In re A.F. , 2012 Ohio 1137 ( 2012 )

[Cite as In re A.F., 2012-Ohio-1137.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN THE MATTER OF:
A. F., CASE NO. 9-11-27
ADJUDGED ABUSED CHILD,
[TIFFANY FLOURNOY - OPINION
MOTHER/APPELANT].
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 2008 AB 0138
Judgment Affirmed
Date of Decision: March 19, 2012
APPEARANCES:
Raymond A. Grogan, Jr. for Appellant
John A. Minter for Appellee, MCCSB
Case No. 9-11-27
ROGERS, J.
{¶1} Mother-Appellant, Tiffany Flournoy (“Tiffany”), appeals the
judgment of the Court of Common Pleas of Marion County, Family Division,
granting permanent custody of her daughter, A.F., to Marion County Children
Services (“MCCS”).1 On appeal, Tiffany contends that the trial court erred in
finding that MCCS made reasonable efforts to reunite her and A.F.; that the trial
court’s judgment granting MCCS permanent custody of A.F. was not in A.F.’s
best interest and was against the manifest weight of the evidence; and, that the trial
court erred when it found that A.F. could not be returned to her in a reasonable
time. Based on the following, we affirm the judgment of the trial court.
{¶2} A.F. was born on October 24, 2008. On December 5, 2008, MCCS
filed a complaint alleging that A.F. was a neglected, abused, and dependent child
as defined by R.C. 2151.03, R.C. 2151.031, and R.C. 2151.04, respectively. The
complaint alleged that “[A.F.] * * * tested positive for cocaine at birth.”
Complaint, p. 3. The complaint further alleged that “[t]hroughout the pregnancy,
Tiffany consistently tested positive for marijuana and cocaine.” Id.{¶3} On December 10, 2008, the trial court, upon its own motion,
appointed Robert Cordrick (“Cordrick”), to serve as a guardian ad litem (“GAL”)
for A.F.
1
A.F.’s biological father, Persey Shaw, has neither filed a separate notice of appeal with this Court, nor
was he included in Tiffany’s notice of appeal.
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{¶4} On February 2, 2009, the matter proceeded to an adjudication hearing.
During the hearing, Tiffany stipulated that A.F. was an abused child. February 18,
2009 Judgment Entry. Based on Tiffany’s stipulation, the trial court dismissed all
other complaints without prejudice. Also on this day, the trial court approved and
adopted the case plan submitted by MCCS.
{¶5} In June 2010, MCCS filed a motion for permanent custody pursuant to
R.C. 2151.353 and R.C. 2151.414.
{¶6} The permanent custody hearing was divided into three separate
hearings. The first hearing occurred on November 3, 2010, the second occurred
on May 20, 2011, and the last hearing occurred on May 26, 2011.
{¶7} Carrie Rashleigh (“Rashleigh”), an intake investigator with MCCS,
testified that in December 2008 she was employed as a caseworker with MCCS.
Rashleigh testified that she was assigned to A.F.’s case at its inception and served
as the caseworker until April 2010. Randy Lee (“Lee”), a caseworker with
MCCS, testified that he was assigned to A.F.’s case in April 2010.
{¶8} Rashleigh testified that on January 13, 2009, A.F. was removed from
Tiffany’s custody and placed in foster care with Richard and Melissa Harrison
(collectively “the Harrisons”). A.F. has resided with the Harrison’s throughout the
case.
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{¶9} Rashleigh testified that she and Tiffany discussed possible alternative
placements for A.F. In particular, they discussed Tiffany’s brothers, Marcus and
William, Tiffany’s sister, Tara, and a family friend, Wanda. According to
Rashleigh, Tara was not interested in taking A.F. and Marcus was not an
appropriate placement due to his criminal history. As for William and Wanda,
Rashleigh testified that initially each was interested in being a placement for A.F.
However, Rashleigh explained that MCCS, through no fault of its own, lost
contact with William and Wanda before they completed the placement evaluation.
{¶10} Rashleigh testified that on February 2, 2009, she and Tiffany
developed a case plan designed to remedy the concerns that caused A.F.’s
removal.2 The case plan outlined four concerns and the means by which those
concerns were to be remedied. Three of the concerns focused on Tiffany.3 The
case plan also outlined a visitation plan. Rashleigh testified that in order to assist
Tiffany in achieving the case plan’s requirements MCCS maintained contact with
Tiffany, conducted in-person meetings with Tiffany, provided Tiffany with bus
tickets, and made necessary referrals.
{¶11} The first concern outlined in the case plan addressed Tiffany’s
inability to be self-sufficient and her lack of appropriate housing. In order to
2
An amended case plan was filed on August 24, 2010. Lee testified that except for the requirement that
Tiffany obtain a psychological evaluation the amended case plan did not modify the concerns, the means by
which those concerns were to be remedied, or the visitation plan outlined in the original case plan.
3
For purposes of this appeal, discussion of the second concern is unnecessary as it outlines steps the
Harrisons, not Tiffany, needed to take to ensure A.F.’s basic needs were met.
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remedy Tiffany’s inability to be self-sufficient, the case plan directed Tiffany to
complete the following, in relevant part:
1. Within 90 days of the court stamp on this case plan, Tiffany
will obtain and maintain legal and stable employment to a level
capable for self sufficiency (sic). February 2, 2009 Case Plan, p. 2.
{¶12} Rashleigh testified that she mailed Tiffany a local job list and that
Tiffany actively sought employment. Rashleigh testified that in July 2009 Tiffany
obtained employment with Marion Business Solutions, but left the position
because her income was insufficient. Rashleigh testified that Tiffany obtained
employment with Marion Business Solutions again in September 2009, but left the
position shortly thereafter. Rashleigh testified that as of April 2010, Tiffany had
not maintained employment. During the May 20, 2011 hearing, Tiffany testified
that she began working for Healthcare Depot in April 2010. Tiffany testified that
she remained employed with Healthcare Depot, but was not working any hours.
{¶13} In order to remedy the lack of appropriate housing, the case plan
directed Tiffany to complete the following, in relevant part:
5. Within 90 days of the court stamp on this plan, Tiffany will
obtain and maintain Agency approved housing * * *. February 2,
2009 Case Plan, p. 2.
{¶14} Initially, Tiffany lived at 216 Wallace (“Wallace residence”) in
Marion. Rashleigh testified that she conducted several home visits of the Wallace
residence and determined that the residence was not suitable for A.F. Tiffany
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subsequently moved to 399 ½ North Main Street (“North Main residence”) in
Marion. Rashleigh, however, testified that she was not able to conduct a home
visit of the North Main residence.
{¶15} Lee testified that Tiffany initially was unable to provide him with a
permanent address. Tiffany informed Lee that she applied to Fairview
Apartments. Lee testified that he sent a letter of recommendation to the manager
of Fairview Apartments on Tiffany’s behalf. Sometime after Lee sent the letter of
recommendation, Tiffany obtained housing at Fairview Apartments. Lee testified
that Tiffany’s residence at Fairview Apartments was appropriate.
{¶16} During the May 20, 2011 hearing, Tiffany testified that she moved
back to the North Main residence in March 2011. Tiffany explained that she
shares the residence with her boyfriend. Tiffany testified that her boyfriend had
been incarcerated for trafficking controlled substances, but insisted that “he has a
different life.” May 20, 2011 Hearing Tr., p. 321. Tiffany testified that Lee
attempted to conduct a home visit of the North Main residence, but she requested
that he not come because her boyfriend was recovering from an accident.
{¶17} The third concern outlined in the case plan addressed Tiffany’s
substance abuse. In order to remedy her substance abuse, the case plan directed
Tiffany to complete the following, in relevant part:
1. Tiffany will complete an AOD assessment * * *.
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2. Tiffany will follow any and all recommendation (sic)
stemming from the AOD assessment and complete alcohol and
drug treatment prior to reunification.
3. * * *
4. Tiffany will abstain from using illegal substances * * *.
5. Tiffany will submit to random drug and alcohol screens, as
deemed necessary by the caseworker. Failure to screen on the
date requested will be considered a “dirty” or “positive” test.
February 2, 2009 Case Plan, p. 4.
{¶18} Initially, Tiffany was scheduled to complete an alcohol and drug
assessment (“AOD assessment”) at the Marion Area Counseling Center
(“MACC”). Rashleigh testified that Tiffany missed the AOD assessment, as well
as several subsequent AOD assessments. In June 2009, Tiffany contacted
Rashleigh and inquired about inpatient treatment. Rashleigh testified that she
informed Tiffany that she was aware of two programs that offered inpatient
treatment, Stepping Stones in Portsmouth, Ohio, and Foundations in Marion,
Ohio. Rashleigh testified that Tiffany was interested in Foundations so she
referred Tiffany to Foundations. Rashleigh learned that Tiffany would have to
complete an AOD assessment to be admitted to Foundations. Rashleigh testified
that MACC would not conduct an AOD assessment of Tiffany due to her prior
missed appointments. Rashleigh testified that she considered referring Tiffany to
Journey Offender Services (“Journey”) to complete an AOD assessment. MACC,
however, informed Rashleigh that even if Journey referred Tiffany to Foundations,
Tiffany would still have to complete an AOD assessment with MACC. In light of
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this information, Rashleigh determined that referring Tiffany to Journey for an
AOD assessment was “pointless” because Tiffany was prohibited from completing
an AOD assessment at MACC, due to her prior missed appointments. November
3, 2010 Hearing Tr., p. 45.
{¶19} Though MACC prohibited Tiffany from completing an AOD
assessment, Rashleigh testified that she attempted to convince MACC to conduct
an AOD assessment of Tiffany. Rashleigh testified that she contacted Elaine Ring
(“Ring”), an employee with MACC, on several occasions. As a result of her
conversations with Ring, Rashleigh testified that MACC permitted Tiffany to
return for an AOD assessment.
{¶20} Rachel McPherson (“McPherson”), a mental health and substance
abuse counselor with MACC, testified that she conducted an AOD assessment of
Tiffany on October 30, 2009. The AOD assessment revealed that Tiffany used
alcohol, marijuana, and cocaine. Based on the results of the AOD assessment,
McPherson testified that she and Tiffany developed an individual service plan
(“ISP”). The ISP consisted of individual counseling, group counseling, Phase One
Group (“POG”), Pre-Intensive Outpatient Group (“pre-IOG”), and Intensive
Outpatient Group (“IOG”). McPherson testified that Tiffany completed POG and
began, but did not complete, Pre-IOG. As a result, McPherson testified that
Tiffany could not begin IOG. During the November 3, 2010 hearing, McPherson
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testified that her last contact with Tiffany occurred on April 2, 2010. On June 4,
2010, MACC closed Tiffany’s case due to her lack of attendance. Though
Tiffany’s case was closed, Lee testified that he sent a letter to Ring in an effort to
determine whether Tiffany could return to MACC to continue treatment. State’s
Exhibit D. In response to his letter, Lee testified that Ring informed him that
Tiffany could return to MACC for treatment.
{¶21} During the May 20, 2011 hearing, McPherson testified that her first
contact with Tiffany after the November 2010 hearing occurred in March 2011.
McPherson explained that Tiffany came to MACC for an AOD assessment to
reactivate her case. McPherson testified that in April 2011 Tiffany was evaluated
to determine whether she could participate in inpatient treatment. The evaluation
stated that Tiffany would be appropriate for Foundations. McPherson explained
that the evaluation did not specify whether inpatient or outpatient treatment was
more appropriate, as Foundations offers both inpatient and outpatient services.
McPherson continued that to her knowledge Tiffany was interested in outpatient
treatment, not inpatient treatment.
{¶22} Julie McGinnis (“McGinnis”), a specialized dockets coordinator with
the Family Dependency Treatment Court in Marion County, testified that
Tiffany’s attorney, Larry Heiser, contacted her to schedule an appointment for
Tiffany. The initial appointment was scheduled for March 17, 2010. McGinnis
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explained that during the initial appointment she would have informed Tiffany
about the Family Dependency Treatment Court program. McGinnis testified that
Tiffany did not attend the initial appointment. McGinnis testified that she
attempted to contact Tiffany on several occasions to reschedule the appointment,
but Tiffany did not return her calls. Then, in May 2010, McGinnis testified that
Tiffany visited her at the Family Dependency Treatment Court. After Tiffany’s
visit, McGinnis testified that she renewed her attempts to schedule Tiffany for an
appointment, but explained that she never again heard from Tiffany.
{¶23} Cynthia Wall (“Wall”), a probation officer with the Marion
Municipal Court, testified that she was Tiffany’s probation officer. Wall testified
that Tiffany was on five years’ probation. As of November 3, 2010, the terms of
Tiffany’s probation required her to complete, in relevant part, court approved drug
and alcohol counseling and prohibited her from consuming or possessing
controlled substances. Wall testified that on November 12, 2010, Tiffany tested
positive for cocaine and marijuana. As a result, Tiffany was sentenced to serve 73
days in jail. Wall testified that on April 4, 2011, Tiffany again tested positive for
cocaine. As a result, Tiffany was sentenced to serve 30 days in jail. Wall testified
that Tiffany was scheduled to begin treatment at Foundations on May 17, 2011.
When Tiffany arrived at Foundations she refused to submit to a drug screen.
Consequently, Foundations denied Tiffany admission. Wall visited Tiffany later
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that day, at which time Tiffany admitted that she recently used cocaine and
marijuana.
{¶24} Throughout the case, Tiffany was administered several random drug
screens. Rashleigh testified that between March 2009 and April 2010, she
attempted to administer twenty random drug screens to Tiffany. Tiffany, however,
only submitted to sixteen drug screens. Of those sixteen drug screens, Rashleigh
testified that Tiffany tested positive for controlled substances seven times. Lee
testified that between May 2010 and October 2010, he attempted to administer
eight random drug screens to Tiffany. Of those eight drug screens, Lee testified
that Tiffany tested positive for controlled substances six times.
{¶25} The fourth concern outlined in the case plan addressed Tiffany’s
need to monitor A.F.’s physical, cognitive, and social development. In order to
remedy this concern, the case plan directed Tiffany to complete the following, in
relevant part:
3. Tiffany will attend and complete parenting classes * * *.
4. If deemed necessary, Tiffany will obtain a psychological
evaluation by an Agency approved evaluator * * *, and follow
through with any and all recommendations made by the
psychological assessor.4 February 2, 2009 Case Plan, p. 5.
4
The amended case plan simply omitted the phrase “[i]f deemed necessary.” See August 24, 2010 Case
Plan, p. 5.
