In re M.K. , 2023 Ohio 96 ( 2023 )

[Cite as In re M.K., 2023-Ohio-96.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. Earle E. Wise, P.J.
M.K. : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
A.K. :
:
E.K. : Case Nos. 22CA000030
: 22CA000031
: 22CA000032
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Court of Common Pleas, Juvenile
Division, Case No. 20JC00255
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 12, 2023
APPEARANCES:
For Plaintiff-Appellant A.P. For Defendant-Appellee GCCS
ANDREW E. RUSS MELISSA WILSON
P.O. Box 520 1009 Steubenville Ave.
Pickerington, Ohio 43147 Cambridge, Ohio 43725
For Guardian Ad Litem For CASA/GAL
RICHARD D. HIXSON CHERYL GADD
3808 James Court, Suite 2 801 Wheeling Avenue
Zanesville, Ohio 43701 Cambridge, Ohio 43725
Guernsey County, Case Nos. 22CA000030,31,32 2
Baldwin, J.
{¶1} Mother, A.P., appeals the decision of the Guernsey County Common Pleas
Court, Juvenile Division, granting appellee Guernsey County Children’s Service’s motion
for permanent custody of her three children, M.K., E.K., and A.K.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Guernsey County Children’s Services, (GCCS) began providing services to
A.P. and her family in October 2018 after receiving allegations of child neglect and abuse.
The family received assistance from the children’s school, an organization called Creative
Options, the Board of Developmental Disabilities and GCCS.
{¶3} Jenny Antill of the Guernsey County Board of Developmental Disabilities
began working with the family in May 2019 assisting with their son, M.K.’s, behaviors and
developing a plan to identify his needs and strengths. She observed that M.K. repeatedly
attempted to run away, used extreme vulgar/sexualized language, was physically
aggressive, acted out and destroyed property. At school he would attack people and other
students, would attempt to bite them and acted out sexually. Though her focus was M.K.,
she was concerned about the behavior of A.P.’s daughter, E.K. E.K. stripped naked and
ran around the house. She ripped the couch cushions and tried to eat the padding from
inside the cushions. E.K. was so disruptive that Antill took a colleague to a visit to deflect
E.K.’s physical attempts to intervene in her meeting with M.K.
{¶4} A.P. and the father of the children, W.K., disclosed to Antill that they were
not confident they could parent M.K. and deal with his behaviors. Antill arranged for
services to come to the home and assist with M.K. and while W.K. and A.P. would accept
recommendations, they did not consistently apply the information provided. Antill recalled
Guernsey County, Case Nos. 22CA000030,31,32 3
that “[w]e would make a suggestion and they would do it maybe for a week and then it
just kind of fell off the charts.” (Trial Transcript, p. 43, lines 4-6).
{¶5} During one visit, Mother mentioned to Antill that A.K. suffered seizures and
Antill explained that A.K. may qualify for services if Mother would obtain a written
diagnosis regarding the seizures, but Mother never provided the diagnosis.
{¶6} W.K. and A.P. executed a voluntary agreement of care with GCCS in July
2020, and the agreement was renewed twice. (Juv.R. 38(A)(1)). Despite the services
provided, the parents were unsuccessful in caring for the children. GCCS obtained an ex
parte order on October 1, 2020 granting GCCS temporary custody. The trial court found
the children dependent (Journal Entry, Dec. 15, 2020) and at the dispositional hearing
ordered that they remain in the temporary custody of GCCS and approved the case plans
for the parents. (Journal Entry, Jan. 11, 2021).
{¶7} The case plan included a requirement that A.P. complete a drug and alcohol
assessment at the provider of her choice and follow any recommendations provided,
participate in random drug screens, complete a mental health assessment and follow any
recommendations. She was asked to attend a parenting class that specializes in dealing
with challenging behaviors to assist her with parenting her three children and she was
obligated to demonstrate that she could provide a safe and stable home for the children.
She was also asked to demonstrate that she could provide for the children’s basic needs
including nutrition, shelter, clothing, bedding, supervision, medical and educational
needs.
{¶8} GCCS moved for permanent custody on September 15, 2021, but
requested that motion be dismissed without prejudice in February 2022. A second motion
Guernsey County, Case Nos. 22CA000030,31,32 4
for permanent custody was filed on February 25, 2022 and amended March 1, 2022.
GCCS contended that the parents had failed to remedy the issues that resulted in the
children being removed from the home despite receiving services from a number of
different agencies during the voluntary agreement of care and during the time the children
were in temporary custody of GCCS. The motion also described each child’s mental
health status and their placement in residential treatment.
{¶9} GCCS offered testimony regarding the diagnoses of each child as well at
their behavioral issues at the hearing on the motion for permanent custody.
The Children’s Status
{¶10} GCCS discovered that each child suffered serious mental health diagnoses
and their behaviors made placement with foster parents untenable. They were first placed
into a foster home as a group, but it soon became evident that M.K.’s behavior with his
sister’s required a separate placement. He was not only physically abusive to his foster
parents, he was also acting-out sexually with his sisters, and frequently engaged in
“humping” his sisters, an action imitating sexual intercourse. M.K.’s behaviors lead to an
institutional placement where he was closely monitored and where he has had more
success in controlling his inappropriate behavior.
{¶11} The two girls, E.K. and A.K., were initially kept together, but their behaviors
overwhelmed the ability of foster parents to provide care and supervision and they were
separately placed in residential facilities that had the resources to manage their behavior
and provide therapy.
M.K.
Guernsey County, Case Nos. 22CA000030,31,32 5
{¶12} Danielle Oddo, M.K.’s therapist, described his initial diagnosis as ADHD,
oppositional defiant disorder, and unspecified mood disorder. He committed repeated
sexually vulgar behaviors that led to his being restrained once or twice every day. He has
made improvement, but this eleven-year-old is still in a sexual aggressor’s therapy group,
aggressive replacement training group, and individual therapy and is taking three
medications to address his behaviors.
{¶13} When M.K. is prepared to leave his current residential placement, Oddo
recommended “a therapy to foster home, preferably one that's foster to adopt. Somebody
that -- ideally a two-parent home that has experience with children transitioning out of
residential services. If not, someone willing to work with us in therapy to allow the
transition to be smooth.” (Trial Transcript, p. 75, lines 1-6). She expected M.K. to need
therapy for a period of time and an environment with a consistent schedule and regimen.
E.K.
{¶14} M.K.’s sister, E.K., had mental health issues as well and was treated by
Kristina Morgan beginning on June 13, 2022. E.K. came to Morgan with a diagnosis of
post-traumatic disorder, attention-deficit/hyperactivity disorder, adjustment disorder, and
disruptive mood dysregulation disorder. This seven-year-old girl receives two-and-a-half
hours of mental health, day-treatment group each day and individual therapy twice a
week. She meets with a psychiatric nurse practitioner at least once a month. She receives
daily nursing services, and community supportive psychiatric treatment and is taking two
medications.
{¶15} E.K. has made improvement, but it is limited. She too was transferred to a
residential facility after unsuccessful placements in foster homes. Initially she was striking
Guernsey County, Case Nos. 22CA000030,31,32 6
staff or peers every two hours, but now she can control her assaults for one-half of the
day before she lashes out. She is now taking her medication instead of refusing them or
spitting them out. Once she has sufficiently improved and can be released from residential
placement, she would need one-on-one care, structure and firm boundaries and further
individual, family and group counseling.
A.K.
{¶16} A.K., now ten years old, has also suffered significant problems. Her
therapist, Jacqueline Witzberger, noted that she had poor attention span, difficulty staying
on task, significant sleep issues and significant anxiety initially, then began exhibiting
significant sexual acting-out behaviors and sexualized behaviors prior to the hearing on
permanent custody. She had urinated on herself and in hallways. She defecated in the
hallways and had eaten her own feces. She is stripping clothing off and engaging in
sexual acts or mimicking sexual acts with other children.
{¶17} A.K. was diagnosed with ADHD, unspecified type, post-traumatic stress
disorder, simple febrile convulsion and behavioral insomnia of childhood, sleep onset,
association type.
{¶18} A.K. has an Individualized Education Plan and receives speech therapy.
She participates in CSPT (Community Supportive Psychiatric Treatment) groups that
assist her with life skills and social development seven days a week. She participates in
recreational therapy groups seven days a week and attends a psychotherapy group
provided by a licensed professional counselor five days a week. She receives individual
therapy at least twice a week and she sees a psychologist twice every month. At the time
Guernsey County, Case Nos. 22CA000030,31,32 7
of the hearing she had been prescribed five medications to address mental health issues
and her inability to sleep.
{¶19} A.K.’s progress has stalled as she deals with stages of grief and she is
currently exhibiting anger at people in her family and “at where her life is now.” Her
therapist felt this was a typical occurrence in residential placement since “[r]esidentials
are facilities for the children who have had the most traumatic, darkest early childhood
experiences. They can't function in the community safely. And so, they come in with a
host of difficulties and struggles and issues. And they go through periods of time where
you see them play out those behaviors, those situations, those events in their life.” (Trial
Transcript, p. 89, lines 17-24).
{¶20} Once A.K. is able to leave her residential placement, her therapist
recommended intensive home-based services so that she has people that are in the
home providing support to the family and to her, so she feels safe. A.K. will require
continued psychiatric care for medication management and specialized education
services.
{¶21} Each child has extensive needs that require the attention of several
professionals and each is under constant close supervision. Each is progressing as
expected in their separate residential placement, and the record shows that placement of
the children together would not be safe and would interrupt their progress toward
recovery.
MOTHER’S PROGRESS
Guernsey County, Case Nos. 22CA000030,31,32 8
{¶22} Mother completed a mental health assessment with Dr. Aimee Thomas on
July 8, 2020, prior to the children being taken into custody, and she diagnosed Mother as
suffering from Schizoaffective Disorder, Borderline Personality Disorder, Borderline
Intellectual Ability, Alcohol Use Disorder, Severe, Cannabis Use Disorder, Severe,
Stimulant Use Disorder, Severe. Dr. Thomas concluded that “This family requires
intensive intervention. However, even with the support of intensive services, their
prognoses is poor given the severity of [A.P.’s] mental health diagnoses, her ongoing use
of alcohol, and her children's special needs” and she questioned “the safety and wellbeing
of [M.K., A.K. and E.K.] in the [parent’s] home.” (Thomas Deposition, Exhibit GCCS 2, p.
13, 15).
{¶23} Dr. Thomas conducted a second assessment on May 17, 2022 and May 29,
2022 during which she found that Mother “is essentially functioning at the level of a 14-
year-old with regards to verbal skills and at the level of a 7-year-old with regards to
problem-solving or analytical skills.” (Thomas Deposition, Exhibit GCCS 3, p. 13). She
found that Mother’s “prior evaluation and current disclosures reveal ongoing symptoms
that preclude her from addressing her children's special needs at present” and that her
“non-verbal IQ of 72 reflects significant problems with problem solving, cause and effect
thinking, and the ability to learn, internalize and apply information taught in mental
health/substance abuse counseling and parenting skill training.” (Thomas Deposition,
Exhibit GCCS 3, p. 13, 16).
{¶24} Dr. Thomas updated her diagnoses at the second evaluation to:
Schizoaffective Disorder (based on prior evaluation), Other Specified Personality
Disorder - borderline traits, childlike, poor insight, Borderline Intellectual Ability, Alcohol
Guernsey County, Case Nos. 22CA000030,31,32 9
Use Disorder, Severe, in remission, Cannabis Use Disorder, Severe, Stimulant Use
Disorder, Severe, in remission.
{¶25} A.P. completed a parenting class, but when asked about her performance,
the coordinator of the group offered only that she attended and participated, and did not
comment on the quality of her involvement or any improvement in her abilities.
{¶26} A.P.’s case manager at Cedar Ridge explained that she was first evaluated
on August 10, 2021 and began receiving case management, maternal health services,
individual therapy, psychiatric and nursing services. Neither her case manager not any
other witness offered testimony regarding the status of her therapy or what progress she
made during the time between her evaluation and the hearing.
{¶27} A.P. did conceive two children while her children were in the custody of
GCCS. The first was a child of W.K., the father of her other children. The second was
conceived with a third man that she accompanied to Florida. She revealed to the Court
Appointed Special Advocate that some months prior to the hearing she was in Florida
with this man, they argued and he struck her. She made her way back to Ohio and
discovered she was pregnant. Both children were lost to miscarriages.
{¶28} Also, during her first assessment with Dr. Thomas, in July 2020, A.P.
described her relationship with W.K. as toxic and that “we fight, argue and cannot get
along” clashing most frequently about parenting approaches. Despite the conflict, A.P.
believed that W.K. was supportive of her plan to undergo gender reassignment. She
claimed that she felt like a misfit in her own body, planned to go by the name of Angel
after transition and she believed that W.K. supported her decision. She abandoned these
Guernsey County, Case Nos. 22CA000030,31,32 10
plans and reported to Dr. Thomas that she was no longer pursuing a gender change
during her second assessment in May 2022.
{¶29} GCCS acknowledged that Mother was cooperative and completed goals in
the case plan, but contended that she was not prepared to assume responsibility for the
children. The guardian ad litem and the Court Appointed Special Advocate for the children
agreed that the parents were not capable of parenting the children.
{¶30} The guardian ad litem recommended that the children be placed in the
permanent custody of the GCCS, focusing on the serious behavioral issues suffered by
the children and the parents’ apparent difficulty in applying rudimentary parenting
techniques as a result of their own mental health issues. He noted that the behaviors of
each child were challenging the skills of persons trained to counsel and treat troubled
children and that the children were in facilities that provided constant supervision. The
parents were struggling with their own mental health and could not provide the guidance
and support that one child needed and would be overwhelmed by the task of caring for
all three.
{¶31} The guardian ad litem also expressed concern that if the children were
returned to the parents, the children’s sexualized behaviors would not be controlled. He
reported that Mother overestimated her ability to care for the children and placing them
together would not be safe for the children and would exceed her ability to care for them.
{¶32} The Court Appointed Special Advocate (CASA) for the children came to the
same conclusion. She recommended that the court grant permanent custody to GCCS
because:
Guernsey County, Case Nos. 22CA000030,31,32 11
* * each child is in treatment, residential treatment, their case plans all three
outline trauma therapy due to posttraumatic stress. They have displayed
sexualized behaviors. And they even -- in the beginning of this case the
agency tried to put the girls together but had to split them up because of
their sexualized behaviors and acting out. So to protect the children, they
had to be split, the girls did. And they're each on medication that has to be
given accordingly as ordered, not missed. By testimony we heard
yesterday, that even the father had to be taken off his medication because
he would forget to take his meds. And these children must have their
medication on time. It is part of their treatment regime.
Trial Transcript, p. 348, line 13 to p. 349, line 3
{¶33} She concluded that Mother lacked the ability to parent these high needs
children due to her cognitive ability, her lack of insight into each child's medical diagnosis,
mental health issues, and the children’s need for medication, structure and consistency.
She noted that the children need a structured environment that the parents cannot
provide:
In part, Mother, her heart's in the right place, but I don't believe she
has the insight into what these needs are for her children. In her own words,
she said, they just need love, I need to be kind, I need to pick my battles.
Every day would be a battle. She forgets. And these children had issues
when they came into care. [M.K.’s] doing better, but he's a long way to go.
[E.K.] is just starting residential treatment and starting to cooperate a little
bit. She still has good days, bad days. And [A.K.] is a child in crisis.
Guernsey County, Case Nos. 22CA000030,31,32 12
Trial Transcript, p. 349, lines 13-24
{¶34} She confirmed that neither parent appreciated the severity of the children’s
behaviors, and that, even with additional time, the children could not be reunited with their
parents because once they complete residential treatment, they will need a therapeutic
foster home to continue to address their needs. And she discounted the complaint that
visitation had been stopped by observing that the children improved when visitation
ended. M.K. still had phone contact, but it was brief and was usually ended by him.
{¶35} The CASA was also concerned by Mother’s use of medical marijuana to
self-medicate and feared it would impact her ability to parent. Mother was legally using
medical marijuana under the supervision of a physician, but neither the physician nor any
other expert testified as to its purpose. Mother asserted that the medical marijuana helped
relieve the “blackouts” she claimed to have experienced, where her vision was interrupted
for a period of time. She explained that they were not true blackouts, but acknowledged
that her vision was affected and mentioned that an unidentified hospital recommended
that she “get to neurology for it” but she had not seen a neurologist prior to the hearing.
Aimee Thomas, a licensed psychologist who evaluated A.P. on June 22, 2022, affirmed
the need for a neurological consult to resolve this issue.
{¶36} The trial court took the matter under advisement and issued a journal entry
on August 24, 2022 granting the motion for permanent custody. After a thorough analysis
of the testimony and evidence, the trial court concluded that:
The Court finds that these children have been subjected to much
trauma, neglect and abuse in their young lives. Father denies all wrong
doing and mother has remained silent about this issue from the start. On
Guernsey County, Case Nos. 22CA000030,31,32 13
the one hand, the parents admit they have problems addressing their
children’s behaviors. On the other hand, they don’t accept responsibility for
much of the trauma. Mother and Father have limited insight into their own
mental health concerns. The Court does not believe, based on the
testimony and evidence presented, that they truly understand the
magnitude of the challenges their children face. The Court does not find the
testimony of either parent to be credible as to how they got to this place or
how they plan to remedy the problems that resulted in the children being
removed.
Journal Entry, August 24, 2022, p. 17
{¶37} The trial court also found that GCCS made reasonable efforts to finalize a
permanency plan and to eliminate the continued removal of the children from the home
and have attempted to make it possible for the children to return home, but the parents
were unable to remedy the reasons leading to the removal of the children. The court found
that it was in the best interest of the children that the parental rights of the Father and
Mother were terminated and that permanent custody be granted to GCCS.
{¶38} A.P. filed a timely appeal and submitted two assignments of error:
{¶39} “I. THE TRIAL COURT ERRED IN ALLOWING THE MOTION FOR
PERMANENT CUSTODY TO PROCEED AND/OR IN GRANTING THE MOTION DUE
TO A LACK OF REASONABLE EFFORTS BY THE GUERNSEY COUNTY CHILDREN
SERVICES AGENCY.”
Guernsey County, Case Nos. 22CA000030,31,32 14
{¶40} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT PROPERLY
CONSIDERING THE BEST INTERESTS OF THE CHILDREN AS REQUIRED BY R.C.
§ 2151.414(D).”
STANDARD OF REVIEW
{¶41} As to our standard of review, generally we review the trial court’s decision
in this context for abuse of discretion. We would examine the entire record and determine
whether there is sufficient competent and credible evidence to support the judgment
rendered by the trial court. Seasons Coal Company v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1978). Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
The trial court must resolve disputed issues of fact and weigh the testimony and credibility
of the witnesses. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990). We
would defer to the trial court's discretion because the trial court had the opportunity to
observe the witnesses and parties in weighing the credibility of the proffered testimony in
a way a reviewing court cannot.
BURDEN OF PROOF
{¶42} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's
rights has been described as, “* * * the family law equivalent to the death penalty in a
criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).
Guernsey County, Case Nos. 22CA000030,31,32 15
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id.{¶43} An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and
convincing evidence” as “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to the extent of such
certainty as required beyond a reasonable doubt as in criminal cases. It does not mean
clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d
23 (1986).
{¶44} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶45} Following the hearing, R.C. 2151.414(B)(1) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
Guernsey County, Case Nos. 22CA000030,31,32 16
or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's
parents;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who are
able to take permanent custody; or
(d) the child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period, or the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶46} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
Guernsey County, Case Nos. 22CA000030,31,32 17
{¶47} In her first assignment of error, A.P. contends the trial court erred by
allowing the motion for permanent custody to proceed because GCCS failed to use
reasonable efforts. She argues that GCCS’s referral to Goodwill Parenting in Canton to
address the special needs of the children was not reasonable due to the prohibitive cost
and the lack of transportation. She also contends she was not permitted to visit with her
children for several months prior to the hearing on the motion for permanent custody and
that she was assigned “several caseworkers” but provides no argument or explanation
regarding how these allegations impact the analysis of the efforts of GCCS.
{¶48} Overall, Ohio's child welfare laws are designed to care for and protect
children, “whenever possible, in a family environment, separating the child from the child's
parents only when necessary for the child's welfare or in the interests of public safety.”
R.C. 2151.01(A). To that end, various sections of the Revised Code refer to the agency's
duty to make reasonable efforts to preserve or reunify the family unit, including the
requirement that the agency prepare and maintain a case plan with the goal to eliminate
the need for the out-of-home placement so that the child can safely return home (R.C.
2151.412) and the burden on the agency to prove it made reasonable efforts to prevent
the child's removal (R.C. 2151.419).
{¶49} The agency's duty to use reasonable efforts applies only to efforts to avoid
removal of a child from their home or to reunify the child with the family following removal.
In re Warren, 5th Dist. Stark No.2007CA00054, 2007-Ohio-5703. While the agency did
not have to show reasonable efforts at the permanent custody hearing, to the extent that
the trial court relied on R.C. 2151.414(E)(1) at the permanent custody hearing, the court
must examine the reasonable case planning and diligent efforts by the agency to assist
Guernsey County, Case Nos. 22CA000030,31,32 18
the parents when considering whether the child cannot and should not be placed with the
parent within a reasonable time. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 42. The issue is not whether there was anything more the agency could
have done, but whether the agency's case planning and efforts were reasonable and
diligent under the circumstances of the case. In re J.D., 3rd Dist. Hancock No. 5-10-34,
2011-Ohio-1458, ¶ 14. The child's health and safety is paramount in determining whether
reasonable efforts were made. In re R.P., 5th Dist. Tuscarawas No. 2011AP050024,
2011-Ohio-5378, ¶ 47.
{¶50} A.P. focuses her argument regarding reasonable efforts on the requirement
that she obtain parenting skills that would permit her to parent children with behavioral
problems. She complains and GCCS conceded that the program in Canton was
prohibitively expensive and that transportation to the program was not available. While
A.P. was not able to attend that program or any similar instruction, the representative from
GCCS clarified that the motion for permanent custody was not filed because the parents
did not complete the parenting class. (Trial Transcript, p. 182, lines 13-16).
{¶51} The program that was discussed at the hearing was described as a sixteen
week program for multiple evenings each week. The testimony of Dr. Aimee Thomas
regarding the parents’ cognitive abilities and mental health issues in conjunction with the
described behaviors of the children individually and as a group provided a reasonable
basis for the trial court to conclude that parents would not be able to successfully apply
what they learned and that they would once again be overwhelmed by the challenge of
raising these children in one home. Dr. Thomas, speaking in the context of basic parenting
class, stated that “[g]iven concerns with both [M.K.’s] learning issues, as well as [A.P.]
Guernsey County, Case Nos. 22CA000030,31,32 19
issues, I had concerns that they would be able to recite information but not necessarily
apply it.” (Thomas Deposition, p. 13, line 25 to p. 14, line 3). The trial court could
reasonably conclude that the same concern would apply to a more intensive parenting
program.
{¶52} Even if the parents could attend the specialized parenting program, the
severity of the children’s mental health issues and the cognitive issues suffered by the
parents support a conclusion that inability to provide access to the training was not the
basis for seeking or granting permanent custody. Dr. Thomas described A.P.’s ability to
internalize and apply complicated parenting techniques as limited at best because she
possessed the problem-solving aptitude of a seven-year-old. Her completion of a lengthy
parenting program would not resolve that disability and, relying upon the evaluation of Dr.
Thomas and the balance of the record, there is no support for a finding that A.P. would
be able to successfully apply the techniques that she might learn.
{¶53} Each of the children currently require the constant focus of trained
professionals and, while they are making progress in their own way, they present serious
challenges to the skills of the staff of their respective residential treatment centers. The
trial court was offered no evidence to support a conclusion that if A.P. had been able to
attend a class that provided training to parent troubled children, she would be better
prepared than the experts caring for her children.
{¶54} Consequently, the trial court’s finding that reasonable efforts were made is
not undermined by the failure to finance the parent’s participation in a program that Dr.
Thomas contended the parents may not be able to apply.
Guernsey County, Case Nos. 22CA000030,31,32 20
{¶55} We also find that the termination of visitation does not have any impact on
the finding of reasonable efforts. First, A.P. provides only a conclusion that it interfered
with reunification, but no argument to support her conclusion. GCCS halted visitation and
noted that the behavior of the children improved. On February 28, 2022 Father filed a
motion requesting the trial court order visitation, noting that he last visited M.K. and E.K.
in August 2021. and A.P. filed a similar motion thereafter. The trial court found “[n]either
the Agency, the CASA nor the GAL would recommend any visitation with the parents and
the children based upon the current situation. Clearly, these children have many problems
as the result of the parenting, or the lack of parenting of the Mother and Father. The best
interests of the children dictate that there be no visitation with the children until further
order of this court.” (Journal Entry, July 1, 2022, p. 3). The children’s health and safety
are the paramount concern when evaluating reasonable efforts and the trial court’s ruling
is consistent with that requirement. In re R.P., supra.{¶56} We have reviewed the entire record and find that the trial court did not abuse
its discretion in finding that agency's case planning and efforts were reasonable and
diligent under the circumstances of the case. The parents took advantage of the services
and recommendations of GCCS, but the underlying problems that led to the removal of
the children from the home nevertheless were not resolved.
{¶57} The first assignment of error is denied.
II.
{¶58} In her second assignment of error, A.P. argues that “the trial court abused
its discretion by not properly considering the best interests of the children as required by
R.C. § 2151.414(D).” In her abbreviated argument, she states “had she been provided
Guernsey County, Case Nos. 22CA000030,31,32 21
the necessary services, i.e., parenting classes specifically designed for children with
behavioral problems, the family could have been reunited and kept together. There is no
higher standard of “best interest” than a natural parent raising her own flesh and blood.”
(Appellant’s Brief, p. 5).
{¶59} The record shows that the children were taken into the custody of GCCS on
October 1, 2020, adjudicated dependent December 15, 2020 and remained in the
custody of GCCS until February 25, 2022, the day the motion for permanent custody was
filed, so the children had “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 * * *.” R.C. 2151.414(B)(1)(d). The trial court also
found that the children could not be placed with the either of the child’s parents within a
reasonable time, and that finding is supported by the record. The CASA offered
unrebutted testimony that the children could not be reunified with the parents if they were
given additional time, and the evidence of the mental health issues that afflict each family
member supports that conclusion. Consequently, we find that the trial court did not err
when it found that the children cannot be placed with either of the child's parents within a
reasonable time or should not be placed with the child's parents.
{¶60} The trial court moved to an analysis of the best interest of the children,
referring to the elements described in 2151.414(D)(1)(a)-(e). The trial court completed a
thorough analysis of the facts supporting its conclusion for each of the elements listed in
2151.414(D)(1) and concluded that the children needed a legally secure placement that
could not be achieved without a grant of permanent custody to the agency. The trial court
provided a succinct analysis of its findings in a concluding paragraph:
Guernsey County, Case Nos. 22CA000030,31,32 22
The Court finds that GCCS has made diligent and reasonable efforts
to finalize a permanency plan for M.K., A.K. by providing referrals for
service, exploring kinship, case management, and exploring permanency
planning. GCCS has made reasonable efforts to eliminate the continued
removal of the minor children and have attempted to make it possible for
the children to return home to the mother and/or father. The parents have
been unable to remedy the reasons for the children being removed in the
first place. GCCS has established a safe, stable and secure environment
for M.K., A.K., and E.K.
Journal Entry, Aug. 24, 2022, p. 16
{¶61} A.P. does not direct us to any evidence in the record to support her
conclusion that her attendance at the specialized parenting class would have altered the
outcome of this case. The evidence does support a conclusion that A.P.’s cognitive status
and the problems suffered by the children would overwhelm her ability to parent the
children, even had she taken the class.
{¶62} The trial court did not err in finding that the record contains clear and
convincing evidence that the best interest of the children will be served by granting
permanent custody to GCCS and that permanent custody was supported by the facts in
the record.
{¶63} A.P.’s second assignment of error is denied.
Guernsey County, Case Nos. 22CA000030,31,32 23
{¶64} The August 24, 2022 decision of the Guernsey County Court of Common
Pleas, Juvenile Division is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Gwin, J. concur.