accountable and encouraged her with psychotropic
treatment, perhaps we wouldn't be here, perhaps she could have got the
Stark County, Case No. 2021CA00156 7
help she needed but in my opinion the therapy was only, would have
minimal use until she stabilized on medications.
1T. at 95.
Mother’s interaction with the child.
{¶18} Jennifer Grice the ongoing caseworker for SCDJFS testified that Mother
moved to Stark County and gave birth to M.M. during the case with Tuscarawas County
Children Services regarding other children.
{¶19} Ms. Grice testified that Mother would often bring food to her visits with M.M.
that was too big and created a potential choking hazard. 1T. at 65. Mother would yank
the child on the arms to pick the child up. 1T. at 65-66. Further, Mother would become
distracted and not notice safety issues. Id. at 66.
Mother’s counseling
{¶20} Mother has engaged in individual counseling with Mark Welty in September
of 2019; Anne Myers at Village Network from May 2020 until November 2020; Dr. Baker
in Cincinnati from November 2020 to February 2021; Rebecca Watkins at Healing Place
from February 2021 to March 2021; and Ms. Logan from March 2021 to present. Father
was in counseling with David Marsh in September 2019 and at Village Network from May
2020 to November 2020. 1T. at 17-19.
{¶21} Mother reported that Anne Meyers was “an amateur and that she didn’t
know what she was doing.” 1T. at 60. Mother did not sign releases for SCDJFS to receive
information from her mental health counselors. 1T. at 63.
{¶22} Anne Myers testified that there was progress with the parties in couples'
therapy. 1T. at 118. However, Ms. Myers testified that Mother and Father did not reach
Stark County, Case No. 2021CA00156 8
any of their individual therapeutic goals. 1T. at 114-117. Ms. Myers testified that the
Mother and the Father did not reach any goals in couples counseling. Id. at 117.
{¶23} Rebecca Watkins from The Healing Place has been a counselor for thirteen
years and has been seeing Mother for 15 weeks. 2T. at 200-201. Mrs. Watkins provides
the Mother with DBT therapy that was recommended by Dr. Thomas. Id. at 200. Mrs.
Watkins testified that she believes Mother is making progress with the DBT counseling.
2T. at 201-202.
Relative Placement
{¶24} Jimilah Lundy, Mother’s sister, testified that she had contact with both the
Tuscarawas County Children Services and the SCDJFS. 1T. at 187. Ms. Lundy is
employed with the IRS and resides in a two-bedroom apartment located in Bartlett,
Tennessee. Id. at 184-185. She testified that she has no criminal history. She further
explained that she had one of her children at the age of fourteen and the other at the age
of fifteen. She informed the court that children services in Nevada became involved when
she had her children due to her age when she became a mother, but she raised both of
her children to the age of adulthood. Ms. Lundy testified that she was willing to take
custody of M.M. and follow any orders the court deems necessary. She testified that she
spoke with the SCDJFS caseworker about her desire to take custody of M.M., but the
caseworker never got back to her as she had promised.
{¶25} Jamie Grunder testified that she never spoke to Ms. Lundy, and never
considered her for placement of M.M. 1T. at 32; 41-42.
Stark County, Case No. 2021CA00156 9
Recommendations
{¶26} On July 29, 2021, the Guardian ad Litem for the child filed her final
report, recommending that SCDJFS be granted permanent custody of the child.
{¶27} Ms. Grice testified that Mother had not made progress in her case plan,
and that the child would be at imminent risk of harm if returned to Mother’s custody.
Ms. Grice testified that she did not believe an extension of the case would change her
recommendation that permanent custody be granted. 1T. at 73.
Entry granting permanent custody
{¶28} The trial court overruled Mother’s motion to extend temporary custody and
Mother’s motion for legal custody to the maternal Aunt Jimilah Lundy.
