In re V.B.-S. , 2013 Ohio 5448 ( 2013 )

[Cite as In re V.B.-S., 2013-Ohio-5448.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 13AP-478
V.B.-S., : (C.P.C. No. 10JU-08-11756)
(V.B., : (REGULAR CALENDAR)
Appellant). :
_________
D E C I S I O N
Rendered on December 12, 2013
_______
Yeura R. Venters, Public Defender, and John W. Keeling, for
appellant V.B.
Robert J. McClaren, for appellee Franklin County Children
Services.
______
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
DORRIAN, J.
{¶ 1} Appellant, V.B. ("Mother"), appeals from a judgment of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting
permanent custody of her minor child, V.B.-S., to appellee, Franklin County Children
Services ("FCCS"). For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} V.B.-S. was born November 21, 1998, in Mexico. Mother came to the United
States when V.B.-S. was two years of age, and V.B.-S. came to live with her approximately
two years later. The parties have stipulated that V.B.-S.'s father has abandoned the child
and has failed to provide food, clothing, shelter or other basic necessities for the child.
{¶ 3} In May 2010, FCCS became aware of possible physical abuse of V.B.-S. On
May 18, 2010, Mother agreed to the voluntary temporary placement of V.B.-S. with one of
her friends, Maria, and Maria's husband.
No. 13AP-478 2
{¶ 4} On August 24, 2010, FCCS filed a complaint alleging that V.B.-S., who was
then 11 years old, was an abused, neglected or dependent child. In its complaint, FCCS
alleged that, in 2004 and 2009, the agency had substantiated referrals asserting that V.B.-
S. had been neglected and physically abused. It alleged that Mother had inflicted physical
punishment on V.B.-S. by punching him in the face, causing pain, swelling, and
discoloration. V.B.-S. also was observed to have old scars on the top of his head. The
agency further alleged that Mother, V.B.-S., and Mother's three other children had been
living with Maria prior to the punching incident, but Mother and her other children left
Maria's residence after the incident, while V.B.-S. remained in Maria's home. Mother has
repeatedly asserted that her ex-boyfriend, who was the father of two of Mother's other three
children, had inflicted most of the physical abuse on V.B.-S. The record suggests that the
boyfriend was deported as the result of involvement with the criminal justice system.
{¶ 5} On August 27, 2010, the court issued a Juv.R. 13(B)(2)(a) temporary order
giving temporary custody of V.B.-S. to Maria and a temporary order of protective
supervision to FCCS.
{¶ 6} On November 12, 2010, the court adjudicated V.B.-S. to be an abused minor
as defined in R.C. 2151.031(D), a neglected minor as defined in R.C. 2151.03(A)(2), and a
dependent minor as defined in R.C. 2151.04(C). It granted temporary custody to Maria and
entered a protective supervision order to FCCS as authorized by R.C. 2151.353(A)(1).
{¶ 7} FCCS obtained counseling services for V.B.-S., which began in July 2010. In
November 2010, V.B.-S. began counseling sessions with Rebecca Guhl, a licensed family
counselor and professional clinical counselor at The Buckeye Ranch. She remained his
counselor until August 2012.
{¶ 8} The parties have stipulated that, since May 18, 2010, when Mother
voluntarily placed V.B.-S. with Maria, V.B.-S. has resisted visiting with Mother, as
described below.
{¶ 9} In July 2010, V.B.-S. was scheduled to visit Mother after a counseling session
at the The Buckeye Ranch, but when he saw Mother in the lobby he trembled and became
frightened and refused to visit with her. He only visited with his younger siblings.
{¶ 10} On August 9, 2010, V.B.-S. told his caseworker that he did not want to visit
Mother or speak with her on the phone. On October 8, 2010, Maria and her husband found
No. 13AP-478 3
V.B.-S. in bed with a belt around his neck. V.B.-S. was then placed in the intensive care
center at The Buckeye Ranch for a short period of time due to his suicidal ideations.
During October, November, and December 2010, and in February and April, 2011, V.B.-S.
again told his caseworker that he did not want to visit his Mother.
