In re Jo.S. , 2011 Ohio 6017 ( 2011 )

[Cite as In re Jo.S., 2011-Ohio-6017.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN THE MATTER OF:
JO. S., CASE NO. 5-11-16
ALLEGED ABUSED, NEGLECTED
AND/OR DEPENDENT CHILD,
[JOSEPH SALDANA –
APPELLANT/FATHER], OPINION
[TRACY PARDO –
APPELLANT/MOTHER].
IN THE MATTER OF:
JA. S., CASE NO. 5-11-17
ALLEGED ABUSED, NEGLECTED
AND/OR DEPENDENT CHILD,
[JOSEPH SALDANA –
APPELLANT/FATHER], OPINION
[TRACY PARDO –
APPELLANT/MOTHER].
Appeals from Hancock County Common Pleas Court,
Juvenile Division
Trial Court Nos. 20930053 and 20930054
Judgments Affirmed
Date of Decision: November 21, 2011
APPEARANCES:
Charles R. Hall, Jr. for Appellant, Joseph Saldana
Nicole M. Winget for Appellant, Tracy Pardo
Benjamin E. Hall for Appellee, CPSU
Drew Mihalik for CASA
ROGERS, P.J.
{¶1} Father-Appellant, Joseph Saldana (hereinafter “Joseph”), and Mother-
Appellant, Tracy Pardo (hereinafter “Tracy”), separately appeal the judgments of
the Court of Common Pleas of Hancock County, Juvenile Division, terminating
their parental rights and granting permanent custody of their children, Jo.S. and
Ja.S. (collectively “children”), to the Hancock County Job and Family Services,
Children Protective Services Unit (hereinafter “CPSU”).
{¶2} On appeal, Joseph contends that CPSU failed to make reasonable
efforts to reunite the children with him; that the trial court’s judgments granting
CPSU permanent custody of the children were against the manifest weight of the
evidence; that granting permanent custody of the children to CPSU was not in the
children’s best interest; and, that CPSU did not make a good faith effort to reunite
him with his children. In her appeal, Tracy contends that the trial court’s
judgments granting CPSU permanent custody of the children were against the
manifest weight of the evidence; that granting permanent custody of the children
to CPSU was not in the children’s best interest; and, that CPSU failed to make
reasonable efforts to reunite her with her children. Based on the following, we
affirm the judgments of the trial court as to both Joseph and Tracy.
{¶3} On December 14, 2009, Jo.S. was admitted to Blanchard Valley
Hospital with a fever and a red, swollen left eye. CAT scans of Jo.S.’s eye
revealed that he had a broken left orbital bone. The examining physician
attributed the injury to child abuse. On December 18, 2009, CPSU filed two
complaints: one alleging that Jo.S. 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
other alleging that Ja.S. was a neglected, dependent child as defined by R.C.
2151.03 and R.C. 2151.04, respectively. Additionally, CPSU moved the trial
court for an emergency ex parte order requesting that the children be placed in the
temporary custody of Rosalinda Garcia (hereinafter “Garcia”), the children’s
paternal grandmother, which the trial court granted.
{¶4} On December 22, 2009, the matter proceeded to a shelter care hearing.
The trial court concluded that probable cause existed for the filing of the ex parte
order, and that the children’s continued residence in either Joseph’s or Tracy’s
(collectively “parents”) custody would be contrary to the children’s best interest.
Based on CPSU’s recommendation, the trial court ordered that the children remain
in Garcia’s emergency temporary custody.
{¶5} On January 25, 2010, the trial court, upon its own motion, appointed
James Kelly (hereinafter “Kelly”), to serve as a guardian ad litem (hereinafter
“GAL”) for the children.
{¶6} On January 29, 2010, CPSU filed a motion for an ex parte order
requesting that the children be removed from Garcia’s emergency temporary
custody and placed in CPSU’s emergency temporary custody. The trial court
granted the motion. Thereafter, the trial court held a hearing on the matter and
concluded that probable cause existed for the ex parte order, and that the
children’s continued residence in Garcia’s home would be contrary to the their
best interest. Based on CPSU’s request, the trial court ordered that the children
remain in CPSU’s emergency temporary custody.
{¶7} In February 2010, the matter proceeded to an adjudication hearing.
Upon the consent of all the parties, the trial court found by clear and convincing
evidence that Jo.S. was a neglected, abused, and dependent child, and that Ja.S.
was a neglected and dependent child.
{¶8} In March 2010, the trial court held a dispositional hearing. Upon the
parties consent, the trial court ordered that the children be placed in CPSU’s
temporary custody. The trial court also adopted the case plan (hereinafter “plan”
or “case plan”) submitted by CPSU.1 The plan set forth five objectives, which
read, in pertinent part:
1
CPSU filed a case plan on January 20, 2010, but the trial court never filed a judgment entry adopting or
rejecting the plan.
[Joseph] and [Tracy] will be assessed for services through
Family Resource Center or another approved provider.
[Joseph] and [Tracy] will follow through with all recommended
services including (sic) but not limited to (sic) Play Therapy,
Maternal Mental Health, Promoting First Relationships and/or
Home Based Therapy (HBT). The parents will attend any and
all appointments required of them by the service provider,
complete all required paperwork, and sign any releases of the
service provider and this agency. The foster parents or foster
agency will ensure that the children attend all appointments for
their individual needs. [Joseph] and [Tracy] will follow through
with any and all recommendations made by [the Family
Resource Center] service staff or the agency. [Joseph] and
[Tracy] will put into practice the skills they learn during parent
education.
