In re P.S. ( 2016 )

[Cite as In re P.S., 2016-Ohio-3489.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: P.S. & T.S., : Hon. W. Scott Gwin, P.J.
Dependent Children : Hon. William B, Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 16-CA-11
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Juvenile Division, Case
Nos. F2014-699 and F2014-700
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 16, 2016
APPEARANCES:
KARRIE PRATT KUNKEL MICHAEL R. DALSANTO
Assistant Prosecuting Attorney 33 West Main Street, Ste. 106
20 S. Second St., 4th Floor Newark, OH 43055
Newark, OH 43055
Licking County, Case No. 16-CA-11 2
Gwin, P.J.
{¶1} Appellant M.S. appeals from the February 5, 2016 judgment entry of the
Licking County Court of Common Pleas, Juvenile Division, overruling the objections of
appellant, approving and adopting the magistrate’s decision, terminating his parental
rights, and granting permanent custody of P.S. and T.S. to the Licking County Department
of Job and Family Services (“LCDJFS”).
Facts & Procedural History
{¶2} M.S. is the father (“Father”) of P.S., born March 8, 2006 and T.S., born
September 11, 2012. On October 22, 2014, LCDJFS filed a dependency complaint with
regards to P.S. and T.S. The complaint alleged, in part, that the children’s mother had
been evicted from her home, her current boyfriend had a history of domestic violence, the
children had not been in school since October 9th, the former family home had multiple
holes in the walls, and the former family home had twenty to thirty empty vodka bottles
strewn around the home. The complaint further stated Father was incarcerated for
felonious assault where the children’s mother was the victim of the crime. The complaint
finally alleged LCDJFS had been involved with the family seven (7) times since 2005,
both P.S. and T.S. had previously been found dependent in a 2012 case, and both were
previously in foster care.
{¶3} On October 21, 2014, the trial court issued an emergency ex parte order of
removal. A magistrate’s order issued on October 24, 2014 found it was in the children’s
best interest to be placed in emergency shelter care and found the agency made
reasonable efforts to prevent removal. An adjudicatory hearing was held on December
18, 2014. Father’s attorney appeared at the hearing. In a December 22, 2014
Licking County, Case No. 16-CA-11 3
magistrate’s decision on the adjudicatory hearing, the magistrate found P.S. and T.S.
dependent by clear and convincing evidence. The magistrate also found LCDJFS made
reasonable efforts to prevent the children’s removal. No objections were filed to the
magistrate’s decision and the trial court approved and adopted the magistrate’s decision.
{¶4} In January of 2015, both paternal grandmother Francis Kurtz (“Kurtz”) and
paternal aunt Josephine Naylor (“Naylor”) filed motions to intervene in the case and/or
motions for legal and temporary custody of P.S. and T.S.
{¶5} A dispositional hearing was held on January 14, 2015. Father’s attorney
was present at the hearing. After the dispositional hearing, the magistrate issued a
decision on January 16, 2015. The magistrate found it was in the best interest of the
children to be placed in the temporary custody of LCDJFS. The magistrate found the
agency made reasonable efforts to prevent the children’s removal and made reasonable
efforts to achieve reunification. The magistrate specifically noted the agency has worked
with the family since 2005 and held temporary custody of the children from 2012 until
2014. The magistrate denied both the grandmother and the aunt’s motions to intervene.
Finally, the magistrate approved the case plan and granted the children’s mother
supervised visitation. No objections were filed to the magistrate’s decision. The trial court
thus adopted and approved the magistrate’s decision.
{¶6} On January 30, 2015, LCDJFS filed a motion for permanent custody of P.S.
and T.S pursuant to R.C. 2151.413(A) and R.C. 2151.414(B)(1)(d). The permanent
custody motion stated there were prior dependency actions for the children in September
of 2012 due to housing and employment concerns and the agency first became involved
with the family in 2005. Further, there has been a consistent pattern of instability. The
Licking County, Case No. 16-CA-11 4
motion also stated the children were adjudicated dependent in November of 2012 due to
unsafe housing and a domestic violence incident where Father drove into the children’s
mother with his vehicle. Custody of the children was returned to the children’s mother in
October 1, 2014 and the children were removed again on October 21, 2014 due to lack
of housing, lack of employment, and the lack of ability to provide a safe and stable home.