{¶ 11} In May 2011, V.B.-S. once again told his caseworker that he did not want to
visit Mother or even talk to her on the phone. The caseworker assured V.B.-S. that either
she or his counselor would be present during a visit, but V.B.-S. repeated that he did not
want to visit because he was still afraid of Mother. On May 24, 2011, V.B.-S. met with his
siblings, but, when he saw Mother in the lobby, he cowered behind the caseworker.
{¶ 12} On June 23, 2011, Maria told V.B.-S. that she and her husband were
unwilling to proceed with legal custody proceedings. Maria reported that she had told V.B-
S that the court might return him to Mother and that V.B.-S. responded that, "if the court
ordered him to go to his mother, he would run out of the court room and kill himself."
(Joint Stipulation No. 44.)
{¶ 13} On July 8, 2011, FCCS moved the court for an order terminating Maria's
temporary custody of V.B.-S. and awarding temporary custody to FCCS. Also, in July 2011,
counselor Guhl reported in writing that she believed it would be detrimental for V.B.-S. to
visit with Mother.
{¶ 14} In its motion seeking temporary custody, FCCS represented that V.B.-S.
remained fearful of Mother but was receiving counseling and had been prescribed
medication. The agency further reported that V.B.-S. was struggling behaviorally both at
home and at school, and that Maria was no longer willing to have him in her home. V.B.-
S.'s court-ordered guardian ad litem supported the award of temporary custody to FCCS.
On July 28, 2011, the court granted temporary custody of V.B.-S. to FCCS and ordered
FCCS to file an amended case plan. FCCS then placed V.B.-S. in a foster home.
{¶ 15} By August 2011, both V.B.-S. and his foster parents expressed interest in
V.B.-S. being adopted by the foster parents. In the amended case plan, filed September 1,
2011, FCCS addressed the issue of V.B.-S.'s visitation with Mother. The plan contemplated
that V.B.-S. would visit Mother at the agency at least once a week for one hour. The plan
observed, however, that V.B.-S. was extremely fearful of Mother and refused to have any
No. 13AP-478 4
contact with her. In addressing the appropriateness of his placement, FCCS observed that
V.B.-S. visibly shook when discussing the possibility of having contact with his mother.
{¶ 16} On September 16, 2011, a psychologist, Dr. Pawlacrzyk, completed a
psychological examination of V.B.-S. and diagnosed him as suffering from depressive
disorder and oppositional defiant disorder. On December 2, 2011, Dr. Pawlacrzyk, who had
also conducted psychological evaluations of Mother, submitted an addendum to his earlier
report. In it, he expressed his opinion that V.B.-S. should gradually increase the amount of
time spent with his mother in an effort to reunify the family.
{¶ 17} In October 2011, V.B.-S. agreed to visit with Mother for the purpose of
informing her that he wanted to be adopted. The visit took place in an office setting, at
which the caseworker, his foster father, and his counselor were present. Mother was
accompanied by her counselor and an interpreter. The guardian ad litem also attended the
meeting. After the meeting, the caseworker reported that V.B.-S. told Mother that he
wanted to be adopted, was very cold toward her, and barely looked at her. V.B.-S. spoke to
Mother only through his counselor. He did, however, at the end of the visit, hug Mother
and agree to visit her and his siblings the following week.
{¶ 18} A visit did take place the following week, but the caseworker again reported
that V.B.-S. refused to participate unless his foster family, his caseworker, and his
counselor were all in the room. V.B.-S. had very little interaction with Mother or two of his
siblings. However, he did engage with one of the three children and hugged Mother at the
end of the visit. He stated that he wanted to visit the following week as well. The foster
parents, however, reported that V.B.-S. appeared nervous prior to these visits and told
them he only participated in the visits because he did not want to upset Mother. He also
wrote a letter to Mother asking her to "get out of my life."
{¶ 19} In November 2011, FCCS scheduled additional bi-weekly visitations to begin
the week of December 13, 2011. However, V.B.-S. refused to participate in them, and the
parties have stipulated that no visits between V.B.-S. and Mother took place after
December 2011. The parties have further stipulated that, in December 2011, V.B.-S. stated
that he would kill himself if he was forced to go home to Mother. He stated that he had a
plan on how he would accomplish this but would not divulge the plan because he knew he
No. 13AP-478 5
would be prevented from proceeding with his plan. He further stated that he considered
the prior visits to be "good-bye visits" and that he never wanted to see Mother again.