[Joseph] and [Tracy] will complete a mental health and
substance abuse assessment and take the Lifeskills group at
Century Health, or another agency approved service provider.
[Joseph] and [Tracy] will sign all releases with Century Health
and this agency. * * * [Joseph] and [Tracy] will attend all
scheduled appointments, and will follow any and all
recommendations made by the service provider. If any new
concerns arise as a result of mental health, substance abuse or
Lifeskills group, (sic) case plan will be amended to reflect these
issues and family members will comply with any further services
that may be needed.
Foster parents will ensure that [Jo.S. and Ja.S.] are assessed by
Wood County Help Me Grow and follow through will (sic) all
recommendations. * * *
Foster parents will ensure children’s medical care is adequate
with checkups as required and all immunizations are kept up to
date. * * *
[Joseph] will receive Anger Management Counseling through
Century Health, or another agency approved by provider and
[Joseph] will disclose any information to counselor regarding
violence in his past so that this may be addressed in counseling. *
* * [Joseph] will attend all appointments, and follow all service
provider recommendations.
CPSU Exhibit 16. The plan also outlined a visitation schedule. Initially, Joseph’s
and Tracy’s visitation with the children was limited to supervised visitation at a
designated agency. Based on Joseph’s and Tracy’s progress with their respective
objectives, visitation could progress to off-site and unsupervised visitation.
{¶9} In November 2010, CPSU filed a motion for permanent custody of the
children pursuant to R.C. 2151.353, R.C. 2151.413, and R.C. 2151.414 on the
basis that it was in the children’s best interest, and that the children could not be
placed with either parent within a reasonable time and should not be placed with
either parent. Specifically, CPSU stated that the children cannot and should not be
placed with either Joseph or Tracy based on the following:
Following the placement of the child[ren] outside the child[ren’s]
home and notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parent to remedy the problems
that initially caused the child[ren] to be placed outside the
child[ren’s] home, the parents have failed continuously and
repeatedly to substantially remedy the conditions causing the
child[ren] to be placed outside the child[ren’s] home; or
Chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the
parent that is so severe that it makes the parent unable to
provide an adequate permanent home for the child[ren] at the
present time and, as anticipated, within one year after the court
holds the hearing in this matter; or
The parents have demonstrated a lack of commitment toward
the child[ren] by failing to regularly support, visit or
communicate with the child[ren] when able to do so, or by other
actions showing unwillingness to provide an adequate
permanent home for the child[ren].
CPSU’s Motion for Permanent Custody, p. 2.
{¶10} In April 2011, the trial court held a dispositional hearing on CPSU’s
motion for permanent custody, during which the following testimony and evidence
was adduced.
{¶11} Karmen Lauth (hereinafter “Lauth”), a caseworker with CPSU,
testified that she had been assigned to the children’s case since its inception in
December 2009; that on December 14, 2009, Tracy brought Jo.S. to Blanchard
Valley Hospital with a fever and a red, swollen left eye; that a CAT scan of Jo.S.’s
eye revealed that his left orbital bone was fractured; that Tracy explained that
Ja.S., who was one-year old at the time, threw a “sippy cup” at Jo.S.’s eye, causing
the injury (Hearing Tr., p. 33); that the examining physician determined that a one-
year old could not generate the force necessary to fracture Jo.S.’s orbital bone, but
rather the injury was the result of blunt force trauma and consistent with child
abuse (CPSU Exhibit 5); and, that the incident formed the initial basis for
removing the children from Joseph’s and Tracy’s custody.
{¶12} Lauth testified that Jo.S. and Ja.S. were initially placed in Garcia’s
temporary custody; that, based on her observations, she determined that Tracy had
unsupervised custody of the children and that Garcia did not take Jo.S. to a
doctor’s appointment for his injured eye; that based on these incidents she felt that
the children’s safety was at risk in Garcia’s custody, causing CPSU to request and
receive temporary custody of the children. Lauth further testified that CPSU
considered placing the children with their paternal aunt, Emily Danner (hereinafter
“Danner”); that CPSU conducted a home study of Danner’s residence in October
2010; and, that CPSU determined that Danner would not be a suitable placement
for the children.
{¶13} Lauth testified that she met with Joseph and Tracy in January 2010 to
develop a case plan; that during the meeting she identified several areas of
concern, i.e. “reasons for removal,” and developed a plan to address those
concerns (Hearing Tr., p. 68); that those concerns included Joseph’s and Tracy’s
parenting skills, Joseph’s and Tracy’s mental health, substance abuse issues, and
life skills, and Joseph’s anger management (CPSU Exhibit 16, pp. 2, 3, 6); that
Joseph and Tracy were in complete agreement with all aspects of the plan; that she
met with Joseph and Tracy on a monthly basis to review their progress with the
plan’s objectives; that the meetings were initially held either at Tracy’s residence
or CPSU’s office; that during two meetings at Tracy’s residence it appeared as
though Joseph was residing at Tracy’s residence; that beginning in September
2010, she no longer met with Joseph and Tracy outside CPSU’s office as a result
of threats Joseph lodged against her during a counseling session held that month at
Pathways;2 and, that she continued to hold monthly meetings with Joseph and
Tracy at CPSU’s office until the permanent custody hearing.3
{¶14} Lauth testified that the case plan contained five objectives and a
visitation plan; that the plan’s first objective required Joseph and Tracy to attend
parent education classes and filial play therapy at the Family Resource Center; that
2
Pathways provides treatment for individuals suffering from mental health and substance abuse issues.
