In re H.M.

[Cite as In re H.M., 2019-Ohio-3721.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
IN RE:
H.M., CASE NO. 8-18-46
DEPENDENT CHILD.
[RACHEL M. - APPELLANT] OPINION
IN RE:
S.M., CASE NO. 8-18-47
DEPENDENT CHILD.
[RACHEL M. - APPELLANT] OPINION
IN RE:
H.M., CASE NO. 8-18-55
DEPENDENT CHILD.
[JOEL M. - APPELLANT] OPINION
IN RE:
S.M., CASE NO. 8-18-56
DEPENDENT CHILD.
[JOEL M. - APPELLANT] OPINION
Case Nos. 8-18-46, 47, 55, 56
Appeals from Logan County Common Pleas Court
Juvenile Division
Trial Court Nos. 16 CS 0071 and 16 CS 0087
Judgments Affirmed
Date of Decision: September 16, 2019
APPEARANCES:
Alison Boggs for Appellant-Mother
Bradley Jeckering for Appellant-Father
Stacia L. Rapp for Appellee
SHAW, J.
{¶1} Mother-appellant, Rachel M. (“Rachel”), and Father-appellant, Joel M.
(“Joel”), individually bring these appeals from the September 11, 2018, judgments
of the Logan County Common Pleas Court, Juvenile Division, granting permanent
custody of two of their children, H.M. and S.M., to Logan County Children’s
Services (“LCCS”). On appeal, both parents contend that the trial court’s decision
granting permanent custody to LCCS was against the manifest weight of the
evidence, that LCCS failed to engage in reasonable efforts to support reunification,
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that the GAL and the appointed CASA/GAL failed to perform necessary duties, that
the trial court erred by failing to timely implement a reunification plan, and that
appellants’ religious traditions were violated in this matter. In addition, Rachel
argues that the trial court erred by denying Joel’s motion to dismiss the permanent
custody motions, and she contends that she received ineffective assistance of
counsel at the final hearing on the permanent custody motion.
Background
{¶2} Joel and Rachel are married and they are the parents of four children.
The two oldest children are boys and are not subject to these permanent custody
actions.1 The two youngest children, H.M., born in September, 2003, and S.M.,
born in August of 2005, are both girls and are the children that are the subjects of
these cases. The younger child, S.M., has cerebral palsy, required significant care,
and was fully reliant on others for her needs. S.M. received a settlement from the
federal government in excess of $1.2 million for her care. That money was held in
trust.
{¶3} On December 3, 2015, a complaint was filed in trial court case
15CS0092 alleging that S.M. was an abused, neglected, and dependent child. The
complaint alleged that a “mandated reporter” claimed that S.M. had a black, swollen
eye, and that her parents denied knowing how it happened. (15CS0092, Doc. No.
1
In fact, the oldest male is now over 18.
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2). The reporter indicated that a week prior, S.M. had a quarter-sized reddish mark
on her left knee. Further, the complaint alleged that S.M.’s palsy left her wheelchair
bound and that requests had been made for over a year to obtain particular shoes
that would help S.M. attempt to walk, but they had not been acquired by the parents.
In addition, it was alleged that S.M.’s wheelchair was missing a lap belt and a head
rest, and that there were concerns over her feeding, as she was being fed “baby
food.” (Id.)
{¶4} The complaint indicated that Rachel admitted that she fed S.M. baby
food because money was “tight,” and that she thought S.M. sustained her injury by
getting stuck under her “bicycle/walker.” (Id.) S.M. was nonverbal so she could
not be interviewed. LCCS alleged that Joel was not cooperative, that someone was
not always present with S.M., and that Rachel had no access to a vehicle or money
to care for/transport S.M. in the event that Joel was away from the home. In the
complaint, LCCS initially requested legal custody to remain with the parents, with
LCCS being awarded court-ordered supervision. Jenna Wasserman was appointed
as Guardian ad Litem (“GAL”) for S.M.
{¶5} A hearing was held on December 29, 2015, on the motion for issuance
of temporary orders. As a result of the hearing, Rachel and Joel were ordered to
undertake a mental health assessment, follow the recommended course of treatment,
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execute the necessary release forms, and cooperate with LCCS, the trial court, and
the GAL.
{¶6} The GAL filed an initial report on February 22, 2016, indicating that
S.M.’s parents were distrustful of LCCS personnel and that Joel’s attorney said not
to speak to the GAL without his attorney present. The GAL indicated that these
factors were significant inhibitors in conducting an investigation and were contrary
to the trial court’s order. Nevertheless, the GAL indicated that Rachel had been
more cooperative than Joel. The GAL’s report stated that she observed Rachel
interact with her children and that she conducted a home visit.
{¶7} A case plan was filed that same day, requiring Rachel to contact a
domestic violence counselor or any approved mental health therapist, to follow
recommendations by service providers, and to sign releases for information. The
plan required Joel not to “control” Rachel, to allow her to be an equal partner in the
marriage, and for both parents to allow case workers to have access to the children,
the household, and the records. (15CS0092, Doc. No. 41). Joel controlled the
money in the household and had the only means of transportation. Rachel also
indicated she felt that she did not have a voice in family matters.
{¶8} An adjudication hearing was held on February 22, 2016, wherein S.M.
was found to be a dependent child by stipulation of the parties as defined in R.C.
2151.04(C). The allegations of abuse and neglect were dismissed. S.M. was
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maintained in the family home, a case plan was ordered, and LCCS was granted
court-ordered protective supervision of her. An entry journalizing the matter was
filed on March 10, 2016.
{¶9} On April 6, 2016, LCCS filed a motion for alteration of temporary
orders on an emergency basis, indicating that LCCS had not had contact with the
family and that S.M. had missed her last five scheduled therapy appointments. A
mandated reporter stated that she was concerned that S.M. was suffering from
pneumonia or an upper respiratory infection and that S.M. was not getting the
appropriate treatment. Moreover, “[s]he stated that if the minor child does not
continue with therapy that her muscle contractures will worsen and she will get
irreversible tightness of her joints that will prevent her bones from growing
appropriately,” which could then in turn impact organ growth. (15CS0092 Doc. No.
53). LCCS requested temporary custody of S.M. That motion was granted and
S.M. was placed in the emergency temporary custody of LCCS.
{¶10} On April 7, 2016, the GAL filed a report stating that she had also not
had any contact with the family since the prior adjudication hearing despite her
efforts. The report stated that the parents were still not cooperating or releasing
records, and that they were failing to take S.M. to appointments necessary for her
health. The GAL argued that the family had shown a “pattern of non-cooperation
that leaves [S.M.] at risk.” (15CS0092, Doc. No. 52).
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{¶11} That same day a shelter care hearing was held wherein it was
determined that probable cause existed to believe that removal of S.M. from the
home was necessary. LCCS thus retained temporary custody of S.M., and the
parents were granted visitation.
{¶12} On June 1, 2016, a complaint was filed in trial court case 16CS0071
regarding Joel and Rachel’s older daughter alleging that H.M. was an abused,
neglected, and dependent child. It was alleged that H.M. had been sexually abused
by both of her older male brothers. The complaint stated that LCCS also had
received reports that lewd photographs had purportedly been taken of one of the
incidents. In an initial forensic interview, H.M. denied that the incidents occurred,
and thus they were labeled “unsubstantiated;” however, H.M. later made disclosures
in a separate forensic interview to cause LCCS to label the incidents as
“substantiated.” Moreover, Rachel also indicated at one point that H.M. had
informed her of the incidents, and that the family “prayed” over the matter so that
the boys would stop, but no further action was taken by the parents.
{¶13} The complaint indicated that Rachel was concerned for the immediate
safety of H.M. because Rachel was no longer residing in the household, thus leaving
H.M. potentially alone with the boys. Rachel was named temporary legal custodian
of H.M. Jenna Wasserman, the GAL for S.M., was also appointed as GAL for H.M.
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{¶14} On July 21, 2016, H.M. was adjudicated dependent based upon
stipulation of the parents and the facts as outlined in the complaint, and the
allegations of abuse and neglect were dismissed. The parents were ordered to
submit to a forensic parenting evaluation and to follow any resulting
recommendations. At that time H.M. was removed from Rachel’s care and placed
in the temporary custody of LCCS as Rachel was dealing with health issues. In
addition, relatives and/or church friends were unavailable to provide kinship care.
The effective date of H.M.’s removal was July 21, 2016.
{¶15} On August 9, 2016, a dispositional hearing was held on H.M.’s
dependency case. A case plan was filed and approved, LCCS remained temporary
legal custodian and the parents were awarded supervised visitation.
{¶16} LCCS maintained temporary custody of both S.M. and H.M. through
various extensions in 2016 and 2017 while the parents were supposed to be
attempting to work the case plan in each matter. Meanwhile, S.M. was placed in
foster care with a family that had its own special needs children and was familiar
with S.M.’s particular situation. H.M. was placed in a separate foster home.
{¶17} Joel and Rachel eventually got the psychological evaluations they
were ordered to obtain, once they were satisfied with the selected examiner—Dr.
Fredrick Sacks, a psychologist. On April 20, 2017, the evaluations were filed. In
her evaluation, Rachel detailed a number of health issues including digestive and
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low iron problems, which limited her capacity to function and interfered with her
ability to provide and care for her children. Rachel indicated that she could not visit
her daughters in foster care every week because of her health.
{¶18} The evaluation indicated that Rachel had “multiple mental health
issues that have the potential for interfering with and limiting her parenting
effectiveness.” (15CS0092, Doc. No. 115). Further, the evaluation stated that
Rachel displayed symptoms of someone suffering from “controlling” domestic
violence, PTSD, persistent depressive disorder, generalized anxiety, and somatic
symptom disorder. (Id.)
{¶19} As to Joel’s assessment, the evaluator found that Joel was contentious,
self-righteous, eager to transfer blame, and that he would likely continue to be
uncooperative and controlling. The evaluator found that Joel was at high risk to be
a perpetrator of abuse, that it was doubtful that he would follow through with
treatment recommendations, and Joel was diagnosed with unspecified personality
disorder. On nearly all of the tests administered to Joel, he was found to be
deceptive, inauthentic, and untruthful. Joel exaggerated his virtues and
underreported difficulties on all tests.
{¶20} On June 14, 2017, the State introduced a tentative long-term care plan
for S.M. that outlined her long-term medical and educational needs when she
returned home. As to H.M., a safety plan was proposed to, inter alia, put alarms
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above the doors to the rooms. Joel’s counsel was designated to formally draft the
long-term care plan, and it was filed on August 28, 2017. Although there was a
proposed plan for reunification, the trial court granted a final extension of temporary
custody for H.M. on October 20, 2017. A reunification date was set as November
22, 2017, but was then delayed.
{¶21} In early November of 2017, H.M. made another claim of sexual abuse
by one of her older brothers. As part of the evolving case plan moving toward
reunification, H.M. had been engaging in unsupervised visitations in the home when
her brothers were present. It was during this time that she alleged a new incident of
abuse. LCCS indicated that Rachel was concerned for the safety of the children if
they returned home, as Rachel did not feel she could protect them.
{¶22} On December 3, 2017, LCCS was granted emergency temporary
custody of S.M. as a result of a new complaint being filed in trial court case
17CS0087. The prior case dealing with S.M., trial court case 15CS0092, was
closed. S.M.’s removal was upheld at a shelter care hearing. Dennis Blank, a Court
Appointed Special Advocate (“CASA”) was appointed as GAL for both children.
The trial court also appointed attorney Bruce French as GAL for both children.
{¶23} S.M. was again adjudicated dependent by stipulation. At the
disposition hearing for S.M., an amended case plan was ordered and LCCS
maintained temporary custody.
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{¶24} On March 16, 2018, the State filed motions for permanent custody of
both S.M. and H.M. Both Joel and Rachel individually filed their own motions for
legal custody of each daughter.
{¶25} GAL Dennis Blank filed a final report recommending that LCCS’s
permanent custody motions be granted. His report stated, in pertinent part, “[t]his
GAL’s opinion is that Joel and Rachel have engaged in processes the court has
requested but [have] not made sincere efforts to make changes or improve
relationships with family members to eliminate the problems that started Children’s
Services involvement.” (17CS0087, Doc. 134). GAL Bruce French filed a brief
handwritten report concurring with Dennis Blank’s assessment. GAL French had
filed a report shortly after being assigned to this matter, and he felt it would be
superfluous to reiterate what had been thoroughly covered by Blank, particularly
when he agreed.
{¶26} A final hearing on the permanent custody motions was held over five
days on May 18, May 25, May 29, June 28, and July 16, 2018. LCCS called
numerous witnesses, including H.M., who testified to the purported sexual abuse
perpetrated on her by her brothers, claiming that they forced her to perform oral sex
on them individually on separate occasions. H.M. testified that when she told her
parents, Joel gathered them in prayer to ask for forgiveness and to help the boys
stop, but that was the extent of addressing the matter. H.M. also testified regarding
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an incident with one of the boys allegedly sexually abusing S.M. In addition, H.M.
testified about a separate incident wherein one of the boys asked to touch her breasts.