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{¶26} During the November 3, 2010 hearing, Rashleigh and Lee each
testified that Tiffany completed the parenting classes. During the same hearing,
however, Lee testified that Tiffany had not completed a psychological evaluation.
{¶27} Kimberly Stark (“Stark”), a clinical psychologist, testified that she
conducts psychological evaluations for MCCS. Stark explained that a
psychological evaluation consists of two parts, a clinical interview and
psychological testing. Stark testified that Lee referred Tiffany to her in July 2010.
Stark conducted a clinical interview with Tiffany in August 2010. Stark and
Tiffany scheduled a follow-up appointment to conduct the psychological testing,
but Tiffany did not attend the appointment. During the November 3, 2010
hearing, Stark testified that she attempted to reschedule several times, but Tiffany
did not return to complete the psychological testing. During the May 20, 2011
hearing, Stark testified that she has made repeated attempts to schedule Tiffany for
an appointment since the November 2010 hearing. Despite her efforts, Stark
testified that Tiffany has not returned to complete the psychological evaluation.
{¶28} The case plan also outlined a visitation plan. The visitation plan
provided that Tiffany have supervised visitation with A.F. once a week. Initially,
the visitation period was scheduled to occur between 9:30 a.m. and 11:30 a.m.
Lee testified that he noticed Tiffany was having difficulty arriving for visitation on
time. Lee testified that, as a result, he moved the visitation period back.
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{¶29} Between January 2009 and October 2010, there were 97 scheduled
visits with A.F. State’s Exhibit B. Tiffany, however, did not attend 39 of those
visits. Id. Though Rashleigh and Lee each testified that several of the missed
visits were outside of Tiffany’s control, they explained that a majority of the
missed visits were not accompanied by a reasonable explanation.
{¶30} During the May 20, 2011 hearing, Carol Buxton, a case aid
employed with MCCS, testified that between November 2010 and May 2011,
there were 28 scheduled visits with A.F. State’s Exhibit E. Tiffany, however, did
not attend 25 of those visits. Id.{¶31} During the November 3, 2010 hearing, Rashleigh and Lee each
testified that Tiffany did not satisfy many of the requirements outlined in the case
plan. Specifically, Tiffany did not maintain adequate employment, secure an
appropriate residence, complete substance abuse treatment, abstain from drugs and
alcohol, or complete a psychological evaluation. Rashleigh testified that A.F.
bonded with Tiffany and the Harrisons. Rashleigh explained that A.F. appeared
comfortable with Tiffany and was excited to see Tiffany. Rashleigh further
explained that the Harrisons were attentive to A.F.’s needs and A.F. expressed
affection towards them. Lee also testified that A.F. bonded with Tiffany and the
Harrisons. Lee explained that A.F. is doing “fantastic” with the Harrisons, that
their relationship is “great,” and that she would call the Harrisons “mommy and
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daddy.” November 3, 2010 Hearing Tr., p. 169. Rashleigh and Lee testified that
granting MCCS permanent custody of A.F. is in her best interest. Lee testified
that if MCCS were granted permanent custody of A.F., her current placement with
the Harrisons is a possible long-term placement, because the Harrisons are a
“foster-to-adopt home.” Id. at p. 170.
{¶32} Cordrick testified that he served as A.F.’s GAL since the inception of
the case. Cordrick testified that A.F. appeared to be bonded to Tiffany and the
Harrisons. Though Cordrick personally observed A.F. and the Harrisons together,
he admitted that he learned of A.F.’s bond with Tiffany via conversations with the
Harrisons. Cordrick continued that MCCS made reasonable efforts to reunite
Tiffany and A.F. Though MCCS made reasonable efforts, Cordrick testified that
he did not believe MACC adequately explored the option of inpatient treatment
with Tiffany. Cordrick also testified that several of the visits Tiffany missed were
caused by transportation issues outside of Tiffany’s control. Despite this
testimony, Cordrick recommended that A.F. be placed in MCCS’s permanent
custody. Cordrick explained that his recommendation primarily stemmed from
Tiffany’s substance abuse and missed visits. Cordrick testified that Tiffany was
given “every opportunity” to take part in some treatment program. May 26, 2011
Hearing Tr., p. 358. Additionally, Cordrick testified that Tiffany did not have a
reasonable explanation for many of the visits she did not attend.
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{¶33} In June 2011, the trial court filed its judgment entry granting MCCS
permanent custody of A.F. In doing so, the trial court found that MCCS made
reasonable efforts to reunite A.F. and Tiffany, pursuant to R.C. 2151.419; that the
record contained clear and convincing evidence that A.F. could not be placed with
Tiffany within a reasonable time nor should A.F. be placed with Tiffany, pursuant
to R.C. 2151.414(B)(1)(a); and, that the record contained clear and convincing
evidence that placing A.F. in MCCS’s permanent custody is in her best interest,
pursuant to R.C. 2151.414(D)(1).
{¶34} It is from this judgment Tiffany appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN FINDING WITH CLEAR
AND CONVINCING EVIDENCE THAT MARION COUNTY
CHILDREN SERVICES MADE REASONABLE EFFORTS TO
ASSIST MOTHER TO REMEDY THE PROBLEM THAT
CAUSED THE CHILD TO BE REMOVED.
Assignment of Error No. II
THE TRIAL COURT ERRED IN FINDING THAT IT WAS IN
THE CHILD’S BEST INTEREST TO GRANT THE MOTION
FILED BY MARION COUNTY CHILDREN SERVICES AND
GRANTED MARION COUNTY CHILDREN SERVICES
PERMANENT CUSTODY OF THE CHILD AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
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Assignment of Error No. III
THE TRIAL COURT ERRED WHEN IT FOUND THAT THE
CHILDREN (sic) COULD NOT BE RETURNED TO MOTHER
IN A REASONABLE TIME PURSUANT TO OHIO REVISED
CODE SECTION 2151.414(E).
{¶35} Due to the nature of Tiffany’s assignments of error, we elect to
address her second and third assignments of error together.
Assignment of Error No. I
{¶36} In Tiffany’s first assignment of error, she contends that the trial court
erred in finding that MCCS made reasonable efforts to reunite her and A.F.
Specifically, Tiffany contends that MCCS did not make reasonable efforts to assist
her in gaining admission to an inpatient treatment program; that McPherson did
not consider the possibility of inpatient treatment; that MCCS’s expectations of
her were unrealistic; and, that MCCS did not facilitate visitation between her and
A.F. We disagree.
Law
{¶37} “R.C. 2151.419 imposes a duty on the part of children services
agencies to make reasonable efforts to reunite parents with their children where
the agency has removed the children from the home.” In re Sorg, 3d Dist. No. 5-
02-03, 2002-Ohio-2725, ¶ 13, citing In re Brown, 98 Ohio App.3d 337, 344 (3d
Dist. 1994). “The agency bears the burden of showing that it made such
reasonable efforts.” In re Sorg at ¶ 13, citing R.C. 2151.419(A)(1).
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{¶38} “Case plans are the tool that child protective service agencies use to
facilitate the reunification of families who * * * have been temporarily separated.”
In re Evans, 3d Dist. No. 1-01-75 (Oct. 30, 2001). To that end, case plans
establish individualized concerns and goals, along with steps that the parties and
the agency can take to achieve reunification. Id., citing R.C. 2151.412. Agencies
have an affirmative duty to diligently pursue efforts to achieve the goals in the
case plan. Id. “Nevertheless, the issue is not whether there was anything more
that [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
Leveck, 3d Dist. Nos. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶ 10.
Analysis
{¶39} First, Tiffany contends that MCCS did not make reasonable efforts to
assist her in gaining admission to an inpatient treatment program. Tiffany focuses
on Rashleigh’s statement that it was “pointless” to refer her to Journey for an
AOD assessment. Tiffany maintains that Rashleigh’s statement demonstrates that
MCCS did not make reasonable efforts to reunite her with A.F.
{¶40} Rashleigh’s testimony that it would have been “pointless” to refer
Tiffany to Journey for an AOD assessment does not demonstrate a lack of
reasonable effort. First, referral to Journey was rendered “pointless” as a result of
Tiffany’s actions and/or inaction. To be accepted into Foundation’s inpatient
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treatment program, Tiffany needed to complete an AOD assessment with MACC.
MACC, however, prohibited Tiffany from completing an AOD assessment as a
result of her prior missed appointments. Consequently, referral to Journey was
“pointless” because of Tiffany’s prior missed appointments. Second, despite
Rashleigh’s testimony that referral to Journey would have been “pointless,” the
record reveals that MCCS made efforts to convince MACC to conduct an AOD
assessment of Tiffany. As a result of the MCCS’s efforts, MACC agreed to
conduct an AOD assessment of Tiffany. In light of the foregoing, we find
Tiffany’s first contention is without merit.
{¶41} Next, Tiffany contends that McPherson did not consider the
possibility of inpatient treatment. Tiffany contends that despite the
recommendation that she receive inpatient treatment, McPherson continued to
offer her outpatient treatment. As a result, Tiffany contends that MCCS’s efforts
concerning her treatment were unreasonable.
{¶42} Though Tiffany contends that McPherson’s decision to continue with
outpatient treatment is indicative of MCCS’s unreasonable efforts, Tiffany
overlooks the fact that McPherson is not an agent of MCCS, but an employee of
MACC. Consequently, this contention does not demonstrate that MCCS’s efforts
were unreasonable. See In re Jo.S., 3d Dist. Nos. 5-11-16, 5-11-17, 2011-Ohio-
6017, ¶ 33; In re Van Atta, 3d Dist. No. 5-05-03, 2005-Ohio-4182, ¶ 12.
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Furthermore, the record reveals that there was no recommendation for inpatient
treatment. The recommendation Tiffany alludes to stems from an evaluation that
occurred in April 2011. The evaluation noted that Tiffany would be appropriate
for Foundations, which offers both inpatient and outpatient treatment. There was
no testimony or evidence that the evaluation recommended Tiffany receive
inpatient treatment. In fact, McPherson testified that Tiffany preferred outpatient
treatment. Accordingly, we find Tiffany’s second contention is without merit.
{¶43} Next, Tiffany contends that MCCS’s expectations of her were
unrealistic. Tiffany contends that she was not given a reasonable opportunity to
complete the requirements in the amended case plan. In particular, Tiffany
contends that she was afforded approximately sixty days (i.e. from the day the
amended case plan was filed to the first day of the permanent custody hearing) to
complete requirements which were to be completed within ninety days.
{¶44} Though the amended case plan was filed approximately sixty days
prior to the November 3, 2010 permanent custody hearing, Tiffany was given a
reasonable opportunity to satisfy the amended case plan’s requirements. The
amended case plan was identical to the original case plan in every way except for
a slight alteration to the requirement that Tiffany obtain a psychological
evaluation. Due to the similarity between the original and amended case plans, we
look to the filing date of the original case plan in determining whether MCCS gave
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Tiffany a reasonable opportunity to complete the case plan’s requirements. The
original case plan was filed on February 2, 2009. Accordingly, Tiffany had one
year and nine months to complete the requirements. This period of time was more
than reasonable to complete the case plan’s requirements. See In re Nice, 141
Ohio App.3d 445, 456-57 (7th Dist. 2001). Accordingly, we find Tiffany’s third
contention is without merit.
{¶45} Last, Tiffany contends that MCCS did not make reasonable efforts to
facilitate visitation between her and A.F. In particular, Tiffany contends that
MCCS did nothing to alleviate issues with transportation to the visitation site.
{¶46} Review of the record reveals that MCCS made reasonable efforts to
facilitate visitation. Rashleigh testified that MCCS provided Tiffany with bus
tickets. Lee testified that when he noticed Tiffany having difficulty arriving for
visitation on time, he moved the visitation period back. Despite these efforts,
Tiffany still did not attend numerous scheduled visits. While Rashleigh and Lee
testified that several of the missed visits were outside of Tiffany’s control, they
explained that a majority of the missed visits were not accompanied by a
reasonable explanation. Given the foregoing, we find Tiffany’s final contention is
without merit.
{¶47} Aside from Tiffany’s contentions, review of the record reveals that
MCCS made reasonable and diligent efforts to reunite Tiffany and A.F. In
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addition to the efforts discussed above, the record reveals that MCCS maintained
contact with Tiffany, conducted in person meetings with Tiffany, and made
referrals. In addition to these services, there is evidence that MCCS tailored its
efforts to assist Tiffany in meeting specific requirements, i.e. Rashleigh sent
Tiffany a local job list, and Lee sent a letter of recommendation to Fairview
Apartments on Tiffany’s behalf.
{¶48} In light of the foregoing, we find that MCCS made reasonable and
diligent efforts to reunite Tiffany and A.F. Accordingly, we overrule Tiffany’s
first assignment of error.
Assignments of Error Nos. II & III
{¶49} In Tiffany’s second and third assignments of error, she contends that
the trial court’s decision to grant MCCS permanent custody of A.F. was not in
A.F.’s best interest, and the trial court erred in finding that A.F. could not be
returned to her in a reasonable time. We disagree.
Standard of Review
{¶50} “It is well recognized that the right to raise a child is an ‘essential’
and ‘basic’ civil right.” In re Hayes, 79 Ohio St.3d 46, 48 (1997), citing In re
Murray, 52 Ohio St.3d 155, 157 (1990). Parents have a fundamental liberty
interest in the care, custody, and upbringing of their children. In re Murray;
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). However, a
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natural parent’s rights are not absolute. In re Thomas, 3d Dist. No. 5-03-08, 2003-
Ohio-5885, ¶ 7. “It is plain that the natural rights of a parent are not absolute, but
are always subject to the ultimate welfare of the child, which is the polestar or
controlling principle to be observed.” In re Cunningham, 59 Ohio St.2d 100, 106
(1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974).
{¶51} Permanent custody determinations made under R.C. 2151.414 must
be supported by clear and convincing evidence. In re Baby Girl Doe, 149 Ohio
App.3d 717, 2002-Ohio-4470, ¶ 89 (6th Dist.), citing In re Hiatt, 86 Ohio App.3d
716, 725 (4th Dist. 1993). “Clear and convincing evidence is the measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the allegations sought to be established. It is intermediate, being
more than a mere preponderance, but not to the extent of such certainty as required
beyond a reasonable doubt as in criminal cases. It does not mean clear and
unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986).
{¶52} When “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 fact had sufficient evidence before it to satisfy the requisite degree of
proof.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954), citing Ford v. Osborne,
45 Ohio St. 1 (1887). Thus, we are required to determine whether the trial court’s
determination was supported by sufficient credible evidence to satisfy the requisite
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degree of proof, In re McCann, 12th Dist. No. CA2003-02-017, 2004-Ohio-283, ¶
12, citing In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶ 16, and, absent
an abuse of discretion, the trial court’s decision must be upheld. In re Robison, 3d
Dist. No. 5-07-41, 2008-Ohio-516, ¶ 8, citing Masters v. Masters, 69 Ohio St.3d
83, 85 (1994). A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18,
citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of
discretion standard, a reviewing court may not simply substitute its judgment for
that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Law
{¶53} “Once a child has been adjudicated dependent, neglected, or abused
and temporary custody has been granted to a children services agency, the agency
may file a motion for permanent custody * * *.” In re Esparza, 3d Dist. Nos. 9-
06-25, 9-06-27, 2007-Ohio-113, ¶ 25. In determining whether to grant the agency
permanent custody, the trial court must conduct a two-pronged analysis. In re
D.M., 3d Dist. Nos. 5-09-12, 5-09-13, 5-09-14, 2009-Ohio-4112, ¶ 31. The trial
court must determine, by clear and convincing evidence, whether any provisions
enumerated in R.C. 2151.414(B)(1) are present. In re Goodwin, 3d Dist. No. 17-
08-12, 2008-Ohio-5399, ¶ 21. R.C. 2151.414(B)(1) states, in relevant part:
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(B)(1) * * * the court may grant permanent custody of a child to
a movant if the court determines * * * by clear and convincing
evidence, * * * that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in
the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, or has not
been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised
Code, the child was previously in the temporary custody of an
equivalent agency in another state, and the child cannot be
placed with either of the child’s parents within a reasonable time
or should not be placed with the child’s parents.
***
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-two-
month period, or the child has been in the temporary custody of
one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in
the temporary custody of an equivalent agency in another state.
(Emphasis added.)
{¶54} In determining whether R.C. 2151.414(B)(1)(a) applies, the trial
court must consider the factors enumerated in R.C. 2151.414(E). In re Goodwin at
¶ 23. If one or more of the factors enumerated in R.C. 2151.414(E) is found to be
present by clear and convincing evidence, the trial court shall find that the child
cannot be placed with the parents within a reasonable period of time or should not
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be placed with the parents. Id.; see also In re D.M. at ¶ 33. The factors
enumerated in R.C. 2151.414(E) are, in relevant part:
(1) Following the placement of the child outside the child’s
home and notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parents to remedy the
problems that initially caused the child to be placed outside the
home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the
parents have substantially remedied those conditions, the court
shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and
material resources that were made available to the parents for
the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the
child;
***
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the
child.
{¶55} If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies, the trial court must determine, by clear and convincing
evidence, whether granting the agency permanent custody of the child is in the
child’s best interest. In re D.M. at ¶ 33; In re K.H., 3d Dist. No. 5-10-06, 2010-
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Ohio-3801, ¶ 30. In making this determination, R.C. 2151.414(D)(1) directs the
trial court to consider the following non-exclusive factors:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
period, or the child has been in the temporary custody of one or
more public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-two-
month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;
(d) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
Analysis
{¶56} Initially, we note that while the trial court applied R.C.
2151.414(B)(1)(a) in determining the first prong, it could have also applied R.C.
2151.414(B)(1)(d), as neither party disputed the fact that A.F. has been in MCCS’s
temporary custody for twelve or more months of a consecutive twenty-two-month
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period. This fact alone would have satisfied the first prong. Since, however, the
trial court applied R.C. 2151.414(B)(1)(a) in determining the first prong of the
custody analysis, we will address the merits of Tiffany’s third assignment of error,
challenging the trial court’s finding that A.F. cannot be placed with her in a
reasonable period of time and should not be placed with her.
{¶57} Citing R.C. 2151.414(B)(1)(a), the trial court determined that the
State established the existence of several factors enumerated in R.C. 2151.414(E)
by clear and convincing evidence. In particular, the trial court found that MCCS
presented evidence establishing the existence of R.C. 2151.414(E)(1), (4), and
(13). Based on the following, we find that the trial court did not abuse its
discretion, as its finding was supported by clear and convincing evidence.
{¶58} During the November 3, 2010 hearing, Rashleigh testified that as of
April 2010, Tiffany did not complete many of the case plan’s requirements.
Specifically, Rashleigh testified that Tiffany did not maintain employment
sufficient to support her and A.F., obtain suitable housing, complete treatment for
her substance abuse, or abstain from drugs. During the same hearing, Lee testified
that since April 2010 Tiffany obtained employment with Healthcare Depot and
obtained suitable housing at Fairview Apartments. Lee, however, also testified
that Tiffany did not complete a psychological evaluation, complete treatment for
her substance abuse, or abstain from drugs.
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{¶59} During the May 20, 2011 hearing, testimony revealed that Tiffany
still did not complete substance abuse treatment or a psychological evaluation.
Testimony also revealed that Tiffany was not working any hours at Healthcare
Depot and recently moved out of Fairview Apartments. Tiffany testified that Lee
attempted to visit her current residence, but she discouraged such visits because
her live-in boyfriend, who had a history of drug trafficking, was recovering from
an accident.
{¶60} Furthermore, the record contains evidence that Tiffany did not attend
numerous visits with A.F. There were a total of 125 scheduled visits between
Tiffany and A.F. Of the 125 scheduled visits, Tiffany did not attend 64 of those
visits. While several of the visits Tiffany missed were outside of her control, a
majority of the visits Tiffany missed were not accompanied by a reasonable
explanation.
{¶61} Last, the record reveals that Tiffany was incarcerated on two separate
occasions during the pendency of the case.
{¶62} Based on the evidence presented, we find that there was clear and
convincing evidence that A.F. could not be placed with Tiffany in a reasonable
time and should not be placed with Tiffany.
{¶63} In considering the child’s best interests, the trial court found that
granting MCCS permanent custody of A.F. was in her best interest. Based on the
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following, we find that the trial court did not abuse its discretion, as its finding
was supported by clear and convincing evidence.
{¶64} Several months after A.F.’s birth, in January 2009, A.F. was
removed from Tiffany’s custody and placed in foster care with the Harrisons. A.F.
has remained in the Harrisons’ care throughout the pendency of the case. Since
A.F.’s removal, Tiffany’s interaction with A.F. has been limited to supervised
visitation, which was scheduled to occur once a week. Throughout the case,
Tiffany did not attend numerous visits without a reasonable explanation. Despite
Tiffany’s spotty visitation history, Rashleigh and Lee each testified that A.F.
bonded with Tiffany. Rashleigh explained that A.F. appeared comfortable with
Tiffany and was excited to see her.
{¶65} As for A.F.’s relationship with the Harrisons, Rashleigh and Lee
each testified that A.F. bonded with the Harrisons. Rashleigh explained that the
Harrisons are attentive to A.F.’s needs, and A.F. expressed affection towards the
Harrisons. Lee explained that A.F. is doing “fantastic” with the Harrison’s, that
their relationship is “great,” and that A.F. calls the Harrisons “mommy and
daddy.” November 3, 2010 Hearing Tr., p. 169. Similarly, Cordrick testified that,
based on personal observations, A.F. has a strong bond with the Harrisons.
{¶66} Next, the record demonstrates that A.F. is too young to express her
own wishes concerning permanent custody. Consequently, Cordrick expressed
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A.F.’s wishes. Cordrick was reluctant in making his recommendation. Cordrick’s
reluctance was primarily based on his belief that MACC did not adequately
explore inpatient treatment with Tiffany, and his observation that several of the
visits Tiffany missed were outside of her control. Despite Cordrick’s reluctance,
he recommended that MCCS be granted permanent custody of A.F. Cordrick’s
recommendation was grounded in belief that MCCS made reasonable efforts to
reunite Tiffany and A.F.; that Tiffany was given every opportunity to take part in a
treatment program; and, that Tiffany missed numerous scheduled visits with A.F.
without reasonable explanation.
{¶67} Next, as discussed above, the record demonstrates that A.F. has been
in MCCS’s temporary custody for twelve or more months of a consecutive twenty-
two-month period.
{¶68} Last, the record demonstrates that due to A.F.’s young age she is in
need of a secure placement. Based on the record, Tiffany cannot serve as a secure
placement. To her credit, Tiffany completed parenting classes and demonstrated
some initiative in seeking employment, appropriate housing, and beginning
treatment. After more than two years, however, Tiffany failed to complete many
of the case plan’s key requirements. Though Tiffany is currently employed, she
testified that she is not working any hours. Consequently, her employment is not
sufficient to support her and A.F. At one point, Tiffany resided at Fairview
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Apartments, which Lee deemed appropriate. However, Tiffany has since moved
to another residence and has not allowed Lee to conduct a home visit to determine
whether the residence is appropriate. Tiffany began, but did not complete, a
psychological evaluation. Similarly, Tiffany began, but did not complete, the
treatment program at MACC, nor did she take part in the Family Dependency
Treatment Court program. Instead, Tiffany abused drugs throughout the case,
which resulted in her repeated incarceration. Taken together, Tiffany’s failure to
remedy the concerns outlined in the case plan demonstrate that she is not a secure
placement for A.F.
{¶69} MCCS also determined that none of the alternative placements
provided by Tiffany were secure placements. Marcus had an extensive criminal
history. Tara was not interested in taking A.F. William and Wanda began the
process of being considered as a placement for A.F., but MCCS, through no fault
of its own, lost contact with them before they completed the placement evaluation.
{¶70} Given the foregoing, we find that there was clear and convincing
evidence supporting the trial court’s finding that granting MCCS permanent
custody of A.F. is in her best interest.
{¶71} Accordingly, we find that the trial court did not abuse its discretion
by granting MCCS permanent custody of A.F., as there was clear and convincing
evidence to support its decision.
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{¶72} Therefore, we overrule Tiffany’s second and third assignments of
error.
{¶73} Having found no error prejudicial to Appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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