In re C.B.C. , 2016 Ohio 916 ( 2016 )

[Cite as In re C.B.C., 2016-Ohio-916.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
IN THE MATTER OF: : RELEASED: 3/4/2016
:
C.B.C. : Case Nos. 15CA18
: 15CA19
:
ADJUDICATED NEGLECTED : DECISION AND
AND DEPENDENT CHILD. : JUDGMENT ENTRY
____________________________________________________________
APPEARANCES:
Philip Heald, Ironton, Ohio, for Appellant, MD.
Brian Cremeans, Ironton, Ohio, for Appellant, J.D.C.
Kevin Waldo, Ironton, Ohio, for Appellee.
____________________________________________________________
Harsha, J.
{¶1} In this consolidated appeal M.D. (the child’s mother) and J.D.C. (the
child’s father) contest the trial court’s judgment awarding Lawrence County Children
Services (LCCS) permanent custody of their twelve-year-old child, C.B.C.
{¶2} The parents both assert that the trial court’s judgment is against the
manifest weight of the evidence because LCCS failed to clearly and convincingly prove
that C.B.C. could not be placed with either parent within a reasonable time or should not
be placed with either one, and that permanent custody is in C.B.C.’s best interest.
Because the trial court found that the mother abandoned her child, the evidence clearly
and convincingly shows that C.B.C. could not be placed with her within a reasonable
time or should not be placed with her. The father is serving a five-year prison term with
a scheduled release date in December 2017. Thus the father will not be available to
provide care for C.B.C. until his release from prison in December 2017. His hope for
Lawrence App. Nos. 15CA18 and 15CA19 2
early release is purely speculative. And by the time he is released in December 2017,
the father will have been in prison six and one-half of C.B.C.’s fifteen years of life. The
father’s inability to lead a law-abiding life limits his availability to care for his child.
Consequently, clear and convincing evidence supports the trial court’s finding that
C.B.C. cannot be placed with the father within a reasonable period of time or should not
be placed with him. The parents’ arguments that the evidence fails to support the trial
court’s finding on this issue are meritless.
{¶3} Likewise, clear and convincing evidence supports the court’s finding that
awarding LCCS permanent custody is in C.B.C.’s best interest. C.B.C. does not have a
positive relationship with the mother, who abandoned him and showed no interest in
even visiting with him since LCCS removed him from the home. Until permanent
custody became a reality, C.B.C. consistently stated that he did not want to live with his
mother. Although C.B.C. shares a positive relationship with his father, the father
remains incarcerated, thus limiting any physical interaction with C.B.C. Starting in 2009,
C.B.C. lived with relatives under a safety plan, and upon the father’s 2010 release from
prison, C.B.C. lived with him and sometimes the mother, until the father’s return to
prison in December 2012. From December 2012 through the date of removal, C.B.C.
lived with the mother, who provided abysmal care. Thus C.B.C. has not had a stable
custodial history. Moreover, C.B.C. needs a legally secure permanent placement. The
mother has demonstrated that she will not provide the child with a legally secure
permanent placement. The father claims he wants to provide C.B.C. with a legally
secure permanent placement, but his failure to lead a law-abiding life indicates
otherwise. No other suitable legally secure permanent placement is available.
Lawrence App. Nos. 15CA18 and 15CA19 3
Consequently, clear and convincing evidence supports the trial court’s finding that
awarding LCCS permanent custody is in C.B.C.’s best interest.
{¶4} Both parents also argue that LCCS failed to use reasonable efforts to
reunify them with their child. The mother claims that LCCS did not afford her a
reasonable amount of time to work towards reunification. LCCS offered the mother a
case plan aimed at reunification and attempted to contact her, but she failed to
communicate with LCCS caseworkers, failed to visit C.B.C., and failed to make any
attempt whatsoever to comply with the case plan. The failure here lies with the mother,
not the agency. The father asserts that LCCS failed to use any efforts to reunify him
with C.B.C. However, the father was incarcerated throughout the proceedings and
would continue to be incarcerated for at least eighteen months beyond the date of the
permanent custody hearing. Thus, reunification efforts would not have been reasonable
given the father’s circumstances. The father did not have a home for C.B.C., and LCCS
could have undertaken no effort—reasonable or otherwise—that would have removed
this obstacle. Therefore, the parents’ assertions that LCCS failed to use reasonable
efforts are meritless.
{¶5} The father also argues that LCCS failed to offer him a case plan and to
properly file a case plan, and that neither he nor his attorney agreed to a case plan.
However, the father never objected to the case plan that was incorporated into the
court’s dispositional order. And in fact, the trial court found that his attorney agreed to
the case plan. Therefore, the father forfeited the opportunity to raise alleged case plan
deficiencies on appeal.
Lawrence App. Nos. 15CA18 and 15CA19 4
{¶6} We overrule the parents’ assignments of error and affirm the trial court’s
judgment.
I. FACTS
{¶7} After LCCS received a report that C.B.C. had not seen his mother for ten
days and that he had been staying at a friend’s house, LCCS sought and obtained
emergency custody of him. LCCS subsequently filed a complaint alleging C.B.C. to be
neglected and dependent, and requested temporary custody over him. LCCS alleged
that (1) C.B.C. “has a long history of truancy,” (2) “the child’s mother has a long history
of involvement with [LCCS] as well as a drug addiction,” (3) the child was not properly
supervised in his mother’s home, and (4) the child did not have food in the home.
A. Adjudicatory Hearing
{¶8} At the February 10, 2015 adjudicatory hearing, the mother failed to
appear. LCCS caseworker Dave Carey stated that in late November 2014, he learned
that C.B.C. “had not seen his mother in ten days and that he had been kicked out of the
place he had been staying.” Carey later spoke with the child who informed him that he
saw his mother shooting illegal drugs into her arm, and that his mother and her
boyfriend smoke marijuana. The child further explained that the mother and her friends
“keep him up all night partying and he has trouble even getting up to go to school the
next day.” C.B.C. advised Carey that “there was never any food in the home and that
when he complains [his mother] would just go to the gas station and buy herself a 2-liter
of pop and a bag of chips, and would not get him anything.” Carey further stated that
LCCS has “dealt with [the mother] for years in drug addiction and truancy has always
been an issue in that home.” Carey explained that LCCS has received “all sorts of drug
Lawrence App. Nos. 15CA18 and 15CA19 5
allegation against” the mother and “has had an involvement of a long history with the
mother * * * over the timeframe that C.B.C. has been alive.” Carey testified that the
mother’s problems caused the child to have problems getting to school on time, which
led to a significant amount of truancy and negatively impacted his educational growth.
Carey explained that C.B.C. was two years behind in school, but due to his age, the
school has him one year behind. Carey stated that the mother “was more interested in
whatever drugs she was using [on] a daily basis” and “did not feel it necessary to make
sure [the child] was fed” or that “he went to school.” Carey explained that during the
ten-days C.B.C. had not seen his mother, he stayed at a friend’s house. Cary testified
that since December 1, 2014, he went to the mother’s residence which is across the
street from LCCS’s offices approximately six times, but he was unable to make any
contact with her. Carey stated that the father is incarcerated at present and will
continue to be incarcerated for another year and one-half to two years and, thus, LCCS
was unable to place C.B.C. with his father.
{¶9} Shawn Bailey testified that during the ten days when C.B.C. had not seen
his mother, the child stayed at the house Bailey shared with his fiancée, Tonya Moore,
and Tonya’s son, who is close in age to C.B.C. Bailey explained that C.B.C. stayed with
them on past occasions as well. Bailey testified that he and Moore are willing to
continue caring for C.B.C.
{¶10} After hearing the evidence the court found C.B.C. to be neglected and
dependent and stated, “All prior orders shall remain in effect.” The only prior explicit
custody order was the shelter care order continuing C.B.C. in LCCS’s temporary
custody and finding that LCCS used reasonable efforts. Thus, we presume that the
Lawrence App. Nos. 15CA18 and 15CA19 6
court intended to continue the child in LCCS’s temporary custody following its
adjudication. However, we advise against the use of this language and caution trial
courts to clearly state the result intended so that we are not left to ascertain its decision
by referring to other documents in the record.
B. Dispositional Hearing
{¶11} At the March 3, 2015 dispositional hearing, the mother again failed to
appear. Her attorney stated that his communication attempts with the mother had been
unsuccessful. LCCS’s attorney advised the court that it had been unsuccessful in
obtaining the mother’s agreement to a case plan. LCCS did not “believe that she will
even participate or maker [sic] herself available to sign the document that we propose is
the reunification plan.” LCCS informed the court that it would be seeking permanent
custody. The court rescheduled the dispositional hearing for March 19, 2015.
{¶12} Once again, the mother failed to appear for the March 19, 2015 hearing,
which the court rescheduled for April 9, 2015.