The motion finally stated the agency had custody of the children from March 30, 2013
until the end of July of 2014, and again from October 21, 2014 to the date of the motion.
{¶7} The trial court set a hearing on the motion for permanent custody on March
23, 2015. Father filed a motion to continue the hearing due to the unavailability of several
of his witnesses. The magistrate initially denied Father’s motion for continuance, but
ultimately granted the motion to continue and set the hearing for May 11th, when all of
Father’s witnesses were available.
{¶8} On March 5, 2015, Father filed a motion for visitation. On March 9, 2015,
the trial court entered a judgment entry on the semi-annual review in the case. Both
Father and his attorney were present at the semi-annual review. The trial court found
reasonable efforts were made to return the children to the home and to finalize the
permanency plan in effect. The trial court also denied Father’s motion for visitation. On
March 9, 2015, the guardian ad litem for the children filed a report. The report stated that
while the guardian ad litem did not support return of custody to the child’s mother or
Father, she did not support the agency’s motion for permanent custody unless the agency
and the foster parents could demonstrate the children would be safe in the foster home.
The guardian ad litem was concerned with the number of children in the foster home.
Licking County, Case No. 16-CA-11 5
{¶9} A trial on the agency’s motion for permanent custody and Kurtz’s and
Naylor’s motions for legal custody was held on May 11 and May 12. Due to the need for
a third day of trial testimony and the schedules of the parties and witnesses, the last day
of the trial was held on July 2. Initially, the magistrate dismissed Kurtz’s motion for legal
custody because she failed to appear for the hearing. The magistrate then took testimony
and evidence regarding both Naylor’s motion and the agency’s motion. Though the
magistrate held the testimony in separate segments, all parties stipulated that all of the
evidence presented with regards to Naylor’s motion could be considered for the
permanent custody motion.
{¶10} Naylor testified that prior to the 2012 case, the children spent time at her
home when they were young, but over the years she had lost touch with them and Father
due to them moving further away. She did not write the children letters. When Naylor
estimated the amount of times she saw the children, she stated “probably no less than
10; no more than 15.” Approximately two months prior to the hearing, Naylor attended a
visit with the children at the agency for approximately forty-five minutes. The visit was
the only time she had seen the children in the previous two-and-a-half years.
{¶11} Father testified he went to prison in 2012 for felonious assault and domestic
violence. The children’s mother was the victim of this domestic violence incident. Father
stated he and the children’s mother had a history of domestic violence prior to that
incident. When asked whether the children witnessed domestic violence, Father testified
if they did, it was only on one or two occasions. Father was released into a halfway house
on transitional control at the end of February of 2015, but stated he is still technically an
inmate. At the time of the permanent custody hearing, Father resided in the halfway
Licking County, Case No. 16-CA-11 6
house and had three months left in the halfway house. After he is released from the
halfway house, Father has three years of post-release control.
{¶12} Father has been employed since March 12, 2016 and stated he has
sufficient income to support himself. Father testified that, while he was incarcerated, he
completed multiple substance abuse programs and treatments and anger management
programs. Father stated he currently attends Mid-Ohio Psychological. Father testified
he is not one hundred percent sure what is in the best interest of the children since he
has not seen them in so long and does not know how they will interact with him, but Father
wants visitation and to eventually get custody of the children.
{¶13} Rebecca Inboden (“Inboden”) is the ongoing caseworker at LCDJFS for
P.S. and T.S. She first became involved with the family in November of 2013. The
children’s mother has two older children who are in the custody of paternal relatives.
Father is not the father of the two older children. The initial concerns the agency had with
the family included chronic homelessness, economic instability, poor environment, unsafe
and unsanitary home, and the children’s Mother and Father being involved in a
domestically violent relationship.
{¶14} In the 2012 case, the agency developed a reunification case plan for both
parents. The initial concerns on the case plan included mental health concerns and
substance abuse problems. The objectives on Father’s case plan included: complete a
mental health assessment and follow any recommendations; complete a medication
evaluation; complete a substance abuse assessment; random drug screens; obtain
employment; maintain independent housing; show a long-term pattern of sobriety which
does not include incarceration; and attend intensive counseling and anger management
Licking County, Case No. 16-CA-11 7
due to domestic violence issues. Father was subsequently removed from the case plan
due to his extended incarceration. Inboden testified she never met with Father to discuss
any objectives or concerns because he was incarcerated. She did not offer him any
services because he was incarcerated. However, Inboden stated that Father could
pursue services without a referral from her. Father wrote letters and sent the children
gifts while he was in prison.
