In re M.K.

[Cite as In re M.K., 2023-Ohio-97.]
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. 22CA000034
: 22CA000035
: 22CA000036
:
: 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 W.K. For Defendant-Appellee GCCS
JEANETTE M. MOLL MELISSA WILSON
P.O. Box 461 1009 Steubenville Ave.
Zanesville, Ohio 43702 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. 22CA000034,35,36 2
Baldwin, J.
{¶1} Father, W.K., 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
W.K. and his 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 W.K.’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} W.K. and the mother of the children, A.P., 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. 22CA000034,35,36 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 sought
temporary custody and 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 W.K. complete a mental health
assessment at the provider of his choice, a parenting assessment and that he follow any
recommendations included in those assessments. He was asked to attend a parenting
class to assist him with parenting his three children and he was obligated to demonstrate
that he could provide a safe and stable home for the children. He was also asked to
demonstrate that he 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
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
Guernsey County, Case Nos. 22CA000034,35,36 4
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.
{¶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
Guernsey County, Case Nos. 22CA000034,35,36 5
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. 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.
{¶13} 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.
{¶14} 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
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
Guernsey County, Case Nos. 22CA000034,35,36 6
placement, she would need one-on-one care, structure and firm boundaries and further
individual, family and group counseling.
A.K.
{¶15} 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.
{¶16} A.K. was diagnosed with ADHD, unspecified type; post-traumatic stress
disorder; simple febrile convulsions; and behavioral insomnia of childhood, sleep onset,
association type.
{¶17} 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
of the hearing she had been prescribed five medications to address mental health issues
and her inability to sleep.
Guernsey County, Case Nos. 22CA000034,35,36 7
{¶18} 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 “Residentials
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).
{¶19} 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.
{¶20} 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.
FATHER’S PROGRESS
{¶21} Father completed a mental health assessment with Dr. Aimee Thomas on
July 8, 2020, prior to the children being taken into custody, and she diagnosed him as
suffering from major depressive disorder recurrent severe, and unspecified personality
Guernsey County, Case Nos. 22CA000034,35,36 8
disorder. Dr. Thomas was not confident that he would be able to apply any parenting
techniques he was taught as a result of the learning issues and functional illiteracy that
her testing and interview disclosed. W.K. did concede that managing his children’s
behaviors was difficult and, when asked about his methods to address their behavior, he
explained that he would “whip the children” and that he was advised by another county
agency to “whip [his son’s] butt in particular.” (Thomas Deposition, p. 14, lines 19-21).
{¶22} W.K. had not obtained housing for his children by the hearing date and
instead was saving money to put toward a new truck to replace his failing vehicle. At the
time of the hearing he was living in his truck and had been working toward finding housing
for his family, but altered his plan to focus on obtaining a camper.
{¶23} Father did complete a parenting program, but did not express a clear
understanding of the breadth of the problems experienced by the children. He was unable
to recall their birthdays and could not “verbalize” their diagnoses. He believed they were
in GCCS custody because they were homeless. The facilitator of the class would only
state that he “participated” and that he struggled with reading and writing.
{¶24} Father is still dealing with his diagnosis of depression and has only been
able to “talk a little more openly and process the ongoing issues that are happening with
the children being removed and how it's been affecting his functioning.” (Trial Transcript,
p. 233, lines 10-13).
{¶25} GCCS acknowledged that Father was cooperative and completed goals in
the case plan, but contended that he 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.
Guernsey County, Case Nos. 22CA000034,35,36 9
{¶26} 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.
{¶27} 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.
{¶28} 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:
* * 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
Guernsey County, Case Nos. 22CA000034,35,36 10
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
{¶29} 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.
Trial Transcript, p. 349, lines 13-24
{¶30} 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.
Guernsey County, Case Nos. 22CA000034,35,36 11
{¶31} 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.
{¶32} 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
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
Guernsey County, Case Nos. 22CA000034,35,36 12
how they plan to remedy the problems that resulted in the children being
removed.
Journal Entry, August 24, 2022, p. 17
{¶33} 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.
{¶34} The Father filed a timely appeal and submitted two assignments of error:
{¶35} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE AS GCCS FAILED TO USE REASONABLE
EFFORTS.”
{¶36} “II. THE TRIAL COURT ERRED WHEN, DESPITE A CONFLICT
BETWEEN THE CHILDREN’S WISHES AND THEIR ALLEGED BEST INTEREST, THE
COURT FAILED TO APPOINT COUNSEL FOR THEM FOR THE PERMANENT
CUSTODY HEARING THEREBY DEPRIVING THEM OF THEIR CONSITUTIONAL
(SIC) RIGHTS.”
{¶37} “III. THE TRIAL COURT ERRED WHEN, DESPITE A CONFLICT
BETWEEN THE CHILDREN’S WISHES AND THEIR ALLEGED BEST INTEREST, THE
COURT FAILED TO APPOINT COUNSEL FOR THEM FOR THE PERMANENT
Guernsey County, Case Nos. 22CA000034,35,36 13
CUSTODY HEARING THEREBY DEPRIVING THEM OF THEIR CONSITUTIONAL
(SIC) RIGHTS.”
STANDARD OF REVIEW
{¶38} 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
{¶39} “[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).
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id.Guernsey County, Case Nos. 22CA000034,35,36 14
{¶40} 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).
{¶41} 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.
{¶42} 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
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
Guernsey County, Case Nos. 22CA000034,35,36 15
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.
{¶43} 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.
I.
Guernsey County, Case Nos. 22CA000034,35,36 16
{¶44} In his first assignment of error, the Father contends In his first assignment
of error, the Father contends that the judgment of the trial court that the best interests of
the minor children would be served by the granting of permanent custody was against the
manifest weight and sufficiency of the evidence as GCCS failed to use reasonable efforts.
He contends that “reasonable efforts requires more than handing a parent a list of
services and then putting the entire responsibility on the parent to find and complete the
service yet that is what happened here.” (Appellant’s Brief, p. 1). He concludes that
termination of his visitation within the year prior to the permanent custody hearing
interfered with his ability to reunify and 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.
{¶45} 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).
{¶46} 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
Guernsey County, Case Nos. 22CA000034,35,36 17
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
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.
{¶47} The Father’s argument that GCCS failed to make reasonable efforts is
undermined by his listing of the portions of the case plan he completed. The Father
completed his mental health assessment, attended Mid-Ohio then Cedar Ridge for
counseling, completed a parenting assessment and parenting class, was employed at
Salt Fork Lodge and Conference Center, tested negative for illegal substances and
signed all releases. The Father also completed an assessment with Mike Humphrey at
Cedar Ridge regarding sexual assault and there were no recommendations for treatment.
W.K. concluded that he “made substantial, consistent progress on his case plan
objectives” but maintains that “the agency failed to utilize reasonable efforts, reasonable
case planning, and diligent efforts” without a clear explanation of the argument supporting
that conclusion or what actions he contends would be required to establish reasonable
efforts.
Guernsey County, Case Nos. 22CA000034,35,36 18
{¶48} While he did complete requirements contained within the case plan, the
Father did not obtain housing for himself or his children and was living in his vehicle. He
was aware that his case plan required him to obtain housing, but he abandoned that goal
and had planned to buy a newer vehicle, then sought help obtaining a camper. At the
hearing on the motion for permanent custody the Father stated he was willing to obtain
housing for the children if they were placed with him, but he was not interested in obtaining
that housing without some guarantee that they would be returned to his custody. Some
unidentified individuals told him that he would never be allows to have them again, and
he concluded “To me, if I can't have a place -- I mean, my kids back, no sense making
somebody else rich. I could get a camper and live in that.” (Trial Transcript. p. 261, In 12-
14). GCCS made reasonable efforts to assist W.K. in his effort to obtain housing, but he
chose to place his own needs over the needs of his children.
{¶49} Father’s suggestion that the reference to a prohibitively expensive parenting
class prevents a finding that GCCS used reasonable efforts is not supported by the facts
in the record. 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.]
issues, I had concerns that they would be able to recite information but not necessarily
Guernsey County, Case Nos. 22CA000034,35,36 19
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.
{¶50} Further, 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} 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.
{¶52} We also find that the termination of visitation does not have any impact on
the finding of reasonable efforts. First, the Father provides only a conclusion that it
interfered with reunification, but no argument to support his 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. 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.Guernsey County, Case Nos. 22CA000034,35,36 20
{¶53} 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 and the best interests of the children would
be served by granting permanent custody. 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.
{¶54} The first assignment of error is denied.
II.
{¶55} The Father combines the second assignment of error with the first and the
delineation between the argument is not as clear as it might be. The stated assignment
of error is “ There was not clear and convincing evidence for the trial court to find that the
minor children should not be placed with appellant and that it was in the minor children’s
best interest to be placed in the permanent custody of Guernsey County Children’s
Services” but we interpret his brief as arguing that he made substantial consistent
progress on his case plan and, therefore, the court could not conclude that the children
could not be placed with their parents within a reasonable time. As to the best interest,
the Father argues that that trial court failed to adequately consider the wishes of the
children and failed to appoint legal counsel for the children.
{¶56} 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 have “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
Guernsey County, Case Nos. 22CA000034,35,36 21
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.
{¶57} 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:
The Court finds that GCCS has made diligent and reasonable efforts
to finalize a permanency plan for M.K., A.K. and E.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.
Guernsey County, Case Nos. 22CA000034,35,36 22
Journal Entry, Aug. 24, 2022, p. 16
{¶58} 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.
{¶59} The Father’s second assignment of error is denied.
III.
{¶60} In his third assignment of error, the Father contends that the trial court erred
by not appointing counsel for the children because there was a conflict between the
children’s wishes and their best interest as promoted by the guardian ad litem.
{¶61} Father combed through the reports of the guardian ad litem and the Court
Appointed Special Advocate and isolated statements that he concludes show a need for
the appointment of counsel for the children. First, we note that the Father did not press
this issue before the trial court so that the matter could have been fully developed at that
juncture, raising the question of whether his argument has been waived. Under the
circumstances, we have determined that we should consider the merits in the interest of
justice. Further, the trial court did review that issue in considering the children’s best
interest and concluded that “[t]he wishes of the children were set forth in the GAL report.
M.K. does not wish to return to his mother or father and A.K., and E.K. could not form a
reliable statement regarding their wishes.” (Journal Entry, Aug. 24, 2022, p. 14).
{¶62} The Father selects portions of the GAL and CASA report to support his
contention that a conflict of interest existed, but any conflict vanishes when the quote is
viewed in its entirety. The GAL’s analysis of the wishes of the children makes reference
Guernsey County, Case Nos. 22CA000034,35,36 23
to A.K.’s comment regarding returning home to her parents, but that quote is qualified by
the accompanying text:
Neither A.K. nor E.K. were able to form a reliable statement
regarding their wishes. A.K., although stating at one point that she would
like to return with her parents, was not consistent nor firm in her statement
of wanting to return to live with either parent. A.K. also stated at various
points that she would like to live with CW Tacy Bates, CASA Cheryl Gadd,
or myself, despite having just met her at the time.
E.K., as the youngest of the three, had the most trouble
communicating her wishes. She was seemingly unable to focus on the
conversation at hand for more than a few seconds at a time (a problem that
seemed to affect all three children), We played “Pirates” during our
conversation, a game that involved hiding “treasure” around the room and
finding it. During our game, she indicated that she loved her siblings, but if
she could choose anywhere, would prefer to return to “Debbie”, a prior
foster caregiver’s home.
Guardian ad litem, Report, July 29, 2022, p. 5.
{¶63} The complete quote from the CASA report reflects A.K. did not have a clear
desire to live with her parents:
In asking C-A.K.’s wishes after she completes the program at Fox
Run C-A.K. told the group she wants to live with GCCS T. Bates for 10 days
with her mommy and daddy there too. Then move to CASA Ms. Cheryl’s
house and finally stay with Atty. GAL Danny for one day then move back
Guernsey County, Case Nos. 22CA000034,35,36 24
with mommy and daddy at the apartment. Clearly C-A.K.’s answer to the
wishes for placement after completion of Fox Run proves her lack of
understanding of her circumstance.
CASA Report, July 25, 2022, p. 8.
{¶64} E.K. expressed a desire to “go back to mom and dad” but the complete
quote makes it clear she was not referring to her biological parents:
CASA did ask C-E.K. what her wishes are once she completes the
program at Heritage Hannah Neil. C-E.K. told CASA she wants to go back
to mom and dad. CASA knows she also calls Brent and Taysha mom and
dad. CASA asked which mom and dad she stated Taysha.
CASA Report, July 25, 2022, p. 9.
{¶65} This case differs from In re H.R., 2nd Dist. Montgomery No. 21274, 2006-
Ohio-1595, ¶ 8, a case cited by Father, where a ten year old clearly expressed her desire
to be adopted and her wish to continue to visit her biological father. That case did not
indicate that the ten year old suffered severe mental health issues or that she had any
problem expressing her desires. The guardian ad litem in that case reported the desires
of the child and the Father filed a motion requesting appointment of separate counsel,
another distinguishing feature of the case. As noted above, W.K. did not bring this matter
to the attention of the trial court and did not move for the appointment of separate counsel.
{¶66} And this is not a case where the juvenile has consistently and repeatedly
expressed a desire to be with a parent. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-
1500, 805 N.E.2d 1110, ¶¶ 5-6. Instead, the children in this case who have established
mental health diagnoses and behavioral problems have responded to questions in such
Guernsey County, Case Nos. 22CA000034,35,36 25
a way that it is clear that they have not yet sufficient maturity and intellect to understand
their circumstances. The trial court has noted the severe trauma suffered by the children
and found that they “could not form a reliable statement regarding their wishes” and the
record supports that finding.
{¶67} Finally, any attorney appointed to represent the children would not be any
more successful in determining whether these children could express a consistent and
coherent desire to live with their parent or another person. A.K. told her therapist “I think
I need a new mom and dad. My mommy and daddy taught me how to do this. Do you
think that me and Sissy can go live with Grandma or my aunt? Do you think somebody
here can adopt me? Do you think me and Sissy can be in a home together?” (Trial
Transcript, p. 107, lines 10-15). E.K. “wants to know when she can go back to Taysha’s.
C-E.K. Refers to the last foster parents as ‘my mom and dad’ ” so an appointed attorney
would face an insurmountable challenge interpreting the wishes of these children. (CASA
Report, July 25, 2022, p. 9)
{¶68} We find that the comments made by the children do not present a conflict
of interest for the guardian ad litem. Instead we find that these comments are the
consequence of the immaturity, mental health issues and trauma suffered by the children
and cannot be interpreted as a consistent or repeated desire for a result that conflicts with
the guardian ad litem’s recommendation regarding the children’s best interest.
{¶69} The third assignment of error is denied.
Guernsey County, Case Nos. 22CA000034,35,36 26
{¶70} 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.