Hearing Tr., p. 179.
3
Joseph, for reasons unknown, did not attend several of the monthly meetings.
neither Joseph nor Tracy completed this objective because they were
administratively discharged due to a lack of attendance; that the plan’s second
objective required Joseph and Tracy to complete a mental health and substance
abuse assessment and take a life skills group at Century Health; that Tracy
completed all of the required counseling at Century Health; that, despite
completing the counseling associated with the plan’s second objective, Tracy did
not complete the objective because she failed to demonstrate any progress in her
treatment; that Joseph was transferred to Pathways in August 2010, after he
informed her (Lauth) that he would be more comfortable at Pathways; that on
September 7, 2010, during a group counseling session at Pathways, Joseph lodged
threats against her (Lauth) and a counselor; that Joseph was charged with
menacing as a result of the incident and entered a plea of guilty to the amended
charge of persistent disorderly conduct (CPSU Exhibit 14); that Joseph was
administratively discharged from Pathways as a result the incident; that Joseph
failed to complete the plan’s second objective; that the fifth objective required
Joseph to attend anger management counseling at Century Health; that Joseph did
not attend anger management counseling and did not complete the plan’s fifth
objective; that Joseph and Tracy regularly visited the children at Harmony House
for supervised visitation; and, that visitation did not progress from supervised to
unsupervised visitation due to Joseph’s and Tracy’s failure to demonstrate
progress in any of their assigned objectives.
{¶15} Lauth testified that the plan’s third objective required the children to
be assessed for developmental delays; that the plan’s third objective was
completed; that the plan’s fourth objective required the foster parents to ensure the
children attend all necessary medical appointments and receive their
immunizations; and, that the plan’s fourth objective was completed.
{¶16} Lauth testified that since January 2010, the extent of Joseph’s and
Tracy’s relationship with their children has been their two-hour supervised
visitation, which occurred twice every week; that the children had been removed
from the first foster care home due to safety concerns and placed in a second foster
care home, where the children currently reside; that the children recognize their
current foster parents as their primary caregivers, and that they go to them for
comfort, affection, and nurturing; and, that the children’s current foster parents
would not become an adoptive placement.
{¶17} Lauth testified that Joseph and Tracy are unable to provide the
children with an adequate, permanent home now or in the near future; that her
conclusion is based on Jo.S.’s injury, the parents respective mental health and
substance abuse issues, and the parents failure to demonstrate any progress in their
respective treatments; that an extension of the plan would not bring Joseph or
Tracy closer to reunification with their children; that CPSU would have
considered extending the case plan had the parents received some favorable
reports concerning their respective treatments; that, in her opinion, the trial court
should terminate Joseph’s and Tracy’s parental rights and grant CPSU permanent
custody of the children; that adoption would positively benefit the children; and,
that it is “almost certain” that both children would be adopted. Hearing Tr., p.
117.
{¶18} Jennifer Schmidt (hereinafter “Schmidt”), a counselor at Pathways,
testified that Joseph was referred to Pathways in August 2010; that Pathway’s
conducted a mental health and substance abuse assessment of Joseph; that Joseph
was diagnosed with cannabis dependence and antisocial personality disorder; that
Joseph admitted to using cannabis during counseling but would minimize its
effects; that on September 7, 2010, during a group counseling session, Joseph
explained the benefits of cannabis, in particular, that it “helped him from bashing
the face in of his caseworker and it helped him control his anger” (Hearing Tr., p.
189); that she asked Joseph to leave the counseling session due to his
unwillingness to speak negatively about cannabis; that Joseph began yelling at
those in attendance and lodging threats against her; that she feared for her safety
after the incident and filed a complaint with law enforcement; that Joseph was
administratively discharged from Pathways as a result of the incident; and, that she
has had no further contact with Joseph since the incident.
{¶19} Robin Brown (hereinafter “Brown”), a mental health and substance
abuse counselor at Century Health, testified that she worked with Joseph and
Tracy; that in February 2010, Century Health conducted a mental health and
substance abuse assessment of Joseph; that Joseph tested positive for cannabis,
and was diagnosed with cannabis dependence and intermittent explosive disorder
(hereinafter “IED”); that an individual with IED has difficulty controlling his or
her temper; that Joseph acknowledged that he had issues controlling his anger; that
Joseph was administratively discharged from Century Health in July 2010, after
Joseph repeatedly failed to attend required counseling; that in December 2010,
Century Health reopened Joseph’s case; that Joseph, again, tested positive for
cannabis; that since Joseph’s case was reopened he has repeatedly failed to attend
counseling; and, that Joseph’s case with Century Health remains open.