{¶15} Inboden testified she received a letter from the Community Transition
Center that Father was participating in treatment services, including random drug
screens. Inboden stated once a motion for permanent custody is filed, it is not typical for
a caseworker to continue contact with the parents, but she could provide a support service
if a parent specifically seeks that service out. Inboden testified services are available and
can be utilized, but no party came forward indicating a need or willingness to have these
services. Inboden stated Father cannot complete the remaining services within the next
few months because it would exceed twelve months of the children being in temporary
agency custody. Further, Inboden testified the children need a safe and stable
environment.
{¶16} As to the 2014 case, Inboden stated the concerns were as follows: the
home lacked food, the children were absent from school for a long period of time, the
home was in deplorable condition, there were multiple empty alcohol bottles at the home,
and multiple holes in the wall of the home. Inboden testified the children’s mother visits
the children and they are bonded to her. Inboden stated Father has not seen the children
since September of 2012. Inboden does not think the children can be reunified with
Father in the foreseeable future because he is living in a halfway house and has extensive
Licking County, Case No. 16-CA-11 8
historical concerns with unemployment, alcoholism, and being transient. Further, the
family has been involved with LCDJFS since 2005.
{¶17} When asked about reasonable efforts provided by the agency, Inboden
testified the agency provided the children’s mother with gas cards, clothing, shoes, and
transportation. Inboden stated there were no other services the agency could offer either
parent to remedy the concerns of the agency and achieve reunification.
{¶18} Since the children have been placed in the foster home in October of 2014,
Inboden testified they have had periods of progression and improvement with behavioral
and emotional issues. However, they have improved recently. Academically, the children
do well. The children were originally placed in this foster home in April of 2014 and stayed
there until the end of July of 2014. They were placed there again in October of 2014.
The foster parents have four or five adopted children and several foster placements. Both
foster parents are self-employed so at least one of the parents is home full-time. Inboden
testified P.S. and T.S.’s needs are being met by the foster family and the family fosters a
relationship between them and their older siblings. Inboden stated the children are
bonded with the foster parents and family and the foster family is interested in adoption.
{¶19} Inboden testified the children’s problems are likely due to post-traumatic
stress disorder and have included smearing feces, running out of the room at school,
night terrors, and the inability to deal with any level of change. T.S. is combative, angry,
aggressive, and tries to slap and hit his foster mother.
{¶20} With regards to relative placements, Inboden stated she considered Naylor
as a placement, but there were three investigations from 1989 to 2003 where Naylor was
named as an alleged perpetrator of abuse and neglect; one of these was substantiated
Licking County, Case No. 16-CA-11 9
and two were unsubstantiated. Because there was a substantiated finding, Inboden
stated the kinship unit would not be able to approve her for placement pursuant to the
agency’s policy. Inboden further testified Naylor has not seen the children for over two
years. Additionally, Inboden stated she would be apprehensive to place the children with
Naylor because of their mental health and behavioral/emotional issues and because
Naylor has not had a relationship with the children for several years and is not familiar
with their needs. The children were placed with Kurtz, but the placement dissolved when
Kurtz was visibly intoxicated at an unannounced visit by LCDJFS.
{¶21} Inboden testified it is in the best interest of the children for the trial court to
grant LCDJFS permanent custody.
{¶22} Mackenzie Peterson (“Peterson”) is a psychologist who first met the children
in 2012. Peterson testified when the children were removed from their mother in October
of 2014, both had regressed in terms of behavior and attitude from where they were when
they were returned to Mother in July of 2014. T.S. had aggression she had never seen
before. P.S. told Peterson he wants to go home with his mother but, if he can’t, wants to
stay with the foster family. As to their foster siblings, P.S. and T.S. will say they are not
happy with a particular foster sibling, but they do not tell Peterson they are unhappy at
the foster home. T.S. never said anything to Peterson about Father. P.S. told Peterson
he missed Father, but also told her he is scared of him because he witnessed domestic
violence at home and said Father hit him.
{¶23} Peterson testified there are ongoing concerns for both children, including
attachment issues for both, and she recommends both continue in counseling and
attachment therapy. Peterson would be very concerned about a new placement for the
Licking County, Case No. 16-CA-11 10
children as the children have been in this foster home for two-and-a-half years and have
a bond with the foster family. Peterson testified the foster home is consistent and safe.
Further, another removal or transition could be very detrimental to their emotional well-
being. Peterson believes it is in the best interest of the children to remain with the foster
family, as they are connected, have developed a bond, and their needs are being met by
the foster family.
{¶24} On cross-examination, Peterson testified the children might be able to
develop a bond with a family member, but she does not think it is worth the risk because
the children are already really struggling emotionally and having issues with attachment.
She is concerned that each removal, even if placed with a family member, creates more
issues, more loss, and more damage. Peterson also has concerns about continuing the
case for six months with visitation by Naylor because the case has gone on so long in the
children’s lives that they will not achieve a sense of permanency and it would make it
harder for the children to settle and deal with their emotional issues. Peterson does not
believe the behavior of the children is a result of the foster parents; rather their behavior
is the result of the disappointment and loss of being back in foster care. The children had
hoped they were going home and lost that hope.
{¶25} Dorothy Moorehead, the foster mother of the children, testified when the
children first came to their home in 2012, T.S. had severe night terrors and wet the bed,
while P.S. had anger issues. After the children returned to their home in 2014, Dorothy
stated T.S. was screaming, bed-wetting, hitting, and biting. P.S. still has anger issues.
Dorothy testified the children’s behavior is improving. P.S. is doing well academically, but
does not have many friends. Dorothy is in constant communication with the school about
Licking County, Case No. 16-CA-11 11
the children. Dorothy is bonded with P.S. and T.S. and testified they do lots as a family.
She is interested in adopting P.S. and T.S. Dorothy testified there are currently eleven
children in their home. They have five adopted children and the remainder are foster
children. Dorothy testified she facilitates a relationship between P.S., T.S., and their two
older siblings.
{¶26} P.S.’s teacher testified P.S. is doing well academically and his happiness is
improving. Further, P.S. is very quiet, very reserved, and does not want to talk about his
family or his foster home. T.S.’s teacher testified she has seen growth in T.S.’s behavior
and he is doing well academically. T.S. used to run out of the classroom and hide. When
T.S. visits his mother, he usually has a difficult day. T.S. does not talk about his family or
foster family.
{¶27} Father’s sponsor at a twelve-step program testified he believes Father is
dedicated to transforming his life. A.S., the children’s mother, testified she had a violent
relationship with Father. Naylor testified that Father is stable now. Mike Selegue, a staff
clinician, sees Father. Selegue stated Father has made progress and would probably
benefit from parenting time with his children, but also admitted he has never met the
children. Selegue did not really know about the incident leading to Father’s incarceration.
{¶28} During the evidentiary hearing, the magistrate denied Naylor’s motion for
custody. The magistrate issued a written decision on December 16, 2015 after taking the
motion for permanent custody under consideration. The magistrate found the children
were initially removed from the home in September of 2012 and returned to their mother
in July of 2014 on extended visitation and then to her temporary custody on September
30, 2014. The children were initially removed from the home in 2012 because the home
Licking County, Case No. 16-CA-11 12
was filthy, dangerous, Father and the children’s mother were behind in rent, and because
Father ran over the children’s mother with his car. After the children were returned to
their mother on September 30, 2014, they were subsequently removed on October 21,
2014 when their mother became homeless and a new complaint was filed.
{¶29} The magistrate stated Father is an alcoholic with a history of domestic
violence as he ran over the children’s mom with a car. Father was convicted of felonious
assault and has not seen the children since September of 2012. The magistrate found
that while Father testified he had employment and was currently sober, Father had a long
history of involvement with the agency, had a history of alcoholism and domestic violence,
and has had no history of unsupervised sobriety. Further, Father lacks a relationship with
the children. Thus, the magistrate determined Father is not an appropriate parent
currently or within the foreseeable future.
{¶30} The magistrate found that though the guardian ad litem is concerned about
the foster home where the children are placed and would rather see the children placed
with relatives, the foster home is the only stability in the last three (3) years that the
children have known. Further, no relatives came forward in the case until the motion for
permanent custody was filed, despite the agency involvement with the family for ten
years. The magistrate found the stability in the known environment outweighs the gamble
on relatives with virtually no relationship with the children.
{¶31} The magistrate found the agency made reasonable efforts as they worked
with the family for many years and had multiple case plans. The magistrate determined
there was clear and convincing evidence the parents are incapable of meeting the
children’s needs now or in the foreseeable future; further, it is in the best interest of the
Licking County, Case No. 16-CA-11 13
children for permanent custody to be granted to LCDJFS. The magistrate thus concluded
as follows: the children cannot be placed with either parent within a reasonable period of
time; the need for permanent placement cannot be achieved without granting permanent
custody to the agency; and both parents failed continuously and repeatedly to remedy the
conditions which existed at the time of the removal. The magistrate also stated the
agency and guardian ad litem should review placement options in the children’s best
interest.
{¶32} Father filed objections to the magistrate’s decision and argued no
reasonable efforts were made by the agency with regards to him. The trial court issued
a judgment entry on February 5, 2016. The trial court denied Father’s objections,
approved and adopted the magistrate’s decision, terminated the parental rights of Father
and the children’s mother, and granted permanent custody of P.S. and T.S. to LCDJFS.
The trial court stated neither the agency nor the guardian ad litem believes Father is an
appropriate guardian for the children. The trial court also found Father failed to include
in his objections references to the transcript and thus the objections were legally
insufficient.
{¶33} Father appeals the February 5, 2016 judgment entry of the Licking County
Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶34} “I. THE TRIAL COURT ERRED WHEN IT FOUND BY CLEAR AND
CONVINCING EVIDENCE THAT THE AGENCY PROVIDED REASONABLE CASE
PLANNING AND DILIGENT EFFORTS.
Licking County, Case No. 16-CA-11 14
{¶35} “II. THE TRIAL COURT ERRED WHEN IT FOUND BY CLEAR AND
CONVINCING EVIDENCE THAT THE AGENCY MADE REASONABLE EFFORTS TO
ACHIEVE REUNIFICATION.
{¶36} “III. THE TRIAL COURT ERRED WHEN IT FOUND BY CLEAR AND
CONVINCING EVIDENCE THAT THE MOTION FOR PERMANENT CUSTODY WAS IN
THE BEST INTEREST OF THE CHILDREN.”
Permanent Custody
{¶37} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1).
{¶38} Clear and convincing evidence is that evidence “which will provide 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). “Where the degree of proof
required to sustain an issue must be clear and convincing, a reviewing court will examine
the record to determine whether the trier of facts had sufficient evidence before it to satisfy
the requisite degree of proof.” Id. at 477. If some competent, credible evidence going to
all the essential elements of the case supports the trial court’s judgment, an appellate
court must affirm the judgment and not substitute its judgment for that of the trial court.
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶39} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
Licking County, Case No. 16-CA-11 15
“crucial in a child custody case, where there may be much evidence in the parties’
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶40} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶41} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, 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; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶42} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial court
will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
Licking County, Case No. 16-CA-11 16
I. & II.
Reasonable Efforts & Reasonable Case Planning / Diligent Efforts
{¶43} Father argues the trial court erred in determining the children could not be
placed with either parent within a reasonable time. Specifically, Father contends the trial
court erred in finding LCDJFS provided reasonable case planning and diligent efforts and
made reasonable efforts to achieve reunification. We disagree.
{¶44} As to reasonable efforts, R.C. 2151.419(A)(1) requires a trial court to
determine whether a children services agency “made reasonable efforts to prevent the
removal of the child from the child’s home, to eliminate the continued removal of the child
from the child’s home, or to make it possible for the child to return safely home.” However,
this statute applies only at “adjudicatory, emergency, detention, and temporary-
disposition hearings, and dispositional hearings for abused, neglected, or dependent
children.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816. Thus, by its
plain terms, the statute does not apply to motions for permanent custody brought pursuant
to R.C. 2151.413, or to hearings held on such motions pursuant to R.C. 2151.414. Id.Therefore, the trial court was not required to make a specific finding that LCDJFS had
made reasonable efforts to reunify the family. Id.{¶45} Father argues that even though his appeal does not originate from one of
the types of hearings specifically referenced in R.C. 2151.419(A), LCDJFS must establish
reasonable efforts have been made since it was not established previously that such
reasonable efforts had been made. Father is correct that if the agency has not
established reasonable efforts were made prior to the hearing on the motion for
permanent custody, then it must demonstrate such efforts at that time. Id.Licking County, Case No. 16-CA-11 17
{¶46} However, in this case, the agency established that reasonable efforts were
made prior to the hearing on the motion for permanent custody. At the adjudicatory
hearing in December of 2014, the magistrate made a reasonable efforts finding and the
trial court approved and adopted the magistrate’s decision. At the dispositional hearing
in January of 2015, the magistrate again made a reasonable efforts finding and the trial
court approved and adopted the magistrate’s decision. At a semi-annual review hearing
in March of 2015, the trial court made a reasonable efforts finding. Father did not object
to the reasonable efforts findings by either the magistrate or the trial court when the
magistrate and trial court entered its adjudication order, disposition order, or judgment
entry on the semi-annual review. These findings were all made prior to the hearing on
the motion for permanent custody. Therefore, the showing of reasonable efforts was not
required to be proven by the state or found by the trial court during the permanent custody
hearing. In re J.J.F., 5th Dist. Stark No. 2009-CA-00133, 2009-Ohio-4736.