{¶29} The trial court found Mother and Father have had parental rights
involuntarily terminated with respect to a sibling of M.M. pursuant to section 2151.414 or
section or section 2151.353 or 2151.415 of the Revised Code, and both Mother and
Father have failed to provide clear and convincing evidence to prove that, notwithstanding
the prior termination, Mother and/or Father can provide a legally secure permanent
placement and adequate care for the health, welfare, and safety of M.M.
{¶30} The Court found by clear and convincing evidence that the child cannot be
placed with either parent within a reasonable period, and should not be placed with such
parents pursuant to R.C. 2151.414 specifically citing the parents’ failure to remedy the
problems that initially caused the child to be placed outside the home.
{¶31} The trial court further found that despite the minimal bond that may have
developed between any parent and M.M., the harm caused by severing the bond with the
parents is outweighed by the benefits of permanency in the child's life. The trial court
Stark County, Case No. 2021CA00156 10
concluded it is in the best interest of M.M. to grant Permanent Custody to SCDJFS for
purposes of adoption. M.M. deserves to be in a stable, loving environment.
Assignments of Error
{¶32} Mother appeals raising two Assignments of Error,
{¶33} “I. THE TRIAL COURT'S JUDGMENT THAT M.M. CANNOT BE PLACED
WITH APPELLANT WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶34} “II. THE TRIAL COURT'S JUDGMENT THAT THE BEST INTERESTS OF
THE MINOR CHILD WOULD BE SERVED BY GRANTING PERMANENT CUSTODY
WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
I & II
Standard of Appellate Review
{¶35} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody,
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's
rights has been described as, “* * * the family law equivalent to the death penalty in a
criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id. An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1).
Stark County, Case No. 2021CA00156 11
{¶36} The Ohio Supreme Court has delineated our standard of review as follows,
“clear and convincing evidence” is “[t]he measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23 (1986). In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118(1954), the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the
impression which the testimony of the witnesses makes upon the trier of
facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added). A court of appeals will affirm the trial court's
findings “if the record contains competent, credible evidence by which the court could
have formed a firm belief or conviction that the essential statutory elements for a
Stark County, Case No. 2021CA00156 12
termination of parental rights have been established.” In re Adkins, 5th Dist. Nos.
2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.
Requirements for Permanent Custody Awards
{¶37} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶38} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, 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, or 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 if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, 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;
Stark County, Case No. 2021CA00156 13
(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; or
(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, or 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 and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶39} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
Parental Placement within a Reasonable Time– R.C. 2151.414(B)(1)(a).
{¶40} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed with
the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a finding
under R.C. 2151.414(E)(1)-(15), the court shall determine the children cannot or should
not be placed with the parent. A trial court may base its decision that a child cannot be
placed with a parent within a reasonable time or should not be placed with a parent upon
Stark County, Case No. 2021CA00156 14
the existence of any one of the R.C. 2151.414(E) factors. The existence of one factor
alone will support a finding that the child cannot be placed with the parent within a
reasonable time. See In re William S., 75 Ohio St.3d 95, 1996–Ohio–182, 661 N.E.2d
738; In re Hurlow, 4th Dist. Gallia No. 98 CA 6, 1997 WL 701328 (Sept. 21, 1998); In re
Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr. 10, 1991).
{¶41} R.C. 2151.414(E) sets forth factors a trial court is to consider in determining
whether a child cannot be placed with either parent within a reasonable period of time or
should not be placed with the parents. Specifically, Section (E) provides, in pertinent part,
as follows:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code 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:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
Stark County, Case No. 2021CA00156 15
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for changing parental conduct to allow them to resume and
maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated, within
one year after the court holds the hearing pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code;
***
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section 2151.353
or 2151.415 of the Revised Code, or under an existing or former law of this
state, any other state, or the United States that is substantially equivalent
to those sections, and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination, the parent can
Stark County, Case No. 2021CA00156 16
provide a legally secure permanent placement and adequate care for the
health, welfare, and safety of the child.
***
(16) Any other factor the court considers relevant.