{¶20} Brown testified that in February 2010, Century Health conducted a
mental health and substance abuse assessment of Tracy; that Tracy was diagnosed
with a dependent personality and adjustment disorder with depressed moods; that
an individual with adjustment disorder with depressed moods has difficulty
adjusting to certain situations, causing the individual to be depressed; that an
individual with a dependent personality relies on someone else to make his or her
decisions to a point where he or she cannot separate from the individual on whom
he or she relies; that, in her opinion, it is troubling that Tracy, an individual with a
dependent personality, is in a relationship with Joseph, an individual with IED;
that based on her diagnosis Tracy was referred to the Family Addictions Program;4
that Tracy discussed setting boundaries between her and Joseph, but never
demonstrated any attempts to implement those boundaries; that Tracy made
excuses for Joseph’s cannabis use, explaining that Joseph needed cannabis to
4
Lauth testified that the Family Addictions Program “is designed to help family members who have
members in their family who have an addiction problem, understand the addiction, be able to set limits for
that person, and to help them recognize substance abuse, and how it affects the family and the children.”
Hearing Tr., p. 50.
control his anger (Hearing Tr., p. 226); that Tracy attended all of the required
counseling, and had attained “maximum benefit” (Hearing Tr., pp. 227-28); and,
that despite attending all of the required counseling Tracy made no progress in
remedying her dependent personality.
{¶21} Kari Kessler (hereinafter “Kessler”), an outreach case manager at
Open Arms Domestic Violence and Rape Crisis Services (hereinafter “Open
Arms”), testified that Tracy was referred to Open Arms in July 2010; that Tracy
was enrolled in a victim support group; that Tracy attended all of the support
group’s sessions; that Tracy acknowledged that she was a victim of domestic
violence, but would only concede that verbal abuse was the extent of Joseph’s
violence; that Tracy often minimized Joseph’s abuse; that it was her understanding
that Joseph and Tracy were still in a relationship; that she fears for Tracy’s safety
based on the information she learned during counseling; and, that despite Tracy’s
completion of the counseling, Tracy made no progress in her treatment.
{¶22} After Kessler’s testimony CPSU rested. Joseph and Tracy did not
testify or call any witnesses.
{¶23} Kelly testified that he served as the children’s GAL from January
2010 until the present; that he had prepared a report outlining his findings and
recommendations; that the report was based on his interaction with the children,
reports from the various providers associated with the case (i.e., Century Health,
Pathways, Family Resource Center, Open Arms), the foster care agency, and his
interaction with Joseph and Tracy; that based on these interactions, he
recommended that the trial court grant CPSU permanent custody of the children;
and, that he would be opposed to a six-month extension because it was not in the
children’s best interest. Additionally, Kelly’s report included a section entitled
“Wishes of the Children,” stating, in pertinent part, that “[b]oth children appear to
be bonded to the foster care family members.” CASA Exhibit A, Report and
Recommendations of CASA/GAL, p. 6.
{¶24} Thereafter, the trial court granted CPSU permanent custody of the
children. In doing so, the trial court found, by clear and convincing evidence, that
the children could not be placed with Joseph or Tracy within a reasonable time nor
should the children be placed with Joseph and Tracy; and, that placement in
CPSU’s permanent custody is in the children’s best interest, pursuant to the factors
enumerated in R.C. 2151.414(D)(1).
{¶25} It is from these judgments Joseph and Tracy file separate appeals,
presenting the following assignments of error for our review.
Joseph’s Assignments of Error
Assignment of Error No. I
THE HANCOCK COUNTY JOB AND FAMILY SERVICES
FAILED ITS DUTY TO USE REASONABLE CASE
PLANNING AND DILIGENT EFFORTS AT
REUNIFICATION WITH THE PARENT.
Assignment of Error No. II
THE TRIAL COURT’S DECISION TO TERMINATE THE
APPELLANT’S PARENTAL RIGHTS AND GRANT
PERMANENT CUSTODY TO THE DEPARTMENT IS
AGAINST THE MANIFEST WEIGHT OT THE EVIDENCE.
Assignment of Error No. III
THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY FOR THE CHILDREN BECAUSE IT WAS NOT
IN THEIR BEST INTEREST.
Assignment of Error No. IV
CPSU DID NOT HAVE (SIC) MAKE A GOOD FAITH
EFFORT TO REUNIFY THE APPELLANT WITH HIS
CHILDREN.
Tracy’s Assignments of Error
Assignment of Error No. I
THE JUDGMENT OF THE TRIAL COURT TO GRANT
HANCOCK COUNTY JOB AND FAMILY SERVICES
PERMANENT CUSTODY WAS CONTRARY TO THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. II
THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY FOR THE CHILDREN BY FINDING THAT THEY
COULD NOT BE PLACED WITH EITHER PARENT
WITHIN A REASONABLE TIME AND THAT IT WAS IN
THEIR BEST INTEREST.
Assignment of Error No. III
THE HANCOCK COUNTY JOB AND FAMILY SERVICES
FAILED ITS DUTY TO USE REASONABLE CASE
PLANNING AND DILIGENT EFFORTS TO ACHIEVE
REUNIFICATION WITH THE PARENT.
{¶26} Due to the nature of Joseph’s and Tracy’s assignments of error, we
elect to address whether CPSU made reasonable efforts to reunite the children
with Joseph and Tracy first. Next, we will address whether the trial court’s
decision was against the manifest weight of the evidence, and whether the trial
court’s decision was in the children’s best interest.
