In re Y.M. , 2022 Ohio 677 ( 2022 )

[Cite as In re Y.M., 2022-Ohio-677.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. W. Scott Gwin, P.J.
Y.M., Q.D., M.D., & Y.M. Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
Case Nos. 2021 AP 09 0020, 2021 AP 09
0021, 2021 AP 09 0022, & 2021 AP 09
0023
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County
Court of Common Pleas, Juvenile
Division, Case No. 19 JN 00245
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 8, 2022
APPEARANCES:
For Appellee - Tuscarawas County For Mother – Rhonda Hudson-McNutt
Job & Family Services
JEFF M. KIGGANS MELISSA ULRICH
389 – 16th Street, SW P.O. Box 2306
New Philadelphia, Ohio 44663 North Canton, Ohio 44720-1068
For Father – Nathaneal McNutt
PATRICK J. WILLIAMS, ESQ.
300 E. 3rd Street
Dover, Ohio 44622
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 2
0022, & 2021 AP 09 0023
Hoffman, J.
{¶1} In Tuscarawas App. No. 21-20, appellant Nathaneal McNutt (“Father”)
appeals the August 4, 2021 Judgment Entry entered by the Tuscarawas County Court of
Common Pleas, Juvenile Division, which terminated his parental rights with respect to his
minor child (“Child 3”) and granted permanent custody of Child 3 to appellee Tuscarawas
County Job and Family Services (“TCJFS”). In Tuscarawas App. Nos. 21-21, 21-22, and
21-23, appellant Rhonda Hudson McNutt (“Mother”) appeals the same judgment entry
with respect to her minor children (“Child 1”, “Child 2”, “Child 3”, individually; and “the
Children”, collectively).
STATEMENT OF THE CASE AND FACTS
{¶2} Mother is the biological mother of the Children. Father is the biological father
of Child 3. The biological fathers of Child 1 and Child 2 are unknown.
{¶3} Mother and Father moved to Ohio with the Children in late July, 2019.
Shortly thereafter, TCJFS received a report from an anonymous caller expressing
concerns about the family. TCJFS had also received information from Denver (Colorado)
Human Services. Denver Human Services advised TCJFS their department and Denver
police became involved with the family following a July 5, 2019 incident in which Child 1
was outside of Mother’s vehicle, standing on the running boards and holding onto the car,
while the vehicle was in motion. The family was living in their vehicle at the time. When
the Denver Human Services caseworker contacted Mother, she advised the caseworker
the family had moved to Texas. A warrant against Mother based upon the July 5, 2019
incident was issued and remains outstanding.
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0022, & 2021 AP 09 0023
{¶4} Based upon the report and the information, TCJFS and two detectives from
the Tuscarawas County Sheriff’s Department made contact with the family on July 26,
2019. The family was living in a tent on property owned by Father’s relative, who would
not allow Mother and the Children inside the residence. Because it was summertime, the
conditions were minimally acceptable, although not ideal, and TCJFS allowed the
Children to remain with Parents. Mother refused any assistance from TCJFS. TCJFS
made numerous attempts to reestablish contact with the family.
{¶5} In early August, 2019, TCJFS learned the family was living at a campground
at Atwood Lake. TCJFS later received a report the family had been at a homeless shelter
in New Philadelphia, but left because they refused to comply with the rules of the shelter.
On August 27, 2019, TCJFS received a report the family was living in their vehicle in the
parking lot of Marsh Industries. New Philadelphia police confirmed officers had conducted
a welfare check on August 26, 2019. TCJFS requested a welfare check on the evening
of August 27, 2019, however, the family was no longer at Marsh Industries.
{¶6} On August 28, 2019, TCJFS requested, and the trial court granted, an ex
parte pick-up order for the Children. The Children were removed from Parents the
following day. The trial court ordered no contact or visitation between the Children and
Parents. TCJFS filed a complaint for neglect and dependency on August 30, 2019. Via
Judgment Entry filed August 30, 2019, the trial court granted emergency temporary
custody of the Children to TCJFS and appointed Attorney Mary Warlop as Guardian ad
Litem (“GAL”) for the Children. Mother and Father subsequently filed motions for
visitation.
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0022, & 2021 AP 09 0023
{¶7} The trial court conducted an adjudicatory hearing on October 22, 2019.
TCJFS moved to amend the complaint to delete certain allegations. The trial court
granted the requested amendments. Parents stipulated to the amended complaint. The
trial court found the Children to be neglected and dependent, continued temporary
custody with TCJFS, and adopted the case plan. The trial court denied Parents’ requests
for visitation until Parents commenced case plan services and completed their
psychological evaluations.
{¶8} Parents’ case plans required them to complete psychological evaluations;
complete Goodwill Parenting; provide verification of housing and income; refrain from
criminal activity; submit to drug testing; complete drug and alcohol assessments; and
attend monthly meetings with the caseworker.
{¶9} On July 24, 2020, TCJFS filed a motion for a six-month extension of
temporary custody. The trial court set the motion for hearing at the annual review on
August 24, 2020. Upon agreement of the parties, the trial court granted a six-month
extension of temporary custody. The trial court also ordered TCJFS to conduct a home
study of James Stepney, Mother’s cousin, and his partner.
{¶10} On November 13, 2020, Father filed a motion, requesting the trial court
order TCJFS to conduct home studies of Mother’s sisters, Jimilah Lundy and Tanisha
Arnold. TCJFS filed a response. Via Judgment Entry filed December 1, 2020, the trial
court overruled Father’s motion for home study.
{¶11} On January 14, 2021, TCJFS filed a Motion to Modify Prior Disposition,
seeking permanent custody of the Children. The trial court conducted a hearing on the
motion over a period of three days, June 15, July 7, and July 9, 2021.
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0022, & 2021 AP 09 0023
{¶12} The following evidence was adduced at the hearing.
{¶13} Jamie Gunder, the TCJFS ongoing caseworker assigned to the family,
testified the fathers of Child 1 and Child 2 were unknown. The father of Child 3 is Father.
Gunder indicated, between August 28, 2019, and January 14, 2021, the date of the filing
of the motion to modify, the Children had continuously been in the temporary custody of
TCJFS. Child 1 had been in foster care in Nevada between December, 2013, and
January, 2014, while Mother was in jail. Child 1 and Child 2 had been in foster care in
Nevada between February, 2017, and April, 2018. During this time, Mother became
involved with Father.
{¶14} Gunder stated she did not believe Parents were able to provide a legally
secure placement for the Children as they failed to accept responsibility for their behaviors
and actions which led to the initial removal of the Children. Parents had not successfully
completed counseling. Gunder noted both Mother and Father changed counselors
multiple times because the counselors did not agree with them. Parents do have stable
housing. Father was working, but not consistently. Mother received Social Security
Disability.
{¶15} Gunder testified the family moved to Ohio on July 23, 2019. TCJFS
received records from family services in both Colorado and Nevada, which revealed
concerns regarding the parenting of the Children. When TCJFS became involved with
the family, they were living in a tent on the property of a family member. Thereafter, they
temporarily lived in an RV in a church parking lot, a tent at Atwood Lake, and a homeless
shelter. After leaving the homeless shelter because they would not follow the rules, the
family lived in a van on the property of Marsh Industries. Gunder explained TCJFS’s
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0022, & 2021 AP 09 0023
primary concerns were the family’s homelessness, Mother’s mental health, and Child 1
not attending school.
{¶16} Father did not successfully complete Goodwill Parenting. Mother received
a certificate of attendance. Mother and Father were charged with shoplifting in
December, 2019. The charge against Mother was reduced to trespassing. Gunder
believed the charge against Father was dismissed. During a conversation with Father’s
counselor in July, 2020, Gunder learned Father had six staples in the back of his head.
Father told his counselor the injury was the result of Mother hitting him. When Gunder
confronted Father, Father admitted Mother hit him. Father later recanted and said a
random stranger on the street struck him in the back of the head and he woke up and did
not know where he was.
{¶17} Although Gunder never had any concerns about her own physical safety,
she testified the director of TCJFS received a protection order against Mother in
November, 2019. Mother posted pictures of the director and his children on Facebook,
accusing him of child trafficking. Mother also called the director and told him he was a
demon. At one point, Gunder and Jennifer Fire, the Goodwill instructor, advised Mother
Child 3 had a “nursemaid elbow” in which the elbow slips out of joint. Mother began
sending emails declaring Child 3’s arm had been broken and he was being abused in
foster care. Mother once gave permission for Child 3 to have a haircut. Mother then
asserted his hair fell out because of his vaccinations. Parents signed releases for their
counselors’ records, but immediately rescinded the releases and Gunder was unable to
secure any records.
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0022, & 2021 AP 09 0023
{¶18} Mother met with Gunder on a monthly basis until TCJFS filed the motion for
permanent custody. Mother told Gunder she (Gunder) had betrayed her and refused to
meet with Gunder thereafter. Mother became pregnant while the case was pending.
Parents moved to Stark County. Stark County Department of Job and Family Services
received custody of the newborn immediately after his birth. A permanent custody
hearing was scheduled for August 5, 2021.
{¶19} In September, 2019, Parents began counseling at the Wellmore Center.
Mother with Dr. Mark Welty and Father with David Marsh. Parents transferred and began
counseling in May, 2020, with Anne Meyers of the Village Network in Canton. Parents
discontinued counseling with Meyers in November, 2020. Thereafter, Mother saw Dr.
Baker in Cincinnati, until February, 2021, when he discontinued seeing her. Mother told
Gunder Dr. Baker told her she was a “train wreck.” In March, 2021, Mother began seeing
Latoya Logan. Mother was still in counseling at the time of the hearing. Father was also
in counseling at the time of the hearing.
{¶20} TCJFS began a home study of Mother’s cousin, James Stepney, and his
husband, who lived in Colorado. However, Colorado would not consider the couple for
placement because Stepney’s husband was an alcoholic and had relapsed. Another
relative, Cynthia Stout, expressed interest in taking the Children. However, Stout had an
extensive history with the agency and TCJFS denied her request for a home study. Other
suggested individuals were not appropriate or did not want the Children. Mother’s sisters,
Tanisha Arnold and Jimilah Lundy, were not considered for placement during the Nevada
cases. Additionally, both sisters only had two-bedroom homes, which could not
accommodate the Children. Mother’s mother was living with Lundy. Mother had been
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0022, & 2021 AP 09 0023
permanently removed from her mother’s care, which created another concern about
placing the Children with Lundy. Lundy never contacted TCJFS or requested a home
study.
{¶21} Gunder testified, on March 5, 2021, Child 1 was placed in therapeutic foster
care. Prior to this placement, Child 1 had been in a residential placement. Child 2 was
in a foster home, but her behaviors escalated and she was moved to Fox Run, a lockdown
facility. Child 2 is currently at a restrictive facility in Toledo. Gunder stated neither Child
1 nor Child 2 could function in a family-like setting at this point. Child 3 has been in the
same foster home since the beginning of the case. The newborn is placed in the same
foster home. The Children underwent trauma assessments with Carrie Schnirring at
Lighthouse. Child 1 and Child 2 were diagnosed with post-traumatic stress disorder.
Child 1 and Child 3 are doing well. Child 2 accepts no responsibility, has no remorse
when she harms others, refuses to follow rules, and is “just very angry.” Tr., Vol. I at 48.
Gunder believed the best interest of the Children would be served by granting permanent
custody to TCJFS.
{¶22} Mary Warlop, the GAL for the Children, testified she has talked to Child 1
and Child 2 regarding their wishes. Child 1 related she wishes to stay with her current
foster family and be adopted by them. Child 1 told Warlop she does not want to have any
contact with her family of origin because “they are bad.” Tr. at 109. Child 1 has no
remaining bond with Mother. Child 1 is well adjusted in her foster home. Warlop added
she has never seen Child 1 so happy or growing as much as she is currently. Child 2 told
Warlop she feels safe in her current placement. Child 2 did not express a desire to see
Parents. Child 3 is extremely well taken care of by his foster family. He is bonded with
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0022, & 2021 AP 09 0023
and attached to his foster parents. He is also extremely attached to his newborn sibling.
Warlop recommended the trial court grant permanent custody of the Children to TCJFS
as it was in the Children’s best interest and such would facilitate adoption.
{¶23} Dr. Aimee Thomas, a psychologist with Lighthouse Family Center,
conducted a psychological assessment of Mother. During the assessment, Mother
revealed she sustained significant abuse during her childhood. She was exposed to
domestic violence in her family home and ultimately placed in foster care, where she was
physically, emotionally, and sexually abused. During her adult life, Mother was involved
in criminal activity, including the sale of illicit drugs, prostitution, and domestic violence.
Mother reported a history of marijuana and cocaine use.
{¶24} Mother reported prior diagnoses of bipolar disorder, attention deficit
hyperactivity disorder (“ADHD”), and post-traumatic stress disorder. Dr. Thomas noted
the symptoms Mother described to her were consistent with those mental health
disorders. Mother informed Dr. Thomas she did not want to be prescribed medication to
address her mental health issues, but wanted to self-medicate with marijuana.
{¶25} Based upon the information obtained during the assessment, Dr. Thomas
diagnosed Mother with bi-polar disorder with psychosis. Mother’s full-scale IQ was
identified as 79, which indicates she is on a below average range of intellectual ability.
Dr. Thomas added Mother’s IQ did not prevent her from learning and she could benefit
from parenting skills training. Mother identified herself as a victim of physical and
emotional abuse in prior adult relationships. Although Mother acknowledged anger
management problems in the past, she minimized concerns with such problem to Dr.
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0022, & 2021 AP 09 0023
Thomas. Dr. Thomas stated data provided by TCJFS suggested Mother’s anger
management issues had persisted.
{¶26} Dr. Thomas gave Mother the Minnesota Multiphasic Personality Inventory
(“MMPI-2”), which assesses mental disorders such as depression, anxiety,
schizophrenia, bipolar disorder, as well as personality characteristics. Mother’s profile
was not valid, which indicates an inconsistent pattern of responding, too many missed
questions, or high defensiveness in responding. Dr. Thomas also gave Mother another
inventory, the Millon Clinical Multiaxial Inventory (“MCMI-IV”). Mother’s pattern of
responding indicated she is easily angered, bored, rebellious, rash, and unrestrained. Dr.
Thomas stated, based upon Mother’s responses, there were concerns Mother may have
a tenuous grasp of reality. Dr. Thomas explained individuals with MCMI-IV profiles
consistent with Mother’s profile “include major depressive disorder, recurrent, bipolar
disorder with psychotic features, histrionic personality disorder, paranoid personality
disorder, and narcissistic personality disorders.” Tr., Vol. I at 134. Mother’s “defensive
approach” to the Substance Abuse Subtle Screening Inventory (“SASSI-4”) “negated the
utility of this instrument.” Id.{¶27} Dr. Thomas stated she did not believe Mother has good insight into her
current situation. When asked to explain, Dr. Thomas replied:
At the time I met with her, I would say that her limited insight was
certainly reflected in her refusal to take prescribed psychotropic
medications that would stabilize her mood and assist her in making
progress in counseling sessions and participating in parenting skills training.
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0022, & 2021 AP 09 0023
So, the failure to recognize the need to participate in such services
really was reflected by a lack of follow through, at least during the timeframe
that I had met with her. Id. at 136.
