In re S.B. , 2014 Ohio 1481 ( 2014 )

[Cite as In re S.B., 2014-Ohio-1481.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN RE:
S.B., CASE NO. 5-13-27
ALLEGED NEGLECTED AND
DEPENDENT CHILD. OPINION
[ANNA MUZY - APPELLANT].
IN RE:
H.B., CASE NO. 5-13-28
ALLEGED NEGLECTED AND
DEPENDENT CHILD. OPINION
[ANNA MUZY - APPELLANT].
IN RE:
P.B., CASE NO. 5-13-29
ALLEGED NEGLECTED AND
DEPENDENT CHILD. OPINION
[ANNA MUZY - APPELLANT].
Case Nos. 5-13-27, 5-13-28, 5-13-29
Appeals from Hancock County Common Pleas Court
Juvenile Division
Trial Court Nos. 21130047, 21130048 and 21130049
Judgments Affirmed
Date of Decision: April 7, 2014
APPEARANCES:
Charles R. Hall, Jr. for Appellant
Rebecca S. Newman for Appellee
WILLAMOWSKI, P.J.
{¶1} Appellant Anna Muzy (“Anna”) brings this appeal from the judgment
of the Court of Common Pleas of Hancock County, Juvenile Division, terminating
her parental rights and granting permanent custody of the minor children to
Appellee Hancock County Job and Family Services – Children’s Protective
Services Unit (“the Agency”). For the reasons set forth below, the judgment is
affirmed.
{¶2} On November 9, 2011, S.B., born in 2005, H.B., born in 2007, and
P.B., born in 2008, (collectively known as “the children”) were removed from
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Anna’s home via ex parte order for emergency temporary custody. Doc. 1. A
hearing on the complaints and motions filed by the Agency was held on November
14, 2011. Doc. 7. The trial court determined that there was probable cause for the
filing of the ex parte orders and placed the children in the temporary custody of
the Agency. Id. On December 8, 2011, the Agency filed a case plan. Doc. 12.
The case plan required Anna to complete the following tasks: 1) obtain a mental
health and substance abuse screening and follow the recommendations; 2) obtain
an assessment from the Family Resource Center and follow through with
recommended services; and 3) clean and maintain the home.1 On December 16,
2011, the trial court appointed Helen Ruhlen (“Ruhlen”) as the guardian ad litem
for the children. Doc. 13. The adjudication hearing on the complaint was held on
December 29, 2011. Doc. 14. With the consent of all parties, the trial court found
that the children were neglected and dependent. Id. The dispositional hearing was
held on January 17, 2012. Doc. 19. The parties agreed that the children would be
placed in the temporary custody of the Agency. Id. The trial court also adopted
and approved the case plan requiring the above mentioned services. Id.{¶3} On March 20, 2012, Anna filed a motion requesting unsupervised
parenting time with the children. Doc. 21. The trial court set the hearing on the
motion for May 3, 2012. Doc. 22. On the day of the hearing, the matter was
1
Additional requirements were in the plan, but they did not apply to Anna, who is the sole appellant in this
case and are thus irrelevant.
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continued until June 26, 2012, because Ruhlen was not present. Doc. 25. On May
8, 2012, the Agency filed the semiannual review of the case plan. Doc. 27. The
review indicated that Anna had completed the mental health and substance abuse
assessment and that all the drug screens were negative. Id. at 2. Anna was
receiving counseling for depression due to the removal of the children, but was
described as cooperative by the mental health service provider. Id. Anna had also
completed the parenting class, but was referred for an additional program to help
her understand the importance of routine, consistency, and supervision in the
home. Id. at 3. Finally, the review indicated that Anna had moved into a safer
home which was clean. Id. at 5. The review indicated that Anna needed to show
that she could maintain the home for the children. Id. The summary of the
progress was as follows.
The [A]gency would recommend that [the children] remain in
the foster home at this time to allow the parents to participate in
intensive, hands on parent education and to determine if [Anna]
can maintain safe and stable housing for the children. Once
hands on parenting has begun and a good progress report is
received, unsupervised time can be considered. [Anna] will need
to show that [she] can cooperate with the [Agency] and service
providers and that [she] can make changes in [her] parenting
style so that the boys have adult supervision at all times for their
safety and well being.
Id. at 8. On June 26, 2012, Anna withdrew her motion to modify the disposition.
Doc. 28. On August 21, 2012, the Agency filed a notice that visitation was being
changed to allow Anna three hours of unsupervised visitation once a week. Doc.
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29. The reason for the unsupervised visitation was the full compliance of Anna
with the treatment recommendations resulting from the parenting assessment and
mental health assessment, and from Anna’s maintaining stable and safe housing.
Id.
{¶4} On October 4, 2012, the Agency filed a motion for a six month
extension of temporary custody of the children. Doc. 30. The Agency then filed
on October 23, 2012, the semiannual review of the case plan. Doc. 33. The
review indicated that Anna had made significant progress in the area of the mental
health assessment and the review recommended terminating services in that area
as the goals were met. Id. at 3. As to parenting skills, the review indicated that
progress was being made and that Anna was working cooperatively with the
family aide. Id. at 4. Finally, the review indicated that Anna had moved to a
suitable home and was keeping it clean and safe. Id. at 6. The review indicated
that Anna had made significant progress towards this goal, but recommended
keeping it as part of the recommended services. Id. The recommendation of the
Agency was as follows.
The [A]gency would recommend that the children remain in the
foster home until a gradual transition can be made back into the
home. The children are participating in unsupervised time two
days per week and will increase to overnights if they received
[sic] good reports from home based therapist and there are no
new reports of child abuse or neglect.
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Id. at 18. On November 2, 2012, the trial court granted the motion for an
extension of temporary custody and ordered that the current case plan remain in
effect. Doc. 34. On November 9, 2012, the Agency filed a notice that overnight
visits between the children and Anna would now be allowed based upon the
positive reports received from service providers. Doc. 35.
{¶5} On April 8, 2013, the Agency filed a motion for permanent custody.
Doc. 47. The Agency also filed a semiannual review of the case plan. Doc. 49.
This review indicated that the Agency had referred Anna for more counseling, but
she did not comply.2 Id. at 2. The review indicated that due to a claim of sexual
abuse against her husband, Justin Muzy (“Muzy”), the Agency was concerned
about Anna’s parenting skills in that she was considered uncooperative during the
investigation and the Agency questioned her willingness to protect the children.
Id. at 3. Finally, the review indicated that Anna and Muzy had lost their housing
due to Muzy losing his job and they were living with extended family. Id. at 5.
The Agency had referred them to the housing office and Metro Housing. Id. The
review summarized the progress as follows.
The [A]gency would recommend continued out of home
placement at this time due to the new substantiated report of
sexual abuse. At the time of this review, [Anna] has not talked
to or completed any interviews with the investigator. [Muzy]
cooperated with the investigation after securing a new attorney,
2
No new case plan had been filed between this review and the October 23, 2012, case plan which
terminated mental health services as being completed. This raises a question as to whether the Agency had
officially made the return to counseling part of the case plan or whether it was merely a suggestion.
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however, [Muzy] failed the polygraph that was administered to
him. [Muzy and Anna] have reported that they no longer have
safe and stable housing at this time. The potential risk to the
children at this time is high and [Anna] has made no
modifications to reduce safety [sic] for her children. The
children have been in care for over one year and need
permanency and therefore the [A]gency has requested
permanent custody of all three boys.
Id. at 8. On July 24, 2013, the Agency filed a comprehensive assessment planning
model for the case plan indicating that the permanency goal for the children was
adoption. Doc. 70.
{¶6} On August 5, 2013, the trial court allowed Ruhlen to withdraw as the
guardian ad litem for the children. Doc. 73. The trial court then appointed
Kimberly Freytag-Shope as the guardian ad litem (“GAL”). Id. The GAL filed
her report and recommendations on August 13, 2013.3 Doc. 75. The GAL
indicated in her report that she had contacted various employees of the Agency,
the foster parents, and the attorney for Muzy. Id. at 4. She did not have any
contact with the children or with Anna.4 Id. The GAL recommended that
3
Pursuant to Hancock County Local Rule 39(E), the GAL’s report is to be submitted to the trial court,
which will notify the parties that it is available for review at the court. The court will then make the report
an exhibit in a contested proceeding. By implication, it appears that the GAL report should not be filed
with the clerk of courts, but should rather be submitted directly to the court in order to protect the privacy
of the children.
4
This court notes that the validity of the opinions in the report are suspect as the GAL only had eight days
between being appointed and filing the report. Additionally, the GAL did not meet the minimal
requirements of meeting with the children, interviewing them, or observing them and did not meet with the
parents. See Sup.R. 48(D)(13). Other than speaking with Agency personnel and the foster parents, the
GAL merely read the record provided by the Agency. While this is understandable due to the short time
frame, it does not lend itself to allowing the GAL to maintain independence and objectivity as required by
Sup.R. 48(D)(2).
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permanent custody of the children be granted to the Agency so that the children
could be adopted. Id. at 8.
{¶7} The hearing on the motion for permanent custody was held on August
20 and 21, 2013. Doc. 81. The Agency presented the testimony of seven
witnesses. The first witness was Jamie Fall (“Fall”). Tr. 20. Fall is a licensed
professional counselor. Tr. 20. Fall began seeing S.B. and H.B. in August of
2012. Tr. 23. He saw S.B. and H.B. approximately once a week, but P.B.
sometimes participated. Tr. 23-24. In November of 2012, the foster mother
reported to Fall that she had been told by a respite provider that the children were
acting out in a sexual manner and had alleged that they had been abused by Muzy.
Tr. 25-29. Fall then questioned S.B. about it and confirmed the report of abuse.
Tr. 30-31. H.B. and P.B. confirmed what S.B. had reported. Tr. 45-46. Fall then
reported the abuse as required by law. Tr. 33.
{¶8} The second witness was Karmen Lauth (“Lauth”), who was the
caseworker for the Agency who handled this case. Tr. 50-51. Lauth testified that
the children had been in the temporary custody of the Agency since November 9,
2011. Tr. 57, 59. She testified that the Agency filed for permanent custody in
April of 2013. Tr. 57. Thus the children had been in the temporary custody of the
Agency for at least twelve out of twenty-two consecutive months. Tr. 58. The
children were removed from the home when the police notified the Agency that
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they would be pressing child endangerment charges due to multiple, substantiated
reports of the children being outside, unsupervised, and dressed inappropriately for
the weather. Tr. 62. The children were adjudicated dependent on December 30,
2011. Tr. 71. As the disposition, the trial court ordered on January 18, 2012, that
the Agency maintain temporary custody of the children. Tr. 72. The Agency filed
for permanent custody after a new report of abuse was made and the subsequent
investigation. Tr. 78. After November of 2012, Lauth testified that she observed
that during the visits, Anna became overwhelmed when the children started acting
out. Tr. 109. Lauth described the visits as having “a very negative overtone” and
stated there was no smiling, laughing or playing. Tr. 109.
{¶9} Lauth testified that H.B. and P.B. were receiving speech therapy for
their delays and that they were progressing well. Tr. 141-42. Although the
children had been referred to Help Me Grow prior to their removal, this had not
occurred at that time. Tr. 142. The children were medically on target after some
initial issues were resolved. Tr. 144-45. Throughout the pendency of this case,
the visits between the children and Anna have had a tendency to become chaotic.
Tr. 146. The visits proceeded to one overnight visit before S.B. disclosed
potential sexual abuse at the hands of Muzy. Tr. 150. As a result, unsupervised
visits were immediately suspended. Tr. 151. Lauth testified that Anna regularly
visited with the children and there were no issues with nonattendance. Tr. 152.
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However, Lauth testified that Anna would not be able to provide an adequate
permanent home for her children. Tr. 165.
Basically because of the lack of [Anna’s] inability [sic] to protect.
She did not acknowledge the investigation of sexual abuse. She
does not believe that it happened. And her lack of progress on
the case plan with regard to parenting and the housing issue.
Tr. 165. Lauth testified that the children were attached to Anna and loved her, but
there were power struggles during the visits. Tr. 167. The bond and love between
Anna and the children was insufficient, in her opinion, to overcome the concerns
raised by Anna’s parenting. Tr. 169. The relationship between the children and
the foster parents was better in that the children were calmer, followed the rules,
and played cooperatively while in the foster home. Tr. 169. Lauth testified that in
her opinion, the children would “grow and thrive in a permanent home which can
be provided to them through adoption. They can have a safe – safety, stability,
protection from harm.” Tr. 173. She also testified that the children had a “very
good chance” of being adopted. Tr. 174.
{¶10} On cross-examination Lauth testified that the allegation of abuse was
substantiated. Tr. 176. However, she admitted that the children had been acting
out sexually prior to the alleged abuse and during the time all visits were
supervised. Tr. 177. Lauth also testified that there were no criminal charges
pending against Muzy as a result of the alleged abuse. Tr. 177. She also admitted
that no other agency or organization has substantiated the claims against Muzy.
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Tr. 179. Lauth admitted that she had not put the requirement of additional
counseling into the case plan when subsequent issues came up and that she did not
know if Anna was aware of the referral to Century Health. Tr. 181. Lauth
testified that as long as Anna is married to Muzy, there was a safety issue which
would prevent reunification due to the allegations against Muzy. Tr. 182.
{¶11} The third witness for the Agency was Alison Kuhn (“Kuhn”), who
was a case worker for Keeping Kids Safe. Tr. 198-99. Kuhn testified that she was
the case worker who placed the children with their foster parents, Gary and Julie
Hiser. Tr. 201. The job of her agency was to work with the children while the
Agency works with the parents. Tr. 204. Kuhn testified that she received the
report from the respite workers concerning the sexual acting out of the children.
Tr. 208-209.
{¶12} Ginger Wilson (“Wilson”) testified next. She testified that she
provided respite care for the children. Tr. 216. She testified that she observed the
children acting out inappropriately and making what she described as “sexual
gesturing”. Tr. 217. She then reported the behavior to Kuhn. Tr. 224.
{¶13} The fifth witness for the Agency was Jeri Steinbrook (“Steinbrook”),
who investigated the allegations of sexual abuse. Tr. 236. Steinbrook testified
that she spoke with the foster parents, the children, Fall, Kuhn, and Muzy, but not
with Anna. Tr. 236-38. Steinbrook asked Kuhn to get the witness statements and
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she then reviewed them without speaking to the actual witness. Tr. 239.
Steinbrook testified that she interviewed the children and a detective observed the
interview from behind glass. Tr. 246. During the interviews, S.B. made
statements indicating he was abused. Tr. 250. Both H.B. and P.B. did not make
any allegations of abuse during their interviews. Tr. 251. Based upon S.B.’s
statements and the behavior of the children, Steinbrook found that the claim of
sexual abuse was substantiated as to all three children. Tr. 254. Procedure then is
to send a letter to the parents indicating the outcome of the investigation and close
the investigation. Tr. 256-57.
{¶14} The next witness presented by the Agency was Tabitha Whaley
(“Whaley”), who is the Harmony House case manager. Tr. 276. Whaley testified
that Anna began visiting with the children at Harmony House in November of
2011. Tr. 285. Anna had been scheduled for almost one hundred visits over time.
Tr. 285. Anna’s visits with the children twice a week, two hours at a time for a
total of four hours per week. Tr. 291. Since December of 2012, the children have
been acting out more and pushing Anna’s limits and this has resulted in
inconsistent discipline. Tr. 291. Whaley testified that at times, the children will
start arguing and they ignore Anna when she tells them to stop. Tr. 293. Whaley
testified that the children act out more than the average child their ages. Tr. 294.
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Anna has made most of her visits and her visits have never been suspended. Tr.
294.
{¶15} The final witness for the Agency was the foster mother, Julie Hiser
(“Hiser”). Tr. 312. Hiser testified that the children were placed in her home in
November of 2011. Tr. 312. Hiser testified that in her care, the boys are doing
well. Tr. 334. On cross-examination, Hiser testified that at that time, they had no
plans to adopt the children. Tr. 335. In Hiser’s opinion, the children are bonded
with each other, though the children struggle with interacting together. Tr. 338.
She testified that it would be in the children’s best interest to stay together. Tr.
338.
{¶16} After the Agency rested its case, Anna rested without calling any
witnesses or presenting any evidence. The final witness in the case was the GAL.
The GAL testified that in her opinion, the children would be best served by
permanent custody being granted to the Agency. Tr. 347. On cross-examination,
the GAL testified that P.B. was too young to state a preference, but that S.B. and
5
H.B. had stated that they wished to be returned to Anna. Tr. 348. At the
conclusion of the hearing, the trial court took the matter under advisement. Tr.
365. On August 23, 2013, the trial court entered judgment granting the Agency’s
motion for permanent custody. Doc. 81. Anna filed her notice of appeal from this
5
Since the opinion of the children and that of the GAL could be considered in conflict, the children had
their own counsel at the hearing.
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judgment on September 26, 2013. Doc. 89. On Appeal, Anna raises the following
assignments of error.
First Assignment of Error
The trial court’s decision to terminate [Anna’s] parental rights
and grant permanent custody to the [Agency] is against the
manifest weight of the evidence.
Second Assignment of Error
The trial court erred in granting permanent custody for the
children because it was not in their best interest.
Third Assignment of Error
The [Agency] failed its duty to use reasonable case planning and
diligent efforts at reunification with the parent.
Fourth Assignment of Error
[The Agency] did not make a good faith effort to reunify [Anna]
with her children.
Fifth Assignment of Error
The trial court erred in granting permanent custody of the
children to the [Agency] because clear and convincing evidence
was not presented to establish that the children could not be
returned to [Anna] within a reasonable time.
{¶17} The first, second, and fifth assignments of error all challenge the
granting of the motion for permanent custody on the grounds that the judgment
was not supported by the evidence and thus, they will be discussed together. The
right to raise one’s own child is a basic and essential civil right. In re Murray
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(1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. “Parents have a ‘fundamental
liberty interest’ in the care, custody, and management of their children.” In re
Leveck, 3d Dist. Hancock No. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶6.
These rights may be terminated, however, under appropriate circumstances and
when all due process safeguards have been followed. Id. When considering a
motion to terminate parental rights, the trial court must comply with the statutory
requirements set forth in R.C. 2151.414. These requirements include, in pertinent
part, as follows.
(B)(1) Except as provided in division (B)(2) of this section, the
court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to division (A) of
this section, by clear and convincing evidence, that it is in the
best interest of the child to grant permanent custody of the child
to the agency that filed the motion for permanent custody and
that any of the following apply:
***
(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 * * *.
For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency
on the earlier of the date the child is adjudicated pursuant to
[R.C. 2151.28] or the date that is sixty days after the removal of
the child from home.
***
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(C) In making the determination required by this section * * *, a
court shall not consider the effect the granting of permanent
custody to the agency would have upon any parent of the child.
A written report of the guardian ad litem of the child shall be
submitted to the court prior to or at the time of the hearing held
pursuant to division (A) of this section * * * but shall not be
submitted under oath.
***
(D)(1) In determining the best interest of a child at a hearing
held pursuant to division (A) of this section * * *, the court shall
consider all relevant factors, including, but not limited to, the
following:
(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
services agencies * * * for twelve or more months of a
consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414. Pursuant to this statute, an Agency is not required to prove that
the child could not or should not be returned to the parents within a reasonable
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time if the child has been in the temporary custody of the Agency for twelve out of
a consecutive twenty-two month period of time. R.C. 2151.414(B)(1)(d), In re
C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶21. If this
situation is proven, the Agency need only prove that it is in the best interests of the
child, as set forth in R.C. 2151.414(D), to grant the motion of the Agency for
permanent custody. In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶
26.
{¶18} A review of the record in this case indicates that the children were
removed from the home on November 9, 2011. The children were adjudicated as
dependent and neglected on December 29, 2011. The motion for permanent
custody was filed on April 8, 2013. This time frame is a little more than fifteen
months after the children were adjudicated dependent. Thus, the Agency has
shown by clear and convincing evidence that the children were in the temporary
custody of the Agency for at least twelve out of twenty-two consecutive months.
Thus, the trial court then was required to consider whether the granting of the
motion was in the best interest of the children, not whether the children could or
should be returned to the parents within a reasonable time. For this reason, the
fifth assignment of error is overruled.
{¶19} Having determined that the child had been in the custody of the
Agency for twelve out of a consecutive twenty-two month period, the trial court
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only needed to address whether granting the Agency’s motion for permanent
custody was in the best interest of the children. The trial court specifically stated
that it had considered the statutory factors set forth in R.C. 2151.414(D). Doc. 81,
4. A review of the record indicates that the Agency presented testimony showing
that the three children were bonded with each other and should remain in the same
home. The Agency also presented evidence that the children were doing well in
the foster home and, had a good relationship with the people living in the home.
Although there was testimony that indicated that Anna loved her children, and the
trial court also found that this was so, there was also testimony that she was
frequently overwhelmed when attempting to parent the children. The Agency also
presented evidence that although the boys had stated they wished to go back to
Anna, at other times, they were unsure as they also loved their foster parents. Tr.
348. The GAL indicated that in her opinion, it would be in the children’s best
interests if the motion for permanent custody were granted. The children were
rather young at the time of the hearing as the ages of the boys ranged from five to
eight years of age. The trial court also noted that the children had been living out
of the home for over a year at the time the motion was filed. In making its ruling,
the trial court held as follows.
There is little doubt that the parents love their children
evidenced by the fact that [Anna] has visited over 100 times and
father has recently started case plan services but despite
considerable efforts by the agency and other care providers the
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situation with the parents is basically unchanged from the date
of original removal. * * * [Anna] is living with and is married to
a man who is alleged to have sexually abused one of the children.
The allegation was labeled by CPSU as “substantiated.” The
children have exhibited behavior that is indicative of being a
victim of sexual abuse. [Anna] does not believe the allegations
against her husband and has no plans to live separately from
him. * * * The children will never be able to be returned to their
mother as long as she is living with her present husband. The
children cannot just be placed in storage until the relationship
between the mother and her husband dissolves. There is little
hope that the situation will improve with the passage of time.
Id. at 4-5. Based upon the testimony before it, the trial court did not abuse its
discretion in determining that granting the Agency’s motion for permanent
custody was in the best interests of the children. There was competent and
credible evidence presented, which if believed, would show by clear and
convincing evidence that parental rights should be terminated. Therefore, the first
and second assignments of error are overruled.
{¶20} In the third and fourth assignments of error, Anna argues that the
Agency did not make a good faith effort to reunify the children with her and failed
to make a case plan which could sufficiently do so.
Case plans are tools that the Agency uses to set forth the goals of
the parents to allow for the return of the children to their
parents. Leveck, supra at ¶10. These plans must take into
consideration the individual circumstances of each case,
including the abilities of the parents and the children. 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 this case.” Id.
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In re. C.E., 3d Dist. Hancock Nos. 5-09-02, 5-09-03, 2009-Ohio-6027, ¶15. In
C.E., this court held that the Agency had not made a case plan in good faith when
the father had completed all of the case plan objectives, only to be told that he
needed to do more, although the additional requests were not made a part of the
case plan, but were merely suggestions. The father in C.E. had progressed to the
point of having unsupervised weekend visits at the time the hearing for permanent
custody was held showing that significant progress had been made. Additionally,
the Agency in that case moved for permanent custody on the grounds that the
father had not complied with the case plan and admitted that he had successfully
complied with all of the requirements of the case plan. This is different than the
case before us now.
{¶21} Here, Anna did complete the parenting classes and counseling,
however, she had not managed to find adequate and appropriate housing. The
home that Anna and Mr. Muzy were living in on the date of the hearing was a one
bedroom apartment.6 Tr. 134. In addition, there were questions about how Anna
was applying what she learned from the parenting classes. The Agency did
request that Anna receive additional counseling after the allegations of sexual
abuse of the children were made. Unlike in C.E., the request was not merely a
suggestion. Lauth testified that she formally referred Anna to the counseling
6
The adequacy of the apartment for the children was not discussed as Lauth had not been able to see the
apartment at the time of the hearing due to the fact that Anna had recently moved to that location.
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Case Nos. 5-13-27, 5-13-28, 5-13-29
agency and sent a copy of the referral letter to Anna. At that time, the case plan
ordered by the judge still required Anna to complete counseling as the amended
case plan recommending terminating the service was not adopted by the trial
court. Doc. 34. This testimony was not disputed by Anna. Although it would
have been better for the Agency to make the return to counseling a formal part of
the case plan, the evidence does not show, as argued by Anna, that the Agency
merely “waited the statutory time period to file the permanent custody motions”.
Appellant’s Brief, 15. The children were adjudicated dependent and neglected on
December 29, 2011. Thus, the Agency could have filed for permanent custody
pursuant to 2151.414(B)(1)(d) on December 29, 2012. The Agency did not file for
permanent custody until April 8, 2013. Between the time the allegations were
made and the day the Agency filed a motion for permanent custody of the
children, the Agency continued to work with Anna to attempt to remedy the
situation which caused the removal of the children and to address the new
concerns. However, instead of continuing to make progress, the testimony of
Whaley was that Anna and the children were making no progress and were
actually regressing in the progress previously made. Tr. 299. Additionally, Lauth
testified that even after Anna was informed about the allegations of sexual abuse
raised by the children, Anna told her that she had no intention of living separately
from her husband. Tr. 170. Given the facts of this case, this Court cannot say that
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Case Nos. 5-13-27, 5-13-28, 5-13-29
the Agency did not make a good faith effort to reunite the children with Anna or
that the case plan was insufficient to do so. Thus, the third and fourth assignments
of error are overruled.
{¶22} Having found no error prejudicial to the Appellant in the particulars
assigned and argued, the judgments of the Court of Common Pleas, Juvenile
Division, are affirmed.
Judgments Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
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