In re C.F. , 2014 Ohio 5631 ( 2014 )

[Cite as In re C.F., 2014-Ohio-5631.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
IN RE:
C.F., CASE NO. 17-14-16
ADJUDICATED ABUSED,
NEGLECTED, AND DEPENDENT CHILD.
OPINION
[TOM MORRISON - APPELLANT].
Appeal from Shelby County Common Pleas Court
Juvenile Division
Trial Court No. 2011-ABU-0007
Judgment Affirmed
Date of Decision: December 22, 2014
APPEARANCES:
Scott A. Kelly for Appellant
Brandon W. Puckett for Appellee
Case No. 17-14-16
WILLAMOWSKI, P.J.
{¶1} Appellant Tom Morrison (“Morrison”) brings this appeal from the
judgment of the Court of Common Pleas of Shelby County, Juvenile Division,
terminating his parental rights and granting permanent custody to appellee Shelby
County Department of Job and Family Services, Children Services Division (“the
Agency”). Morrison challenges the judgment claiming that the trial court did not
accurately consider the statutory factors set forth in R.C. 2151.414(D)(1). For the
reasons set forth below, the judgment is affirmed.
{¶2} In October of 2003, C.F. was born to Rose Fisher (“Fisher”) and
Morrison. R. 1. Between the years of 2008 and 2009, C.F. was sexually abused
by Fisher’s then boyfriend, Jeffery Wullenweber, who was later convicted of gross
sexual imposition for his conduct towards C.F. R. 2. C.F. then engaged in sexual
contact with another child the same age as C.F. in 2010. In 2011, allegations were
made that Fisher’s new boyfriend, Jeremy Brookhart (“Brookhart”), attempted to
touch C.F. over her clothing. Id. A criminal investigation occurred, but no
criminal charges were pressed. Id. However, on March 11, 2011, the Agency
filed a complaint alleging that C.F. was an abused, neglected, and dependent child
and requested temporary custody. R. 1. The accompanying affidavit requested an
order of protective supervision so that the Agency could provide services to the
-2-
Case No. 17-14-16
family. R. 2. An initial hearing was held on March 24, 2011, and C.F. remained
in Fisher’s custody at that time. R. 17.
{¶3} On April 5, 2011, the Agency filed an initial case plan with a
permanency goal of preventing the removal of C.F. from Fisher’s home. R. 25.
The case plan provided for counseling for C.F. and for family coaching for Fisher.
Id. at 2. No services were listed on the plan for Morrison. Id.
{¶4} The adjudicatory hearing on the complaint was held April 8, 2011. R.
31. Fisher and Morrison both agreed that C.F. was dependent and needed the
counseling due to her prior history of being sexually abused. Id. All of the parties
agreed that C.F. should remain in the custody of Fisher under the protective
supervision of the Agency. Id. The parties also waived the waiting period
between the adjudication and the disposition. Id. The trial court then found that
C.F. was a dependent child and that she would remain in the custody of Fisher
with the Agency having protective supervision in order to provide services to C.F.
Id.
{¶5} On September 2, 2011, the Agency filed a motion for an emergency
no contact order between Brookhart and C.F. R. 36. The motion alleged that
Brookhart had been arrested on July 6, 2011, on multiple charges of gross sexual
imposition and rape involving minor children. Id. Despite the fact that Brookhart
-3-
Case No. 17-14-16
remained in jail, Fisher was allowing C.F. to have telephone contact with
Brookhart. Id. The motion was granted that same day. R. 37.
{¶6} On September 7, 2011, a semiannual administrative review of the case
plan was conducted. R. 38. The review indicated that family coaching services
had been terminated on May 16, 2011, as the counsel felt the services were no
longer needed. Id. Due to the new information concerning Brookhart, the Agency
was requesting that services be restarted. Id. No progress reports had been
received from C.F.’s counselor. Id. The Agency noted that some progress had
been made towards the case plan goals. Id. The Agency indicated that there was
no need to remove C.F. from Fisher’s custody at that time. Id. Again, no services
for Morrison were determined to be necessary. Id. On October 7, 2011, the
Agency sought to amend the case plan. R. 39. The amendments requested were to
remove Brookhart from services, to require a psychological evaluation of Fisher,
and to establish a no contact order between Brookhart and C.F. Id. Yet again, no
services were listed for Morrison in the case plan. Id. A hearing on the review
and requested amendments was held on October 12, 2011. R. 41. The trial court
approved the amended case plan and C.F. remained in Fisher’s custody. Id.
{¶7} The next semiannual administrative review of the case plan occurred
on March 7, 2012. R. 47. The review indicated that Fisher and C.F. were making
some progress, but recommended that services continue. Id. Fisher had met with
-4-
Case No. 17-14-16
the psychologist and was working with the in-home coach. Id. Again, no services
were suggested or provided for Morrison. Id. A hearing on the review was held
on April 3, 2012. R. 49. The trial court ordered that C.F. remain in Fisher’s
custody and the case plan be approved. Id.
{¶8} On April 11, 2012, the psychological evaluation of Fisher was filed
with the trial court. The report indicated that Fisher had low mental functioning
and had been a victim of sexual abuse herself. However, the report concluded that
with proper therapy, Fisher could parent C.F. The Agency then filed a motion to
amend the case plan to required psychological counseling for Fisher due to the
results of the evaluation. R. 52. The Agency also requested an order prohibiting
Fisher or her children from having any contact with sex offenders. Id. A hearing
was held on the motion on June 5, 2012. R. 56. The trial court granted the motion
after the parties all agreed with the amendments. Id
{¶9} On August 31, 2012, the third semiannual administrative review was
conducted. R. 57. The review indicated that progress was being made, but raised
some new concerns. Id. The review stated that Fisher and C.F. were now living
with Fisher’s sister, and that C.F.’s behavior was much better. Id. Fisher was
attending her counseling, but was frustrated with her employment and housing
situation. Id. The review also indicated that C.F. was still struggling with
behavior issues and with following rules. Id. The Agency indicated that if
-5-
Case No. 17-14-16
Fisher’s housing situation was not resolved, it would be looking for relative
placements, but no changes were recommended at that time. Id. Still, no services
were suggested for Morrison. Id. A hearing was held on the review on October 4,
2012. R. 60. The case plan was approved and ordered. Id.
{¶10} On November 29, 2012, the Agency filed a motion for an ex parte
emergency temporary custody order. R. 61. The change of custody was requested
due to a new report of abuse against C.F. by Robb North (“North”), with whom
Fisher was living. Id. The motion was granted and a hearing was set for
December 3, 2012. R. 62. Following the hearing, the trial court ordered that C.F.
be placed in the temporary custody of the Agency. R. 71. A new case plan was
filed on January 14, 2013. R. 73. The new case plan added services for Andrew
Hughes (“Hughes”), Fisher’s fiancé. Id. However, no services were added for
Morrison. Id.
{¶11} On January 22, 2013, Morrison filed a motion for custody of C.F. R.
74. On January 28, 2013, the Agency had to move C.F. from her foster home to
one that did not have younger children or boys due to her behavior. R. 77. A new
case plan was filed to accommodate this change. Id. The new case plan did
finally allow Morrison to have visitation with C.F. Id. On April 17, 2013,
Morrison filed a motion for a home study. R. 83. On May 16, 2013, a letter from
Crawford County Job and Family Services was filed denying approval of
-6-
Case No. 17-14-16
Morrison’s home study due to a “substantiated neglect case in September 2011
with other adults living in the home.” R. 86.
{¶12} A semiannual administrative review was held on February 27, 2013.
R. 80. The review indicated that C.F. had regressed in her progress with her
behavior problems escalating, which resulted in a finding that insufficient progress
was being made. Id. The review indicated that a home study of Morrison’s house
had been requested and that Morrison was attending visits an average of once a
month instead of every other Monday. Id. However, again no services were ever
listed for Morrison. Id. The Agency did make the following statement in its
summary: “[Morrison] has filed for custody, however, due to the counseling
recommendations that [C.F.] not reside with children of a younger age or old boys
the agency will not be in support of this.” Id. A hearing was held on this review
on March 7, 2013. R. 88. Morrison was present and agreed to the case plan
submitted by the Agency. Id.
{¶13} On May 31, 2013, the guardian ad litem (“GAL”) submitted her
report. R. 93. In the report, she made the following determination.
I have met all the parties in this case except [Morrison], father of
[C.F.]. Since [C.F.’s] behavior poses a threat to younger
children and [Morrison] has two, I believe that it is not in either
his or [C.F.’s] best interest to see him as a viable candidate for
custody.
-7-
Case No. 17-14-16
Id. On June 6, 2013, an amended case plan was submitted to the trial court. R. 95.
The new case plan addressed a change of custody for C.F.’s brother, who is not a
party to this appeal. Id. Again, the only mention of Morrison in the case plan is
that he was allowed supervised visitation with C.F. Id. No services for Morrison
were addressed. Id.
{¶14} Another amended case plan was submitted on August 12, 2013. R.
102. The changes to the case plan included removing Hughes from services due to
the termination of his engagement to Fisher, the granting of custody of C.F.’s
brother to his father, and the addition of protective daycare for the brother. Id.
The only mention of Morrison was that he was permitted to visit with C.F. one to
two times a month. Id. The Agency again noted that it was “still looking into
[Morrison] and any concerns that may be present.” Id.
{¶15} On August 15, 2013, the Agency held a semiannual administrative
review of the case plan. R. 104. In this plan the Agency did finally address
Morrison’s involvement. Id.
[C.F.’s] father [Morrison] has filed a motion for custody which is
scheduled to be heard on August 15, 2013. The agency is not in
support of [Morrison] receiving custody due to [C.F.’s]
counselor recommending that [C.F.] not be placed in a home
with younger children due to her sexually acting out behaviors.
The agency also has concerns with [Morrison’s] lack of
interaction with [C.F.] that has been observed during visitation.
[The Agency] did request that a home study be completed on
[Morrison’s] home. [Morrison’s] home study was denied due to
-8-
Case No. 17-14-16
[Morrison] having other adults who reside in his home that have
a history with Children Services.
Julie Morrison – Paternal Aunt of [C.F.] has expressed a desire
to obtain custody of [C.F.]. [The Agency] has instructed Julie to
notify the agency of when she would like a home study
completed. Julie has yet to do this as she is trying to find
appropriate housing.
Id. Once again, the Agency did not recommend any services for Morrison. Id.
This case plan was approved by the trial court on August 28, 2013. R. 107.
{¶16} On August 15, 2013, a hearing was held on Morrison’s motion for
custody of C.F. R. 108. At the conclusion of the hearing, the trial court denied the
motion. Id. However the trial court did order an increase in the visitation between
C.F. and Morrison. Id.
{¶17} On January 2, 2014, the Agency filed its motion for permanent
custody of C.F. R. 111. As to Morrison the motion made the following
allegations.
Additionally, [the Agency] requested that Crawford County
Children Services perform a home study for [Morrison], natural
father of C.F. Crawford County Children Services did not
approve his home study due to a substantiated neglect case in
September 2011 with other adults living in the home. There are
also concerns with C.F. being placed in a home with younger
children, per her therapist, Christian Coblentz.
Id. Morrison then filed a motion for permanent custody of C.F. on January 29,
2014. R. 126.
-9-
Case No. 17-14-16
{¶18} The Agency conducted its semiannual administrative review on
February 7, 2014. R. 131. In the review, the Agency indicated that Fisher had
made some progress in her counseling, but still lacks stable housing. Id. The
Agency did not address any services for Morrison, but instead merely stated that
placing C.F. with him was not supported due to his having younger children and
the denial of his home study by Crawford County. Id. A hearing was held on the
review on February 13, 2014. R. 133. The trial court approved the case plan as
submitted. Id.
{¶19} On April 16, 2014, the GAL submitted her report. R. 137. She
reported that C.F. indicated that she does not really know Morrison and “does not
have anything to talk about with him.” Id. The GAL said that she had met with
Morrison and observed his visit with C.F. Id. Morrison had limited reading skills,
which prohibited him from helping C.F. with her homework. Id. The GAL also
visited Morrison’s home where he lives with his two children under the age of
four, his girlfriend, and his girlfriend’s mother. Id. The home was described as a
double wide trailer with two bedrooms, two bathrooms, and a storage area
Morrison planned on turning into a bedroom for C.F. Id. Morrison claimed that
his social security income would be sufficient to support C.F. Id. Based upon all
of the information the GAL had reviewed, she made the following
recommendation regarding Morrison.
-10-
Case No. 17-14-16
[C.F.’s] biological father, [Morrison] has been declared an
ineligible candidate by both Crawford County and Shelby
County Children Services by virtue of a case involving his
household and the fact that there are small children in his
household. As a result, I recommend that Children Services
receives permanent custody of [C.F.].
Id.
{¶20} A hearing on the Agency’s motion for permanent custody of C.F. and
Morrison’s motion for legal custody of C.F. was held on April 24 and 25, 2014.
R. 163. The Agency presented multiple witnesses, but most of them had only had
interactions with Fisher, not with Morrison. Christian Coblentz (“Coblentz”)
testified that she was the therapist for C.F. from August of 2012 through the
hearing. Tr. 98. Coblentz testified that C.F. had been diagnosed with an
adjustment disorder due to her history of sexual abuse. Tr. 99. C.F. had also been
diagnosed with cyclothymic disorder which causes frequent mood swings. Tr.
100. When Coblentz first started treating C.F., she recommended to the Agency
that C.F. not be placed with younger children or other male children due to her
sexually acting out behavior. Tr. 105-106. Coblentz testified that C.F. had made
progress, but had “a ways to go before she’s, um, capable of understanding what
those boundaries are.” Tr. 107. Coblentz described C.F. as being “very
sexualized for her age. Tr. 108. Coblentz also testified that C.F. had problems
following rules and has had issues with self-harming behavior. Tr. 114-15.
-11-
Case No. 17-14-16
According to Coblentz, C.F. never had anything negative to say about her visits
with Morrison, but did indicate that there was a lack of interaction at times
between the two of them. Tr. 116. Coblentz indicated that since C.F. has been in
a stable home, her emotional stability has increased. Tr. 116. C.F. has told
Coblentz that she would like to live with Fisher because she knows her better than
Morrison. Tr. 118. Coblentz indicated that C.F.’s emotional state at the time of
the hearing did cause a risk that she would sexually act out towards younger
children or male children. Tr. 120. Coblentz’s recommendation was that C.F.
continues counseling. Tr. 120.
{¶21} On cross-examination, Coblentz admitted that she did not know what
the interaction between Morrison and C.F. was like prior to her being placed in
foster care. Tr. 127. Coblentz also testified that she really did not discuss C.F.’s
relationship with Morrison because her focus was on treating the results of the
abuse. Tr. 128. She testified that C.F. mentioned that she did not know Morrison
well, so C.F. was uncomfortable around him in the first few visits. Tr. 128-29.
Coblentz also admitted that she did not know Morrison well enough to be able to
give a recommendation concerning placement with him. Tr. 137. Coblentz did
testify that if C.F. were to be placed with Morrison, there would need to be
precautions taken to make sure that C.F.’s behavior towards Morrison’s younger
children was appropriate. Tr. 139. When questioned by the judge, Coblentz
-12-
Case No. 17-14-16
testified that based upon C.F.’s history, her behavior could become a problem in
Morrison’s home. Tr. 144.
{¶22} The Agency also presented the testimony of Tim Stauffer
(“Stauffer”), who is the foster father of C.F. Tr. 150. Stauffer described C.F. as a
strong-willed and challenging child who pushes the boundaries set for her. Tr.