{¶28} Dr. Thomas also diagnosed Mother with paranoid personality disorder,
antisocial personality disorder, and borderline personality disorder. Dr. Thomas
explained an individual with borderline personality disorder has an unstable sense of self,
swinging from being okay one minute to being enraged the next. Borderline personality
disorder can be treated with dialectical behavioral therapy. Dr. Thomas emphasized this
therapy takes commitment from the individual to learn skills to become more self-aware.
Dr. Thomas did not believe Mother should participate in Goodwill Parenting until she was
stabilized on psychotropic medication as such would offer her the best opportunity to learn
the information presented. Dr. Thomas described Mother’s mental health issues as “very
severe.” Id. at 140. Dr. Thomas opined “reunification should not be considered unless
and until [Mother] is committed to taking her medication as directed.” Id. at 141.
{¶29} After concluding her psychological testing of Father, Dr. Thomas diagnosed
him with an unspecified personality disorder. She stated Father is a more dependent and
passive person, who is inclined to tolerate unhealthy relationships. Dr. Thomas explained
“individuals with these characteristics have difficulty protecting themselves and children
from individuals who may be abusive, or may have underlying mental health issues and
can’t control their emotions.” Id. at 143. At the time Dr. Thomas evaluated Father, she
did not believe he could protect the Children from Mother’s mood swings. Father has a
full-scale IQ of 93, which suggests he functions in the average range of ability. Dr.
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0022, & 2021 AP 09 0023
Thomas indicated Father was capable of learning appropriate parenting interactions, but
the overarching issue was his codependent relationship with Mother.
{¶30} Dr. Steven Dean, a psychologist and the clinical director of Melymbrosia
Associates, testified he completed psychological assessments of Mother and Father. Dr.
Dean indicated Mother had a history of trauma, which included physical, verbal,
emotional, and sexual abuse during her multiple foster placements as a child. Mother
advised Dr. Dean she received Social Security Disability. Mother had a history of drug
abuse. Mother had five other children, but did not have custody of any of them. Dr. Dean
described Mother’s adult life as “hedonistic,” explaining “a lot of it was, kind of, some
drugs, alcohol, you know, pleasure seeking. Tr., Vol. II at 169. He added: “some of it
was survival probably, too, for her. I think it was her way of trying to, kind of, make it in a
world with some of the partners that she was with. That, a lack of work history, kind of
relying on other people.” Id. Dr. Dean stated Mother perceived herself as being victimized
and was prone to avoid introspection.
{¶31} Dr. Dean diagnosed Mother with antisocial personality disorder. An
individual with antisocial personality disorder has difficulty following rules, impulsivity, a
lack of regard and concern for other people. Dr. Dean noted antisocial personality
disorder is treatable, but requires a good deal of therapy and a lot of work. This disorder
would have a negative effect on an individual’s ability to parent. Dr. Dean did not have
access to Mother’s complete records; therefore, could not provide a definitive diagnoses
of borderline personality disorder and bipolar disorder.
{¶32} With respect to Father, Dr. Dean testified Father’s greatest difficulty is his
inability to set effective boundaries and to assert himself. Father had no significant
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0022, & 2021 AP 09 0023
pathology. Dr. Dean described Father as an introverted man with dependency issues.
Father tends to let other individuals make decisions for him. Dr. Dean diagnosed Father
with dependent personality disorder. Dr. Dean had concerns about Father’s ability to say
“no” and set boundaries for the Children. Dr. Dean believed Father would benefit from
medication and psychotherapy as well as couple’s therapy.
{¶33} Jennifer Fire, the supervisor of the Goodwill Parenting Program, testified
neither Mother nor Father successfully completed the parenting program. Mother
participated in two separate classes. Mother was terminated from the first class due to
her attendance, missing 6 of 15 days. Mother was permitted to participate in a second
class as she had given birth to the newborn. Mother did not successfully complete the
second class because she failed to sufficiently complete her goals. Mother would not
accept responsibility for her involvement with TCJFS and the removal of the Children from
her home.
{¶34} Mother’s visits with Child 3 and the newborn were “very chaotic.” Id. at 207.
Mother’s “go to method [of disciplining] was pointing at [Child 3] with her pointer finger
and screaming no in his face.” Id. at 207-208. In turn, Child 3 would mimic Mother’s
behavior. Although Mother recognized what was happening, she continued to discipline
Child 3 in the same way. Mother was observed grabbing, yanking, and pulling Child 3 by
his arm or wrist. When Child 3 would throw himself on the floor, Mother would attempt to
pull Child 3 upright with one hand while she was holding the newborn in her other hand.
The Goodwill staff repeatedly instructed Mother not to handle Child 3 in that manner,
however, week after week, Mother continued the same pattern. Fire indicated one of the
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biggest areas of concern with Mother’s visits was her inability to carry a skill or
recommendation from week to week.
{¶35} From the onset, Fire had concerns about Mother giving inappropriate food
to Child 3, including Lifesaver candies and mints. Mother would also provide food items
to Child 3 which were too large. Child 3 was observed shoving whole chicken nuggets
into his mouth. On one occasion, Child 3 choked on granola. Mother was advised not to
bring granola again. The following week, Mother brought granola. She would sneak and
give Child 3 entire chocolate chip cookies under the table. Child 3 would shove the entire
cookie into his mouth. Mother would say she did not think he would do that despite the
same thing happening week after week for seven weeks. Fire described Mother as “very
reactive and a lot of screaming.” Id. at 209. Over the course of her visits, Fire had ongoing
concerns about Mother’s ability to care for Child 3 and the newborn simultaneously,
maintain safety, and provide structure and routine.
{¶36} Mother failed to complete her four individual goals. Mother’s goals were: 1.
to assume responsibility for her involvement with TCJFS; 2. to recognize how her
parenting affected Child 1 and Child 2, both in the past and presently; 3. to provide a
detailed list of her criminal history; and 4. to create a calendar of scheduled visits with her
mental health providers and to attend the scheduled appointments. Mother completed
only 6 of the 11 generalized goals. Significantly, Mother was unable to define and provide
wrong examples of discipline and punishment.
{¶37} With respect to Father, Fire explained Father did not successfully complete
Goodwill Parenting because he was unable to assume responsibility and refused to
acknowledge Mother’s past behaviors and the trauma to the Children. Safety was an
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issue during Father’s visits with Child 3. Father allowed Child 3 to stand on a rolling chair
and run around the room. Father would arrive at visits without Mother and then realize
she was supposed to be at the visit as well. Father would spend an hour frantically trying
to hide his cell phone and make calls to get Mother to the visits. Father would not pay
attention to Child 3 and the newborn, leaving the staff to chase after Child 3. Fire opined
Father was unable to adequately parent Child 3 and the newborn on his own. Father was
not able to appropriately supervise Child 3. Fire had safety concerns following her two
home visits with Parents.
{¶38} Dr. Mark Welty of the Wellmore Center testified on Parents’ behalf. Dr.
Welty was Mother’s therapist from September, 2019, until September 1, 2020, and saw
her for approximately 31 sessions. Although Mother disclosed drug use in the past, Dr.
Welty found Mother did not need to be treated for substance use disorder at the time he
was seeing her. The focus of his treatment was to help emotionally stabilize Mother as
she worked through the case with TCJFS. Dr. Welty indicated Mother became less
guarded with him over the course of their relationship. Mother was more open and
forthcoming, but remained untrusting of the system.
{¶39} Dr. Welty referred Mother to Anne Meyers. Dr. Welty explained he is not
licensed and certified to work with children, and if reunification was going to occur, child
and family therapy would be warranted. Therefore, he thought it made sense to make a
transition in the therapeutic process so Parents could establish a relationship with a
therapist who would be able to work with the family.
{¶40} Linda Popp-Walker, a licensed professional clinical counselor, testified she
worked with Mother from October 28, 2020, until June 9, 2021, and Father from December
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0022, & 2021 AP 09 0023
2, 2020, until June 9, 2021. Mother attended 18 of her 26 scheduled appointments with
Popp-Walker. Popp-Walker diagnosed both Mother and Father with adjustment disorder
mixed with anxiety and depression.
{¶41} Popp-Walker practices “short-term, directed, goal oriented, in-depth,
psychodynamic type of therapy * * * in the state of hypnosis.” Tr. Vol. III at 361. Popp-
Walker was unable to conduct these types of sessions with Mother because Mother was
in constant turmoil due the legal matter at hand. Because she was doing crisis
management with Parents, Popp-Walker felt Parents needed a more comprehensive
place for treatment, which would provide them with a case manager, a therapist, and a
psychiatrist. Popp-Walker stated she felt Mother would benefit from prescription
medication to help her through the crisis.
{¶42} Latoya Logan, a licensed independent social worker and trauma therapist
with Project Lift Services, testified she began working with Mother at the end of February,
2021, and Father in early March, 2021. Logan diagnosed Mother with post-traumatic
stress disorder, chronic, and bipolar disorder. Logan worked with Parents individually
and as a couple. Over time, Mother was able to identify goals and was committed to
working towards those goals. Logan’s focus with Mother was emotional regulation. With
Father, Logan worked on assertive communication and self-worth. Although Logan
described Mother’s behavior as hostile and aggressive during many of the sessions,
Logan added such was an understandable response given the circumstances.
{¶43} Natatia Peterson, a health and wellness coordinator with Alliance for
Children and Families, testified Parents participated in an eight-session parenting
program focused on preventing violence against children. The majority of participants
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have their children at homes when they are involved in the program. Peterson noted the
program was more effective when the children are in the home. She modified the program
for Parents. Peterson found Parents receptive to the subject matter. Parents were
cooperative and engaged.
{¶44} Rebecca Watkins, a licensed counselor, testified she began working with
Mother through Telehealth in March, 2021. Watkins has had 13 sessions with Mother
and Mother is still a patient. Watkins attempted to help Mother work through her case
plan. The focus was Mother’s emotional regulation. Watkins diagnosed Mother with
adjustment disorder with mixed anxiety and depressed mood and post-traumatic stress
disorder. Although Mother has shown improvement, Watkins felt if Mother “could keep
working on it, and keep going in this direction,” she could continue to improve. Id. at 438.
{¶45} Jimilah Lundy, Mother’s younger sister, testified she lives in Tennessee, just
outside of Memphis, and is employed with the United States Department of Treasury for
the Internal Revenue Service (“IRS”). Lundy indicated she does not have any problem
with drugs or alcohol and does not have a criminal record. During the hiring process for
her position at the IRS, Lundy passed a federal background check and received
Homeland Security clearance. Lundy lived with Mother, Child 1, and Child 2 in Las Vegas
for a period of time in 2016. Lundy eventually moved into her own apartment. She lived
in Las Vegas for two or three years.
{¶46} While Mother’s case with Job and Family Services in Las Vegas was
pending, Lundy did not request custody of Child 1 and Child 2. Lundy explained, “My
sister was gonna get her children back, so I never asked for the children. And, at the
time, I wasn’t able to take care of the children.” Id. at 480. Lundy did not have full-time
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0022, & 2021 AP 09 0023
employment and did not have a vehicle. Lundy added her teenaged sons, her younger
sister, and her nephew were living with her at the time and she did not have room. Lundy
described Mother as “great” with her children and noted her children love her.
{¶47} Lundy acknowledged Mother had a problem with drugs and alcohol in the
past. She had no current concern Mother was using drugs or alcohol. Lundy stated
Mother has better control over her mental health, attends therapy, and takes her
medication. She had no concerns with the trial court returning the Children to Parents.
{¶48} Currently, Lundy resides in a two-bedroom, two-bath apartment. Lundy
would be willing to move to a larger apartment to accommodate the Children. Financially,
Lundy would be able to care for the Children. On cross-examination, Lundy agreed her
current residence is not large enough for the Children. Lundy was unaware Child 1 and
Child 2 were in different placements because of their behaviors around each other. Lundy
believed Mother’s “mental health isn’t a question” and the Children should be returned to
her custody. Id. at 501. Lundy acknowledged she would return the Children to Parents
“if it’s all done with the Courts, and everything is done, and she’s completed everything,
yeah.” Id. at 503. On re-direct, Lundy indicated she would not give the Children to
Parents if they had not completed the case plan.
{¶49} Parents testified on their own behalf. Father stated he loves Mother and
will ensure she has a good home and provides for the Children. Father has been working
at Amazon since March, 2021. Mother receives $800/month in Social Security benefits.
Parents moved into a six-bedroom home in Alliance on February 6, 2020. They have
maintained the home and the rent is current. Both stated their belief they could properly
care for the Children. Mother feels she has addressed all of TCJFS’s concerns, but would
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 19
0022, & 2021 AP 09 0023
be willing to continue to work services with TCJFS. Mother admitted to yelling at Father
and the Children, but denied ever striking any of them. Mother takes CBD gummies to
help with anxiety. She no longer takes the medication she was prescribed because “I like
being who I am.” Mother added she has herself under control. Tr., Vol. IV at 666.
{¶50} Via Judgment Entry filed August 4, 2021, the trial court terminated Parents’
parental rights and granted permanent custody of the Children to TCJFS. The trial court
found Parents “have failed to continually and repeatedly to substantially remedy the
conditions causing removal. Aug. 4, 2021 Judgment Entry at 13. The trial court further
found the Children could not and should not be placed with with either Mother or Father
within a reasonable time and it was in the Children's best interest to grant permanent
custody to TCJFS.
{¶51} It is from this judgment entry Parents appeal.
{¶52} In Tuscarawas App. No. 21-20, Father raises the following assignment of
error:
THE TRIAL COURT ERRED IN ITS AUGUST 4, 2021 JUDGMENT
ENTRY GRANTING PERMANENT CUSTODY TO THE TUSCARAWAS
COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES. THE
DEPARTMENT FAILED TO ABIDE BY THEIR LEGAL REQUIREMENT TO
ATTEMPT TO PLACE THE CHILD(REN) WITH A SUITABLE RELATIVE,
IF POSSIBLE.
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 20
0022, & 2021 AP 09 0023
{¶53} In Tuscarawas App. Nos. 21-21, 21-22, and 21-23, Mother raises the
following assignments of error:
I. THE TRIAL COURT ERRED IN ITS AUGUST 4, 2021 JUDGMENT
ENTRY GRANTING PERMANENT CUSTODY OF APPELLANT’S MINOR
CHILDREN TO THE TUSCARAWAS COUNTY DEPARTMENT OF JOB &
FAMILY SERVICES BECAUSE THE DEPARTMENT FAILED TO MAKE
REASONABLE EFFORTS TO REUNITE THE MINOR CHILDREN WITH
THEIR MOTHER.
II. THE TRIAL COURT’S AUGUST 4, 2021 JUDGMENT ENTRY
GRANTING PERMANENT CUSTODY OF APPELLANT’S MINOR
CHILDREN TO THE TUSCARAWAS COUNTY DEPARTMENT OF JOB &
FAMILY SERVICES WAS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE.
III. THE TRIAL COURT’S AUGUST 4, 2021 JUDGMENT ENTRY
GRANTING PERMANENT CUSTODY OF APPELLANT’S MINOR
CHILDREN TO THE TUSCARAWAS COUNTY DEPARTMENT OF JOB &
FAMILY SERVICES IS NOT IN THE CHILD’S [SIC] BEST INTEREST.
IV. THE TRIAL COURT ERRED IN ITS AUGUST 4, 2021
JUDGMENT ENTRY GRANTING PERMANENT CUSTODY TO THE
TUSCARAWAS COUNTY DEPARTMENT OF JOB & FAMILY SERVICES
BECAUSE THE DEPARTMENT FAILED TO PERFORM AN ICPC FOR
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 21
0022, & 2021 AP 09 0023
THE CHILD’S [SIC] AUNT, JIMILAH LUNDY, OR OTHERWISE
CONSIDER HER FOR PLACEMENT OF THE MINOR CHILDREN.
{¶54} These cases come to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
MOTHER
I
{¶55} In her first assignment of error, Mother argues the trial court erred in
granting permanent custody of the Children to TCJFS because the Department failed to
make reasonable efforts to reunify the Children with her.
{¶56} The Ohio Revised Code imposes a duty on the part of children services
agencies to make reasonable efforts to reunite parents with their children where the
agency has removed the children from the home. R.C. 2151.419. “Case plans are the
tools that child protective service agencies use to facilitate the reunification of families
who * * * have been temporarily separated.” In re Evans, 3d Dist. Allen No. 1-01-75, 2001
WL 1333979, *3, 2001 Ohio App. LEXIS 4809, 3 (Oct. 30, 2001). To that end, case plans
establish individualized concerns and goals, along with the steps that the parties and the
agency can take to achieve reunification. Id.{¶57} “ ‘Reasonable efforts means that a children's services agency must act
diligently and provide services appropriate to the family's need to prevent the child's
removal or as a predicate to reunification.’ ” In re H.M.K., 3d Dist. Wyandot Nos. 16-12-
15 and Wyandot Nos. 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re D.A., 6th Dist. Lucas
No. L-11-1197, 2012-Ohio-1104, ¶ 30. “In determining whether the agency made
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 22
0022, & 2021 AP 09 0023
reasonable efforts [pursuant to R.C. 2151.419(A)(1)] to prevent the removal of the child
from the home, the issue is not whether the agency could have done more, but whether
it did enough to satisfy the reasonableness standard under the statute.” In re Lewis, 4th
Dist. No. 03CA12, 2003-Ohio-5262, at ¶ 16. “ ‘Reasonable efforts’ does not mean all
available efforts.” Id. 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).
{¶58} As set forth in our Statement of the Case and Facts, supra, TCJFS made
reasonable efforts to reunite Mother with the Children by establishing a workable case
plan which included services to address concerns with Mother’s mental health, her
parenting skills, and chronic homelessness. Mother participated in two sessions of
Goodwill Parenting classes. Mother requested the opportunity to retake the class a third
time, but the request was denied. Mother underwent two psychological assessments.
Dr. Aimee Thomas testified Mother’s mental health issues were “very severe” and opined
reunification should not be considered until Mother was consistently taking medication.
Both Dr. Thomas and Dr. Dean questioned Mother’s ability to adequately parent due to
her own significant issues. Mother refused to take any prescribed medication, using CBD
gummies for her anxiety. Mother saw one counselor after another. Mother was opposed
to every suggested treatment plan.
{¶59} Mother asserts TCJFS’s refusal to grant her visitation with Child 1 and Child
2 exacerbated her own childhood trauma. The trial court deemed visitation not in the best
interest of Child 1 and Child 2, which was the focus of the proceedings. The lack of
visitation does not constitute a failure to use reasonable efforts.
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 23
0022, & 2021 AP 09 0023
{¶60} We note a reasonable efforts determination is not required at a permanent
custody hearing under R.C. 2151.353(A)(4) when the record demonstrates such
determination was made earlier in the proceedings. In re N.R., 8th Dist. Cuyahoga No.
110144, 2021-Ohio-1589, ¶ 38, citing In re A.R., 8th Dist. Cuyahoga No. 109482, 2020-
Ohio-5005, ¶ 32. However, if the agency has not established reasonable efforts have
been made prior to the permanent custody hearing, then it must demonstrate such efforts
at that time. In re N.R. at ¶ 38, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 43. In this case, after each hearing which resulted in the removal of the
Children from Mother's custody or continued their placement outside the home, the trial
court found TCJFS used reasonable efforts to prevent their continued removal or to make
it possible for them to safely return home. See R.C. 2151.419(A)(1). At no time did
Mother or any other party challenge the reasonable efforts findings.
{¶61} Nonetheless, we find TCJFS used reasonable efforts to reunify the Children
with Mother.
{¶62} Mother’s first assignment of error is overruled.
MOTHER
II, III
{¶63} In her second assignment of error, Mother maintains the trial court’s
decision to grant permanent custody of the Children to TCFJS was not supported by clear
and convincing evidence. In her third assignment of error, Mother challenges the trial
court’s finding granting permanent custody to TCJFS was in the Children’s best interest.
{¶64} 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
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 24
0022, & 2021 AP 09 0023
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.
{¶65} 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.
{¶66} 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.
{¶67} 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
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 25
0022, & 2021 AP 09 0023
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.
{¶68} 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
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.
{¶69} As set forth in our Statement of the Facts and Case, supra, we find there
was sufficient and substantial competent evidence to support the trial court’s grant of
permanent custody to TCJFS. Mother failed to remedy the problems which initially caused
the removal of the Children from her home. Despite two years of case plan services,
Mother failed to accept any responsibility for her past behavior and viewed herself as the
victim. Mother did not successfully complete parenting classes. Mother has not been
consistent with counseling, moving from one counselor to another. She refused to take
prescription medication despite being advised of the necessity by mental health providers.
Mother’s behavior was described as erratic, inappropriate, and overall concerning
throughout the pendency of the case.
{¶70} We note the trial court found, pursuant to R.C. 2151.414(B)(1)(d), the
Children had been in the temporary custody of TCJFS for a period of time in excess of
twelve of the prior twenty-two consecutive months. Mother does not challenge this
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 26
0022, & 2021 AP 09 0023
finding. The 12 of 22 finding alone, in conjunction with a best interest finding, is sufficient
to support the grant of permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118,
2008-Ohio-5458, ¶ 45.
{¶71} The record establishes the following with respect to best interest. The
Children underwent trauma assessments with Carrie Schnirring at Lighthouse. Child 1
and Child 2 were diagnosed with post-traumatic stress disorder. On March 5, 2021, Child
1 was placed in therapeutic foster care. Prior to this placement, Child 1 had been in a
residential placement. Child 1 wishes to stay with her current foster family and be adopted
by them. Child 1 does not want to have any contact with Parents because “they are bad.”
Tr. at 109. Child 1 has no remaining bond with Mother. Child 1 is well adjusted in her
foster home. The GAL stated she has never seen Child 1 so happy or growing as much
as she is currently.
{¶72} Child 2 was in a foster home, but her behaviors escalated and she was
moved to a lockdown facility. Child 2 is currently at a restrictive facility in Toledo. Child
2 feels safe in her current placement. Child 2 did not express a desire to see Parents.
{¶73} Child 3 has been in the same foster home since the beginning of the case.
The newborn is placed in the same foster home. Child 3 is extremely well taken care of
by his foster family. He is bonded with and attached to his foster parents. He is also
extremely attached to his newborn sibling.
{¶74} Dr. Thomas opined “reunification should not be considered unless and until
[Mother] is committed to taking her medication as directed.” The GAL recommended
TCJFS be granted permanent custody of the Children.
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 27
0022, & 2021 AP 09 0023
{¶75} Based upon the foregoing, we find the trial court's decision to grant
permanent custody of the Children to TCJFS is not against the manifest weight of the
evidence. We also 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.
{¶76} Mother’s second and third assignments of error are overruled.
MOTHER
IV
FATHER
I
{¶77} In Mother’s fourth and Father’s sole assignments of error, Parents contend
the trial court erred granting permanent custody to TCJFS because the Agency failed to
consider placement of the Children with their maternal aunt.
{¶78} In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, the
Supreme Court of Ohio held a trial court's statutory duty, when determining whether it is
in the best interest of a child to grant permanent custody to an agency, does not include
finding by clear and convincing evidence that no suitable relative was available for
placement. Id. at ¶64. The Schaefer Court explained R.C. 2151.414 “requires the court
to find the best option for the child once a determination has been made pursuant to R.C.
2151.414(B)(1)(a) through (d). The statute does not make the availability of a placement
that would not require a termination of parental rights an all-controlling factor. The statute
does not even require the court to weigh that factor more heavily than other factors.” Id.
Instead, a child's best interest is served by placing the child in a permanent situation that
fosters growth, stability, and security. In re Adoption of Ridenour, 61 Ohio St.3d 319, 324,
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 28
0022, & 2021 AP 09 0023
574 N.E.2d 1055 (1991). Thus, courts are not required to favor relative placement if, after
considering all the factors, it is in the child's best interest for the agency to be granted
permanent custody. Schaefer at ¶ 64; accord In re T.G., 4th Dist. Athens No. 15CA24,
2015-Ohio-5330, 2015 WL 9303036, ¶ 24; In re V.C., 8th Dist. Cuyahoga No. 102903,
2015-Ohio-4991, 2015 WL 7777606, ¶ 61 (stating relative's positive relationship with child
and willingness to provide an appropriate home did not trump child's best interest).
{¶79} At the permanent custody hearing, Lundy testified she lives in a two-
bedroom, two-bathroom apartment. She expressed a willingness to move if granted
custody of the Children. Lundy was unaware of Child 1 and Child 2’s behavioral issues.
Lundy stated Mother has better control over her mental health, attends therapy, and takes
her medication. She had no concerns with the trial court returning the Children to Parents.
Lundy acknowledged she would return the Children to Parents “if it’s all done with the
Courts, and everything is done, and she’s completed everything, yeah.” Id. at 503. Lundy
indicated she contacted TCJFS on one occasion, but had no further contact from the
Agency.
{¶80} We find the trial court had no duty to consider placing the Children with
Lundy before granting permanent custody to TCJFS. Child 1 and Child 3 are doing well
in their foster placements. Child 2 has extreme behavior issues and is currently in a
residential facility where she feels safe. Child 1 and Child 2 were unable to be placed
together because of their behavior toward each other. Lundy had no grasp of the
seriousness of the trauma Child 1 and Child 2 suffer as the result of Mother’s mental
health issues.
{¶81} Mother’s fourth and Father’s sole assignments of error are overruled.
Tuscarawas County, Case Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 29
0022, & 2021 AP 09 0023
{¶82} The judgment of the Tuscarawas County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur