In re Za.G. , 2020 Ohio 405 ( 2020 )

[Cite as In re Za.G., 2020-Ohio-405.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WILLIAMS COUNTY
In re Za.G., Ze.G. Court of Appeals Nos. WM-19-019
WM-19-020
WM-19-021
WM-19-022
Trial Court Nos. 20183029
20183030
DECISION AND JUDGMENT
Decided: February 5, 2020
*****
Dwight L. Cain, for appellant M.M.
Ian A. Weber, for appellant C.G.
Katherine J. Zartman, Williams County Prosecuting Attorney, and
Rachael A. Sostoi, Assistant Prosecuting Attorney, for appellee.
*****
MAYLE, J.
{¶ 1} In this consolidated appeal, appellants, M.M. (“mother”) and C.G.
(“father”), appeal the September 18, 2019 judgment of the Williams County Court of
Common Pleas, Juvenile Division, terminating their parental rights and granting
permanent custody of their children, Za.G. and Ze.G. (“the children”), to appellee,
Williams County Department of Job and Family Services (“JFS”). For the following
reasons, we affirm.
I. Background
{¶ 2} On December 26, 2017, JFS received a referral alleging that the parents had
been involved in a domestic violence incident that the children witnessed. Father
allegedly hit mother, giving her a black eye.
{¶ 3} On April 11, 2018, after a failed attempt to work with mother regarding
issues that were affecting her parenting, JFS filed complaints alleging that the children
were abused and dependent and seeking temporary custody. Darby Davis, a JFS
investigator, filed an affidavit with the complaint alleging that: (1) father perpetrated
domestic violence against mother, who “presented to law enforcement with her eye
swollen shut and badly bruised”; (2) over the course of JFS’s involvement with the
family, mother had been homeless, stayed in motels with father, and lived with maternal
grandfather and stepgrandmother; (3) mother was employed only intermittently for brief
periods of time; (4) a babysitter found a bag containing “marijuana residue,
paraphernalia, and a white powdery substance” in the diaper bag that mother left at the
sitter’s home when she dropped off the children; (5) mother reportedly lost a job because
father held her hostage in a hotel room; (6) when she tested positive for “Meth and
Amphetamine,” mother denied using drugs and blamed the positive test result on father
putting methamphetamine in her scrambled eggs; (7) mother and father had contact and
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stayed together in motels even though mother’s probation officer ordered her to have no
contact with father; (8) when mother and father attended a meeting at the agency, they
“spent the majority of the meeting blaming one another for all of the problems in their
lives”; and (9) at the time the complaint was filed, mother was unemployed and living
with maternal grandfather and stepgrandmother, and father was unemployed and
homeless.
{¶ 4} The trial court held a combined adjudication and disposition hearing on
May 18, 2018. At the hearing, mother and father consented to a finding of dependence
for each child, and JFS dismissed the allegations of abuse. The trial court found the
children dependent and granted JFS temporary custody.
{¶ 5} Prior to the complaints being filed, mother had voluntarily placed the
children with her sister, K.M. The children stayed with K.M. until May 19, 2018, when
JFS placed them with mother’s other sister, S.M. Placement with S.M. was unsuccessful,
however, so on July 30, 2018, JFS moved the children to a foster home, where they
resided until the permanent-custody hearing.
{¶ 6} Initially, JFS created a case plan that involved only mother. After father
contacted the agency and asked to be put on the plan, JFS amended the case plan to
include him. In June 2018, mother went to prison, so she was removed from the case
plan, leaving father the only parent trying to reunify with the children.
{¶ 7} On June 21, 2019, JFS filed a motion for permanent custody of the children.
The trial court held a permanent-custody hearing on August 23, 2019. Mother was in
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prison at the time of the permanent-custody hearing and did not attend or participate, but
was represented at the hearing by counsel.
{¶ 8} On September 18, 2019, the trial court issued a decision granting JFS’s
motion for permanent custody and terminating mother’s and father’s parental rights.
{¶ 9} Both parents appeal the trial court’s decision. Mother sets forth a single
assignment of error:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT TERMINATED THE PARENTAL RIGHTS OF APPELLANT
[mother] AND AWARDED PERMANENT CUSTODY OF HER MINOR
CHILDREN TO THE WILLIAMS COUNTY DEPARTMENT OF JOBS
[sic] AND FAMILY SERVICES WHEN SHE WAS UNABLE TO
COMPLETE HER CASEPLAN [sic] GOALS DUE TO
INCARCERATION THAT WOULD END SHORTLY AFTER THE
SCHEDULED TRIAL DATE[.]
{¶ 10} In his appeal, father raises three assignments of error:
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT
ABUSED ITS DISCRETION IN DETERMINING THAT CLEAR AND
CONVINCING EVIDENCE SUPPORTED ITS DECISION TO AWARD
PERMANENT CUSTODY TO THE WILLIAMS COUNTY
DEPARTMENT OF JOB6 [sic] AND FAMILY SERVICES: FURTHER,
4.
THE AWARD OF PERMANENT CUSTODY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE[.]
SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT
ABUSED ITS DISCRETION IN FINDING THE AWARD OF
PERMANENT CUSTODY WAS IN THE BEST INTERESTS OF THE
CHILD[ren.]
THIRD ASSIGNMENT OF ERROR: WHEN THE TRIAL COURT
IS REQUIRED TO MAKE A DETERMINATION THAT A PUBLIC
SERVICE AGENCY MADE REASONABLE EFFORTS TO REUNIFY
CHILDREN WITH THEIR FAMILY. [sic] THE TRIAL COURT ERRED
BY RULING IN FAVOR OF PERMANENT CUSTODY WHEN THE
RECORD SHOWS A FAILURE TO PROVIDE DILIGENT CASE
PLANNING[.]
II. Facts
{¶ 11} At the permanent-custody hearing on August 23, 2019, JFS presented the
testimony of Jeremy Viers, an officer with the Bryan Police Department (“BPD”); Davis,
the JFS investigator; Christina Crossgrove, a JFS caseworker; Mark Tipton, the
children’s guardian ad litem (“GAL”); B.B., maternal grandmother; V.M., maternal
stepgrandmother; and K.W., the children’s foster mother. Father also testified in his own
behalf. The following facts were adduced at the hearing.
5.
A. Mother
{¶ 12} After receiving the December 2017 referral alleging domestic violence
between the parents, Davis, the JFS investigator assigned to the family’s case, sent
mother an “alternative response initiation letter” to offer mother services without
requiring the agency to conduct a formal investigation. Mother met with Davis in early
January 2018 to discuss an alternative response plan, which is a voluntary case plan. As
part of the alternative response plan, JFS offered family coaching services and gave
mother two referrals for services. One referral was for mental health services. It is
unclear from the record what the second referral was for. It is also unclear when JFS
offered these services to mother, but Davis testified that she offered the services before
the ongoing caseworker took over the case in April 2018. Mother refused the offer of
family coaching services and did not contact the mental-health agency to set up an
appointment. Although mother made an appointment with the second agency to which
she was referred, she missed the appointment (ostensibly because she had gotten a job)
and did not reschedule it.
{¶ 13} During her initial meeting with Davis, mother said that she was
unemployed, abused methamphetamine and bath salts, and did not have a permanent
residence. At the time, mother was living between maternal grandmother’s home and
maternal grandfather’s home. She also said that she was in a relationship with father, but
they were not living together.
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{¶ 14} About three weeks later (before mother and Davis had created the
alternative response plan), JFS received another referral regarding the family. Officer
Viers testified that the BPD received a complaint on January 23, 2018, that the person
babysitting the children had found a pipe and a “puck container” in the children’s diaper
bag. The puck container held residue that tested positive for methamphetamine. Mother
admitted that the pipe and container belonged to her and that the container held
methamphetamine for her personal use. As a result, Officer Viers charged mother with
fifth-degree felony possession of methamphetamine. A certified judgment entry that was
admitted into evidence at the permanent-custody hearing showed that mother pleaded
guilty to the possession charge, and was convicted and sentenced to 180 days in jail to be
served concurrently with the prison sentence mother received in another county.
{¶ 15} After receiving the referral regarding drug paraphernalia in the children’s
diaper bag, Davis visited mother at maternal grandfather’s home to ensure that the
children were safe. Davis also attempted to drug screen mother, but mother was unable
to produce a urine sample. During the visit, mother agreed to voluntarily place the
children with K.M., her sister.
{¶ 16} Davis scheduled a family conference in February to discuss the specifics of
the alternative response plan. Prior to the meeting, Davis had her first contact with
father. He used mother’s Facebook account to send Davis a message acknowledging the
family conference that day and saying that “he knew that they needed help * * *,” but
mother had left and he did not know where she was, so they would not be at the
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conference. Mother and father both eventually came to the agency that day. During the
meeting, mother’s probation officer made an unannounced visit at the agency and
expressed concerns about mother and father being at the meeting together because one of
the conditions of mother’s probation was that she have no contact with father. Davis
ended the meeting, and mother and father left the agency separately.
{¶ 17} Davis scheduled another meeting with mother in March 2018. Davis said
that mother’s behavior at the meeting was “very erratic”; mother “couldn’t sit still”—
frequently alternating between standing up, sitting down, and laying down—and was
constantly playing with her hair and her face, adjusting her clothes, and playing with the
children’s toys in the meeting room. When Davis asked mother what was going on,
mother responded that she believed that she was under the influence of
methamphetamine. However, she said that she had not used methamphetamine. Instead,
she claimed that father had put methamphetamine in her scrambled eggs. Davis did not
find mother’s explanation plausible. Davis drug tested mother, and the results were
positive for methamphetamine. According to the complaints filed in this case, mother
admitted to using methamphetamine after testing positive. At this point, JFS decided that
it could not continue with the alternative response plan and that it needed to seek custody
of the children.
{¶ 18} On April 11, 2018, JFS filed complaints alleging that the children were
abused and dependent and seeking temporary custody of the children. When the agency
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sought temporary custody, Christina Crossgrove, an ongoing caseworker at JFS, took
over the case.
{¶ 19} Crossgrove held a family conference on May 1, 2018, to develop mother’s
case plan. Father was not at that meeting, so Crossgrove created a case plan for mother
only. On May 11, 2018, Crossgrove held another family conference because father
wanted to be included in the case plan. Mother and father came to the May 11 meeting
with their attorneys. At the meeting, mother agreed to the goals that went into the case
plan and signed the plan that Crossgrove drafted. Mother’s goals required her to
(1) submit to random drug screens, (2) continue drug treatment, (3) comply with the
terms of her probation, (4) maintain employment and stable housing, (5) consistently visit
with the children, (6) obtain a mental health assessment “to deal with the domestic
violence trauma,” (7) complete announced and unannounced home visits by the agency,
and (8) provide the agency with her contact information. Crossgrove believed that
mother understood her goals.
{¶ 20} Crossgrove testified that mother and father were living together at a motel
at the time of the adjudication and disposition hearing on May 18, 2018, and that neither
parent was working. Within two weeks of the hearing, mother reported to Crossgrove
that she had left father and was staying with a friend. A week later, Crossgrove learned
that mother was in jail. Mother was arrested because of community control violations.
Eventually, her community control was revoked and she was sent to prison to serve the
balance of her 30-month sentence.
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{¶ 21} In June 2018, before mother went to prison, Crossgrove visited her in jail.
Crossgrove told mother that she was removing mother from the case plan because mother
was going to prison and “it would be hard to work a case plan while incarcerated.”
Crossgrove’s decision to remove mother from the case plan was based, in part, on the
length of mother’s prison sentence. Mother’s scheduled release date was in March 2020,
more than 20 months later. The children’s maternal grandmother testified, however, that
mother was scheduled for early release from prison in September 2019, approximately
three weeks after the permanent-custody hearing. After her release, mother would have
to reside at a halfway house for at least 30 days, and then planned to move in with
maternal grandfather and stepgrandmother. Supporting maternal grandmother’s
testimony is a letter, written by maternal grandfather in March 2019, that mother
submitted at the permanent-custody hearing. The letter said that mother would be living
with maternal grandfather and stepgrandmother and that she “will have a stable home to
reside in upon her return to the general public.”
{¶ 22} After the June 2018 jail visit, the only contact Crossgrove had with mother
was a letter that mother sent in November 2018 and a phone call from mother several
days before the permanent-custody hearing in August 2019. Mother did not ask to be put
back on the case plan in either her letter or her phone call.
{¶ 23} While mother was in prison, she had some contact with the children
through the children’s grandparents. The maternal grandparents had regular visits with
the children, and both maternal grandmother and maternal stepgrandmother facilitated
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phone calls to mother in prison during their visits. Crossgrove and JFS did not do
anything to facilitate the children’s contact with mother while she was in prison.
{¶ 24} Mother did not present any witnesses at the permanent-custody hearing, but
her attorney submitted several letters that she had written, as well as certificates of
completion for programs that mother participated in while in prison, including a 12-week
domestic violence education class. In the letters that mother wrote, she expressed to her
attorney and the trial judge that she wanted to regain custody of the children when she
was released from prison. In one letter, she wrote that “Those kids are my everything and
* * * I am going to fight for them * * *.” She also requested information from her
attorney about the status of the case and reiterated that she wanted to regain custody of
her children after her release from prison. In April and July 2019 letters to the trial court,
mother told the judge that she was scheduled to be released to a halfway house in Lucas
County in September, but did not provide a release date or the length of time she would
be at the halfway house. She said that she had sent the children cards, letters, and
pictures of herself, and called her parents when the children were visiting with them so
that she could speak to the children. She also said that she had not had any contact with
father since being incarcerated, and did not intend to have contact with him in the future.
{¶ 25} After investigating the case and submitting numerous reports to the trial
court over the course of the proceedings, the GAL opined that mother lacked
commitment to the children because, even though she knew that custody of her children
was in jeopardy, she chose to do things forbidden by her probation—particularly, being
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with father and using drugs—which resulted in her going back to prison. Although, at
the time of the hearing, the GAL saw mother’s unavailability as the greatest impediment
to involving her in the case, he could not “ignore how she behaved early on in this case
plan when she had the prison time hanging over her head and I think made some poor
decisions.”
B. Father
{¶ 26} After JFS received the December 2017 referral, Davis was unable to reach
father, so she did not include him in the alternative response plan or offer him services
through the agency.
{¶ 27} Following the second referral, in January 2018, when mother voluntarily
placed the children with K.M., Davis was unable to reach father to discuss placing the
children with him. Davis believed that father was incarcerated at the time.
{¶ 28} Father first reached out to Davis through mother’s Facebook account the
morning of the February 2018 family conference. While talking to Davis at the
conference (before mother’s probation officer arrived), father “admitted that [mother]
knew how to push his buttons and make him hit her. * * * And [mother] agreed.” Davis
offered to include father in the alternative response plan and provide him services, but
father declined because he did not think that he needed services.
{¶ 29} When asked on cross-examination why she did not consider placing the
children with father after the February family conference, Davis said it was because he
was living in a hotel room with mother, who could not be around him, she had reports
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that both parent were using methamphetamine, and she had concerns about domestic
violence between father and mother. She acknowledged, however, that father was not
criminally charged with domestic violence after the December 26, 2017 incident because
mother recanted her allegations.
{¶ 30} After requesting to be added to the case plan, father attended the family
conference on May 11, 2018, with his attorney. He agreed to the case plan that
Crossgrove drafted, and he and his lawyer both signed the plan. Father’s goals required
him to (1) attend a domestic violence program or attend couples counseling with mother
to “work on the domestic violence issues” between him and mother, (2) maintain
employment, (3) find safe and stable housing, (4) maintain visits with the children,
(5) submit to random drug screens, (6) obtain drug abuse and mental health assessments
and follow the recommendations of the providers, (7) complete monthly home visits by
JFS, and (8) keep JFS updated with his contact, employer, and service provider
information. Father told Crossgrove that he understood what the case plan required of
him. During the meeting, Crossgrove explained to father that JFS would file the case
plan with the court and that he would have to work the case plan to be reunified with the
children.
{¶ 31} To pay for services it provides to parents—including utility and rent
assistance, supervised visitation site costs, and family coaching and anger management
services—JFS requires every parent who has an open case with the agency to complete a
“Prevention, Retention and Contingency application” (“PRC form”), which allows JFS to
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access funding for parents who are income-eligible. The form requests demographic and
income information for each person living in a household. An updated PRC form is
required any time a parent’s circumstances change, for example because he changes jobs
and has a change in income or has additional people residing in the household. Shortly
after the adjudication and disposition hearing in May 2018, father asked Crossgrove for
assistance finding housing. He completed a PRC form in conjunction with that request.
At the time he completed the form, father was working at a factory part-time through a
temporary-employment-staffing agency. JFS never provided father with housing
assistance, however, because of father’s failure to make progress on his case plan goals.
{¶ 32} On June 28, 2018, Crossgrove held another family conference to discuss
the case plan with father. Because mother was going to prison and being removed from
the case plan, father was the only parent who could realistically reunify with the children.
According to Crossgrove, father “denied any issues and denied needing any counseling
and said he wasn’t gonna [sic] be paying for any services. He told me at that time, that
he was justified in hitting [mother] because he [sic] made him angry. He stated that he
should not have to jump through hoops to get his children back.” Father did not ask to
have the children placed with him, though. At the meeting, Crossgrove told father to call
her the next day so they could figure out times and dates for his supervised visits with the
children. Father did not call her.
{¶ 33} Crossgrove testified extensively about father’s compliance with his case
plan goals. Generally speaking, father made little progress on his goals from May to
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December 2018. At a family conference in December 2018, Crossgrove “talked about
the importance of the case plan and getting started on the goals because we were already
at month seven and we needed to see some progress.” She also discussed what could
happen with the children if father did not successfully complete his case plan and reunify
with the children. She told father that he needed to obtain the assessments required by
the case plan, turn in a new PRC form, and complete random drug screens. According to
Crossgrove, father “reported that he was ready to comply with the case plan.” At father’s
request, JFS amended the case plan to remove the domestic violence class or couples
counseling and replace it with anger management services. Father’s compliance with the
case plan did not improve from December 2018 until the time of the permanent-custody
hearing in August 2019, however.
1. Visits
{¶ 34} Crossgrove said that father’s visits with the children were inconsistent. She
referred father to Adriel, an organization that provides visit-supervision services, so he
could begin supervised visits with the children. JFS opted for supervised visits because
of the allegations of domestic violence and drug use by father and because, according to
Crossgrove, “[t]ypically, that’s how we start out our cases, with supervised visits and as
they start making progress on their case plan goals and they’re doing well with visits and
keeping up with visits and doing their case plan goals, we taper off and we make it a little
bit less restrictive.” Had father made progress on his case plan goals, Crossgrove said,
JFS would have reduced the restrictions on his visits. Crossgrove chose Adriel because it
15.
held visits at a location near the motel where father was living. This was important
because father did not have a vehicle and the visit location was within walking distance
of the motel.
{¶ 35} Although father was allowed two visits a week, he attended only six visits
between July 17 and September 21, 2018. During that 10-week period, father was a “no
call, no show” for three visits and canceled two visits because he had to work. His last
visit with the children was on September 7. When father attended visits, the monitor did
not have any concerns with his interactions with the children.
{¶ 36} On September 28, 2018, Adriel suspended father’s visits because he was a
“no call, no show” for two consecutive visits. Father was informed of the suspension and
told that he could reinstate visits if he updated his phone number and contacted Adriel to
schedule future visits. Father did not contact Adriel, and has not visited the children
since September 7, 2018. According to Crossgrove, father never requested to see the
children, even when she asked if he wanted to see them.
2. Home Visits
{¶ 37} Crossgrove had trouble conducting home visits with father. During home
visits, Crossgrove checks on how the parent is doing, discusses the parent’s progress on
the case plan, and administers drug screens. She was rarely able to complete these tasks
with father. Crossgrove visited father in July, August, and December 2018. Father did
not schedule visits with Crossgrove in September, October, or November 2018. In 2019,
Crossgrove only visited father in July.
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{¶ 38} During the July 2018 visit, Crossgrove provided the referral to Adriel. She
also offered to arrange transportation to a drug abuse assessment, but father had not yet
completed the necessary Medicaid paperwork.
{¶ 39} At the August visit, Crossgrove said that father got angry with her when
she started talking about his case plan goals of drug treatment and anger management.
He blamed the whole situation on mother and accused Crossgrove of being a “baby
snatcher” because of a different JFS case he was involved in. Father refused to submit to
a drug screen during the visit and asked Crossgrove to leave.
{¶ 40} By September, Crossgrove had lost contact with father. She called the
hotel where he had been living and was told that he was no longer there and had not left a
forwarding address.
{¶ 41} In October, Crossgrove learned that father had been arrested and was in
jail. She attempted to visit him in jail, but he had already been released.
{¶ 42} In November, Crossgrove saw father at the semiannual review hearing and
learned that he had moved to Montpelier. Crossgrove scheduled a home visit for
November 29, but at 9:45 p.m. on November 28, father sent Crossgrove an email
canceling the home visit. He wrote that he would call her “before the end of the day
tomorrow/29th to reschedule.” He did not call Crossgrove.
{¶ 43} Crossgrove conducted her December 2018 home visit at father’s
Montpelier address. They discussed father’s lack of progress with his case plan goals.
Although father had obtained employment, he had not done anything else that was
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required of him. Crossgrove told father that he needed to complete a new PRC form
because his circumstances had changed; he now had full-time employment and was living
with a roommate. Crossgrove asked father to submit to a drug screen, which he refused.
She also confronted him about his failure to request visits with the children. Father
claimed it was because “he’s busy.” Crossgrove said she would look into the possibility
of having visits in Montpelier to accommodate father’s lack of transportation, but that
father would need to complete the new PRC form before she could arrange visits.
{¶ 44} Despite his professed willingness to comply with the case plan starting in
December 2018, father’s failure to cooperate with home visits continued into 2019.
{¶ 45} In January, Crossgrove contacted father by phone and email to schedule a
home visit, but father did not schedule a visit.
{¶ 46} In February, Crossgrove called father about scheduling a visit. When he
did not respond, she went to his home. Father’s roommate answered the door and told
Crossgrove that father was at work. Crossgrove left her business card and asked the
roommate to have father call her. He did not call.
{¶ 47} At the beginning of March, Crossgrove sent father an email requesting a
home visit. In his reply, father said, “I received a call from my lawyer that the agency
was going to file to have my rights removed and my children put up for adoption. So at
this point i [sic] see no reason to continue this game when i [sic] did absolutely nothing
for my children not to be placed with me.” He went on to express his belief that the
agency should not have taken the children from him and included him on a case plan
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because he had not done anything warranting the children’s removal. He also claimed
that he had “recieved [sic] no help only obstacles and loss of income * * *.” In response,
Crossgrove invited father to meet with her to discuss his complaints. Father declined her
invitation in an email:
Im not sure what else there is to say? I want my children back and
there is no real reason why I don’t. Im tired of everyone’s lies and im
confident that a meeting will serve nothing other than more smoke being
blown my way. If anyone truely wants to help me n my kids i would really
appreciate it. If not thats fine ill do what i need to do for us alone and we’ll
be just fine. Im not going to continue going back and forth about thomis
though [sic].
{¶ 48} Crossgrove did not contact father about a home visit in April, and father
did not contact Crossgrove to schedule a visit.
{¶ 49} In early May, Crossgrove sent father another email. She wrote,
I am reaching out to you because you have not requested to see your
children since your last contact in October. Your [sic] were supposed to
bring me the PRC application for your visits in December and that did not
happen. I want to know if you want visits and I will have to check to see
what funding source I can use for supervised visits. It’s up too [sic] you to
get back to me to get that set up and also to complete a home visit with you
also.
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Father did not respond.
{¶ 50} In June, Crossgrove made an unannounced visit to father’s home. His
roommate answered the door and said that father was not home. Crossgrove left her
business card and asked the roommate to have father call her. Crossgrove made a final
attempt to schedule a home visit by emailing father after her unsuccessful visit. He
responded, “I respectfully wish to resolve this matter in court.”
{¶ 51} In July, at the request of father’s attorney, Crossgrove scheduled a meeting
with father. At the meeting, father agreed to allow Crossgrove to conduct a home visit.
He also agreed to schedule his drug abuse and mental health assessments. He refused a
drug screen, however. Crossgrove said that he “believed that he should never have been
put on the case plan and that he shouldn’t have to do all this stuff to get his kids back.”
{¶ 52} During the July home visit, Crossgrove did not identify any major issues
with the home, but said that father did not have beds or dressers for the children and that
safety devices would need to be installed for the outlets and stairs because of the
children’s young ages.
{¶ 53} As of the date of the permanent-custody hearing in August 2019,
Crossgrove had not done a home visit with father that month.
3. Drug Screens
{¶ 54} Crossgrove testified that the random drug screens required by father’s case
plan were important because of the allegations that father was using drugs and his arrest
in October 2018 for having drug paraphernalia. In addition to Crossgrove’s testimony,
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JFS introduced certified copies of several of father’s misdemeanor convictions, but did
not question father about the convictions. The documents show that father was convicted
of domestic violence and disorderly conduct in 2000; underage consumption of alcohol,
possession of drug paraphernalia, and possession of marijuana in 2002; OVI in 2005;
consumption of alcohol in a motor vehicle in 2006; resisting arrest in 2007; OVI in 2009;
and possession of drug paraphernalia in 2018.
{¶ 55} Regarding the 2018 conviction—that happened during the pendency of this
case—Viers, the BPD officer, testified that he arrested father on a bench warrant in
October 2018. While searching father incident to the arrest, Viers found a glass pipe
“concealed in [father’s] under garments * * *.” The residue in the pipe field tested
positive for methamphetamine. Father admitted that he had used the pipe to smoke
methamphetamine. As a result, Viers charged father with fourth-degree misdemeanor
possession of drug paraphernalia. Father pleaded no contest to the charge. The
municipal court found him guilty and imposed a fine and a driver’s license suspension.
{¶ 56} Crossgrove said that father’s drug screens on June 15 and December 17,
2018, were positive for THC. His screen on July 11, 2018, was negative. He refused to
provide samples for any other drugs screens that the agency requested.
{¶ 57} Crossgrove admitted on cross-examination that the agency would not
typically remove children from a parent who tests positive for marijuana use, but would
work with the parent on the issue. In addition to the marijuana use, however, Crossgrove
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also testified that mother told her in June 2018 that father “does drugs and used
methamphetamines.”
4. Counseling and Assessments
{¶ 58} Crossgrove also testified that father failed to obtain anger management,
mental health, and drug abuse assessments. Crossgrove said the anger management
assessment was important because of the allegations of domestic violence between father
and mother and because father got angry very easily during the August 2018 home visit.
The drug abuse assessment was important because of the allegations that father was using
drugs. And the mental health assessment was important because mental health issues
often accompany drug abuse issues.
5. Housing and Employment
{¶ 59} Although he did not successfully complete many of his case plan goals,
father was able to obtain stable employment and housing. As early as May 2018, he had
a part-time temporary job at a factory. He was later hired into a full-time position at the
factory. He also lived with a friend in a home that Crossgrove said was generally
appropriate, although it needed some “tweaking,” such as adding outlet covers and
putting gates in front of the stairs.
{¶ 60} The GAL also testified regarding father. As a result of his investigation of
the case, the GAL believed that father lacked commitment to the children because he
refused to fill out a new PRC form, which was the only thing keeping him from seeing
his children and continuing his relationship with them. He said that Za.G. had talked
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about father and asked questions about him, and that there had been a bond between
Za.G. and father, but because father had not seen the children in almost a year, “a long
time has passed since that bond has been nourished.”
C. The Children
{¶ 61} Regarding the children, Crossgrove testified that, although mother
voluntarily placed them with K.M., her sister, in January 2018, the agency placed them
with S.M., mother’s other sister, on May 19, 2018. Crossgrove did not explain why JFS
moved the children from K.M.’s home. Mother and father had some concerns about the
children living with S.M. because she “wasn’t always the cleanest,” but they ultimately
agreed to the placement.
{¶ 62} Crossgrove visited S.M.’s home several times while the children were
there. At first, Crossgrove said the home was cluttered and messy, but she did not have
any major concerns. By the beginning of July, however, Crossgrove said that there was
clutter on the floor, food on the floor, dirty dishes all over the table, counters, and sink,
and the table did not have room for anyone to sit and eat. Crossgrove was concerned
about the choking hazards on the floor because of Ze.G.’s age. S.M. said that she would
clean the house. Four days later, Crossgrove returned to the home unannounced and
found the same conditions. She said that S.M. (who did not have any children of her
own) seemed overwhelmed.
{¶ 63} Two weeks after the first unannounced visit, Crossgrove conducted another
unannounced visit. The conditions had not changed. This prompted Crossgrove to ask
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the agency to move the children to a foster home, which it did on July 30, 2018. The
GAL agreed that moving the children into foster care was appropriate because the
situation at S.M.’s home was deteriorating; the home was messier than it was when the
children were first placed there, S.M. had lost her job, the electricity had been shut off,
and S.M. was behind on rent.
{¶ 64} Crossgrove did not seek another relative placement because maternal
stepgrandmother, who said that she would help with the children, had not been helping
and maternal grandmother was not able to take the children.
{¶ 65} Grandmother and stepgrandmother confirmed that they were not available
as relative placements. Grandmother said that her “husband is not comfortable having
[the children] in the home,” so grandmother was not able to take custody of the children.
Stepgrandmother also said that she and maternal grandfather were not able to be a
permanent placement for the children. Both grandmothers believed that the children
were being taken care of by the foster parents and that mother and father were not able to
care for the children.
{¶ 66} The children handled the transition from S.M.’s home to the foster home
well and have done well in their foster placement. Crossgrove and the GAL agreed that
the children had improved since moving in with the foster parents. When she was placed
with the foster parents, Ze.G. had a very flat affect and did not interact with people like a
typical child her age. By the time of the permanent-custody hearing, she was happy and
giggly and had bonded well with her foster parents and their families. When he came to
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the foster parents’ home, Za.G. had “serious tantrums, a lot of anger” and medical issues
including severe eczema on his legs, six cavities, and suspected autism. To help with the
tantrums and anger, foster mother said that they used the “teaching family model to instill
in him the proper way to express his feelings” and took him to a counselor. The foster
parents also attended to Za.G.’s medical needs.
{¶ 67} Foster mother said that she and her husband love the children and have
close relationships with them; they treat the children as if they are their biological
children. The children and the foster parents’ biological children are also close and get
along well.
{¶ 68} Both sets of maternal grandparents were bonded with the children, and the
foster parents allowed them to visit with the children every other week. Foster mother
confirmed that she would allow the visits to continue after adoption. She said that she
would “probably not” consider allowing mother or father to have contact with the
children after adoption, although “[i]t would depend on what [Za.G.’s] therapist probably
said about that. But most likely not.”
{¶ 69} Crossgrove never observed how either parent interacted with the children.
She did, however, have notes from Adriel regarding father’s interaction with the children
during his supervised visits. She did not have any concerns about father’s interaction
with the children based on the visit notes.
{¶ 70} Crossgrove testified that the foster parents wanted to adopt the children,
which she believed was in their best interests.
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{¶ 71} The GAL also believed that granting permanent custody to JFS and
allowing the foster parents to adopt the children was in the children’s best interests. He
did not think that the children could have a legally-secure placement with either parent,
whom the children had not seen in a year. He also believed that removing them from the
foster home would be detrimental, particularly for Za.G., who had fears about going to
new places.
D. Father’s Testimony
{¶ 72} After JFS presented its case at the permanent-custody hearing, father
testified in his own behalf.
{¶ 73} According to father, he was unaware that JFS had opened a case involving
the children until after the January 23 incident when drugs were found in the children’s
diaper bag. Although they were living separately, he and mother were dating at the time
and mother told him about the babysitter finding the drugs and JFS becoming involved.
{¶ 74} Sometime after learning of JFS’s involvement, father contacted Davis
through mother’s Facebook account to tell Davis “what [mother] was doing and
everything and that I’d like her to get ahold of me so that we could talk about what I
could do before my kids got taken away.” He said that he did not receive a reply, but that
Davis visited him at the apartment he was staying in to explain what was going on and
tell him that mother’s probation officer did not want mother and father to have contact.
Davis did not say there were things he needed to do with the agency.
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{¶ 75} At the family planning conference in May 2018, Crossgrove and father’s
former attorney told him that “doing a case plan was the only option that I had to get my
children back.” Regarding the case plan goals that he agreed to, father said that he
“underst[oo]d what they told me I had to do, but I didn’t understand what I had to do.”
Although father recited the goals included in his case plan, he responded “no” when his
attorney asked if he knew that the goals he listed were things that he had to do. In fact,
despite testifying that he “told them that I wanted more of the counseling * * *,” father
also said that he “didn’t know why I was even having to be involved in any kind of case
plan to begin with.” He said that the only reason he signed the case plan was because he
was told he had to in order to be reunified with the children. On cross, father said that
help with housing was the only help he needed from the agency, which he had not
received.
{¶ 76} Regarding the PRC forms, father said that he completed a form during the
case and had not changed jobs since he filled out the form. He had, however, gone from
part-time temporary employment to full-time employment, which included a pay raise.
He said the problem with the second PRC form was that his roommate “has no vested
interest or part of this and he was not going to fill anything out and I don’t blame him.
And it’s not his place to be part of this and have his income and everything looked at for
something that he’s not part of.” Father also refused to pay for any services required by
the case plan and said that JFS would not pay for services unless it had an updated PRC
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form. He admitted, however, that no one from the agency told him that it would not pay
for services.
{¶ 77} Father agreed to supervised visits with the children because it was the only
way JFS would let him see the children, but he did not understand why supervised visits
were required. He said that the visits were “[a] little awkward, but fine.” He did not
have transportation, so he walked to the supervised visit location in Bryan, but after he
had to leave the motel he was living in, he stopped going to visits because “I really had
no where to go and I couldn’t go to see my kids when I didn’t even know where I was
exactly going at that point.” Although father agreed that he had been told that all he
needed to do to reestablish visits was contact Adriel, he also said it was difficult for him
to know how to get visits with the children. He claimed that “I do want to see my kids
but I’m not going to pay to see my children either.”
{¶ 78} Regarding the home visits, father testified that “they didn’t really ever go
well at all. It seemed the only, my kids were never really discussed. It was only there to
get drug screens. That’s all it seemed it was about.” Father cooperated with the drug
screens at first, but he stopped cooperating “[b]ecause that seemed to be all it was about
was drug screens * * *.”
{¶ 79} Father did not obtain an anger management assessment because he
never saw from the very beginning why I was even needing to be a
part of anything. When it never even involved me to begin with. It was
[mother] to begin with, even after the allegations of domestic violence to
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begin with. * * * I’m not going to and I saw no reason to and I still don’t.
And I’m still not going to because I don’t have to satisfy; I believe anything
to anybody to be a father to my children when I’ve done nothing wrong.
He expressed aggravation with the fact that JFS did not require him to do anything
immediately following the December 2017 allegation of domestic violence, but then
asked him to participate in services after mother got into trouble for having drugs in the
children’s diaper bag. Regarding the domestic violence allegations, father said that,
although “they tried charging me with domestic violence” against mother, “[a]ll the
charges were always dropped.” Mother apparently alleged that father had also committed
domestic violence against her in 2013 or 2014.
{¶ 80} Father said that he was bonded with Za.G., but not Ze.G. because she was
so young—only 7 months old—when JFS took custody. He was confident that he could
care for them and love them, and said it was in their best interests to be with their father.
He also expressed his desire to regain custody of his children:
I want my children back. I want to be able to be their father on a
full-time basis every day and take them to daycare while I’m at work, pick
them up, take them home, put them to bed. You know, spend time with
them on the weekends when I have off and things formal families do.
That’s all I want.
Regardless, he did not comply with the case plan “[b]ecause I never should have been on
a case plan and I wasn’t fully disclosed of my rights and what I could have done and
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should have done and needed to do to get my children back and I didn’t need to do
anything.”
E. The Trial Court’s Decision
{¶ 81} In its September 18, 2019 judgment entry, the trial court terminated
mother’s and father’s parental rights and awarded permanent custody of the children to
JFS. In doing so, the court found by clear and convincing evidence that (1) the children
had been in the custody of JFS for 12 or more months of a consecutive 22-month period,
(2) the children had been abandoned by father, (3) the children could not be placed with
either parent within a reasonable time or should not be placed with either parent, and
(4) awarding permanent custody to JFS was in the children’s best interests.
{¶ 82} Under R.C. 2515.414(B)(1)(d), the court concluded that the children had
been in the temporary custody of JFS for 13 months and 3 days at the time JFS filed its
motion for permanent custody.
{¶ 83} Under R.C. 2515.414(B)(1)(b), the court found that father had abandoned
the children because he failed to maintain contact with or visit his children for more than
90 days when he had the ability to do so. Father had not seen—or asked to see—the
children for over 11 months, despite living in the same county and being asked by
Crossgrove if he wanted to see the children. Additionally, JFS made multiple requests
for father to complete an updated PRC form (which is a standard form required in all
agency cases) after his circumstances changed, but father refused.
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{¶ 84} Under R.C. 2515.414(B)(1)(a), the court determined that the children could
not be placed with either of the parents within a reasonable time and should not be placed
with either parent.
{¶ 85} In determining that the children could not and should not be placed with the
parents, the court made findings under R.C. 2151.414(E)(1), (2), (4), (10), and (13).
{¶ 86} As to (E)(1), the court found that the parents continuously and repeatedly
failed to substantially remedy the conditions that caused the children to be placed outside
of the home, despite reasonable case planning and diligent efforts by JFS. Mother’s
compliance with the case plan was “minimal at best”—she failed to complete any
substance abuse counseling, failed drug screens, and did not have stable housing or
employment—and she was ultimately sent back to prison for an “extended period of
time.” Father willingly signed the case plan, but failed to comply with it and did not
work with the agency to achieve his case plan goals. The court noted that JFS held
several meetings with father and his attorney to attempt to help father and removed the
domestic violence class at father’s request, but father refused the agency’s help and
would not comply with his case plan goals. The court concluded that the children were
removed from the home because of the parents’ “drug use and instability,” but “[e]ach
parent has failed to engage in treatment to remedy this condition.”
{¶ 87} As to (E)(2), the court found that both parents have chemical dependency
issues so severe that they are unable to provide an adequate permanent home for the
children within one year of the hearing. Mother self-disclosed drug use and failed
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multiple drug tests. She was also charged with felony possession of methamphetamine
and sent to prison for failing drug screens while she was on community control.
Although mother had taken classes while she was in prison, “[b]efore she was sent back
to prison, [mother] took little to no steps to help herself and her addiction.” Father has a
history of drug abuse, as shown by his prior drug-related convictions, and “refused to
even complete a drug and alcohol assessment in this case, * * * much less to engage in
treatment to remedy the condition.”
{¶ 88} As to (E)(4), the court found that mother and father both demonstrated a
lack of commitment to the children by failing to regularly visit or communicate with the
children when able to do so and other actions showing an unwillingness to provide an
adequate permanent home for the children. Mother, through her parents, had only
minimal contact with the children. She also failed to obtain stable, verifiable
employment or housing, was repeatedly incarcerated in both jail and prison, and
continuing to use illegal drugs, even after the children were removed from the home.
Father showed his lack of commitment by failing to work the case plan, failing to visit
the children, and refusing to obtain a drug abuse assessment, despite his positive drug
tests and his history of drug-related convictions. Father also had a history of periods of
incarceration, which showed that he “lacks the commitment to raise his children and an
unwillingness to provide an adequate, permanent home for them, free from drugs and
with a parent who is not in and out of incarceration.”
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{¶ 89} As to (E)(10), the court reiterated that father had abandoned the children as
described in R.C. 2515.414(B)(1)(b).
{¶ 90} And as to (E)(13), the court found that mother is repeatedly incarcerated,
which prevents her from providing care for the children. Mother’s history of criminal
convictions and incarceration began in 2012. She was sent to prison for burglary in 2012,
but was granted judicial release and placed on community control. She was unable to
follow the rules, however, so her community control was revoked and she was sent back
to prison for being terminated from her job, changing her residence without providing
notice, using methamphetamine, violating curfew, failing to regularly report to her
probation officer, and failing to make payments toward her financial obligations.
Additionally, mother was convicted of felony methamphetamine possession while the
JFS case was pending and sentenced to 180 days in jail. Although mother represented
that she would be released from prison early, she “produced no actual evidence to meet
her burden that the prison sentence will terminate within any lesser time than the
remaining balance of [mother’s] 30 month prison term.” Thus, the court concluded that
the evidence proved that mother would be in prison until March 4, 2020. The court also
noted that, even if mother were released early, the children could not live with her in
transitional housing.
{¶ 91} Further, the court determined under R.C. 2151.414(D)(1)(a), (b), (c), (d),
and (e) that it was in the best interests of the children to award permanent custody to JFS.
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{¶ 92} Specifically, the court found that (1) the children are happy and settled in
their foster home, the foster parents want to adopt them, and the foster parents are
providing appropriate relationships with the children’s biological extended family
members; (2) the GAL felt that the children had significantly progressed in the foster
home and recommended that permanent custody was in the children’s best interests;
(3) the children were in the custody of JFS for 13 consecutive months at the time JFS
filed the motion for permanent custody; (4) the children could only obtain a legally-
secure placement through permanent custody because the parents abandoned the children
and could not or should not have custody of them and no relatives had sought legal
custody of the children; and (5) father abandoned the children and mother, who had
repeatedly been incarcerated, was likely to remain incarcerated, which prevented her
from caring for the children.
{¶ 93} After considering all of the evidence and making detailed findings, the trial
court awarded permanent custody of both children to JFS and terminated mother’s and
father’s parental rights.
III. Law and Analysis
{¶ 94} Both parents argue that the trial court abused its discretion by awarding
permanent custody to JFS and that the decision was against the manifest weight of the
evidence.
{¶ 95} In her assignment of error, although she does not specifically cite the
statute, mother primarily argues that the trial court’s findings under R.C. 2151.414(E)(1)
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are unsupported by the weight of the evidence. Essentially, she argues that she needs
more time to reunify with the children; she claims that there was credible evidence that
she would be released from prison shortly after the permanent-custody hearing and that
she could have been an appropriate placement for the children in a reasonable time after
her release. Mother also makes a cursory argument that the trial court’s best-interest
determination is unsupported by the evidence. In response, JFS argues that mother’s
evidence was insufficient to overcome the presumption that she would be incarcerated for
the full length of her sentence and that the evidence supported the trial court’s findings
that the children could not or should not be placed with mother and that permanent
custody was in the children’s best interests.
{¶ 96} Like mother, although he does not cite the statute, father also primarily
argues in his first assignment of error that the trial court’s findings under R.C.
2151.414(E)(1) are not supported by the evidence. He claims that JFS presented
“minimal and conflicting” evidence supporting the award of permanent custody and that
JFS “did not do enough to try to reunify this family.” In his second assignment of error,
father argues that the evidence does not support the trial court’s finding that awarding
permanent custody to JFS was in the children’s best interests. And in his third
assignment of error, father contends that the record does not support the trial court’s
finding that JFS made reasonable efforts to reunify him and the children. JFS responds
that (1) the record shows that it diligently worked with father on the case plan and, even
if it did not, father legally abandoned the children by failing to communicate or visit with
35.
them; (2) the record supports the trial court’s best-interest determination; and (3) the
court was not required to make a reasonable-efforts determination because father legally
abandoned the children, or, alternatively, that the record supports the trial court’s findings
on reasonable efforts.
A. Law of Permanent Custody
{¶ 97} Revised Code 2151.414 provides the analysis that a trial court must
undertake when considering whether to terminate parental rights and vest permanent
custody in a children services agency. Under that provision, the court must first find that
one of the circumstances described in R.C. 2151.414(B)(1)(a)-(e) exists. Subsection (a)
requires a finding that the child has not been abandoned or orphaned, has not been in the
custody of a public children services agency or a private child placing agency for at least
12 months of a consecutive 22-month period, and cannot be placed with either parent
within a reasonable time or should not be placed with either parent; subsection (b)
requires a finding that the child is abandoned; subsection (c) requires a finding that the
child is orphaned and there are no relatives who are able to take permanent custody;
subsection (d) requires a finding that the child has been in the temporary custody of a
public children services agency or a private child placing agency for at least 12 months of
a consecutive 22-month period; and subsection (e) requires a finding that the child or
another child the parent had custody of has been adjudicated abused, neglected, or
dependent on three separate occasions.
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{¶ 98} If the court finds that R.C. 2151.414(B)(1)(a) applies, it must consider both
whether granting permanent custody to the agency is in the child’s best interest and
whether any of the factors enumerated in R.C. 2151.414(E) are present that would
indicate that the child cannot be placed with either parent within a reasonable time or
should not be placed with either parent. In re B.K., 6th Dist. Lucas No. L-10-1053, 2010-
Ohio-3329, ¶ 42-43. If the court finds that at least one factor in R.C. 2151.414(E)
applies, it must then determine whether awarding permanent custody to the agency is in
the child’s best interest by considering the factors in R.C. 2151.414(D)(1).
{¶ 99} All of the court’s findings under R.C. 2151.414 must be by clear and
convincing evidence. “Clear and convincing evidence” is evidence sufficient for the trier
of fact to form a firm conviction or belief that the essential statutory elements for a
termination of parental rights have been established. Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus; In re Tashayla S., 6th Dist.
Lucas No. L-03-1253, 2004-Ohio-896, ¶ 14.
{¶ 100} We review a trial court’s determination in a permanent custody case under
a manifest-weight-of-the-evidence standard. In re P.W., 6th Dist. Lucas No. L-12-1060,
2012-Ohio-3556, ¶ 20. In doing so, we must weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether the trier of
fact clearly lost its way in resolving evidentiary conflicts so as to create such a manifest
miscarriage of justice that the decision must be reversed. State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). But while we review the evidence and consider
37.
the witnesses’ credibility, we must be mindful that the trial court, as the trier of fact, is in
the best position to weigh evidence and evaluate testimony. P.W. at ¶ 20. Its discretion
in determining whether an order of permanent custody is in the best interest of a child
“should be accorded the utmost respect, given the nature of the proceeding and the
impact the court’s determination will have on the lives of the parties concerned.”
(Internal quotations omitted.) In re C.P., 10th Dist. Franklin No. 08AP-1128, 2009-
Ohio-2760, ¶ 10.
B. R.C. 2151.414(E) Findings
{¶ 101} Mother and father each argue that the trial court’s findings under R.C.
2151.414(E)(1) are not supported by the manifest weight of the evidence.
{¶ 102} In this case, the trial court found that R.C. 2151.414(B)(1)(a) applies, so it
examined the R.C. 2151.414(E) factors. “[A] court need only find one factor under R.C.
2151.414(E) to support a finding that the child cannot be placed with either parent within
a reasonable time or should not be placed with either parent * * *.” (Emphasis added.)
In re Carlos R., 6th Dist. Lucas No. L-07-1194, 2007-Ohio-6358, ¶ 38; In re C.F., 113
Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 50, citing In re William S., 75 Ohio
St.3d 95, 661 N.E.2d 738 (1996), syllabus.
{¶ 103} As relevant here, the court found that R.C. 2151.414(E)(1), (2), (4), and
(13) were applicable to mother and (E)(1), (2), (4), and (10) were applicable to father.
The statute provides:
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(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic * * * chemical dependency of the parent that is so severe
that it makes the parent unable to provide an adequate permanent home for
the child at the present time and, as anticipated, within one year after the
court holds the hearing * * *;
***
(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;
***
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(10) The parent has abandoned the child;
***
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the child.
R.C. 2151.414(E).
{¶ 104} As a preliminary matter, we note that R.C. 2151.414(E) directs a trial
court to enter a finding that the children cannot be placed with either parent within a
reasonable time or should not be placed with either parent when it finds any of the
enumerated factors applicable. Thus, even if the trial court erred in concluding that
(E)(1) was applicable to either parent, it also made findings related to mother under
(E)(2), (4), and (13) and father under (E)(2), (4), and (10)—that neither parent
challenges—which is sufficient to support its conclusion that the children could not be
placed with either parent within a reasonable time or should not be placed with either
parent. See In re Destiny C., 6th Dist. Lucas No. L-08-1147, 2008-Ohio-5292, ¶ 26 (“A
proper finding of any one of the R.C. 2151.414(E) factors is sufficient to sustain a
conclusion that the children cannot now, or in a reasonable time, be reunited [with the
parents].”).
1. Mother
{¶ 105} The record shows that mother substantially and repeatedly failed to
remedy the problems that led to the children being removed from her care and that JFS
provided reasonable case planning and diligent efforts to assist mother in remedying
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those problems. Following mother’s voluntary placement of the children with K.M. in
late January 2018, JFS attempted to set goals with mother through an alternative response
plan, but was ultimately unable to do so. One meeting where Davis attempted to create
goals with mother was cut short because mother’s probation officer found out that she
was there with father, who she could not have contact with. The second attempt was
unsuccessful because mother came to the meeting high on methamphetamine. Even
though JFS did not have a formalized alternative response plan, it offered mother family
coaching services and referrals for assessments. Mother refused family coaching, did not
contact one agency for an assessment, and canceled (without rescheduling) her
appointment for an assessment at the other agency.
{¶ 106} When JFS was able to create a formal case plan, mother made no
progress—or any attempts at progress—on the plan before being sent to prison. Notably,
mother failed to comply with the terms of her probation, which resulted in her return to
prison, and did not have employment or stable housing.
{¶ 107} Crossgrove testified that she removed mother from the case plan because
it would be “hard” for mother to make progress on her case plan while she was
incarcerated. There is no evidence that mother protested Crossgrove’s decision to
remove her from the case plan, and mother did not ask to be put back on the case plan
when she contacted Crossgrove in November 2018 and August 2019.
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{¶ 108} Essentially, mother argues that she should be granted more time to work
on her case plan goals. At the time JFS moved for permanent custody of the children—
who were four and one-half years and 20 months old at the time—they had been in the
agency’s temporary custody for 13 months, and mother had more than 8 months left on
her prison sentence. Although the record contains some evidence that mother was due to
be released early, in September 2019, upon her release, she would still have substantial
case plan requirements to complete before she could be reunified with the children. The
trial court was not “required to keep the children in limbo or to experiment with their
welfare” to see if mother will be able to refrain from drug use, find stable housing and
employment, obtain appropriate mental health and substance abuse services, and remain
law-abiding following her release from prison. In re C.S., 4th Dist. Athens No. 15CA18,
2015-Ohio-4883, ¶ 39; In re A.A., 6th Dist. Lucas No. L-17-1162, 2017-Ohio-8705, ¶ 37.
{¶ 109} In sum, the record contains clear and convincing evidence to support the
trial court’s R.C. 2151.414(E)(1) determination. Even assuming that the (E)(1)
determination was not supported by the record, the trial court was only required to make
findings under one subsection of R.C. 2151.414(E) to support its decision. Carlos R., 6th
Dist. Lucas No. L-07-1194, 2007-Ohio-6358, at ¶ 38. It also found that the children
could not or should not be placed with mother under (E)(2), (4), and (13), and mother
does not challenge these findings. Accordingly, we find that the trial court did not err in
finding that the children could not or should not be placed with mother.
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2. Father
{¶ 110} Father does not raise specific objections to the trial court’s R.C.
2151.414(E)(1) findings; rather, he generally argues that evidence supporting the award
of permanent custody was “minimal and conflicting” and that JFS “did not do enough to
try to reunify this family.”
{¶ 111} The record shows that father achieved two significant case plan goals:
stable housing and employment. He did not, however, achieve the remaining goals of
submitting to random drug screens, completing home visits, visiting the children,
attending domestic violence or anger management counseling, and obtaining drug abuse
and mental health assessments. Crossgrove testified that she had concerns about father
parenting the children even though he had found a home and a job because he did not
take any steps to address his problems with anger management and domestic violence or
drug use.
{¶ 112} To help father reach his goals, JFS provided referrals, arranged for
supervised visits at a location convenient for father, attempted to move visits closer to
father when he moved to a new city, repeatedly (and unsuccessfully) tried to have home
visits and get samples for drug screens, amended the case plan at father’s request to
change the domestic violence class to anger management, and repeatedly requested that
he complete the PRC form so that JFS could get funding for all of these services.
{¶ 113} Despite JFS’s efforts, father apparently had no interest in complying with
the case plan. It was evident from father’s testimony that he did not think he should have
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been on a case plan or that JFS should have been involved with him because he believed
that mother was the source of the family’s problems. Regardless, father (and his
attorney) agreed to the goals in the case plan. But rather than work with Crossgrove and
the agency to complete the case plan, father largely ignored it. He did not take simple
steps—such as contacting Adriel to reestablish visits, providing urine for drug screens, or
contacting Crossgrove to schedule home visits—that could have allowed him to reunify
with the children. Nor did he get mental health or drug abuse assessments or attend any
anger management classes or counseling, all of which could have addressed Crossgrove’s
concerns about father’s parenting. And throughout the case, father did not communicate
with or ask to see the children after September 7, 2018, nearly a year before the
permanent-custody hearing. Substantial and credible evidence shows that JFS provided
“reasonable case planning and diligent efforts” to assist father with the remaining
problems that had caused the children’s removal from the home—i.e., allegations of
domestic violence and drug use. In our view, the failings in this case are father’s, not the
agency’s.
{¶ 114} Again, we note that the trial court was only required to make a finding
under one of the R.C. 2151.414(E) subsections to support granting permanent custody to
JFS. Carlos R., 6th Dist. Lucas No. L-07-1194, 2007-Ohio-6358, at ¶ 38. Even
assuming that the trial court’s (E)(1) findings were not supported by the record, it also
found that the children could not or should not be placed with father under (E)(2), (4),
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and (10). Father does not challenge these findings. Thus, we find that the trial court did
not err in finding that the children could not or should not be placed with father.
{¶ 115} Because the trial court’s findings are supported by the evidence, we find
that father’s first assignment of error is not well-taken.
C. Best Interests of the Children
{¶ 116} Mother and father both argue that the trial court erred in finding that
granting permanent custody to JFS was in the children’s best interests. Father argues that
the trial court erred because the GAL testified that Za.G. had been bonded with father at
one point and that granting JFS permanent custody of the children “cuts them off from
their remaining biological relatives and could very possibly keep them in foster care
limbo until they reaches [sic] the age of majority.” Mother argues that permanent
custody was not in the children’s best interests because the trial court’s decision “negates
the presupposition that parental sovereignty and a child’s well being must be protected
* * *,” and “[n]o matter how good the foster parents are, they are not parents under Ohio
law and should not be given preference over parents in determining the best interest of
children.”
{¶ 117} In making a best-interest determination, R.C. 2151.414(D)(1) requires the
court to consider “all relevant factors,” including:
(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;
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(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the maturity of
the child;
(c) The custodial history of the child including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 118} Here, the trial court considered all of the relevant best-interest factors.
The court noted that the children have “significant” relationships with the foster parents,
the foster parents want to adopt the children, and the children are happy and settled in the
foster family. The children are also bonded with their biological extended family, and the
foster parents are committed to allowing extended family members to have contact with
the children after adoption. Although the children were too young to express their
preferences about custody, the GAL believed that permanent custody was in the
children’s best interests because the GAL felt that “the children have progressed
significantly” while in the foster home.
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{¶ 119} At the time that JFS filed for permanent custody, the children had been in
JFS’s temporary custody for 13 consecutive months, and the court found that the children
needed a legally-secure placement. A legally-secure placement could not be achieved
without awarding permanent custody to the agency because no relatives had sought legal
custody of the children and the parents abandoned the children and could not within a
reasonable time or should not have custody of them. The court reiterated that father had
abandoned the children, as provided in R.C. 2151.414(E)(10), and mother had been
incarcerated repeatedly and was likely to remain incarcerated “for some time into the
future,” which prevented her from caring for the children, as provided in R.C.
2151.414(E)(13).
{¶ 120} After reviewing the record, we find that JFS presented clear and
convincing evidence that supports the trial court’s finding that awarding JFS permanent
custody was in the children’s best interests. Accordingly, we find that mother’s
assignment of error and father’s second assignment of error are not well-taken.
D. Reasonable Efforts
{¶ 121} Finally, father argues that the record does not support a finding that JFS
made reasonable efforts to reunify him with the children because the “problems in the
record of how the agency handled its services demonstrate that its efforts were not
reasonable for reunification and clearly burdensome on the father.” JFS responds that the
trial court was not required to make a reasonable-efforts determination because father
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legally abandoned the children, or, alternatively, that the record supports the trial court’s
findings on reasonable efforts.
{¶ 122} Generally speaking, under R.C. 2151.419(A)(1), the state must have made
reasonable efforts to reunify the family prior to the termination of parental rights. C.F.,
113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 21. However, “[b]y its terms,
R.C. 2151.419 applies only at hearings held pursuant to R.C. 2151.28, 2151.31(E),
2151.314, 2151.33, or 2151.353”—pertaining to adjudicatory, emergency, detention, and
temporary-disposition hearings, and dispositional hearings for abused, neglected, or
dependent children. Id. at ¶ 41; A.A., 6th Dist. Lucas No. L-17-1162, 2017-Ohio-8705,
¶ 35. It does not apply to hearings on a motion for permanent custody filed pursuant to
R.C. 2151.413. C.F. at ¶ 43. Where, however, “the trial court relies on R.C.
2151.414(E)(1) at a permanency hearing, the court must examine the ‘reasonable case
planning and diligent efforts by the agency to assist the parents’ when considering
whether the child cannot or should not be placed with the parent within a reasonable
time.” Id. at ¶ 42.
{¶ 123} Here, father is not complaining that the trial court failed to make
reasonable-efforts determinations at an adjudicatory, emergency, detention, temporary-
disposition, or dispositional hearing for abused, neglected, or dependent children. His
argument relates solely to the trial court’s findings under R.C. 2151.414(E)(1) that the
children could not be placed with either parent within a reasonable time or should not be
placed with either parent. As previously discussed, the trial court’s (E)(1) findings
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regarding father were supported by the manifest weight of the evidence; father failed to
engage in case-plan services or remedy the conditions causing JFS to take temporary
custody, despite JFS’s efforts.
{¶ 124} Because the trial court was not required to make a reasonable-efforts
determination at the permanent-custody hearing and its findings that JFS engaged in
“reasonable case planning and diligent efforts” to assist father are supported by the
manifest weight of the evidence, we find that father’s third assignment of error is not
well-taken.
IV. Conclusion
{¶ 125} We have thoroughly reviewed the record of proceedings in the trial court,
including the trial testimony and exhibits. We find that the trial court’s decision was
supported by clear and convincing evidence and was not against the manifest weight of
the evidence. Mother’s and father’s assignments of error are without merit.
{¶ 126} Therefore, the September 18, 2019 judgment of the Williams County
Court of Common Pleas, Juvenile Division, is affirmed. Costs of this appeal shall be
divided equally between mother and father pursuant to App.R. 24.
Judgment affirmed.
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In re Za.G.
C.A. Nos. WM-19-019
WM-19-020
WM-19-021
WM-19-022
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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