{¶ 20} The parties have stipulated that Mother has completed a majority of her case
plan obligations, including attending and participating in anger management classes,
parenting classes, and individual counseling. However, Mother is unable to complete
family counseling—a requirement of the court-approved case plan—because V.B.-S.'s
counselor determined that it would be inappropriate to require him to participate in family
counseling. The parties have also stipulated that her home is adequate and free of hazards.
In addition, Mother meets the basic needs of her other children in her home.
{¶ 21} On January 30, 2012, FCCS moved the court for an order awarding
permanent custody of V.B.-S., who was then age 13, to FCCS. FCCS alleged that either
V.B.-S. could not be placed with either parent within a reasonable period of time or he
should not be placed with his parents. The agency also alleged that it would be in the best
interest of V.B.-S. for the agency to obtain permanent custody of him.
{¶ 22} On September 24, 2012, FCCS filed an amended motion for permanent
custody. It noted that V.B.-S. had, as of the time of the amended motion, been in the
temporary custody of FCCS for 14 months.
{¶ 23} On September 25, 2012, the guardian ad litem filed a report noting that the
agency "is clearly at an impasse in this case and in order to achieve permanency [it has] no
choice [but] to seek permanent custody." (Sept. 25, 2012 Guardian Ad Litem ("GAL")
report.) The GAL observed that both of V.B.-S's foster parents wanted to adopt him but
were also willing to keep him through a grant of legal custody or through a planned
permanent living arrangement ("PPLA"). The GAL further reported that V.B.-S. had told
him that he did not want to see Mother or his siblings.
{¶ 24} On October 18, 2012, FCCS filed another semi-annual administrative review
("SAR"). It noted that V.B.-S. had made progress in school and was managing his
emotional behaviors. He remained in counseling and "ha[d] made progress in every area
except in his willingness to have contact with his mother." (Oct. 18, 2012 SAR, 3.) The
agency further reported that his psychologist continued to recommend that V.B.-S. not
have any contact with Mother.
No. 13AP-478 6
{¶ 25} On March 19, 2013, the GAL filed another report, observing that, although he
"was initially in favor [of] reunification and believed it was in [V.B.-S.'s] best interest to be
reunited with his Mother," he had come to believe that "reunification cannot take place."
(Mar. 19, 2013 GAL Report, 2.) He noted that V.B.-S.'s psychologist had concluded that it
would not be in the child's best interest to reunify with Mother. The GAL further observed
that the child was in a good placement with caring foster parents. The GAL supported an
award of permanent custody because "at this point in time there is no other alternative.
[V.B.-S.] refuses to visit or see his mother and whether it is justified by past allegations of
abuse, he does seem to have a genuine fear in reunifying with her." (Mar. 19, 2013 GAL
report, 3.)
{¶ 26} On March 19, 2013 the trial court conducted an evidentiary hearing of FCCS's
motion for permanent custody. The court conducted an in camera interview of V.B.-S.,
during which V.B.-S. stated that he did not want to live with Mother.
{¶ 27} At the hearing, counselor Guhl testified that the initial treatment goals of
counseling included decreasing V.B.-S.'s depression and anxiety, helping him to improve
his relationship with Mother, and reducing his negative behaviors. She testified that she
had also counseled Mother and had suggested that Mother write letters to V.B.-S. and send
him photographs to encourage V.B.-S. to enter into a relationship with her. But Guhl also
testified that, in the beginning, V.B.-S. was unwilling to even have phone contact with
Mother. She testified that V.B.-S.was never able to resolve his past trauma with Mother
and would "shut down" whenever she brought up his relationship with Mother.
{¶ 28} After the few visits that did occur, Guhl reported a regression in V.B.-S.'s
behavior. She testified that "Children Services was trying to encourage the visits to keep
going because [V.B.-S.] was a little ambivalent in the visits." (Tr. 46.) But V.B.-S. was angry
after the visits and told the counselor that he had not really wanted to participate in them.