{¶42} As set forth above, the trial court’s findings are based upon competent
credible evidence. The record includes the recommendation of the guardian ad litem for
the child, and the testimony of the witnesses at trial. The trial court was in the best position
to determine the credibility of the witnesses.
{¶43} In the instant case, the trial court did not explicitly cite to a single factor in
R.C. 2151.414(E). However, the detailed findings in the December 6, 2021 Judgment
Entry and the entire record in this matter make it apparent the trial court relied on several
of the factors in R.C. 2151.414(E), including R.C. 2151.414(E)(1), failure to remedy
conditions and R.C. 2151.414(E)(2), chronic mental illness or intellectual disability. See,
In re B.W., 5th Dist. Tuscarawas No. 2016 AP 09 0045, 2017-Ohio-605, ¶ 39, appeal
not allowed, 149 Ohio St.3d 1409.
{¶44} The trial court noted Mother’s severe mental health concerns, Mother’s
refusal to seek professional help directed at mitigating those problems, Mother’s refusal to
accept medication even though medical professionals have deemed it necessary, and
Mother’s constant changing of mental health professionals demonstrate Mother’s
significant cognitive deficits and their effect on her ability to understand her own needs
and those of her child. The trial court additionally noted that Mother has lost custody of
nine other children. Despite offering numerous services, Mother was unable or unwilling
to mitigate the concerns that led to the child’s removal.
Stark County, Case No. 2021CA00156 17
{¶45} A parent’s successful completion of the terms of a case plan is not
dispositive on the issue of reunification. The ultimate question under R.C. 2151.414(A)(1)
is whether the parent has substantially remedied the conditions that caused the child’s
removal. In re Shchigelski, 11th Dist. Geauga No. 99–G–2241, 2000 WL 1568388(Oct.
20, 2000); In re McKenzie, 9th Dist. Wayne No. 95CA0015, 1995 WL 608285(Oct. 18,
1995). 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. Hence, the courts have held that the successful
completion of case plan requirements does not preclude a grant of permanent custody to
a social services agency. In re J.L., 8th Dist. No. 84368, 2004–Ohio–6024, ¶ 20; In re
Mraz, 12th Dist. Nos. CA2002–05–011, CA2002–07–014, 2002–Ohio–7278. In the case
of In re: Summerfield, 5th Dist. Stark No. 2005CA00139, 2005-Ohio-5523, this Court
found where, despite marginal compliance with some aspects of the case plan, the exact
problems that led to the initial removal remained in existence, a court does not err in
finding the child cannot be placed with the parent within a reasonable time.
{¶46} The evidence demonstrated the very little successful efforts Mother had
made on the case plan. On that point, the evidence demonstrates that any improvement
that Mother has made in her life is tentative and, perhaps, temporary, and that she is at
risk of relapse. The trial court found that, regardless of Mother’s compliance with aspects
of her case plan, she was still not able to be a successful parent to this child.
{¶47} We find there is competent and credible evidence to support the trial court’s
determination that the child cannot be placed with Mother within a reasonable time or
should not be placed with Mother.
Stark County, Case No. 2021CA00156 18
Reasonable Efforts
{¶48} Mother further contends the trial court abused its discretion in finding
SCDJFS made reasonable efforts to reunify the child with Mother.
{¶49} The Supreme Court of Ohio in In re C.F., 113 Ohio St. 3d 73, 78, 862 N.E.
2d 816, 821(2007) noted,
[N]o one section of the Revised Code addresses the concept of
reasonable efforts. Overall, Ohio’s child-welfare laws are designed to care
for and protect children, ‘whenever possible, in a family environment,
separating the child from the child’s parents only when necessary for the
child’s welfare or in the interests of public safety.’ R.C. 2151. 01(A). To that
end, various sections of the Revised Code refer to the agency’s duty to
make reasonable efforts to preserve or reunify the family unit. For example,
R.C. 2151. 412 requires the agency to prepare and maintain a case plan for
children in temporary custody with the goal ‘to eliminate with all due speed
the need for the out-of-home placement so that the child can safely return
home.’ Under R.C. 2151.413(D)(3)(b), an agency may not file for
permanent custody under R.C. 2151. 413(D) - the ‘12 months out of 22 rule’-
‘[i]f reasonable efforts to return the child to the child’s home are required
under section 2151. 419’ and the agency has not provided the services
required by the case plan.
