In re T.F. , 2021 Ohio 4104 ( 2021 )

[Cite as In re T.F., 2021-Ohio-4104.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: T.F., T.F., D.W., D.W. :
:
: Appellate Case No. 29139
:
: Trial Court Case Nos. G-2016-4550-
: 0Q-0S, G-2016-4551-0R, 0T, G-2016-
: 4553-0T, 0V, G-2017-5100-0R, 0T
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
...........
OPINION
Rendered on the 19th day of November, 2021.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Appellee, Montgomery County Children Services
P.J. CONBOY, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
Attorney for Appellant, Mother
.............
WELBAUM, J.
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{¶ 1} Mother appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which granted legal custody of her daughters, T.F.1,
D.W.1, and D.W.2, to Mother’s maternal aunt, and legal custody of her son, T.F.2, to
Mother’s maternal cousin. For the reasons outlined below, the judgment of the trial court
will be affirmed.
Facts and Course of Proceedings
{¶ 2} Mother has two children with T.F., a daughter, T.F.1, born in 2011, and a son,
T.F.2, born in 2012. Mother also has two daughters with D.W., D.W.1, born in 2015, and
D.W.2, born in 2017.
{¶ 3} On July 20, 2016, the Montgomery County Department of Job and Family
Services, Children Services Division (“MCCS”), filed a dependency complaint concerning
T.F.1, T.F.2, and D.W.1. MCCS alleged in the complaint that Mother was mentally
unstable and was allowing the children to be exposed to domestic violence between
herself and D.W. On October 6, 2016, the trial court adjudicated T.F.1, T.F.2, and D.W.1
dependent and granted custody of the children to Mother with MCCS maintaining
protective supervision.
{¶ 4} On August 22, 2017, MCCS filed an abuse, neglect, and dependency
complaint concerning D.W.2., who was born five months earlier. MCCS alleged in the
complaint that Mother had a domestic dispute with D.W. on June 18, 2017, during which
D.W. physically assaulted Mother while her children were present. MCCS alleged that,
as a result of the assault, Mother was hospitalized with a concussion and required stitches
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on her face. MCCS also alleged in the complaint that on June 23, 2017, Mother left
three-month-old D.W.2 and her siblings, T.F.1, T.F.2, and D.W.1, unsupervised in a
parked vehicle while Mother went to attend a medical appointment for her injuries.
{¶ 5} In addition to its complaint, on August 22, 2017, MCCS filed a motion for the
trial court to grant temporary custody of Mother’s daughters, T.F.1, D.W.1, and D.W.2, to
D.W.’s sister, P.K., and temporary custody of Mother’s son, T.F.2, to a non-relative, A.W.
In the alternative, MCCS moved the trial court to grant temporary custody of all the
children to MCCS. Following an interim order hearing, on September 14, 2017, the trial
court granted P.K. interim temporary custody of T.F.1, D.W.1, and D.W.2, and A.W.
interim temporary custody of T.F.2.
{¶ 6} On November 3, 2017, the trial court adjudicated D.W.2 abused, neglected,
and dependent. Also on November 3, 2017, the trial court granted temporary custody of
T.F.1, D.W.1, and D.W.2 to MCCS, as the trial court found that P.K. was not expected to
pass MCCS’s home study. The trial court also granted temporary custody of T.F.2 to
A.W.
{¶ 7} Eight months later, on July 17 and 30, 2018, MCCS filed motions for
temporary custody of T.F.2 to be transferred to MCCS on grounds that A.W. was no
longer willing and able to care for T.F.2. On July 17, 2018, MCCS also moved for a first
extension of temporary custody for all four children. The trial court granted MCCS
interim temporary custody of T.F.2 on July 30, 2018. On August 6, 2018, MCCS
amended its motion for a first extension of temporary custody to also request that
temporary custody of T.F.1, D.W.1, and D.W.2 be transferred to Mother’s maternal aunt,
M.H., and that temporary custody of T.F.2 be transferred to Mother’s maternal cousin,
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E.D.
{¶ 8} On September 13, 2018, the trial court issued an order extending temporary
custody of T.F.1, D.W.1, and D.W.2 to M.H., and extending temporary custody of T.F.2
to E.D. On March 20, 2019, the trial court once again extended temporary custody of
the children to M.H. and E.D. On June 25, 2019, MCCS filed a motion for the trial court
to grant M.H. legal custody of T.F.1, D.W.1, and D.W.2, and a motion for the trial court to
grant E.D. legal custody of T.W.2. On June 28, 2019, Mother filed a motion for visitation
regarding all four children. On July 16, 2019, Mother also filed a motion requesting that
the trial court extend the temporary custody granted to M.H. and E.D., or alternatively, to
grant Mother legal custody of all four children. The trial court held dispositional hearings
on these motions on October 4, 2019, and February 10, 2020.
{¶ 9} During the October 4, 2019 hearing, MCCS presented testimony from MCCS
Child Welfare Supervisor Monica Burton and MCCS caseworker Shanta Anderson.
During the February 10, 2020 hearing, MCCS presented additional testimony from
Anderson as well as testimony from licensed psychologist Dr. Rhonda Lilley. Mother
also testified at the February 10, 2020 hearing and presented testimony from her
parenting coach, Jill Meitzner, and from Tarin Macher of Empowered Excellence
Behavioral Health. The children’s guardian ad litem (“GAL”) also provided his custody
recommendation at the February 10, 2020 hearing. The following is a summary of the
testimony presented at the dispositional hearings.
Monica Burton
{¶ 10} Burton testified that she was a Child Welfare Supervisor with MCCS who
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had been involved with Mother since 2015. Burton testified that she initially became
involved with Mother due to concerns about Mother’s mental health and due to a domestic
violence incident between Mother and D.W. Burton testified that MCCS became
involved with Mother again in June 2017, after D.W. was arrested for assaulting Mother
by breaking her nose in front of the children. Burton testified that two weeks after that
incident, Mother left T.F.1, T.F.2, D.W.1, and D.W.2 in her vehicle for 45 minutes while
Mother attended a doctor’s appointment.
{¶ 11} Burton also testified regarding Mother’s criminal history, which included
several theft offenses. Burton testified that in 2018, Mother and several of her friends
were caught shoplifting at Marshalls. More recently, Burton testified that Mother had
been arrested in July 2019 for failure to comply with the order or signal of a police officer;
Burton indicated that the offense stemmed from Mother’s failing to pull over for a traffic
stop and engaging in a police pursuit while one of her children was in the vehicle with her.
Burton testified that Mother had recently been convicted for the failure to comply offense,
noting that it was a third-degree felony.
{¶ 12} Burton testified that MCCS had ongoing concerns about Mother’s
friendships because Mother had consistently made choices to bring people into her life
who engaged in criminal behavior. Burton also testified that Mother exposed her children
to individuals with substance abuse issues. For example, Burton testified that the
alleged father of Mother’s youngest son, who was not part of this case, had been on
probation for possession of drugs and recently passed away from a drug overdose on
September 21, 2019. Burton testified that it was reported that Mother had spent a lot of
time with this individual in her bedroom while the children were in Mother’s care.
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{¶ 13} Burton also testified that MCCS had concerns about Mother’s continuing to
interact with D.W. despite D.W.’s attacking her in the past. Burton testified that during
her home visit with Mother, Mother did not deny having conversations with D.W. after he
was incarcerated for assaulting her. Burton testified that Mother and D.W. had
exchanged gifts and that Mother talked to D.W. on the phone. Burton also testified that
during a period of time that D.W. had been released from jail in 2018, Mother allowed her
children to visit D.W. and D.W.’s family. Burton testified that in June 2018, T.F.1 told
Burton that she was afraid of D.W. because D.W. picked T.F.1 up by the shoulders and
made threats to her.
{¶ 14} Burton additionally testified that Mother had not completed all of her case
plan objectives with MCCS. Specifically, Burton testified that Mother had not
demonstrated stability in employment and had not followed all of the recommendations
from her parenting and psychological evaluations, which included having no contact with
her abusers. Burton testified that although Mother had completed the domestic violence
program at Artemis several times, Mother had not demonstrated that she had gained any
knowledge from the program. Burton also testified that Mother was not stable given that
she had recently been convicted of a felony offense. Burton further testified that Mother
did not make choices that provided for the safety of her children and that MCCS believed
Mother’s visitation with the children should be, at the very least, monitored.
{¶ 15} Burton testified that she had had no contact with D.W. due to D.W.’s being
incarcerated during most of the case. Burton testified that she had had conversations
with T.F. as recently as July 2019, during which T.F. advised her that he was not working
and was not in a position to care for T.F.1 and T.F.2. Burton, however, testified that T.F.
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had expressed interest in visiting T.F.1 and T.F.2.
Shanta Anderson
{¶ 16} Anderson testified that she was the MCCS caseworker who had been
assigned to Mother’s case for the past two years. Anderson testified that she became
involved with Mother because Mother left T.F.1, T.F.2, D.W.1, and D.W.2 unattended in
a parked vehicle for an extended period of time. Anderson testified that in the summer
of 2018, the children were placed with relative caregivers; T.F.1, D.W.1, and D.W.2 were
placed with Mother’s maternal aunt, M.H., while T.F.2 was placed with Mother’s maternal
cousin, E.D. Anderson testified that M.H. and E.D. had lived together in the same home
with all the children for a time, but had recently moved apart. Anderson testified that
home studies had been conducted on both M.H. and E.D.’s homes, and that both homes
had been approved by MCCS. Anderson testified that all of the children were doing well
in their current placements, and that M.H. and E.D. were meeting all of the children’s
basic needs.
T.F.1:
{¶ 17} Anderson testified that T.F.1 had observed domestic violence between
Mother and D.W. and in Mother’s past relationships as well. Anderson testified that in
the summer of 2018, before T.F.1 was placed in relative care, T.F.1 disclosed to her foster
family that D.W. had held her and T.F.2’s heads under water. Anderson testified that
she spoke with T.F.1 about the incident and T.F.1 told her that the incident happened
while she and her siblings were still in Mother’s care. During the summer of 2018, T.F.1
also advised Anderson that she was afraid of D.W. because she had observed him
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harming Mother. Anderson testified that, more recently, T.F.1 advised that she was
upset with Mother because, during a visitation at Mother’s home, Mother spent a majority
of the time in her bedroom with her boyfriend instead of spending time with T.F.1 and her
siblings.
{¶ 18} Anderson testified that T.F.1 did not have special needs but went to
counseling for anger and separation issues. Anderson testified that T.F.1 had previously
received counseling at Samaritan Behavioral Health and received counseling at school
at the time of the hearing. Anderson testified that Samaritan Behavioral Health identified
Mother and T.F.1’s placement in relative care as the source of T.F.1’s anger issues.
Anderson testified that T.F.1 had no mental health diagnosis and was not on an
Individualized Educational Plan (“IEP”) at school. Anderson testified that T.F.1 did pretty
well in school, but sometimes bullied other children. Anderson testified that T.F.1 was
otherwise popular at school and talked to everyone. Anderson testified that since being
placed in relative care, T.F.1 had become more stable with her schooling.
T.F.2:
{¶ 19} Anderson testified that in the summer of 2018, T.F.2 disclosed to her that
he had observed his father, T.F., assault Mother by hitting her in the face. Anderson
testified that T.F.2 had also disclosed that he had observed Mother being abused by D.W.
Anderson testified that T.F.2 had counseling needs due to anger and temperament
issues. Anderson testified that T.F.2 had previously been engaged with Samaritan
Behavioral Health for counseling and was engaged in counseling at school at the time of
the hearing. Anderson testified that T.F.2 had been diagnosed with Oppositional Defiant
Disorder (“ODD”) and had been prescribed no medications. Anderson testified that since
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being placed in relative care, T.F.2 was doing better in school and was no longer on an
IEP. Anderson testified that T.F.2 had previously been on an IEP for reading and
behavioral issues.
D.W.1:
{¶ 20} Anderson testified that D.W.1 had no special needs and was
developmentally on track. Anderson testified that MCCS was waiting for D.W.1 to be
accepted into the Head Start program at Miami Valley Child Development Center, as
there was a waiting list for D.W.1’s age group. Anderson testified that M.H. had tried to
enroll D.W.1 into a local preschool, but M.H. could not afford the monthly tuition.
{¶ 21} Anderson testified that D.W.1 had previously engaged in counseling for
tantrums, not listening, and erratic behaviors. Anderson testified that D.W.1 had not
made any disclosures since she was still very young. According to Anderson, there were
no issues or concerns at the time of the hearing that need to be addressed with regard to
D.W.1. Anderson testified that D.W.1 had become much calmer six months after she
was placed with M.H.
D.W.2:
{¶ 22} At the October 4, 2019 dispositional hearing, Anderson testified that D.W.2
had a slight speech delay and was very small in stature. Anderson also testified that
M.H. regularly took D.W.2 to the speech and developmental pediatrics departments at
Kinship Care in order to address D.W.2’s speech and growth issues. Anderson testified
that D.W.2’s treatment providers recommended that D.W.2 continue with speech therapy
and follow all recommendations with the developmental pediatrics program. At the
February 10, 2020 hearing, Anderson testified that D.W.2 had recently graduated from a
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speech program at Dayton Children’s Hospital, and that D.W.2 was then on track with
regards to her speech and growth.
Mother’s Case Plan and MCCS’s Concerns:
{¶ 23} Anderson testified that MCCS had a case plan in effect for Mother and that
she last spoke with Mother regarding her case plan on January 15, 2020. Anderson
testified that Mother was aware of her case plan objectives and that she and Mother had
reviewed her progress on the case plan. Anderson testified that Mother’s case plan
objectives were as follows:
- Complete a mental health assessment and follow all recommendations
from the assessment;
- Complete a parenting and psychological evaluation and follow all
recommendations from the evaluation;
- Visit with the children on a regular basis and adhere to supervised and
unsupervised visits by MCCS;
- Obtain and maintain sufficient income to support herself and her children;
- Obtain and maintain safe and appropriate housing;
- Complete domestic violence education/counseling at Artemis and follow all
recommendations, including making and implementing a safety plan;
- Refrain from making choices that place the children at risk of harm;
- Attend parenting classes; and
- Sign all releases of information.
{¶ 24} Anderson testified that Mother completed a mental health assessment with
Empowered for Excellence Behavioral Health, which diagnosed Mother with post-
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traumatic stress disorder (“PTSD”). However, Anderson testified that Mother’s
counseling with Empowered for Excellence focused on parenting skills and separation as
opposed to Mother’s mental health needs. Anderson testified that MCCS had ongoing
concerns with Mother’s mental health because of Mother’s criminal behavior and
involvement with domestic violence.
{¶ 25} Anderson also testified that Mother completed a parenting and
psychological evaluation with Dr. Rhonda Lilley. Anderson testified that Dr. Lilley
recommended Mother engage a parenting mentor to assist Mother with effectively
interacting with her children. Anderson testified that sometime after Mother’s evaluation
with Dr. Lilly, Mother began having sessions with a parenting mentor through MCCS.
Although Mother completed the required parenting and psychological evaluation and
participated in parent mentoring as recommended, Anderson testified that the parenting
and psychological objective was ongoing because Anderson had yet to receive a report
indicating whether Mother had demonstrated any learned skills from the parenting
mentor.
{¶ 26} With regard to visitation, Anderson testified that Mother visited the children
once a week through MCCS and also had visitation outside of MCCS as agreed by the
relative caregivers. Anderson testified that Mother did not visit her children regularly
outside of MCCS, but testified that M.H. and E.D. were willing to work with Mother on
visitation and were in daily contact with Mother. Anderson also testified that Mother had
daily contact with her children via text messages and phone calls.
{¶ 27} With regard to income, Anderson testified that Mother moved from job to
job and had not demonstrated stability with maintaining the same employer. Anderson
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also testified that Mother’s employment was sporadic and that she went months without
working. At the February 10, 2020 hearing, Anderson testified that the last time Mother
had verified her income and employment was five months earlier when she had been
working as a factory worker at MAHLE. Anderson testified that Mother had provided
verification of full-time employment at MAHLE for approximately two months in 2019.
Anderson testified that Mother also previously had worked part-time at McDonald’s in
Moraine for three months while she was pregnant with her youngest child, who was not
involved in this case.
{¶ 28} Anderson testified that Mother had recently advised Anderson’s supervisor
that Mother was working at McDonald’s in Englewood but had provided no verification of
that employment. Anderson also testified that Mother’s attorney advised her that Mother
had recently worked a seasonal position at Kohl’s for approximately two months, but had
provided no verification of that employment either. Anderson further testified that, most
recently, Mother advised her at court that Mother was working at First Call and also
cleaning houses on the side. However, Anderson once again testified that Mother had
provided no verification of that employment. Anderson testified that Mother’s income
objective was incomplete.
{¶ 29} Anderson testified that MCCS had referred Mother to Artemis for domestic
violence education and that Mother had completed the Artemis program at least three
times. Anderson, however, testified that Mother had not demonstrated the skills that
were taught during the Artemis courses.
{¶ 30} Anderson testified that Mother had completed the housing, release of
information, and parenting class objectives. Anderson, however, testified that Mother
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was not with the children long enough for Mother to show the skills that were taught in the
parenting classes. Anderson testified that during visits at MCCS, Mother could not
control the children in a small setting.
{¶ 31} Anderson testified that MCCS was concerned about who was in the home
with Mother during her in-home visits with the children. Anderson testified that Mother
had been involved with inappropriate paramours throughout the case. Anderson
testified that Mother’s ex-boyfriend and alleged father of her youngest child was a known
drug user who had recently passed away from a drug overdose. Anderson also testified
that T.F.1 disclosed to her that during a visit at Mother’s home, Mother had been upstairs
in her bedroom with T.F. “doing the nasty.” Trans. Vol. I (Oct. 4, 2019), p. 70. Anderson
testified that the relative caregivers reported that immediately after T.F.1 and T.F.2 visited
with Mother they display sexualized acts, such as “humping” on each other. Id.{¶ 32} Anderson testified that MCCS’s biggest concern with Mother’s ability to
supervise and parent her children was the people with whom Mother chose to surround
herself and her children. Anderson testified that MCCS had done background checks
on everyone and that the background checks indicated that Mother exposed her children
to individuals with criminal histories and histories with MCCS. Anderson testified that if
Mother regained custody of her children, MCCS would also be concerned about Mother’s
ability to maintain the children’s safety. Accordingly, Anderson testified that Mother’s
visits with her children should be monitored.
{¶ 33} Anderson testified that if M.H. and E.D. got legal custody of the children,
Mother could visit the children so long as M.H. and E.D. agreed to the visit and found that
the proposed visit was safe and appropriate for the children. Anderson testified that
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granting legal custody to M.H. and E.D. was in the best interest of the children because
the children’s behaviors had improved since being placed with them. Anderson also
testified that the children had stability, were doing well in school, and were thriving with
M.H. and E.D. Anderson further testified that the children were able to see each other
on a regular basis in their current placements with M.H. and E.D.
Fathers T.F. and D.W.:
{¶ 34} Anderson testified that she last spoke with T.F. on the phone in July 2020,
and that T.F. had told her that he was going to contact her to set up a time to meet and
discuss his case plan. Anderson, however, testified that T.F. never had contacted her
and had not been cooperative throughout the entire case. Anderson also testified that
T.F. did not see T.F.1 and T.F.2 regularly. Anderson noted during the October 4, 2019
hearing that T.F.’s last visit with the children had been months ago and that he had
stopped making attempts to visit the children. Anderson testified that T.F. had no
housing or income for the children and that any visitation by T.F. should be supervised if
legal custody were granted to M.H. and E.D.
{¶ 35} Anderson testified that she has had no contact with D.W. given that D.W.
had been incarcerated for assaulting Mother. Anderson testified that D.W.’s expected
release date was February 2022. Anderson testified that D.W. had no contact with the
children and that any visitation with D.W. would have to be supervised given his known
history of violence.
Dr. Rhonda Lilley
{¶ 36} Dr. Lilley testified that she was a psychologist who performed a
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psychological evaluation on Mother in April 2019 at the request of MCCS. Dr. Lilley
testified that she performed an MMPI personality inventory on Mother, which is used to
diagnose mental health issues and personality disorders. Dr. Lilley testified that the
MMPI can give an overall understanding of an individual’s mental health functioning.
{¶ 37} Dr. Lilley testified that Mother’s MMPI results showed that Mother was
somewhat defensive and insecure with feelings of inadequacy and low self-esteem. Dr.
Lilley explained that Mother’s test results also showed that Mother could be impulsive at
times and could be somewhat reactive to rules, restrictions, and regulations. Dr. Lilley
testified that the MMPI results further showed that Mother tended to have poor problem-
solving skills and tended to have difficulty benefitting from past experiences. Dr. Lilley
testified that the MMPI results were concerning due to Mother’s history of being involved
in relationships with domestic violence.
{¶ 38} Dr. Lilley testified that she also performed a parenting stress inventory on
Mother, which looked at characteristics of the parent, child, and the environment that
could create stressors in parenting. Dr. Lilley testified that she observed Mother’s
parent-child interaction and observed that Mother had a very positive relationship with her
children. Dr. Lilley testified that the children were excited to see Mother and enjoyed
spending time with her. Dr. Lilley testified that Mother was very nurturing with the
children and that Mother did a good job of dividing her time between the children. Dr.
Lilley testified that Mother cared about the children’s well-being and that there appeared
to be a strong bond between them. Dr. Lilley testified that the only problem she observed
was Mother’s having difficulty structuring all the activities for the children and difficulty
following through with the limits that Mother set for the children’s behavior.
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{¶ 39} Dr. Lilley testified that based on Mother’s dependency features, personality
profile, and history of being involved in abusive relationships, her biggest concern with
Mother’s having legal custody of the children would be that Mother was at a high risk for
reengaging in abusive relationships without insight and awareness. Dr. Lilley testified
that because of Mother’s history of continuing contact with individuals who had abused
her, there was a significant concern that Mother was easily coerced and could gradually
reengage in a relationship with her abuser. Dr. Lilley testified that Mother’s dependent
personality features affected her ability to parent and made her more vulnerable to
reengaging in the abusive relationships.
{¶ 40} Dr. Lilley testified that Mother’s reengaging in abusive relationships created
a safety risk for children and did not provide the kind of modeling that children should
have. Dr. Lilley testified that reengaging in abuse relationships could teach children that
being in a violent relationship is okay and that it is okay to be abused. Dr. Lilley testified
that it could also put the children in the role of wanting to protect the parent being abused,
which could result in the children getting hurt. Dr. Lilley testified that it could also
contribute to the children not doing well in school and to developing PTSD, depression,
or anxiety due to what they witnessed.
{¶ 41} Dr. Lilley testified that she had concerns about Mother’s ability to make good
decisions, which could create an unstable, chaotic environment for children. Dr. Lilley
testified that she questioned Mother’s ability to make good decisions because Mother
went upstairs with a male during a visit with the children and because Mother violated a
MCCS restriction by inviting D.W.’s family to a visit with the children. Dr. Lilley testified
that she was also concerned about Mother’s judgment due to her criminal history.
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{¶ 42} Dr. Lilley testified that Mother had previously been diagnosed with
adjustment disorder with disturbance of mood and behavior, PTSD, and depressive
disorder. Dr. Lilley testified that based on her assessment, in order to reunify Mother
with her children, Mother should have a stable job and income, stable housing, and no
contact with her abusers. Dr. Lilley also suggested that Mother have longer visits with
her children and engage a parenting mentor to support Mother during the visits. Dr. Lilley
testified that she would recommend the parenting mentor to have in-home visits with
Mother and to make unannounced visits to see how well Mother was doing when not
prepared for a visit.
{¶ 43} Dr. Lilley testified that only Mother should be in the home during Mother’s
in-home visits with the children, and that Mother’s entire focus should be on the children.
Dr. Lilley testified that she strongly recommended that there be no male paramours
around during the visits because it was important for the children to see that Mother was
focused on them. Dr. Lilley recommended that there be no distractions that might cause
Mother to engage in sexualized behavior while the children were present.
Tarin Macher
{¶ 44} Macher was employed at Empowered for Excellence Behavioral Health,
where Mother had been a client for two years. Macher testified that she had taught
Mother individualized parenting courses once a week for ten weeks. Macher testified
that during the parenting courses, she and Mother had discussed the developmental
stages of children, behavioral management skills, appropriate rewards and punishments,
and general parenting skills. Macher testified that Mother’s attendance at class had
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been pretty good and that Mother had had no compliance issues. Macher, however,
testified that she was unaware as to why Mother’s children had been removed from her
custody and indicated that she could not speak as to whether she had any concerns with
Mother having unsupervised visits with the children.
{¶ 45} Macher also testified that Mother had completed mental health and
substance abuse assessments through the Empowered for Excellence program.
Macher testified that a therapist had provided Mother with individual therapy sessions
during which they had worked on coping skills to address Mother’s mental health
diagnosis that was revealed through the assessment. Macher testified that she had not
been the person who performed the mental health assessment and indicated that she
was unaware of Mother’s mental health diagnosis. Macher did, however, testify that
Empowered for Excellence performed random urinalysis screenings and that Mother had
not had any screens that tested positive for substance use. Macher also testified that
Mother had had a positive demeanor and successfully completed the entire Empowered
for Excellence program.
Mother
{¶ 46} Mother testified that she was 26 years old with six biological children.
Mother testified that none of her children were currently in her custody. Mother testified
that in July 2019, she agreed to have her youngest child, who was not part of this case,
placed in the legal custody of E.D., and she noted that E.D. was taking good care of the
child. Mother testified that her oldest child, who also was not part of this case, was in
the custody of the child’s paternal aunt.
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{¶ 47} Mother testified that she lived by herself in a three-bedroom home where
she claimed there was adequate space for all of her children. Mother testified that she
paid $376 a month in rent, $14 a month for Vectren and DP&L, and $100 to $150 every
three months for her water bill.
{¶ 48} Mother testified that she worked at a staffing agency known as First Call at
the time of the hearing, where she worked 40 hours a week and was paid $11 per hour.
Mother testified that as of the February 10, 2020 hearing, she had worked at First Call for
only one week. Mother also testified that she cleaned houses and buildings through a
contractor and was paid $11.25 per hour “under the table.” Trans. Vol. II (Feb. 10, 2020),
p. 252. Mother testified that the hours she worked cleaning houses and buildings varied
from week to week. Mother testified that from September 2019 to December 2019, she
worked 40 hours a week at Kohl’s making $13.68 per hour, and she noted that her hourly
rate doubled on the weekends. Mother claimed that she had enough income to support
her children if they were returned to her custody.
{¶ 49} With regard to her mental health, Mother testified that she had been
hospitalized at Kettering Behavioral Health in March 2016, because of depression,
anxiety, and lack of sleep. Mother also testified that she had completed mental health
treatment through South Community, Eastway, and Empowered for Excellence. Mother
testified that Empowered for Excellence diagnosed her with PTSD. Mother testified that
she regularly went to counseling at Empowered for Excellence, during which she
discussed her children and coping mechanisms for PTSD. Mother testified that she had
completed the Empowered for Excellence program in September 2019. Mother testified
that she was not currently in need of or receiving mental health treatment.
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{¶ 50} Mother testified that while her children were in her care, she had been
charged and later convicted with failure to comply with the order or signal of a police
officer, a third-degree felony. Mother testified that she was on probation and underwent
urinalysis screenings. Mother testified that during one of her urinalysis screenings, it
was discovered that she was in possession of mace on her keychain. Mother testified
that she left the urinalysis screening with the mace in her possession even after she was
told that having mace was a violation of her probation. Mother testified that a warrant
was subsequently issued for her arrest after she failed to get in touch with her probation
officer regarding the matter. Mother testified that she spent five days in jail as a result of
the incident. Mother admitted that keeping the mace in her possession had not been a
good decision.
{¶ 51} Mother also testified to having multiple prior convictions for theft. Mother
testified that when she was unemployed she would steal items such as toiletries, clothes,
shoes, and items for her children. Mother testified that she no longer engaged in theft.
{¶ 52} With regard to domestic violence, Mother testified that she had completed
the Artemis program three times and provided her certificate of completion to her MCCS
caseworker. Mother testified that she completed the program three times because she
became involved in a relationship with D.W. after he abused her. Mother testified that
she had worked with Artemis in making and implementing a domestic violence safety
plan.
{¶ 53} Mother testified that she was no longer in a relationship with D.W. Mother
testified that as of the February 10, 2020 hearing, the last time she had had contact with
D.W. was in November 2019. Mother testified that she did not talk to D.W. any longer
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because it was not good for her case.
{¶ 54} Mother testified that for over a year she had been in a relationship with an
individual who had recently died of a drug overdose. Mother claimed that she had been
unaware of the individual’s drug problem. Mother also denied ever having the individual
or other adults over to her home while her children were visiting.
{¶ 55} Mother testified that she visited her children once a week for two hours
through MCCS. Mother testified that she had reached out to M.H. and E.D. to get
additional visits, but whether she could visit depended on M.H. and E.D.’s work
schedules. Mother testified that she contacted M.H. and E.D. regularly to discuss her
children. Mother testified that M.H. and E.D. sometimes answered the phone and/or
returned her calls. Mother admitted that she had not asked M.H. and E.D. for a schedule
of her children’s extracurricular activities and doctor appointments. Mother testified that
no one had prevented her from going to the children’s extracurricular activities.
{¶ 56} Mother testified that she last saw her children at MCCS’s visitation center a
week prior to the February 10, 2020 hearing. Mother testified that her last visit with the
children outside of MCCS had been in January 2020 for T.F.1’s birthday celebration.
Mother testified that she had only been able to see T.F.1 and T.F. 2 during that visit, and
she admitted to taking the children to see T.F. Mother testified that she had last seen all
of the children outside of MCCS at her house on December 26, 2019.
{¶ 57} Mother testified that the only concern she had with her children not being
placed with her was that no one could take care of them the way she could. Mother
testified that her relationship with her children was good and that they all shared a bond.
Mother, however, admitted that she had some problems with T.F.1 talking back to her.
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{¶ 58} Mother testified that she believed M.H. and E.D. took good care of her
children and that the children were doing well in their placements. Mother, however,
testified that she was afraid M.H. and E.D. would keep her children away from her. Later
in her testimony, Mother admitted that M.H. and E.D. had not kept the children away from
her while exercising temporary custody of the children.
{¶ 59} Mother testified that it was in the best interest of her children for her to have
custody because she was their mother and she wanted them to be together in their regular
home. Mother testified that she was a good mother and noted that she did not smoke or
have pets. Mother testified that her children wanted to be at home with her and that they
were never injured in her care as a result of her abusive relationships. Mother testified
that she was no longer putting herself at risk and knew all the red flags when it came to
domestic violence.
Jill Meitzner
{¶ 60} Meitzner testified that she was Mother’s parenting mentor at MCCS.
Meitzner testified that as of November 2019, she and Mother had met five times with the
children at MCCS’s visitation center to work on Mother’s parenting skills. Meitzner
testified that Mother wanted one-on-one interaction with Meitzner in order to help Mother
make it less chaotic in the visiting room. Meitzner testified that she and Mother had
established goals, such as Mother’s brining food, showing up every week on time,
establishing authority as the parent, and finding age-appropriate activities to do with the
children.
{¶ 61} Meitzner testified that Mother could take criticism well and had a good
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rapport with her children, but missed two of her scheduled visits. Meitzner also testified
that during their first visit, Mother had yelled at T.F.1, had not had any food for the
children, and had not interacted with the children. Meitzner, however, testified that
Mother had remedied these issues during her subsequent visits and showed a lot of
progression.
{¶ 62} Meitzner testified that during their subsequent visits, Mother brought food,
games, and dolls for the children. Meitzner also testified that Mother had helped T.F.1
practice her cheerleading routines. Meitzner testified that Mother had been able to
structure the visits appropriately and to control the routine and the dynamics to keep
things upbeat and lighthearted. Meitzner also testified that Mother had engaged with her
children, listened to her children, and had been generally interested in their extracurricular
activities and schooling. Meitzner testified that when the children started discussing
Mother and T.F.’s not getting a long, Mother did a good job of stopping the conversation.
{¶ 63} Meitzner testified that following her five visits with Mother, she wrote a report
recommending that Mother’s visits with her children be longer and moved off-site to
Mother’s home. Meitzner, however, recommended that the visits should continue to be
monitored until Mother demonstrated that she was able to safely meet with her children
away from MCCS. Once that occurred, Meitzner testified that the goal should be to
gradually move toward Mother having unmonitored visits with the children.
{¶ 64} Meitzner testified that the children and Mother loved each other and enjoyed
visiting each other. Meitzner testified that Mother showed affection to the children
through hugs, kisses, and saying kind and positive things to them. Meitzner testified that
the children were bonded to Mother and that she did not have any concerns about
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Mother’s parenting. Meitzner also testified that she would be willing to continue her role
as a parenting mentor to Mother for at-home visits.
The GAL
{¶ 65} The children’s GAL recommended to the trial court that legal custody of
T.F.1, D.W.1, and D.W.2 be granted to M.H., and legal custody of T.F.2 be granted to
E.D. The GAL also recommended that Mother’s parenting mentor be permitted to do off-
site visitation for a period of time, and, when deemed appropriate by the parenting mentor,
Mother should be permitted to have a standard order of visitation with the children. The
GAL further recommended that MCCS maintain protective supervision over the children
for a period of six months so that MCCS could continue to provide services to the family.
As to the fathers, the GAL recommended that T.F.’s parenting time should be as agreed
by the custodians and that D.W. should have no parenting time.
Trial Court’s Decision
{¶ 66} On February 21, 2020, the trial court magistrate granted legal custody of
T.F.1, D.W.1, and D.W.2 to M.H. and legal custody of T.F.2 to E.D. The magistrate
granted Mother parenting time with all four children as agreed by the parties. Concerning
the fathers, the magistrate granted T.F. parenting time with T.F.1 and T.F.2 as agreed by
the parties and ordered D.W. to have no contact with the children. The magistrate also
granted MCCS protective supervision for six months in order to monitor and assist the
family with establishing a visitation routine and to obtain additional information regarding
Mother’s ability to exercise off-site parenting time. The trial court magistrate further
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ordered MCCS to continue to provide Mother a parenting mentor to monitor Mother’s off-
site parenting time.
{¶ 67} Mother thereafter filed objections and supplemental objections to the
magistrate’s decision. The trial court issued an order on April 22, 2020 overruling
Mother’s objections and adopting the magistrate’s decision. Mother appeals, raising a
single assignment of error for review.
Assignment of Error
{¶ 68} Under her sole assignment of error, Mother contends that the trial court
abused its discretion by awarding legal custody of her children to M.H. and E.D. Mother
argues that it was in the best interest of her children for Mother to obtain legal custody,
or, alternatively, for the trial court to grant an extension of temporary custody to the
relative caregivers.
{¶ 69} “An award of legal custody ‘vests in the custodian the right to have physical
care and control of the child and to determine where and with whom the child shall live,
and the right and duty to protect, train, and discipline the child and to provide the child
with food, shelter, education, and medical care, all subject to any residual parental rights,
privileges, and responsibilities.’ ” In re J.C., 2d Dist. Montgomery No. 28847, 2020-Ohio-
5540, ¶ 13, quoting R.C. 2151.011(B)(21). (Other citation omitted.) “Unlike an award
of permanent custody * * *, ‘[a]n award of legal custody of a child does not divest parents
of their residual parental rights, privileges, and responsibilities.’ ” Id., quoting In re C.R.,
108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, paragraph one of the syllabus.
{¶ 70} “An appellate court will not reverse an award of legal custody absent an
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abuse of discretion by the juvenile court.” Id. at ¶ 16, citing In re A.F., 2018-Ohio-310,
103 N.E.3d 1260, ¶ 54 (2d Dist.). “ ‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc.
v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990). “[T]he discretion which a trial court enjoys in custody matters should
be accorded the utmost respect, given the nature of the proceeding and the impact the
court’s determination will have on the lives of the parties concerned.” Miller v. Miller, 37
Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Because “[t]he knowledge a trial court gains
through observing the witnesses and the parties in a custody proceeding cannot be
conveyed to a reviewing court by a printed record[,] * * * the reviewing court in such
proceedings should be guided by the presumption that the trial court's findings were
indeed correct.” (Citations omitted.) Id.{¶ 71} “R.C. 2151.353(A)(3) provides that if a child is adjudicated a dependent
child, the court may award legal custody of the child ‘to either parent or to any other
person who, prior to the dispositional hearing, files a motion requesting legal custody of
the child[.]’ ” J.C. at ¶ 14, quoting R.C. 2151.353(A)(3). “A juvenile court may award
legal custody of a child to an individual if the court finds, by a preponderance of the
evidence, that legal custody is in the best interest of the child.” Id., citing In re C.B., 2d
Dist. Montgomery No. 28113, 2019-Ohio-890, ¶ 17. (Other citation omitted.)
“Preponderance of the evidence simply means ‘evidence which is of a greater weight or
more convincing than the evidence which is offered in opposition to it.’ ” In re A.W., 2d
Dist. Montgomery No. 21309, 2006-Ohio-2103, ¶ 6, quoting [In re K.S.], 2d Dist. Darke
No. 1646, 2005-Ohio-1912, ¶ 15.
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{¶ 72} When making a legal custody determination under R.C. 2151.353, the trial
court “must do so in accordance with the ‘best interest of the child’ standard set forth in
R.C. 3109.04(F)(1).” (Citations omitted.) In re D.S., 2d Dist. Clark No. 2013-CA-51,
2014-Ohio-2444, ¶ 9; J.C., 2d Dist. Montgomery No. 28847, 2020-Ohio-5540, at ¶ 15.
R.C. 3109.04(F)(1) provides that when determining the child’s best interest the trial court
must consider all relevant factors, including, but not limited to the following:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers * * *, the wishes and
concerns of the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child's parents,
siblings, and any other person who may significantly affect the child's best
interest;
(d) The child’s adjustment to the child's home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a child
support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any criminal offense
involving any act that resulted in a child being an abused child or a
neglected child; whether either parent, in a case in which a child has been
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adjudicated an abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act that is the
basis of an adjudication; * * * and whether there is reason to believe that
either parent has acted in a manner resulting in a child being an abused
child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other parent's
right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
R.C. 3109.04(F)(1).
{¶ 73} In this case, the trial court considered the foregoing factors when making its
best-interest determination. We note that the trial court determined that there was no
testimony provided at the dispositional hearings relative to factors (g), (i), and (j), and
therefore did not weigh those factors in its decision.
{¶ 74} With regard to factor (a)—the wishes of child’s parents regarding the child’s
care—the trial court found that Mother believed it was in the children’s best interest for
her to have custody of them. The trial court noted that Mother stated that she wanted
the children to be together with her in their regular home. The trial court also noted
Mother’s belief that the children wanted to be with her as well. The trial court found that
T.F. advised MCCS that he was not in a position to care for T.F.1. and T.F.2, but was
interested in visitation. The trial court found that the wishes of D.W., the father of D.W.1
and D.W.2, were unknown because D.W. has been incarcerated during the pendency of
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the matter.
{¶ 75} Concerning factor (b)—the wishes and concerns of the child as expressed
to the court—the trial court noted that it had conducted an in camera interview with T.F.1
and T.F.2 on October 4, 2019, and considered the contents of the interview when
rendering its custody decision. A transcript of the in camera interview with T.F.1 and
T.F.2 was not made a part of the record on appeal.
{¶ 76} As to factor (c)—the child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect the child’s best
interest—the trial court provided a detailed summary of the hearing testimony and
discussed how Mother exposed her children to domestic violence, criminal activity,
inappropriate friends and paramours, and how such exposure could negatively affect the
well-being and safety of the children. Additionally, the trial court discussed MCCS’s
concerns with Mother’s ability to care for the children due mental health and other
psychiatric issues for which Mother was hospitalized. The trial court also discussed
Mother’s leaving the children alone in a vehicle for 45 minutes during the summertime
when D.W.2 was only three months old.
{¶ 77} The trial court, however, also found that the children and Mother shared a
bond and that Mother had a caring relationship with the children. In addition, the trial
court discussed how Mother had started to improve on her parenting skills since working
with her parenting mentor.
{¶ 78} Concerning D.W., the trial court found that there was no testimony indicating
that D.W. had any meaningful relationship with D.W.1 or D.W.2. As to T.F., the trial court
found that T.F. had been permitted to visit the children at MCCS, but had never exercised
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visitation there. The trial court found that T.F. had only had unauthorized, off-site visits
with the children.
{¶ 79} For factor (d)—the child’s adjustment to the child’s home, school and
community—the trial court found that all of the children’s needs were being met with M.H.
and E.D. and noted that each child was doing well in his or her current placement. The
trial court also discussed how the children had progressed since being placed with M.H.
and E.D. For example, the trial court found that T.F.1 was doing well in school and that
T.F.2 had improved in school and was no longer utilizing an IEP. The trial court also
found that D.W.1 was calmer than she had been before her placement with M.H. and that
D.W.2, who had speech and growth delays, had graduated from her speech therapy
program at Dayton Children’s Hospital. Although not mentioned by the trial court, the
record indicates that D.W.2 was on track with regards to her speech and growth.
{¶ 80} With regard to factor (e)—the mental and physical health of all persons
involved—the trial court noted that there was significant testimony surrounding Mother’s
mental health and her continued involvement with men who abused her. The trial court
discussed Dr. Lilley’s testimony about how Mother’s personality profile showed traits of
insecurity, low self-esteem, impulsivity, and behaving reactively to rules, restrictions, and
regulations. The trial court also discussed Dr. Lilley’s testimony concerning Mother’s
MMPI test results, which showed that Mother tended to have poor problem-solving skills
and struggled with benefitting from past-experiences. The trial court further discussed
Dr. Lilley’s opinion that Mother was at an increased risk of reengaging in abusive
relationships, because her assessment revealed dependent personality features that
made her vulnerable to reengaging in relationships that could be coercive or potentially
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violent. In addition, the trial court pointed to Dr. Lilley’s testimony indicating that Mother
had been diagnosed with adjustment disorder with disturbance of mood and behavior,
PTSD, and depressive disorder.
{¶ 81} The trial court also discussed the mental health of each child. The trial
court found that T.F.1 had no mental health diagnosis, but has issues with anger and
frustration, which she addressed through counseling. The trial court noted that the
source of T.F.1’s anger was Mother and T.F.1’s removal from Mother’s home.
{¶ 82} The trial court found that T.F.2 had been diagnosed with ODD but had not
been prescribed any medications. The trial court noted that T.F.2 received counseling
to address his anger and temperament issues that stemmed from his exposure to
domestic violence.
{¶ 83} The trial court found that D.W.1 did not have any special needs and was
previously engaged in counseling to address tantrums, not listening, and overall erratic
behavior. The trial court found that D.W.2 received speech and developmental therapy.
The trial court found that there was no testimony provided about the mental health of the
children’s fathers.
{¶ 84} When considering factor (f)—the parent more likely to honor and facilitate
court-approved parenting time rights or visitation and companionship rights—the trial
court found that Mother had scheduled visits with her children at MCCS and also had
visits outside of MCCS when agreed upon by Mother and the relative caregivers. The
trial court discussed Mother’s testimony indicating that she did not regularly receive
visitation outside of MCCS because of M.H. and E.D.’s schedules.
{¶ 85} Factor (h) allows the trial court to consider “whether there is reason to
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believe that either parent has acted in a manner resulting in a child being an abused child
or a neglected child.” R.C. 3109.04(F)(1)(h). When considering this factor, the trial
court found that D.W.2 had been adjudicated abused under R.C. 2151.031(B) and
neglected under R.C. 2151.03(A)(2) per the magistrate’s order of November 3, 2017.
Based on that order, the trial court found that Mother and D.W. had both been perpetrators
of the abusive and neglectful acts that were the basis of the adjudication. With regard to
D.W., it was found that D.W.2 had been endangered due to domestic violence perpetrated
by D.W. against Mother inside of a vehicle while D.W.2 was present. See Magistrate’s
Decision and Judge’s Order (Nov. 3, 2017), p. 3. With regard to Mother, it was found
that D.W.2 lacked adequate parental care because Mother had left D.W.2 in her vehicle
unsupervised while Mother attended a doctor’s appointment. Id.{¶ 86} Based on the foregoing findings, the trial court found by a preponderance
of the evidence that the aforementioned best-interest factors supported awarding legal
custody of T.F.1, D.W.1, and D.W.2 to M.H. and legal custody of T.F.2 to E.D. We see
no abuse of discretion in this determination, as the trial court engaged in a thorough
analysis and the record indicates that the trial court’s conclusion was reasonable.
{¶ 87} Mother nevertheless argues that the trial court’s decision granting legal
custody to M.H. and E.D. was an abuse of discretion because the trial court disregarded
the progress Mother made on her case plan. The record, however, establishes that the
trial court carefully considered Mother’s case plan and went into great detail about
discussing Mother’s progress on each of her case plan objectives. See Judge’s Final
Appealable Order (Apr. 22, 2021), p. 12-18. Regardless, it is well established that
compliance with a case plan is not dispositive of the trial court’s best-interest
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determination. In the Matter of T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 12 (2d Dist.),
citing In re T.D., 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 12. This court has
explained that:
“ ‘[A] parent’s case plan compliance, while it may be relevant to a
best interest analysis, does not automatically override a trial court’s decision
regarding what is in a child’s best interests.’ ” [In re T.D. at ¶ 12], quoting
In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 59, citing In re
N.L., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶ 35. This court has
recognized that “[w]hen the focus is on the child’s best interest, a trial court
conceivably could terminate parental rights even if a parent completed all
of her case-plan objectives.” In re T.D. at ¶ 12, citing In re M.B. This court
also has observed that “[t]he case plan is simply ‘a means to a goal, but not
the goal itself,’ * * *.” Id., quoting In re J.H., 12th Dist. Clinton Nos. CA2015-
07-014, [CA2015-07-015], 2016-Ohio-640, ¶ 47 (citations omitted); see also
In re R.P., 2d Dist. Montgomery Nos. 26744, 2015-Ohio-4295, ¶ 17[.]
T.S. at ¶ 12.
{¶ 88} Because the trial court appropriately evaluated the evidence and best-
interest factors set forth in R.C. 3109.04(F)(1), we find no abuse of discretion in the trial
court’s determination that legal custody in favor of M.H. and E.D. was in the children’s
best interest by a preponderance of the evidence.
{¶ 89} Mother’s sole assignment of error is overruled.
Conclusion
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{¶ 90} Having overruled Mother’s assignment of error, the trial court's judgment
awarding legal custody of T.W.1, D.W.1, and D.W.2 to M.H. and legal custody of T.F.2 to
E.D. is affirmed.
.............
DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
P.J. Conboy, II
M.H.
E.K.D.
Randall Lee Stump
T.F.F.
John C. Meehling
Richard D. Donenfeld, GAL
Hon. Anthony Capizzi