150-51. Stauffer also testified that while C.F. has been living with him, he has not
witnessed any sexually acting out behavior. Tr. 154. According to Stauffer, C.F.
only sees Morrison every other week or so, and does not seem to care about the
visits. Tr. 155. C.F. reported that during the visits with Morrison, he frequently
spent more time tending to his toddler son than interacting with her. Tr. 155-56.
Morrison did not ignore her, but the interaction was limited. Tr. 156. Stauffer
testified that if C.F. was available for adoption, he and his wife would consider
adopting her. Tr. 156. On cross-examination, Stauffer testified that he did not
know Morrison other than saying hello at visits. Tr. 161. Stauffer also testified
that he and his wife had provided respite care for younger children while C.F. was
in the home and no issues arose. Tr. 166-67. When questioned about a placement
with Morrison, Stauffer testified that he did not foresee any issues with that other
than the fact that C.F. requires “a firm hand.” Tr. 171.
{¶23} Paula Zimmerman (“Zimmerman”) testified that she was assigned to
the case by CASA on May 3, 2013. Tr. 175. Zimmerman made a home visit to
-13-
Case No. 17-14-16
Morrison’s home in March of 2014. Tr. 176. According to Zimmerman,
Morrison’s home is a “double-wide” with three bedrooms, a kitchen and a living
room. Tr. 176. At the time of the visit, two of the bedrooms were occupied by
family members and the third was being used as a storage room. Tr. 176. The
home was occupied by Morrison, his girlfriend, their two children who were
almost four and under two, and the girlfriend’s mother. Tr. 176. Morrison, his
girlfriend, and the youngest child have one bedroom, while the girlfriend’s mother
and the older child share the second bedroom. Tr. 177. The third bedroom was
described as “a dark unfinished room” with a door that sticks. Tr. 177. The home
was described as “well lived in” with things covering most of the surfaces. Tr.
178.
{¶24} Zimmerman also testified that she had observed a visit between
Morrison and C.F. at a playground in July of 2013. Tr. 178. At the visit,
Zimmerman spent most of the time speaking with C.F. while Morrison spoke with
the in-home coach. Tr. 178. She described the interaction as non-existent. Tr.
178. When Morrison and one of his other, younger children visited with C.F.,
Morrison gave most of his attention to the toddler or his infant sons rather than
C.F. Tr. 179. Zimmerman also testified that Morrison’s sole source of income
was social security, though Morrison believes that his income would be sufficient
to take care of C.F. Tr. 180. Zimmerman did not believe that Morrison’s
-14-
Case No. 17-14-16
residence had sufficient space for C.F. Tr. 180. According to Zimmerman, C.F.
has told her that she would prefer to live with Fisher and her brother, but C.F. did
not seem to know what her options were. Tr. 185.
{¶25} On cross-examination, Zimmerman testified that Morrison’s home
did have a small bedroom set aside for C.F. Tr. 190. However, Zimmerman felt
there were too many people living in the small home. Tr. 190. Zimmerman
admitted that there were conclusions of her report as to Morrison’s ability of
which she had no direct knowledge, but was relying upon statements made by
third parties. Tr. 192. Zimmerman also admitted that her recommendation that
C.F. not be placed with Morrison due to his having small children in the home
came solely from the recommendation of Coblentz. Tr. 193. Although
Zimmerman questioned Morrison’s ability to provide for C.F. financially, she had
never asked to see his finances, but assumed that he could not due to his only
income being social security. Tr. 193-94. Zimmerman also admitted that when
she had observed no communication between Morrison and C.F. at a visit, she was
not present for the full visit. Tr. 194. The visit was two hours long, but she was
only present for approximately 45 minutes. Tr. 195. On redirect, Zimmerman
testified that C.F.’s room in Morrison’s home had a bed. Tr. 196.
{¶26} Janice Geise (“Geise”) testified that she was the in-home coach for
Fisher since February of 2013 and Morrison since May of 2013. Tr. 202. The
-15-
Case No. 17-14-16
visits between Morrison and C.F. had limited interaction and Morrison was not
able to help C.F. with her homework because of his limited intellectual abilities.
Tr. 202-203. When questioned about how Morrison would help C.F. with her
homework if he had custody, Morrison stated that he would get her a tutor, but
Geise did not think that would be financially possible for him. Tr. 203. During
some of the visits, Morrison would bring his toddler son or his mother or his sister.
Tr. 203. The best interaction was between C.F. and Morrison’s sister. Tr. 204.
Geise testified that she had suggested some topics he could discuss with C.F.
during the visits and there had been some improvements. Tr. 204. Visits were
scheduled with Morrison every other week, but were reduced to once a month in
July and August of 2013 due to Morrison missing visits. Tr. 204. Morrison
claimed he could not come to the visits due to transportation issues. Tr. 205. In
September of 2013, the visits were returned to every other week. Tr. 204. Since
September, Morrison had seventeen visits scheduled and attended ten. Tr. 205.
Morrison had a hard time talking to C.F. because he did not know what to say. Tr.
205. Geise testified that in an attempt to improve the visits, she wrote a letter to
Morrison giving him a list of topics. Tr. 206. Morrison seems to talk about the
same thing at every visit. Tr. 206. When Morrison does not interact with C.F., her
response is to just to eat her supper and not say anything. Tr. 207. When
Morrison would bring his toddler, he would spend most of the visit paying
-16-
Case No. 17-14-16
attention to him due to the child’s special needs. Tr. 207. Morrison told Geise
that he does not know what to do with a daughter as he has never had one. Tr.
207.
{¶27} Geise testified that she went over budgeting with Morrison. Tr. 208.
Morrison received approximately $1,000 a month and from that he makes two car
payments for approximately $700 a month and spends approximately $100 a
month in groceries. Tr. 209. His girlfriend or her mother pays all the other bills.
Tr. 209. Morrison’s mother controls his finances. Tr. 209. Geise does not believe
that Morrison is capable of managing his own finances due to his lower
intellectual functioning. Tr. 211. Geise was concerned that if Morrison were to
receive custody of C.F., she would not get the attention she needs because
Morrison has two other children with special needs, that Morrison would not be
able to help her with her homework, and that Morrison could not afford to get her
a tutor to help her with her homework. Tr. 211. Geise also had concerns
regarding Morrison’s parenting abilities because he does not know how to
discipline C.F.1 Tr. 212. Geise testified that Morrison was forgetful and did not
always remember when his visits were scheduled, so would call to ask. Tr. 212-
13. Finally Geise testified that there was no bond between C.F. and Morrison and
they do not show affection towards each other. Tr. 213. Morrison did not come to
1
Interestingly, Geise indicates all these concerns about Morrison, but the Agency did not list any concerns
on the case plan or offer parenting classes or budgeting classes to Morrison.
-17-
Case No. 17-14-16
the Christmas visit with C.F. because he thought it was a waste of time since the
Agency would not give him custody. Tr. 214. Morrison’s mother and sister did
come to that visit. Tr. 214. Geise testified that Morrison is difficult to converse
with because he repeats himself a lot and tends to need her to repeat what she is
saying as he does not seem to understand it. Tr. 214-16.
{¶28} On cross-examination, Geise admitted that Morrison has $200 a
month left over after his expenses. Tr. 245. However, she indicated that if
Morrison were to move out of his home with his girlfriend, he would not have
enough money to support C.F. Tr. 246. She testified that although Morrison had
23 visits scheduled since January of 2013, he had only attended 13 of the visits.
Tr. 248. However, none of the visits were missed without explanation. Tr. 249.
Geise testified that Morrison lived a long distance away and sometimes had car
trouble.2 Tr. 249-50. When Morrison came to the visits, he brought C.F. dinner,
but it was fast food that he picked up on his way to the visits. Tr. 250. When
C.F.’s half-brother came with Morrison, C.F. would interact with them some, but
not much due to the limitations of the boy. Tr. 250. Geise also admitted that
Morrison has the ability to parent the children and that he had made some
progress. Tr. 251. When questioned whether Morrison would be able to establish
a relationship with C.F., Geise testified as follows.
2
Notably, the Agency never added any transportation assistance to the case plan which may have allowed
Morrison to make more visits. Morrison resided in Bucyrus, while the visits occurred in Shelby County.
-18-
Case No. 17-14-16
He’s - - he’s not consistent with the - - with ideals that I pose, so
I would say no.
Tr. 251.
{¶29} Candi Mitchell (“Mitchell”) testified that she was the family coach
from January of 2013 until June of 2013. Tr. 259. Mitchell observed the visits
between Morrison and C.F. Tr. 262. During the visits, Morrison generally did
not play or talk with C.F. Tr. 264. At the visits where Morrison’s mother and
sister came, they would interact with C.F. while Morrison took care of his son. Tr.
265. Mitchell testified that Morrison “needs some help in making decisions and
choices for himself and directions at times and has a tough time focusing.” Tr.
268. Mitchell stated that C.F. did not seem to react in any way to the visits, that
when Morrison arrived, she would continue with her current activity. Tr. 275.
According to Mitchell, she did not believe that Morrison could be a parent to C.F.
because he did not make an effort to get to know her. Tr. 277. With C.F.’s
history, she would need more positive interaction and constant supervision than
what Morrison would provide. Tr. 278.
{¶30} Jessica Meyer (“Meyer”) testified that she was the ongoing
caseworker for this matter. Tr. 280. Meyer testified that prior to the Agency
receiving temporary custody, Morrison had expressed an interest in terminating
his rights due to the fact that Fisher had not allowed him visitation with C.F. even
-19-
Case No. 17-14-16
though he was paying child support. Tr. 316. After the Agency received
temporary custody, Morrison decided he would like to have custody of C.F. Tr.
317. She requested a home study by Crawford County since Morrison lives in
Bucyrus. Tr. 318. The home study was denied on the grounds that there had been
a substantiated claim of child neglect by an adult residing in his household. Tr.
318. Meyer admitted that she has not seen any visits between C.F. and Morrison,
but indicated that she had been told that there was a lack of interaction. Tr. 323.
Meyer testified that the Agency could not allow a placement with Morrison
because his home study had been denied, unless he was willing to move to a new
place without his girlfriend and their children. Tr. 327-28. Meyer admitted that
the Agency did not offer Morrison any assistance in finding a new place to live.
Tr. 328.
{¶31} On cross-examination, Meyer testified that the Agency had
considered Morrison as a potential placement for C.F., but that ended with the
home study was denied. Tr. 353. Meyer testified that the home study was denied
without even a visit to the home due to the substantiated case of neglect from
2011. Tr. 355. The background check of Morrison showed no issues. Tr. 356.
According to Meyer, the Agency would never allow Morrison to take custody of
C.F. without an approved home study. Tr. 357. Meyer admitted that she had
never been to Morrison’s home and was basing her decision solely upon the letter
-20-
Case No. 17-14-16
from Crawford County. Tr. 358. After Meyer’s testimony, the Agency rested its
case.
{¶32} Morrison presented the testimony of two witnesses. The first was
Mary Morrison (“Mary”), who was Morrison’s mother and C.F.’s paternal
grandmother. Tr. 387-88. The first time Mary met C.F. was at C.F.’s seventh
birthday party to which Fisher had invited her. Tr. 388. Mary testified that she
had visited with C.F. approximately twice a month since she was placed in the
temporary custody of the Agency, but with the bad weather in the winter,3 she had
not been able to attend all of the scheduled visits. Tr. 389. Mary testified that
Morrison lives in a three bedroom trailer that is kept clean. Tr. 390. Besides
Morrison, Morrison’s girlfriend, her mother, their son and their daughter live in
the home. Tr. 391. Mary describes the little boy as having a problem talking, but
indicated that Morrison has taught him sign language and that he goes to therapy.
Tr. 391-92. Whatever the children need, Morrison manages to meet those needs.
Tr. 392. Mary testified that when Morrison first started visiting with C.F. it was
difficult because he did not know what to say or how to act with her given her
situation. Tr. 392-93. However, the recent visits have been better. Tr. 393. Mary
described how at a recent visit, Morrison had taken a bat and ball with him to the
visit and played ball with C.F. Tr. 393. Additionally, Morrison has started
3
The winter of 2013-2014 was very cold, very snowy, and conditions were frequently not good for travel.
-21-
Case No. 17-14-16
playing on the playground with her and playing board games with her. Tr. 393.
Mary admitted that Morrison was not able to help C.F. with her homework due to
his limitations, but that his sister was able to do so. Tr. 395. Mary also admitted
that due to the limited time they have had to get to know C.F., the girl does not
have a close relationship with Morrison, but she does show some affection. Tr.
397. Prior to C.F. being in the custody of the Agency, Morrison did not get to see
her because Fisher refused to allow him visits. Tr. 398. Mary indicated that given
more time, the relationship between Morrison and C.F. would grow. Tr. 405.
{¶33} On cross-examination, Mary testified that Morrison did not learn
about C.F.’s existence until Fisher applied for public assistance. Tr. 406. After
they learned of C.F.’s existence, Morrison stayed away to avoid fights with Fisher.
Tr. 409. When questioned about Morrison’s ability to pay a tutor, Mary indicated
that she would help pay for it if Morrison needed her to do so. Tr. 412.
{¶34} Morrison then testified on his own behalf. Morrison testified that he
lives in Bucyrus with his girlfriend, her mother, his three year old son, and his one
year old daughter. Tr. 422-23. As to education, Morrison testified that he finished
the eleventh grade, but did not graduate and has not earned a GED. Tr. 424.
Morrison indicated that his physical health was good and that he had never been
diagnosed with a mental disorder. Tr. 425-26. Morrison testified that his only
source of income is social security. Tr. 427-28. When questioned about his
-22-
Case No. 17-14-16
finances, Morrison indicated that his bills were paid, that he has two car payments,
and pays child support. Tr. 429. Neither of the cars is driveable and he has not
had a working vehicle since December of 2013. Tr. 429. Morrison described his
home as a double-wide trailer with three bedrooms and two bathrooms. Tr. 433.
His daughter sleeps in the room he shares with his girlfriend, but has her own bed.
Tr. 435. His son sleeps in the same room as his grandmother, but likewise has his
own bed. Tr. 435. The third bedroom has a bed designated for C.F. Tr. 436. He
has lived in that home with his girlfriend since 2006 or 2007. Tr. 433. At times,
Morrison gets frustrated with his relationship and considers moving out, but has
never done so. Tr. 434-35.
{¶35} Morrison testified that he had a long distance relationship with
Fisher. Tr. 438. He first learned about the existence of C.F. or that Fisher had
even been pregnant when C.F. was seven. Tr. 438. When he learned about C.F.,
he was surprised and happy. Tr. 439. He tried to work out visitation with Fisher,
but she did not allow him to see C.F. Tr. 440. He first became involved with C.F.
once the Agency took temporary custody of C.F. Tr. 441. The initial visits with
C.F. occurred in the school building after school. Tr. 442. At that time, Morrison
had mixed emotions, but he tried to hide them. Tr. 442.
Well I mean I was like happy and kind of sad at the same time,
you know. I just wanted to break down and cry but I wouldn’t
do it.
-23-
Case No. 17-14-16
Tr. 442. Morrison testified that he did not know how to talk to or interact with
C.F. when he first started visiting. Tr. 443. This was due to C.F.’s age when he
met her and her prior history of abuse. Tr. 443. Morrison testified that if C.F.
were placed in his care, he would keep a “really good eye” on her to make sure she
was not abused again. Tr. 444. When questioned about the fact that Morrison has
missed visits, he indicated that he had issues with transportation and the bad
weather. Tr. 445-46. Morrison also testified that he had not moved because he
had two other children to care for as well and he could not just leave them. Tr.
446. Morrison feels that with additional time, he could form a relationship with
C.F. Tr. 451. He indicated that he had repeatedly asked for overnight visits, but
they were declined because of C.F.’s history. Tr. 452. When questioned
concerning the substantiated claim of neglect in 2011, he indicated that the issues
were resolved and he never lost custody of his son, who was the child claimed to
be neglected. Tr. 454-55.
{¶36} On cross-examination Morrison testified that he did not arrange for
visits prior to C.F. entering the custody of the Agency because he did not know
how to do so. Tr. 459. Morrison admitted that he had once told Meyer that he
wanted to give up his parental rights so that he did not have to pay child support.
Tr. 462. Morrison claimed that he did so because he “was upset, frustrated, and
-24-
Case No. 17-14-16
just beyond the point where [he] didn’t want to deal with anything anymore.” Tr.
462.
{¶37} On May 16, 2014, the trial court entered its judgment granting the
Agency’s motion for permanent custody. R. 163. Morrison filed his notice of
appeal on June 4, 2014. R. 164. On appeal, Morrison raises the following
assignment of error.
The trial court erred in terminating the parental rights of
[Morrison].
{¶38} The right to raise one’s own child is a basic and essential civil right.
In re Murray (1990), 52 Ohio St. 3d 155, 556 N.E.2d 1169. “Parents have a
‘fundamental liberty interest’ in the care, custody, and management of their
children.” In re Leveck, 3d Dist. No. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269,
¶6. These rights may be terminated, however, under appropriate circumstances
and when all due process safeguards have been followed. Id. When considering
a motion to terminate parental rights, the trial court must comply with the
statutory requirements set forth in R.C. 2151.414. These requirements include, in
pertinent part, as follows.
(B)(1) Except as provided in division (B)(2) of this section, the
court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to division (A) of
this section, by clear and convincing evidence, that it is in the
best interest of the child to grant permanent custody of the child
-25-
Case No. 17-14-16
to the agency that filed the motion for permanent custody and
that any of the following apply:
***
(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 * * *.
For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency
on the earlier of the date the child is adjudicated pursuant to
[R.C. 2151.28] or the date that is sixty days after the removal of
the child from home.
***
(C) In making the determination required by this section * * *, a
court shall not consider the effect the granting of permanent
custody to the agency would have upon any parent of the child.
A written report of the guardian ad litem of the child shall be
submitted to the court prior to or at the time of the hearing held
pursuant to division (A) of this section * * * but shall not be
submitted under oath.
***
(D)(1) In determining the best interest of a child at a hearing
held pursuant to division (A) of this section * * *, the court shall
consider all relevant factors, including, but not limited to, the
following:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
-26-
Case No. 17-14-16
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies * * * for twelve or more months of a
consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414.
{¶39} A review of the record raises questions for this court: If the Agency
was so concerned about Morrison as a parent, why was he never added to the case
plan for services? The record appears to indicate that the Agency looked at
Morrison more as a relative placement than as a parent. For example, the Agency
workers testified that once Morrison’s home study was denied for a prior claim of
neglect, they no longer considered him to be an appropriate placement. This may
be a valid viewpoint for a relative placement who has no right to custody of a
child, but it is not the appropriate standard when dealing with a parent who has a
fundamental right to raise his child. If the standard for granting custody to the
Agency were that a parent had a substantiated case of neglect, then most parents
whose children are removed would automatically lose custody of their children
-27-
Case No. 17-14-16
because that is exactly why the Agency is involved with the family. The Agency
workers testified that they did not investigate the substantiated claim, but merely
relied upon a letter from Crawford County saying there was a substantiated claim
of neglect by an adult in the household in 2011. The letter did not address what
the claim was, who was the perpetrator, what actions were taken, or what the
result was. From Morrison’s testimony, we learned that there was a substantiated
claim and his son was removed from the home for a week or so before the
situation was remedied and he was returned to the home. We know from the
testimony of Morrison and the Agency that the son had been returned to Morrison
and his girlfriend and was living with them at the time of the hearing. We know
that the letter did not indicate that there was any ongoing case. We also know that
the Agency determined that there were no issues with Morrison’s parenting of his
son that caused them any concerns. The only solution the Agency offered
Morrison was that he could move out on his own and request a new home study.
His failure to do so was cited as a lack of true desire to parent C.F. However, the
Agency admitted that Morrison probably did not have the finances to move out on
his own and also admitted that they did not offer him any assistance in finding
housing or applying for financial assistance. Instead, the Agency merely left
Morrison to figure it out on his own. Additionally, the suggestion that Morrison
just move out placed him into a situation where he would be required to leave his
-28-
Case No. 17-14-16
other children in order to have a mere chance that the Agency might agree to allow
him to have custody of C.F. No parent should be made to choose between their
children.
{¶40} Other issues raised by the Agency included Morrison’s lack of
education and low intelligence interfering with his ability to help C.F. with her
homework. The Agency repeatedly indicated that Morrison had low intellectual
functioning, but when questioned about what his functioning level was, were
unable to answer. The reason the Agency did not know the answer was because
the Agency did not bother to find out. They did not request any psychological
testing for Morrison or make any attempt to determine if the situation was one that
could be remedied. The Agency indicated that he was not intelligent enough to
manage his own finances and that his mother paid his bills. If his intellectual
capacity was so low as to prevent him from functioning as a parent, why did the
Agency not address the problem and appoint a guardian ad litem for Morrison?
{¶41} Likewise, the Agency based its case on the fact that Morrison had no
relationship with C.F. The evidence clearly showed that Morrison did not even
know C.F. existed until she was seven years old and even then Fisher did not
allow visitation while she still had custody of C.F. Morrison testified that he did
not push the issue because he did not want to make the situation with Fisher
worse. Once the Agency obtained temporary custody, Morrison requested
-29-
Case No. 17-14-16
visitation and it was granted. However, Morrison did not know how to interact
with C.F., not only because of her age and the fact that she was a stranger, but also
because of her past history of multiple instances of sexual abuse. Although the
Agency did provide a coach during the visitations to assist him, that was the sole
extent of the assistance. Geise testified that she went so far as to send him a letter
which suggested topics he could discuss. Morrison was not offered any
counseling either separately or with C.F. to help him come to terms with the abuse
and to teach him how to work with C.F. Again, Fisher was offered all of these
things, so why not Morrison? Additionally, Morrison was only offered twice a
month visits and lived a long distance from where the visits occurred. He had
unreliable transportation, which caused him to miss some of the visits. The
Agency offered no assistance in making the visits work. The case plan did not
provide for any phone contact between C.F. and Morrison either.
{¶42} The Agency was concerned about Morrison’s financial situation in
that he was only receiving social security income. However, the Agency did not
know his financial situation because they never asked for details of the income for
his household or for his expenses. The Agency did not know about his capacity to
work, again because they did not investigate. The Agency did not know if he
received food stamps or was receiving Medicaid. Instead of offering budgeting
classes or advising Morrison how to access services that might have assisted him
-30-
Case No. 17-14-16
in changing his predicament, the Agency left Morrison to his own devices to try
and solve the problem. Additionally, the Agency did not feel this was a concern
that needed to be addressed in any of the case plans.
{¶43} From the beginning, Morrison’s involvement was C.F. was ignored.
The Agency made no efforts to help foster a relationship between C.F. and
Morrison while she was in Fisher’s custody. The only mention of Morrison was
that he was the father of C.F. Once the Agency took custody of C.F., that
involvement barely changed. The Agency did allow visitation and provided
coaching at that visitation, but Morrison’s role as C.F.’s father was not seriously
considered as one of a parent, but rather only as a potential relative placement.
Other than the provision for allowing visitation with Morrison, the only mention
of Morrison on any case plan was to note that he had requested custody of C.F.,
but the Agency would not agree due to the denied home study and the fact that
Morrison had two younger children in the home. Both of these issues were ones
that should have been addressed by the Agency and attempts should have been
made to resolve them. Morrison could have been offered parenting classes to help
him understand what it would take to parent C.F. due to her background and what
steps would be necessary to protect the younger children. The Agency should
have investigated the home to determine what the substantiated claim was and
whether it was ongoing. Instead, the Agency appeared to have made a
-31-
Case No. 17-14-16
determination at the beginning that he was not an appropriate placement and
stopped there without any additional efforts made. Again, while this might be
appropriate if Morrison were a non-parent relative, it is not the proper view to take
for the father. The lack of effort by the Agency to return C.F. to a parent is
extremely troubling to this court. No parent should be denied the fundamental
right to parent his or her child without the Agency making reasonable efforts to
prevent the termination of parental rights. When reasonable actions could be
taken, the Agency should not be allowed to do nothing and just wait for the child
to be in the Agency’s temporary custody for twelve months so that it can move to
terminate the parental rights of the parent.
{¶44} However, as troubling as the Agency’s inactions are, the standard of
review for this case is whether the trial court abused its discretion in determining
that it was in C.F.’s best interests to terminate Morrison’s parental rights. The
determination whether to grant a motion for permanent custody requires a two-
step approach. In re G.B., 10th Dist. Franklin No. 04AP-1024, 2005-Ohio-3141, ¶
13. The first step is to determine whether one of the factors set forth in R.C.
2151.414(B)(1) apply. Id. If one of those circumstances apply, then the trial court
must consider whether granting the motion is in the best interest of the child by
considering the factors set forth in R.C. 2151.414(D). Id.
-32-
Case No. 17-14-16
{¶45} The trial court first found that C.F. had been in the temporary
custody for more than twelve months out of the twenty-two consecutive months
prior to the filing of the complaint for permanent custody. This is the factor set
forth in R.C. 2151.414(B)(1)(d). Thus, the only consideration for the trial court in
this case was whether the granting of the Agency’s motion was in the best interest
of C.F. The trial court in this case considered all of the factors in R.C.
2151.414(D). The trial court determined that C.F.’s relationship with Morrison
was “awkward and distant.” The relationship between C.F. and the foster father
was determined to be positive. C.F. had indicated that C.F. wanted to live with her
brother more than anyone else, but otherwise did not seem to care where she lived.
The trial court found that C.F. needed a secure and permanent placement which
she could not get from her parents.4 Based upon these findings, the trial court
found that it was in the best interest of C.F. to be placed in the permanent custody
of the Agency and terminated the parental rights of Morrison and Fisher. A
review of the record shows that there is competent, credible evidence to support
the findings made by the trial court. Thus, this court cannot find that the trial court
abused its discretion. The assignment of error is overruled.
4
This court notes that the trial court referenced the mental health issues of both parents, but there was no
testimony concerning mental health issues of Morrison, only Fisher, because Morrison was not requested to
submit to any testing.
-33-
Case No. 17-14-16
{¶46} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Shelby County, Juvenile
Division, is affirmed.
Judgment Affirmed
ROGERS and SHAW, J.J., concur in Judgment Only.
/jlr
-34-