{¶13} The mother did not appear for the April 9, 2015 hearing. The court
nonetheless found that LCCS filed a reunification case plan for the mother, accepted it,
and adopted it as its dispositional order. The court also found “that the Attorneys for the
parents agree on behalf of their clients that the reunification plan should be adopted by
the Court as the dispositional order.” The court additionally noted that the guardian ad
litem objected to the reunification plan and had filed a permanent custody motion.
The case plan that the court incorporated as its dispositional order stated that LCCS
has temporary custody of C.B.C. and that the goal was to reunify him with the mother.
The case plan did not include any provisions regarding the father.
Lawrence App. Nos. 15CA18 and 15CA19 7
{¶14} Although the April 9, 2015 hearing ostensibly was a dispositional hearing,
the record does not contain a transcript of this hearing. Moreover, the court’s April 10,
2015 “dispositional” order did not explicitly choose among the R.C. 2151.353(A)
dispositional alternatives, i.e., protective supervision, temporary custody, legal custody,
permanent custody, planned permanent living arrangement. Instead, the court adopted
LCCS’s case plan as its dispositional order and reiterated, “All prior orders shall remain
in effect.” We again presume that the court meant to continue C.B.C. in LCCS’s
temporary custody. We repeat that a trial court should clearly state its orders so that
the parties and reviewing courts can readily ascertain the court’s decision without
needing to examine other documents in the record. Additionally, we point out that
adopting a case plan is not one of the dispositional alternatives outlined in R.C.
2151.353(A), but R.C. 2151.353(E) does require a trial court to adopt a case plan as
part of its dispositional order. Nevertheless, because none of the parties addressed
these issues, we do not find it necessary to dwell on them. As the Ohio Supreme Court
recently noted:
We “should be hesitant to decide such matters for the reason that justice is far
better served when it has the benefit of briefing, arguing, and lower court
consideration before making a final determination.” Sizemore v. Smith, 6 Ohio
St.3d 330, 332, 453 N.E.2d 632 (1983), fn. 2. To echo the Quarterman court,
“[w]e are not obligated to search the record or formulate legal arguments on
behalf of the parties, because ‘“appellate courts do not sit as self-directed boards
of legal inquiry and research, but [preside] essentially as arbiters of legal
questions presented and argued by the parties before them.”’” Quarterman, ¶19,
quoting State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753,
¶ 78 (O'Donnell, J., concurring in part and dissenting in part), quoting Carducci v.
Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
Risner v. Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St. 3d 278, 2015-
Ohio-3731, 42 N.E.3d 718, ¶28.
Lawrence App. Nos. 15CA18 and 15CA19 8
C. PERMANENT CUSTODY PROCEEDINGS
{¶15} The guardian ad litem filed a motion requesting that the court award LCCS
permanent custody of C.B.C. under R.C. 2151.414(B)(1)(b), or alternatively, R.C.
2151.414(B)(2). The guardian ad litem alleged that in February 2013, the father was
convicted of burglary and sentenced to five years in prison. She further alleged that the
mother has abandoned C.B.C. and has not made any effort to work with LCCS or to
visit the child. After appointing separate counsel for C.B.C., the court ultimately set the
guardian’s motion for a hearing on July 22, 2015.
{¶16} At the start of the permanent custody hearing, LCCS advised the court
that it agreed with the guardian’s permanent custody motion and “wishe[d] to proceed
jointly on the prosecution of that motion.”
1. Educator’s testimony
{¶17} C.B.C.’s educators testified to his poor school attendance record. Kristen
Hunt, his third grade teacher during the 2012-2013 school year, stated that the child
missed 84 days out of approximately 175 and was tardy twelve times. During the first
nine weeks of the second year, when C.B.C. was repeating third grade, he missed thirty
days of school. She stated that his “poor attendance” “led to issues with his education,
getting behind in certain areas because he wasn’t here.” Hunt explained that when
C.B.C. arrived tardy and missed breakfast, he would ask whether he could still have
something to eat. She further testified that C.B.C. often asked if he could see the nurse
so that he could obtain clean clothing.
{¶18} Hunt also stated that the parents did not have any involvement in C.B.C.’s
education—they did not attend parent-teacher conferences nor did they respond to the
Lawrence App. Nos. 15CA18 and 15CA19 9
vast majority of letters or phone calls. Hunt explained that the mother questioned
whether the child needed an Individualized Education Plan, but the school indicated that
C.B.C.’s “failing grades weren’t due to his education and his ability[;] it was due to his
not being in school and missing curriculum.” Hunt testified that C.B.C.’s attendance
record did not improve, even after school officials discussed the issue with the mother.
{¶19} Robert Rowe, the school guidance counselor, stated that C.B.C. started
attending the school in 2008 and poor attendance was a consistent problem. Rowe
stated that during the 2009-2010 school year, his attendance improved. Later testimony
shows that C.B.C. was living with relatives during this time period.
2. Agency employee testimony
{¶20} LCCS caseworker Whitney Reynolds stated she met with the mother in
April 2015 and discussed the case plan and what was expected of her. Reynolds
informed the mother that she needed to go to a certified mental health or alcohol and
drug abuse counseling center, undergo an assessment, and follow any treatment
recommendations. Reynolds set up an appointment and sent the mother a letter
advising her of the time. When Reynolds spoke with the mother by phone, she
acknowledged that she had received the letter. Reynolds testified that the mother did
not, however, attend the appointment. Reynolds explained that she requested drug
screens, but the mother did not complete one until the Friday before the permanent
custody hearing. Reynolds stated that this drug screen revealed the presence of
marijuana and suboxone. Reynolds testified that the father was incarcerated, and
LCCS “won’t do a case plan with someone incarcerated because they can’t work
towards it.” Reynolds stated that she does not believe that C.B.C. can be placed with
Lawrence App. Nos. 15CA18 and 15CA19 10
either parent within a reasonable time. She explained that the mother “has not done
anything toward the case plan and [the father] is incarcerated.”
{¶21} Reynolds stated that C.B.C. informed her that he does not want to live
with his mother, but he would like to be with his father. Reynolds noted: “He was not
happy at [his mother]’s. He said there were times that he didn’t get to eat. He would
have to go to his grandmother’s to eat. They argued all the time.” Reynolds also
testified that C.B.C. indicated he would like to live with his friend’s mother, Tonya
Moore, until his father’s release from prison. Reynolds stated that C.B.C. has a positive
relationship with Moore and her son and has continued visiting them while in LCCS’s
temporary custody. Reynolds further explained that since being placed in LCCS’s
temporary custody, C.B.C. has consistently attended school and his grades have
improved.
{¶22} LCCS social services supervisor Teneka Ferguson testified that the
agency has “a long history with the family” revolving around the mother’s drug use and
the child’s truancy. The first referral involving the mother occurred in July 2002, when
she was pregnant with C.B.C. During Ferguson’s tenure at LCCS, in September 2009,
the agency implemented a safety plan. C.B.C. lived with relatives for approximately one
year as part of that plan, and during this time, his school attendance improved. Upon
the father’s release from a Kentucky prison, C.B.C. lived with him.
{¶23} Ferguson testified that she obtained the father’s prison release information
from the Ohio Department of Corrections and Rehabilitation website, which indicated
that his stated term expires on December 10, 2017 and that he is eligible for judicial
release on December 10, 2016. Ferguson explained that LCCS would be unable to
Lawrence App. Nos. 15CA18 and 15CA19 11
attempt reunification or engage in services such as housing assistance or job seeking
until the father’s release from prison. Ferguson agreed that the father could complete
some parts of a case plan while imprisoned, but the drug counseling in prison “will not
verify the type of treatment” and will not provide certificates. Ferguson stated that upon
the father’s release, LCCS would need to complete a home study of his chosen
residence. She explained that if the father chose to live with his mother, LCCS would
not approve her home as a placement because his mother previously had children
removed from her custody.
{¶24} Ferguson stated that C.B.C. “idolizes” his father and he “constantly strives
to find a way to get out of [the foster home] and to get closer to a way to get to [his
father]. He constantly says to us and to the workers, is there a way that someone could
keep me until my dad gets out of prison. Is there a way for me to go to stay with this
person until my dad gets out of prison?” She explained that C.B.C. has had some
problems in the foster home: “[W]e just had an episode about two weeks ago where
[the child] called [the caseworker] and was saying that he wanted moved and that the
foster parent had pulled him by his hand to tell him to do something and [the
caseworker] went out there along with the foster case manager * * * and it was not
anything abusive, he grabbed hold of his hand to turn him around to face him so that he
could tell him you know to go finish his chores or something like that. * * * * So he is
constantly having turmoil, of I don’t even wanna [sic] call it turmoil, it’s just ups and
downs every day * * * .”
{¶25} Ferguson testified that C.B.C. “rarely talks about” his mother and when
LCCS first filed the complaint, he did not even want to see her. However, Ferguson
Lawrence App. Nos. 15CA18 and 15CA19 12
explained that now C.B.C. would stay with his mother until his father’s release from
prison, if she would receive counseling and treatment.
