In re J.A. , 2017 Ohio 997 ( 2017 )

[Cite as In re J.A., 2017-Ohio-997.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
IN RE:
J.A. CASE NO. 4-16-18
DEPENDENT CHILD.
OPINION
[DONNA MARSH - APPELLANT]
IN RE:
R.A. CASE NO. 4-16-19
DEPENDENT CHILD.
OPINION
[DONNA MARSH - APPELLANT]
IN RE:
A.M. CASE NO. 4-16-20
DEPENDENT CHILD.
OPINION
[DONNA MARSH - APPELLANT]
Appeals from Defiance County Common Pleas Court
Juvenile Division
Trial Court Nos. 30312-2, 30313-2 and 32048
Judgments Affirmed
Date of Decision: March 20, 2017
Case Nos. 4-16-18, 19, 20
APPEARANCES:
Timothy C. Holtsberry for Appellant
Joy S. O’Donnell for Appellee
SHAW, J.
{¶1} Mother-appellant, Donna Marsh (“Marsh”), brings this appeal from the
September 26, 2016, judgment of the Defiance County Common Pleas Court,
Juvenile Division, terminating Marsh’s parental rights related to her three children
and awarding permanent custody of the children to Defiance County Job and Family
Services (“the Agency”). On appeal, Marsh argues that the trial court erred by
finding that the Agency engaged in reasonable efforts to support reunification, that
the trial court erred in finding that the children could not be returned to Marsh within
a reasonable time, and that the trial court did not abide by the timelines established
in R.C. 2151.28 in adjudicating the matter and in making its disposition.
Events Prior to the Current Case Filing
{¶2} Marsh had three children: J.A., born in January of 2003, R.A., born in
August of 2006, and A.M., born in July of 2014. Two of the children, J.A. and R.A.,
shared the same father, Johnny A. The putative father of A.M. was Roy H., but it
was never determined that Roy H. was the actual father of A.M.
-2-
Case Nos. 4-16-18, 19, 20
{¶3} As a result of a previous case with the Agency, J.A. and R.A. were in
the temporary custody of the Agency from 2010 until 2013.1 According to the
record, the prior case began when a drug search was conducted of Marsh’s home
and cocaine, or a crack pipe, was discovered in the children’s cereal box.2 (J.A.
Doc. No. 92).3 Needles and other drug paraphernalia were also discovered in
Marsh’s residence.
{¶4} Marsh was convicted of Possession of Cocaine and Aggravated
Possession of Drugs in 2011. She was placed on community control with a 22-
month prison sentence reserved. Shortly thereafter, Marsh violated her community
control and was incarcerated. In January of 2012 Marsh was granted judicial release
and placed back on community control. The following year, in 2013, the Agency’s
prior case related to J.A. and R.A. was closed with the reunification of the children
with Marsh.
The Case Sub Judice
{¶5} On January 8, 2015, the current action began when a complaint was
filed by the Agency alleging that Marsh’s three children were neglected and
dependent children. It was alleged that Marsh, who was on community control for
1
A.M. had not been born yet and thus was not part of the prior case.
2
Marsh testified at the final hearing that it was actually a crack pipe that was found in a Rice Krispies box
and she testified that it was not a box that the children used. The GAL’s report indicates that cocaine, rather
than a crack pipe, was found in the “children’s cereal box.” (J.A. Doc. No. 92).
3
Essentially the same documents were filed in each case file corresponding to J.A., R.A., and A.M. The
document numbers in J.A.’s case file will be used as representative examples.
-3-
Case Nos. 4-16-18, 19, 20
her felony drug convictions, tested positive for drugs, including cocaine. It was also
alleged that Marsh was unable to keep and provide a stable home. Marsh initially
asserted that the allegations were not true.
{¶6} Both Johnny A. and Roy H. were put on notice of the proceedings in
this case, and counsel was appointed for Johnny A. to represent his interests;
however, neither Johnny A. nor Roy H. participated in any of the court proceedings
except through appointed counsel. Neither father saw their children at all during
the pendency of this case, though Johnny A. had some contact with J.A. via phone
for a time. That contact between J.A. and his father abruptly ceased.4
{¶7} At an initial hearing on the complaint on January 29, 2015, the children
were placed in the temporary care of Anna Castillo, who was residing with the
mother of Roy H. at the time, with the Agency retaining protective supervision.5
When that placement became untenable, the Agency acquired temporary custody of
the children on February 12, 2015.
{¶8} A case plan was filed in the record indicating, inter alia, that Donna
should complete an inpatient drug treatment program at Serenity Haven, that she
should maintain employment, and that she should keep a stable home.
4
Testimony indicated that both Johnny A. and Roy H. had active warrants. Roy H. never even appeared
when a paternity test was scheduled to determine if he was actually A.M.’s father. Neither father appealed
permanent custody being awarded to the Agency.
5
It is unclear in the record what familial relationship Anna Castillo had to the children.
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Case Nos. 4-16-18, 19, 20
{¶9} On April 30, 2015, a hearing was held wherein Marsh withdrew her
pleas of “not true” to the dependency and neglect allegations and she entered a plea
of “true” to the allegations of dependency related to all three children. In exchange,
the Agency dismissed the neglect allegation. Adjudication was not finalized and
the matter was continued in order to provide more time to get into contact with the
fathers.
{¶10} Before the adjudication hearing resumed, Marsh’s community control
was revoked for her failure to complete drug treatment at Serenity Haven as ordered
and she was incarcerated.
{¶11} On June 30, 2015, the remainder of the adjudication hearing was held.
Marsh did not appear due to being incarcerated. Based on Marsh’s prior admission
and the evidence presented at the hearing, the trial court found by clear and
convincing evidence that the children were Dependent Children as defined in R.C.
2151.04(C).6
{¶12} On August 4, 2015, a dispositional hearing was held. At the hearing,
the Agency requested that the children remain in the Agency’s temporary custody
for one year, particularly given Marsh’s incarceration. Marsh was not present for
the hearing due to her incarceration but her attorney did indicate that Marsh
6
The only transcript that was provided on appeal was the transcript of the final permanent custody hearing.
Thus we rely on the trial court’s entries as to what occurred at the earlier hearings.
-5-
Case Nos. 4-16-18, 19, 20
consented to the children remaining in the temporary custody of the Agency for a
year. The court ordered the agreed disposition.
{¶13} On December 7, 2015, the Agency moved to extend temporary
custody for six months due to Marsh’s ongoing incarceration. A hearing was held
on the matter and the parties agreed to extend temporary custody by six months.
{¶14} On April 25, 2016, the Agency filed a motion to modify temporary
custody into permanent custody. The Agency argued that the children had been in
its temporary custody for twelve of the last twenty-two months and that the children
could not and should not be placed with their parents within a reasonable time.
Further, the Agency argued that Marsh had not completed any of her case plan
objectives and that her incarceration prevented her from making meaningful
progress on the objectives within a reasonable time.
{¶15} On June 29, 2016, Marsh filed a motion seeking visitation with her
children. She indicated that she had been released from prison and placed in a
halfway house. According to the record, visitation was facilitated with Marsh.
{¶16} On July 21, 2016, Marsh filed a motion to extend the temporary
custody of the Agency for six months rather than granting the Agency’s motion for
permanent custody. The Agency contested this motion.
{¶17} On August 4, 2016, a hearing was held on Marsh’s pending motions.
At the hearing, the parties agreed that the Agency’s motion for permanent custody
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Case Nos. 4-16-18, 19, 20
and Marsh’s motion for a six-month extension of temporary custody would be
joined and heard on August 30, 2016.
{¶18} On August 22, 2016, the GAL filed her report and recommendation in
the matter. In her repot, the GAL gave a detailed accounting of her involvement in
this case. The GAL also gave a detailed accounting of Marsh’s history with the
Agency and her criminal history. In addition to the criminal history already
referenced, the GAL noted that the children had witnessed domestic violence and
that Marsh had admitted to taking her anger out on the children.