CPSU’s Efforts to Reunite the Children with their Parents
{¶27} In Joseph’s first and Tracy’s third assignments of error, they
similarly contend that CPSU did not make reasonable efforts to reunite them with
their children.5 Specifically, both parents contend that the plan’s objectives were
not designed to remedy the reasons for which the children were removed; and, that
CPSU did not give them a reasonable opportunity to complete the plan’s
objectives. In addition to the foregoing contentions, Joseph contends that CPSU
did not accommodate him or amend the plan when he failed to meet the plan’s
objectives, while Tracy contends that CPSU’s expectation concerning the level of
improvement she had to demonstrate before she completed the plan’s objectives
was unreasonable. Based on the following, we disagree with each of the foregoing
contentions.
Law
{¶28} “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 (1994), 98 Ohio App.3d 337, 344.
5
Due to the similarity between Joseph’s first and fourth assignments of error, we elect to address them
together.
“The agency bears the burden of showing that it made such reasonable efforts.” In
re Sorg, 2002-Ohio-2725, at ¶13, citing R.C. 2151.419(A)(1).
{¶29} “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, 2001-Ohio-2302, *3. 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
{¶30} Both parents contend that the case plan’s objectives were not
designed to remedy the reasons for which the children were removed. However,
Lauth testified that Joseph and Tracy were in complete agreement with every
aspect of the plan, which identified the reasons for removing the children from the
parents’ custody, as well as the means by which the parents could remedy the
reasons for removal.
{¶31} Review of the plan demonstrates that the means prescribed by the
plan to remedy the reasons for removal were reasonably designed to resolve the
issues that precluded reunification.6 The plan’s first objective, which applied to
both parents, identified the need for additional parenting skills. To remedy this
issue Joseph and Tracy were required to attend the Family Resource Center and
follow through with all recommended services including, but not limited to, filial
play therapy, maternal mental health, and promoting first relationships therapy.
The plan’s second objective, which also applied to both parents, identified the
need for a mental health and substance abuse assessment, as well as participation
in a life skills group. To remedy this issue Joseph and Tracy were required to
attend Century Health, which provides treatment for individuals suffering from
mental health and substance abuse issues, and offers a life skills group. The plan’s
fifth objective, which only applied to Joseph, identified the need for anger
management counseling. To remedy this issue Joseph was required to attend
anger management counseling at Century Health.
{¶32} Given the foregoing objectives and the means by which they were to
be achieved, the fact that the parents agreed to every aspect of the plan, and the
counseling and programs to which Joseph and Tracy were referred, we find that
the means prescribed to remedy each of the reasons for removing the children
were reasonably designed to resolve the issues that precluded reunification.
{¶33} In addition to the foregoing contention, Tracy separately contends
that the plan was not developed to address her dependent personality.
6
After thorough review and consideration of the arguments advanced by Joseph and Tracy on appeal, it
appears as though neither parent challenges the reasons for removing the children.
Specifically, Tracy contends that her referral to Open Arms and the Family
Addictions Program bore no relation to treating her dependent personality. First,
this contention does not demonstrate that CPSU failed to diligently pursue the
goals of the case plan, as Century Health, not CPSU, referred Tracy to these
programs. See In re Van Atta, 3d Dist. No. 5-05-03, 2005-Ohio-4182, ¶12.
Furthermore, though it is clear that neither program was specifically developed
with the intention of treating individuals with a dependent personality, Tracy
failed to proffer evidence that participation in these programs confers no benefit to
individuals with a dependent personality. We must be cognizant that Tracy was
referred to the foregoing programs by a mental health professional, Brown, who
testified that the referrals were the direct result of Tracy’s diagnosis.
Consequently, absent evidence challenging the adequacy of Tracy’s course of
treatment, we cannot say that her course of treatment was unreasonable or
otherwise inadequate in treating her dependent personality.
{¶34} Next, both parents contend that CPSU did not give them a reasonable
opportunity to complete the case plan’s objectives. Joseph and Tracy began
working on the plan’s objectives in February 2010. The motion for permanent
custody was filed in November 2010. Accordingly, both parents had roughly ten
months to either complete or demonstrate some progress in completing their
respective objectives.
{¶35} Despite having ten months, Joseph failed to complete or demonstrate
any progress with any of his assigned objectives. This failure was the result of
Joseph’s inaction and behavior, not the lack of opportunity. Specifically, Joseph
failed to complete the plan’s first and fifth objectives due to his lack of attendance,
while he failed to complete the plan’s second objective due to his threatening
behavior. Accordingly, we find that CPSU afforded Joseph a reasonable
opportunity to complete or demonstrate some progress in completing his assigned
objectives.
{¶36} As for Tracy, she too failed to complete her assigned objectives.
Like Joseph, Tracy failed to complete the first objective due to her lack of
attendance. As for the plan’s second objective, Tracy attended all of the required
counseling but demonstrated no progress in remedying her dependent personality.
Had Tracy demonstrated some level of progress, perhaps an extension of time
would have been warranted. However, because Tracy could not demonstrate any
progress after months of counseling it was reasonable for CPSU to conclude that
an extension would have no effect on her ability to complete the second objective.
Accordingly, we find that CPSU afforded Tracy a reasonable opportunity to
complete or demonstrate some progress in completing her assigned objectives.
{¶37} Next, Joseph contends that CPSU made no effort to accommodate
him or amend the case plan. This Court has previously noted that “the Revised
Code only requires that the Agency’s case planning and efforts be reasonable and
diligent under the circumstances of [the case]. The Revised Code does not require
that an Agency walk a parent through every step of the plan; the parent bears some
of the responsibility for accomplishing the objectives of the case plan.” In re S.L.,
3d Dist. Nos. 4-10-09, 4-10-10, 2010-Ohio-6380, ¶56.
{¶38} Joseph’s failure to complete all of his assigned objectives was not the
result of CPSU’s failure to accommodate him or amend the case plan, but rather
was the result of his inaction and behavior. In fact, the record contradicts Joseph’s
contention. Lauth testified that she offered Joseph and Tracy tickets for
transportation to and from counseling. Hearing Tr., pp. 108-09. The record also
reveals that CPSU attempted to accommodate Joseph when it referred him to
Pathways after he informed CPSU that he would be more comfortable at Pathways
instead of Century Health. Despite this accommodation, Joseph was
administratively discharged from Pathways as a result of threatening behavior.
CPSU’s duty to diligently pursue efforts to achieve the case plan’s goals does not
extend to compelling a parent to attend counseling or monitoring the parent’s
behavior. Rather, those responsibilities lie with the parent. Accordingly, a
parent’s failure to attend treatment and control his or her behavior does not render
CPSU’s case planning efforts unreasonable or less than diligent.
{¶39} Finally, Tracy contends that CPSU’s expectation concerning the
level of improvement she had to demonstrate before she completed her assigned
objectives was unreasonable. Whether or not CPSU’s expectation of Tracy was
unreasonable is immaterial, as Tracy, despite having attended all of the counseling
associated with the plan’s second objective, failed to demonstrate any progress.
Absent progress in her treatment, we cannot say that CPSU’s expectation
concerning Tracy’s level of improvement was unreasonable.
{¶40} In light of the foregoing, we find that CPSU made reasonable and
diligent efforts to reunite Joseph and Tracy with their children. Accordingly, we
overrule Joseph’s first and Tracy’s third assignments of error.
Trial Court’s Decision to Grant Permanent Custody to CPSU
{¶41} In Joseph’s and Tracy’s remaining assignments of error, they
contend that the trial court’s decision to grant CPSU permanent custody of the
children was against the manifest weight of the evidence, and that it was not in the
children’s best interest. For the reasons that follow, we disagree.
Standard of Review
{¶42} “It is well recognized that the right to raise a child is an ‘essential’
and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re
Murray (1990), 52 Ohio St.3d 155, 157. Parents have a fundamental liberty
interest in the care, custody, and upbringing of their children. In re Murray, 52
Ohio St.3d at 157; Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388.
However, a 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 (1979), 59
Ohio St.2d 100, 106, quoting In re R.J.C. (Fla.App. 1974), 300 So.2d 54, 58.
{¶43} 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, citing In re Hiatt (1993), 86 Ohio App.3d 716,
725. “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 (1986), 25 Ohio St.3d 101, 104. In addition, 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 (1954), 161 Ohio St. 469, 477, citing Ford v. Osborne (1887), 45 Ohio St.
1. Thus, we are required to determine whether the trial court’s determination was
supported by sufficient credible evidence to satisfy the requisite 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 (1994), 69 Ohio St.3d 83, 85;
see, also, In re Rinaldi, 3d Dist. No. 1-02-74, 2003-Ohio-2562, ¶17. 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 (1983), 5 Ohio St.3d 217, 219.
Law
{¶44} “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. First, the
trial court must determine, by clear and convincing evidence, whether any
conditions 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
pertinent part:
(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.
{¶45} In analyzing the condition found in R.C. 2151.414(B)(1)(a), R.C.
2151.414(E) provides several factors for the trial court to consider. In re
Goodwin, 2008-Ohio-5399, 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 be placed with the parents. Id.; see, also, In re D.M.,
2009-Ohio-4112, at ¶33. The factors enumerated in R.C. 2151.414(E) are, in
pertinent 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.
(2) Chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the
parent that is so severe that it makes the parent unable to
provide an adequate permanent home for the child at the
present time and, as anticipated, within one year after the court
holds the hearing pursuant to division (A) of this section or for
the purposes of division (A)(4) of section 2151.353 of the Revised
Code;
***
(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;
***
(16) Any other factor the court considers relevant.
{¶46} If the condition in R.C. 2151.414(B)(1)(a) is found to be present, the
trial court must address the second prong and determine, by clear and convincing
evidence, whether granting the agency permanent custody is in the child’s best
interest. In re D.M., 2009-Ohio-4112, at ¶33; In re K.H., 3d Dist. No. 5-10-06,
2010-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.
First-Prong of Permanent Custody Analysis
{¶47} In considering the first prong, the trial court found, pursuant to R.C.
2151.414(B)(1)(a), that the children could not be placed with Joseph or Tracy in a
reasonable time and should not be placed with Joseph or Tracy. The trial court
found that many of the factors enumerated in R.C. 2151.414(E)(1-16) had been
proven to exist by clear and convincing evidence.7 In particular, the trial court
found that CPSU had proven the existence of R.C. 2151.414(E)(1) by clear and
convincing evidence. 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.
{¶48} With regard to Joseph, uncontroverted testimony reveals that he
failed to complete his assigned objectives.
{¶49} Lauth testified that Joseph agreed with all aspects of the case plan.
Lauth met, or attempted to meet, with Joseph on a monthly basis to discuss his
progress with his assigned objectives and address any concerns he had in terms of
7
Though the trial court’s judgment entry states that many of the factors in R.C. 2151.414(E)(1-16) were
proven to exist by clear and convincing evidence, it only discussed R.C. 2151.414(E)(1). Because a trial
court need only find that one of the factors in R.C. 2151.414(E) applies, In re D.M., 2009-Ohio-4112, at
¶33, we will focus our discussion on this factor.
completing his assigned objectives. Joseph, however, failed to complete all of his
assigned objectives. Specifically, Joseph failed to complete or attend counseling
associated with the each of his assigned objectives. Lauth further testified that
Joseph routinely visited the children during scheduled supervised visitation, but
explained that visitation did not progress to off-site and unsupervised visitation as
a result of Joseph’s failure to complete or demonstrate any progress in completing
his assigned objectives. Lauth also testified that Joseph was convicted of
persistent disorderly conduct as a result of threatening behavior towards a
counselor at Pathways.
{¶50} Brown testified that Joseph was referred to Century Health in
February 2010. Joseph tested positive for cannabis, and was diagnosed with
cannabis dependence and IED. In response to his diagnosis, Joseph was referred
to individual and group counseling. Eventually, Joseph was administratively
discharged from Century Health due to his repeated failure to attend counseling.
Joseph’s case was, however, reopened at Century Health in December 2010, but
Joseph continued his practice of not attending counseling.
{¶51} Schmidt testified that Joseph was referred to Pathways in August
2010. Joseph was diagnosed with cannabis dependence and antisocial personality
disorder. In response to his diagnosis, Joseph was referred to individual and group
counseling. Joseph’s attendance was intermittent. Schmidt further testified that
during a group counseling session Joseph was asked to discuss the negative
aspects of cannabis. Instead of discussing the negative aspects of cannabis, Joseph
extolled the effects of cannabis, explaining that it “helped him from bashing the
face in of his caseworker and it helped him control his anger.” Hearing Tr., p.
189. As a result of his comments, Schmidt asked Joseph to leave the group, at
which point Joseph hurled expletives at those in attendance and threatened
Schmidt. As a result of Joseph’s violent and threatening behavior he was
administratively discharged from Pathways.
{¶52} Based on the evidence presented, we find that there was clear and
convincing evidence that the children could not be placed with Joseph in a
reasonable time and should not be placed with Joseph. Although Joseph routinely
visited the children during scheduled visitation, the record reveals that he
repeatedly failed to complete his assigned objectives. See In re W.A., 10th Dist.
Nos. 06AP-485, 06AP-486, 2006-Ohio-5750, ¶17 (“Failure to complete significant
aspects of a case plan, despite opportunities to do so, is grounds for terminating
parental rights.”); In re Brofford (1992), 83 Ohio App.3d 869, 878. Given
Joseph’s failure to complete or demonstrate any progress in completing his
assigned objectives, we find that the trial court did not err when it found that the
children could not be placed with Joseph in a reasonable time and should not be
placed with Joseph.
{¶53} As for Tracy, the uncontroverted testimony reveals that she too failed
to complete her assigned objectives.
{¶54} Lauth testified that Tracy agreed with all aspects of the case plan.
Lauth met with Tracy on a monthly basis to discuss her progress with her assigned
objectives and address any concerns she had in terms of completing her assigned
objectives. Tracy, however, failed to complete all of her assigned objectives.
Like Joseph, Tracy failed to complete the first objective due to her lack of
attendance. As for the second objective, Tracy routinely attended required
counseling but demonstrated no progress in her treatment, and consequently did
not complete the second objective. Lauth further testified that Tracy routinely
visited the children during scheduled supervised visitation, but explained that
visitation did not progress to off-site and unsupervised visitation as a result of
Tracy’s failure to complete or demonstrate any progress in completing her
assigned objectives.
{¶55} Brown testified that Tracy was referred to Century Health in
February 2010. Tracy was diagnosed with a dependent personality and adjustment
disorder with depressed moods. In response to her diagnosis, Tracy was referred
to individual and group counseling. Brown was concerned about Tracy’s
relationship with Joseph in light of her dependent personality and his anger
management issues. Tracy discussed setting boundaries between her and Joseph,
but never demonstrated any attempts to implement those boundaries. Instead,
Tracy made excuses for Joseph’s cannabis use, explaining that Joseph needed
cannabis to control his anger. Although Tracy attended all of the required
counseling, Brown testified that Tracy made no progress in remedying her
dependent personality.
{¶56} Kessler testified that Tracy was referred to Open Arms in July 2010.
Tracy acknowledged that she was a victim of domestic violence, but would only
concede that verbal abuse was the extent of Joseph’s violence. In addition, Tracy
routinely minimized Joseph’s abuse. Although Tracy attended all of the support
group’s sessions, Kessler testified that Tracy made no progress in her treatment.
{¶57} Based on the evidence presented, we find that there was clear and
convincing evidence that the children could not be placed with Tracy in a
reasonable time and should not be placed with Tracy. Although Tracy routinely
attended counseling associated with the second objective, the successful
completion of counseling or any other aspect of a case plan is not enough. A
parent can successfully complete the requirements of a case plan, but not
substantially remedy the conditions that caused the children to be removed, as the
case plan is “simply a means to a goal, but not the goal itself.” In re E.S., 8th
Dist. Nos. 95915, 95916, 2011-Ohio-2408, ¶13, quoting In re C. C., 187 Ohio
App.3d 365, 2010-Ohio-780, ¶25. Consequently, the fact that Tracy attended all
of the counseling associated with the second objective is immaterial where the
record demonstrates that Tracy made no progress in remedying the reasons for the
children’s removal. Furthermore, Tracy failed to complete the first objective due
to her lack of attendance. See In re W.A., supra. Given Tracy’s failure to
complete or demonstrate any progress in completing her assigned objectives, we
find that the trial court did not err when it found that the children could not be
placed with Tracy in a reasonable time and should not be placed with Tracy.
Second-Prong of Permanent Custody Analysis
{¶58} In considering the second prong, the trial court found, pursuant to the
factors enumerated in R.C. 2151.414(D)(1), that granting permanent custody to
CPSU was in the children’s best interest. 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.
{¶59} Initially, Tracy contends that the trial court did not explicitly find
that terminating her parental rights was in the children’s best interest. This Court
has held that the trial court must either specifically address each of the best interest
factors in its judgment entry, or otherwise provide some affirmative indication in
the record that it has considered the same. In re D.H., 3d Dist. No. 9-06-57, 2007-
Ohio-1762, ¶21. Here the judgment entry states, in pertinent part:
* * * [T]he court has considered the lack of relationship of the
children with their parents, relatives, foster parents, out-of-
home providers and other people who may significantly affect
the children’s need for legally secure permanent placement, and
the probability that this type of placement cannot be achieved
without granting Permanent Custody to the Hancock County
Job and Family Services-Children’s Protective Services Unit.
The court further has considered the custodial history of the
children along with the wishes of the children, ages 2 and 3, as
expressed to the court by way of recommendation from their
CASA. * * *
Permanent Custody Judgment Entry, p. 3. Having considered the foregoing
language in light of the entire judgment entry, we find that the judgment entry
demonstrates that the trial court considered the factors enumerated in R.C.
2151.414(D)(1) as to Joseph and Tracy.
{¶60} Turning to the best interest factors, the record demonstrates that Jo.S.
and Ja.S. were removed from their parents’ custody in December 2009.8 Jo.S. and
Ja.S. were two months and one-year old, respectively, when they were removed
from their parents’ custody. The children were removed from their parents’
custody as a result of a severe injury to Jo.S.’s eye. Though the cause of the of the
injury was never definitively established, Tracy’s inability to offer a reasonable
explanation as to how the injury occurred combined with the treating physician’s
conclusion that the injury was consistent with child abuse is sufficient for a fact
finder to conclude that the injury was either the result of child abuse or parental
neglect.
{¶61} Since December 2009, the extent of Joseph’s and Tracy’s
relationship and interaction with Jo.S. and Ja.S. has been two-hour supervised
visitation, which occurs twice every week. Joseph and Tracy have routinely
visited the children during scheduled visitation, but have made no progress in
remedying the reasons for which the children were removed, despite having ample
time and opportunity to demonstrate some progress. Meanwhile, the children,
with the assistance of their foster parents, have completed the plan’s third and
fourth objectives. Lauth testified that the children recognize their current foster
parents as their primary caregivers, and that the children go to them for comfort,
affection, and nurturing. Similarly, the GAL’s permanent custody report noted
8
The record contains no evidence of the parents’ relationship or interaction with their children prior to
December 2009.
that the children “appear to be bonded to the foster care family members.” CASA
Exhibit A, Report and Recommendations of CASA/GAL, p. 6. Lauth further
testified that adoption would positively benefit the children, and that it is “almost
certain” that both children would be adopted. Hearing Tr., p. 117.
{¶62} The record further demonstrates that the children are too young to
express their own wishes concerning permanent custody. Consequently, Kelly,
the children’s court appointed GAL, expressed the children’s wishes. In doing so,
Kelly considered his interaction with the children, the foster care agency, the
children’s parents, as well as his review of the reports from the service providers
associated with the case (i.e., Century Health, Pathways, Family Resource Center,
Open Arms). Based on the foregoing, Kelly testified, and his permanent custody
report concluded, that granting CPSU permanent custody would be in the
children’s best interest.
{¶63} Lastly, the record demonstrates that CPSU attempted to place the
children outside the agency. Initially, CPSU attempted to place the children with
their paternal grandmother, Garcia. During the course of Garcia’s temporary
custody, however, there was evidence that Tracy had unsupervised custody of the
children and that Garcia had not taken Jo.S. to a doctor’s appointment for his
injured eye. Consequently, CPSU determined that the children were not safe in
Garcia’s custody, and eventually had them removed. CPSU also conducted a
home study of Joseph’s sister, Danner. Upon completion of the home study,
CPSU determined that Danner would not be a suitable placement for the children.
{¶64} In light of the foregoing, we find that there was clear and convincing
evidence supporting the trial court’s finding that granting CPSU permanent
custody was in the children’s best interest.
{¶65} Accordingly, we find that the trial court’s decision was not against
the manifest weight of the evidence and that the trial court did not abuse its
discretion by granting CPSU permanent custody of the children, as there was clear
and convincing evidence to support its decision.
{¶66} Therefore, we overrule Joseph’s and Tracy’s remaining assignments
of error.
{¶67} Having found no error prejudicial to either Joseph or Tracy herein, in
the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr