In re K.C. , 2022 Ohio 2851 ( 2022 )

[Cite as In re K.C., 2022-Ohio-2851.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: K.C. C.A. Nos. 30234
30237
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 19-8-688
DECISION AND JOURNAL ENTRY
Dated: August 17, 2022
SUTTON, Judge.
{¶1} Appellants, B.C. (“Mother”) and A.P. (“Father”), appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights
and placed their minor child in the permanent custody of Summit County Children Services Board
(“CSB”). This Court affirms.
I.
{¶2} Mother and Father are the biological parents of K.C., born July 1, 2018. Mother
and Father have been living together as a couple and got married during these proceedings.
{¶3} When this case began, Mother and Father resided in Tennessee but had traveled to
Ohio with K.C. to visit relatives. Their vehicle broke down in this area and they could not afford
to repair it, so they were unable to return to their home in Tennessee. Because their relatives were
not willing for them to stay in their home any longer, Mother, Father, and K.C. temporarily stayed
in an uninhabited, condemned house. Father apparently had planned to do repair work on the
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house to earn money to pay for the vehicle repairs. While staying there, Mother called 911 because
Father had a medical emergency, and authorities discovered them living in the home with their
one-year-old child.
{¶4} On August 19, 2019, CSB filed a complaint, alleging that K.C. was a neglected and
dependent child because the family was living in a condemned home that had no food, refrigerator,
or running water. The home also included many safety risks for a young child, including exposed
wiring. The family had no other place to stay, so K.C. was taken into custody.
{¶5} On September 19, 2019, K.C. was adjudicated a dependent child and the allegations
of neglect were dismissed. The trial court later placed K.C. in the temporary custody of CSB and
adopted the case plan that the agency had filed. The initial case plan required Mother to obtain a
mental health assessment and follow all recommendations; obtain and maintain stable income and
housing; and demonstrate that she could meet the other basic needs of the child. After Father
established paternity of K.C., similar goals for Father were added to the case plan.
{¶6} CSB initially moved for permanent custody of K.C. on July 20, 2020, and each
parent alternatively moved for legal custody. Following an evidentiary hearing, all three
dispositional motions were denied and K.C. was continued in the temporary custody of CSB. The
trial court noted that, although the parents had made some progress on the reunification goals of
the case plan, neither was in a position at that time to provide K.C. with a safe and stable home.
{¶7} On January 29, 2021, CSB filed an amended case plan. Among other things, the
amended case plan required both parents to obtain new mental health assessments and follow all
recommendations. Neither parent filed objections to that case plan or any of the other case plans
filed in this case. The trial court also explicitly adopted the original and amended case plans as
orders of the court. Father failed to obtain a mental health assessment and never demonstrated to
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CSB that he had obtained suitable employment or housing. Mother relied on Father to demonstrate
stable housing and income. She inconsistently complied with the mental health component of the
case plans but was eventually terminated from services because of her noncompliance.
{¶8} On February 24, 2021, CSB again moved for permanent custody. Each parent
alternatively moved for legal custody of K.C. Following an evidentiary hearing, the trial court
terminated parental rights and placed K.C. in the permanent custody of CSB. Mother and Father
separately appealed and their appeals were later consolidated. They each raise two assignments
of error, which will be addressed together because they are closely related.
II.
MOTHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE AND PLAIN ERROR WHEN IT PLACED THE CHILD IN THE
PERMANENT CUSTODY OF [CSB] WHEN [CSB] DID NOT PROVIDE
MOTHER WITH REASONABLE REUNIFICATION EFFORTS, AND IN FACT
PROVIDED EFFORTS THAT DAMAGED THE INTENDED
REUNIFICATION.
FATHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
AND REVERSIBLE ERROR WHEN IT GRANTED PERMANENT CUSTODY
TO [CSB] WITH A FINDING THAT [CSB] PROVIDED REASONABLE
REUNIFICATION EFFORTS PURSUANT TO R.C. 2151.419.
{¶9} These assignments of error will be addressed together because they assert that the
trial court erred in terminating their parental rights because CSB did not make reasonable efforts
to reunify them with their child. R.C. 2151.419(A)(1) required the trial court to
make reasonable efforts findings at any hearing specified in the statute at which the court removed
the child from the home or continued the child’s removal from the home. Notably, “the statute
imposes no requirement for such a determination at the time of the permanent custody hearing
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unless the agency has not established that reasonable efforts have been made prior to that hearing.”
(Internal quotations omitted.) In re L.R., 9th Dist. Summit Nos. 29266 and 29271, 2019-Ohio-
2305, ¶ 14, 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).
{¶10} In this case, the trial court made reasonable efforts findings after each of the
requisite hearings. Beginning with the shelter care hearing and continuing through multiple review
hearings, the trial court consistently found that CSB had made reasonable efforts to prevent the
continued removal of K.C. from his parents’ home. Neither parent challenged any of those
findings in the trial court.
{¶11} As the parents failed to object or move to set aside any reasonable efforts
determinations made by the trial court, they have forfeited any challenge to the agency’s use of
reasonable efforts on appeal except for a claim of plain error. See In re L.R. at ¶ 18. To
demonstrate plain error, they must show not only trial court error, but also resulting prejudice. In
re T.G., 9th Dist. Summit No. 29658, 2020-Ohio-4802, ¶ 22. As they have not provided any
transcripts of the prior hearings after which the trial court found that CSB had made reasonable
reunification efforts, this Court must presume regularity as to those determinations. See In re L.R.
at ¶ 18. Accordingly, Mother and Father have failed to demonstrate plain error by the trial court.
{¶12} Both parents specifically challenge some of the requirements of the amended case
plan filed January 29, 2021, but they could have challenged that case plan in the trial court by
filing timely objections. R.C. 2151.412(F)(2). Neither parent objected to the amended case plan,
and it was later explicitly adopted by the trial court as a court order. See id. Moreover, although
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they assert that they were not afforded enough time to work on the requirements of the amended
case plan, the permanent custody hearing was not held until nearly one year after that case plan
was filed. By that time, Father had made no effort to comply with the requirements of that case
plan or a prior case plan, and Mother had been terminated from case plan services due to her
noncompliance. The evidence at the hearing demonstrated that the lack of case plan compliance
by the parents was due to their own unwillingness to participate in services, not because of any
lack of reunification efforts by CSB.
{¶13} The parents have failed to demonstrate that CSB failed to provide them with
reasonable reunification efforts in this case. Mother’s first and Father’s second assignments of
error are overruled.
MOTHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED MOTHER’S
PARENTAL RIGHTS AND GRANTED [CSB’S] MOTION FOR PERMANENT
CUSTODY BECAUSE THE TRIAL COURT’S DECISION WAS NOT
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FATHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
AND REVERSIBLE ERROR WHEN IT GRANTED PERMANENT CUSTODY
TO [CSB] AND DENIED FATHER’S MOTION FOR LEGAL CUSTODY AS
THE TRIAL COURT’S DECISION WAS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶14} Next, both parents challenge the evidence supporting the trial court’s permanent
custody decision. 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
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or another child of the same parent has been adjudicated abused, neglected, or dependent three
times; or that the child cannot be placed with either parent, based on an analysis under R.C.
2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of the
child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2);
see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). 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.
{¶15} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations and citations omitted.)
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence,
this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶16} In this case, the trial court found that the first prong of the permanent custody test
was satisfied because K.C. had been in the temporary custody of CSB for at least 12 months of a
consecutive 22-month period. The parents do not dispute that finding, but challenge only the trial
court’s best interest finding. Although Father’s assignment of error states that the trial court erred
in denying his alternative request for legal custody of K.C., he does not make that argument to
support a grant of legal custody. Moreover, if permanent custody was in the best interest of the
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child, legal custody to another person necessarily was not. In re K.M., 9th Dist. Summit Nos.
30117, 30118, and 30119, 2022-Ohio-916, ¶ 16.
{¶17} The parents assert that the trial court was required to consider their case plan
compliance in its determination of the child’s best interest. This Court has repeatedly held that,
although case plan compliance may be relevant to the best interest of the child, it is not dispositive.
