In re M.H.

[Cite as In re M.H., 2021-Ohio-3642.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
IN RE:
CASE NO. 1-20-57
M.H.,
ADJUDICATED DEPENDENT
AND ABUSED CHILD.
OPINION
[MONICA O. - APPELLANT]
Appeal from Allen County Common Pleas Court
Juvenile Division
Trial Court No. 2019 JG 36152
Judgment Affirmed
Date of Decision: October 12, 2021
APPEARANCES:
Linda Gabriele for Appellant
Case No. 1-20-57
MILLER, J.
{¶1} Appellant, Monica O., appeals the November 23, 2020 judgment of the
Allen County Common Pleas Court, Juvenile Division, granting legal custody of
M.H. to Janet W. For the reasons that follow, we affirm.
Facts and Procedural History
{¶2} Monica and Malachai H. are the biological parents of M.H., born
August 2017.1 On May 31, 2019, the Allen County Children’s Services Board
(“ACCSB”) filed a complaint alleging M.H. was a dependent, neglected, and abused
child and requesting the trial court place M.H. in its temporary custody.2 In its
complaint, ACCSB alleged M.H. was taken to Lima Memorial Hospital
complaining of a swollen leg and multiple bruises. M.H. was subsequently
transferred to Nationwide Children’s Hospital where a skeletal survey revealed 14
fractures, in various stages of healing, on M.H.’s body. Medical professionals
determined that the injuries were the result of non-accidental trauma, and Monica
could not account for the injuries.
{¶3} Following a shelter-care hearing, held that same day, the trial court
found probable cause to believe M.H. was in immediate danger from her
1
Although Malachai is a party to the proceeding, the record does not indicate that he filed a notice of appeal.
Accordingly, our review focuses primarily on the trial court’s findings as they relate to Monica.
2
On June 11, 2019, ACCSB filed an amended complaint to reflect the additional statutory section of abuse
pursuant to R.C. 2151.031(C). (Doc. No. 25).
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surroundings and that removal was necessary to prevent immediate or threatened
physical or emotional harm. The trial court also found probable cause to believe
M.H.’s conduct, conditions, or surroundings were endangering her health, welfare,
or safety. The trial court further found ACCSB made reasonable efforts to prevent
the removal of M.H. from the home and eliminate the continued removal of M.H.
from the home. Accordingly, the trial court placed M.H. in the shelter care of
ACCSB.
{¶4} On June 28, 2019, ACCSB filed its first case plan which detailed its
concerns that M.H. had been the victim of physical abuse while in the care of
Monica and her then-boyfriend, Joshua P. Further, the perpetrator of the abuse was
unknown and the explanation given by Monica and Joshua of how M.H.’s injuries
occurred was not consistent with the type of injuries M.H. sustained. The case plan
required Monica, in part, to cooperate with law enforcement in an effort to
determine how the injuries to M.H. occurred, complete a parenting class and
demonstrate the skills obtained therefrom while interacting with M.H., complete the
Choose Your Partner Carefully course, and complete a mental health assessment
and follow all recommendations of the assessment. Monica was also required to
provide a safe and stable environment for herself and M.H. The case plan further
indicated that M.H. was in the temporary care of a paternal relative.
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{¶5} A second shelter-care hearing was held on July 3, 2019. At the
conclusion of the hearing, the trial court found probable cause to believe that the
conduct, conditions, or surroundings of the child were endangering the health,
welfare, or safety of the child and that the continued residence of M.H. in the home
would be contrary to her best interests and welfare. The trial court further found
that ACCSB made reasonable efforts to prevent the removal of M.H. from the home
and eliminate her continued removal. Thereafter, the trial court ordered M.H. into
the temporary custody of Janet W., her paternal great-aunt, pending adjudication
and disposition. The trial court noted that Monica and the GAL did not object to
M.H. being placed into Janet’s temporary custody. Additionally, the trial court
further ordered all visitations between Monica and M.H. be supervised by Janet or
some other individual approved by ACCSB.
{¶6} On July 25, 2019, an adjudicatory hearing was held before the
magistrate. With respect to dependency, the magistrate found that ACCSB proved
by clear and convincing evidence that M.H. was a dependent child, as the conditions
or the environment of the child warranted the State, in the interests of the child, in
assuming guardianship, due to M.H. receiving multiple fractures and bruising to her
body while living in the home with Monica and Joshua. Regarding the allegations
of abuse, the magistrate found by clear and convincing evidence that ACCSB
proved M.H. exhibited evidence of physical injury inflicted other than by accidental
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means or was an injury at variance with the history given for it pursuant to R.C.
2151.031(C). The magistrate further found that ACCSB made reasonable efforts to
prevent the removal of M.H. from the home and eliminate her continued removal.
Accordingly, the magistrate found M.H. to be a dependent child pursuant to R.C.
2151.04(C) and an abused child pursuant to R.C. 2151.031(C). The trial court
dismissed the allegations that M.H. was a neglected child pursuant to R.C. 2151.03.
The magistrate’s decision reflecting the findings of the adjudication hearing was
filed on August 13, 2019. In a judgment entry filed on September 5, 2019, the trial
court adopted the magistrate’s findings and recommendations with respect to
adjudication.
{¶7} On August 20, 2019, a disposition hearing was held before the
magistrate. At the conclusion of the hearing, the magistrate awarded temporary
custody of M.H. to Janet. Further, the magistrate again found ACCSB made
reasonable efforts to prevent the removal of M.H. from the home and eliminate her
continued removal. The magistrate approved and journalized the case plan ACCSB
filed on June 28, 2019. Further, the magistrate ordered all visitations between
Monica and M.H. be supervised by Janet or some other individual approved by
ACCSB. The magistrate’s decision reflecting the findings of the dispositional
hearing was filed the next day. On September 20, 2019, the trial court filed a
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judgment entry of disposition wherein it adopted the magistrate’s findings and
recommendations with respect to disposition.
{¶8} On November 21, 2019, ACCSB filed its semi-annual review with the
trial court. The review indicated that, at that time, no criminal charges had been
filed regarding the physical abuse of M.H. ACCSB indicated it had not received
any reports from law enforcement regarding a lack of cooperation from Monica.
The review indicated that Monica had been referred to parenting classes and the
Choose Your Partner Carefully course, but she had not yet completed either service.
Additionally, Monica advised she had contacted a facility that provides mental
health services, but had not yet completed a diagnostic assessment. ACCSB
indicated that, at the time of the semi-annual review, “Monica has not completed
any of the services requested [in] the [c]ase [p]lan.” Further, ACCSB detailed its
continuing concern for Monica’s mental health, ability to understand appropriate
parenting, and ability to determine safe and appropriate individuals to be around
M.H. As to the child, the semi-annual review indicated Janet had provided for all
of M.H.’s basic needs, safety needs, and special needs.
{¶9} Further, the case review indicated that although Monica had full-time
employment, her income was not sufficient to meet her needs, and Monica was
residing with her mother and younger siblings. ACCSB further indicated that
Monica was enjoying supervised visitation with M.H. approximately once a week.
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Although ACCSB reported that it did not have concerns regarding Monica’s direct
care of M.H., the agency continued to have concerns regarding Monica’s ability to
provide a safe environment.
{¶10} On April 28, 2020, ACCSB filed a motion requesting the trial court
modify the disposition of temporary custody of M.H. previously granted to Janet
and to place M.H. into Janet’s legal custody. ACCSB also requested the trial court
approve amended case plan 2.01 and terminate the case. ACCSB indicated the level
of risk to M.H. had not been reduced to suggest that it is in M.H.’s best interest to
be returned to Monica’s care and custody. Further, ACCSB noted that if legal
custody was granted to Janet, M.H. could continue to build a relationship and bond
with her biological parents and extended family.
{¶11} On May 14, 2020, ACCSB filed its semi-annual review in which it
indicated that Monica completed parenting classes and the Choose Your Partner
Carefully program. However, Monica has had “sparse contact” with M.H.
throughout the case, and ACCSB reported that it had not received information to
indicate that Monica’s interactions with M.H. improved. The report indicated that
Monica obtained her own housing in April 2020. The review also indicated that
Monica completed a mental-health assessment in December 2019. Monica
scheduled her first counseling appointment for February 2020, but did not show up
to the appointment. She rescheduled the appointment for May 5, 2020, but again
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failed to show up to the appointment. The mental-health agency contacted ACCSB
to inform them Monica’s case with the agency was terminated due to non-
compliance and that she would need to complete another diagnostic assessment with
the agency to re-engage in services. According to the report, Monica did not see a
need for her to participate in mental-health counseling. Further, Monica desired for
M.H. to be returned to her care and custody. Monica reported that she attends
approximately two supervised visitations with M.H. per month, and she advised the
visits were “going well.”
{¶12} On May 27, 2020, a hearing on the first annual review and ACCSB’s
motion requesting the trial court modify the disposition of temporary custody and
place M.H. into Janet’s legal custody was held in front of a magistrate. In a written
decision, the magistrate recommended M.H. be placed into the legal custody of
Janet. Further, the magistrate found that ACCSB made reasonable efforts to prevent
M.H.’s removal from the home and continued removal. The magistrate found the
services provided by ACCSB did not prevent removal or enable return because
Monica “failed to comply with Case Plan services and has failed to cooperate with
the Agency.” The magistrate also approved amended case plan 2.01. Accordingly,
the magistrate recommended that ACCSB’s motion requesting modification of the
disposition of temporary custody and placement of M.H. into Janet’s legal custody
be granted. Finally, the magistrate recommended that all contact and
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communication between Monica and M.H. be supervised and arranged at the sole
discretion of Janet. The magistrate’s decision reflecting its findings and
recommendations was filed on June 18, 2020.
{¶13} On June 29, 2020, Monica filed objections to the magistrate’s
decision. On October 26, 2020, Monica filed her amended objections to the
magistrate’s decision. On November 9, 2020, ACCSB filed its response to
Monica’s objections.
{¶14} On November 12, 2020, the trial court filed its judgment entry relating
to Monica’s objections to the magistrate’s decision. The court found by a
preponderance of the evidence that M.H.’s best interests would be served by placing
the child in the legal custody of Janet. Further, the trial court found that the evidence
supported the magistrate’s finding that ACCSB made reasonable efforts to allow
M.H. to be returned to Monica’s home. The trial court did find Monica’s objection
relating to the exercise of her visitation well-taken and made several modifications
to the magistrate’s order.
{¶15} On November 23, 2020, the trial court entered its judgment entry
adopting the magistrate’s decision and related findings of facts and incorporating
the amendment to the visitation order reflected in its November 12, 2020 entry
reviewing the magistrate’s decision.
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{¶16} Monica filed her notice of appeal on November 30, 2020. She raises
two assignments of error for our review.
Assignment of Error No. I
The trial court’s decision is against the manifest weight of the
evidence as the Appellee did not prove by a preponderance of the
evidence that the minor child should not be reunited with her
mother.
{¶17} In her first assignment of error, Monica argues that the trial court’s
decision granting legal custody to Janet is against the manifest weight of the
evidence because ACCSB did not prove by a preponderance of the evidence that
M.H. should not be returned to Monica’s custody.3 Monica further challenges the
trial court’s determination that granting legal custody of M.H. to Janet is in the
child’s best interest.
Standard of Review & Relevant Law
{¶18} Under R.C. 2151.353(A)(3), if the court adjudicates a child abused,
neglected, or dependent, then it may grant legal custody to a parent or other person
who requests custody. “‘Legal custody vests in the custodian the physical care and
control of the child while residual parental rights and responsibilities remain intact,’
3
We note that ACCSB failed to file a brief in this matter, a practice we strongly discourage. Well-crafted
legal briefs and oral arguments are a benefit to the court. Additionally, we caution ACCSB that, under App.R.
18(C), “If an appellee fails to file the appellee’s brief within the time provided by this rule, or within the time
as extended, the appellee will not be heard at oral argument except by the permission of the court upon a
showing of good cause submitted in writing prior to argument; and in determining the appeal, the court may
accept the appellant’s statement of the facts and issues as correct and reverse the judgement if appellant’s
brief reasonably appears to sustain such action.”
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and ‘[u]nlike permanent custody, granting legal custody does not terminate the
parent-child relationship.’” In re J.T., 3d Dist. Union No. 14-19-15 and 14-19-16,
2019-Ohio-4520, ¶ 16, quoting In re M.M., 12th Dist. Fayette No. CA2010-12-034,
2011-Ohio-3913, ¶ 7. Accordingly, “the award of legal custody is ‘not as drastic a
remedy as permanent custody.’” In re J.B., 3d Dist. Allen No. 1-15-79, 2016-Ohio-
2670, ¶ 32, quoting In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214,
¶ 7. Furthermore, since the granting of legal custody does not divest a parent of his
or her fundamental parental rights, the parent can generally petition the court for a
custody modification in the future. In re L.D. at ¶ 7.
{¶19} “In such a case, a parent’s right to regain custody is not permanently
foreclosed.” In re B.P., 3d Dist. Logan Nos. 8-15-07 and 8-15-08, 2015-Ohio-5445,
¶ 19. Thus, unlike in a permanent custody proceeding where a juvenile court’s
standard of review is by clear and convincing evidence, the standard the trial court
uses in making its determination in a legal custody proceeding is the less restrictive
preponderance of the evidence. Id. “‘“Preponderance of the evidence”’ means
evidence that is more probable, more persuasive, or of greater probative value.” In
re M.G., 3d Dist. Allen No. 1-18-54, 2019-Ohio-906, ¶ 7, quoting In re J.B. at ¶ 33.
“A trial court has broad discretion in proceedings involving the care and custody of
children.” In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, ¶ 14. Consequently,
we review a trial court’s decision to award a party legal custody of an abused,
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neglected, or dependent child for an abuse of discretion, and we afford its decision
“the utmost deference.” In re E.W., 4th Dist. Washington Nos. 10CA18, 10CA19,
and 10CA20, 2011-Ohio-2123, ¶ 18. “The term ‘abuse of discretion’ connotes more
than an error of judgment; it implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable.” In re N.L., 3d Dist. Hancock Nos. 5-12-38 and 5-12-
39, 2013-Ohio-3983, ¶ 9.
{¶20} In a dispositional hearing involving legal custody, the focus is on the
best interest of the child. However, R.C. 2151.353(A)(3) does not list specific
factors a court should consider in determining what is in the child’s best interest
when considering a disposition of legal custody. In re B.P. at ¶ 20. However, the
factors enumerated in R.C. 2151.414(D) for determining whether a grant of
permanent custody is in the child’s best interest have been held to be “instructive”
regarding an award of legal custody. In re J.C., 3d Dist. Henry No. 7-20-10, 2021-
Ohio-1453, ¶ 5. The R.C. 2151.414(D) factors include the interaction of the child
with various parties, the custodial history of the child, the wishes of the child as
expressed directly by the child or through the GAL, and the child’s need for a legally
secure placement.
{¶21} Appellate courts apply the criminal standard for reviewing manifest
weight challenges in juvenile proceedings. In re S.L., 3d Dist. Logan Nos. 8-17-25,
8-17-26, 8-17-27, 8-17-28, 8-17-29, 8-17-33, 8-17-34, 8-17-35, 8-17-36, and 8-17-
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37, 2018-Ohio-1111, ¶ 12. “Under this standard, when reviewing a claim that a
judgment was against the manifest weight of the evidence, an appellate court must
review the entire record, weigh both the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether in resolving conflicts,
the trier of fact clearly lost its way and created such a manifest miscarriage of justice
that a new trial must be ordered.” Id., citing State v. Martin, 20 Ohio App.3d 172,
175 (1st Dist.1983). “‘The discretionary powers to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against
the conviction [or in this case, a granting of legal custody].’” Id., quoting Martin at
172. Our role is limited to weighing the evidence introduced at trial and determining
whether the state carried its burden of persuasion. Id. at ¶ 13, citing State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). We must defer to the factual findings
of the trier of fact as to the weight to be given the evidence and the credibility of the
witnesses. Id., citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of
the syllabus.
Analysis
{¶22} Here, the magistrate conducted a hearing on ACCSB’s motion to
modify temporary legal custody and determined that it was in M.H.’s best interest
that Janet be granted legal custody of M.H. Monica objected to the magistrate’s
decision and the trial court overruled those objections, reasoning as follows:
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The Mother’s Objections appear to be that the Magistrate failed to
give sufficient weight to those pieces of evidence which the Mother
asserts to be of importance. There is no indication in the Decision that
the evidence cited by the Mother wasn’t considered. Rather, it is
simply clear from the Decision that other considerations significantly
outweighed those highlighted by the Mother.
First the record gives no indication or suggestion from anyone
(including the Mother) that [Janet] is not providing more than
adequate care for [M.H.]. [M.H.] was found to have suffered
significant injuries, including 16 broken bones, all inflicted prior to
[her] second birthday. These injuries were found to have been
inflicted not in a single horrific incident, but instead were inflicted
over an extended period of time. [She] was also significantly
developmentally behind when removed from Mother’s custody. The
consequence of those injuries and circumstances has been that [s]he
requires numerous doctor and hospital visits as well as physical,
speech, and occupational therapy. [She] continues to suffer from
deficits resulting from [her] treatment during the first two years of
[her] life while in the custody of [her] Mother. The result is that [she]
is now a high needs three year old child who has been in [Janet’s]
home for the last sixteen months of [her] life and is highly bonded
with her. Additionally, [her] adjudication as a dependent and abused
child did not relate solely to what appeared to have been multiple
incidents of abuse. The adjudication also related to the fact that the
multiple injuries identified by [her] medical providers had gone
untreated for a period of time. The injuries were found to have been
consistent with physical abuse and were found to have been
inconsistent with the history given by the Mother. The Mother
eventually acknowledged that she had lied about the possible causes
of the injuries. Moreover, while the Mother now asserts that her ex-
boyfriend was the likely perpetrator, she denies ever observing any
such abuse and the actual perpetrator has never been definitively
identified.
***
The evidence also established that the abuse (whether perpetrated by
the Mother or her ex-boyfriend) occurred after the Mother had been
involved in a previous court case which had been initiated by the
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Board and in which the Child had remained with the Mother under an
order of protective supervision. The Mother has been referred for
services in both proceedings, including counseling and parent
education, and the Choose Your Partner Carefully program. In fact,
the Board first initiated the earlier action regarding the Child in early
August, 2018 when the Child was less than a year old. The disposition
of protective supervision in the earlier case was terminated in March
of 2019 and the Board became re-involved through the instant case
when the abuse was discovered a little over two months later, on May
30, 2019. The services, training, and education provided in the earlier
case notwithstanding, the Child still became the victim of serious
abuse and a lack of medical care for her resultant injuries. In
summary, there has been essentially constant Board involvement in
providing services (with but a 2-3 month interruption) for a period
now extending well over two years.
(Doc. No. 103).
{¶23} Monica now renews her argument that the decision of the trial court to
grant legal custody of M.H. to Janet was against the manifest weight of the evidence
and not in M.H.’s best interest. Specifically, Monica argues she substantially
complied with her case plan and argues that the trial court’s decision to grant legal
custody of M.H. to Janet, a third party, was based solely on “several missed
counseling meetings by [Monica] and the fact that the perpetrator of [M.H.’s]
injuries was not positively identified.” (Appellant’s Brief at 10). Monica contends
that these reasons were insufficient to award legal custody to Janet. For the reasons
that follow, we disagree.
{¶24} First, Monica’s characterization of trial court’s decision to grant legal
custody of M.H. to Janet as based solely on a few missed counseling meetings and
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the fact that the perpetrator of M.H.’s injuries hasn’t been identified suggests that
Monica lacks a clear understanding of the concerns which led to M.H.’s initial and
continued removal from Monica’s home.
{¶25} The record reveals that M.H. was removed from Monica’s care in May
2019 after medical experts identified 14 fractures in various stages of healing on
M.H. (May 27, 2020 Tr. at 8). Based on the injuries, medical experts determined
M.H. was the victim of child abuse and that the fractures occurred on at least several
occasions over a period of time. (Id.). Although medical experts initially identified
14 fractures on M.H., further testing revealed the presence of two additional
fractures, bringing the total number to at least 16. (Id. at 13). Additionally, M.H.
had bruises all over her body, including on her cheeks. (Id. at 12). At the time that
the injuries were inflicted, M.H. was living with Monica and Joshua, in Joshua’s
home. (Id. at 34).
{¶26} Lawrie Warner (“Warner”), the caseworker assigned to M.H.’s case,
testified that during initial interviews with ACCSB and law enforcement, both
Monica and Joshua provided explanations for the injuries. (Id. at 12). Monica
indicated M.H.’s injuries may have occurred by M.H. tripping and falling on the
sidewalk or as a result of Monica rolling over on M.H. while they slept. (Id.).
Joshua suggested he may have accidentally stepped on M.H. when he got up to use
the bathroom during the night while M.H. slept on the floor of the bedroom. (Id.).
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Joshua also indicated the bruises on M.H.’s face may have been the result of him
grabbing the child’s face while trying to kiss her. (Id.). However, Monica and
Joshua’s explanations for the injuries were rejected by the medical experts as
implausible. (Id.).
{¶27} Furthermore, both Monica and Joshua admitted that they were not
completely honest with law enforcement and the initial investigator from ACCSB.
(May 27, 2020 Tr. at 12, 35-36, 72). Specifically, Monica admitted that although
she initially stated that she was present when M.H.’s injuries occurred, she later said
she was not present when M.H.’s injuries occurred and did not know how the
injuries occurred. (Id. at 35). Monica testified she initially lied to the police because
she “knew CPS would get involved” and she was “scared of CPS.” (Id. at 72). At
the legal custody hearing, Monica again denied causing the injuries to M.H., but
testified that, “in retrospect,” Joshua could have caused the injuries. (Id. at 62).
{¶28} Warner testified that one of the case plan requirements was that
Monica cooperate with ACCSB and law enforcement in an effort to determine how
the injuries occurred. (Id. at 11). According to Warner, despite Monica’s admitted
dishonesty during her initial interview with law enforcement and a representative of
ACCSB, Monica cooperated with law enforcement and ACCSB during their
investigation into the injuries, including participating in multiple subsequent
interviews. (Id. at 35, 38-39). However, Warner stated that, at the time of the legal
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custody hearing, no formal charges or arrests had been made with respect to M.H.’s
injuries. (Id. at 13).
{¶29} Warner clarified ACCSB’s initial and ongoing concern was that M.H.
suffered approximately 16 different injuries before she was two-years-old, and
while she was living with two adult caregivers. (Id. at 34-35). Furthermore, the
explanations that the caregivers provided regarding M.H.’s injuries did not account
for the injuries. (Id.). Warner stated that ACCSB was concerned that Monica and
Joshua, were caring for M.H. during the period of time in which the injuries
occurred and investigators were unable to ascertain who caused the injuries or
whether either adult even realized the child had been harmed. (Id. at 35).
{¶30} Further, Warner stated that in 2018, ACCSB initiated a protective
supervision case due to concerns of domestic violence within M.H.’s household,
including concerns with Monica’s selection of caregivers. (May 27, 2020 Tr. at 16-
17). According to Monica, the case plan services put in place as part of the current
case, aside from cooperating with law enforcement, were a mirror image of the case
plan she worked during the 2018 protective supervision case. (Id. at 17, 19).
According to Warner, the protective supervision case ACCSB initiated in 2018 was
terminated because Monica successfully completed her services in 2019. (Id. at 19).
However, despite the services Monica previously received, M.H. still sustained 16
fractures while in Monica’s custody. (Id.).
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{¶31} As part of the case plan services for both the current case and the 2018
case, Monica was required to complete the Choose Your Partner Carefully program.
(Id. at 16-17). Monica admitted during her testimony that, in the past, she has not
chosen wisely with regard to her romantic partners. (Id. at 65-66). Warner
described the Choose Your Partner Carefully program as a course which gives
participants tools to research individuals they are considering allowing around
themselves and their children, such as prospective romantic partners. (Id. at 17).
The course gives tips regarding conducting background checks to determine
whether an individual has a criminal or violent history. (Id. at 18). According to
Monica, she “thinks” she completed the Choose Your Partner Carefully class when
completing the 2018 case plan. (Id. at 65). However, Monica admittedly did not
complete the Choose Your Partner Carefully course during the current case plan.
Importantly, Warner testified that, if Monica had utilized the skills taught during the
Choose Your Partner Carefully course, she would have noticed some red flags with
regard to Joshua’s history. (Id. at 18-19). Monica stated she noticed several red
flags leading up to M.H.’s injuries, including the way that Joshua interacted with
his own son. (Id. at 70). Nonetheless, she utilized Joshua as her babysitter when
she was at work. (Id. at 71). Monica admitted she should have looked into Joshua’s
background more carefully before becoming romantically involved with him, but
stated she “just wasn’t thinking at the time.” (Id. at 67). Accordingly, even if
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Monica took the Choose Your Partner Carefully course as part of her 2018
supervision case, she still failed to utilize skills she learned therein when deciding
to become involved with Joshua. Thus, it appears she did not retain or apply the
information she learned in the course. Nonetheless, she chose not to complete the
course during her work on the present case plan, despite the caseworker giving her
at least three referrals for the course. This choice demonstrates a lack of diligence
on Monica’s behalf and also indicates that she does not have the tools to protect
herself and her daughter from individuals that pose harm. This is particularly
troublesome due to M.H.’s young age and developmental delays.
{¶32} Monica contends that because she ended her abusive relationships
with both Malachai and Joshua, she removed the concern that led to ACCSB’s
involvement. (Id. at 65-66, 73). While these past relationships were terminated,
Warner testified, Monica, nevertheless, continued to find herself in situations where
she and M.H. were in danger. (Id. at 24). According to Warner, concerns over
Monica’s past abusive relationships and history of abuse and neglect as a child made
the mental health component of the case plan “of the utmost importance.” (Id. at
36). In fact, Monica, admitted that representatives from ACCSB were clear with
her from the beginning of her current case that they wanted her to receive any
needed mental health services. (Id. at 73).
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{¶33} However, Monica admitted that, due to delays on her part, she did not
complete her mental health assessment until December 6, 2019. (May 27, 2020 Tr.
at 19-20, 73). Warner testified that on January 9, 2020, she received a letter from
the mental health counselor that indicated that Monica did not meet the criteria for
further services. (Id. at 20). However, approximately one month later, the
counseling center reassessed and contacted Monica to inform her that it
recommended individual counseling for Monica based on her history as a victim of
domestic violence. (Id. at 20). Although Monica was scheduled for her first
counseling appointment on February 11, 2020, she did not show up for the
appointment. (Id.). A make-up appointment was then scheduled for May 5, 2020;
however, Monica also failed to attend that appointment. (Id. at 21.) Eventually,
Warner received a notice from the counseling center that, due to Monica’s non-
compliance and lack of attendance, it had “closed out” Monica’s services. (Id.). In
fact, Monica did not complete a single counseling session until the day before the
legal custody hearing, when she completed her first counseling session via
telephone. (Id. at 63). At the hearing, Monica admitted she missed both of the
previous counseling sessions. (Id. at 63-64). Monica claimed she missed the first
counseling appointment because she was at work. (Id. at 64). She admitted that she
missed the second counseling appointment but stated she “forgot why” and “just
[doesn’t] think [she] could make it.” (Id.).
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{¶34} Warner testified that Monica’s lack of compliance with mental-health
counseling was particularly problematic because Monica’s case plan services were
established to give Monica an opportunity to strengthen her parenting skills and
examine why she continues to find herself in situations where she and M.H. are in
danger. (Id. at 24). Warner stated that without Monica’s compliance with the
mental-health component of her case plan, Monica “has not put a dent in the
immediate safety threat that would be posed to M.H.” if she was returned Monica’s
care. (Id. at 25).
{¶35} Further, the testimony presented at trial indicated Monica’s interest in
exercising visitation with M.H. waned over the course of the case. Warner testified
that immediately following M.H.’s removal from Monica’s home, M.H. was placed
in foster care for approximately six weeks. (Id. at 8). However, ACCSB identified
Janet, M.H.’s paternal great-aunt as a suitable relative placement in July 2019, and
M.H. has been in Janet’s care since that time. (Id.). Warner testified that Janet was
willing to host Monica’s supervised visitations in her home and serve as the
visitation monitor. (Id. at 14). Warner and Janet both testified that from the
beginning of the case, Janet has had an “open door policy” with Monica and was
willing to facilitate multiple visits with M.H. and Monica throughout the week.
(Id.). Warner testified that initially, the agency tried to set up approximately three
supervised weekly visits between Monica and M.H. (Id.).
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{¶36} However, Janet testified that Monica’s contact with M.H. has been
“getting less and less” over the last five months. (May 27, 2020 Tr. at 53). Warner
testified Monica told her she was seeing M.H. approximately twice a month. (Id. at
14-15). However, Janet testified that Monica texts Janet approximately once a week
to inquire on M.H. (Id. at 53). Janet stated the reason for the decreased contact
between Monica and M.H. is that Monica would often cancel her scheduled visits
with M.H. (Id.).
{¶37} Further, Janet testified that when Monica does visit with M.H., the
child’s interactions with Monica are “[n]ot very good.” (Id. at 54). Janet stated that,
initially, M.H. would “cling” to Janet and not allow Janet to leave her side for the
entire visit. (Id.). Janet also recalled incidents where M.H. would pinch, bite, and
hit Monica. (Id.). Janet stated that eventually M.H.’s physical outbursts toward
Monica improved; however, M.H. kept running back to Janet and away from
Monica. (Id.). In contrast, Warner observed Janet and M.H.’s interactions and
stated that M.H. and Janet have a great bond and relationship. (Id. at 26-28).
{¶38} Moreover, M.H. has a number of physical and developmental special
needs being addressed by Janet. Warner and Janet testified that M.H. has continuing
medical concerns resulting from the fractures which require a variety of follow-up
appointments. Janet stated that when M.H. came into her care, her fractures were
in different stages of healing. (Id. at 51). Accordingly, Janet took M.H. to
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Nationwide Children’s Hospital in Columbus for follow-up appointments
approximately 15 times and continues to take her to out-of-town specialist
appointments. (Id.). Janet stated that M.H.’s medical team was attempting to
determine if she will have long-term effects from her fractures, and that M.H.
exhibits physical symptoms requiring additional treatment and follow up as the
medical team attempts to give M.H. the best medical care possible. (Id. at 51-52).
{¶39} Additionally, M.H. is developmentally delayed and receives weekly
physical therapy, occupation therapy, and early intervention therapy. (May 27, 2020
Tr. at 30-31, 52). Janet described M.H. as being “really * * * delayed” and stated
that, in addition to the physical, occupation, and early intervention therapy, M.H. is
working with a specialist at Dayton Children’s Hospital to attempt to determine the
cause. (Id. at 52). According to Warner and Janet, M.H. is starting to achieve
developmental milestones; however, she has a long way to go in her therapies. (Id.
at 53). Janet and Warner both testified that Janet is meeting M.H.’s physical and
special needs and that Janet has been responsible for getting M.H. to all of her
therapy and medical appointments for the entire time that M.H. has been in Janet’s
care. (Id. at 30-31, 55-57).
{¶40} Warner testified that she believes it is in M.H.’s best interest for the
trial court to grant legal custody of M.H. to Janet. (Id. at 29). In support of her
opinion, Warner stated that M.H. is still physically vulnerable due to her age, her
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history of abuse, and her developmental delays. (Id.). Additionally, due to speech
delays, M.H. is unable to verbalize if she were to be victimized by additional abuse
or neglect. (Id. at 29-30). Accordingly, M.H. is “completely dependent” on her
caregivers to provide a safe and stable environment free from hazards or persons
that would pose a threat. (Id. at 30). Warner testified that Janet has consistently
demonstrated her ability to keep M.H. safe and to provide for all of her basic,
medical, and special needs. (Id.). The GAL also testified that she believed it was
in M.H.’s best interest for the trial court to grant Janet legal custody of M.H. due to
the GAL’s concerns relating to Monica’s “protective capacities.” (Id. at 76-77).
{¶41} Based on the evidence presented, we do not find the trial court abused
its discretion by finding by a preponderance of the evidence that legal custody of
M.H. should be awarded to Janet.
{¶42} Accordingly, Monica’s first assignment of error is overruled.
Assignment of Error No. II
The trial court committed prejudicial error in finding that the
Allen County Children Services Board made reasonable efforts to
return the child to the custody of the Appellant.
{¶43} In her second assignment of error, Monica argues that the trial court
abused its discretion in granting legal custody of M.H. to Janet because, according
to Monica, the record does not support the trial court’s conclusion that ACCSB
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made reasonable efforts to prevent the continued removal of M.H. from Monica’s
home.
Standard of Review & Applicable Law
{¶44} R.C. 2151.419 imposes a duty on the part of children services agencies
to make reasonable efforts “‘to prevent the removal of the child from the child’s
home, to eliminate the continued removal of the child from the child’s home, or to
make it possible for the child to return safely home.’” In re B.P., 2015-Ohio-5445,
at ¶ 39, quoting R.C. 2151.419(A)(1). “[T]he agency bears the burden of showing
that it made reasonable efforts.” In re T.S., 3d Dist. Mercer Nos. 10-14-13, 10-14-
14, and 10-14-15, 2015-Ohio-1184, ¶ 26, citing R.C. 2151.419(A)(1). “We review
under an abuse-of-discretion standard a trial court’s finding that an agency made
reasonable efforts toward reunification.” In re A.M., 3d Dist. Marion No. 9-14-46,
2015-Ohio-2740, ¶ 24, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 48
and In re Sherman, 3d Dist. Hancock Nos. 5-06-21, 5-06-22, and 5-06-23, 2006-
Ohio-6485, ¶ 11.
{¶45} “‘Case plans are the tools that child protective service agencies use to
facilitate the reunification of families who * * * have been temporarily separated.’”
In re T.S. at ¶ 26, quoting In re Evans, 3d Dist. Allen No. 1-01-75, 2001 WL
1333979, *3 (Oct. 30, 2001). “To that end, case plans establish individualized
concerns and goals, along with the steps that the parties and the agency can take to
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achieve reunification.” Id. at ¶ 27, citing In re Evans at *3. “Agencies have an
affirmative duty to diligently pursue efforts to achieve the goals in the case plan.”
Id., citing In re Evans at *3. “‘Nevertheless, the issue is not whether there was
anything more that [the agency] could have done, but whether the [agency’s] case
planning and efforts were reasonable and diligent under the circumstances of this
case.’” Id., quoting In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-
02-54, 2003-Ohio-1269, ¶ 10. “‘“Reasonable efforts” does not mean all available
efforts. Otherwise, there would always be an argument that one more additional
service, no matter how remote, may have made reunification possible.’” In re
H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 95,
quoting In re M.A.P., 12th Dist. Butler Nos. CA2012-08-164 and CA2012-08-165,
2013-Ohio-655, ¶ 47. “We also note that the statute provides that in determining
whether reasonable efforts were made, the child’s health and safety is paramount.”
In re T.S. at ¶ 27, citing 2151.419(A)(1).
Analysis
{¶46} In its judgment entry overruling Monica’s objections to the
magistrate’s decision, the trial court reasoned as follows:
The evidence also supports the Magistrate’s finding that the Board has
made reasonable efforts to allow the Child to be returned to the home
of the Mother. These efforts have included all of those services
afforded under the earlier protective supervision proceeding, and have
included referral for parent education, the Choose Your Partner
Carefully program, referral to Coleman Professional Services for
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mental health counseling, case management, and general counseling.
These efforts were unsuccessful because the Child still suffered
significant abuse after the referral of the mother for services in the
earlier proceeding, and because the Mother failed to timely avail
herself of the counseling offered at Coleman Professional Services.
(Doc. No. 103).
{¶47} Monica’s argument in support of her assignment of error centers
around her contention that she substantially complied with her case plan objectives.
Thus, Monica argues that as a result of her substantial compliance with her case
plan, the trial court erred by determining that ACCSB made reasonable efforts to
unify her with her daughter. We disagree.
{¶48} First, although Monica argues that she substantially complied with her
case plan, for the reasons outlined in our discussion of Monica’s first assignment of
error, we find that the trial court did not err by determining that Monica did not
comply with her case plan. Notably, despite her caseworker’s discussion of the
importance of mental health counseling to address the underlying issues leading to
M.H.’s removal from her care, Monica displayed reluctance to schedule her initial
assessment. (May 27, 2020 Tr. at 19-20, 37, 45-46, 73). Additionally, Monica
failed to attend her first two scheduled counseling sessions. (Id. at 20-21, 37-38,
63-64). In fact, at the time of the final hearing, Monica had completed only one
mental health counseling session, which she attended the day before the final
hearing. (Id. at 63-64). Accordingly, ACCSB’s concerns regarding Monica’s
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mental health and ability to understand healthy relationships and warning signs in
others were not adequately addressed by Monica’s actions.
{¶49} Next, although Monica suggests that ACCSB did not make reasonable
efforts to reunite her with M.H. because her visits did not progress from supervised
visitations to non-supervised visitations, the evidence adduced at the hearing
supports a finding that it was Monica’s lack of diligence with the case plan that
hindered her progression to unsupervised visitations with her daughter. As
indicated in the discussion of Monica’s first assignment of error, despite Janet’s
willingness to supervise three visitations between Monica and M.H. a week, Monica
contacted Janet with decreased frequency to set up visitations or to check-in on
M.H.’s well-being. (Id. at 14-15, 53-54).
{¶50} Finally, as stated in our discussion of the first assignment of error,
Monica fails to grasp that her inability to safeguard M.H. against harm and provide
a safe and stable home, along with her other deficiencies under the case plan are the
reasons she did not progress to unsupervised visitation. Monica was not capable of
safely parenting M.H. in an unsupervised setting and ACCSB’s decision not to
allow unsupervised visitation do not amount to a failure to make reasonable efforts
to prevent the continued removal of M.H. from Monica’s home. In re A.W., 3d Dist.
Shelby No. 17-15-15, 2016-Ohio-750, ¶ 23.
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{¶51} In addition, although Monica completed a similar case plan prior to
ACCSB’s current involvement, Monica continued to show poor judgment through
her inability to demonstrate some of the skills she had been taught in the classes that
were provided by ACCSB, such as examining the background of individuals in her
life, particularly potential romantic partners, to see who was appropriate to have
around her daughter. Although Monica admitted she should have done a more
thorough job of looking into her former boyfriend’s background prior to allowing
him to have unsupervised access to M.H., Monica failed to recognize the “red flags”
that he was not a safe person for M.H. to be around. Yet, Monica did not care
enough to complete the Choose Your Partner Carefully course for a second time and
did not timely pursue the required mental health counseling that was designed to
help her make safe choices for her and M.H. in the future.
{¶52} ACCSB employed numerous services and we do not find that
ACCSB’s efforts were less than reasonable. In re A.C., 3d Dist. Allen No. 1-19-20,
1-19-21, and 1-19-22, 2020-Ohio-980, ¶ 73, citing In re H.M.K., 2013-Ohio-4317,
at ¶ 95, quoting In re D.A., 6th Dist. Lucas No. L-11-1197, 2012-Ohio-1104, ¶ 30.
As the law states, ACCSB was not required to engage in all efforts, rather,
reasonable efforts. In re J.B., 2016-Ohio-2670, at ¶ 44. Based on the record before
us, we do not find that the trial court erred in determining that reasonable efforts
were exercised in this case. The trial court’s conclusion that ACCSB made
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reasonable efforts to prevent the continued removal of M.H. from Monica’s home
was not unreasonable, arbitrary, or unconscionable.
{¶53} Accordingly, Monica’s second assignment of error is overruled.
{¶54} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Allen County Court
of Common Pleas, Juvenile Division.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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