{¶19} The GAL’s report also indicated that Marsh would have to rely on
third parties in order to be able to adequately care for the children. Ultimately, the
GAL’s report stated that the children were in need of permanent placement and that
she believed granting permanent custody to the Agency was in the children’s best
interests, particularly given how well the children were doing in their placements.
{¶20} On August 30-31, 2016, a hearing was held on the Agency’s
permanent custody motion and Marsh’s motion to extend the Agency’s temporary
custody.7 At the hearing, the Agency presented the testimony of six witnesses.
Testimony indicated that all three children were adjusting well in their placements.
Each child had a current caregiver provide testimony at the hearing. Testimony
7
A portion of the first witness’s testimony was not able to be transcribed due to a recording malfunction.
The trial court had a “Statement of Evidence” prepared for the missing testimony, and it was included in the
record.
-7-
Case Nos. 4-16-18, 19, 20
detailed J.A.’s strong desire to stay in his current placement, where he was
flourishing socially, academically, and athletically. Similarly, A.M. had adapted to
her foster home and was incorporated as part of the family, which was largely the
only family A.M. had known being that she had been in foster care for the vast
majority of her life. Testimony indicated that R.A. was adjusting to his therapeutic
group home, but he did have some issues that required high levels of supervision by
adults at all times. Testimony also indicated that R.A.’s behavior had declined since
visitations with Marsh had resumed after her release from prison.
{¶21} The State also presented testimony regarding Marsh’s drug history and
the history of all three children and their association with the Agency, which for all
three children was a substantial portion of their lives. In addition, an Agency
caseworker testified that Marsh had functionally made no progress on her case plan,
that Marsh was living with a boyfriend with a significant criminal history that would
disqualify the house for placement, that the children had moved on, and that R.A.
had issues that would require substantial oversight.
{¶22} In Marsh’s case-in-chief, she testified that she had been recently
released from incarceration, that she had a job working at Burger King and that she
had a house big enough to accommodate the children. However, Marsh indicated
she was living with a man she had met on Facebook and that he had not yet met the
children. Marsh’s boyfriend had a criminal history including convictions for, inter
-8-
Case Nos. 4-16-18, 19, 20
alia, Burglary and Grand Theft Auto. Marsh indicated that she had tried to make
some progress on her case plan but it was difficult due to her incarceration.
However, she testified that she was drug free and she was holding her current job at
Burger King.
{¶23} Marsh did testify that she would respect J.A.’s wishes to remain with
his foster family and that she would not contest the Agency’s permanent custody
motion related to him. She testified, however, that she did want custody of her two
younger children.
{¶24} Marsh also presented the testimony of a woman named Audrey
Mattox. Mattox testified that she would help Marsh as much as she could with the
children. Mattox lived in a seven-bedroom home with a number of people, most of
which were collecting disability. Mattox did not have employment and indicated
she would babysit for the children at Marsh’s residence.
{¶25} The trial court took the matter under advisement and issued a final
judgment entry on the matter on September 26, 2016. In its entry, the trial court
made a number of findings and concluded that the children had been in the custody
of the Agency for twelve of the previous twenty-two months, that the Agency had
made “rather extensive efforts” toward reunification but Marsh had failed to meet
her case planning objectives, that the children could not and should not be placed
with their parents within a reasonable time, and that it was in the best interests of
-9-
Case Nos. 4-16-18, 19, 20
the children that permanent custody be granted to the Agency. The trial court then
terminated Marsh’s parental rights related to the three children.
{¶26} It is from the judgments related to all three children that Marsh
appeals, asserting the following assignments of error for our review.8
Assignment of Error No. 1
The trial court erred and violated the mother’s rights under the
Fourteenth Amendment to the United States Constitution Due
Process Clause and Article I Section Sixteen of the Ohio
Constitution in finding that permanent custody was supported by
clear and convincing evidence when she was given less than a half
a month to complete a newly formed case plan.