{¶26} Ferguson indicated that awarding LCCS permanent custody is in C.B.C.’s
best interest. She stated that a temporary custody arrangement pending the father’s
release from prison is not in his best interest. Ferguson explained: “[T]he longer that a
child has to find, what they call now a forever home, or just have a stable home
basically, the harder it is for that child to feel stable and have a feeling of security;” and
“the longer period of time that a child does not know where they will be, what home they
will have, if they’re waiting on someone to be able to take care of them, then that adds
to their own insecurity and just a feeling of instability.” Ferguson additionally explained
that LCCS is trying to find a permanent placement for C.B.C. within a two year
timeframe: “[T]he regulations as the state for children’s services are a two-year plan.
So that two-year plan would run out before [the father’s] possible early release date.
That’s what drives us is trying to find a permanency goal for this child within that two
year frame so yes it would run out before he would be able to start working on a case
plan.”
3. Moore’s testimony
{¶27} Tonya Moore testified that C.B.C. is one of her son’s friends and
frequently visited her home and stayed overnight when he lived with his mother. Since
he was removed from his mother’s custody, C.B.C. still visits but has not been allowed
to stay overnight. LCCS’s counsel asked her whether she has “a desire to get [the
child] in [her] home and raise him?” She stated that she “would take [the child] in a
heartbeat.” Moore stated that she spoke with Reynolds and the guardian ad litem about
Lawrence App. Nos. 15CA18 and 15CA19 13
her desire and that she would consider pursuing obtaining custody “because he seems
fairly happy at my house.” Counsel asked if she would be interested in adopting C.B.C.,
and she stated that she “would really like to talk to [the child] about that and you know I
would like to see what he would want.” The court asked Moore if there was a reason
why she had not filed a motion for custody, and she stated that she did not “have the
financial means to obtain a lawyer to do so.” The guardian ad litem asked Moore
whether she had the financial means to support C.B.C. Moore stated that she does not
have a job but receives child support and food stamps. She testified that she is trying to
find work and her fiancé works.
4. Mother’s testimony
{¶28} Mirabile dictu! The mother appeared and testified. She claimed that in the
days before LCCS obtained emergency custody of C.B.C., she was aware that he went
to stay at Moore’s house and she called Moore’s house to check on C.B.C. She denied
allegations that she lacked food in the home and asserted that C.B.C. always had plenty
to eat. The mother additionally stated that she was attempting to comply with the case
plan, but she did not become aware of its requirements until April 2015. She stated that
she suffers from depression and that she does not have a “good *** relationship” with
caseworker Carey, which hindered her ability to comply with the case plan.
5. Father’s testimony
{¶29} The father testified that the earliest date he could be released from prison
is July 17, 2016. He explained that he previously served eighteen months in a Kentucky
detention center and that when he was released in August 2010, C.B.C. lived with him.
Around the end of 2012 or beginning of 2013, he went back to prison to serve a five
Lawrence App. Nos. 15CA18 and 15CA19 14
year term. The guardian ad litem asked the father why he believed that he would lead a
law-abiding life following his release from prison. He explained: “[I]t’s called live and
learn. That I have. What makes me think that I’m not going to, my little man. I ain’t * * *
got a choice. No matter, no decisions that I make, my choices revolve around my kids.
What I do [a]ffects them.”
6. Court’s decision
{¶30} The trial court awarded LCCS permanent custody of C.B.C. The court
determined that C.B.C. cannot be placed with either parent within a reasonable time or
should not be placed with either parent. The court noted that LCCS developed a plan to
reunify C.B.C. with the mother and that LCCS used reasonable efforts concerning the
mother, but found that further reunification attempts would not be in his best interest.
The court determined that the mother “essentially abandoned the child after the initial
shelter care hearing.” The court noted that the mother did not visit the child and did not
attend any scheduled court proceedings after the shelter care hearing, except for the
July 2015 permanent custody hearing. The court also found that the mother failed to
substantially comply with any aspect of the reunification plan and did not make “any
viable effort toward compliance.” The court observed that LCCS “has had a long history
with the mother regarding this child’s lack of supervision, truancy issues and the
mother’s substance abuse,” yet the mother has not provided an adequate home for the
child “and has failed continuously and repeatedly to remedy the conditions that
ultimately caused the placement of the child outside the home on November 29, 2014.”
{¶31} The court additionally observed that the father has been incarcerated for
approximately four of the past six years and his scheduled release date is December
Lawrence App. Nos. 15CA18 and 15CA19 15
10, 2017. The court recognized that the father is eligible for early release; but
nonetheless, the court found that C.B.C. cannot be placed with the father at the present
time and cannot be placed with him within a reasonable period of time.
{¶32} The court also determined that the parents “have displayed a lack of
commitment to the child’s best interest since 2009 as evidenced by the child’s
excessively poor school attendance, the mother’s failure to address depression and
substance abuse issues, and the father’s decisions regarding criminal behavior.”
{¶33} The court next found that awarding LCCS permanent custody would be in
C.B.C.’s best interest. Addressing C.B.C.’s interactions and interrelationships, the court
noted that the child idolizes his father. The court found, however, that the father “has
not had significant contact with the child for over 2 years and his earliest release on
paper presented to the Court is nearly 17 months away. The father has not had
opportunity to serve as custodial parent during his incarceration.” The court also noted
that when the father was not in prison and apparently had custody, C.B.C.’s school
attendance continued to be poor—he “missed excessive days of school.”
{¶34} The court additionally considered C.B.C.’s wish to live with his father and
for a family friend to assume custody until his father’s release from prison. The court
found, however, that no one else had filed a motion requesting custody of the child.
{¶35} The court next considered C.B.C.’s need for a legally secure permanent
placement and whether that type of placement can be achieved without granting LCCS
permanent custody. The court found that neither parent can provide a stable, secure
environment for him or the supervision necessary to protect his safety. The court thus
determined that neither parent could provide C.B.C. with a legally secure permanent
Lawrence App. Nos. 15CA18 and 15CA19 16
placement. The court therefore determined that awarding LCCS permanent custody is
in C.B.C.’s best interest and terminated the mother’s and the father’s parental rights.
II. ASSIGNMENTS OF ERROR
{¶36} The mother raises one assignment of error:
“THE TRIAL COURT GRANTING PERMANENT CUSTODY [SIC] TO THE
LAWRENCE COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES,
CHILDREN’S SERVICES DIVISION, WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE, AND WAS THEREFORE REVERSIBLE ERROR.”
{¶37} The father raises two assignments of error:
First Assignment of Error:
“THE TRIAL COURT ERRED IN ORDERING PERMANENT CUSTODY TO THE
LAWRENCE COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES,
CHILDREN SERVICES DIVISION, AS SUCH WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
Second Assignment of Error:
“THE TRIAL COURT ERRED IN ORDERING PERMANENT CUSTODY TO THE
LAWRENCE COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES,
CHILDREN SERVICES DIVISION, WHERE THE APPELLANT WAS NOT
OFFERED A REUNIFICATION PLAN AND THE TRIAL COURT ERRED WHEN
IT STATED IN ITS JUDGMENT ENTRY THAT THE PARENT’S ATTORNEYS
AND THE FATHER AGREED TO A REUNIFICATION PLAN RETURNING THE
CHILD TO THE MOTHER’S CUSTODY, DESPITE THE RECORD BEING
Lawrence App. Nos. 15CA18 and 15CA19 17
DEVOID OF ANY REUNIFICATION PLAN BEING ADOPTED BY THE COURT
OR APPROVED BY THE PARTIES.”
III. ANALYSIS
{¶38} The mother argues that the trial court’s decision to award LCCS
permanent custody is against the manifest weight of the evidence because the record
fails to clearly and convincingly show that C.B.C. cannot be placed with either parent
within a reasonable time or should not be placed with either parent. Specifically, she
focuses almost entirely on the court’s decision that placement with the father was
unwarranted. To the extent that the mother presents argument that raise the father’s
rights, we assume without deciding that she has standing to do so. See In re A.M., 4th
Dist. No. 08CA862, 2008-Ohio-4835, ¶1, fn.1. The mother also complains about the
timing of the motion for permanent custody, which was filed only eight months after
LCCS filed its initial request for emergency custody.
{¶39} The father’s two assignments of error overlap with the mother’s. First, he
challenges the court’s findings that C.B.C. cannot be placed with either parent within a
reasonable time or should not be placed with either one, and that permanent custody is
in C.B.C.’s best interest. He contends neither finding is supported by clear and
convincing evidence. The father also argues that the trial court erred by granting LCCS
permanent custody without first requiring LCCS to attempt reunifying him with C.B.C. or
to offer him a case plan, i.e., that his imprisonment should not have served as an
automatic barrier to case planning and reunification efforts.
A. FAILURE TO REQUEST FINDINGS OF FACT AND CONCLUSIONS OF
LAW
Lawrence App. Nos. 15CA18 and 15CA19 18
{¶40} Although the trial court entered some findings of fact and conclusions of
law, the trial court did not cite which specific statutory factors it relied upon to reach its
decision, nor did it correlate its factual findings to the statutory factors. However,
neither parent filed a request for findings of fact and conclusions of law. Civ.R. 52
states: “When questions of fact are tried by a court without a jury, judgment may be
general for the prevailing party unless one of the parties in writing requests otherwise * *
* in which case, the court shall state in writing the conclusions of fact found separately
from the conclusions of law.” Additionally, R.C. 2151.414(C) states: “If the court grants
permanent custody of a child to a movant under this division, the court, upon the
request of any party, shall file a written opinion setting forth its findings of fact and
conclusions of law in relation to the proceeding.” The failure to request findings of fact
and conclusions of law ordinarily results in a forfeiture of the right to challenge the trial
court’s lack of an explicit finding concerning an issue. In re Barnhart, 4th Dist. Athens
No. 02CA20, 2002–Ohio–6023, ¶23, and Wangugi v. Wangugi, 4th Dist. Ross No.
99CA2531, 2000 WL 377971 (Apr. 12, 2000). “‘[W]hen a party does not request that
the trial court make findings of fact and conclusions of law under Civ.R. 52, the
reviewing court will presume that the trial court considered all the factors and all other
relevant facts.’” Id., quoting Fallang v. Fallang, 109 Ohio App. 3d 543, 549, 672 N.E.2d
730 (12th Dist.1996).
{¶41} We have applied this rule to permanent custody cases and have held that
unless a party requests findings of fact and conclusions of law, a trial court need not set
forth specific factual findings regarding each R.C. 2151.414(D) best interest factor. In re
R.S.-G., 4th Dist. Athens No. 15CA2, 2015-Ohio-4245, ¶48; In re N.S.N., 4th Dist.
Lawrence App. Nos. 15CA18 and 15CA19 19
Washington Nos. 15CA6, 15CA7, 15CA8, 15CA9, 2015-Ohio-2486, ¶¶36–37. We
recently concluded that this same analysis applies to R.C. 2151.414(E). In re C.S., 4th
Dist. Athens No. 15CA18, 2015-Ohio-4883, ¶31. Thus, in the absence of a proper
request for findings of fact and conclusions of law, the trial court was not required to set
forth a specific analysis of the R.C. 2151.414(D) or (E) factors. See also In re Burton,
3rd Dist. Mercer No. 10–04–01, 2004–Ohio–4021, ¶¶22–23.
{¶42} Furthermore, in the absence of findings of fact and conclusions of law, we
presume that the trial court applied the law correctly and affirm its judgment if evidence
in the record supports its. Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007–
Ohio–2019, ¶10, citing Allstate Fin. Corp. v. Westfield Serv. Mgt. Co., 62 Ohio App. 3d
657, 577 N.E.2d 383 (12th Dist.1989); accord Yocum v. Means, 2nd Dist. Darke No.
1576, 2002–Ohio–3803, ¶7 (“The lack of findings obviously circumscribes our review * *
*.”). As the court explained in Pettet v. Pettet, 55 Ohio App. 3d 128, 130, 562 N.E.2d
929 (5th Dist.1988):
[W]hen separate facts are not requested by counsel and/or supplied by the court
the challenger is not entitled to be elevated to a position superior to that he would
have enjoyed had he made his request. Thus, if from an examination of the
record as a whole in the trial court there is some evidence from which the court
could have reached the ultimate conclusions of fact which are consistent with [its]
judgment the appellate court is bound to affirm on the weight and sufficiency of
the evidence. The message should be clear: If a party wishes to challenge the *
* * judgment as being against the manifest weight of the evidence he had best
secure separate findings of fact and conclusions of law. Otherwise his already
“uphill” burden of demonstrating error becomes an almost insurmountable
“mountain.”
B. PERMANENT CUSTODY PRINCIPLES
{¶43} Parents have a “fundamental liberty interest” in the care, custody, and
management of their child and an “essential” and “basic civil right” to raise them.
Lawrence App. Nos. 15CA18 and 15CA19 20
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L.Ed .2d 599 (1982); In re
Murray, 52 Ohio St. 3d 155, 156, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio
St.3d 88, 2007–Ohio–1105, 862 N.E.2d 829. A parent’s rights, however, are not
absolute. D.A. at ¶11. Rather, “‘it is plain that the natural rights of a parent * * * are
always subject to the ultimate welfare of the child, which is the pole star or controlling
principle to be observed.’” In re Cunningham, 59 Ohio St. 2d 100, 106, 391 N.E.2d 1034
(1979), quoting In re R.J.C., 300 So. 2d 54, 58 (Fla.App.1974). Thus, the state may
terminate parental rights when a child's best interest demands such termination. D.A. at
¶11.
C. BURDEN OF PROOF & STANDARD OF REVIEW
{¶44} In a permanent custody case clear and convincing evidence must support
the juvenile court’s findings. See In re K.H., 119 Ohio St. 3d 538, 2008–Ohio–4825, 895
N.E.2d 809, ¶43; accord R .C. 2151.414(B)(1). “Clear and convincing evidence” is “that
measure or degree of proof which is more than a mere ‘preponderance of the evidence,’
but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in
criminal cases, and which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.469,
120 N.E.2d 118 (1954), paragraph three of the syllabus; State ex rel. Miller v. Ohio
State Hwy. Patrol, 136 Ohio St. 3d 350, 2013–Ohio–3720, 995 N.E.2d 1175, ¶14.
{¶45} The same standard of review applies to both appeals. “A reviewing court
generally will not disturb a trial court’s permanent custody decision unless the decision
is against the manifest weight of the evidence.” In re R.S., 4th Dist. Highland No.
13CA22, 2013–Ohio–5569, ¶29; accord In re J.V.-M.P., 4th Dist. Washington No.
Lawrence App. Nos. 15CA18 and 15CA19 21
13CA37, 2014–Ohio–486, ¶11. To determine whether a permanent custody decision is
against the manifest weight of the evidence, an appellate court must weigh the evidence
and all reasonable inferences, consider the credibility of the witnesses, and determine
whether in resolving evidentiary conflicts, the trial court clearly lost its way and created
such a manifest miscarriage of justice that the judgment must be reversed and a new
trial ordered. R.S. at ¶30, citing Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–
2179, 972 N.E.2d 517, ¶20.
{¶46} In reviewing the evidence under this standard, we must defer to the trial
court’s credibility determinations because of the presumption in favor of the finder of
fact. Id. at ¶33, citing Eastley at ¶21. Deferring to the trial court on matters of credibility
is “crucial in a child custody case, where there may be much evident in the parties’
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger,
77 Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997); accord In re Christian, 4th Dist.
Athens No. 04CA10, 2004–Ohio–3146, ¶7. As the Ohio Supreme Court explained long-
ago: “In proceedings involving the custody and welfare of children the power of the trial
court to exercise discretion is peculiarly important. The knowledge obtained through
contact with and observation of the parties and through independent investigation can
not be conveyed to a reviewing court by printed record.” Trickey v. Trickey, 158 Ohio
St. 9, 13, 106 N.E.2d 772 (1952). Furthermore, unlike an ordinary civil proceeding in
which a jury has no contact with the parties before a trial, in a permanent custody case
a trial court judge may have significant contact with the parties before permanent
custody is even requested. In re R.S. at ¶34. In such a situation it is reasonable to
presume that the trial court judge had far more opportunities to evaluate the credibility,
Lawrence App. Nos. 15CA18 and 15CA19 22
demeanor, attitude, etc., of the parties than this court ever could from a mere reading of
the permanent custody hearing transcript. Id.
{¶47} “[I]f the children services agency presented competent and credible
evidence upon which the trier of fact reasonably could have formed a firm belief that
permanent custody is warranted, then the court’s decision is not against the manifest
weight of the evidence.” In re R.M., 2013–Ohio–3588, 997 N.E.2d 169, ¶55 (4th Dist.).
Thus, the essential question we must resolve when reviewing a permanent custody
decision under the manifest weight of the evidence standard is whether the greater
amount of competent, credible evidence presented at trial produced in the trier of fact’s
mind a firm belief or conviction that permanent custody was warranted. In re J.H., 4th
Dist. Hocking No. 14CA4, 2014-Ohio-3108, ¶14.
D. STATUTORY FRAMEWORK
{¶48} R.C. 2151.414(B)(1)(a) permits a trial court to grant permanent custody of
a child to a children services agency if the court determines, by clear and convincing
evidence, that the child’s best interest would be served by the award of permanent
custody and that “[t]he child is not abandoned or orphaned * * * * 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.” Both parties challenge the trial court’s finding that the
child could not be placed with either parent within a reasonable time or should not be
placed with either, and both also challenge its finding that permanent custody is in the
child’s best interest.
1. PLACEMENT WITH EITHER PARENT
Lawrence App. Nos. 15CA18 and 15CA19 23
{¶49} When a trial court considers whether a child cannot be placed with either
parent within a reasonable period of time or should not be placed with either parent,
R.C. 2151.414(E) directs the court to “consider all relevant evidence.” The statute
further requires a court to make such a finding if clear and convincing evidence shows
the existence of any one of the enumerated factors. Relevant here are R.C.
2151.414(E)(4), (10), (11), (12), (13), and (16). The statute states that a court “shall
enter a finding that the child cannot be placed with either parent within a reasonable
time or should not be placed with either parent” if:
(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;
****
(10) The parent has abandoned the child.
****
(12) The parent is incarcerated at the time of the filing of the motion for
permanent custody or the dispositional hearing of the child and will not be
available to care for the child for at least eighteen months after the filing of the
motion for permanent custody or the dispositional hearing.
(13) The parent is repeatedly incarcerated, and the repeated incarceration
prevents the parent from providing care for the child.
****
(16) Any other factor the court considers relevant.
{¶50} A trial court may base its “cannot or should not” placement decision upon
the existence of any one of the R.C. 2151.414(E) factors. The existence of one factor
alone will support such a finding. E.g., In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104,
862 N.E.2d 816, ¶50; In re William S., 75 Ohio St. 3d 95, 99, 661 N.E.2d 738 (1996).
{¶51} Here, clear and convincing evidence supports the trial court’s cannot or
should not findings. The mother has not had any contact with her child since LCCS
obtained temporary custody, and she allowed several months to elapse before she
Lawrence App. Nos. 15CA18 and 15CA19 24
communicated with LCCS. And she rarely if ever appeared at court proceedings. Under
R.C. 2151.011(C), she has abandoned her child. Thus, R.C. 2151.414(E)(10) applies.
Moreover, she made no attempt to comply with the case plan, and she displayed an
extreme lack of commitment to her child, so R.C. 2151.414(E)(4) also applies. The
existence of either factor alone is enough to support the trial court’s finding that C.B.C.
cannot be placed with the mother within a reasonable time or should not be placed with
her. Thus, the evidence clearly and convincingly supports the court’s finding.
{¶52} Furthermore, clear and convincing evidence supports the trial court’s
finding that C.B.C. cannot be placed with the father within a reasonable time or should
not be placed with him. The father declares his love for his child and desire to be
reunified with him upon his release from prison. However, the father is scheduled to
remain in prison until December 2017—more than two years beyond the date of the
permanent custody hearing. At the time of the permanent custody hearing in July 2015,
he therefore had well over eighteen months remaining on his stated prison term.
Consequently, the evidence supports a finding under R.C. 2151.414(E)(12) that the
father will be unavailable to care for C.B.C. for at least eighteen months after the filing of
the motion for permanent custody or the dispositional hearing. This one finding alone
supports the trial court’s determination that C.B.C. cannot be placed with the father
within a reasonable time or should not be placed with the father.
{¶53} The mother nonetheless claims that the record does not contain any
documentary evidence regarding the father’s prison sentence. To the contrary, LCCS
caseworker Ferguson testified to the information she obtained from the Ohio
Department of Rehabilitation and Corrections website, and the document she
Lawrence App. Nos. 15CA18 and 15CA19 25
referenced was introduced during the permanent custody hearing without objection. It
plainly shows that the father’s stated prison term expires on December 10, 2017, and
that he “is statutorily eligible to be screened for suitability and a possible
recommendation to the sentencing court for early release” on December 10, 2016.
{¶54} Any hopes the mother or father harbor of his earlier release are purely
speculative; we have previously rejected speculative release dates as establishing that
a parent will be available to care for a child within the eighteen-month timeframe set
forth in R.C. 2151.414(E)(12). In re M.M., 4th Dist. Meigs No. 14CA6, 2014-Ohio-5111,
¶32; In re K.M.D., 4th Dist. Ross No. 11CA3289, 2012–Ohio–755, ¶26; accord In re
M.J.P., 3rd Dist. Mercer No. 10-12-11, 2013-Ohio-2148, ¶ 20 (noting that mother’s claim
she would be granted judicial release was purely speculative).
{¶55} And, even if the father is released from prison within the eighteen-month
timeframe set forth in R.C. 2151.414(E)(12), the trial court nonetheless could have
determined that R.C. 2151.414(E)(4) or (13) supported a finding that the child cannot be
placed with the father within a reasonable time or should not be placed with him. The
father had been imprisoned in Kentucky for eighteen months, was released sometime in
the summer or latter part of 2010, and in late 2012, committed another criminal offense
resulting in a five-year prison sentence. Thus, at the time of the permanent custody
hearing, the father had served more than four of the preceding six years in prison.
Although the father testified that he has learned his lesson and that upon his release
from prison this time, he will lead a law-abiding life to be available to care for C.B.C., the
trial court was entitled to discredit the father’s testimony. We are a reviewing court not
well-suited to assess the father’s credibility; thus, we defer to the trial court on this
Lawrence App. Nos. 15CA18 and 15CA19 26
matter. C.S. at ¶37. Given his history, the trial court could have reasonably concluded
that the father would be unlikely to lead a law-abiding life, which ultimately would leave
him unavailable to care for his child. Under R.C. 2151.414(E)(13) the evidence thus
supports a finding that the father’s repeated imprisonment prevents him from providing
proper care for C.B.C.
{¶56} Additionally, under R.C. 2151.414(E)(4) the father’s choices to engage in
criminal conduct show an unwillingness to provide an adequate permanent home for
C.B.C. Although the father may be “committed” to C.B.C. in the sense that he loves the
child and desires to have custody of him, the father’s actions show that he has not acted
in a manner consistent with providing C.B.C. with an adequate permanent home.
Instead, if the father serves his total five-year prison sentence, he will have been in
prison for more than six and one-half years of C.B.C.’s approximately fifteen-year life
(the child will turn fifteen years of age in late December 2017). The father obviously
cannot provide proper care for the child if he is imprisoned for almost half of C.B.C.’s
young life. Although we are aware of the father’s desire to have custody of his child, the
father’s own decisions to engage in criminal conduct are the primary reason why he is
unable to fulfill that desire. Thus, the father—and sadly C.B.C.—must bear the
consequences of his poor choices.
{¶57} Consequently, clear and convincing evidence supports the trial court’s
finding that C.B.C. cannot be placed with either parent within a reasonable time or
should not be placed with either one.
2. BEST INTEREST
Lawrence App. Nos. 15CA18 and 15CA19 27
{¶58} Both parents argue that the trial court’s finding that awarding LCCS is in
C.B.C.’s best interest is not supported by clear and convincing evidence. The mother
contends that severing the child’s bond with the father is not in C.B.C.’s best interest.
The father argues that the best interest factors weigh against a finding that awarding
LCCS permanent custody is in C.B.C.’s best interest. The father asserts that he and
the child share a loving relationship, the child wishes to live with his father, the child’s
custodial history shows that he has primarily lived with the mother and/or the father, and
the child had been in LCCS’s temporary custody only since the end of November 2014.
He further contends that the court failed to consider whether C.B.C. could receive a
legally secure permanent placement without granting LCCS permanent custody.
{¶59} “In a best-interests analysis under R.C. 2151.414(D), a court must
consider ‘all relevant factors,’ including five enumerated statutory factors * * *. No one
element is given greater weight or heightened significance.” C.F. at ¶57, citing In re
Schaefer, 111 Ohio St. 3d 498, 2006–Ohio–5513, 857 N.E.2d 532, ¶ 6. The five
enumerated factors include: (1) the child’s interaction and interrelationship with the
child’s parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (2) the child’s wishes, as expressed
directly by the child or through the child’s guardian ad litem, with due regard for the
child’s maturity; (3) the child’s custodial history; (4) 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; and (5) whether any factors listed under R.C.
2151.414(E)(7) to (11) apply.
Lawrence App. Nos. 15CA18 and 15CA19 28
{¶60} Clear and convincing evidence supports the trial court’s determination that
awarding LCCS permanent custody is in C.B.C.’s best interest. Looking to the child’s
interactions and interrelationships, the evidence demonstrates that C.B.C. has a
positive relationship with his father; C.B.C. clearly loves his father and shares a strong
bond with him, despite the father’s imprisonment. Unfortunately, the father’s
imprisonment has not allowed for much physical interaction with C.B.C. C.B.C. does
not share a positive relationship with his mother, and the mother provided, at best,
abysmal care for her child throughout the time he was in her custody. C.B.C. has an
eighteen-year-old half-sister and has a positive relationship with her. C.B.C. also has a
positive relationship with his friend and friend’s mother, Tonya Moore. C.B.C. appears
to have some struggles in his foster home, but those struggles seem to result from his
desire to be reunified with his father. LCCS did not present any other evidence
regarding his interactions and interrelationships in the foster home.
{¶61} Regarding C.B.C.’s wishes, the evidence clearly shows that he desires to
live with his father upon his release from prison. However, the father is scheduled to
remain in prison until December 2017—when C.B.C. is turning fifteen years of age. The
best option for C.B.C. to thrive, as LCCS supervisor Ferguson testified, is not to live with
the uncertainty and instability of a temporary custody arrangement pending his father’s
release, but instead, is to live with the certainty and stability of a permanent custody
arrangement. Moreover, whether the father would choose to live a law-abiding life free
from imprisonment following his release is an open question. No one can say with
certainty whether the father would give the child the stability of a permanent home upon
his release from prison. The court could have reasonably decided not to follow C.B.C.’s
Lawrence App. Nos. 15CA18 and 15CA19 29
wishes because it did not want to experiment with his welfare. As we have recognized
time and again, a trial court is not required to experiment with a child’s welfare in order
to permit a parent to prove his or her suitability:
“ ‘ * * * [A] child should not have to endure the inevitable to its great detriment
and harm in order to give the * * * [parent] an opportunity to prove her suitability.
To anticipate the future, however, is at most, a difficult basis for a judicial
determination. The child's present condition and environment is the subject for
decision not the expected or anticipated behavior of unsuitability or unfitness of
the * * * [parent]. * * * The law does not require the court to experiment with the
child’s welfare to see if he will suffer great detriment or harm.’”
In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011–Ohio–5595, ¶42, quoting In re Bishop,
36 Ohio App. 3d 123, 126, 521 N.E.2d 838 (5th Dist.1987), quoting In re East, 32 Ohio
Misc. 65, 69, 288 N.E.2d 343 (1972).
{¶62} Although C.B.C. obviously loves his father, we echo the sentiments
expressed in In re V.C., 8th Dist. Cuyahoga No. 102903, 2015-Ohio-4991, ¶55:
“Every parental rights termination case involves a difficult balance
between maintaining a natural parent-child relationship and protecting the best
interests of a child. Although “[f]amily unity and blood relationship are vital
factors to carefully and fully consider,” the paramount consideration is always the
best interest of the child. In re J.B., 2013–Ohio–1704, at ¶111, citing In re T.W.,
8th Dist. Nos. 86084, 86109, and 86110, 2005–Ohio–6633, ¶15. “[A] child's best
interests require permanency and a safe and secure environment.” In re E.W.,
8th Dist. Cuyahoga Nos. 100473 and 100474, 2014–Ohio–2534, ¶ 29. “To
protect the child’s interest,” neither the existence of a biological relationship or a
“good relationship” is controlling in and of itself. In re J.B., 8th Dist. Cuyahoga
Nos. 98518 and 98519, 2013–Ohio–1706, ¶ 163, citing In re T.W. at ¶15.”
{¶63} C.B.C.’s custodial situation has changed several times since 2009, when
the mother entered into a safety plan with LCCS and agreed to place him with relatives.
C.B.C. lived with these relatives until the latter part of 2010, when the father completed
his eighteen-month Kentucky prison sentence. C.B.C. remained living with his father in
various locations—and sometimes with the mother—until late 2012, when the father
Lawrence App. Nos. 15CA18 and 15CA19 30
committed another crime and went to prison again. From 2012 until November 2014,
C.B.C. lived with his mother.
{¶64} C.B.C. needs a legally secure permanent placement. The mother has
shown that she is unwilling to provide it. The father says he would like to provide it, but
his criminal behavior prevents him from doing so. Tonya Moore stated that she would
agree to take custody of C.B.C., but it is unclear whether Moore would take custody on
a permanent basis, or only on a temporary basis until the father’s release from prison.
The record does not indicate any other viable options for a legally secure permanent
placement.
{¶65} The father argues that the trial court’s best interest finding is against the
manifest weight of the evidence because the court failed to consider whether C.B.C.
could receive a legally secure permanent placement without granting LCCS permanent
custody. The father asserts that “it is unclear from the entry whether the court
considered if placement could be achieved without a grant of permanent custody.” As
we indicated earlier, the father did not request findings of fact and conclusions of law,
and the trial court did not, therefore, have a duty to enter a specific factual finding
regarding this factor. Moreover, we reviewed the record along with the trial court’s
decision and determined that clear and convincing evidence supports a finding that the
child needs a legally secure permanent placement that cannot be achieved without
granting LCCS permanent custody.
{¶66} The mother and father argue that the trial court should have considered
placing the child with Tonya Moore before it terminated their parental rights. However, a
trial court need not find by clear and convincing evidence that terminating parental rights
Lawrence App. Nos. 15CA18 and 15CA19 31
is the only option or that no suitable person is available for placement. Schaefer at ¶64.
Rather, once the court finds the existence of any one of the R.C. 2151.414(B)(1)(a)-(e)
factors, R.C. 2151.414(D)(1) then requires the court to weigh “all the relevant factors * *
* to find the best option for the child.” Id. “The statute does not make the availability of
a placement that would not require a termination of parental rights an all-controlling
factor. The statute does not even require the court to weigh that factor more heavily
than other factors.” Id. Moore did not file a motion seeking custody. And, in light of the
absence of a request for findings of fact and conclusion of law, there is nothing in the
record to indicate the court failed to consider placement with Tonya Moore. In fact,
based upon her equivocal testimony about whether she wanted a permanent
relationship with the child, the court could have reasonably concluded placement with
her was not in the child’s best interest. A child’s best interest is served by placing the
child in a permanent situation that fosters growth, stability, and security. In re Adoption
of Ridenour, 61 Ohio St. 3d 319, 324, 574 N.E.2d 1055 (1991). Therefore, courts are
not required to favor relative or non-relative placement if, after considering all the
factors, it is in the child’s best interest for the agency to be granted permanent custody.
Schaefer at ¶64; accord In re T.G., 4th Dist. Athens No. 15CA24, 2015-Ohio-5330, ¶24.
{¶67} We have previously indicated that a trial court need not “consider” relative
placement before awarding a children services agency permanent custody. See In re
M.M., 4th Dist. Meigs No. 14CA6, 2014-Ohio-5111, ¶39; In re J.H., 4th Dist. Hocking
No. 14CA4, 2014-Ohoi-3108, ¶27; In re C.T.L.A., 4th Dist. Hocking No. 13CA24, 2014-
Ohio-1550, ¶52; accord In re A.R., 4th Dist. Highland No. 14CA10, 2014-Ohio-4916,
¶21. However, it is more accurate to state that a court need not find that a child cannot
Lawrence App. Nos. 15CA18 and 15CA19 32
be placed with a relative or non-relative, rather than stating that a court need not
“consider” it. When deciding permanent custody motions, trial courts must weigh—and
hence, “consider”—all relevant factors, which may include relative or non-relative
placement, to determine what placement option is in the child’s best interest. In re
A.C.H. at ¶44.
{¶68} We also note that the guardian ad litem recommended that the court
award LCCS permanent custody of the child, and her report indicates that the child “has
made great strides educationally” since being placed in LCCS’s temporary custody.
The guardian ad litem stated that the child has been promoted a grade level and
improved his grades from failing to Bs.
{¶69} Although both parents refer to R.C. 2151.414(D)(2) in their appellate
briefs, the child has not been in LCCS’s temporary custody for two years or longer, and
thus, R.C. 2151.414(D)(2) has no applicability here.
{¶70} Accordingly, a balancing of all of the relevant factors clearly and
convincingly supports the trial court’s best interest finding.
3. REASONABLE EFFORTS
{¶71} Both parents argue that the trial court erred by awarding LCCS permanent
custody because LCCS failed to use reasonable efforts to reunify the family. The
mother contends that she was not afforded a sufficient opportunity to fulfill her case plan
goals. She argues that the guardian ad litem filed the permanent custody motion after
only four months had elapsed since LCCS obtained temporary custody and that LCCS,
by later joining the guardian ad litem’s motion, did not seriously pursue reunification
Lawrence App. Nos. 15CA18 and 15CA19 33
efforts. The father asserts he was never offered a case plan or an opportunity to reunify
with the child.
a. R.C. 2151.419(A)
{¶72} R.C. 2151.419(A)(1) requires a trial court to determine whether a children
services agency “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.” However, this statute applies only
at “adjudicatory, emergency, detention, and temporary-disposition hearings, and
dispositional hearings for abused, neglected, or dependent children.” C.F. at ¶41.
Thus, “’[b]y its plain terms, the statute does not apply to motions for permanent custody
brought pursuant to R.C. 2151.413, or to hearings held on such motions pursuant to
R.C. 2151.414.” Id. But, “[t]his does not mean that the agency is relieved of the duty to
make reasonable efforts” before seeking permanent custody. Id. at ¶42. Instead, at
prior “stages of the child-custody proceeding, the agency may be required under other
statutes to prove that it has made reasonable efforts toward family reunification.” Id.
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.” Id. at ¶43.
{¶73} The parents’ appeals do not originate from one of the types of hearings
specifically referenced in R.C. 2151.419(A): “adjudicatory, emergency, detention, and
temporary-disposition hearings, and dispositional hearings for abused, neglected, or
dependent children.” C.F., supra. Therefore, LCCS was not required to prove at the
Lawrence App. Nos. 15CA18 and 15CA19 34
permanent custody hearing that it used reasonable efforts to reunify the family, unless
LCCS had not previously done so. C.F., supra.
{¶74} Here, the trial court made two reasonable efforts findings. The first finding
appears in the court’s decision continuing the child in LCCS’s temporary custody
following the shelter care hearing. The court did not enter another reasonable efforts
finding until it made one concerning the mother in its permanent custody decision.
Although the court should have made a reasonable efforts determination when it issued
both its adjudication and its disposition order, it did not. See R.C. 2151.419(A)
(requiring reasonable efforts to be shown at adjudication and disposition hearings).
Neither party, however, objected to the court’s failure to determine whether LCCS used
reasonable efforts when it entered its adjudication and disposition orders. Moreover,
neither party raises that issue on appeal. Thus, we will only review the reasonable
efforts finding from the permanent custody hearing.
b. STANDARD OF REVIEW AND BURDEN OF PROOF
{¶75} The parties appear to agree that we review the trial court’s reasonable
efforts finding using the same manifest weight of the evidence standard that we apply
when reviewing its permanent custody decision. They further appear to agree that
LCCS bore the burden of proving reasonable efforts by clear and convincing evidence.
Because the parties have not argued that a different burden of proof applies or that we
apply a different standard of review, we apply these rules here. See Risner, supra, at
¶28.
C. MEANING OF REASONABLE EFFORTS
Lawrence App. Nos. 15CA18 and 15CA19 35
{¶76} In general, “reasonable efforts” mean “’[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.’” C.F. at ¶28, quoting Will L. Crossley, Defining Reasonable
Efforts: Demystifying the State's Burden Under Federal Child Protection Legislation, 12
B.U.Pub.Int.L.J. 259, 260 (2003). “‘Reasonable efforts means that a children's services
agency must act diligently and provide services appropriate to the family's need to
prevent the child's removal or as a predicate to reunification.’” In re H.M.K., 3d Dist.
Wyandot Nos. 16–12–15 and 16–12–16, 2013–Ohio–4317, ¶ 95, quoting In re D.A., 6th
Dist. Lucas No. L–11–1197, 2012–Ohio–1104, ¶ 30. In other words, the agency must
use reasonable efforts to help remove the obstacles preventing family reunification.
Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev. 321, 366 (2005),
quoting In re Child of E.V., 634 N.W.2d 443, 447 (Minn. Ct. App. 2001), and In re K.L.P.,
No. C1-99-1235, 2000 WL 343203, at *5 (Minn. Ct. App. Apr. 4, 2000) (explaining that
the agency must address what is “necessary to correct the conditions that led to the out-
of-home placement” and must “provide those services that would assist in alleviating the
conditions leading to the determination of dependency”). However, “’[r]easonable
efforts’ does not mean all available efforts. Otherwise, there would always be an
argument that one more additional service, no matter how remote, may have made
reunification possible.” In re Lewis, 4th Dist. Athens No. 03CA12, 2003-Ohio-5262, ¶16.
Furthermore, the meaning of “reasonable efforts” “will obviously vary with the
circumstances of each individual case.” Suter v. Artist M., 503 U.S. 347, 360, 112 S. Ct.
1360, 118 L. Ed. 2d 1 (1992). Additionally, “[i]n determining whether reasonable efforts
were made, the child’s health and safety shall be paramount.” R.C. 2151.419(A)(1).
Lawrence App. Nos. 15CA18 and 15CA19 36
d. Mother
{¶77} The mother’s drug addiction and utter lack of commitment to the child
were the primary obstacles preventing reunification with the child. The trial court
specifically stated in its entry granting LCCS permanent custody that LCCS used
reasonable efforts to reunify the child with the mother; the evidence supports the court’s
finding. LCCS caseworkers attempted to communicate with the mother, but she was
unresponsive. The mother made no attempt to comply with the case plan, and she did
not even visit with the child after LCCS obtained temporary custody. Before the
permanent custody hearing, LCCS caseworker Reynolds set up an appointment for the
mother, but the mother failed to follow through with the appointment. Only the Friday
before the permanent custody hearing did the mother submit to a drug screen, and it
was positive. Thus, even though the mother may be correct that the guardian ad litem
filed a permanent custody motion approximately four months after LCCS obtained
permanent custody, the mother is incorrect in her belief that LCCS ceased its efforts to
help the mother fulfill the case plan goals in order to achieve reunification with the child.
Despite LCCS’s efforts to work with the mother, the mother failed to work with LCCS.
Thus, it was not a lack of reasonable efforts on the part of LCCS, but a lack of any
efforts on the mother’s part. Consequently, we find no merit to the mother’s argument
that LCCS did not use reasonable efforts to reunify her with the child. See In re
Billingsley, 3rd Dist. Putnam No. 12-02-07, 2003-Ohio-344, ¶24 (rejecting mother’s
argument that children services agency failed to use reasonable efforts when mother
was unwilling to cooperate in establishing a case plan, failed to visit the child, and
otherwise impeded the agency’s efforts).
Lawrence App. Nos. 15CA18 and 15CA19 37
e. Father
{¶78} Turning to the father, the circumstances differ. It does not appear the trial
court ever entered any finding regarding LCCS’s efforts concerning the father. But even
if the trial court erred by failing to make a reasonable efforts finding concerning the
father,1 the error did not affect the outcome of the proceedings, i.e., it was harmless.
See R.C. 2501.02 (stating that appellate courts review for prejudicial error); Civ.R. 61
(stating that courts “must disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties”); App.R. 12(B) (explaining that reviewing
court may reverse trial court’s judgment if it finds prejudicial error); In re Keaton, 4th Dist.
Ross No. 04CA2785, 2004-Ohio-6210, ¶72 (stating that trial court’s failure to make
reasonable efforts finding “may be harmless error if it is apparent from the record that
the agency used reasonable efforts”).
{¶79} The primary obstacles to reunifying the father with the child were his
continued criminal behavior and resulting five-year prison sentence. At the time of the
permanent custody hearing, the father still had more than two years of imprisonment
remaining. LCCS asserted that it did not include the father in the case planning efforts
due to his incarceration. This court and others have previously indicated that an
agency’s failure to develop a specific reunification plan was reasonable when a parent
is imprisoned. In re N.A.P., 4th Dist. Washington No. 12CA30, 2013-Ohio-689, ¶45
(parent’s four-year prison sentence “made it impossible to provide meaningful case
planning services and to attempt reunification with appellant”); In re S.D., 10th Dist.
1 Under R.C. 2151.419(B)(1), a trial court that is required to make a reasonable efforts determination in
accordance with R.C. 2151.419(A) must issue written findings of fact in support of its decision. However,
it is unclear whether this requirement applies under the C.F. exception, i.e., although R.C. 2151.419(A)
does not apply to permanent custody motions, the agency must demonstrate that it used reasonable
reunification efforts at the permanent custody hearing if it did not already do so.
Lawrence App. Nos. 15CA18 and 15CA19 38
Franklin Nos. 08AP–546 and 08AP–575, 2009–Ohio–1047, ¶14 (“Under the
circumstances, [the parent's] criminal conduct had made it difficult, if not impossible, for
FCCS to provide meaningful services.”); In re A.D., 2nd Dist. Miami No. 2007CA23,
2008–Ohio–2070, ¶8 (“Although [children services'] efforts were directed solely toward
[the mother], such an approach was reasonable considering that [the father] was
incarcerated when the children entered temporary custody and would remain
incarcerated for another two and one-half years.”); In re Meadows, 4th Dist. Scioto No.
05CA3009, 2005-Ohio-5018, ¶16; Elmer v. Lucas Cty. Children Serv. Bd., 36 Ohio
App.3d 241, 244, 523 N.E.2d 540 (6th Dist. 1987) (“[T]here is no need to implement a
reunification plan when it would be futile.”). “Obviously, when a parent is imprisoned,
reunification is futile until the parent is released and obtains a stable home.” N.A.P. at
¶45. Accord Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev.
321, 366, fn. 222 (2005) (citation omitted) (“The larger obstacle to successful
reunification in cases where the parent is incarcerated, however, is the lack of a
foreseeable and timely reunification. The health and safety of a child will almost always
require that any reunification be within the foreseeable future and within a reasonable
time. A parent incarcerated for any length of time longer than a few months quite
obviously faces a significant barrier to reunification, no matter what efforts the agency
makes.”).
{¶80} Furthermore, as that commentator noted:
Courts treat incarceration as a circumstance created by the parent. The
parent, therefore, cannot complain that the agency failed to identify a way to
circumvent the resulting obstacles. * * * [P]arents who are incarcerated are in
prison as a result of their own misdeeds and cannot shift the blame for
termination to state agencies for failing to provide all the services they could.
Lawrence App. Nos. 15CA18 and 15CA19 39
Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L.Rev. 321, 349, citing
In re J.K., No. 03-1413, 2003 WL 22346526, at *2 (Iowa Ct. App. Oct. 15, 2003).
{¶81} The Ninth District Court of Appeals, however, has criticized the notion that
the failure to implement a reunification plan may be reasonable even when the facts and
circumstances would render it futile. In re S.R., 9th Dist. Summit No. 27209, 2014-
Ohio-2749, ¶ 35-40. The S.R. court explained:
R.C. 2151.419(A)(2) now authorizes the trial court to relieve the agency of its
obligation to make reasonable reunification efforts if it finds that one of five
enumerated circumstances exist, which the legislature has implicitly determined
justify a lack of reunification efforts between parent and child. Those limited
circumstances are when “the parent from whom the child was removed:” has
been convicted of certain violent or dangerous crimes against the child, sibling,
or another child living in the home; has repeatedly withheld food or medical
treatment from the child without a legitimate excuse; has repeatedly placed the
child at risk of harm due to alcohol or drug abuse and has rejected treatment; has
abandoned the child; or has had her parental rights to a sibling of the child
involuntarily terminated.
Absent a judicial finding that one of the circumstances enumerated in R.C.
2151.419(A)(2) exists, a children services agency is obligated to make
reasonable reunification efforts and has the burden of demonstrating to the court
that it made those efforts. See R.C. 2151.419(A).
Id. at ¶¶39-40.
{¶82} And, in C.F., at ¶ 4, the Ohio Supreme Court held that “except for some
narrowly defined statutory exceptions, the state must make reasonable efforts to reunify
the family before terminating parental rights.” However, the reasonable efforts statute,
R.C. 2151.419, does not use the phrase “reunify the family.” Instead, it requires the
agency to use 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.” This raises a question as to what is
meant by “family,” what is meant by “home,” and whether the C.F. duty “to reunify the
Lawrence App. Nos. 15CA18 and 15CA19 40
family” extends to all family members, including a parent with whom the child was not
living at the time of removal, or just to the family member from whose care the child was
removed. See generally In re M.R., 3rd Dist. Defiance No. 4-11-12, 2011-Ohio-6528,
¶¶15 and 17; In re A.P., 9th Dist. Medina No. 12CA0022-M, 2012-Ohio-3873, ¶¶ 28-29;
R.C. 2151.419(B) (stating that trial court’s reasonable efforts finding shall briefly
describe the services provided to “the family of the child”). None of the parties, however,
have raised any of these issues. We therefore do not address them now. See Risner,
supra, at ¶28.
{¶83} Although we recognize both In re C.F. and In re S.R., the question as we
see it, is whether the concept of “reasonable efforts” includes attempting reunification
with a parent who is serving a five-year prison term and whose stated term will not
expire for at least two years past the date of the permanent custody hearing. In our
view attempting reunification with such an incarcerated parent would be an
unreasonable effort because of the obvious fact that the incarcerated parent lives in a
prison; there is no possibility of reunifying the parent and child while the parent is
imprisoned. The statute requires reasonable efforts, not unreasonable ones. In certain
situations reunification may be possible upon the parent’s release. However, in this
case the father will not be released for two years beyond the permanent custody
hearing. Beyond maintaining the child in its temporary custody pending the father’s
release from prison, we are not certain what other efforts LCCS could have undertaken
to remove the obstacle preventing reunification between the father and the child. The
permanent custody statutes do not appear to contemplate holding a child in custodial
limbo while a parent completes a lengthy prison term. See R.C. 2151.413(D)(1)
Lawrence App. Nos. 15CA18 and 15CA19 41
(requiring children services agency to seek permanent custody when a child has been
in its temporary custody for more than twelve out of the past twenty-two months); R.C.
2151.414(D)(2)(b) (stating that court shall award agency permanent custody if it finds,
among other things, that the child has been in an agency’s custody for two years or
longer). Thus, under our facts attempting a specific reunification strategy between the
father and child would not be a reasonable effort, but rather an unreasonable one.
{¶84} We reiterate that we are not ignoring the Ohio Supreme Court’s holding in
C.F. Nor are we holding that a children services agency never has a duty to develop
specific reasonable efforts to attempt to reunify a child with an incarcerated parent.
Instead, we are recognizing that under the facts presented here, attempting reunification
with the father would go beyond being reasonable. In other words, we conclude the
agency made a reasonable effort to “reunify the family”, as C.F. and the statute require.
{¶85} Moreover, LCCS did not completely ignore the father. Compare S.R.,
supra. Instead, it investigated his situation and discovered that he was incarcerated
and would remain incarcerated through December 2017. Caseworker Ferguson
explained at the permanent custody hearing that it did not offer services to the father
while he was imprisoned due to the lack of certified services available in prison. Thus,
this is not a situation whether the agency totally ignored a natural parent, but instead, a
situation where an agency investigated the possibility of placing a child with a natural
parent but determined that placement within a reasonable time would be impossible due
to the parent’s incarceration. It would make little sense to require the agency to develop
a plan that the facts of situation made impossible to implement.
Lawrence App. Nos. 15CA18 and 15CA19 42
{¶86} Because the record reveals the agency exercised reasonable efforts to
reunify the family, the trial court’s error in failing to make a specific finding concerning
the father is harmless and did not affect the outcome of the proceedings.
4. CASE PLAN
{¶87} The father also contends that LCCS did not properly file a case plan, he
did not agree to a case plan, he did not sign a case plan, and LCCS did not include him
in a case plan. As pointed out earlier, the trial court adopted the case plan as part of its
dispositional order. Yet the father did not raise any of these objections before the trial
court at a time when it could have corrected any error. Consequently, he has forfeited
them for purposes of appeal. See In re N.L., 9th Dist. Summit No. 27784, 2015-Ohio-
4165, 33 (stating that “[a] party may not object to matters regarding case plan
implementation for the first time on appeal,” but instead, “should be brought to the
attention of the trial court at a time when they might be addressed”); In re Willis, 5th Dist.
Coschocton No. 02CA15, 2002-Ohio-6795, 10 (determining that appellant’s failure to
object to case plan during trial court proceedings waived right to raise issue on appeal);
In re Awkal, 95 Ohio App. 3d 309, 319, 642 N.E.2d 424 (8th Dist. 1994) (holding that
appellant’s failure to object to case plan during trial court proceedings waived right to
raise issue on appeal).
IV. CONCLUSION
{¶88} Accordingly, we overrule the mother’s sole assignment of error, the
father’s two assignments of error, and affirm the trial court’s judgment. In doing so we
recognize this unfortunately is yet another case in which the parents should have made
better life choices in order to preserve a parent-child relationship. The mother has
Lawrence App. Nos. 15CA18 and 15CA19 43
abandoned her child for a life of self-indulgence. We do not doubt the bond that C.B.C.
has forged with his father. And the father professes that being imprisoned once in
Kentucky for eighteen months and currently in Ohio for up to 5 years has reformed him
so that he now understands the importance of being a law-abiding citizen in order to
care for his child. However, the father apparently did not learn this lesson after his
Kentucky imprisonment, when he had custody of C.B.C. The father states that C.B.C. is
the most important part of his life, yet when he last had custody of him, the father was
unable to refrain from criminal activity and ended up with yet another prison sentence.
This child deserves to be placed in a home environment where he will not have to worry
about where he will live if his father is sent back to prison. Thus, waiting for the father to
be released from prison would not offer the same promise of stability that awaits the
child by the court’s decision granting LCCS permanent custody.
{¶89} Moreover, had the court placed C.B.C. with Tonya Moore pending the
father’s release, the same uncertainty surrounding his ultimate success living with his
father would remain. Whether the father would remain free from incarceration after his
next release is open to speculation. C.B.C. deserves more than a possibility of a legally
secure permanent placement, especially considering the instability he has experienced
over the past several years, i.e., living with his drug-addicted mother who did not
provide even the basic necessities for him and who did not ensure that he attended
school, staying with friends because he did not like being around his mother and her
friends who kept him awake while they “partied,” living with relatives, living with his
father, living with his drug-addicted mother again and spending nights at his friend’s
house so that he could avoid his mother’s lifestyle. There is no doubt that C.B.C. has
Lawrence App. Nos. 15CA18 and 15CA19 44
suffered emotional distress as a result of his mother’s horrendous parenting and his
father’s inability to remain a law-abiding citizen. In the long-term, awarding appellee
permanent custody will better promote C.B.C.’s best interest than holding him in
constant limbo, wondering when his father will be released from prison and if his father
will remain a law-abiding citizen able to provide care for him.
{¶90} Difficult as it may be for C.B.C. to accept, we agree with the trial court that
his best interest requires more than a temporary living arrangement with a family friend,
followed by living with his father who may have finally seen the error in his ways. The
father had that option once to be a law abiding citizen when his child lived with him, and
apparently was unable to refrain from criminal activity, despite having at least some
awareness of the ramifications of his criminal conduct. Courts need not experiment with
a child’s welfare to see whether the outcome will be a benefit or a detriment. In re
A.C.H., supra. We are sympathetic to C.B.C.’s ardent desire to live with his father—but
sometimes severing a familial bond will provide a child with a better chance to lead a
successful life, and will hopefully prevent C.B.C. from suffering the same fate that has
befallen his parents.
JUDGMENT AFFIRMED.
Lawrence App. Nos. 15CA18 and 15CA19 45
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.