In re T.H.C. , 2023 Ohio 687 ( 2023 )

[Cite as In re T.H.C., 2023-Ohio-687.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: T.H.C. AND S.H.H. JUDGES:
Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Case Nos. 2022 AP 09 0031 &
2022 AP 09 0032
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County
Court of Common Pleas, Juvenile
Division, Case No. 21 JN 00001
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 3, 2023
APPEARANCES:
For Appellee For Appellant B.H.C.
LISA VITALE ARNOLD LISA CALDWELL
Tuscarawas County Job & 203 Fair Avenue, N.E.
Family Services New Philadelphia, Ohio 44663
389 – 16th Street, S.W.
New Philadelphia, Ohio 44663
Guardian ad Litem For Appellee M.H.P.
DONOVAN R. HILL NICHOLAS A. DOUGHTY
122 Market Avenue, N. 401 Tuscarawas Street, W., Suite #201
Canton, Ohio 44702 Canton, Ohio 44702
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 2
Hoffman, P.J.
{¶1} In Tuscarawas App. Nos. 2022 AP 09 0031 and 2022 AP 09 0032, appellant
B.H.C. (“Mother”) appeals the September 3, 2022 Judgment Entry entered by the
Tuscarawas County Court of Common Pleas, Juvenile Division, which terminated her
parental rights, privileges, and responsibilities with respect to her two minor child (“Child
1” and “Child 2,” individually; “the Children”, collectively) and granted permanent custody
of the Children to appellee Tuscarawas County Job and Family Services (“TCJFS”).
STATEMENT OF THE CASE AND FACTS
{¶2} Mother and M.H.P. (“Father”) are the biological parents of the Children.1
Following a shelter care hearing on January 6, 2021, the trial court issued an emergency
order of removal of the Children and placed them in the temporary custody of TCJFS.
The following day, January 7, 2021, TCJFS filed a complaint, alleging the Children were
neglected and dependent. The trial court appointed Attorney Donovan Hill as Guardian
ad Litem (“GAL”).
{¶3} The complaint set forth the following particulars. TCJFS has a history with
the family. In October, 2018, the Children were placed in the temporary custody of TCJFS
due to concerns about domestic violence between Parents, Mother’s untreated mental
health issues, Father’s alcohol issues, and a cockroach infestation in the home. The
Children were ultimately returned to Mother and Father and the case was closed in
September, 2019. TCJFS was involved with the family again from August, 2020, to
October, 2020, due to reported concerns about Mother’s ability to care for the Children.
1 Father is not a party to this Appeal.
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 3
During the investigation, TCJFS learned Mother and Father were drinking excessively
and a verbal altercation ensued during which Mother stated, in front of the Children, she
and the Children were going to die together. Mother is schizophrenic and spent a few
days in a psychiatric hospital to stabilize. TCJFS received concerns on January 5, 2021,
regarding domestic violence and excessive drinking. Police were called to the home on
January 3, 202, after Parents were involved in a physical altercation during which the
Children were present. Father was intoxicated when police arrived. Mother had bruises
on her body. Father admitted hiding Mother’s medication for her schizophrenia. Further,
the home was under investigation due to the cockroach infestation.
{¶4} Following an adjudicatory hearing on February 4, 2021, the trial court found
Child 1 and Child 2 to be neglected and dependent. The trial court held a dispositional
hearing on March 3, 2021, and ordered the Children remain in the temporary custody of
TCJFS. The trial court conducted review hearings on April 19, June 28, and October 4,
2021, and January 4, and March 28, 2022, and maintained the status quo. On March 24,
2022, TCJFS filed a motion to modify prior disposition to permanent custody. The GAL
filed a final guardian report on August 23, 2022, recommending permanent custody of the
Children be granted to TCJFS.
{¶5} The trial court conducted a hearing on the motion on August 30, 2022. The
following evidence was presented:
{¶6} Dr. Aimee Thomas, a licensed psychologist with Lighthouse Family Center,
completed an assessment of Mother. Because Mother does not speak English, an
interpreter was present during the assessment.2 Mother discussed her schizophrenia
2 Mother only speaks K’iche’, a language native to Guatemala.
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 4
diagnosis with Dr. Thomas. She reported she experiences audio and visual
hallucinations, behaved liked a drunk person, and essentially shut down and could not
function well in terms of taking care of herself and the Children. At the time of the
evaluation, Mother was receiving psychiatric services, but was not engaged in counseling.
Mother discussed the reasons for TCJFS’s involvement with the family.
{¶7} Mother indicated she would not leave Father and expressed her belief
TCJFS would not allow her to regain custody of the Children without him. Mother also
questioned her ability to care for the Children without Father. Mother was reliant on
Father for housing and financial support. Mother admitted she would not leave the
Children alone with Father due to concerns about his drinking and concerns he would not
care for the Children.
{¶8} Dr. Thomas administered the non-verbal portion of the Kaufman Brief
Intelligence Test. Mother scored a 50 on the intelligence test, which indicates she is on
the lower extreme of intellectual ability. Dr. Thomas explained Mother functions at the
level of a 5-year-old in terms of problem solving. Dr. Thomas also asked Mother
questions posed on the structured clinical interview for DSM-5 disorders. Dr. Thomas
noted gathering information from Mother during the interview was challenging. Mother
did not recall a lot of information. Mother acknowledged tolerating an unhealthy
relationship due, in part, to her inadequately addressed mental health diagnoses. Mother
provided consistent data relative to her diagnosis of schizophrenia. Mother agreed with
the diagnosis and Dr. Thomas found her description of her symptoms consistent with the
disorder.
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 5
{¶9} In addition to schizophrenia, Dr. Thomas diagnosed Mother with intellectual
disabilities and dependent personality disorder. Dr. Thomas testified individuals with
dependent personality disorder are often unable to protect themselves and their children
from violence in the home. Dr. Thomas added Mother’s intellectual disabilities would
make it difficult to teach Mother parenting skills. Mother’s schizophrenia could interfere
with her ability to attend to the Children, supervise them, and ensure their basic needs
are met. Dr. Thomas recommended Mother continue to take her psychotropic
medication, participate in counseling, and develop a safety plan in the event violence
occurs in the home.
{¶10} Jennifer Fire, the supervisor of the Goodwill Parenting Program, testified
Mother did not successfully complete the program. Mother had perfect attendance.
Mother did not verbally participate in class, but did have positive non-verbal skills. Mother
participated in visitation through Goodwill Parenting. She was present for 11 of 12 visits.
One of the Children was sick on the day of the 12th visit, but the Children and Mother
visited by video. Mother struggled to engage the Children both verbally and non-verbally
during visits. Mother interacted only minimally with the Children and spent much of the
time looking around the room at other children or families. At times, Mother’s body was
positioned completely away from the Children. Mother often did not greet the Children
when visits began or say “good-bye” when visits ended. Mother did not follow through
with redirection given the prior week.
{¶11} Fire conducted a home visit on December 2, 2021. The home needed a
thorough cleaning, “the floors were exceptionally dirty, very sticky.” Transcript of
Permanent Custody Hearing at 33. Fire found the home infested with cockroaches, and
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 6
the insects were buried in the trim of the doors and windows. Fire noted a number of
safety concerns including razors and knives within reach of the Children. Fire did not
believe the home was an appropriate place for the Children to reside.
{¶12} Fire noted Mother was attentive in parenting class, was open to individual
assistance, met with Goodwill instructors after class to work on her program goals, and
took responsibility for her part in the removal of the Children. However, Mother was
unable to retain and apply information, and visits remained challenging throughout the
pendency of the case. Mother lacked insight into the potential long-term effects of
exposing the Children to substance abuse and domestic violence. Mother also was
unable to develop a plan of what she would do differently in the future.
{¶13} Malissa Cantarero, the on-going TCJFS caseworker assigned to the family,
testified the instant matter is the second ongoing case with the family. Cantarero added
there have been ten other reports involving the family over the years. All of those reports
included domestic violence and substance abuse. The Children were removed in 2018,
due to concerns of domestic violence, Mother’s mental health and the fact she was
unmedicated, and Father’s substance abuse. The Children were in foster care from
October 2, 2018, until July 14, 2019. Parents completed their case plan services and the
case was closed on September 24, 2019.
{¶14} On August 19, 2020, TCJFS received a new report of emotional
maltreatment and neglect. Mother had been hospitalized, stayed with her sister upon her
discharge, then went to a domestic violence shelter. During the investigation, Mother
advised TCJFS Father was drinking again, abusing her, and hiding her medication.
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 7
Services were put into place. The case was eventually closed. The Children were not
removed from the home during the pendency of that case.
{¶15} With respect to the instant case, Cantarero stated TCJFS received a report
on January 5, 2021, indicating Mother and Father were involved in a physical altercation
the previous weekend. Father was drunk at the time of the incident. Mother claimed
Father was hiding her medication. The Children were present and observed the
altercation. During the investigation, Father admitted to drinking, hitting Mother, and
hiding Mother’s medication. The Children were removed on January 5, 2021, and TCJFS
received temporary custody on January 6, 2021.
{¶16} Cantarero testified Mother’s case plan required her to undergo a
psychological evaluation at Lighthouse and complete Goodwill Parenting. Mother
completed her psychological evaluation. Mother attended Goodwill Parenting, however,
there were concerns regarding her completion. Parents maintained stable housing during
the course of the proceedings. They moved to a new apartment in April, 2022. The
previous residence was dirty and cockroach infested. The Children shared a bed with
Parents. Mother was compliant with consistently taking her medication. Mother sees a
psychiatrist on a monthly basis. Mother does not show real affection to the Children
during visits. Mother did not say “good-bye” or tell the Children she loves them at the end
of visits.
{¶17} Cantarero indicated the Children are doing well in foster care. They have
been in the same home since their removal. Cantarero described the Children as caring,
respectful, and well-behaved. They are attached to their foster parents. The Children
are doing well in school. Although unhappy TCJFS requested permanent custody, the
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 8
Children had accepted the decision and recognized such was in their best interest. The
Children were acutely aware history would repeat itself.
{¶18} Cantarero expressed concerns over the Children being returned to Mother’s
care. Cantarero explained Mother’s mental health cannot be remedied, and, even with
medication, there are times when Mother is catatonic. Mother can barely take care of
herself and, at times, is unable to control her bodily functions. Mother does not have the
ability to recognize what is safe and unsafe for the Children. Cantarero believed Mother
would never be able to care for the Children.
{¶19} The GAL, Attorney Donovan Hill, testified he concurred with the concerns
raised by Dr. Thomas and Jennifer Fire. The GAL noted he was also the Guardian ad
Litem during the 2018 case. The concerns which resulted in the removal of the Children
in October, 2018, remained. Neither Mother nor Father had remedied those concerns.
The GAL believed it was in the best interest of the Children to grant permanent custody
to TCJFS.
{¶20} Via Judgment Entry filed September 3, 2022, the trial court terminated
Mother and Father’s parental rights and granted permanent custody of the Children to
TCJFS. The trial court found Mother and Father “failed continually and repeatedly to
substantially remedy the conditions causing removal.” September 3, 2022 Judgment
Entry at 6-7, unpaginated. The trial court further found the Children could not and should
not be placed with either Mother or Father within a reasonable time and it was in the
Children's best interest to grant permanent custody to TCJFS.
{¶21} It is from this judgment entry Mother appeals.
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 9
{¶22} In Tuscarawas App. Nos. 2022 AP 09 0031 and 2022 AP 09 0032, Mother
raises the following identical assignment of error:
THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS THE
AGENCY FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE
THAT THE CHILD COULD NOT BE PLACED WITH MOTHER IN A
REASONABLE AMOUNT OF TIME, AND THAT THE AWARD OF
PERMANENT CUSTODY WAS IN THE CHILD’S BEST INTEREST.
{¶23} These cases come to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
TUSC. APP. NO. 2022 AP 09 0031
I
TUSC. APP. NO. 2022 AP 09 0032
I
{¶24} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by
some competent, credible evidence going to all the essential elements of the case will not
be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr. (1978), 54 Ohio St.2d 279.
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 10
{¶25} 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 the 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.
{¶26} 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, 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; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶27} 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.
{¶28} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 11
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶29} As set forth in our Statement of the Facts and Case, supra, we find there
was sufficient and substantial competent evidence Mother failed to remedy the problems
which initially caused the removal of the Children from her home. Mother was diagnosed
with schizophrenia, intellectual disabilities, and dependent personality disorder. Mother
functions at the level of a 5-year-old for problem solving abilities. Mother’s mental health
cannot be remedied, and, even with medication, there are times when Mother is catatonic.
Mother has difficulty taking care herself and is, sometimes, unable to control her bodily
functions. Mother did not show real affection to the Children or engage with them during
visits. Mother does not have the ability to recognize what is safe and unsafe for the
Children. Mother will not leave Father who becomes violent when he drinks. Despite a
diagnosis of alcohol dependency, Father admitted to drinking throughout the pendency
of the case.
{¶30} The Children are doing well in foster care. They have been in the same
home since their removal. The Children are described as caring, respectful, and well-
behaved. They are attached to their foster parents. The Children are doing well in school.
The Children were acutely aware history would repeat itself if they are returned to Mother.
{¶31} Based upon the foregoing, we find the trial court's finding the Children could
not be placed with Mother within a reasonable period of time or should not be placed with
Tuscarawas County, Case Nos. 2022 AP 09 0031 & 2022 AP 09 0032 12
her is not against the manifest weight of the evidence. We further find the trial court's
finding it was in the Children's best interests to grant permanent custody to TCJFS is not
against the manifest weight of the evidence.
{¶32} Mother's assignments of error are overruled.
{¶33} The judgment of the Tuscarawas County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur