In re J.L. , 2016 Ohio 2858 ( 2016 )

[Cite as In re J.L., 2016-Ohio-2858.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: :
J.L. et al., : No. 15AP-889
(C.P.C. No. 13JU-05-6292)
(P.F., a.k.a. P.L., and M.L., :
(ACCELERATED CALENDAR)
Appellants). :
D E C I S I O N
Rendered on May 5, 2016
On brief: Erik L. Smith, for appellant P.F., a.k.a. P.L.
On brief: Jesse A. Atkins, for appellant M.L.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
SADLER, J.
{¶ 1} Appellants, P.F., a.k.a. P.L., and M.L., appeal from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch, granting appellee's, Franklin County Children Services ("FCCS"), amended
motion for permanent custody of J.L. and C.L.1 For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This case concerns legal permanent custody of two minor children, J.L.,
born in July 2005, and C.L., born in January 2010. The children are siblings who share
the same biological parents: mother, P.F., and father, M.L.
{¶ 3} On May 1, 2013, FCCS filed a complaint stating causes of action in neglect
and dependency in regard to both children. The complaint cited unsanitary and
inadequate home conditions, the delayed social and educational development of both
1 Also known as K.L.
No. 15AP-889 2
children, the parents' lack of supervision and discipline of the children, and the family's
previous history with the agency. Specifically, among other allegations, the complaint
stated that five reports of abuse and neglect had been received since the case opening in
September 2012. A December 2012 referral stated that the home was in poor condition
with dirty diapers, dog feces, and lots of clutter on the floor. The mother admitted
marijuana use. Both children were developmentally delayed and not potty trained, and
J.L. was cognitively delayed and non-verbal. In February 2013, J.L. went missing from
the home, and, after an hour of searching, was located and returned by police. Police
observed the house to be full of dog feces, roaches, and unsafe debris. The children were
transported to FCCS for safekeeping but then returned to the parents. About one month
later, educational neglect regarding J.L. was substantiated: he had missed 21.5 days of
school, with 16 days unexcused.
{¶ 4} As a result of the complaint, on May 2, 2013, a magistrate granted a
temporary order of protective supervision and appointed counsel for the parents and a
guardian ad litem for the mother. On June 11, 2013, at the request of the state, the
magistrate ordered several allegations stricken from the complaint and dismissed the
neglect cause of action. The magistrate then adjudicated the children dependent under
R.C. 2151.04(C), made the children wards of the state, and placed them under court-
ordered protective supervision while the children remained in the home. On July 9, 2013,
the magistrate held a case plan hearing and subsequently adopted the plan.
{¶ 5} One month later, on August 8, 2013, FCCS moved for the court to exercise
its continuing jurisdiction to modify custody in response to substantiated sexual abuse of
C.L. by P.F.'s maternal uncle, C.T. The incident arose while P.F. was in jail, leaving M.L.
to care for the children. According to the motion, although M.L. knew that C.T. sexually
abused P.F. when she was a child and that C.T. had masturbated in front of J.L., he
allowed C.L. to stay at P.F.'s sister's home, where C.T. also resided. P.F.'s sister witnessed
C.T. taking pictures of C.L.'s private parts with his cell phone, and it was reported that
C.T. french kissed and digitally penetrated C.L., making her bleed. M.L. allegedly did not
want to call the police in order to not put C.L. through an investigation. FCCS voiced
additional concerns, including J.L.'s sexualized behavior, a report of sexual abuse of J.L.
in the past, which was unsubstantiated due to his delays and primarily non-verbal
No. 15AP-889 3
condition, the parents' willingness to allow random people in the home with the children,
and the continued "deplorable" condition of the home. (Aug. 8, 2013 FCCS' Motion, 3.)
{¶ 6} On August 9, 2013, the magistrate granted temporary custody to FCCS with
a further order for the parent to have supervised visits and to not discuss the case with the
children. The visitations were set for every other week at the child's respective facility.
On November 6, 2013, FCCS moved to terminate visitations. According to the motion, the
children were "making tremendous improvement [in placement] until they visit with their
Parents." (Nov. 6, 2013 FCCS' Motion, 2.) The motion describes P.F.'s and M.L.'s
continuing state of poor hygiene, and P.F.'s continuing and unaddressed problems with
anger. After C.L. returned from her visit with her mother and father with nits in her hair,
the agency provided the parents with lice kits and were given simple instruction how to
use the kits, but the parents refused to use the kits and continued to arrive at visitations
with lice. The parents were also instructed to not bring bags to the visitation after
bedbugs and cockroaches were observed to be crawling out of the bags. According to the
motion, P.F. was verbally aggressive with FCCS staff, at one point requiring the sheriff to
intervene. A cab company contacted FCCS with concerns about the parents' very serious
threats to harm agency workers. The motion also indicates that P.F. refused to work with
the Franklin County Board of Developmental Disabilities to assist her with her own needs
and references a psychological report stating that P.F. struggles with managing her anger
when she experiences any conflict, and, when angry, she demonstrates poor judgment.
{¶ 7} On November 8, 2013, the magistrate ordered the visitations terminated
pending a November 19, 2013 hearing, and, after the hearing, terminated the visitations
pending further order. The magistrate issued an order of temporary custody and
commitment to FCCS on January 22, 2014, and an amended case plan was approved and
made an order of the court. The order permitted P.F. and M.L. one visitation with J.L. per
month, supervised by a counselor at the facility where he had been placed for treatment,
with FCCS to provide transportation to and from the visit. The order further specifies that
the visit would be suspended if any inappropriate behavior or outbursts occurred during
the visits.
{¶ 8} On April 15, 2014, FCCS moved to terminate the visits between the parents
and J.L. According to the motion, since the parental visits were reinstated, his sexualized
No. 15AP-889 4
behaviors had increased, including making increased explicit and mature sexual
comments, asking to grab private body parts of staff, and grabbing his roommate's private
body parts after a visit. A few days later, the magistrate suspended visitations pending the
next hearing.
{¶ 9} On July 7, 2014, FCCS filed a motion for permanent custody, proceeding
under R.C. 2151.414(B)(1)(a) and (b), and arguing permanent custody with FCCS is in the
best interest of the children. On October 10, 2014, FCCS filed an amended motion for
permanent custody, adding R.C. 2151.414(B)(1)(d) to allege the children had been in the
custody of FCCS for 12 or more of a consecutive 22-month period.