Guhl noted that, on several occasions, V.B.-S. refused to get into the car to go to the
scheduled visits. She testified that he never felt safe during visitations with Mother and was
shy, nervous, and frightened during them. She also reported that V.B.-S. consistently said
he was afraid of Mother, despite the letters and photographs Mother had sent, and stated
he feared that, even if the visitation went well, things would change if he went home. Guhl
described V.B.-S. as a severely traumatized child. She expressed her opinion that Mother
No. 13AP-478 7
was not capable of meeting V.B.-S.'s mental health needs and that Mother had never
acknowledged the extent of the abuse suffered by V.B.-S. The trial court also accepted into
evidence a January 6, 2012 letter from counselor Guhl to FCCS, in which she had again
reiterated that visitation was not in V.B-S.'s best interest.
{¶ 29} FCCS caseworker, Rebecca Van Overloop, also testified at the hearing. She
stated that she had been the family's caseworker since January 31, 2012; she had not
observed a bond between V.B.-S. and Mother during that time; and V.B.-S. had shown no
willingness to reunify with Mother. She felt that V.B.-S. was bonded with his foster
parents.
{¶ 30} In its April 2013 SAR, the agency reported that V.B.-S. remained in
counseling and continued to take medication. V.B.-S. continued to assert that he did not
want to have a relationship with Mother. The agency reported that the child was doing well
in his foster home and was doing better at school, although he had had been diagnosed as
suffering from post-traumatic stress disorder.
{¶ 31} On May 8, 2013, the trial court entered its decision. It accepted the parties'
stipulation that V.B.-S.'s putative father, or fathers, had abandoned the child. The court
found that clear and convincing evidence existed that it was in V.B.-S.'s best interest that
his custody be awarded to FCCS; it would be contrary to his best interest to live with
Mother; V.B.-S. had been in the temporary custody of FCCS for more than 12 months of a
consecutive 22-month period; and FCCS had made reasonable efforts to eliminate the need
for removal of V.B.-S. from Mother's home. The court further found that reasonable efforts
had been made to finalize the permanency plan in effect for V.B.-S.
II. ASSIGNMENTS OF ERROR
{¶ 32} Mother has raised two assignments of error, as follows:
[1.] THE TRIAL COURT ERRED WHEN IT GRANTED THE
MOTION FOR PERMANENT CUSTODY WHEN THE
AGENCY FAILED TO MAKE REASONABLE EFFORTS TO
RETURN THE CHILD TO HIS HOME AND FAILED TO SEEK
ANY MODIFICATION OF THE CASE PLAN REGARDING
THIS REQUIREMENT.
[2.] THE TRIAL COURT ERRED WHEN IT DETERMINED
THAT IT WAS IN THE BEST INTEREST OF THE CHILD TO
No. 13AP-478 8
GRANT PERMANENT CUSTODY WHEN THERE WAS NO
RECENT EVIDENCE THAT AN ADOPTION WAS LIKELY.
III. LEGAL ANALYSIS
A. Legal Framework and Standard of Review
{¶ 33} "The right to parent one's children is a fundamental right." In re C.F., 113
Ohio St. 3d 73, 2007-Ohio-1104,¶ 28, citing Troxel v. Granville, 530 U.S. 57, 66 (2000).
Because that right is an essential and basic civil right "parents must receive every
procedural and substantive protection the law permits." In re D.C., 10th Dist. No. 08AP-
1010, 2009-Ohio-2145, citing In re Hayes, 79 Ohio St. 3d 46, 48, ¶ 8 (1997). However, the
state has broad authority to intervene to protect children from abuse and neglect. In re
C.F. at ¶ 28, citing R.C. 2151.01. An award of permanent custody, which terminates parental
rights, is an "alternative of last resort and is only justified when it is necessary for the
welfare of the children." Id.
{¶ 34} Pursuant to R.C. 2151.414(B)(1), a trial court may grant permanent custody of
a child to an agency if the court determines, by clear and convincing evidence, that: (1) it is
in the best interest of the child; and (2) one of the four factors set forth in R.C.
2151.414(B)(1) applies. The fourth factor described in R.C. 2151.414(B)(1) is that "[t]he
child has been in the temporary custody of one or more public or private children services
agencies for twelve or more months of a consecutive twenty-two-month period." R.C.
2151.414(B)(1)(d).
{¶ 35} In the case before us, the parties have stipulated that V.B.-S. has been in the
custody of FCCS for more than 12 of the last 22 months. Accordingly, because the statutory
factor set forth in R.C. 2151.414(B)(1)(d) had been established, the court was statutorily
authorized to grant FCCS permanent custody of V.B.-S. if clear and convincing evidence
existed that it was in V.B.-S.'s best interest to do so. 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." In re D.C. at ¶ 9, citing In re
Abram, 10th Dist. No. 04AP-220, 2004-Ohio-5435. Clear and convincing evidence does
not mean the evidence must be clear and unequivocal, nor does it require proof beyond a
reasonable doubt. Id.
No. 13AP-478 9
{¶ 36} In determining whether a grant of permanent custody to a public children
services agency is in the child's best interest, the court must consider all relevant factors,
including four that are specifically described in R.C. 2151.414(D)(a) through (d). Stated
generally, those four factors are: (a) consideration of the child's interaction and
interrelationship with other individuals identified in the statute; (b) the child's wishes; (c)
the child's custodial history; and (d) the child's need for a legally secure permanent
placement. Moreover, pursuant to R.C. 2151.414(C), in determining the best interest of a
child, a court "shall not consider the effect the granting of permanent custody to the agency
would have upon any parent of the child." Accord In re G.P., 5th Dist. No. 2013CA00126,
2013-Ohio-4692, ¶ 43, citing In re: Awkal, 95 Ohio App. 3d 309, 315 (8th Dist.1994).
Similarly, R.C. 2151.414(C) prohibits a court from "deny[ing] an agency's motion for
permanent custody solely because the agency failed to implement any particular aspect of
the child's case plan."
{¶ 37} In addition, the Supreme Court of Ohio has determined that a court may not
grant permanent custody of a child to a public children services agency unless the agency
has demonstrated that it has made reasonable efforts to reunite the child with the child's
parent or parents:
[W]e hold that, except for some narrowly defined statutory
exceptions,1 the state must make reasonable efforts to reunify
the family before terminating parental rights. If the agency has
not already proven reasonable efforts, it must do so at the
hearing on a motion for permanent custody. However, the
specific requirement to make reasonable efforts that is set forth
in R.C. 2151.419(A)(1) does not apply in an R.C. 2151.413
motion for permanent custody.
In re C.F. at ¶ 4.
{¶ 38} The Supreme Court in In re C.F. resolved a conflict that had existed in the
courts of appeals on the issue "[w]hether a reasonable-efforts determination is required in
motions for permanent custody filed pursuant to R.C. 2151.413." Id. at ¶ 20. It noted that
1 The Supreme Court identified those exceptions as including cases where the parent from whom the child was
removed has been convicted of or pleaded guilty to certain criminal offenses, has repeatedly withheld medical
treatment or food from the child, has placed the child at substantial risk on more than one occasion because of
alcohol or drug abuse, has abandoned the child, or has had parental rights involuntarily terminated with
respect to a sibling of the child at issue. In re C.F. at ¶ 34.
No. 13AP-478 10
some appellate courts had held that an agency must satisfy the R.C. 2151.419 reasonable-
efforts requirement at the permanent custody hearing, while other courts had held that the
statute does not apply in an R.C. 2151.41 permanent custody hearing. Id. The court looked
to the text of R.C. 2151.419(A)(1) and discerned that the statute applied to hearings held
pursuant to specifically enumerated sections of R.C. Chapter 2151.31 and that, in those
types of statutory hearings, the court is required to "determine whether the * * * agency
* * * has made reasonable efforts to prevent the removal of the child from the child's home,
to eliminate the continued removal of the child from the child's home, or to make it
possible for the child to return safely home." But a permanent custody hearing is not
included in the list of sections enumerated in R.C. 2151.419(A)(1). The Supreme Court
concluded that, "by its terms, R.C. 2151.419 applies only at hearings held pursuant to R.C.
2151.28, 2151.31(E), 2151.314, 2151.33, or 2151.353." Id. at ¶ 41. Accordingly, it found that
R.C. 2151.419 "does not apply in an R.C. 2151.414 permanent-custody hearing." Id. at ¶ 38.
{¶ 39} The Supreme Court, nevertheless, determined that, "[b]ased on the
constitutional implications of terminating parental rights and the importance of requiring
reasonable reunifications efforts that pervades federal and Ohio law, the state must have
made reasonable efforts to reunify the family prior to the termination of parental rights."
Id. at ¶ 21. It reached this conclusion, despite the fact that R.C. 2151.419(A)(1) did not
statutorily require a reasonable-efforts finding at a permanent custody hearing, stating
"[t]his does not mean that the agency is relieved of the duty to make reasonable efforts."
Id. at ¶ 42. Moreover, "[i]f the agency has not established that reasonable efforts have
been made prior to the hearing on a motion for permanent custody then it must
demonstrate such efforts at that time." Accord In re K.L., 10th Dist. No. 13AP-218, 2013-
Ohio-3499, ¶ 39 (quoting In re C.F. and observing that, although "the statute requiring
reasonable efforts does not apply to motions for permanent custody brought pursuant to
R.C. 2151.413, or to hearings held on such motions under R.C. 2151.414, * * * '[t]his does
not mean that the agency is relieved of the duty to make reasonable efforts' * * * [and] 'if
the agency has not established that reasonable efforts have been made prior to the hearing
on a motion for permanent custody, then it must demonstrate such efforts at that time.' ").
In In re C.F., the Supreme Court noted that the record reflected that the trial court had
made reasonable-efforts findings at numerous points during the course of the litigation
No. 13AP-478 11
concerning C.F.'s status as a neglected child. Moreover, the court heard testimony at the
permanent custody hearing that supported the finding that the agency had made
reasonable efforts to reunify the family. The Supreme Court agreed that the agency had
established that it had made reasonable efforts to reunify the family and affirmed the trial
court's grant of permanent custody to the agency.
{¶ 40} Our standard of review of a judgment granting permanent custody of a child
to a public children services agency is well-established. We will not reverse a trial court's
determination in a permanent custody case unless it is against the manifest weight of the
evidence. In re M.E.V., 10th Dist. No. 08AP-1097, 2009-Ohio-2408, ¶ 10, citing In re
Andy–Jones, 10th Dist. No. 03AP–1167, 2004–Ohio–3312, ¶ 28. "Judgments supported by
some competent, credible evidence going to all essential elements of the case are not
against the manifest weight of the evidence." Id. Moreover, we recognize that " '[t]he
discretion which the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, giving the
nature of the proceedings and the impact the court's determination will have on the lives of
the parties concerned.' " In re W.D., 10th Dist. No. 09AP-589, 2009-Ohio-6903, ¶ 34,
quoting In re A.D., 10th Dist. No. 08AP-238, 2008-Ohio-3626, ¶ 8.
B. Reasonable Efforts at Reunification
{¶ 41} In her first assignment of error, Mother argues that the trial court erred in
finding that the agency had made reasonable efforts to reunite V.B.-S. with Mother and
siblings. On review, we therefore determine whether the trial court's determination was
consistent with the manifest weight of the evidence. Although R.C. 2151.419(A)(1) is
inapplicable to permanent custody hearings, the court nevertheless concluded, consistent
with In re C.F., that FCCS "ha[d] made reasonable efforts to prevent or eliminate the need
for removal of [V.B.-S.] from [V.B.-S's] own home." (May 8, 2013 Entry, 15.) We conclude
that the trial court's determination on this issue was not contrary to the manifest weight of
the evidence.
{¶ 42} The term "reasonable efforts" is used to describe the 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.' " In re J.C., 10th Dist. No. 10AP-766, 2011-Ohio-715,
¶ 12, quoting In re C.F. at ¶ 28. In further elucidating the concept of "reasonable efforts" in
No. 13AP-478 12
the context of child protection cases, other Ohio Courts of Appeals have adopted the
premise that a reasonable effort is an "honest, purposeful effort, free of malice and the
design to defraud or to seek an unconscionable advantage." In re Weaver, 79 Ohio App. 3d
59, 66 (12th Dist.1992); In re J.T.-W., 6th Dist. No. L-12-1353, 2013-Ohio-3901, ¶ 45; In re
R.P., 5th Dist. No. 2011AP050024, 2011-Ohio-5378, ¶ 46; In re Bowers, 7th Dist. No. 04
MA 216, 2005-Ohio-4376, ¶ 62; In re A.U., 2d Dist. No. 22287, 2008-Ohio-187, ¶ 27.
{¶ 43} In the case before us, the evidence supports the conclusion that FCCS's
actions were genuine attempts to facilitate a reunification of V.B.-S. with Mother. It
provided ongoing counseling services to both of them. In fact, V.B.-S.'s counselor testified
that FCCS recognized that V.B.-S. had acted somewhat ambivalent during the December
2011 visits that took place and that, as a result, FCCS thereafter encouraged further visits.
But, despite having told Mother that he would meet with her again, V.B.-S. refused to get
into the car to travel to subsequently scheduled visits.
{¶ 44} We have previously recognized that a child's refusal to participate in family
counseling may preclude a parent from successfully satisfying a case plan requirement to
complete family counseling. In re Jenkins, 10th Dist. No. 00AP-1411 (June 28, 2001)
(affirming award of permanent custody of two children to FCCS where the 13-year-old
daughter had consistently refused to do anything with her mother, including family
counseling; and the 10-year-old son had not only physically resisted being transported to
the visits but also suffered adverse physical reactions after the visits). Moreover, V.B.-S.'s
counselor and caseworker both testified that they had repeatedly encouraged V.B.-S. to
participate in family counseling with Mother, but V.B.-S. regressed after the visits with
Mother. His counselor testified that demanding him to participate in additional visits was
likely to negatively impact his mental health and potentially trigger additional post-
traumatic stress and cause him to become suicidal. Here, we find that reasonable efforts at
reunification did not require the agency to force V.B.-S. to participate in parental visits
where he adamantly refused to participate, despite having been encouraged to do so; his
counselor advised against it; and prior visits were followed by adverse behavioral
consequences, including threats of self-harm.
{¶ 45} Furthermore, the trial court concluded on at least two occasions prior to the
hearing on the motion for permanent custody that FCCS had made reasonable efforts to
No. 13AP-478 13
accomplish reunification. After the November 12, 2010, adjudicatory hearing, the court
specifically found that "[c]ontinuation in the child's own home would be contrary to the
child's welfare and that reasonable efforts have been made to prevent or eliminate the
need for removal of [V.B.-S.] from the child's own home." (Emphasis added.) (Nov. 19,
2010 Magistrate's Decision.) The same finding was made by the court on July 28, 2011
when it changed V.B.-S.'s custodial status by terminating Maria's temporary custody and
awarding temporary custody to FCCS. In this order, the magistrate specifically observed
that "[p]lacement and casework services were provided by the Agency to the family of the
child, but the removal of the child from home continues to be necessary because the
circumstances giving rise to the original filing have not been sufficiently alleviated."
(July 28, 2011 Magistrate's Decision.) Moreover, the court in its permanent custody order
also expressly found that "Franklin County Children Services has made reasonable efforts
to prevent or eliminate the need for removal * * * [and that] [r]easonable efforts have also
been made to finalize the permanency plan in effect for the child." (May 8, 2013 Decision,
15.)
{¶ 46} Accordingly, we find that FCCS, both prior to and during the evidentiary
permanent custody hearing, established that it had made reasonable efforts to reunify V.B.-
S. with Mother. Accord In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 40; In re
W.D., 10th Dist. No. 09AP-589, 2009-Ohio-6903, ¶ 6-9; In re J.C. at ¶ 21-22. The court's
repeated findings that FCCS had made reasonable efforts toward reunifying V.B.-S. and
Mother were not contrary to the manifest weight of the evidence.
{¶ 47} Mother further argues that the agency should have moved the court to modify
the case plan in light of V.S-B.'s continued refusal to visit Mother or participate in family
counseling with her. However, we have recognized that, in determining whether FCCS has
failed to make reasonable efforts to reunite a child with the child's parent, " 'the issue is not
whether there was anything more that [the children's services agency] could have done,
but whether the agency's case planning and efforts were reasonable and diligent under the
circumstances of this case.' " (Emphasis added.) In re Ratliff, 10th Dist. No. 04AP-803,
2005-Ohio-1301, quoting In re Leveck, 3d Dist. No. 5-02-52, 2003-Ohio-1269, ¶ 10.
Similarly, other Ohio Courts of Appeals have observed that, "[i]n determining whether the
agency made reasonable efforts to reunify the children with their parents, the issue is not
No. 13AP-478 14
whether the agency could have done more, but whether it did enough to satisfy the
reasonableness standard under the statute." (Emphasis added.) In re Townsend, 4th Dist.
No. 04CA46, 2005-Ohio-2473, ¶ 23. Accord In re J.T.-W. at ¶ 45; In re C.M., 9th Dist.
No. 24380, 2009-Ohio-943, ¶ 21. "Moreover, in making this determination, the health and
safety of the child are paramount and the trial court is not required to deny a motion for
permanent custody 'solely because the agency failed to implement any particular aspect of
the child's case plan.' R.C. 2151.419(A)(1);R.C. 2151.414(C)." In re Townsend at ¶ 23.
{¶ 48} The agency's efforts to reunify V.B.-S. with Mother, although ultimately
unsuccessful, were nevertheless reasonable. We therefore overrule Mother's argument
contending that the trial court should have amended the case plan to require FCCS to make
more effort toward reunification.
C. Alleged Error Relative to Likelihood of Adoption
{¶ 49} In her second assignment of error, Mother argues that the trial court should
not have granted FCCS permanent custody of V.B.-S. because there was no recent evidence
that an adoption was likely.
{¶ 50} Initially, we note that the underlying premise of Mother's argument, i.e., that
there was no recent evidence that V.B.-S was likely to be adopted, is not supported by the
record. The FCCS caseworker was asked at the hearing whether V.B.-S. was in a foster-to-
adopt home and whether the foster parents were interested in adoption. She replied in the
affirmative and stated that the foster parents were "very interested in adoption." ( Tr. 82.)
She described V.B.-S. as being bonded to the foster parents, as well as with the other
children in the home. She testified that V.B.-S. had shown significant improvement since
being placed in the foster home and stated that a grant of permanent custody to FCCS for
the purposes of adoption was the best way to assure that V.B.-S. would be adopted into a
stable permanent home. Her testimony, which was current at the time of the hearing,
suggested that adoption of V.B.-S. was, in fact, likely. Moreover, V.B.-S. himself indicated
to the court during in camera examination that he desired to be adopted by his foster
parents.
{¶ 51} More significantly, however, is the fact that the statutes governing permanent
custody simply do not require an agency to prove that adoption is likely. It is true that the
likelihood that a child will be adopted may be considered in determining the child's best
No. 13AP-478 15
interest. See R.C. 2151.414(D)(1)(d) ("In determining the best interest of a child, * * * the
court shall consider * * * [t]he 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."); In re K.L.; In re K.J.D., 10th Dist. No. 12AP-652, 2013-Ohio-610, ¶ 32. But
the statutes contemplate that all of the statutory best-interest factors must be considered
and, although the likelihood of adoption weighs in favor of such an award, the absence of
that likelihood does not preclude the court from finding that an award of permanent
custody is in the child's best interest.
{¶ 52} This conclusion is consistent with the Supreme Court of Ohio's express
recognition that "while a juvenile court reviewing a motion for permanent custody was at
one time required to consider the child's probability of being adopted, * * * the current
statutory framework does not expressly require the court to consider this information in
making a best-interest determination." In re T.R., 120 Ohio St. 3d 136, 2008-Ohio-5219,
¶ 14. "While it certainly may be helpful for a court to know the agency's adoption plans,
the court is not required to factor adoption possibilities into its analysis, and the agency will
be bound to seek adoption for the child if permanent custody is granted regardless of
whether the plans are filed before the motion is considered." Id. at ¶ 16.
{¶ 53} We therefore overrule Mother's second assignment of error.
IV. CONCLUSION
{¶ 54} For the foregoing reasons, both of Mother's assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch, is affirmed.
Judgment affirmed.
SADLER and McCORMAC, JJ., concur.
McCORMAC, J., retired, of the Tenth Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
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