See In re J.W., 9th Dist. Summit No. 28976, 2019-Ohio-210, ¶ 15. Moreover, the evidence in this
case demonstrated that Father had failed to comply with the requirements of the case plan because
he did not believe that he needed services. Father refused to obtain a mental health assessment, as
required by two of the amended case plans. Father testified that he had obtained stable income
and housing, but he did not comply with the case plan requirement that he provide CSB with
verification of his income or housing. Father and another witness testified that Father had made
significant improvements to the home in which he and Mother were living, but he had not allowed
CSB to see the home improvements. Moreover, although Father testified that he was making
improvements to the house in lieu of paying rent, his landlord disputed that testimony. The
landlord testified that the arrangement for Father to make improvements instead of paying rent
applied only to the first few months, and Father did not finish the work. The landlord testified
that, by the time of the hearing, Father owed him rent for several months, so he had hired an
attorney to pursue eviction proceedings.
{¶18} Because Mother lived with Father and relied on his income, she also had failed to
verify stable income and housing to CSB. Mother obtained two mental health assessments but did
not consistently follow through with the recommended intensive parenting classes. At the hearing
and again on appeal, Mother points to the report from her first mental health evaluation, which
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merely noted that she may benefit from counseling. Mother was later required to obtain a second
assessment, which recommended that she engage in intensive parenting classes.
{¶19} Mother participated inconsistently in parenting classes. The plan was for Mother
to receive parenting instruction during visits with K.C. and separately with the instructor without
the child present. Mother attended only a few instructional sessions outside of visits, however.
Father would not allow the sessions to take place at their home. Mother was also reluctant to take
redirection from the instructor. Mother was eventually terminated from the program for
noncompliance.
{¶20} As emphasized already, the parents’ lack of case plan compliance, although
relevant, was not determinative of the trial court’s best interest determination. In making its best
interest determination, the trial court was required to consider the statutory best interest factors,
which include: the interaction and interrelationships of the child, the wishes of the child, the
custodial history of the child, the child’s need for permanence and whether that can be achieved
without a grant of permanent custody, and whether any of the factors outlined in R.C.
2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see In re R.G., 9th Dist. Summit Nos.
24834 and 24850, 2009-Ohio-6284, ¶ 11.
{¶21} The parents’ interaction with K.C. while this case was pending for more than two
years was limited to supervised visitation because neither parent had complied with the mental
health component of the case plan. Father denied a need for mental health services, but he
continued to exhibit angry and threatening behavior to agency employees. Moreover, at the time
of the hearing, he had two outstanding warrants for criminal charges.
{¶22} Mother attended more visits than Father but both parents missed many visits and,
when they did attend, they almost always arrived late. CSB’s policy is to cancel a visit if a parent
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is more than 15 minutes late but, because the foster family was bringing K.C. from their home in
another county, the child sometimes waited up to 30 minutes for Father or Mother to arrive. Their
chronic tardiness particularly concerned the caseworker because the parents lived only two blocks
away from the agency visitation center.
{¶23} During the visits, Father interacted with K.C. more than Mother. Several witnesses
expressed concern that Mother showed little affection to K.C. but tended to just sit and watch him
interact with Father. When Father did not attend the visits, Mother interacted with K.C. with
prompting from the supervisor but she was reluctant to hold or cuddle the young child. The
guardian ad litem testified that she did not believe there was a bond between Mother and K.C.
{¶24} Because K.C. was only three years old at the time of the hearing, the guardian ad
litem spoke on the child’s behalf. She opined that permanent custody was in the best interest of
K.C. because the parents had failed to demonstrate stable income or housing and had not complied
with the mental health component of the case plan. She did not believe that they could provide for
the child’s basic needs.
{¶25} K.C. had lived with his parents for most of the first year of his life. For the past
two and a half years, however, he had been placed in the temporary custody of CSB. He had been
living in a temporary placement with the same foster family and needed a legally secure permanent
placement. The parents were not prepared to provide him with a suitable home and CSB had been
unable to find any suitable relatives who were willing to do so.
{¶26} The parents have failed to demonstrate that the trial court lost its way in determining
that permanent custody was in the best interest of K.C. Mother’s second and Father’s first
assignments of error are overruled.
III.
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{¶27} The parents’ 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 Appellant.
BETTY SUTTON
FOR THE COURT
CARR, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JAYSEN W. MERCER, Attorney at Law, for Appellant.
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JASON WALLACE, Attorney at Law, for Appellant
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
HOLLY FARAH, Guardian ad Litem.