In re T.A.M. , 2018 Ohio 5058 ( 2018 )

[Cite as In re T.A.M., 2018-Ohio-5058.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
IN RE:
CASE NO. 3-18-13
T.A.M.,
ADJUDICATED DEPENDENT CHILD.
OPINION
[NATHAN MCIE - APPELLANT]
Appeal from Crawford County Common Pleas Court
Juvenile Division
Trial Court Nos. C 2165118 and F 2185059
Judgment Affirmed
Date of Decision: December 17, 2018
APPEARANCES:
Adam Charles Stone for Appellant
Michael J. Wiener for Appellee
Case No. 3-18-13
PRESTON, J.
{¶1} Appellant, Nathan McIe (“McIe”), appeals the June 8, 2018 decision of
the Crawford County Court of Common Pleas, Juvenile Division, awarding
permanent custody of his minor child, T.A.M., to Crawford County Job and Family
Services (the “agency”). For the reasons that follow, we affirm.
{¶2} McIe is the adoptive father and sole parent of T.A.M. (See Case No.
F2185059, Doc. No. 5). On November 18, 2016, T.A.M. reported that he had been
sexually abused by McIe. (See Case No. C2165118, Doc. No. 22). McIe was
subsequently arrested and charged with three counts of rape and one count of
disseminating matter harmful to juveniles. (Id.). (See Case No. F2185059, Doc.
No. 5, State’s Ex. 2). McIe remained in the Crawford County Jail throughout the
pendency of the majority of T.A.M.’s case. (See Case No. F2185059, Doc. No. 5,
State’s Ex. 3).
{¶3} On November 22, 2016, the agency filed a complaint under R.C.
2151.27(A)(1) alleging T.A.M. to be an abused child. (See Case No. C2165118,
Doc. No. 1). In its complaint, the agency requested that the trial court grant it
temporary custody of T.A.M. (Id.). That same day, the trial court appointed a
guardian ad litem (“GAL”) for T.A.M. (See Case No. C2165118, Doc. No. 5).
{¶4} At a hearing on December 20, 2016, the agency orally moved to amend
the complaint from alleging that T.A.M. is an abused child to alleging that T.A.M.
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is a dependent child. (See Case No. C2165118, Doc. No. 11). The trial court granted
the agency’s motion and amended the complaint to allege that T.A.M. is a dependent
child. (Id.). At the December 20, 2016 hearing, McIe entered an admission to the
allegations of the amended complaint and stipulated that sufficient evidence existed
for an adjudication of dependency; the trial court then adjudicated T.A.M. to be a
dependent child under R.C. 2151.04(C). (Id.). In addition, the trial court granted
the agency temporary custody of T.A.M. (Id.).
{¶5} On May 11, 2017, the trial court approved the agency’s case plan
regarding T.A.M. and incorporated that plan into its entry. (Case No. C2165118,
Doc. No. 22). On November 21, 2017, the agency filed a motion requesting that the
trial court grant an extension of the agency’s temporary custody over T.A.M. and
approve an amendment to the case plan. (Case No. C2165118, Doc. No. 27). That
same day, the trial court granted the agency’s motion, extended the agency’s
temporary custody of T.A.M., and approved and adopted the amendment to the case
plan. (Case No. C2165118, Doc. No. 28).
{¶6} On February 12, 2018, McIe pleaded guilty to one count of unlawful
sexual conduct with a minor in violation of R.C. 2907.04, a third-degree felony, and
one count of felonious assault in violation of R.C. 2903.11, a second-degree felony.1
1
Pursuant to plea negotiations, the State amended two of the counts of rape in the indictment to one count of
unlawful sexual conduct with a minor and one count of felonious assault. (See Case No. F2185059, Doc.
No. 5, State’s Ex. 2). In addition, the State agreed to dismiss one of the counts of rape as well as the count
of disseminating matter harmful to juveniles. (See id.).
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(See Case No. F2185059, Doc. No. 5, State’s Ex. 2). That same day, the Crawford
County Court of Common Pleas sentenced McIe to an aggregate term of five years’
imprisonment. (See Case No. F2185059, Doc. No. 5, State’s Ex. 1). McIe later
stipulated that the crimes to which he pleaded guilty were committed against T.A.M.
(See Case No. F2185059, Doc. No. 5).
{¶7} On April 30, 2018, the agency filed a motion for permanent custody of
T.A.M. (Case No. F2185059, Doc. No. 1). The motion also included a request for
the trial court to approve and adopt a second amendment to the case plan. (Id.). On
June 5, 2018, T.A.M.’s GAL filed his report recommending that the trial court
award permanent custody of T.A.M. to the agency. (Case No. F2185059, Doc. No.
5). Following a June 5, 2018 hearing, the trial court granted permanent custody of
T.A.M. to the agency and approved and adopted the second case plan amendment
on June 8, 2018. (Case No. F2185059, Doc. No. 6).
{¶8} On June 12, 2018, McIe filed a notice of appeal. He raises one
assignment of error.
Assignment of Error
Crawford County Job and Family Services Did Not Comply with
Statutory and Administrative Requirements in Its Ongoing
Reasonable Efforts to Reunify the Minor Child, T.A.M. (date of
birth: * * *, 2004) with his Parents.
{¶9} In his assignment of error, McIe argues that the trial court erred by
awarding permanent custody of T.A.M. to the agency. Specifically, McIe argues
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that the agency “failed to exercise reasonable efforts to reunify the family as
required by law,” “failed to consider a relative placement in whose home the child
resided and with whom the child had a previous relationship,” and “failed to provide
case plan services, a home study or even a background check on a suitable
alternative placement.” (Appellant’s Brief at 11). McIe concludes that the agency’s
“failure to make such inquiries and provide services is demonstrative of its failure
to make reasonable efforts for reunification.” (Id.).
{¶10} The right to raise one’s child is a basic and essential right. In re
Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,
92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and
management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102
S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not
absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These
rights may be terminated under appropriate circumstances and when the trial court
has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-
52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.
{¶11} “R.C. 2151.414 outlines the procedures that protect the interests of
parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.
Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re
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B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26. “When considering a motion for
permanent custody of a child, the trial court must comply with the statutory
requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,
2015-Ohio-2740, ¶ 13, citing In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-
03, 2009-Ohio-6027, ¶ 14. “R.C. 2151.414(B)(1) establishes a two-part test for
courts to apply when determining whether to grant a motion for permanent custody:
(1) the trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-
(e) applies, and (2) the trial court must find that permanent custody is in the best
interest of the child.” In re Y.W., 3d Dist. Allen No. 1-16-60, 2017-Ohio-4218, ¶
10, citing In re S.G., 9th Dist. Wayne No. 15AP0005, 2015-Ohio-2306, ¶ 10 and In
re Brown, 98 Ohio App.3d 337, 343 (3d Dist.1994). R.C. 2151.414(B)(1) provides,
in relevant part, that a trial court
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to [R.C. 2151.414(A)], by
clear and convincing evidence, that it is in the best interest of the child
to grant permanent custody of the child to the agency that filed the
motion for permanent custody and that * * *:
(a) The child is not abandoned or orphaned, has not 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
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consecutive twenty-two-month period, * * * and the child cannot be
placed with either of the child’s parents within a reasonable time or
should not be placed with the child’s parents.
***
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period *
* *.
R.C. 2151.414(B)(1)(a), (d). “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f
one or more of the factors enumerated in R.C. 2151.414(E) is found to be present
by clear and convincing evidence, the trial court shall find that the child cannot be
placed with the parents within a reasonable period of time or should not be placed
with the parents.’” In re A.M. at ¶ 13, quoting In re A.F., 3d Dist. Marion No. 9-11-
27, 2012-Ohio-1137, ¶ 54, citing In re Goodwin, 3d Dist. Shelby No. 17-08-12,
2008-Ohio-5399, ¶ 23.
{¶12} R.C. 2151.414(E) provides, in relevant part:
In determining at a hearing held pursuant to [R.C. 2151.414(A)] * * *
whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the
court shall consider all relevant evidence. If the court determines, by
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clear and convincing evidence, at a hearing held pursuant to [R.C.
2151.414(A)] * * * that one or more of the following exist as to each
of the child’s parents, the court shall enter a finding that the child
cannot be placed with either parent within a reasonable time or should
not be placed with either parent:
***
(3) The parent committed any abuse as described in [R.C. 2151.031]
against the child, caused the child to suffer any neglect as described
in [R.C. 2151.03], or allowed the child to suffer any neglect as
described in [R.C. 2151.03] between the date that the original
complaint alleging abuse or neglect was filed and the date of the filing
of the motion for permanent custody;
***
(5) The parent is incarcerated for an offense committed against the
child * * *;
***
(7) The parent has been convicted of or pleaded guilty to one of the
following:
***
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(b) An offense under [R.C. 2903.11] * * * and the victim of the
offense is the child * * *;
***
(d) An offense under * * * [R.C. 2907.04] * * * and the victim of
the offense is the child * * *;
***
(12) The parent is incarcerated at the time of the filing of the motion
for permanent custody * * * and will not be available to care for the
child for at least eighteen months after the filing of the motion for
permanent custody * * *.
R.C. 2151.414(E)(3), (5), (7)(b), (d), (12).
{¶13} “‘If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which
requires the trial court to ‘determine, by clear and convincing evidence, whether
granting the agency permanent custody of the child is in the child’s best interest.’”
In re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38 and 9-15-39, 2017-Ohio-142,
¶ 23, quoting In re A.F. at ¶ 55 and citing R.C. 2151.414(B)(1). “The best interest
determination is based on an analysis of R.C. 2151.414(D).” Id.{¶14} “Under R.C. 2151.414(D)(1), the trial court is required to consider all
relevant factors listed in that subdivision, as well as any other relevant factors.” Id.-9-
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at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12 and 8-13-13, 2014-
Ohio-755, ¶ 27. The R.C. 2151.414(D)(1) factors include:
(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.
R.C. 2151.414(D)(1). “Under this test, the trial court considers the totality of the
circumstances when making its best interest determinations. No single factor is
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given more weight than others.” In re N.R.S., 2018-Ohio-125, at ¶ 16, citing In re
Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.
{¶15} If the trial court makes these statutorily required determinations, a
reviewing court will not reverse a trial court’s decision unless it is not supported by
clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and
16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d
Dist.1994), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985) and In
re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence
is that which is sufficient to produce in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established.” In re S.G., 2015-Ohio-2306, at
¶ 10, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶16} McIe does not appear to challenge any of the trial court’s findings
under R.C. 2151.414. Instead, McIe argues that the trial court erred by granting
permanent custody of T.A.M. to the agency because the trial court erroneously
concluded that the agency used reasonable efforts to reunify the family by placing
T.A.M. with T.A.M.’s paternal grandmother, Iva McIe (“Iva”). (Appellant’s Brief
at 8-12). However, McIe’s argument is misplaced. “[A] trial court is not obligated,
under R.C. 2151.419, to make a determination that the agency used reasonable
efforts to reunify the family at the time of the permanent custody hearing unless the
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agency has not established that reasonable efforts have been made prior to the
hearing.” (Emphasis sic.) In re N.R.S. at ¶ 25, citing In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, ¶ 41, 43 (concluding that the reasonable-efforts determination
under R.C. 2151.419 does not apply to permanent-custody motions under R.C.
2151.413 or to hearings on such motions under R.C. 2151.414). In this case, the
trial court made reasonable-efforts findings both at the time that the agency was
awarded temporary custody of T.A.M. and at the time that the agency was granted
an extension of temporary custody over T.A.M., and McIe does not offer argument
or evidence refuting these findings. (See Case No. C2165118, Doc. Nos. 11, 28).
As a result, the trial court was not required to make reasonable-efforts findings at
the permanent custody hearing before awarding permanent custody of T.A.M. to the
agency.2
{¶17} Nevertheless, although he does not frame his arguments as such, we
interpret McIe’s arguments as challenging the trial court’s best-interest findings
under R.C. 2151.414(D)(1)(d). That is, McIe’s arguments raise the question of
whether the trial court properly considered T.A.M.’s need for a legally secure
permanent placement and whether that type of placement could be achieved without
2
Even if the trial court had been required to make reasonable-efforts findings at the permanent custody
hearing, it is far from certain that the agency’s efforts to place T.A.M. with Iva, or lack thereof, would have
been relevant to its reasonable-efforts findings. See In re M.O., 4th Dist. Ross No. 10CA3189, 2011-Ohio-
2011, ¶ 16 (“[A] public children services agency has no statutory duty to make ‘reasonable efforts’ to place
the child with an extended family member before it can obtain permanent custody of the child.”), citing In re
Warren, 5th Dist. Stark No. 2007CA00054, 2007-Ohio-5703, ¶ 21-23.
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a grant of permanent custody to the agency—specifically, by awarding custody of
T.A.M. to Iva. See In re A.R., 4th Dist. Highland No. 14CA10, 2014-Ohio-4916, ¶
20-25. Accordingly, while McIe does not explicitly set forth a best-interests
argument, we will consider whether clear and convincing evidence supports the trial
court’s R.C. 2151.414(D)(1)(d) findings.
{¶18} With respect to R.C. 2151.414(D)(1)(d), the trial court found that in
“the course of [McIe’s] companion criminal proceedings[,] the caseworker solicited
from [McIe] names of relatives or other interested persons who would be willing to
assume a long-term placement of [T.A.M.]” (Case No. F2185059, Doc. No. 6). The
trial court also found that the caseworker contacted the persons suggested by McIe
but that they “never followed through for the necessary physical home evaluation,
a criminal records check and a child welfare FACSIS check.” (Id.). As to potential
placement with Iva, the trial court found that due to “a previous substantiated child
welfare case[,] [Iva] was excluded from consideration.” (Id.). Based on these
findings, the trial court concluded that “no relative or other interested person has
been identified as properly suitable to assume the long-term placement of the child
and * * * that it would be in the best interests of [T.A.M.] to grant permanent custody
as a legally secure permanent placement cannot be achieved without a grant of
permanent custody * * *.” (Id.).
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{¶19} We find that clear and convincing evidence supports the trial court’s
conclusion that a legally secure permanent placement for T.A.M. could not be
achieved without a grant of permanent custody to the agency. At the permanent
custody hearing, Brook Rachel (“Rachel”), an ongoing caseworker with the agency,
testified that after being removed from McIe’s custody, T.A.M. was initially placed
with a foster parent but that he was removed from the foster home after less than a
month and placed at Boys Village “[d]ue to his sexual behaviors.” (June 5, 2018
Tr. at 7-8). Rachel stated that although T.A.M. continued to undergo counseling
and therapy at Boys Village, “he [had not] been making much progress” and “[h]e
continue[d] to have sexual acting out behaviors with other peers, [and said] things
that [were] inappropriate to peers and staff.” (Id. at 8). She testified that during the
entirety of T.A.M.’s stay at Boys Village, he only had contact with one family
member, Iva, on one occasion. (Id.). According to Rachel, on the day T.A.M. saw
Iva, he did not want to “comply with the therapy and counseling on that day” and
he had “a lot of behaviors” including “[c]ontinued sexual acting out.” (Id. at 8-9).
{¶20} In addition, Rachel testified that McIe suggested four potential
placements for T.A.M.—Ellen Gregory, Gina Gregory, Gartrell McIe, and Iva. (Id.
at 9). She stated that the agency did not establish contact with either of the Gregorys
or with Gartrell McIe. (Id. at 9-10). As to potential placement with Iva, Rachel
testified that although Iva requested that she be considered as a placement for
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T.A.M., the “agency [was] unable to approve her due to her substantiated case in
regards to this ongoing case.” (Id. at 10). Finally, she testified that there were no
other placements available for T.A.M. at the time of the permanent custody hearing
and that she did not believe that it was possible for T.A.M. to have a legally secure
placement without granting permanent custody to the agency. (Id.).
{¶21} On cross-examination, Rachel agreed with McIe’s counsel’s assertion
that the agency was required to use reasonable efforts to “maintain the child in the
home” and to “keep the child with the family, if possible.” (Id. at 11). She stated
that when T.A.M. was removed from McIe’s custody, McIe, Iva, and T.A.M. were
all residing in the same home. (Id. at 13). Rachel testified that the agency did not
conduct a home study on Iva, did not run a background check on Iva, and did not
provide Iva with any services under the case plan. (Id. at 12). She confirmed that
Iva was excluded as a potential placement for T.A.M. due to substantiated
allegations arising from T.A.M.’s case. (Id.). Rachel stated that although Iva
attempted to contact the agency, the agency did not provide services, assessments,
or referrals for Iva. (Id. at 12, 14).
{¶22} Rachel reiterated that T.A.M. had not made much progress at Boys
Village, that he continued to act out in a sexual manner, and that Boys Village had
reported that T.A.M. was “very off” the day he saw Iva. (Id. at 14-15). Regarding
T.A.M.’s prospects for adoption, Rachel testified that the agency’s
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“recommendation is always for * * * the child to complete the program that they’re
in before [it] would look.” (Id. at 15). According to Rachel, completing the program
at Boys Village “would be the best opportunity for [T.A.M.] so he can learn his
coping skills on everything that’s happened to him.” (Id.). Although Rachel
conceded that T.A.M. was not taking full advantage of the programs at Boys Village
and that he “still ha[d] behaviors,” she remarked that granting permanent custody to
the agency so that he could continue to receive services at Boys Village was in
T.A.M.’s best interest because the agency “[did not] know what [was going to]
happen after right now.” (Id. at 15-16). Rachel further testified that, even given
additional time to set up referrals for Iva, the agency would not place T.A.M. with
her under any circumstances because “[s]he had a substantiated case in 2016 with
sexual allegations with [T.A.M.], and it was substantiated.” (Id. at 16). Finally,
when asked whether there were any circumstances under which the agency “would
* * * attempt to reunify [T.A.M.] with the home that he came from,” Rachel
responded, “[N]o.” (Id.).
{¶23} On examination by T.A.M.’s GAL, Rachel testified that T.A.M. was
removed from the home because McIe was the sole custodial parent of T.A.M. and
Iva did not have custody of T.A.M. (Id. at 17). She testified that regardless of the
fact that T.A.M. was also living with Iva at the time he was removed, he would have
been removed because McIe was T.A.M.’s only residential parent. (Id.). Rachel
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also stated that she believed that other children had been removed from Iva’s home
and that she believed that those children were under Iva’s care and custody at the
time of their removal. (Id. at 17-18).
{¶24} Furthermore, Rachel testified that despite T.A.M.’s lack of progress in
the program, it would be in his best interest to remain in the program. (Id. at 18).
Rachel agreed with T.A.M.’s GAL’s assessment that removing him from the
program and placing him “back home” would “be setting him up to fail most likely
because of his behaviors[,] * * * he would offend on someone.” (Id.). Rachel
testified that the fact that T.A.M. had not successfully completed the program did
not mean that he could not complete the program. (Id.). Although she could not
speculate on T.A.M.’s chances of being adopted, she opined that T.A.M. would have
a greater chance of being adopted if the agency gained permanent custody over him
so that he could complete the program at Boys Village. (Id. at 20-21).
{¶25} On re-cross-examination, Rachel testified that she believed that other
children had been removed from Iva’s care and custody but that she could not
remember with certainty the year in which the children were removed. (Id. at 22).
She identified the two children but “could not tell * * * why they were removed.”
(Id.). Rachel testified that she only knew that two children were removed from the
home but she could not state why they were removed or whether Iva was at fault.
(Id. at 23). She further testified that T.A.M. continued to have “sexual behaviors”
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at Boys Village despite being in the program since December 2016. (Id.). However,
she declined to “say that [T.A.M. was] failing at the program.” (Id. at 24). Instead,
she characterized T.A.M.’s progress as follows: “He has done * * * some
counseling, he’s done some therapy. He’s kind of back and forth. He will go some
way and make progress and then he’ll go backwards, and then he’ll make some
progress and then he won’t.” (Id.).
{¶26} Therefore, the record establishes that the agency and the trial court
considered a slate of alternative placements for T.A.M. in lieu of permanent
custody. First, the record demonstrates that three suggested relative placements
were excluded from consideration due to their failure to establish contact with the
agency. Furthermore, the record supports that Iva was not a suitable candidate for
placement of T.A.M. due to previous exclusionary contact with the agency and
substantiated allegations arising out of the same case that necessitated T.A.M.’s
removal from McIe’s custody. Finally, it is clear that, despite T.A.M.’s lack of
progress in the program at Boys Village, granting permanent custody to the agency
in order to allow T.A.M. to complete the program affords him the best chance of
eventually settling into a safe, stable, and secure home environment. Removing
T.A.M. from the program and placing him with Iva would deprive him of much-
needed therapeutic resources and would likely frustrate the efforts to help T.A.M.
cope with the abuse inflicted on him by McIe. In sum, clear and convincing
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evidence supports the trial court’s conclusion that a legally secure permanent
placement for T.A.M. could not be achieved without a grant of permanent custody
to the agency.
{¶27} McIe’s assignment of error is overruled.
{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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