In re D.S. , 2015 Ohio 4548 ( 2015 )

[Cite as In re D.S., 2015-Ohio-4548.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
IN THE MATTER OF: : OPINION
D.S., :
DEPENDENT CHILD
: CASE NOS. 2015-T-0062
and 2015-T-0063
Civil Appeals from the Trumbull County Court of Common Pleas, Juvenile Division,
Case No. 2011 CH 00093.
Judgment: Affirmed.
Susan Porter Collins, Trumbull County Children Services Agency, 2282 Reeves Road,
N.E., Warren, OH 44483 (For Plaintiff-Appellee, Trumbull County Children Services
Board).
John H. Chaney, III, Daniel Daniluk, L.L.C., 1129 Niles-Cortland Road, S.E., Warren,
OH 44484 (For Defendant-Appellant, Donald Sims, Sr.).
Gregory J. Wysin, 2037 Brady Lake Road, Kent, OH 44240 (For Defendant-Appellant,
Lameka Hunt McClusky).
Giustina Chinchic, Law Office of Mark Finamore, 285 Seneca Avenue, N.E., Warren,
OH 44481 (Guardian ad litem).
THOMAS R. WRIGHT, J.
{¶1} Appellants, Lameka Hunt McCluskey “mother” and Donald Sims, Sr.
“father,” are the biological parents of D.S. Mother and father separately appeal the
decision of the Trumbull County Court of Common Pleas, Juvenile Division, that
permanently terminates their parental rights with respect to their son, D.S., and awards
his permanent custody to the Trumbull County Children Services Board (“TCCSB” or
“the agency”) for adoption planning and placement under R.C. 2151.414. We
consolidated their appeals. Appellants argue that the trial court’s decision was against
the manifest weight of the evidence; that the TCCSB did not engage in reasonable case
planning efforts or attempt to remedy mother’s problems that led to D.S.’s displacement;
and that the trial court erred in not granting father’s motion to continue the custody
hearing. For the following reasons, we affirm the decision of the juvenile court.
{¶2} On December 19, 2011 at approximately 10 p.m., the Warren City Police
Department removed five-year-old D.S. from the home of his paternal grandmother.
D.S. had been in the care and custody of his grandmother pursuant to a power of
attorney because his father was incarcerated since 2008 and his mother lived in
Georgia. Someone had notified the agency that D.S.’s grandmother had drug issues.
She consented to testing and tested positive for cocaine.
{¶3} Accordingly, the agency filed a complaint requesting temporary custody of
D.S., born August 21, 2006, or temporary custody to another appropriate person. The
agency likewise filed an emergency ex parte motion for temporary custody pending the
disposition of its complaint. D.S. was placed in emergency temporary custody on
December 20, 2011.
{¶4} The trial court ordered TCCSB to initiate a home study request of the
mother’s home in Georgia pursuant to the Interstate Compact for the Placement of
Children “ICPC.” She subsequently moved the court to return legal custody of D.S. to
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her or to place him in her care. The trial court adjudicated D.S. a dependent child and
placed him in the temporary custody of TCCSB on February 17, 2012. During this
period, mother exercised weekly telephone visits with D.S. The phone visits were
temporarily suspended for two months as a result of her failure to follow the rules and
as a result of her threats toward TCCSB staff.
{¶5} Father was released from prison in August of 2012. His case plan was
modified and he had weekly visits with D.S.
{¶6} The agency moved for permanent custody of D.S. on April 1, 2013, which
was subsequently dismissed in light of father’s efforts toward reunification. The court
extended the agency’s temporary custody for six months and set the permanent
custody trial in June 2013. Although Georgia had received TCCSB’s second request for
placement of D.S. in Georgia, the TCCSB still never received an approval or denial of
mother’s home for placement.
{¶7} On October 17, 2013, the trial court granted mother and father’s motions
to continue the permanent custody hearing in order to allow them both to complete their
respective case plans. Mother was still residing in Georgia at the time and was visiting
with D.S. via weekly telephone calls. The court explained that it was still awaiting
affirmation from the State of Georgia relative to its request for its approval of the
mother’s home in Georgia before it could send D.S. to Georgia to live with her. Father
was present at the hearing and acknowledged what was required of him in order to
satisfy his son’s desire to be returned to him:
{¶8} “THE COURT: * * * you’ve signed, you’ve agreed – are you going to make
this happen for little [D.S.]? * * *
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{¶9} “[FATHER]: Yes, sir.
{¶10} “THE COURT: Do you understand the consequences if you miss one of
these [case plan requirements]?
{¶11} “* * *
{¶12} “THE COURT: What’s the consequences?
{¶13} “[Father]: I can lose my son.”
{¶14} As of the December 3, 2013 hearing, the court noted that neither parent
was a viable option for placing D.S. Georgia had not approved mother’s home for
placement, and father’s home failed to satisfy the minimum standards. The agency
renewed its motion for permanent custody of D.S. in September 2013. Mother
subsequently relocated to Trumbull County, Ohio with her two other sons. TCCSB
created an amended case plan in response to her relocation.
{¶15} D.S. was the subject of an in camera interview on January 30, 2014 during
which it was explained to him that adoption was final and meant that he would not be
able to ever live with either his mom or dad again. Upon being asked if he wanted to be
adopted, he replied no. D.S. was also repeatedly asked if he would rather live with his
mom or his dad. He consistently answered that he wanted to live with his mom and
dad.
{¶16} The trial on the agency’s motion for termination of parental rights was
conducted on March 24, 2014, March 27, 2014, March 28, 2014, April 2, 2014, and
concluded on May 21, 2014. The following testimony was presented.
{¶17} Carmella Hill testified for the agency. Hill is employed by Coleman
Behavioral Health as an Independently Licensed Professional Counselor and acts as
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the director of behavioral health for Coleman. Hill assessed D.S.’s mother in January of
2014 to determine what services, if any, she needed. Mother had recently moved back
to Ohio and wanted to secure housing, to continue her medication regimen, and get her
children returned to her. Mother had previously suffered and was treated for dysthymic
disorder, and Hill diagnosed her with depression. At the time of her assessment,
mother was homeless and living at a mission. Hill recommended counseling and
psychiatric services. Mother thereafter followed Hill’s recommendations and saw a
counselor, psychiatrist, and a nurse practitioner.
{¶18} Jennifer Sheridan also testified for the agency. She is the collection
supervisor for Scotchie & Associates where she conducts and oversees drug screens.
She attempted to screen father on four separate occasions. Once he tested positive for
marijuana and on the other three occasions, he refused to consent to the screening.
{¶19} Sheridan explained that they screened mother three times and she tested
negative two of the three times and positive once for Percocet, which had been
prescribed to her. On another occasion, mother was unable to provide enough of a
specimen to be tested, and mother signed an admission regarding the use of THC on
January 28, 2014.
{¶20} Sonya Thompkins, an outpatient therapist at Valley Counseling, also
testified for the agency. She is a licensed, clinical counsel who primarily works with
children in foster care. She counseled D.S. since October 2013. She describes D.S. as
a funny and loveable boy who is very detached during therapy sessions. He does not
want to discuss his foster care or his emotions. Thompkins believes that D.S. had not
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fully grasped his situation, explaining that he “is holding on and holding out for getting
back home” with his mom and dad.
{¶21} During the first day of trial, March 24, 2014, D.S.’s father was detained by
the Trumbull County Sheriff’s Department in response to a federal warrant for his arrest.
The next day of trial convened and father’s counsel indicated that father was picked up
on a probation violation. As a result, counsel moved the court to continue the duration
of the trial. The trial court denied the motion suggesting that father participate
telephonically. This never occurred. Father was still incarcerated two months later on
the final day of trial.
{¶22} Erica Beil, a substitute care caseworker from the Trumbull County
Children Services, testified. Beil has been D.S.’s caseworker since he entered foster
care more than two years before her testimony. She explained that the agency
obtained custody of D.S. after it was reported that his grandmother was abusing crack
while he was in her care. She tested positive, and D.S. and his cousins were removed
by the Warren City Police. He was adjudicated a dependent in January 2012 and has
been in agency custody since that time.
{¶23} Beil confirmed that case plans were developed for each parent, but that
neither successfully completed their plans. She confirmed that the father has not
secured stable, independent housing; that he never verified sufficient income to support
D.S.; and that he has not consistently visited D.S.
{¶24} Beil confirmed that father was in federal custody for eight months and that
upon his release in August 2012 through the date of her testimony, March 2014, that
father attended a little more than half of his weekly scheduled visits with D.S. Father did
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not visit D.S. at all in February or March of 2014, and he visited with D.S. twice in
January of 2014. At one of the January visits father appeared impaired and was asked
to submit to a drug screening. He refused and became combative. At another January
visit, father refused to submit to a drug screening and then left without visiting.
{¶25} Beil testified that father was to pay $50 per month in child support since
December 2012, but has paid nothing. She likewise confirmed that father previously
had his parental rights terminated regarding his child with another woman based on his
abandonment of that child. However, Beil admitted on cross-examination that the
reasons for the removal of that child were all directly related to the mother’s actions and
that there was no way to confirm whether father had notice of those proceedings since
he apparently lived in Columbus at the time.
{¶26} Beil testified that father’s lack of contact and failure to complete his case
plan display his lack of commitment to D.S. She confirmed that father was not home for
his scheduled home inspection and that he no longer maintains that address as his
residence. When father did finally meet Beil for the postponed home inspection, the
home did not satisfy the issues previously identified as lacking.
{¶27} Beil also confirmed that mother never participated or completed the
interstate home study, which was sent to Georgia twice. Mother then moved to Ohio
with her other two children who are now likewise in the custody of the agency. Mother’s
other children had twice been in agency custody.
{¶28} Upon mother’s relocation to Ohio, she stayed at the father’s house for a
few days with her other two children before moving to a shelter. Mother’s visits with
D.S. have been consistent since her move to Ohio. Her telephone visits during her
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Georgia residency were interrupted for two months when they were suspended as a
result of mother’s “grilling” D.S. on the phone and requests for him to relay messages to
father. Beil described D.S. as having “an incredibly difficult time remaining focused”
during these telephone visits.
{¶29} Upon her return to Ohio, mother and D.S. had weekly, one-hour visits
supervised by camera, but the supervision was escalated when she broke the agency’s
visitation rules. The same day she was given the rules, she violated them by
whispering to D.S. and discussing his father with him. Mother repeatedly told D.S.
about visits with his father that were not scheduled and that never occurred, which
would upset him. Mother also asked repetitive questions of D.S., told him how to act,
and demanded hugs and kisses. At times, D.S. would run from mother, and she would
chase him around the room. Mother was likewise disrespectful to the agency staff,
including Beil, and one of the visits had to end early which resulted in mother refusing to
allow D.S. to leave. Mother has likewise failed to pay any of her child support
payments.
{¶30} D.S. had been in the agency’s custody for two years before the March
2014 permanent custody trial. Before that, he had been in the care of his father and/or
grandmother. D.S. had not lived with his mother for three years when he came into the
agency’s care.
{¶31} Beil confirmed that D.S. has a very loving relationship with his father and
that they interact in an appropriate manner. She described them as having a strong
bond. She explained that D.S. was very upset when his father did not appear for his
scheduled visits. Although father told Beil he had been working, she asked for a
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release to secure his employment records, but father never executed it. She confirmed
on cross-examination that the recent decline in father’s visits could be a result of
father’s frustrations with the process. Beil agreed that father’s inability to afford
appropriate housing and utilities has been an issue. She also agreed that D.S. was
taken while father was in prison and that D.S.’s removal did not directly stem from any
actions by father. Father contacted her upon his release from prison in an effort to get
D.S. returned to him.
{¶32} Beil also noted that father does not have his license to drive an automobile
and that he uses a bicycle for transportation. Father planned to use his own father for
emergency transportation for D.S. to comply with his case plan. Father assisted Beil in
securing his psychological evaluation. Father complied with some of the case plan
requirements, but was still unable to maintain employment, pay child support, and
secure independent housing.
{¶33} As for D.S.’s relationship with his mother, Beil describes him as “hard
pressed by Mom to reciprocate her affections. I’ve witnessed many occasion where
Mom is overly affectionate * * * where [D.S.] is squirming to get away.” Beil explained
that D.S. does not get excited for visits with his mother and he is not upset when they
are over. Beil explained that D.S. was excited to visit with his half siblings, but then they
did not get along well and would argue. D.S. has not lived with his mother since he was
two years old. Mother’s counsel claims that father had hid D.S.’s location from her, but
there was no evidence presented on this issue.
{¶34} Beil confirmed on cross-examination that mother relocated to Ohio in
January of 2014. Beil also confirmed that the failure in securing mother’s home study in
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Georgia was a result of failures at the county level and not based on mother’s
willingness to cooperate. She agreed that mother was “frantic about the process * * *.”
Beil agreed that mother has made “considerable effort to try to reconnect with her child
and develop that bond[.]” Mother brought him clothing and an electric scooter at
Christmas. Beil confirmed that mother asked for photos of her and D.S. every time she
visited with him. She made an unannounced visit to mother’s home one week before
the trial and that based on her cursory review of mother’s home, it appeared
appropriate. Mother’s income in Georgia was via social security in some form. Beil has
not attempted to confirm whether mother has a stable income since her relocation to
Ohio. At the time of her visit to mother’s home, Beil likewise did not attempt to
determine if mother had complied with her newest case plan.
{¶35} No other relatives have come forward and offered to care for D.S. Beil
believes that D.S. is an adoptable child, and she recommends that permanent custody
be granted to the agency. She explained that to her an adoptable child determination
includes the fact that D.S. functions well in a family setting and whether she believes a
family would “come forward” for him. Beil believes that D.S. can bond to an adoptive
family and that he is generally a very friendly, open, and giving child.
{¶36} On cross-examination, Beil agreed that there was not an issue concerning
father and drug testing until the latest motion for permanent custody by the agency.
She also agreed that father consistently “had a roof over his head” since his release
from prison, but the accommodations were consistently too small and did not meet
specific requirements for D.S.’s placement. Father had a difficult time securing a
suitable residence based on his felony background. Beil confirmed that the agency
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even wrote letters to the local Metropolitan Housing Authority in an effort to help father
secure a suitable living space for D.S.
{¶37} At the time of the custody hearing, father was again incarcerated and
mother had two other children in foster care in addition to D.S. D.S. had been in the
agency’s care for more than two years. Father had previously been released from
prison in August of 2012, but was still not in a position to take care of D.S. a year later in
August 2013.
{¶38} Dr. David Chiarella, a pediatric and adolescent psychologist, also testified
and explained the reasoning ability of a typical seven-year-old. He stated that although
a seven-year-old can state his preference regarding custody and visitation issues, he
does not believe that a seven-year-old “has the necessary reasoning ability in order to
understand particularly the potential risks and benefits of those decisions, [or] the
potential consequences of those decisions.”
{¶39} Becky Peters, visitation coordinator and licensed social worker at TCCSB,
also testified. She has supervised and monitored some of D.S.’s visits with his parents.
She described D.S.’s visits with his father as usually calm and affectionate, but on one
occasion, father was agitated and short with D.S. She watched him throw a big, bouncy
ball at D.S.’s head in a “mean way.” Peters then entered the room to watch the visit,
and D.S. and father were coloring. D.S. asked his dad to hang his drawing on his
refrigerator and father told him no because he had too much “junk” on it. Peters
confirmed that father’s visits had become less consistent and that father had not visited
with D.S. at all in February or March of 2014. She described D.S. as very sad and
upset when his father missed a scheduled visit.
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{¶40} Peters explained that mother always came to her visits and was always
very affectionate. She brought D.S. snacks and gifts, and she was interested in his
school work. She described D.S. as becoming “limp” in response to his mother’s
affections. D.S. is more relaxed during his visits with father; whereas he is hyper and
aggressive during mother’s visits. Peters agreed that his mother has made every effort
possible to let D.S. know that she is his mother and that she loves him. However,
Peters also had to speak with mother about violating agency rules. Mother often
whispered during visitation and talked about D.S.’s father, which was upsetting. Mother
also asked D.S. to have a foster parent meet her somewhere for a visit, which was
inappropriate. At another visit, mother made a threat toward D.S.’s foster parents,
which resulted in the agency ending the visit and calling the police.
{¶41} Trudy Seymour, supervisor of substitute care at TCCSB, testified that she
oversaw D.S.’s case plan progress and visitation. Seymour likewise communicated with
parents and counsel regarding D.S.’s case. She oversaw mother’s phone visitation with
D.S. while she lived in Georgia. Mother only missed one phone appointment and she
often included D.S.’s siblings in the calls. Seymour explained that mother would tend to
talk about when D.S. would return home and ask D.S. to relay messages to his father,
which were against agency rules. The State of Georgia never sent the agency an
approval regarding interstate placement of D.S. in mother’s Georgia home. D.S. was in
the agency’s care for 24 months at the time of the hearing, and mother lived in Georgia
for 20 of those 24 months.
{¶42} Upon mother’s return to Ohio, Seymour was involved with her in-person
visits. On one occasion, mother was advised not to discuss father, but she almost
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immediately told D.S. that she was staying with his father and that they wanted him to
come home and be a family. Mother also waited in her car to waive goodbye when D.S.
left with his foster family, which was a safety issue. On another occasion, Seymour said
she had to call the police, but no further details were provided as to why the police were
contacted.
{¶43} Seymour provided mother contact information for the local housing
authority upon her return to Ohio. She also confirmed that mother’s two other children
were in agency care at the time of D.S.’s hearing. Seymour agreed on cross-
examination that the agency had already moved for permanent custody before mother
relocated to Ohio, indicating that D.S. had been in its “care too long and the Agency had
to move forward with best interest and go to permanent custody.”
{¶44} Mother testified, but on cross-examination only. She confirmed that she is
married and her husband is incarcerated in Georgia. She said they plan on moving to
Columbus, Ohio upon his release. She has three children including D.S., who has not
lived with her since he was two. She confirmed that another of her children was in the
care of children services in Franklin County, Ohio and again in Georgia. Both of her
other sons are currently in foster care “by her choice.” She explained that she was
never approved for the interstate placement of D.S. since she could not afford to pay for
the $1,500 psychological evaluation. So, she moved to Ohio in an effort to get D.S.
back.
{¶45} Upon her return and while staying at a shelter for abused women and
children, mother claims that the staff there caused one of her sons to suffer asthma
attacks by making loud noises while he was sleeping. She called for emergency
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medical transportation to the hospital to check her son’s asthma and her blood
pressure. Mother takes Prozac and Vistaril to treat her depression and she was taking
both at the time. She explained that she voluntarily placed her other two sons in foster
care until she is able to secure safe housing for them.
{¶46} D.S.’s guardian ad litem, Tina Chinchic, gave her report at the hearing and
explained that she has been overseeing his best interests since December 2011. D.S.
expressed his desire to live with his father early on. Because his best interests
conflicted with his desires, she secured an attorney to represent him. The GAL
unequivocally concluded that D.S. was in need of permanency and that after 28 months
of agency custody, he needs stability and a “solid game plan for a home and a life.”
She explained how D.S. had thrived with his first foster family and that both of his
parents have issues and cannot provide the stability that he needs. She recommended
that D.S. be permanently placed with the agency to be adopted because that is in his
best interest. The GAL also believes that the agency has made “reasonable efforts by
submitting two interstate compacts” to Georgia; that the agency made “reasonable
efforts” toward assisting the father by providing counseling, evaluations, and
transportation services; and that the agency generally made reasonable efforts to
reunify the family.
{¶47} Seymour was called as a rebuttal witness. She confirmed that mother
completed ten parenting classes during the intermission between trial dates from April
2, 2014 to May 21, 2014. However, the report recommended additional parenting
classes. Mother also attended outpatient counseling during this time and continued to
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visit D.S. regularly during this time. However, Seymour explained that mother still had
not complied with the agency’s visitation rules.
{¶48} The magistrate subsequently issued a ten-page decision on June 4, 2014
that permanently terminated mother and father’s parental rights with respect to D.S.
The decision addressed each best interest factor and found that clear and convincing
evidence warranted that the permanent custody of D.S. be awarded to TCCSB. Both
parents and D.S. filed objections.
{¶49} Notwithstanding the magistrate’s decision and pending objections, the trial
court authorized both mother and father an additional opportunity to submit suitable
home studies. Both failed to do so. The trial court set forth the following in its February
25, 2015 pretrial order:
{¶50} “A pretrial was held this past month to see if there were any new
placement opportunities for either parent. Nothing new was offered at the pretrial, and
the court concludes that Father remains in the care of federal authorities and Mother is
in a shelter. The Court was informed that the father will ‘soon’ be released from federal
control and have [sic] a home for himself and [D.S.] Both parents are physically in
Franklin County, Ohio. Neither can immediately take [D.S.] * * * [A]nd in order to
achieve permanency, the agency * * * must continue to have custody of [D.S.] and the
Father [is] granted until May 11, 2015, at 9 AM to file * * * a Franklin County Homestudy
approving him, his home and those who reside with him, for placement of [D.S.] Upon
failure to do so, the Decision [of the magistrate] will be approved.”
{¶51} Father never complied with this additional opportunity to establish that he
could afford D.S. a suitable home. Thus, on May 11, 2015, the trial court overruled all
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objections, granted permanent custody of D.S. to the agency, and terminated
appellants’ parental rights. Mother and father timely filed their instant appeals.
{¶52} Mother asserts two assigned errors for our review:
{¶53} “The trial court committed reversible error when it found that TCCSB made
reasonable efforts to eliminate the continued removal of D.S. from his home or make it
possible to return into his mother’s legal custody when TCCSB made no request for a
bypass of the requirements of 2151.419(A), and none was granted.
{¶54} “The trial court committed reversible error when it found, against the
manifest weight of the evidence presented at trial that permanent custody was in the
best interest of D.S., and that TCCSB engaged in reasonable case planning and diligent
efforts to assist Ms. McCluskey to remedy the problems that initially caused D.S. to be
placed outside of her home pursuant to R.C. 2151.414(E)(1).”
{¶55} Father asserts two assignments of error on appeal:
{¶56} “The trial court erred by refusing to grant Father’s motion for continuance
of the custody hearing, where the Court was specifically advised regarding the reason
for Father’s absence, and Father had appeared at the previous custody hearing, had
been actively involved in the case, and had outlined his intention to testify at the custody
hearing.
{¶57} “The trial court erred in granting TCCSB’s motion for permanent custody
and terminating Father’s parental rights, where TCCSB failed to establish that
permanent custody was in the best interest of the minor child, D.S. (D.O.B.
08/21/2006).”
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{¶58} Mother first claims that the trial court committed reversible error in finding
that the agency met its burden and made reasonable efforts to reunify D.S. with her.
The agency disagrees explaining that it previously put forth the requisite, reasonable
efforts to reunify D.S. with his mother, but that it did not have to make further,
reasonable efforts to reunify once it filed its motion for permanent custody pursuant to
R.C. 2151.419(A)(1).
{¶59} “When the state intervenes to protect a child’s health or safety, ‘[t]he
state’s efforts to resolve the threat to the child before removing the child or to permit the
child to return home after the threat is removed are called “reasonable efforts.”’”
(Citation omitted.) In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816 ¶29.
Various sections of the Revised Code set forth an agency’s duty to make reasonable
efforts; the concept is not encompassed in a single section. Id.
{¶60} However, the statutory requirement that a court determine whether an
agency has made reasonable efforts to return a child to the parents’ home does not
apply in a permanent custody proceeding. Id at ¶41-42. Instead, the “reasonable
efforts” requirement applies at other, earlier stages of the proceeding. Id.
{¶61} “R.C. 2151.419 does not apply in a hearing on a motion for permanent
custody filed pursuant to R.C. 2151.413 and R.C. 2151.414. * * * [T]his does not mean
that the agency is relieved of the duty to make reasonable efforts.” (Emphasis added.)
In re J.F.F., 5th Dist. Stark No. 2009-CA-00133, 2009-Ohio-4736, at ¶24, citing In re
C.F. at ¶42. Instead, “‘the agency may be required under other statutes to prove that it
has made reasonable efforts toward family reunification.’” Id. However, “[i]f the agency
has not established that reasonable efforts have been made prior to the hearing on a
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motion for permanent custody, then it must demonstrate such efforts at that time.” In re
C.F., supra.
{¶62} In the instant case, the trial court found that the agency made reasonable
efforts to safely return D.S. to his parents on several occasions. On April 9, 2013, the
magistrate’s decision notes that reasonable efforts were made by the agency to make it
possible for D.S. to return home safely. The agency’s efforts included, but were not
limited to, providing crisis intervention, assessment services, placement services, home
evaluations, relative search, and referrals to community resources. This decision
likewise notes that the agency’s interstate compact home evaluation was pending
regarding the mother’s home in Georgia.
{¶63} The magistrate’s November 5, 2012 decision made similar findings,
including that reasonable efforts were made by TCCSB to secure home evaluations,
drug screenings, casework counseling and management, and others in order to make it
possible for D.S. to return home safely. This decision also notes that Georgia denied
the agency’s first interstate home study request since mother’s other two children were
temporarily in foster care in Georgia.
{¶64} The magistrate’s March 15, 2012 decision likewise finds that the agency
made reasonable efforts to return D.S. safely home by providing services including, but
not limited to, placement services, home evaluations, investigative and assessment
services, and others. Both mother and father were appointed counsel on this date, and
the GAL was appointed as well. As TCCSB points out, there were no objections filed in
response to these “reasonable efforts” findings.
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{¶65} Thus, contrary to mother’s claims, the trial court made “reasonable effort”
findings on at least three prior occasions. Further, the magistrate delineated these
reasonable efforts in his June 4, 2014 decision, noting that the reasonable efforts have
been exhausted and neither mother nor father is able to receive custody of D.S.
Furthermore, the evidence reflects that the agency exerted reasonable efforts and
provided services designed to aid both mother and father to remedy their issues in an
effort to return D.S. to them.
{¶66} Encompassed in mother’s first assigned error is her concern that although
the agency developed a later case plan in January of 2014 with a goal of reunification
upon her relocation to Ohio, it did not exert reasonable efforts to implement this
subsequent plan. She claims that although the agency drafted the plan, it had no
intention of fulfilling it and instead focused its efforts on securing D.S.’s permanent
custody with the agency. However, the record reveals that the agency continued to
facilitate mother’s visits with D.S., continued providing mother the requisite
assessments, parenting classes, and other reasonable efforts required of it.
Notwithstanding, and in spite of the agency’s continued efforts, D.S.’s siblings were still
in foster care at the time of the permanent custody trial, and she did not have an
approved placement for D.S.
{¶67} Accordingly, mother’s first assigned error lacks merit and is overruled.
{¶68} Next both mother and father take issue with the trial court’s finding that
permanent custody was in the best interest of D.S. Both raise this alleged error as their
second assigned errors.
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{¶69} Parents have a constitutionally protected and fundamental right in the
care, custody, and management of their children. In re H.D., 10th Dist. Franklin No.
13AP-707, 2014-Ohio-228, ¶10; In re Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169
(1990). However, these rights are not unconditional and are subordinate to the best
interest of the child when considering a motion to terminate parental rights. In re
Cunningham, 59 Ohio St. 2d 100, 106, 391 N.E.2d 1034 (1979). Thus, in certain
circumstances, the state may terminate one’s parental rights when doing so is in the
best interest of the child. Id. at 105.
{¶70} R.C. 2151.413(D)(1) requires an agency with custody of a child for twelve
or more of the prior, consecutive 22 months to file a motion requesting permanent
custody of the child, unless it is not in the best interest of the child, or if the agency has
not made reasonable efforts under R.C. 2151.419 as detailed in the parent’s case plan.
{¶71} R.C. 2151.414 sets forth a two-part test governing whether to award
permanent custody to a public services agency. In re J.S., 8th Dist. Cuyahoga Nos.
101991 and 101992, 2015-Ohio-2701, ¶47. First, after a hearing, the court must find by
clear and convincing evidence that granting permanent custody of the child to the
agency is in the best interest of the child upon considering all relevant factors including
those in R.C. 2151.414(D). Clear and convincing evidence is evidence sufficient to
“produce in the mind of the trier of fact a firm belief or conviction as to the facts sought
to be established.” In re Holcomb, 18 Ohio St. 3d 361, 368, 481 N.E.2d 613 (1985).
The clear and convincing standard does not require clear and unequivocal evidence. In
re Estate of Haynes, 25 Ohio St. 3d 101, 104, 495 N.E.2d 23 (1986). In determining
whether a trial court based its decision upon clear and convincing evidence, a reviewing
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court must examine the record and determine whether the trier of fact had sufficient
evidence before it to satisfy this burden of proof. State v. Schiebel, 55 Ohio St. 3d 71,
74, 564 N.E.2d 54 (1990). The credibility of witnesses and weight of the evidence are
primarily issues for the trial court, as the trier of fact. In re Ohler, 4th Dist. Hocking No.
04CA8, 2005-Ohio-1583, ¶15.
{¶72} Second, a court must make one of the findings delineated in R.C.
2151.414(B)(1)(a)-(e). In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-
3709, ¶10. In practice, however, courts usually make the second finding first before
embarking on the best interest analysis. In re N.T., 11th Dist. Ashtabula No. 2010-A-
0053, 2011-Ohio-650, ¶57. In the instant case, the trial court found that D.S. had been
in the agency’s care for the past 22 consecutive months, consistent with R.C.
2151.414(B)(1)(d). This finding is undisputed.
{¶73} The best interest determination focuses on the child, not the parent. In re
Mayle, 8th Dist. Cuyahoga Nos. 76739 and 77165, 2000 Ohio App. LEXIS 3379, *17-18
(July 27, 2000), citing Miller v. Miller, 37 Ohio St. 3d 71, 74, 523 N.E.2d 846 (1988).
While a trial court is required to consider each relevant factor under R.C.
2151.414(D)(1) in making a permanent custody determination, "'no one factor is given
greater weight than the others pursuant to the statute.'" In re T.H., 8th Dist. Cuyahoga
No. 100852, 2014-Ohio-2985, ¶23, quoting In re Schaefer, 111 Ohio St. 3d 498, 2006-
Ohio-5513, 857 N.E.2d 532, ¶56. And only one of the enumerated factors needs to be
resolved in favor of an award of permanent custody to the agency for the trial court to
terminate parental rights. In re J.S., 2015-Ohio-2701, at ¶51 citing In re Z.T., 8th Dist.
Cuyahoga No. 88009, 2007-Ohio-827, ¶56.
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{¶74} The best interest factors are spelled out in R.C. 2151.414(D)(1), which
states in part:
{¶75} “In determining the best interest of a child at a hearing held pursuant to
division (A) of this section or for the purposes of division (A)(4) or (5) of section
2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall
consider all relevant factors, including, but not limited to, the following:
{¶76} “(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;
{¶77} “(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;
{¶78} “(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;
{¶79} “(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;
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{¶80} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”
{¶81} The relevant factors from (E)(7) to (11) include whether the parents have
had their parental rights involuntarily terminated with respect to a sibling of the child in
issue.
{¶82} In this case, several factors weigh in favor of awarding permanent custody
of D.S. to TCCSB. In overruling objections to the magistrate’s decision, the trial court
concluded that in spite of the agency’s efforts, D.S. had been in its care for more than
three years and that as of June 4, 2014 “the parents had no placement available” for
D.S. It also noted that a subsequent pretrial was held after the trial to see “if there were
any new placement opportunities with either parent. Nothing new was offered at the
pretrial * * *. He is too young to store in foster care. * * * He needs permanency. * * *
He is too young to not have a home and family.”
{¶83} Upon reviewing the record in this case, the trial court had clear and
convincing evidence before it to conclude that it was in D.S.’s best interest to be placed
in permanent custody of TCCSB. D.S. was able to thrive in his stable foster care
environment, but neither his mother nor his father can provide him stability. D.S. has
also demonstrated his ability to strongly bond with his first foster parent.
{¶84} Although D.S. expressed a strong desire to live with his father, and the
two showed a substantial bond to one another, father’s repeated incarceration and bad
decision making has left D.S. without the structured and safe environment he needs.
Father has not been able to provide a legally secure and permanent placement for D.S.
At the time of the magistrate’s decision, D.S. had been in the agency’s care or in foster
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care for 31 months. Further, father previously lost permanent custody of another child
to TCCSB.
{¶85} Father places great emphasis on the fact that he was not the reason for
D.S.’s initial placement in the agency’s care and custody. While his acts did not directly
cause the police to be called and result in D.S.’s placement with the agency, father’s
poor decision making did result in his incarceration, which did directly prevent him from
affording D.S. the permanent and safe living environment that he needs.
{¶86} And although mother has exerted recent efforts in an attempt to secure
D.S.’s placement with her, including relocating to Ohio, she likewise has been unable to
provide a secure and permanent placement for D.S. At the time of the custody hearing,
mother’s two other children were in foster care, and they had previously been in foster
care in Georgia. The evidence did not demonstrate that she could provide D.S. a stable
home. In addition, mother’s income was based on child support for another child and
social security. She testified that she could not afford the move from Georgia to Ohio,
which warranted her voluntary placement of her other two boys in foster care. Mother
likewise did not satisfy her minimum financial support obligations.
{¶87} Further, D.S. did not demonstrate the strong bond with mother that he
showed with his father. D.S. was resistant to his mother’s affections, which was likely a
result of the fact that D.S. had not lived with her since he was two-years-old and the fact
that he only had telephone visits with her for more than a year.
{¶88} Finally, the GAL recommended permanent placement with the agency for
the purpose of pursuing D.S.’s adoption because D.S. needs permanency and neither
of his parents could provide the stability that he needs.
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{¶89} In light of the foregoing, and upon carefully reviewing the record, the
juvenile court’s findings are supported by clear and convincing evidence, were not
against the manifest weight of the evidence, and were within the trial court’s discretion.
The evidence establishes that neither parent can provide the stable home that D.S.
needs and that permanency could not be achieved without granting the agency’s
motion. Thus, both mother and father’s second assignments of error lack merit and are
overruled.
{¶90} As for father’s first assigned error, he claims that the trial court committed
reversible error in not continuing the custody trial in light of his recent incarceration,
inability to participate, and his prior active involvement in the case. We disagree. A trial
court has broad discretion regarding procedural issues, which includes its decision to
grant or deny a continuance. State v. Ahmed, 103 Ohio St. 3d 27, 2004-Ohio-4190, 813
N.E.2d 637, ¶44; State v. Jones, 91 Ohio St. 3d 335, 342, 2001-Ohio-57, 744 N.E.2d
1163 (2001).
{¶91} In this case, the trial had already commenced when father was arrested.
Further, he was represented by counsel who was present for the duration of the
proceedings, and the trial court suggested father appear telephonically.
{¶92} The next day of trial convened and father’s counsel indicated that father
was picked up on a probation violation. As a result, counsel moved the court to
continue the duration of the trial. The trial court denied the motion. Father was still
incarcerated two months later on the final day of trial. On this final day of trial, father’s
counsel moved the court to order the federal facility to transport father to the court to
participate in this final day of trial. The trial court denied the motion explaining that the
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federal facility would not honor this type of state order. The trial court again indicated a
willingness to allow father to participate via conference call, but his counsel indicated
that the federal facility would not facilitate this request.
{¶93} Notwithstanding, father could have submitted his trial testimony via
deposition. In re H.R., 6th Dist. Williams Nos. WM-13-008 and WM-13-009, 2014-Ohio-
635, ¶24-25 (holding in part that it was not error in proceeding with termination of
parental rights hearing since mother, who did not appear out of fear of being arrested on
an unrelated matter, could have submitted her testimony via deposition.)
{¶94} Further, the custody trial had previously been continued to facilitate
father’s efforts to satisfy his case plan requirements, which were still unsatisfied in May
of 2014.
{¶95} Furthermore, father was still incarcerated on February 25, 2015, some
nine months after the trial. Nevertheless, the trial court afforded him another
opportunity to submit an approved home study to enable D.S. to be reunified with him
after his most recent incarceration. Father again failed to comply.
{¶96} Thus, we cannot conclude that the trial court abused its discretion in
denying father’s motion to continue the custody trial. Father has been provided ample
opportunity to establish his ability to provide D.S. with the safe home that D.S. needs,
but he failed to do so. Accordingly, his first assignment of error lacks merit.
{¶97} Based on the foregoing, all of appellants’ assigned errors lack merit, and
the judgment of the Trumbull County Court of Common Pleas, Juvenile Division, is
affirmed.
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