{¶47} While the agency did not have to show reasonable efforts at the permanent
custody hearing, to the extent that the trial court relies on R.C. 2151.414(E)(1) at a
permanent custody hearing, the court must examine the reasonable case planning and
diligent efforts by the agency to assist the parents when considering whether the child
cannot and should not be placed with the parent within a reasonable time. In re C.F., 113
Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816. The issue is not whether there was
anything more the agency could have done, but whether the agency’s case planning and
efforts were reasonable and diligent under the circumstances of the case. In re J.D., 3rd
Dist. Hancock Nos. 5-10-34, 2011-Ohio-1458.
Licking County, Case No. 16-CA-11 18
{¶48} Father specifically contends the agency failed to offer him a case plan. At
the dispositional hearing, the magistrate approved the case plan in the case and
incorporated it into the magistrate’s decision. The trial court adopted and approved the
magistrate’s decision. Father did not raise any of the objections with regard to the case
plan before the magistrate or trial court at the dispositional hearing or at a time when the
magistrate or trial court could have corrected any error. Therefore, Father forfeited the
opportunity to raise alleged case plan deficiencies on appeal. In the Matter of C.B.C., 4th
Dist. Lawrence No. 15CA18, 15CA19, 2016-Ohio-916; In re N.L., 9th Dist. Summit No.
27784, 2015-Ohio-4165; In re Willis, 5th Dist. Coshocton No. 02CA15, 2002-Ohio-6795.
{¶49} Further, this Court has recognized an implied exception when case planning
efforts would be futile. In re Chestnut Children, 5th Dist. Guernsey No. 05 CA 39, 2006-
Ohio-684; In re J.H., 5th Dist. Licking No. 14-CA-94, 2015-Ohio-667. The agency has
been involved with the family since 2005. Father was originally included in a case plan
in the 2012 case, but was removed after he was sentenced to three years in prison. As
of the date of the filing of the permanent custody motion, the children had been in the
temporary custody of the agency for over two years: from March 2013 until July 2014 and
from October 21, 2014 to the date of the motion on January 30, 2015.
{¶50} Father was incarcerated when the motion for permanent custody was filed
and was on transitional control, living in a halfway house, at the time of the permanent
custody hearing. Due to his incarceration since 2012, Father has not had any visits with
the children and had only limited contact through letters and gifts. Father has a history of
substance abuse issues and issues with chronic homelessness. Reunification is futile
until a parent is released from incarceration and obtains a stable home. In re N.A.P., 4th
Licking County, Case No. 16-CA-11 19
Dist. Washington No. 12CA30, 2013-Ohio-689. Here, Father was incarcerated when
LCDJFS obtained temporary custody and remained incarcerated at the time the motion
for permanent custody was filed. Though Father was in a halfway house at the time of
the hearing, he was still incarcerated and his release date was not until the end of August
of 2015, over seven months after the motion for permanent custody was filed. Inboden
testified she does not think the children can be reunited with Father in the near future
because he is living in a halfway house, has an extensive history with unemployment, has
a history of being transient, and a history of alcoholism. Further, Inboden stated Father
has no history of unsupervised sobriety and the children need a safe and stable
environment.
{¶51} As we stated in In re Chestnut Children, 5th Dist. Guernsey No. 05 CA 39,
2006-Ohio-684, “* * * [A] child should not have to endure the inevitable to its great
detriment and harm in order to give the * * * parent an opportunity to prove [his] suitability.
To anticipate the future, however, is at most, a difficult basis for a judicial determination.
The child’s present condition and environment is the subject for decision not the expected
or anticipated behavior of unsuitability or unfitness of the parent * * *.” We further stated,
“the law does not require the court to experiment with the child’s welfare to see if he will
suffer great detriment or harm.” Id. Accordingly, any failure by the part of LCDJFS to
make reasonable case planning and diligent efforts was harmless error because, under
the specific facts of this case, any attempt at reunification would have been futile. Id.{¶52} Beyond maintaining the children in its temporary custody pending Father’s
release from transitional control and waiting to see if he could secure housing, maintain
employment, and maintain his sobriety when not incarcerated, it is not clear what other
Licking County, Case No. 16-CA-11 20
efforts LCDJFS could have undertaken to remove the obstacle preventing reunification
between Father and the children. See In the Matter of C.B.C., 4th Dist. Lawrence No.
15CA18, 15CA19, 2016-Ohio-916. Inboden stated that once a motion for permanent
custody is filed, it is not typical for a caseworker to continue services with the parents.
Inboden testified services are still available, but no party, including Father, contacted her
indicating a need or willingness to have these services. Peterson strongly recommended
against continuing the case for six months since the children have been in agency custody
for so long and testified the children need permanency to settle and deal with their
emotional and attachment issues. As noted by the Fourth District, the permanent custody
statutes do not appear to contemplate holding a child in custodial limbo while a parent
completes a prison term. Id.; See R.C. 2151.413(D)(1) (requiring children’s services
agency to seek permanent custody when a child has been in its temporary custody for
more than twelve out of the past twenty-two months) and R.C. 2151.414(D)(2)(b) (stating
that the court shall award permanent custody if it finds, among other things, that a child
has been in an agency’s custody for two years or longer.)
{¶53} Father’s first and second assignments of error are overruled.
III.
{¶54} In his final assignment of error, Father argues the trial court erred in finding
an award of permanent custody was in P.S. and T.S.’s best interest. Father specifically
contends the trial court disregarded the report by the guardian ad litem and should have
considered the relative placement of Naylor.
{¶55} We have frequently noted, “[t]he discretion which the juvenile court enjoys
in determining whether an order of permanent custody is in the best interest of a child
Licking County, Case No. 16-CA-11 21
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.” In re Mauzy
Children, 5th Dist. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re
Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994).
{¶56} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,
but not limited to, the following: (1) the interaction and interrelationship of the child with
the child’s parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (2) 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; (3) the custodial history of the child and (4) the child’s need
for a legally secure placement and whether that type of placement can be achieved
without a grant of permanent custody; and (e) whether any of the factors in divisions (E)(7)
to (11) of this section apply in relation to the parents and child. No one element is given
greater weight or heightened significance. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-
1104, 862 N.E.2d 816.
{¶57} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. The willingness of a relative to care
for the child does not alter what a court considers in determining permanent custody. In
re Patterson, 134 Ohio App.3d 119, 730 N.E.2d 439 (9th Dist. 1999); In re Adoption of
Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991). Accordingly, a court is not
required to consider placing a child with a relative prior to granting permanent custody to
an agency. In re M.H., 5th Dist. Muskingum No. CT2015-0061, 2016-Ohio-1509.
Licking County, Case No. 16-CA-11 22
{¶58} The court must consider all of the elements in R.C. 2151.414(D) as well as
other relevant factors. There is not one element that is given greater weight than the
others pursuant to the statute. In re Schafer, 11 Ohio St.3d 498, 2006-Ohio-5513, 857
N.E.2d 532. In re Schafer made it clear that a trial court’s statutory duty, when
determining whether it is in the best interest of a child to grant permanent custody to an
agency, does not include finding by clear and convincing evidence that no suitable relative
was available for placement. Id. R.C. 2151.414 “requires the court to find the best option
for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a)
through (d). The statute does not make the availability of a placement that would not
require a termination of parental rights an all-controlling factor. The statute does not even
require the court to weigh that factor more heavily than other factors.” Id. at 111.
{¶59} The focus of the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d
309, 642 N.E.2d 424 (8th Dist. 1994).
{¶60} We find the trial court did not err in finding that granting permanent custody
to LCDJFS was in the best interest of P.S. and T.S. Inboden testified that while the
children have had periods of progression and regression, they have improved recently.
Academically the children are doing well. The foster mother stated the children’s behavior
is improving, she is bonded with them, and she and her husband are interested in
adopting the children.
{¶61} While the guardian ad litem was concerned with the foster family the
children are placed in due to the other children in the home, both Inboden and Peterson
Licking County, Case No. 16-CA-11 23
testified the children’s needs are being met by the foster parents and the children are
bonded with the foster parents. Inboden testified the foster family has facilitated visits
with the children’s older siblings.
{¶62} The guardian ad litem did not recommend placement of the children with
either their mother or Father, but did not support the motion for permanent custody
because she felt the children should be placed with a relative, possibly Naylor. However,
Inboden stated because there was a substantiated finding against Naylor, the kinship unit
would not be able to approve her for placement pursuant to agency policy. As previously
noted by this Court, “a relative’s past history is a relevant factor for a court to consider
when determining whether it is in a child’s best interest to grant custody to the relative.”
In re M.H., 5th Dist. Muskingum No. CT2015-0061, 2016-Ohio-1509.
{¶63} Inboden testified she would be apprehensive to place the children with
Naylor due to her history, because she has not seen the children for two years, and
because of their mental health and behavioral/emotional issues. Peterson stated she
would be concerned about a new placement for the children because they have been in
this foster home for two-and-a-half years and have a bond with the family. The home is
safe and consistent. Peterson testified another removal or transition could be very
detrimental to the children’s emotional well-being. Peterson testified that while the
children might be able to develop a bond with a family member, it is not worth the risk
because the children are already struggling emotionally and have issues with attachment.
Peterson stated each move, even with a family member, creates more issues, more loss,
and more damage. When asked about continuing the case for six months for the children
to visit Naylor, Peterson stated she does not recommend continuing the case since the
Licking County, Case No. 16-CA-11 24
children have been in agency custody so long. Further, Peterson testified the children
need permanency to settle and deal with their emotional and attachment issues.
{¶64} Inboden testified it is in the best interest of the children for the court to grant
LCDJFS’ motion for permanent custody. Peterson believes it is in the best interest of the
children to remain with the foster family. As noted by the trial court, no family members
came forward until the motion for permanent custody was filed, despite agency
involvement with the family since 2005. While Father wants to eventually get custody of
the children and believes that would be in their best interest, the children have the right
to “stable, secure, nurturing, and permanent homes in the near term.” In re Awkal, 95
Ohio App.3d 309, 642 N.E.2d 424 (8th Dist. 1994).
{¶65} Additionally, Father has a conviction for felonious assault and domestic
violence, admitted he had a domestically violent relationship with the children’s mother,
has a history of alcoholism, has a history of unemployment, and a history of
homelessness. The agency has been involved with the family since 2005. Further,
Father testified the children may have seen domestic violence between him and their
mother once or twice and P.S. told Peterson that Father hit him. Whether Father would
give the children stability of a permanent home upon his release from transitional control
incarceration is not certain. Although Father testified that upon his release from
transitional control he will lead a law-abiding life to care for the children, the trial court was
entitled to discredit Father’s testimony. Given his history, the trial court could have
reasonably concluded Father would be unlikely to provide the children with a permanent,
stable home. Courts have recognized that, “* * * [A] child should not have to endure the
inevitable to its great detriment and harm in order to give the * * * parent an opportunity
Licking County, Case No. 16-CA-11 25
to prove [his] suitability. * * * The law does not require the court to experiment with the
child’s welfare to see if he will suffer great detriment or harm.” In the Matter of Lilley, 4th
Dist. Lawrence No. 04CA22, 2004-Ohio-6156.
{¶66} We find the trial court properly considered and weighed the factors in R.C.
2151.414(D) and the trial court’s conclusion that the granting of permanent custody to
LCDJFS is in the best interest of P.S. and T.S. is supported by competent and credible
evidence. Father’s third assignment of error is overruled.
Licking County, Case No. 16-CA-11 26
{¶67} Based on the foregoing, we find the trial court did not abuse its discretion in
granting permanent custody of P.S. and T.S. to LCDJFS. Father’s assignments of error
are overruled and the February 5, 2016 judgment entry of the Licking County Common
Pleas Court, Juvenile Division, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur