In re N.M. , 2016 Ohio 318 ( 2016 )

[Cite as In re N.M., 2016-Ohio-318.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: N.M. :
:
: Appellate Case Nos. 26693 and 26719
:
: Trial Court Case No. 2012-0682
:
: (Appeal from Juvenile Court)
:
:
:
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OPINION
Rendered on the 26th day of January, 2016.
...........
ANN M. GRABER, Atty. Reg. No. 0091731, 301 West Third Street, Fifth Floor, Dayton,
Ohio 45422
Attorney for Appellee-Montgomery County Children Services
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, 120 West Second Street, Suite 333,
Dayton, Ohio 45402
Attorney for Appellant-T.C.
KATE L. BOWLING, Atty. Reg. No.0084442, 2521 Far Hills Avenue, Dayton, Ohio 45419
Attorney for Appellant-E.M.
.............
WELBAUM, J.
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{¶ 1} In this case, the biological mother, T.C. (“Mother”), and the biological father,
E.M. (“Father”), appeal from a judgment terminating their parental rights with respect to
their daughter, N.M. In support of the appeal, both parents contend that the trial court
erred in finding that clear and convincing evidence supported the grant of permanent
custody or that custody was in the best interests of the child. Both parents also contend
that the judgment is against the manifest weight of the evidence. Finally, Mother
contends that the trial court erred when it found that Appellee, Montgomery County
Children Services (MCCS), made reasonable efforts to reunify the family.
{¶ 2} We conclude that the judgment of the trial court was supported by clear and
convincing evidence and was not against the manifest weight of the evidence. MCCS
also made reasonable efforts to unify the family. Accordingly, the judgment of the trial
court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On January 27, 2012, MCCS filed a dependency complaint alleging that N.M.
lacked adequate parental care due to the mental or physical condition of her parents.
According to the complaint, Mother had been found incompetent by the Department of
Developmental Services (DDS), and had previously had a guardian appointed. Mother
was also combative at the hospital where N.M. was born, and reportedly functioned at the
level of a five- to eight-year old child. In addition, there was a history of domestic violence
between Mother and Father.
{¶ 4} After MCCS was granted interim ex parte custody, the child was taken from
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the hospital where she was born and was placed with a foster family. About a month
after N.M.’s birth, Mother and Father filed motions asking the court to place the child with
a maternal cousin, O.C. On March 8, 2012, the court granted O.C. legal custody, and
the child was placed with O.C., where Mother also lived. MCCS was given protective
supervision.
{¶ 5} Less than a month later, MCCS filed a motion and affidavit asking the court
to once again return temporary custody to MCCS. In the motion, MCCS stated that
Mother had called the police because O.C. and her boyfriend, who had an extensive
criminal record of domestic violence, felonious assault, and cocaine possession, were
fighting. O.C. had not disclosed this information to MCCS, nor had O.C. disclosed that
since O.C. and Mother began living in the home in 2011, numerous calls had been made
to the police regarding loud music, disorderly conduct, and boyfriend/girlfriend disputes.
In addition, Mother had been allowing Father to stay overnight at the premises, even
though O.C. was not supposed to allow this due to prior domestic violence between
Mother and Father. There were also concerns about drug use in the home.
{¶ 6} After a hearing, the court granted MCCS temporary custody on April 12,
2012, and the agency placed N.M. with the same foster family that had cared for N.M.
since birth. According to an amended case plan filed on April 16, 2012, Mother lacked
basic cognitive skills and functioning to care for the child or for herself. Mother had
admitted to smoking marijuana during her pregnancy and N.M.’s meconium had tested
positive for cocaine at birth. On April 6, 2012, O.C. had tested positive for marijuana and
benzodiazepines, for which she did not have a prescription. O.C.’s boyfriend had a
criminal history involving substance abuse, and Father also had a history of substance
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abuse.
{¶ 7} Under the case plan, Mother, Father, and O.C. were to complete
parenting/psychological assessments, and follow all recommendations. They also
needed to obtain stable housing with supplies for N.M., and were to visit with N.M. on a
regular basis.
{¶ 8} In July 2012, a semi-annual administrative review was filed. At the time,
Mother was living with Father and the paternal grandmother at the grandmother’s home.
Mother had completed a parenting class, but was deemed unsuccessful due to her
inability to grasp the concepts and correctly identify the baby’s needs during observation.
The report indicated that Mother did her best, but was extremely limited due to her mental
abilities. Mother did not understand that she could not parent her child adequately, nor
did she recognize her limitations. In addition, MCCS stated that there were no services
available that could be offered to remedy the problem.
{¶ 9} The report further indicated that O.C. had originally agreed to services, but
asked to be taken off the case plan. O.C. also stated that she was not interested in
having the child return to her home. When the child had been returned to foster care
from O.C.’s home, the child had ringworm, thrush, a yeast infection, and rock-hard stools
from having had mashed potatoes put in her formula. Finally, the report indicated that
Father was in anger management and substance abuse counseling, but insufficient
progress had been made.
{¶ 10} In December 2012, MCCS filed a motion and affidavit for permanent
custody, noting the same concerns previously raised. Mother regularly visited N.M. (for
four hours a week), but had supervised visits due to her inability to safely meet N.M.’s
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needs. Mother had been evaluated at Southwest Ohio Developmental Center (SOCD)
in May 2011, was found to have an IQ of 55, and was diagnosed as having mild mental
retardation. At the time of the assessment, SOCD did not feel Mother had the skills or
temperament necessary to safely raise a child without persistent outside supports.
{¶ 11} The motion and affidavit also noted that Father visited N.M. sporadically,
and on visits when the parents were together, they argued and Mother became very
emotional and moody. Mother was splitting her time between the houses of Father and
O.C.. Mother and Father had a history of domestic violence, and these issues had not
been addressed, although Mother and Father were planning to get married. Father had
been fired from his last job and had no income source.
{¶ 12} In March 2013, Mother and Father both filed motions for extension of
temporary custody, and the Guardian Ad Litem (GAL) that had been appointed for the
child recommended that the court grant an extension to give Mother an opportunity to
have a more current psychological evaluation and to give Mother time to obtain
independent housing.
{¶ 13} In May 2013, the court granted a first extension of temporary custody, and
ordered MCCS to make a referral for one-on-one parenting instruction for Mother. On
June 13, 2013, MCCS filed another motion and affidavit for permanent custody,
containing the same kinds of allegations that had previously been made. MCCS also
noted that Mother was currently working with Allene Anderson of Celebrating Families
Parenting Program, but that Anderson did not feel Mother was capable of parenting the
child on her own. Anderson also had serious concerns about the safety of Mother and
N.M. so long as Father was in the home. Mother had been referred for anger
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management treatment, but was terminated because she did not feel she needed the
program.
{¶ 14} At the time, Mother was living in the home of Father and the paternal
grandmother. There were major safety concerns due to domestic violence between
Mother and Father, and reported alcohol and marijuana abuse. Since August 2012, over
twenty police calls were made to the home due to drinking by all three. On May 19, 2013,
Father was charged with domestic violence for hitting Mother, and was also charged with
public intoxication on June 6, 2013.
{¶ 15} In August 2013, the court set the matter for a two-day hearing in late
October 2013. On October 7, 2013, the GAL filed a request for a second extension of
temporary custody. In October 2013, the court also granted the request of both parents
to have independent psychological evaluations. In a report filed on October 21, 2013,
the GAL noted that Mother had moved into her own apartment in September 2013, and
recommended a second extension of temporary custody to determine if domestic violence
issues had been resolved by mother moving out of father’s residence or by other means.
{¶ 16} On October 31, 2013, the trial court granted the motion for a second
extension of temporary custody. The court concluded that the parenting time of Mother
and Father needed to be separated so that each party’s ability to independently parent
the child could be assessed. Previously, the parties had visited the child for two hours
on Monday and Wednesday; thereafter, each parent visited the child for one hour on each
of those days.
{¶ 17} In December 2013, MCCS filed another affidavit and motion for permanent
custody. These documents alleged that Mother and Father had not made significant
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progress on case objectives. According to MCCS, Father was at Mother’s house during
November 2013, and an argument broke out. Mother blackened Father’s eye and
scratched him, and Father took her apartment keys, cell phone, and piggy bank so that
Mother could not call the police. Mother was unable to read and could not handle her
own affairs or independent care. In addition to the 2011 evaluation, Dr. Lilley had
evaluated the parents and had found that N.M. could not be safely placed with the
parents, due to their substance abuse, domestic violence, mental health, and
developmental delays.
{¶ 18} In January 2014, the court set the matter for a two-day trial on April 7 and
8, 2014. Subsequently, the mother filed a motion asking for legal custody to be granted
to her, with protective supervision to MCCS. Mother also asked that custody be granted
to some maternal relatives, but that part of the motion was later withdrawn. In early April
2014, the GAL filed a report, noting that she had observed the child for a total of about
five visits over a two-year period. The GAL noted that the supervised visits went well,
and that both parents acted appropriately. Further, the GAL noted that Mother’s
apartment was clean and adequate for the child. The GAL recommended that Mother
be granted custody, with protective supervision by MCCS.
{¶ 19} The trial court held hearings on April 7 and 8, 2014, and heard testimony
from the following individuals: Allene Anderson; Myra Wheeler, the MCCS caseworker;
a visitation supervisor; N.M.’s foster mother; and Vicki Harris and Cassandra Heard,
employees of Healing Touch Agency, which was an agency providing assistance to
Mother. The hearing was then continued until June 6, 2014. On June 6, 2014, the GAL
filed an updated report, again recommending legal custody be granted to Mother, with
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protective supervision by MCCS. On June 6, 2014, the magistrate heard testimony from
Dr. Lilley, a clinical psychologist who had evaluated both Mother and Father, and from
Daryle Tibbs, the GAL.
{¶ 20} After hearing the evidence, the magistrate filed a decision on August 18,
2014, concluding that permanent custody should be granted to MCCS. Both parents
filed objections to the magistrate’s decision, and on May 7, 2015, the trial court filed a
decision sustaining the objections in part and overruling them in part. The trial court
found that the child had been improperly designated during part of the case as “N.C.”
rather that N.M., but this was not a substantive decision. The trial court found in favor of
MCCS on all substantive issues and granted permanent custody to the agency,
terminating the parental rights of Mother and Father. This appeal followed.
II. Whether Clear and Convincing Evidence Supports the Decision
{¶ 21} Mother’s First and Second Assignments of Error state that:
The Trial Court Erred in Finding that Clear and Convincing Evidence
Supported the Granting of Permanent Custody.
The Trial Court’s Granting of Permanent Custody Is Against the
Manifest Weight of the Evidence.
{¶ 22} Similarly, Father’s sole Assignment of Error states that:
The Trial Court Erred in Granting Permanent Custody to Montgomery
County Children’s Services Because that Agency Failed to Prove by Clear
and Convincing Evidence that Permanent Custody Was in the Best Interest
of the Minor Child and Such a Finding Was Against the Manifest Weight of
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the Evidence.
{¶ 23} The parties argue first that MCCS failed to prove by clear and convincing
evidence that permanent custody was in the child’s best interests, because Mother had
completed all case plan objectives, and had established a support network that would
assist her with parenting. In addition, Father argues that the trial court may not base its
decision solely on a parent’s limited cognitive abilities.
A. General Standards and the Issue of Clear and Convincing Evidence
{¶ 24} Parents have a fundamental right “to make decisions concerning the care,
custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct.
2054, 147 L.Ed.2d 49 (2000). “In a proceeding for the termination of parental rights, all
of the court's findings must be supported by clear and convincing evidence.” In re M.S.,
2d Dist. Clark No. 2008-CA-70, 2009-Ohio-3123, ¶ 15, citing R.C. 2151.414(E) and In re
J.R., 2d Dist. Montgomery No. 21749, 2007-Ohio-186, ¶ 9.
{¶ 25} “Clear and convincing evidence is that measure or degree of proof which *
* * will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus. “Additionally, issues relating to the credibility of
witnesses and the weight to be given the evidence are primarily for the trier of fact. In this
regard, ‘[t]he underlying rationale of giving deference to the findings of the trial court rests
with the knowledge that the trial judge is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.’ ” In re A.J.S., 2d Dist. Miami No. 2007-CA-2,
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2007-Ohio-3433, ¶ 22, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984).
{¶ 26} “R.C. 2151.414 establishes a two-part test for courts to apply when
determining a motion for permanent custody to a public services agency. The statute
requires the court to find, by clear and convincing evidence, that: (1) granting permanent
custody of the child to the agency is in the best interest of the child; and (2) either the
child (a) cannot be placed with either parent within a reasonable period of time or should
not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;
(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of
the child; or (d) has been in the temporary custody of one or more public or private
children services agencies for twelve or more months of a consecutive twenty-two month
period.” (Citation omitted.) In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-
2935, ¶ 14.
{¶ 27} In the case before us, the trial court concluded that N.M. had been in the
custody of MCCS for over 12 months of a consecutive 22-month period, thereby satisfying
R.C. 2151.414(B)(1)(d). There is clear and convincing evidence to support this
conclusion, and it is also not disputed by the parties. As a result we need only consider
whether the evidence supports the trial court’s finding about N.M.’s best interests. See,
e.g., In re K.S., 2d Dist. Montgomery No. 26701, 2015-Ohio-4117, ¶ 8.
{¶ 28} “R.C. 2151.414(D) directs the trial court to consider all relevant factors when
determining the best interest of the child, including but not limited to: (1) the interaction
and interrelationship of the child with the child's parents, relatives, foster parents and any
other person who may significantly affect the child; (2) the wishes of the child; (3) the
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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; (4) 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; and (5) whether any of the
factors in R.C. 2151.414(E)(7) through (11) are applicable.” In re S.J. at ¶ 15.
{¶ 29} The Supreme Court of Ohio has held that “[w[hen determining the best
interest of a child under R.C. 2151.414(D) at a permanent-custody hearing, a trial court
may not base its decision solely on the limited cognitive abilities of the parents.” In re
D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, syllabus. According to
Father, the trial court improperly based its decision solely on Mother’s limited cognitive
abilities.
{¶ 30} We have distinguished In re D.A., however, where there is “ ‘objective
evidence’ to show that the statute was satisfied.” In re M.S., 2d Dist. Clark No. 2008-
CA-70, 2009-Ohio-3123, at ¶ 44, quoting In re D.A. at ¶ 96. In the case before us, there
is objective evidence demonstrating that the statute was satisfied.
{¶ 31} Similar to the mother in M.S., Mother’s cognitive limitations are “central to
her parenting limitations and her inability to remedy the problems identified by” MCCS.
Id. at ¶ 43. However, also like the mother in M.S., Mother “demonstrated an inability or
unwillingness to address the problems.” Id. at ¶ 44.
{¶ 32} For example, when confronted with the domestic violence issues in her
family, Mother stated that she and the child’s father had a lot of disagreements but would
then get upset and refused to talk any longer about the issue. This was typical of
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Mother’s reaction to things she did not want to hear; she just closed down and did not
want to be instructed. At the end of ten parenting sessions (which was the minimum
amount) of a second parenting class, the instructor asked Mother if she wanted to
continue working with the instructor, and Mother refused.
{¶ 33} Myra Wheeler, the MCCS caseworker, also testified that Mother exhibited
anger issues despite having completed anger management classes. At times when
Mother met with Wheeler, Mother would shut down and would not speak when she was
asked questions or when Wheeler tried to discuss something Mother did not want to talk
about. Mother had even physically trembled because she was angry, and had Wheeler
leave her apartment because she did not want to talk anymore. In addition, Wheeler had
seen Mother act inappropriately by being harsh and threatening when N.M. acted out in
a manner that was typical for a two-year-old child.
{¶ 34} In February 2013, when Wheeler conducted a home visit with Father, he
had an obvious black eye and swelling on the side of his face. Father stated that Mother
had “one of her episodes” and had accused him of cheating on her with other women.
Transcript of Proceedings, Vol. I, p. 63. Although Mother completed a domestic violence
class in November 2013, and Father was taking domestic violence classes, another
domestic violence incident occurred between them. In November or December 2013,
the parties argued at Mother’s apartment, and Mother called the police. According to
Mother, Father had been drinking and came to her apartment. He would not leave when
she asked him to leave. When she tried to push Father, he tried to choke her, and she
called the police. Although Mother responded appropriately by calling the police, and by
attempting to obtain a protection order, Mother told the judge that she was only getting a
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protection order because of her landlord, not because she was afraid of Father, and the
case was dismissed.
{¶ 35} Dr. Lilley, the psychologist who evaluated Mother and Father, stated that
Mother denied domestic abuse incidents that were well-documented and that Father had
verbalized to the doctor. Dr. Lilley indicated that Mother minimized the contentious
relationship with Father and did not seem to realize that it could be damaging to a child.
Dr. Lilley also testified to having observed Mother interact very passively with N.M. during
visitation. Dr. Lilley further said that she could not support reunification because of
concerns about Mother’s parenting ability. This was based not only on Mother’s
cognitive limitations, but also on her minimization of the domestic violence, her inability
to adapt parenting to the child’s changing needs, her defensiveness, her unwillingness to
recognize her own deficits, and her resistance to suggestions from others.
{¶ 36} There was also evidence that Mother and Father misrepresented their
relationship to MCCS. While the caseworker was told that Mother and Father were no
longer a couple, Mother told N.M.’s foster mother in January 2014 that their lawyers told
them to say they had split up because it would better their chances. Additional
verification came from Mother’s home health aide, Angela Heard, who was assigned to
Mother for five hours per day on weekdays and three hours on Saturdays. At the April
2014 hearing, Heard testified that Mother told her that she loved Father, that they had
dated for six or seven years, and were still dating. Mother also said that she loved Father
and was going to marry him. In addition, Heard took Mother to the hospital when Father
was hospitalized, and Mother would stay all night with him at the hospital. According to
Heard, the last time this had occurred was a week or two before the April 2014 hearing.
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{¶ 37} Accordingly, the cognitive limitations were not the only reason for the trial
court’s decision. In fact, the court referred to Mother’s inappropriate actions with the
child, Mother’s passivity, the concern about the domestic violence issues, and Mother’s
minimization of the violence problem. See Decision and Judgment Concerning
Objections to the Decision of the Magistrate, Doc. #5, pp. 7, 8, and 10-11.
{¶ 38} When evaluating the best interests of N.M, the trial court considered the
factors in R.C. 2151.414(D) and concluded that they weighed in favor of granting
permanent custody to MCCS. After reviewing the record, we agree with the trial court.
{¶ 39} The first factor is the child’s interaction with its parents, foster caregivers,
and others who may significantly affect the child. R.C. 2151.414(D)(1)(a). In this
regard, the court considered the very strong bond between N.M. and the foster parents,
who had taken care of N.M. since two days after her birth, other than the month that the
child was in O.C.’s custody. The child was thriving and doing extremely well in her foster
home. In addition, the foster parents had expressed a desire to adopt the child.
{¶ 40} The court noted that Mother had a bond with N.M. and had consistently
visited her, but also commented on Mother’s inappropriate responses to the child’s
behavior, Mother’s unreasonable behavioral expectations, Mother’s passivity and inability
to pick up on N.M.’s cues, as described by Dr. Lilley, and the child’s lesser bond with
Mother. The court, therefore, found that this factor weighed in favor of giving custody to
the agency. There is clear and convincing evidence in the record to support these
conclusions.
{¶ 41} The court did note the testimony of the GAL, who recommended that Mother
be given legal custody, but the court gave more weight to other testimony. Trial courts
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are not required to follow recommendations of a guardian ad litem. Bomberger-Cronin
v. Cronin, 2d Dist. Greene No. 2014-CA-4, 2014-Ohio-2302, ¶ 27. “As the fact finder,
the trial court determines the guardian ad litem's credibility and the weight to be given to
the guardian ad litem's recommendation. Because assessment of the credibility and
weight of the evidence is reserved for the trial court, we will not second guess the court's
decision to disregard the guardian ad litem's recommendation.” (Citations omitted.)
Lumley v. Lumley, 10th Dist. Franklin No. 09AP-556, 2009-Ohio-6992, ¶ 46.
{¶ 42} The second factor is the wishes of the child. R.C. 2151.414(D)(1)(b). The
trial court disregarded this factor due to N.M.’s young age, and this was appropriate.
{¶ 43} Under R.C. 2151.414(D)(1)(c), courts are to consider a child’s custodial
history. In connection with this factor, the trial court noted that N.M. had been in the
agency’s custody and the care of the foster family virtually her entire life. The court
weighed this factor in favor of granting permanent custody. Again, the record contains
clear and convincing evidence to support this finding.
{¶ 44} The fourth factor is “the child’s need for a legally secure placement and
whether that type of placement can be achieved without a grant of permanent custody to
the agency.” Concerning this factor, the court noted that both available extensions of
temporary custody had been used, that N.M. had been in the agency’s custody most of
her life, and that N.M. had been in foster care for 36 months, with all but one month in the
care of her current foster family. The court concluded that the child was “in desperate
need of a legally secure placement.” Decision and Judgment Concerning Objections to
the Decision of the Magistrate, Doc. #5, p. 9.
{¶ 45} In this regard, Mother argues that the evidence indicated that she could
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safely parent her child. Father argues that both parents had completed case plan
objectives, and that while no motion was pending for custody to Father, custody to Mother
remained a viable option. We disagree, for the reasons discussed earlier. In addition,
we note that Father did not complete his case plan. At the time of the hearing, Father
had no income and had not obtained stable housing. He was still living with the paternal
grandmother, in an environment that had resulted in many police calls for domestic
disturbances that involved not only Mother, but the paternal grandmother as well.
{¶ 46} The trial court found that none of the factors in R.C. 2151.414(E)(7)-(11)
applied, and there is no dispute about this. Because clear and convincing evidence
supports the trial court’s decision, Mother’s First Assignment of Error, and the portion of
Father’s sole assignment of error directed towards clear and convincing evidence, are
overruled.
B. Manifest Weight of the Evidence
{¶ 47} Under her assignment of error pertaining to manifest weight of the evidence,
Mother argues that she completed her case plan, and that concerns about her future
ability to parent are based on speculation. Father argues that the court’s decisions on
the various factors in R.C. 2151.414(D) are against the manifest weight of the evidence.
{¶ 48} “A trial court's decision on termination ‘will not be overturned as against the
manifest weight of the evidence if the record contains competent, credible evidence by
which the court could have formed a firm belief or conviction that the essential statutory
elements for a termination of parental rights have been established.’ ” In re N.C., 2d Dist.
Montgomery No. 26611, 2015-Ohio-2969, ¶ 15, quoting In re A.U., 2d Dist. Montgomery
No. 22264, 2008-Ohio-186, ¶ 15. Furthermore, as was already noted, we defer to the
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trial court concerning credibility issues and weight to be given to the evidence in view of
the trial court’s better opportunity to view the witnesses and assess credibility. In re
A.J.S., 2d Dist. Miami No.2007-CA-2, 2007-Ohio-3433, at ¶ 22.
{¶ 49} In view of our discussion on the clear and convincing evidence supporting
the judgment, we conclude that arguments about the manifest weight of the evidence are
also without merit. Contrary to Mother’s arguments, she did not successfully complete
her case plan. Although Mother participated in the activities outlined by the agency, she
was unable to demonstrate that she comprehended the information that was presented.
This was not speculation about the future; mother could not adequately parent at present.
As was noted earlier, while the GAL recommended custody to Mother, the trial court found
other witnesses more credible. Furthermore, Father did not even substantially complete
his case plan, and no witness supported reunification with Father.
{¶ 50} For the reasons stated, Mother’s Second Assignment of Error and the
remainder of Father’s sole Assignment of Error are overruled.
III. Reasonable Efforts Determination
{¶ 51} Mother’s Third Assignment of Error states that:
The Trial Court Erred When It Found that the Agency Had Made
Reasonable Efforts to Reunify the Family.
{¶ 52} Under this assignment of error, Mother contends that MCCS never
attempted to reunify Mother and N.M., and that this lack of effort persisted throughout the
case. After reviewing the record, we disagree.
{¶ 53} “ ‘Reasonable efforts means that a children's services agency must act
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diligently and provide services appropriate to the family's need to prevent the child's
removal or as a predicate to reunification.’ ” In re H.M.K., 3d Dist. Wyandot Nos. 16-12-
15, 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re D.A., 6th Dist. Lucas No. L-11-1197,
2012-Ohio-1104, ¶ 30. “ ‘Reasonable efforts' does not mean all available efforts.
Otherwise, there would always be an argument that one more additional service, no
matter how remote, may have made reunification possible.” (Citation omitted.) In re
K.M., 12th Dist. Butler No. CA 2004-02-052, 2004-Ohio-4152, ¶ 23. Accord In re C.O.,
2d Dist. Montgomery No. 26610, 2015-Ohio-4290, ¶ 43.
{¶ 54} We have also defined “reasonable efforts” as “a good faith effort which is
‘an honest, purposeful effort, free of malice and the desire to defraud or to seek an
unconscionable advantage.’ The issue is not whether [the Agency] could have done
more, but whether it did enough to satisfy the ‘reasonableness' standard under the
statute.” In re S.F., 2d Dist. Montgomery No. 25318, 2013-Ohio-508, ¶ 21, quoting In re
Secrest, 2d Dist. Montgomery No. 19377, 2002-Ohio-7096, ¶ 13.
{¶ 55} There is no indication that MCCS failed to make reasonable efforts. After
filing motions for permanent custody, MCCS acquiesced in two extensions of temporary
custody so that the parents could continue to work on the case plan. See Magistrate’s
Decision and Judge’s Order Granting a First Extension of Temporary Custody, Doc. #134,
p. 1; and Magistrate’s Decision and Judge’s Order Granting a Second Extension of
Temporary Custody, Doc. #85, p. 1 (both noting agreement as to the extension of
temporary custody).
{¶ 56} MCCS provided substantial case services to the parents over a period of
more than two years, including parenting and psychological assessments, visitation, and
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referrals to parenting classes, domestic violence education, and counseling for anger
management. The MCCS caseworker testified that “[w]e have offered [Mother] every
service they have, some twice, to try and help facilitate her ability to reunify safely with
the child, and while she has cooperated and participated in any and all services we have
asked her to do, she has not been able to – to assimilate the material and demonstrate
that she understands what needs to be done to safely parent this child because of her
own developmental delays.” Transcript of Proceedings, Vol. I, p. 100.
{¶ 57} Mother contends that MCCS did not provide her with sufficient opportunity
to develop and practice her parenting skills because her parenting time was limited initially
to four hours per week and then later to two hours per week. However, Mother was
permitted unrestricted contact with N.M. when the child was placed in the custody of
Mother’s cousin. When the child was removed from the cousin’s care, she suffered from
ringworm, thrush, a yeast infection, and rock-hard stools from having had mashed
potatoes put in her formula. The atmosphere in the cousin’s home also included drug
use, domestic violence, and many calls to the police. More importantly, despite
significant intervention and assistance thereafter, Mother was never able to demonstrate
that she could safely and independently care for the child, nor did Mother alleviate
concerns about domestic violence. Under the circumstances, MCCS did not act
unreasonably in requiring limited and supervised visitation.
{¶ 58} Accordingly, Mother’s Third Assignment of Error is without merit and is
overruled.
IV. Conclusion
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{¶ 59} All of Mother’s assignments of error, and Father’s sole assignment of error
having been overruled, the judgment of the trial court is affirmed.
.............
FAIN, J. and HALL, J., concur.
Copies mailed to:
Ann M. Graber
Marcy A. Vonderwell
Kate L. Bowling
Daryle Tibbs
J.T.
Hon. Anthony Capizzi