Assignment of Error No. 2
The trial court erred and violated the mother’s rights under the
Fourteenth Amendment to the United States Constitution Due
Process Clause and Article I Section Sixteen of the Ohio
Constitution in finding that permanent custody was supported by
clear and convincing evidence when there was no evidence that
the children could not be returned to the mother within a
reasonable time.
Assignment of Error No. 3
The trial court erred and violated the mother’s rights under the
Fourteenth Amendment to the United States Constitution Due
Process Clause and Article I Section Sixteen of the Ohio
Constitution in not following any of the statutory timeframes
found in Revised Code Chapter 2151.
{¶27} For ease of discussion we elect to address the assignments of error out
of the order in which they were raised.
8
Despite the fact that Marsh agreed that the Agency should be granted permanent custody of J.A., and despite
the fact that the trial court mentioned Marsh’s agreement on this issue in its judgment entry, Marsh still
appeals the grant of permanent custody of J.A. to the Agency.
-10-
Case Nos. 4-16-18, 19, 20
Third Assignment of Error
{¶28} In Marsh’s third assignment of error, she argues that the statutory
“timelines” contained within R.C. 2151.28 and R.C. 2151.414 were not followed in
this case, violating her due process rights. Specifically, Marsh contends that R.C.
2151.28 contains timelines for setting an adjudicatory hearing, holding an
adjudicatory hearing, and holding a dispositional hearing, and that the trial court did
not follow them. Marsh also argues that R.C. 2151.414 provides a timeline for
determining an Agency’s motion for permanent custody, and that the trial court
again did not abide by that timeline.
Marsh’s Arguments
{¶29} The first timelines that Marsh argues that the trial court did not follow
are contained in R.C. 2151.28(A), and (A)(2), which read
(A) No later than seventy-two hours after the complaint is filed,
the court shall fix a time for an adjudicatory hearing. The court
shall conduct the adjudicatory hearing within one of the following
periods of time:
***
(2) If the complaint alleged that the child is an abused, neglected,
or dependent child, the adjudicatory hearing shall be held no later
than thirty days after the complaint is filed, except that, for good
cause shown, the court may continue the adjudicatory hearing for
either of the following periods of time:
(a) For ten days beyond the thirty-day deadline to allow any
party to obtain counsel;
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Case Nos. 4-16-18, 19, 20
(b) For a reasonable period of time beyond the thirty-day
deadline to obtain service on all parties or any necessary
evaluation, except that the adjudicatory hearing shall not be held
later than sixty days after the date on which the complaint was
filed.
{¶30} Marsh contends that the trial court did not set an adjudicatory hearing
within seventy-two hours of the filing of the complaint and that the adjudicatory
hearing, when it was held, was held well outside the timeline of R.C. 2151.28(A)(2).
{¶31} Marsh also argues that the dispositional hearing was not held within
the statutory timeline under R.C. 2151.28(B)(3), which states, in pertinent part, that,
“in no case shall the dispositional hearing be held later than ninety days after the
date on which the complaint was filed.”
{¶32} Finally, Marsh argues that the trial court did not determine the
agency’s permanent custody motion within the statutory timeline according to R.C.
2151.414(A)(2), which reads,
(2) The court shall hold the hearing scheduled pursuant to
division (A)(1) of this section not later than one hundred twenty
days after the agency files the motion for permanent custody,
except that, for good cause shown, the court may continue the
hearing for a reasonable period of time beyond the one-hundred-
twenty-day deadline. The court shall issue an order that grants,
denies, or otherwise disposes of the motion for permanent
custody, and journalize the order, not later than two hundred
days after the agency files the motion.
***
The failure of the court to comply with the time periods set forth
in division (A)(2) of this section does not affect the authority of the
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Case Nos. 4-16-18, 19, 20
court to issue any order under this chapter and does not provide
any basis for attacking the jurisdiction of the court or the validity
of any order of the court.
Analysis
{¶33} At the outset, Marsh never raised any issues with the trial court that
her case was not being adjudicated or disposed of within the statutory timelines.
She also never moved for dismissal of her case based on any of the timelines. In
similar circumstances a number of Ohio Appellate Courts have all held that failure
to raise the issue or attempt to assert the right at the trial court level waives that issue
for appeal. See In the Matter of A.P., 12th Dist. Butler No. CA2005-10-425, 2006-
Ohio-2717, ¶¶ 12-13 (finding that a party implicitly waives the adjudicatory and
dispositional timelines contained in R.C. 2151.28 when the party fails to move for
dismissal after it becomes the party’s right to do so or when the party assists in the
delay of the hearing); In re Jessica M.B., 6th Dist. Ottawa No. OT-03-022, 2004-
Ohio-1040, ¶ 6 (finding that the dispositional time requirements in R.C.
2151.28(B)(3) can be waived when not asserted by either party); In re M.C., 4th
Dist. Scioto No. 16CA3755, 2016-Ohio-8294, ¶¶ 14-15 (finding that the trial court
may go beyond 120 days in a permanent custody action for good cause, that even
assuming there was no good cause R.C. 2151.414(A)(2) explicitly states that failure
to comply with the time periods does not affect the authority of the court or provide
a basis for attacking jurisdiction, and that an appellant has legal recourse through
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Case Nos. 4-16-18, 19, 20
filing a writ of procedendo, preventing any due process claims); see also In re D.W.
and K.N., 4th Dist. Athens No. 06CA42, 2007-Ohio-2552, ¶¶ 14-15; In re I.K., 8th
Dist. Cuyahoga No. 96469, 2011-Ohio-4512, ¶¶ 45-46; In re. D.B., D.B. JR., K.B.,
M.B., 5th Dist. Perry Nos. 14-CA-0004, 14-CA-0005, 14-CA-0006, 14-CA-0007,
2014-Ohio-3571, ¶ 25.
{¶34} Nevertheless, even assuming the timeline issues were not waived,
Marsh actively contributed to delaying her case at nearly every possible opportunity.
The complaint was filed on January 8, 2015, and that very same day the matter was
set for a hearing on January 29, 2015. At the initial hearing on the complaint, Marsh
requested that an attorney be appointed to represent her. That request was granted
and Marsh’s initial appearance was continued so that, inter alia, Marsh could
consult with her attorney, delaying her case. Then, at Marsh’s “official” initial
appearance with her attorney, where she entered “not true” pleas to the allegations,
Marsh’s attorney requested that the matter be set for a pretrial hearing rather than
an adjudicatory hearing.
{¶35} At the subsequent pretrial hearing, the “parties determined to continue
this matter for further Pretrial Hearing * * *[.]” (Emphasis added) (J.A. Doc. No.
25). At the next pretrial hearing, Marsh withdrew her “not true” pleas and entered
“true” pleas to the dependency allegations. Final adjudication was continued at that
time in order to give the fathers more time to respond and Marsh’s attorney indicated
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Case Nos. 4-16-18, 19, 20
that Marsh did not object to the children remaining in the Agency’s temporary
custody. (J.A. Doc. No. 27).
{¶36} On May 26, 2015, another hearing was held and the matter was
continued further so Johnny A.’s attorney could have more time to get into contact
with him. At this time Marsh was incarcerated and her attorney specifically noted
that there was no objection to a continuance. (J.A. Doc. No. 32).
{¶37} On June 30, 2015, adjudication was held. After the adjudication, it
was specifically noted that “[a]ll of the parties agreed to continue the disposition in
this matter until August 4, 2015, due to their availability.” (Emphasis added) (J.A.
Doc. No. 38). Disposition was held on August 4, 2015.
{¶38} After the Agency filed its motion to modify temporary custody into
permanent custody on April 25, 2016, Marsh filed motions in the interim, including
a motion for visitation and a motion to extend the agency’s temporary custody for
six months, potentially delaying the final permanent custody hearing. Nevertheless,
the permanent custody hearing began on August 30, 2016, narrowly outside of the
statutory window.
{¶39} Based on the record it is abundantly clear that even if Marsh had not
waived her right to assert the statutory timelines she cites on appeal, she actively
contributed and consented to the delaying of her case. Under these circumstances
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Case Nos. 4-16-18, 19, 20
we can find no error.9 For all of these reasons, Marsh’s third assignment of error is
overruled.
First Assignment of Error
{¶40} In Marsh’s first assignment of error, she argues that the Agency did
not conduct reasonable case plan efforts to support reunification. Marsh argues that
she had made some progress since being released from prison and that she had
remedied many issues. Marsh also argues that a new case plan was filed just before
the final hearing, which was unreasonable as it essentially added more requirements
for her to fulfill with no time to complete them.
{¶41} The right to parent one’s children is a fundamental right. Troxel v.
Granville, 530 U.S. 57, 66, 120 S.Ct. 2054 (2000); In re Hayes, 79 Ohio St.3d 46,
48 (1997). However, government has broad authority to intervene to protect
children from abuse, dependency, and neglect. See In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, ¶ 28, citing R.C. 2151.01. “When the state intervenes to protect a
child’s health or safety, ‘[t]he state’s efforts to resolve the threat to the child before
removing the child or to permit the child to return home after the threat is removed
are called “reasonable efforts.” ’ ” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,
9
This is especially true with regard to adjudication and the permanent custody timelines. Revised Code
2151.28(K) states that, “The failure of the court to hold an adjudicatory hearing within any time period set
forth in division (A)(2) of this section does not affect the ability of the court to issue any order under this
chapter and does not provide any basis for attacking the jurisdiction of the court or the validity of any order
of the court.” (Emphasis added.) Similar language was already cited related to permanent custody timelines,
which is contained in R.C. 2151.414(A)(2).
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Case Nos. 4-16-18, 19, 20
¶ 28, quoting Will L. Crossley, Defining Reasonable Efforts: Demystifying the
State’s Burden Under Federal Child Protection Legislation, 12 B.U.Pub.Int.L.J.
259, 260 (2003).
{¶42} An agency’s duty to make reasonable efforts to preserve or reunify a
family unit is referred to in various sections of the Ohio Revised Code. In re C.F.,
113 Ohio St.3d 73, 2007–Ohio–1104, ¶ 29. Revised Code 2151.419 provides that,
but for a few narrowly defined statutory exceptions, the juvenile court must find a
children services agency made “reasonable efforts” to reunify a family at hearings
involving the adjudication, emergency custody, detention, and disposition for
abused, neglected, or dependent children. C.F. at ¶ 41. The Agency has the burden
of proving that it made those reasonable efforts. R.C. 2151.419(A)(1).
{¶43} Generally, a juvenile court does not have to make a reasonable efforts
determination pursuant to R.C. 2151.419(A)(1) in a permanent custody hearing.
C.F. at ¶ 41. However, if the Agency has not established that reasonable efforts
have been made prior to the permanent custody hearing, then it must demonstrate
such efforts at that time. Id. at ¶ 43; In re J.H., 12th Dist. Clinton Nos. CA2015-07-
014, CA2015-07-015, 2016-Ohio-640, ¶ 29.
{¶44} In this case, the trial court made its “reasonable efforts findings”
related to the Agency’s efforts in essentially each journal entry after each phase of
this case. Thus the trial court was not required to find that the Agency had engaged
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Case Nos. 4-16-18, 19, 20
in reasonable efforts to support reunification again at the permanent custody
hearing. Nevertheless, the trial court did make the finding in its final judgment entry
on the matter, indicating as follows. “The Court finds that despite the rather
extensive efforts of the [Agency] * * * with Donna Marsh, she has nevertheless
consistently failed to meet the objectives of the case planning efforts.” (J.A. Doc.
No. 103). Notably, the trial court made this finding only after pointing out that
while Marsh had made some initial progress on her case plan, she did not complete
any of her goals.
{¶45} The trial court’s determination was supported by the record in that the
Agency had a case plan in place for Marsh that was amended and reviewed during
the pendency of this case but Marsh was incarcerated for a substantial portion of
this action and had no contact with her children during that time, making progress
difficult. In addition, there was no verification provided to the Agency that Marsh
completed any of her services under the case plan while in prison.
{¶46} When she was released from prison, Marsh did obtain a new home and
employment; however, she lived with a boyfriend with a criminal history that would
have disqualified his home as a placement option for the children according to one
of the caseworkers and the GAL indicated that Marsh would have to rely on a third
party to help her care for the children. This was particularly true given that R.A.
had some special needs.
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Case Nos. 4-16-18, 19, 20
{¶47} While Marsh argues that there was not enough time to complete the
goals under her newest case plan, Marsh had not completed any of the goals on her
case plan, other than arguably remaining drug free, which was practically required
due to her incarceration. Based on the record before us we cannot find that the trial
court erred, therefore Marsh’s first assignment of error is overruled.
Second Assignment of Error
{¶48} In Marsh’s second assignment of error, she argues that there was “no
evidence” that the children could not be returned to her within a reasonable time.
Specifically, she contends that based on her progress in her case plan since being
released from prison the evidence did not clearly and convincingly establish that the
children could not be placed with her within a reasonable time.
{¶49} Revised Code 2151.414 provides a two-part analysis for courts to
apply when determining a motion for permanent custody. The Agency must prove
by clear and convincing evidence that, (1) granting permanent custody of the child
to the agency is in the best interest of the child, and that (2) the child either (a) cannot
be placed with either parent within a reasonable period of time for one of the
statutorily enumerated reasons, which includes, inter alia, that the child has been in
the temporary custody of the Agency for twelve or more months out of a consecutive
twenty-two month period, or that (b) the child should not be placed with either
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Case Nos. 4-16-18, 19, 20
parent within a reasonable period of time. In re S.G., 3d Dist. Defiance No. 4-16-
13, 2016-Ohio-8403, ¶ 68.
{¶50} In this case the trial court made findings that the children could not be
placed with their parents within any reasonable time and that the children had been
in the custody of the Agency for twelve or more months out of the past twenty-two
months. This Court has held previously that “when a trial court finds that R.C.
2151.414(B)(1)(d) [twelve of twenty-two] has been met and makes a best interest
determination, it is not required to also determine that the children could not or
should not be returned to any of the parents within a reasonable time under R.C.
2151.414(B)(1)(a).” In re J.P., 3d Dist. Hancock Nos. 5-06-52, 5-06-53, 2007-
Ohio-1903, ¶ 93. Here, the “twelve of twenty-two” requirement was clearly met,
thus the trial court did not even have to make the superfluous finding that the
children could not or should not be placed with their parents within a reasonable
time.10
{¶51} Nevertheless, the trial court did make the additional finding that the
children could not or should not be placed with their mother within a reasonable
time. As stated previously, the record indicated that Marsh did not have an adequate
home given who she was living with and that she could not support the children
10
Marsh argues that the twelve of twenty-two month period should not be considered in this case because
the timelines discussed in Assignment of Error no. 3 were not met. Marsh contends that the case would have
to start over and that the number of months would begin anew. We have already found Marsh’s related
argument not well-taken under the third assignment of error, and we will not further address this issue.
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Case Nos. 4-16-18, 19, 20
without the aid of a third party. It was not clear that some of Marsh’s problems were
issues she would ever remedy, let alone within a reasonable period of time. Given
the children’s need for permanency and their adaptation to their living
circumstances, we cannot find that the trial court erred in making the additional,
superfluous finding.11 Thus Marsh’s second assignment of error is overruled.
Conclusion
{¶52} For the foregoing reasons Marsh’s assignments of error are overruled
and the judgments of the Defiance County Common Pleas Court, Juvenile Division,
are affirmed.
Judgments Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
/jlr
11
Marsh does not argue that the record failed to support the trial court’s determination that granting the
Agency permanent custody was in the children’s best interest; however, the record does support the trial
court’s determination.
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