{¶ 10} On October 14, 2014, P.F. moved for visitation with both children. The
court denied the motion on April 20, 2015 after evidence at the hearing showed both
children experienced specific negative reactions to visitations with P.F. and M.L. Before
visitations, J.L. broke out in hives, and after the visits, J.L.'s deviant and sexual behaviors
and sexual speech increased. C.L. regressed in potty training, meltdowns, and speech
progression after the visits, reverting to baby-talk.
{¶ 11} The guardian ad litem filed his final report on May 18, 2015, recommending
the court grant FCCS' motion for permanent custody.
{¶ 12} The juvenile court held a trial on the amended motion for permanent
custody on August 3 through 6, 2015. At the outset of the trial, the judge states that
"[w]e're here on the motion for permanent custody as amended filed October 10th, 2014,"
and proceeds to discuss service of process for both the original and amended complaint.
(Aug. 3, 2015 Tr. 4.) The judge then summarized her interview with each child. C.L.
believes she has had two mothers: her first foster mom and her current foster mom. She
had little to say about her original parents beyond beginning to talk about someone in jail.
She expressed that she loves another child in the current foster family and wants to stay
with her. The judge did not believe C.L., at age five, had an understanding of adoption but
said she loves her foster family very much and was "very firm" about wanting to stay with
them. (Aug. 3, 2015 Tr. 11.) Regarding her conversation with J.L., the judge noted he had
just learned to speak and was too developmentally delayed to express his wishes about
where he wants to live.
No. 15AP-889 5
{¶ 13} Two caseworkers charged with handling the family's case for FCCS testified.
Brooks Jaccaud testified to being the family's FCCS caseworker beginning in August 2013,
when the children were already in FCCS' custody. Jaccaud's review of the case showed
that the parents were linked with a community service worker since March 2013,
Guidestone parent mentoring, mental health counseling, and housing resources. To work
toward reunification, the case plan objectives for the parents concerned stable housing
and home conditions, psychological evaluations, parenting education, services for the
children's special needs, and the children's hygiene. P.F. additionally needed to complete
an alcohol and drug assessment and ongoing drug screens. She believed both parents
understood the case plan.
{¶ 14} In regard to the stable housing objective, Jaccaud described the initial
condition of M.L.'s and P.F.'s home as cluttered but with clear pathways. The kitchen was
dirty and had an odor, while the upstairs was fairly cleaned up. She noted a hook lock on
the outside of J.L.'s bedroom door. The house had an infestation of bedbugs and
cockroaches. The condition of the home then deteriorated, appearing less clean with less
clear pathways. Jaccaud opined that the home was not in a condition where she could
have recommended a return of the children at that point. The couple was evicted from the
home in April 2014 and moved into P.F.'s sister's residence. Because P.F.'s sister would
not allow her into her home, Jaccaud was unable to view the condition of that residence.
Jaccaud agreed that when the children were removed from the home, the loss of the
children's social security income had a residual financial effect on the couple, including
their ability to pay rent on housing. Jaccaud testified that she only spoke to the couple a
few times about addressing their personal hygiene issues, such as showering and wearing
clean clothes, because they would become "very volatile very quickly." (Aug. 4, 2015 Tr.
14.)
{¶ 15} According to Jaccaud, both P.F. and M.L. completed the case plan objective
of completing psychological exams. The primary recommendation for P.F. was intensive
psychotherapy with someone who could address personality disorder and cognitive
delays, as well as completing ongoing drug screens. Jaccaud testified that P.F.
sporadically attended counseling at a facility, expressed concerns about the counselor and
facility, switched counselors, and was prompted many times to change facilities to suit her
No. 15AP-889 6
needs. Jaccaud testified that while she could not change P.F.'s service herself, she gave
P.F. contact information for alternative counseling facilities several times. One of those
facilities reported that P.F. made two appointments but then missed them. Overall,
Jaccaud believed that P.F. "refused to address any of her own trauma or her own current
mental health concerns at all in counseling." (Aug. 4, 2015 Tr. 67-68.) Jaccaud
additionally testified that P.F. completed 8 and missed 96 drug screens, even though she
or her mentor would remind her or set an alarm on her cell phone, and the agency
provided bus passes in order for her to get back and forth to the screening facility. As to
M.L., Jaccaud said the psychological exam recommendations included an observation
that he would not necessarily be able to parent effectively if he remained with P.F.
Jaccaud and her supervisor discussed with M.L. the option of separating from P.F. if she
were unable to reunify with the children, but M.L. was insistent that he would not
separate from her.
{¶ 16} The recommendations additionally included parenting programs to work
with the parents on the children's special needs. When P.F. and M.L. still had visitation
with the children, they were linked to parent education through each child's facility, in
addition to continuing involvement with Guidestone. After visits were suspended, the
caseworkers continued to regularly work with each parent on their goals, attempted to
locate a program to treat P.F.'s counseling needs, and linked P.F. with the National
Alliance for Mental Illness ("NAMI").
{¶ 17} Jaccaud described her attempts to engage P.F. in the case plan as difficult,
with P.F. quickly becoming volatile and shifting the conversation. Due to P.F.'s threats
against her, the agency directed Jaccaud to not have contact with the couple by herself.
The parents attended "SAR" meetings every three months to review the case plan, and
during the first meeting P.F. quickly became upset, banged her head against the wall,
threw herself against the wall, and became loud and volatile to the point where she was
asked to not return. (Aug. 4, 2015 Tr. 31.) P.F. was volatile at each case plan review
meeting. Jaccaud also had difficulties getting M.L. to focus on the case plan instead of
getting distracted and upset about other frustrations with his first child or with the court,
and taking out the frustration on Jaccaud and her supervisor. Although he did not
escalate as quickly as P.F., M.L. also would become volatile in Jaccaud's view.
No. 15AP-889 7
{¶ 18} Regarding the case plan objective of learning how to protect their children,
Jaccaud testified that she would personally work with the couple on concerns and make
suggestions, and the couple also was linked to a parent mentor. Multiple times, Jaccaud
discussed with M.L. why the children were removed and what occurred with C.L. M.L.
expressed that he did not have a problem with C.L. staying in a home where C.T. lived,
even though he knew C.T. allegedly abused P.F. and her sister when they were young. He
assumed the uncle had grown out of molesting children and made several statements that
the uncle made one mistake. M.L. indicated that he was sorry for making the decision to
let C.L. stay in the home, but up until the end of Jaccaud's involvement with the case, M.L.
continued to not understand how allowing his daughter to stay in the home with C.T. had
posed a danger to her. Likewise, the couple did not have a concern with having people
they hardly knew move in with them to help pay the bills or how that could pose a danger
to the children if the children were to come back into the home.
{¶ 19} Regarding the visitation component of the case plan, Jaccaud testified that
M.L. and P.F. were consistent in attending scheduled visitations. At the visitations, the
couple brought appropriate food for children to the visits, and Jaccaud did not witness
inappropriate touching between the parents and children. M.L. would attempt to spend
most of the time talking about court and the case, and Jaccaud would need to constantly
redirect him to interact with the children. He made C.L. cry when he yelled at her not to
scribble on his coloring book page. The parents additionally made C.L. cry when they
scolded her for calling her foster parent "daddy." (Aug. 4, 2015 Tr. 38.) Jaccaud had to
redirect the parents' care and supervision of their children, for example, when P.F. told
C.L. to lick spilled yogurt off her shirt or when C.L. used toys inappropriately or ran across
a parking lot without intervention from the parents. The couple was generally not
receptive to Jaccaud's redirection and would be dismissive. The parents' hygiene at the
visitations was also a concern. The parents had lice, and a cockroach was observed
coming out of one of their bags. Jaccaud observed C.L. regressing in speech and potty
training after the visits with M.L. and P.F. She did not see any affection or very positive
interaction between C.L. and M.L. and thought C.L. was bonded to P.F. as a sibling rather
than a parent. C.L. expressed that she was fearful of J.L.
No. 15AP-889 8
{¶ 20} Regarding the case plan objective of understanding the special needs of
their children, Jaccaud testified that she had specific discussions with the couple about
J.L.'s diagnosis, treatment, and progress, but the couple did not have an understanding of
his needs. They were dismissive of the recommendations made by J.L.'s service team
about intensive treatment and services and would essentially say that J.L. had behavioral
issues that needed controlled. Jaccaud also did not believe the couple understood that
C.L. had special needs requiring treatment such as trauma-focused therapy. M.L.
disagreed that the molestation would cause ongoing trauma for C.L. in the future, and
P.F. would generally respond by referring to her own childhood molestation and how she
was just fine.
{¶ 21} Jaccaud testified that after the children were removed, she looked into
placement options with the children's maternal grandmother and maternal uncle but
ruled them out due to both of their histories with children services and the uncle's
pending domestic violence charge. M.L. would not provide her with family names.
{¶ 22} The FCCS caseworker who inherited the case from Jaccaud, Michael Penn,
testified that he began working on M.L.'s and P.F.'s case in August 2014. As their
caseworker, Penn attempted to assist P.F. and M.L. in implementing their case plan
objectives. When he received the case, the children were still in children services'
temporary custody, and M.L. and P.F. were residing at P.F.'s sister's house.
{¶ 23} According to Penn, he discussed the case plan with M.L. and P.F. and
identified areas that they needed to complete in order to reunify with the children, but the
couple would focus on expressing their frustrations with previous caseworkers and on not
having visits. Penn was not able to approve their housing because P.F.'s sister was not an
approved person due to losing custody of her own children as a result of safety risks. To
his knowledge, at the time of the hearing, M.L. and P.F. did not have housing sufficient for
the children.
{¶ 24} Regarding P.F.'s counseling, as far as Penn knew, she only attended one
session and would make the excuse that she did not feel like she needed counseling. P.F.
had also not completed any of the 53 drug screens offered since Penn had the case.
Therefore, to his knowledge, P.F. had not sufficiently addressed those components of the
case plan.
No. 15AP-889 9
{¶ 25} Regarding parenting classes, Penn testified that P.F. and M.L. received
parenting classes through their visitations with the children, until those visitations were
suspended due to the treatment needs of the children. Penn could not link the couple to
an appropriate parenting program, so he would talk to the couple about parenting skills
and protection issues, such as who they left the children in the care of, proper supervision
of the children, and cleanliness of the home. In Penn's view, in response to these
discussions, the couple would focus on issues unrelated to achieving the objective and also
minimize the expressed concerns. They did not see the need for the various ongoing
treatments for the children generally. P.F. would not vocalize that she understood J.L.'s
treatment needs. M.L. was able to articulate an understanding that the kids had a lot of
needs and had mentioned that he had previously sought help for J.L. by taking him to a
behavioral center at Children's Hospital. However, M.L. would minimize the needs of the
children and the associated treatments. The couple did not see the need for special
therapy for C.L. since the sexual abuse happened when she was so young and did not
express or eventually acquire an understanding of how allowing people into their home
would put the children at risk. Although M.L. apologized for the incident with C.L., M.L.'s
choices of who he allowed to be around his children made Penn concerned about his
decision-making ability regarding the children. Overall, based on his observations, Penn
did not think P.F. and M.L. made any type of progress in regard to parenting sufficient to
meet the case plan objective and testified to his belief that neither parent met case plan
objectives warranting reunification with the children.
{¶ 26} In his testimony, Penn provided an update of the current treatment and
status of each child. C.L. is doing very well in, and continues to need, individual trauma-
focused therapy and family counseling with her foster parents. She is in a special needs
preschool and is set to attend kindergarten next year without an IEP due to her progress.
Penn does not think C.L. has an ability to grasp the concept of adoption, but believes C.L.
is very bonded to her foster family and her foster siblings and says that she loves them.
Penn does not believe C.L. has a bond with M.L. and P.F., as she told him they were
deceased. J.L. is currently placed at a treatment facility, where he works with a
psychologist, a counselor, and a speech therapist to improve his aggression, sexual acting
out, developmental delays, and limited verbal abilities. A part of his treatment included
No. 15AP-889 10
trauma-focused therapy to deal with his prior home life with P.F. and M.L., where he
experienced neglect and may have been exposed to sexual abuse. Despite his special
needs, J.L. still has the ability to attach to people. He has a significant bond with a
particular staff member there, and Penn does not believe J.L. has a bond with P.F. or M.L.
and will often change the subject when asked about them. Penn also does not believe J.L.
has an ability to grasp the concept of permanent custody. Penn testified that the children
had not completed their treatment sufficiently to be able to return to M.L. and P.F. and
believed that if returned, J.L. would be unable to verbalize whether or not he was being
abused. Should FCCS secure permanent custody, Penn testified that, in accordance with
recommendations from J.L.'s therapists, J.L. would continue treatment in his current
residential facility in order to stabilize his behavior. When he is stable, he would
transition to a "stepdown group home" facility and then over months or even a year later,
he would possibly be stable enough to attempt an adoptive home placement. (Aug. 5,
2015 Tr. 48.)
{¶ 27} Penn testified that C.L. and J.L. have been in the custody of children
services for 12 months of a consecutive 22-month period, having been in temporary
custody of children services since August 9, 2013. No party objected to this statement or
challenged it on cross-examination. Penn concluded by stating the position of the agency
is that it is not safe or appropriate to return the children to M.L. and P.F. and
recommended that both C.L. and J.L. be placed in the permanent custody of children
services for purposes of adoption.
{¶ 28} From NAMI, Traci Whitmill testified that she worked as a parent advocate
for both P.F. and M.L. from November 2013 to September 2014. Specifically, she worked
with the couple on their housing, budget, food, utilities, P.F.'s personal hygiene, M.L.'s
employment prospects, and drug screens. According to Whitmill, the couple was not
interested in her recommendation of moving to more affordable housing instead of their
large half-double unit that was out of their budget and did not follow through with any
housing referrals that she made to them. She had repeated conversations about the
unclean condition of the home but saw little improvement. Whitmill additionally
recommended downsizing P.F.'s expensive cell phone plan, which cost over $100 a
No. 15AP-889 11
month, but P.F. would not consider cheaper plans. M.L. did not follow up on the
employment referrals Whitmill provided him.
{¶ 29} Whitmill testified that P.F.'s behavior was erratic, and P.F. would get very
upset anytime anybody told her no or she was not allowed to what she wanted to do with
her personal items or with the children. Whitmill observed this behavior at the case plan
review meetings where, no matter what was said, P.F. would not listen and instead
repeatedly responded "I don't care I want my kids." (Aug. 4, 2015 Tr. 205.) Ninety
percent of the time though, P.F. would behave well at the meetings. Whitmill believes
P.F.'s personal hygiene and behavior did improve over the course of time she spent with
her and that P.F. trusted her and was willing to work with her. Whitmill did not observe
problems with M.L.'s hygiene or behavior. Whitmill tried to assist P.F. with setting up
drug screens that she had missed, but P.F. insisted that she would not do them anymore.
Two or three times during the time Whitmill worked with her, P.F. told Whitmill that she
had either smoked marijuana or taken a pain pill that was not hers.
{¶ 30} Whitmill tried to terminate her involvement on the case because of the
couple's noncompliance with the objectives of the case plan but, after about one month,
Jaccaud persuaded her to return to assist the family. In September 2014, NAMI closed
the case because, although the couple would listen toWhitmill, they would not follow
through with any suggestions or referrals in order to complete the objectives of their FCCS
case plan. Whitmill saw a desire in the couple to do things to get the kids back but no
completion of actions to actually make that happen.
{¶ 31} Catherine Zawiska, clinical director of the Lutheran Homes Family and
Youth Services, testified to being the family's individual family therapist as well as the
group family therapist at J.L.'s residential placement. According to Zawiska, when J.L.
first entered the facility, at around age 8, he had moderate developmental delays, which
meant he could not speak very well and had fairly low functioning in his daily living skills.
He was also verbally and physically aggressive, had impulsive behavior, wore diapers or
pull ups, and was acting out sexually, including using mature sexual references along with
accurate gestures, grabbing at people's private areas, taking his clothes off, urinating on
people, and playing in feces. Prior to visits with M.L. and P.F., he would get very anxious
and break out in hives when therapists would talk about his parents coming to see him.
No. 15AP-889 12
She would also see an increase in his sexual speech and sexual and aggressive behavior
during those times. During counseling sessions with his family present, J.L. was very
anxious, and Zawiska had a hard time getting both J.L. and P.F. to focus on the therapy
sessions.
{¶ 32} Zawiska testified that J.L.'s behavior overall improved since his visitations
with P.F. and M.L. were suspended. J.L.'s sexual behavior is less intense and occurs less
often, his anxiety has improved, he is doing better at managing his emotions, he has
improved his speech and communication ability, and, although he still occasionally wets
the bed at night, he uses the restroom on his own and no longer wears diapers. Despite
his improvement, Zawiska testified that J.L. requires 24/7 supervision, which she did not
believe could be maintained in a home setting. Zawiska recommended that J.L. stay at his
current level of care at the residential facility.
{¶ 33} The guardian ad litem for both children, Maurice Henderson, testified to
being appointed to the position by the court in February 2013, when the case was opened
due to the unclean condition of the home, rather than allegations of abuse. When
Henderson initially toured the house that P.F. and M.L. lived in with the children, he
thought it was moderately clean and learned that the couple was working with Guidestone
to clean up. The inside of the house was extremely cluttered, smelled like body odor, and
had dog feces on the floor. When he toured the home, Henderson encountered two
individuals kissing in the kitchen. Nobody would tell Henderson who the individuals
were, but he thought they may have been living in the house with the family.
{¶ 34} Henderson testified that in his first interaction with the family, he did not
have concerns with M.L.'s interaction with the children. M.L. told Henderson that J.L.
was in school with an IEP, that he had taken him to Children's Hospital to get services
with his behavior, and that he was being potty trained. Rather, Henderson's initial main
concern was with P.F.'s interaction with J.L. He witnessed P.F. push J.L. into the couch
and play roughly with him, which prompted him to ask the court to appoint her a
guardian ad litem immediately after his visit.
{¶ 35} Henderson's first impression of M.L. changed. He became concerned that
M.L. was not being forthcoming about J.L. when he learned from the residential program
that they had to completely potty train J.L. upon his arrival. He also was concerned that,
No. 15AP-889 13
although M.L. was extremely truthful and somewhat remorseful about taking C.L. to stay
at a house where he knew C.T. lived, M.L. did not believe that C.T. would molest children
even though he knew C.T. had molested his wife and her sister as children, and M.L.
believed C.L. was too young to be traumatized. Henderson's continuing observations
included seeing P.F. exhibit irate, cursing, and threatening behavior to the point he would
contemplate finding a deputy and seeing P.F. push J.L. aside.
{¶ 36} Since he began working on the case, Henderson saw J.L.'s behaviors
progress. When he first observed J.L., who was seven or eight at the time, J.L. was non-
verbal, communicating only with his hands, and was wearing diapers due to a lack of
potty training. When J.L. first entered the residential facility, he would throw a tantrum
and use explicit sexual language. Now, according to Henderson, J.L. is a very calm child
with the ability to speak in complete sentences and understand some of what is discussed.
In response to P.F.'s and M.L.'s various motions for visitation, Henderson recommended
suspending the visitations for both children due to their regression after visits.
{¶ 37} Regarding the wishes of the children about who they want to live with,
Henderson did not believe C.L. understood what permanent custody or adoption means
but testified that she indicated she wanted to stay with her foster parents and loves her
sister. It took awhile for C.L. to remember P.F. and M.L., and she seemed to think they
passed away. Henderson also attempted to have a conversation with J.L. about
permanent custody, but J.L. did not understand the topic at all and would not answer
questions about P.F. or M.L.
{¶ 38} Ultimately, Henderson testified to his recommendation that the court grant
FCCS' motion for permanent custody for purposes of adoption. He based his
recommendation on the children's special needs, their progress since being removed,
concerns regarding M.L.'s and P.F.'s unmet case plan objectives and, in particular, P.F.'s
refusal to complete case plan objectives, and M.L.'s poor judgment regarding the
children's safety. He did not think M.L. and P.F. would be able to protect the children.
{¶ 39} P.F. testified that she and M.L. were complying with the case plan. To get
her children back, P.F. said she had to go to counseling, parenting classes, do drug
screens, get assessed for drug and alcohol, and "go get MRDD and to go look for housing."
(Aug. 5, 2015 Tr. 169.) Regarding her own counseling, she said she used to go and
No. 15AP-889 14
completed around ten sessions, but she did not think it was helping her because her
counselor constantly badgered and tried to aggravate her, so she would call him and make
up excuses not to go. P.F. testified that she never had any problems at meetings with
children services, never got angry except for one time just prior to trial when no one
would help her when their housing burned down, and never made threats. P.F.
additionally testified that she completed two drug and alcohol drug assessments but
stopped because her first caseworker told her she could. P.F. testified that she will not do
drug screenings anymore because they have enough drug screenings for her already, and
she did not think they benefitted her. According to P.F., she completed the MRDD test,
which determined she was not qualified for services related to developmental disabilities.
{¶ 40} Regarding parenting classes, P.F. testified that she and M.L. completed
some classes that addressed the children's special needs during visitations with the
children, but the classes stopped when their caseworker lied and had their visitations
terminated. Regarding general parenting classes, she said she cannot do them because
she called a few and they either want the kids with her or they want money she does not
have. She agreed that she did not complete the parenting programs but this was because
of children services' actions. When asked what she has learned about parenting from the
various caseworkers and advocates around her, P.F. replied "I don't know what to say
about that." (Aug. 4, 2015 Tr. 165.) When asked what special issues need to be addressed
for J.L., she replied "[h]e has – he does like stupid things, like I don't even know why he's
even doing it." (Aug. 4, 2015 Tr. 169.) These things included peeing on people and walls,
cussing, having screaming fits and throwing himself on the floor, and telling her all the
time that he wants to stab her. She had heard at meetings that J.L. is acting out sexually.
P.F. would "[j]ust try to get him help" and "[j]ust deal with it" by "just like talk[ing] to him
or something, I don't know." (Aug. 4, 2015 Tr. 171-72.) P.F. said she and M.L. did take
J.L. to the behavioral health clinic at Children's Hospital, who put him on medication that
made him mellow. They also received an IEP from J.L.'s school, but she did not
remember those requirements except that they would have him work with a speech
teacher. According to P.F., J.L. expressed the desire to return home with them during his
visitations. Regarding C.L., P.F. thought she was okay but was still in counseling, not
No. 15AP-889 15
because of what C.T. did to her but "[b]ecause you guys keep throwing [the molestation]
up in her face." (Aug. 4, 2015 Tr. 172.)
{¶ 41} As to housing, P.F. testified that she is looking for housing but either the
rent is too high or nobody would accept them as tenants or talk to her. P.F. said she tried
to get CMHA housing, but CMHA told her she was placed on their waiting list. P.F.
agreed that as of the date of the hearing, she was living at her sister's apartment and did
not have a place for the children to go to. She believes that if FCCS never took her
children, she would still have a place to live, but with the children gone, she now lacks the
finances to rent a place.
{¶ 42} Concerning her family income, P.F. testified to receiving $733 a month from
social security benefits and about $184 in food stamps. She agreed that she would receive
a financial benefit to the children returning in up to $1,400 to $1,500 in additional social
security benefits, depending on whether C.L. still qualifies, and she said she would use
that money to support the children's well-being. She and M.L. currently do not pay rent,
but they pay her sister's water bill of about $56 per month, a storage bill of $105 per
month, her cell phone bill, and at least one credit card bill. P.F. remembers her
caseworker suggesting not having a phone bill in order to put that money toward housing,
but P.F. insists she will keep her cell phone. After all bills due are paid, P.F. estimates that
$300 remains each month. She and M.L. have argued about M.L. getting a job or
applying for social security.
{¶ 43} M.L. testified to being the father of C.L., J.L., and a third child also born to
him and P.F. According to M.L., the third child was placed in permanent custody of
children services for purposes of adoption due to P.F.'s mental capacity and psychological
condition, which allegedly impaired her ability to be a responsible mother at the time.
M.L. agreed that P.F. does sometimes have anger management issues and specifically
controlling her temper but believed P.F. could be taught to parent the children and
believed he could assist her with understanding how to parent. M.L. testified that he
would not consider attempting to regain the children on his own without P.F. and
believed if FCCS returned the children, he could manage the needs and services of both
children and P.F. According to M.L., the stress of dealing with the case plan, children,
No. 15AP-889 16
and his responsibilities makes him depressed but not to the point he needs therapy or
medication.
{¶ 44} According to M.L., children services helped the couple with the cleanliness
of their home before ultimately suggesting they move and paying the deposit and first
month's rent on a new apartment. M.L. characterized the cleanliness of the homes he
lived in as "[s]ometimes poor," and said he and P.F. had 14 cats sharing 2 litter boxes as
well as 2 dogs who would relieve themselves inside of the house in the hallway due to a
lack of a yard. (Aug. 5, 2015 Tr. 264.) He said they tried to take care of their own hygiene
the best they could considering the cost of water bills and laundry. Children services or
other agencies or groups involved provided them with cleaning supplies, furniture, bus
passes, links to parenting classes, and paid for psychological evaluations. In addition to
helping with their home, M.L. remembered children services express concern over
keeping the children safe, due to the number of people that were in and out of the home,
and remembered catching one of these people touching a juvenile's breasts in the living
room in front of J.L.
{¶ 45} Before the children were removed from their custody, M.L. said that to
address J.L.'s hyper behavior and lack of control, they took him to a doctor and then to
the behavior clinic at Children's Hospital. According to M.L., the medicine provided by
Children's Hospital was not working, and he asked them for other suggestions, to no avail.
M.L. also said the couple was working with both children on potty training. M.L. agreed
that J.L. missed a lot of school when he lived with them.
{¶ 46} When P.F. went to jail, the children were giving him a hard time, so he took
up P.F.'s sister's offer to take C.L. overnight. According to M.L., he knew that C.T. had
allegedly molested his wife and her sister when they were children, knew that C.T. had
masturbated in front of J.L., and personally found him "kinda creepy," but M.L. had "no
problem" with C.L. staying in the same home with him "because [C.T.] never illustrated
any sexual behaviors around my children." (Aug. 5, 2015 Tr. 243; Aug. 3, 2015 Tr. 106.)
{¶ 47} After the children were removed from the home, M.L. testified that he was
"relieved * * * from the case plan" after P.F.'s counselor said he did not need counseling,
but then agreed that the case plan still required him to maintain stable and sanitary
housing and learn about and be able to handle the children's special needs, among other
No. 15AP-889 17
items. (Aug. 3, 2015 Tr. 100.) M.L. agreed that he did not have stable housing as of the
date of the hearing and agreed he had lived in two or three locations since the children
were removed from the home. M.L. said that he and P.F. attended two or three parenting
classes and had home-based parenting through children services. He learned "[a] little
bit" from the parenting classes that he attended, such as being more patient and keeping
poison away from the kids. (Aug. 3, 2015 Tr. 110.)
{¶ 48} As to his understanding of J.L.'s special needs, M.L. responded:
To me he sounds like an out of control person that needs to be
addressed * * * I don't understand all the fancy words. I know
that my – my son has behavioral problems and I don't – I
don't have the capability to address his problems that need to
be addressed * * * but I did reach out and try to get it and
nobody didn't want to help me. So I tried to do the best I
could to – to deal with him.
(Aug. 3, 2015 Tr. 122-23.) M.L. recalled one incident where J.L. was acting like he was
trying to have intercourse with C.L., but he "didn't perceive it" like that and believed "[h]e
was just horseplaying or whatever it was and then * * * we stopped him." (Aug. 3, 2015
Tr. 137.) M.L. believes that, although at the time of the hearing he could not care for J.L.,
he could handle J.L. if somebody would teach him and that he has tried to seek that help.
{¶ 49} As to his understanding of C.L.'s special needs, M.L. testified that her
special needs are mild and she seems normal, and no one had really addressed her needs
with him. M.L. guessed that C.L. would continue counseling.
{¶ 50} M.L., at the time of the hearing, reported no income but was trying to get
classified as disabled due to spine and knee conditions and thought he was or would be
qualified for social security benefits. He said he could not work or else P.F.'s social
security income would be cut. Regarding their personal finances, in addition to the bills
quantified by P.F., M.L. said P.F.'s cell phone bill cost $121 per month.
{¶ 51} During closing arguments, FCCS twice stated that it established by clear and
convincing evidence that both children have been in custody for 12 of a consecutive 22-
month period at the time of the filing of the amended motion for permanent custody on
October 10, 2014. In her closing argument, counsel for P.F. states "[c]ertainly, her
children have been in Children Services custody for 12 of 22 months, that we can't
No. 15AP-889 18
dispute." (Aug. 6, 2015 Tr. 36.) Similarly, counsel for M.L. states "[t]he only clear and
convincing element that we met there's always a — a statutory period 12 out of 22."
(Aug. 6, 2015 Tr. 49.)
{¶ 52} On September 9, 2015, the trial court granted FCCS' amended motion for
permanent custody and indicated the original motion for permanent custody was moot.
In doing so, the trial court found that clear and convincing evidence exists that permanent
custody with FCCS, for the purposes of adoption, is in both children's best interest and
that under R.C. 2151.414(B)(1)(d), each child had been in the custody of FCCS for 12 of 22
consecutive months. Appellants filed separate, timely appeals to this court.
II. ASSIGNMENTS OF ERROR
{¶ 53} Appellant P.F. assigns the following as error:
[1.] The juvenile court erred in granting permanent custody to
FCCS because the children had not been in the temporary
custody of FCCS for twelve months when it moved for
permanent custody.
[2.] The juvenile court erred in granting permanent custody
to FCCS because it did not properly consider all of the relevant
best interest factors.
{¶ 54} Appellant M.L. assigns the following as error:
The lower court erred in granting permanent custody to the
Franklin County Children Services because the agency failed
to prove its case by clear and convincing evidence as required
by R.C. Section 2151.414(B)(1) and the holding was not
supported by the manifest weight of evidence.
III. STANDARD OF REVIEW
{¶ 55} "A trial court's determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence." In re D.S.,
10th Dist. No. 07AP-479, 2007-Ohio-6781, ¶ 7, citing In re Andy-Jones, 10th Dist. No.
03AP-1167, 2004-Ohio-3312, ¶ 28, discretionary appeal not allowed, 103 Ohio St.3d
1429, 2004-Ohio-4524. Judgments supported by some competent, credible evidence
going to all essential elements of the case are not against the manifest weight of the
evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), paragraph one
of the syllabus. "In considering a trial court's decision to grant permanent custody to
No. 15AP-889 19
FCCS, this court must determine from the record whether the trial court had sufficient
evidence before it." In re L.M., 10th Dist. No. 10AP-445, 2010-Ohio-5447, ¶ 11, citing In
re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887.
{¶ 56} Furthermore, in reviewing a judgment granting permanent custody to
FCCS, an appellate court "must make every reasonable presumption in favor of the
judgment and the trial court's findings of facts." In re P.G., 10th Dist. No. 11AP-574,
2012-Ohio-469, ¶ 37, citing Brooks at ¶ 59. " '[I]f the evidence is susceptible of more than
one construction, we must give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the [juvenile] court's verdict and judgment.' "
Brooks at ¶ 59, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988).
IV. DISCUSSION
{¶ 57} All three assignments of error contest the trial court's ultimate decision to
award permanent custody to FCCS. R.C. 2151.414 governs the procedure for granting
permanent custody of a child to a public agency such as FCCS. In re J.T., 10th Dist. No.
11AP-1056, 2012-Ohio-2818, ¶ 9. Pursuant to R.C. 2151.414(B), the trial court may grant
permanent custody of a child to an agency if the court determines, by clear and convincing
evidence, that it is in the best interest of the child and that any of the following factors
apply: (a) the child cannot or should not be placed with the parents, (b) the child is
abandoned, (c) the child is orphaned with no relatives of the child able to take permanent
custody, or (d) the child has been in the temporary custody of one or more public or
private children services agencies for 12 or more months of a consecutive 22-month
period. R.C. 2151.414(B)(1).
A. P.F.'s First Assignment of Error
{¶ 58} P.F.'s first assignment of error challenges the trial court's finding that the
children were in custody of FCCS for at least 12 of 22 consecutive months under R.C.
2151.414(B)(1)(d). Specifically, P.F. argues that the filing date of the original motion for
permanent custody, rather than the filing date of the amended motion for permanent
custody, should serve as the end point of the 12 of 22-month calculation. In support of
this proposition, appellant cites to In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, as
applied in In re C.E., 3d Dist. No. 5-09-02, 2009-Ohio-6027.
No. 15AP-889 20
{¶ 59} As a preliminary issue, we must address whether P.F. waived this issue, as
appellee suggests. Generally, this court will not in the first instance consider errors that
the appellant could have called to the trial court's attention. In re Pieper Children, 85
Ohio App.3d 318, 328 (12th Dist.1993), quoting State v. Glaros, 170 Ohio St. 471 (1960),
paragraph one of the syllabus. Nonetheless, in limited circumstances, we may apply the
doctrine of plain error to review an issue that otherwise would be deemed waived. In re
Johnson, 10th Dist. No. 03AP-1264, 2004-Ohio-3886, ¶ 14.
{¶ 60} In the context of civil appeals, the plain error doctrine is not favored.
Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. "[R]eviewing courts must
proceed with the utmost caution, limiting the doctrine strictly to those extremely rare
cases where exceptional circumstances require its application to prevent a manifest
miscarriage of justice, and where the error complained of, if left uncorrected, would have
a material adverse effect on the character of, and public confidence in, judicial
proceedings." Id. at 121. Furthermore, a "plain error" is one that is "obvious and
prejudicial although neither objected to nor affirmatively waived." Schade v. Carnegie
Body Co., 70 Ohio St.2d 207, 209 (1982). An error is prejudicial if it "impacted the party's
'substantial rights' by affecting the outcome of the trial." In re C.C., 10th Dist. No. 04AP-
883, 2005-Ohio-5163, ¶ 27.
{¶ 61} Here, P.F. was aware that FCCS was proceeding under the 12 of 22-month
prong of R.C. 2151.414(B). The amended permanent custody motion clearly added R.C.
2151.414(B)(1)(d), and appellee discussed the amended motion at the hearing and
specifically indicated that the date of the amended complaint, October 10, 2015, was the
end point used in the calculation to support the 12 of 22-month finding. P.F. did not
object or otherwise raise this issue as a point of contention either in response to the
amended motion or at the hearing. Moreover, at the hearing, counsel for P.F. stated that
the children were "[c]ertainly" in FCCS custody for 12 of 22 months and expressly stated
that the 12 of 22 finding was not in dispute. (Aug. 6, 2015 Tr. 36.) As such, P.F. waived
this issue for purposes of appeal, and we decline to review the issue under the plain error
doctrine.
{¶ 62} Accordingly, appellant P.F.'s first assignment of error is overruled.
No. 15AP-889 21
B. P.F.'s Second Assignment of Error and M.L.'s Assignment of Error
{¶ 63} P.F.'s second assignment of error and M.L.'s sole assignment of error
challenge the trial court's determination that clear and convincing evidence showed
awarding permanent custody to FCCS was in the children's best interest pursuant to R.C.
2151.414(D)(1). As such, we will consider these assignments of error together.
{¶ 64} In pertinent part, R.C. 2151.414(D)(1) states:
[T]he 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;
(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 or private child placing 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.
The additional factors referenced in R.C. 2151.414(D)(1)(e) are:
(7) The parent has been convicted of or pleaded guilty to one
of [a number of offenses apparently inapplicable in this case].
***
(8) The parent has repeatedly withheld medical treatment or
food from the child when the parent has the means to provide
the treatment or food, and, in the case of withheld medical
treatment, the parent withheld it for a purpose other than to
treat the physical or mental illness or defect of the child by
No. 15AP-889 22
spiritual means through prayer alone in accordance with the
tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm
two or more times due to alcohol or drug abuse and has
rejected treatment two or more times or refused to participate
in further treatment two or more times after a case plan
issued pursuant to section 2151.412 of the Revised Code
requiring treatment of the parent was journalized as part of a
dispositional order issued with respect to the child or an order
was issued by any other court requiring treatment of the
parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily
terminated with respect to a sibling of the child pursuant to
this section or section 2151.353 or 2151.415 of the Revised
Code, or under an existing or former law of this state, any
other state, or the United States that is substantially
equivalent to those sections, and the parent has failed to
provide clear and convincing evidence to prove that,
notwithstanding the prior termination, the parent can provide
a legally secure permanent placement and adequate care for
the health, welfare, and safety of the child.
{¶ 65} Both M.L. and P.F. argue that the trial court committed reversible error by
failing to properly evaluate the above factors. In addition to challenging the trial court's
evaluation of the individual factors, M.L. argues that the record generally does not
support the trial court's decision regarding the best interests of the children. According to
M.L., "[a]ll that is clear from the testimony is that the [couple is] poor and coping with
raising two mentally challenged children" and were able to "somehow manage[] to comply
with a number of the cumbersome support mechanisms placed before them." (Emphasis
sic.) (Appellant M.L.'s Brief, 17-18.) We disagree.
{¶ 66} First, M.L. argues that R.C. 2151.414(D)(1)(a) was improperly evaluated
because the children were interacting with their parents as best as could be expected given
that they are cognitively delayed. In its decision, the trial court considered both the
positive and negative interactions of the children with P.F. and M.L., the negative impact
of those visits on the children, the reasons the visits were terminated, C.L.'s loving
No. 15AP-889 23
response to her current foster family, the break of a sibling bond between C.L. and J.L.,
and the impressions of the caseworkers and guardian ad litem. In essence, M.L.'s
argument ignores record evidence regarding the children's ability to bond and develop
positive relationships while progressing behaviorally and cognitively and sidesteps the
role P.F. and M.L. had in failing to develop appropriate parental relationships with their
children. We find no merit to M.L.'s argument and otherwise find no error regarding this
factor.
{¶ 67} Similarly, M.L. argues that the trial court improperly evaluated R.C.
2151.414(D)(1)(b) because the children's cognitive delays rendered them unable to reliably
express their wishes. This argument is against the evidence presented in regard to C.L.
The judge, caseworker, and guardian ad litem all testified to C.L. consistently and strongly
expressing a desire to remain with her current foster family. Furthermore, the record
shows that since being removed from P.F.'s and M.L.'s home, C.L.'s delays have improved
to a point where she will attend kindergarten next year without an IEP. As such, we find
no error in the trial court's consideration of C.L.'s stated wishes. P.F. is correct in
asserting that J.L.'s cognitive delays rendered him unable to reliably express his wishes.
The trial court's opinion states this very determination. Therefore, we find no merit to
M.L.'s argument regarding the court's discussion of R.C. 2151.414(D)(1)(b) and otherwise
find no error regarding this factor.
{¶ 68} Next, both P.F. and M.L. argue that the trial court improperly evaluated
R.C. 2151.414(D)(1)(c) in only looking at the period where the children were in temporary
custody. As stated more specifically by P.F., the trial court committed reversible error by
failing to weigh the "pre-removal custodial history" of the children and, instead, "merely
reciting the facts that show that the child was in agency custody for twelve months of a
consecutive twenty-two month period." (Appellant P.F.'s Brief, 23, 26.) P.F. believes this
period is relevant because from birth to 2013, "the children were in the custody of their
parents for several years, a time during which the parents were never homeless and
showed no sign of custodial instability." (Appellant P.F.'s Brief, 28.) P.F. also states that
the trial court may have relied on In re K.M., 10th Dist. No. 15AP-64, 2015-Ohio-4682,
¶ 21, 27, and asks us to reconsider that case's determination that the custodial history
factor was satisfied upon proof of the 12 of 22-month custodial time frame.
No. 15AP-889 24
{¶ 69} As is required by the statute, the trial court does discuss the 12 of 22-month
finding. Appellants waived the merits of this finding, as discussed in P.F.'s first
assignment of error. However, contrary to appellants' position, the trial court also states
that prior to that time, the children were only removed from P.F. and M.L. for a few days
before being returned to the home. This statement shows the trial court did consider the
pre-removal history of the children and, specifically, that the children were in the custody
of P.F. and M.L. Therefore, we find appellants' argument to be against the language of the
decision and without merit and decline to review K.M.
{¶ 70} Regarding the subsequent section, R.C. 2151.414(D)(1)(d), M.L. argues that
the trial court improperly evaluated R.C. 2151.414(D)(1)(d) because P.F. and M.L. had
previously been able to maintain stable housing for a one and one-half year period prior
to the home burning down. This argument is premised on the incorrect conclusion that
the couple's one and one-half year stay at P.F.'s sister's house is considered stable
housing. Record evidence established that the housing the couple maintained for one and
one-half years was not stable, in that it was not their own housing but rather P.F.'s sister's
apartment, and the children would not have been permitted to live with the sister since
she previously lost permanent custody of her own children and therefore was not a person
FCCS would approve to be in the home. As such, the trial court's decision to not discuss
the couple's alleged ability to maintain housing prior to the fire was not in error, as that
previous housing was neither stable nor in place at the time of the hearing. Therefore,
M.L.'s argument regarding the court's improper evaluation of R.C. 2151.414(D)(1)(d) is
without merit.
{¶ 71} Furthermore, M.L.'s argument implies stable housing is dispositive of this
factor when it is only one aspect of the in-depth discussion the trial court undertook in
ultimately finding that C.L. and J.L. are in "great need" of a secure permanent placement,
which cannot be achieved without a grant of permanent custody to FCCS. (Trial Court
Decision and Judgment Entry, 20.) This conclusion is supported by the record.
{¶ 72} As described in detail by the trial court, M.L. and P.F. made little progress
on the case plan. Both P.F. and M.L. completed psychological evaluations and some
general parenting classes, and P.F. completed a drug and alcohol screening, eight drug
screens, an MRDD assessment, and some counseling sessions. However, the couple did
No. 15AP-889 25
not attempt or achieve many objectives despite an array of resources to assist them. P.F.
admits that she refused to take part in drug screens and admits to lying in order to get out
of going to counseling sessions. M.L. admits that the couple does not have stable housing
for the children to return to, and testimony from the caseworkers and the NAMI
representative show that the couple has a pattern of maintaining unsafe living conditions
from home to home, despite being provided services and supplies. The couple currently
survives on P.F.'s social security check of $733 per month, but M.L. refused to follow-up
on the NAMI advocates employment lead and cites possible social security benefits in the
future as his path to financial improvement. Both P.F. and M.L. blame FCCS for their lack
of additional income and secure housing because FCCS took the children and their extra
social security checks away. In addition, ample evidence showed the couple's resistance to
services and, particularly, their lack of understanding and minimization of their children's
special needs, trauma, and treatments. P.F.'s testimony demonstrated no understanding
or commitment to continuing the children's therapies, while M.L.'s testimony regarding
his understanding and commitment to continuing the children's therapies was vague at
best.
{¶ 73} Moreover, the trial court expressed concern for the safety threat flowing
from the couple's poor decision making and, particularly, the couple's demonstrated lack
of regard for who had access to their home and to the children. Record evidence supports
the validity of this concern. M.L. had no problem letting C.L. stay in the home with a
sexual predator when he admittedly knew that man had allegedly sexually abused his own
wife and her sister, and he knew this man masturbated in front of his son. Likewise, both
P.F. and M.L. had no problem allowing adults in their home with their children and
resisted suggestions to stop this behavior in the future. This point was sharpened by the
trial court's description of the former case in which the couple lost permanent custody of
their eldest son due in part to those same poor decisions, such as allowing ten adults to
share their home, one of whom they knew to be a convicted sex offender. The trial court
found the similarities between the two cases, ten years apart, to be "numerous and the
consequences are disastrous," and we agree. (Trial Court Decision and Judgment Entry,
20.) Considering the above, sufficient record evidence supports the finding of the trial
No. 15AP-889 26
court that C.L. and J.L. are in need of a secure permanent placement, which cannot be
achieved without a grant of custody to the agency.
{¶ 74} Under the last factor, R.C. 2151.414(D)(1)(e), M.L. argues that most of the
subsections did not apply. While that is true, in its analysis, the trial court did not suggest
that any inappropriate section did apply and listed the only applicable section, (E)(11), to
reflect that the couple previously had their parental rights involuntarily terminated with
respect to an older sibling of J.L. and C.L. As such, the trial court complied with R.C.
2151.414(D)(1)(e) in considering whether "any of the factors in divisions (E)(7) to (11)"
applied, and we find no error.
{¶ 75} Overall, our review of the trial court's decision reveals that the trial court
properly considered the relevant factors set forth in R.C. 2151.414(D) and that sufficient,
competent, and credible evidence in the record supports the trial court's findings. The
weight of the evidence supports a firm belief or conviction that the best option for J.L. and
C.L. is a commitment to the permanent custody of FCCS for the purposes of adoption.
{¶ 76} For the foregoing reasons, P.F.'s second assignment of error and M.L.'s sole
assignment of error are overruled.
V. CONCLUSION
{¶ 36} Having overruled appellant P.F.'s two assignments of error and appellant
M.L.'s sole assignment of error, we affirm the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
DORRIAN, P.J., and LUPER SCHUSTER, J., concur.
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