{¶50} A “reasonable effort” is “* * * an honest, purposeful effort, free of malice and
the design to defraud or to seek an unconscionable advantage.” In re Weaver, 79 Ohio
App.3d 59, 63, 606 N.E.2d 1011(12th Dist. 1992). The issue is not whether there was
Stark County, Case No. 2021CA00156 19
anything more the agency could have done, but whether the agency’s case planning and
efforts were reasonable and diligent under the circumstances of the case. In re J.D., 3rd
Dist. Hancock Nos. 5-10-34, 2011-Ohio-1458. The child’s health and safety is paramount
in determining whether reasonable efforts were made. In re R.P., 5th Dist. Tuscarawas
No. 2011-Ohio-5378.
{¶51} R.C. 2151.419 requires the trial court to determine whether the agency filing
the complaint for custody “has made reasonable efforts * * * to eliminate the continued
removal of the child from his home, or to make it possible for the child to return home.”
Subsection (B)(1) mandates the trial court to issue written findings of fact setting forth the
reasonable efforts made by the agency, including a brief description of “the relevant
services provided by the agency to the family of the child and why those services did not
prevent the removal of the child from his home or enable the child to return home.”
{¶52} However, even where a trial court has failed to include in its judgment entry,
the findings contemplated by R.C. 2151.419(B)(1) we have found that the ultimate issue
is the reasonableness of the Department’s efforts, and have concluded those efforts may
be determined from the record. In the matter of Kell/Bess Children, 5th Dist. No.
97CA0278, 1998 WL 401767(Mar. 23, 1998); Hunt v. Ickes, 5th Dist. Tuscarawas No.
2014 AP 08 0032, 2015-Ohio-309, ¶19
{¶53} We find there is competent and credible evidence to support the trial court’s
determination that SCDJFS efforts were reasonable and diligent under the circumstances
of the case.
{¶54} The trial court found that neither parent has made significant progress on
the case plan. The trial court noted,
Stark County, Case No. 2021CA00156 20
The Stark County Department of Job and Family Services made
numerous allowances for this family in order to allow the parents to address
their mental health and parenting issues. The multiple allowances made in
this case were to no avail. Multiple assessments, parenting classes,
multiple team meetings, and multiple counselors were provided to this
family. This court has never witnessed such a monumental attempt by Stark
County Department of Job and Family Services to provide so many
accommodations to one family in an attempt at successful reunification of a
family.
Findings of Fact and Conclusions of Law, filed Dec. 6, 2021 at 47. We find that the record
supports that SCDJFS was working toward the goal of reunification. We find no evidence
of dishonest purpose, conscious wrongdoing, or breach of duty on the part of SCDJFS.
{¶55} Having reviewed the record, we find that SCDJFS made a good faith effort
to reunify Mother and her child. Furthermore, the record contains clear and convincing
evidence to support the court’s determination that the child could not be placed with
Mother.
The Best Interest of the Child
{¶56} An agency that seeks permanent custody of a child bears the burden of
proving by clear and convincing evidence that the grant of permanent custody is in the
child’s best interest. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶
26. R.C. 2151.414(D)(1) sets out a non-exhaustive list of factors the court must consider:
{¶57} R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child’s best interests would be served by granting the permanent
Stark County, Case No. 2021CA00156 21
custody motion. These factors include but are not limited to: (1) the interrelationship of
the child with others; (2) the wishes of the child; (3) the custodial history of the child; (4)
the child’s need for a legally secure placement and whether such a placement can be
achieved without permanent custody; and (5) whether any of the factors in divisions (E)(7)
to (11) apply.
{¶58} The factors in R.C. 2151.414(E)(7) through (11), which are referred to in
R.C. 2151.414(D)(1)(e), involve a parent’s having been convicted of or pleaded guilty to
specific criminal offenses against the child, the child’s sibling or another child who lived
in the parent’s household; a parent’s withholding medical treatment or food from the child;
a parent’s repeatedly placing the child at substantial risk of harm because of alcohol or
drug abuse; a parent’s abandoning the child; and a parent’s having had parental rights
as to the child’s sibling involuntarily terminated.
{¶59} No one element is given greater weight or heightened significance. In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816. R.C. 2151.414(D)(1) does
not require a juvenile court to make specific findings regarding each best-interest factor
listed in R.C. 2151.414(D)(1) or to include in its decision or judgment entry a written
discussion of each of those factors. In re: A.M., Slip Opinion No. 2020-Ohio-5102,
2020WL6439610 (Nov. 3, 2020), ¶33.
{¶60} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. We have frequently noted, “[t]he
discretion which the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, given the
nature of the proceeding and the impact the court’s determination will have on the lives
Stark County, Case No. 2021CA00156 22
of the parties concerned.” In re Mauzy Children, 5th Dist. No. 2000CA00244, 2000 WL
1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).
{¶61} The trial court rejected Mother’s request to transfer custody of M.M. to her
sister,
To place [M.M.] in the legal custody of his Maternal Aunt, Jimilah
Lundy would place [M.M.] in jeopardy. Attorney Waltenbaugh effectively
cross-examined Jimilah Lundy. Still, it was evident from her testimony both
on direct and cross-examination, Ms. Lundy does not believe Mother poses
any threat to [M.M.] in spite of Mother's anger management and mental
health issues. It is evident that, like Father, Ms. Lundy defers to Mother's
dominant personality and it would not be in the best interest for this court to
grant Ms. Lundy legal custody of [M.M.].
Findings of Fact and Conclusions of Law, filed Dec. 6, 2021 at 51-52.
{¶62} We conclude that the juvenile court’s judgment entry demonstrate that the
court complied with R.C. 2151.414(D)(1).
{¶63} Both the caseworker and the GAL testified it would be in the child’s best
interests to be placed in the permanent custody of the Agency. The trial court noted that
M.M. was placed in the same foster home as one of his brothers. M.M. appears well
adjusted and bonded in his present placement. Considering the many obstacles in
Mother’s life the trial court found the child’s need for a legally secure placement cannot
be achieved without permanent custody. Nothing in the record before us demonstrates
that more time or a return of custody to the Mother will in any way benefit the child.
Stark County, Case No. 2021CA00156 23
{¶64} In the present case, he trial court concluded the child's need for legally
secure placement could not be achieved without awarding permanent custody to
SCDJFS. Upon review of the record, the record supports the trial court's finding that
granting the motion for permanent custody is in the child’s best interest.
{¶65} In short, the juvenile court’s judgment entry demonstrate that the court
satisfied its statutory duty to consider the best interest factors set out in R.C.
2151.414(D)(1)(a) through (e).
Conclusion
{¶66} For these reasons, we find that the trial court’s determination that Mother
had failed to remedy the issues that caused the initial removal and therefore the child
could not be placed with her within a reasonable time or should not be placed with her
was based upon competent credible evidence and is not against the manifest weight or
sufficiency of the evidence. We further find that the trial court’s decision that permanent
custody to SCDJFS was in the child’s best interest was based upon competent, credible
evidence and is not against the manifest weight or sufficiency of the evidence.
Stark County, Case No. 2021CA00156 24
{¶67} Because the evidence in the record supports the trial court’s judgment, we
overrule Appellant-Mother’s two assignments of error, and affirm the decision of the Stark
County Court of Common Pleas, Family Court Division.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur
WSG:clw 0428