Testimony from other witnesses indicated, and the trial court noted, that the boys
had been charged with sexual assault crimes for their actions against H.M., which
were pending at the time of the permanent custody hearing.
{¶27} As to her relationship with her parents, H.M. testified regarding an
incident wherein Rachel left her with a church friend and broke her promise to return
and pick her up shortly thereafter. H.M. testified she was strongly impacted by
being left behind. She also testified that she was afraid of Joel and that he was
extremely restrictive, particularly when comparing her treatment to the other
children.
{¶28} As to the children’s then-current state, the testimony at the permanent
custody hearing indicated that both children were thriving in their placements,
particularly S.M., who had been placed with a family who had children of special
needs of their own. The family intended to adopt S.M. if LCCS was granted
permanent custody. With her foster parents, S.M. was regularly attending her
various therapies and all medical personnel indicated that she had progressed
significantly. S.M. had become much more verbal, had gone from being a
malnourished 44 pounds to 80 pounds, and she was eating age-appropriate foods.
She was also bonded with her foster family.
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{¶29} An occupational therapist testified that prior to living with her foster
parents, S.M. had matted hair and inadequate hygiene. A speech/swallowing
therapist testified that prior to LCCS intervention she was concerned for S.M.’s
hydration and nutrition, and her positioning while eating due to signs of recurring
laryngeal aspiration. S.M.’s parents had been feeding her liquids while she laid in
their laps by squirting the liquids into her mouth. The swallowing therapist opined
that this was leading to issues with S.M.’s immune system. The swallowing
therapist offered testimony the trial court stated was “compelling” regarding S.M.’s
“remarkable” improvement since being removed from the home.
{¶30} H.M. had moved from her initial foster home to a faith-based group
home, and had some discipline issues but was progressing in her new placement.
She indicated that she did not feel safe in her family home and that she wanted
LCCS to be granted permanent custody. Although they were not in the same foster
home, H.M. was bonded with her sister S.M., stating that she had regular visitation
with her.
{¶31} Multiple mental health professionals that were involved with the
parties testified in this matter. A counselor that Rachel and Joel were seeing testified
at the hearing that he had seen some progress, albeit only recently, but not much
progress. The counselor indicated that the parties were reluctant to open up to him,
perhaps because of church philosophy or because of pending criminal charges
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against their boys. The counselor did not have an opinion on whether the girls could
go home because the parents were not “far enough along,” but he affirmatively
stated that the parents had not satisfied their goals for marital communication.
{¶32} Dr. Sacks also testified at the final hearing regarding his initial
forensic psychological evaluations performed on Rachel and Joel and his post-
evaluations of them, which had been conducted recently. Dr. Sacks found that
Rachel had made some strides in finding her voice and being more assertive.
However, Dr. Sacks felt that Rachel’s parenting capacity was compromised and
additional therapy was needed.
{¶33} As to Joel, Dr. Sacks testified, “I evaluate many hundreds and several
hundred people a year, and over many years I have evaluated many, many thousands
of people, and I experienced [Joel] as among the most belligerent and argumentative
people that I’ve ever evaluated.” (Tr. at 657). Dr. Sacks testified that Joel had a
distorted view of his parenting, and that he viewed his children as being well-
adjusted with no problems. Dr. Sacks saw no improvement in Joel’s attitude or
behavior and no willingness to accept any culpability. Dr. Sacks indicated that Joel
was more interested in crafting an appearance of being right than of actually caring
for his children. Dr. Sacks testified that Joel exaggerated his virtues, and was high
on “impression management.” Dr. Sacks testified that he did not believe that Joel
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would benefit from psychological treatment because he was not open to receiving
help.
{¶34} LCCS employees and various others testified about the repeated
difficulties of dealing with Joel in this matter. Essentially all indicated he was
uncooperative, some indicating that he was essentially obstructing progress for the
children or the case plan at various times. For instance, it was recommended for
S.M.’s health that she get Botox treatments, which would greatly assist in her
muscle stretching, but Joel refused to give permission despite the medical
recommendations for it. In addition, psychological evaluations were delayed, LCCS
had difficulty obtaining release forms, Joel instructed Rachel not to speak to LCCS
at times unless he was present, and Joel would wear headphones while medical
personnel attempted to speak with him about proper care procedures for S.M.2
{¶35} The primary LCCS caseworker testified to her involvement in this
case, indicating that it was the most time-consuming and labor-intensive case that
she had ever been part of. She testified that she was concerned in the beginning
about the parents not accepting the medical recommendations of professionals, and
Joel’s refusal to take the sexual abuse allegations against H.M. seriously. She
testified she still had those concerns.
2
It would be redundant to list all of the instances in the record wherein witnesses stated Joel was being
difficult or uncooperative. Thus we simply emphasize that it was repeated throughout hearings, in
evaluations and reports, and by witnesses at the permanent custody hearing.
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{¶36} In addition, the LCCS caseworker testified that Joel would not allow
unannounced visits until a court order was obtained. The caseworker testified that
LCCS was out of time and had worked with the family for two years. She testified
that at that time no options or plans existed that could have resulted in successful
reunification of the family as concerns had not been alleviated, though Rachel had
made some progress. The caseworker testified that if Joel was not in the picture her
recommendation might change, but Rachel would still need a substantial amount of
support to be able to care for her children.
{¶37} GAL Dennis Blank testified that while he felt both parents loved their
children, not one counselor had reported that the parents had resolved their issues.
He testified that he did not believe that either parent had the capacity to nurture and
protect the girls. He recognized that the parents had begun working with service
providers, but they had waited too long and the children needed permanency. GAL
Bruce French concurred, though he indicated Dennis Blank focused on the family
and GAL French focused on obtaining the financial information from S.M.’s trust,
which he felt was significantly under-utilized, though it had been used to purchase
appellants’ home, a handicapped van, and a therapy room for S.M.
{¶38} There was a significant amount of additional testimony. Of particular
note was extensive cross-examination of LCCS witnesses as to how they could have
supported a reunification plan late in 2017 with the allegations of sexual abuse
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against the brothers. One LCCS employee indicated that the reunification plan
included safety measures. However, witnesses testified that removing the boys from
the home rather than the girls was not considered.
{¶39} On September 11, 2018, the trial court filed a 42-page judgment entry
granting LCCS’s permanent custody motions. In its entries, the trial court
summarized the procedural history and then summarized the testimony from each
individual witness at the final hearing. The trial court also addressed the exhibits
that had been entered into evidence including the GAL reports and the objections to
them. Then, the trial court found that LCCS had conducted reasonable efforts to
support reunification, spending multiple pages addressing the matter. Finally, after
determining that the concerns that led to the removal of the children had not been
alleviated, and determining that the children had been in the temporary custody of
LCCS for twelve or more months of a consecutive twenty-two-month period, the
trial court determined by clear and convincing evidence that it was in the best
interests of the children that LCCS be awarded permanent custody.
{¶40} Both parents individually filed appeals.3 Rachel asserts the following
assignments of error for our review.
Rachel’s First Assignment of Error
The trial court’s decision is against the manifest weight and
sufficiency of the evidence. Appellee did not prove by clear and
3
There are four appellate numbers in this case: one for Rachel’s appeal of S.M., one for Rachel’s appeal of
H.M., one for Joel’s appeal of S.M., and one for Joel’s appeal of H.M.
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convincing evidence that the court should grant its motion for
permanent custody of the minor children.
Rachel’s Second Assignment of Error
The trial court erred when it failed to ensure the implementation
of the agreed upon joint long term care plan, which is case plan
1.05, calling for reunification of the children with Appellant.
Rachel’s Third Assignment of Error
The trial court erred when it overruled Appellant’s motion to
dismiss Appellee’s motion for permanent custody.
Rachel’s Fourth Assignment of Error
The trial court erred in finding Appellee used reasonable efforts
to prevent the initial removal, continued removal and
reunification of the children throughout the case.
Rachel’s Fifth Assignment of Error
The Children’s Guardian Ad Litem and CASA failed to perform
necessary duties pursuant to Ohio Revised Code Section 2151.281
and Superintendence Rule 48, to Appellant’s detriment and in
violation of her due process.
Rachel’s Sixth Assignment of Error
The trial court violated Appellant’s religious freedom when it
allowed appellee to use certain religious traditions of the parents
as reasons to not reunify the children with Appellant.
Rachel’s Seventh Assignment of Error
Appellant was deprived effective assistance of counsel, which
resulted in Appellant losing permanent custody of her children.
{¶41} Additionally, in his own appeal, Joel asserts the following assignments
of error for our review.
Joel’s First Assignment of Error
The trial court’s decision to terminate Joel’s parental rights and
grant permanent custody to the State and deny Joel’s motion for
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custody is not supported by sufficient evidence and/or is against
the manifest weight of the evidence.
Joel’s Second Assignment of Error
The trial court erred in finding the State and the Agency used
reasonable efforts to prevent the initial removal and continued
removal of H.M. and S.M. throughout this matter.
Joel’s Third Assignment of Error
The trial court committed plain error when it unreasonably
delayed the implementation of the agreed joint long term care
plan for S.M. for over three months.
Joel’s Fourth Assignment of Error
The failure of CASA/GAL Blank and GAL French to observe
visitation with and between Joel, H.M., and S.M. prejudiced Joel
and deprived Joel of his due process rights.
Joel’s Fifth Assignment of Error
The trial court violated Joel’s religious freedom in violation of the
First Amendment of the U.S. Constitution when the trial court
allowed the State to infringe upon his religious rights and
traditions as reasons not to reunify the children.
{¶42} We elect to address some of the assignments of error together,
particularly where the issues overlap between Joel and Rachel. We also elect to
address some of the assignments of error out of the order in which they were raised.
Rachel’s First Assignment of Error;
Joel’s First Assignment of Error
{¶43} In Rachel’s first assignment of error, she argues that the trial court’s
determination awarding permanent custody to LCCS was against the manifest
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weight of the evidence. In Joel’s first assignment of error, he also challenges the
trial court’s determination as against the manifest weight of the evidence.4
Standard of Review
{¶44} “[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). “Parents have a
‘fundamental liberty interest’ in the care, custody, and management of their
children.” Id. quoting Santosky v. Kramer, 455 U.S. 645 (1982); In re Leveck, 3d
Dist. Hancock No. 5–02–52, 5–02–53, 5–02–54, 2003–Ohio–1269, ¶ 6. These rights
may be terminated, however, under appropriate circumstances and when all due
process safeguards have been followed. Leveck at ¶ 6. An award
of permanent custody must be based on clear and convincing evidence. R.C.
2151.414(B)(1).
{¶45} Clear and convincing evidence is evidence “which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “Where
the degree of proof required to sustain an issue must be clear and convincing, a
4
In the statements of Joel and Rachel’s assignments of error, they contend that the trial court’s decision was
also not supported by sufficient evidence; however, their actual arguments focus on manifest weight, and
utilize the manifest weight standard of review. We will not manufacture a sufficiency challenge for Joel and
Rachel merely because they stated the words in their assignments of error. Nevertheless, even if they did
more specifically argue sufficiency of the evidence, as the discussion infra makes clear, there is sufficient
evidence presented to support the trial court’s decision, and the review on appeal is properly directed toward
a question of weight of the evidence.
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reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477. If
some competent, credible evidence going to all the essential elements of the case
supports the trial court’s judgment, an appellate court must affirm the judgment and
not substitute its judgment for that of the trial court. C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978).
{¶46} Moreover, issues relating to the credibility of witnesses and the weight
to be given to the evidence are primarily for the trier-of-fact. Seasons Coal v.
Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial
court on matters of credibility is “crucial in a child custody case, where there may
be much evidence in the parties’ demeanor and attitude that does not translate to the
record well.” (Emphasis sic.) Davis v. Flickinger, 77 Ohio St. 3d 415, 419, 674
N.E.2d 1159 (1997).
{¶47} Furthermore, “ ‘[w]eight of the evidence concerns “the inclination of
the greater amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the [trier-of-fact] that the party
having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is not a question
of mathematics, but depends on its effect in inducing belief.” ’ ” Eastley v. Volkman,
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132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997), quoting Black’s Law Dictionary 1594 (6th ed. 1990).
{¶48} When an appellate court reviews whether a trial court’s permanent
custody decision is against the manifest weight of the evidence, the court “ ‘ “weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.” ’ ” Eastley at ¶ 20, quoting Tewarson v.
Simon, 9th Dist. Lorain No. 99CA007526, 141 Ohio App. 3d 103, 115, 750 N.E.2d
176 (2001), quoting Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d
541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983); accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶¶
23–24.
Controlling Statutory Authority
{¶49} Revised Code 2151.414 sets forth the guidelines a trial court must
follow when determining a motion for permanent custody. Revised Code
2151.414(A)(1) mandates the trial court schedule a hearing and provide notice upon
the filing of a motion for permanent custody of a child by a public children services
agency.
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Case Nos. 8-18-46, 47, 55, 56
{¶50} Following the hearing, R.C. 2151.414(B) 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, 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 placement agencies for twelve or more months of a consecutive
twenty-two-month period.
{¶51} “[T]he findings under R.C. 2151.414(B)(1)(a) and R.C.
2151.414(B)(1)(d) are alternative findings, [and] each is independently sufficient to
use as a basis to grant the Agency’s motion for permanent custody.” In re M.R., 3d
Dist. Defiance No. 4–12–18, 2013–Ohio–1302, ¶ 80. Under the plain language of
R.C. 2151.414(B)(1)(d), when a child has been in an agency's temporary custody
for twelve or more months of a consecutive twenty-two-month period, a trial court
need not find that the child cannot be placed with either parent within a reasonable
time or should not be placed with the parents. In re I.G., 3d Dist. Marion Nos. 9-
-23-
Case Nos. 8-18-46, 47, 55, 56
13–43, 9–13–44, and 9–13–45, 2014–Ohio–1136, ¶ 30, citing R.C.
2151.414(B)(1)(d); In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 14.
{¶52} In sum, 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, a 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.
Twelve of Twenty-Two-Months in Agency Custody
and Revised Code 2151.414(B)(1)(d)
{¶53} In this case, the trial court found that both H.M. and S.M. had been in
LCCS’s temporary custody in excess of twelve months of a consecutive twenty-
two-month period pursuant to R.C. 2151.414(B)(1)(d), which reads as follows
(B)(1) Except as provided in division (B)(2) of this section, the
court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to division (A) of
this section, by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody of the child to the
agency that filed the motion for permanent custody and that any
of the following apply:
***
(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[.]
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Case Nos. 8-18-46, 47, 55, 56
{¶54} After reviewing the evidence related to the children’s custody
situations under R.C. 2151.414(B)(1)(d), the trial court stated that, “S.M. entered
the temporary custody of LCCS on April 6, 2016, with the qualifying date of sixty
(60) days later being June 5, 2016, and H.M. entered the temporary custody of LCCS
on July 21, 2016, with (60) days later being September 19, 2016.” (Doc. No. 260;
Doc. No. 194). The record is clear that LCCS filed its permanent custody motions
on March 16, 2018. Thus by plainly looking at the dates, which began in 2016 and
ended in 2018, LCCS had temporary custody of S.M. and H.M. well in excess of
twelve months. Rachel appears to concede this point in her brief. Regardless, the
trial court’s findings that the children had been in the temporary custody of LCCS
in excess of twelve months are supported in this matter by the dates in the record.
{¶55} Nevertheless, Joel cites to a case out of the Sixth District Court of
Appeals, In re K.L., 6th Dist. Lucas Nos. L-17-1201, L-17-2010, 2017-Ohio-9003,
wherein it was determined the “consecutive twenty-two month period” referenced
in R.C. 2151.414(B)(1)(d) meant that there had to be twenty-two consecutive
months of agency involvement when the permanent custody motion was filed. He
contends that LCCS had not been involved with the children in this matter for
twenty-two consecutive months, even if the children had been in LCCS’s temporary
custody for well in excess of twelve months.
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Case Nos. 8-18-46, 47, 55, 56
{¶56} The interpretation of the Sixth District in In re K.L., and espoused by
Joel, was rejected by the Eleventh District Court of Appeals in In re N.M.P., 11th
Dist. Portage No. 2018-P-0056, 2018-Ohio-5072.5 The Eleventh District
determined that the Sixth District erroneously added the words “agency
involvement” to R.C. 2151.414(B)(1)(d). In re N.M.P. at ¶ 32. Further, the
Eleventh District determined that the plain and unambiguous language refers to
twelve months in a consecutive twenty-two-month period, irrespective of the total
length of an agency’s involvement. The Eleventh District’s interpretation is
consistent with our own application of the statute, and our view regarding the statute
at issue. See In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 17 (being
in agency custody for over sixteen consecutive months satisfies the twelve of
twenty-two requirement); see also In re. S.W., 3d Dist. Marion Nos. 9-18-29, 9-18-
30, 2019-Ohio-2068, ¶¶ 22-23.
{¶57} Based on the evidence presented, we cannot find that the trial court’s
determination that S.M. and H.M. were in the temporary custody of LCCS for more
than twelve months of a consecutive twenty-two-month period was against the
5
There is currently a certified conflict pending before the Supreme Court of Ohio on this issue. See In re
N.M.P., Supreme Court Case Number 2018-1842. On July 9, 2019, the Supreme Court of Ohio held oral
arguments on the matter.
-26-
Case Nos. 8-18-46, 47, 55, 56
manifest weight of the evidence. Thus we will proceed to the next prong of the
permanent custody test.6
Best Interest Factors Pursuant to R.C. 2151.414(D)
{¶58} Revised Code 2151.414(D) contains factors for a trial court to consider
when determining whether granting permanent custody to an agency is in the best
interests of a child. It reads as follows.
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of
division (A)(4) or (5) of section 2151.353 or division (C) of section
2151.415 of the Revised Code, the court shall consider all relevant
factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period,
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
6
Both parents seem to make an argument that the trial court did not make adequate findings under R.C.
2151.414(E) to support its decision. However, the trial court was not required to do so because the beginning
(E) factors are addressed when analyzing R.C. 2151.414(B)(1)(a), which is an alternative finding to R.C.
2151.414(B)(1)(d). The trial court need not find both, and thus did not err in this matter, contrary to the
arguments of appellants. See, e.g., In Re: B.S., 5th Dist. Holmes No. 17CA020, 2018-Ohio-616, ¶¶ 43-45.
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Case Nos. 8-18-46, 47, 55, 56
the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(d) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶59} In this case, after thoroughly summarizing the testimony and exhibits
presented, and then finding that S.M. and H.M. had been in the temporary custody
of LCCS for twelve or more months of a consecutive twenty-two-month period, the
trial court proceeded to address the “best interest” factors in R.C. 2151.414(D)(1)
over several pages of its judgment entries. Ultimately the trial court concluded that
it was in the best interests of both children that LCCS be awarded permanent
custody, reasoning, in part, as follows.
The Court is convinced that the respective problems of each
parent are so serious and chronic, that even with additional time
to engage in on-going services, there is no chance for successful
reunification. There is no reason to believe that Father or the
brothers fully comprehend the dynamics of abuse and its negative
and traumatic impact on victims. * * * Mother admitted that the
parents cannot protect the children and the forensic evaluation
shows that Mother cannot either. The girls deserve permanency.
Father and Mother’s respective mental health issues regrettably
operate as impediments to their ability to support and nurture
each other and clearly impact their abilities to parent and meet
the needs of their daughters. The Court is convinced that the
concerns that existed when each case opened has not been
remedied. Both parents bear some responsibility in delaying the
initial start of the forensic evaluations. Father’s distrust for the
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Case Nos. 8-18-46, 47, 55, 56
system interferes with his ability to gain insight to his problems
and needs to change. * * *
He simply cannot provide and meet[] the general and individual
needs of each daughter. Father’s mental health issues, combined
with his reliance on his faith; resistance to consider the advice of
health care providers; inability to cope with reported abuse
among his children; distrust of government – interferes with his
amenability to accept that his perception of the world is unhealthy
and prevents him from receiving help that has been offered.
Mother has her own set of challenges both, physically and
emotionally, that impede her ability to raise her daughters.
Mother may be amenable to professional recommendations but
this will take a number of years and lots of support. The Mother
herself, courageously admitted that she cannot protect her
children.
***
The testimony of the health care providers was compelling. S.M.
is a happy child who has made great and drastic health
improvements, both physically and emotionally, since being
removed from her family.
The foster family has indicated a willingness and desire to adopt
S.M. * * *
H.M. is doing well in foster care and was able to clearly articulate
her wishes. Despite loving her parents, she does not want to
return home. H.M. feels like a second-class citizen compared to
how her brothers are treated by Father. Mother shared a concern
with LCCS that corroborated by [sic] H.M.’s testimony. * * *
H.M. cannot be returned to the family home where her brothers
are because neither parent has the capacity to protect her. Dr.
Sacks testified that Father views his children [as] well-adjusted
and have no problems. This is alarming.
Both girls deserve legally secure placements that provide
permanency. The Court is convinced that to return either child
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Case Nos. 8-18-46, 47, 55, 56
back to the custody of their parents is not in their best interest. *
* * Mother lacks the energy to protect her children and Father
pours all of his energy into his own needs and cannot protect his
children. Father continues to engage in positive impression
management rather than deal with the reality of the family
problems.
***
The Court HEREBY FINDS by clear and convincing evidence
that [it] is in the best interest of S.M. to have permanent custody
granted to LCCS. The Court also FINDS that [it] is in the best
interest of H.M. to have permanent custody granted to LCCS.
(Doc. No. 260; Doc. No. 194).
{¶60} In our own review of the trial court’s best interests determination
based on the factors, we begin with R.C. 2151.414(D)(1)(a), which concerns the
relationship with the child, the child’s parents, siblings, relatives, and foster care
givers. The testimony is clear, and as the trial court noted, compelling, that S.M. is
thriving in her foster care placement, and that she is bonded with her foster family.
Her needs are being met, she has improved substantially going from malnourished
with inadequate hygiene to eating age-appropriate foods and flourishing. The
testimony did indicate that S.M. and Rachel had a good relationship, but S.M. did
not share the same loving relationship with her father based on observations of their
interactions.
{¶61} As to H.M., she was also doing well in her placement, and expressed
her desire to remain away from the home, where she did not feel protected. In
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Case Nos. 8-18-46, 47, 55, 56
addition, H.M. regularly got to see and bond with S.M. even though they were not
in the same placement. H.M. did love her parents, but she did not feel safe with
them.
{¶62} Regarding factor (D)(1)(b), which concerns the wishes of the child as
expressed directly or through the recommendation of the GAL, both GALs testified
that it was in the children’s best interest that permanent custody be granted to LCCS.
S.M. was nonverbal, and thus could not express her own wishes, but H.M. did
explicitly testify that despite her love for her parents she wanted LCCS to be granted
permanent custody.
{¶63} Regarding factors (D)(1)(c) and (D)(1)(d), which concern the
children’s custodial history and their need for permanency, as expressed previously
both children had been in the temporary custody of the agency for twelve or more
months of a consecutive twenty-two-month period. The children certainly need
permanency and there is no indication that the parents could have the children
returned to them without significant intervention at any time in the near future.
{¶64} Factor (D)(1)(e) concerns specific enumerated factors in another part
of the statute that do not appear to be applicable to this case.
{¶65} After reviewing the factors on appeal, we find that there is clear and
convincing evidence to support the trial court’s determination that granting
permanent custody to LCCS was in the best interests of the children. The trial
-31-
Case Nos. 8-18-46, 47, 55, 56
court’s factual findings are supported by the record and we must give due deference
to the credibility determinations the trial court made.
{¶66} S.M. and H.M. are doing well in their placements and the GALs both
recommended that permanent custody should be granted. The parents had made
little progress in counseling and the children were in need of permanency. As the
trial court stated, Joel’s contention that his children were well-adjusted given the
sexual abuse allegations is “alarming.” Thus based on the record before us, we
cannot find that the trial court’s determination was against the manifest weight of
the evidence. Therefore Rachel’s first assignment of error and Joel’s first
assignment of error are overruled.
Rachel’s Fourth Assignment of Error;
Joel’s Second Assignment of Error
{¶67} In Rachel’s fourth assignment of error, and in Joel’s second
assignment of error, they argue that the trial court erred by finding that LCCS had
engaged in reasonable efforts to prevent the initial and continued removal of H.M.
and S.M. in this matter.
{¶68} At the outset, we emphasize that the trial court made findings that
reasonable efforts had been undertaken by LCCS in this matter numerous times
throughout the pendency of these cases without any objection by the appellants. A
trial court is not specifically required to find that reasonable efforts have been made
at the time of the permanent custody hearing if it has done so at prior stages of the
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Case Nos. 8-18-46, 47, 55, 56
proceedings. See In Re N.R.S., J.N.S., K.H.S., 3d Dist. Crawford Nos. 3-17-07, 3-
17-08, 3-17-09, 2018-Ohio-125, ¶ 25; In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-
1104. In this case the trial court made reasonable efforts findings at the shelter care
hearings and the extension of temporary custody hearings for both children. In fact,
the trial court’s journal entries had a bold subheading regarding reasonable efforts,
and appellants never contested this issue. Therefore we could find that appellants
have waived all but plain error on appeal.
{¶69} Nevertheless, despite making reasonable efforts determinations
throughout the pendency of these cases, in the trial court’s final judgment entries
granting permanent custody to LCCS, the trial court still specifically addressed
LCCS’s “reasonable efforts” over three pages in its entries, listing numerous areas
where LCCS had engaged in reasonable efforts. The listed areas included help with
transportation to appointments since Rachel could not drive, medical providers
going to the home, transporting Rachel and the children to a domestic violence
shelter when Rachel briefly left Joel, encouraging Rachel to get counseling, creating
documents to encourage parents to regularly attend medical appointments for S.M.,
recommending counseling for the boys in light of the allegations that were made,
etc.
-33-
Case Nos. 8-18-46, 47, 55, 56
{¶70} On appeal, Rachel and Joel may contend that there was little testimony
regarding reasonable efforts at the permanent custody hearing, but it was directly
addressed by LCCS Caseworker Bednarki in her testimony.
Q: What services particularly has the agency offered to the
parents to assist them in protecting [H.M.] in the home?
A: [Caseworker Bednarki] In the fall of 2017, our home visits
revolved around this topic of what we could do to make
reunification possible. We talked about getting alarms on the
doors and Joel did go out and get alarms for the children’s
bedroom doors. We talked about continuing family therapy
sessions, including the boys involved. They had attended – Joel
and Rachel had attended some family therapy session with
[H.M.], but it was my understanding that the boys had never
attended. So I think that would be important. And just
understanding that at that time contact with them needed to be a
hundred percent supervised.
Q: What other reasonable efforts can you make to help prevent
the continued removal of [S.M.] and [H.M.]?
A: I’ve made several referrals to different therapists and service
providers. I counted up I believe ten different referrals, which is
more than I’ve ever done on a case. Provided transportation to
and from appointments. Offered transportation to and from
appointments. When Joel was working – I know he’s ongoing
working but at one point he was working and [S.M.]’s
appointments were during the day at therapy and offered to take
Rachel to those appointments so she could attend. We provided
transportation to [S.M.] and [H.M.] to different appointments.
Therapy, [H.M.]’s counseling. The agency has offered gas cards
to transportations [sic]. I don’t believe the family has ever picked
up a gas card at our agency but that was always offered because
some of [S.M.]’s appointments are really far away. Taking [S.M.]
to a specialist.
(Tr. at 514-516).
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Case Nos. 8-18-46, 47, 55, 56
{¶71} Caseworker Bednarki’s testimony indicated a significant amount of
oversight in ensuring that the girls were seeing the appropriate care providers.
Furthermore, the opportunity for the parents to take advantage of various services
was also presented, but as several witnesses testified it was very “late in the game”
when the parents decided to use these services at all, let alone actively engage with
them.
{¶72} Based on the record, we cannot find that the trial court erred in finding
that reasonable efforts had been made by LCCS, particularly where Caseworker
Bednarki testified that it was the most labor-intensive case she had ever worked on.
Therefore Rachel’s fourth assignment of error is overruled, and Joel’s second
assignment of error is overruled.
Rachel’s Second Assignment of Error;
Joel’s Third Assignment of Error
{¶73} In Rachel’s second assignment of error, and in Joel’s third assignment
of error, they argue that the trial court erred when it delayed the implementation of
the “joint long term care plan” that the parties had agreed to in the fall of 2017.
{¶74} It is undisputed that in the summer/fall of 2017, the parties were
preparing a reunification plan that was being drafted by Joel’s attorney. That
reunification plan, which called for, inter alia, home health care by two nurses to be
in place for S.M.’s care, was filed in August of 2017. At that time, S.M. and H.M.
were staying in their respective foster homes.
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Case Nos. 8-18-46, 47, 55, 56
{¶75} After the plan was approved by all of the parties, the trial court set a
hearing to have a firm date for reunification. During that time, the administrator of
S.M.’s trust attempted to set up the home health care, but had difficulty because he
did not have a firm date for the nurses to start. Meanwhile, gradual reunification
was occurring with some unsupervised visitation between the parents and the girls.
Before a hearing was held to finalize a reunification date, H.M. made new
disclosures about sexual abuse perpetrated by one of her brothers during an
unsupervised visitation. Following that disclosure, any plans for reunification were
scuttled.
{¶76} Appellants now seek this Court to find that the trial court erred by
essentially not “speeding up” the process. They desire this Court to speculate that
everything would have gone smoothly had reunification occurred, despite the
testimony of Dr. Sacks regarding appellants’ respective parenting abilities and the
alleged sexual assault by one of the boys on H.M. There is simply no basis in the
record or in the law to find a reversible error here.
{¶77} Largely, appellants are complaining that they wished things had gone
better in the reunification process when Joel’s attorney was drafting the long term
care plan. But at that time appellants had it within their power to monitor their
children during visitation and follow through with recommended services such as
therapy. It is the burden of appellants to demonstrate how there was a legal or
-36-
Case Nos. 8-18-46, 47, 55, 56
factual error, and it is simply not evident from the facts of this case. Therefore,
Rachel’s second assignment of error and Joel’s third assignment of error are
overruled.
Rachel’s Fifth Assignment of Error;
Joel’s Fourth Assignment of Error
{¶78} In Rachel’s fifth assignment of error and in Joel’s fourth assignment
of error, they contend that the GALs in this case failed to perform necessary duties,
depriving the appellants of their due process rights. Specifically, Rachel argues that
the investigations by GAL French and CASA/GAL Blank fell below the acceptable
level of involvement, and Joel argues that the GALs erred by failing to observe
visitation between the parents and the children subject to these permanent custody
actions.
{¶79} Revised Code 2151.281(I) governs a GAL’s duties, and it reads as
follows.
(I) The guardian ad litem for an alleged or adjudicated abused,
neglected, or dependent child shall perform whatever functions
are necessary to protect the best interest of the child, including,
but not limited to, investigation, mediation, monitoring court
proceedings, and monitoring the services provided the child by
the public children services agency or private child placing agency
that has temporary or permanent custody of the child, and shall
file any motions and other court papers that are in the best
interest of the child in accordance with rules adopted by the
supreme court.
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Case Nos. 8-18-46, 47, 55, 56
The guardian ad litem shall be given notice of all hearings,
administrative reviews, and other proceedings in the same
manner as notice is given to parties to the action.
{¶80} In addition to Revised Code 2151.281(I), Superintendence Rule 48(D)
provides guidance regarding a GAL’s duties in seventeen enumerated paragraphs.
Superintendence Rule 48(D) states that a GAL should perform at minimum a certain
number of duties, unless impracticable or inadvisable. Some of the duties include:
representing the best interest of the child, maintaining objectivity, participating in
hearings, keeping accurate records, and making reasonable efforts to become
informed about the case. Making reasonable efforts to become informed about the
case is stated to include meeting with the children and observing the children with
parents and foster parents, visiting the children’s home, ascertaining the wishes of
the child, interviewing relevant school, medical, mental health providers or
children’s service workers, recommending psychological evaluations, and
performing any other necessary investigations. Thus Superintendence Rule 48(D)
contains a significant amount of guidance for a GAL.
{¶81} However, it is important to emphasize that Sup.R. 48 does not create
substantive rights, even if a GAL fails to comply with the rule. In re: W.H., H.W.,
J.W. III, J.W., P.W., E.W., J.W. IV, 3d Dist. Marion No. 9-16-19, 2016-Ohio-8206,
¶ 77, citing In re E. W., 4th Dist. Washington Nos. 10CA18, 10CA19, 10CA20,
2011–Ohio–2123, ¶ 12; accord In re J.A. W., 11th Dist. Trumbull No.2013–T–0009,
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Case Nos. 8-18-46, 47, 55, 56
2013–Ohio–2614, ¶ 47; In re K. V., 6th Dist. Lucas No. L–11–1087, 2012–Ohio–
190, ¶ 30 (stating that the Rules of Superintendence do not give rise to substantive
rights, and so the filing of a GAL’s report is not mandatory.). “ ‘They are not the
equivalent of rules of procedure and have no force equivalent to a statute. They are
purely internal housekeeping rules which are of concern to the judges of the several
courts but create no rights in individual defendants.’ ” Allen v. Allen, 11th Dist.
Trumbull No.2009–T–0070, 2010–Ohio–475, ¶ 31, quoting State v. Gettys, 49 Ohio
App.2d 241, 243, 360 N.E.2d 735, (3d. Dist.1976). Therefore, a GAL’s failure to
comply with his or her duties under SupR. 48(D) is not basis for reversal unless a
parent demonstrates prejudice. In re J.P., 10th Dist. Franklin No. 18AP-834, 2019-
Ohio-1619, ¶ 45, citing In re K.R., 12th Dist. Warren Nos. CA2017-02-015,
CA2017-02-019, CA2017-02, 024, 2017-Ohio-7122, ¶ 22; In re W.H., 3d Dist.
Marion No. 9-16-19, 2016-Ohio-8206, ¶ 79; In re J.C., 4th Dist. Adams No.
07CA833, 2007-Ohio-3781, ¶ 13.
{¶82} In this case, it should be emphasized that Jenna Wasserman was the
initial GAL for both children for in excess of a year. She conducted significant
investigations, participated in hearings, and filed multiple reports (at least five
during her tenure), which detailed her interactions with the parents, the children,
service providers, therapists and caseworkers. GAL Wasserman consistently
updated her reports as new issues became apparent and as the parents either made
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Case Nos. 8-18-46, 47, 55, 56
progress, cooperated, or failed to cooperate throughout the matter. Her reports were
thorough and expressed her views and reservations on the potential reunification of
children with their parents when the long-term care plan was proposed in 2017,
though she was willing to go along with the plan due to safety measures and
recommendations of H.M.’s therapist. However, once GAL Wasserman was made
aware of new disclosures from H.M., she was absolutely against the long-term
reunification plan.
{¶83} Near the end of 2017, GAL Wasserman had to withdraw from the case
due to taking a new legal position. After that, the trial court appointed CASA/GAL
Blank and GAL French for the children. Both CASA/GAL Blank and GAL French
filed initial reports in the matter. CASA/GAL Blank’s initial report indicated that
he had contacted twelve individuals and reviewed numerous records. GAL French’s
initial report indicated that he communicated with former GAL Wasserman about
the case, that he met with S.M., H.M., the foster parents, Joel, and with LCCS case
workers.
{¶84} GAL French indicated at the final hearing that rather than be overly
duplicative in their work, CASA/GAL Blank focused on the family affairs while
GAL French focused on the financial aspects, particularly with regard to
information on S.M.’s trust, of which little was known for certain.7 GAL French
7
Joel had specifically not wanted to know how much money was in the trust, and thus little information was
known about it until the GAL specifically inquired and requested records.
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felt it was better to divide their duties. Once LCCS filed its motion for permanent
custody, CASA/GAL Blank filed a final report summarizing his involvement in this
matter in nine single-spaced pages. In the end, CASA/GAL Blank recommended
that permanent custody of S.M. and H.M. be granted to LCCS. GAL French filed
a handwritten “supplemental” report concurring with what CASA/GAL Blank had
recommended. GAL French testified at the final hearing that he felt there was no
need for a second report stating exactly the same, particularly where his work was
focused on other issues. GAL French also handled making the legal filings on
behalf of the GALs because CASA/GAL Blank was not an attorney.
{¶85} Both CASA/GAL Blank and GAL French testified at the final hearing.
GAL French also presented the testimony of the administrator of S.M.’s trust,
providing the trial court with information about where funds had been used
previously and how much was available.8
{¶86} Now, on appeal, both Rachel and Joel argue that CASA/GAL Blank
and GAL French failed to conduct a significant enough investigation in this matter
and that they failed to prepare sufficient reports. Rachel and Joel also argue that the
GALs failed to observe them interact with the children. Rachel and Joel argue that
the GALs were derelict in their duties under R.C. 2151.281(I) and Sup.R. 48.
8
Testimony indicated that despite what had been used from the trust, it had only grown in value, and that it
could easily outlast S.M.’s lifetime needs.
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Case Nos. 8-18-46, 47, 55, 56
{¶87} At the final hearing, CASA/GAL Blank explained that he did not
observe Joel or Rachel interact with their children because he wanted to give them
more privacy during their limited visitation time and because the visitations were
already being observed by staff at Adriel. GAL French testified that he left these
issues primarily up to CASA/GAL Blank, thus he similarly did not observe Joel or
Rachel interact with their children.
{¶88} In its entries granting permanent custody of the children to LCCS, the
trial court addressed objections that were made by the appellants to both GAL
French’s handwritten report and to the GALs’ failure to observe the children’s
interactions with their parents. Notably, the trial court found that the GALs did
violate their duties under Ohio Rule of Superintendence 48. However, the trial court
found that despite the violation on the part of the GALs, the reports
tendered throughout the case reflect that their respective reports
are anything but superficial. The records maintained in the case
file reflect that both GALs worked diligently on both cases. The
reports reflect that the actions of the GALs cannot be described
as “bare bones” investigations by any means. Although both
GALs failed to observe the interactions between the parents and
both daughters, this failure does not taint the other findings and
recommendations. The Court received details from healthcare
professionals, foster mother and LCCS workers regarding the
interactions between the girls and their parents. The Court Finds
that the two GALs substantially complied with their duties in this
case.
(Doc. No. 260; Doc. No. 194).
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{¶89} In our own review of the matter, we cannot find that the trial court
erred, particularly where we have held that the Superintendence Rules do not create
substantive rights. The Rules are used for guidance, but even if they were binding,
the trial court thoroughly and thoughtfully addressed the issue, and we can find no
reversible error here. This is especially true given the trial court’s statement that it
was able to receive information regarding interactions between the parents and their
children from other sources, which would include the prior GAL and all her reports.
Therefore, we cannot find that appellants have demonstrated any prejudice in this
matter. For these reasons, Rachel’s fifth assignment of error and Joel’s fourth
assignment of error are overruled.
Rachel’s Sixth Assignment of Error;
Joel’s Fifth Assignment of Error
{¶90} In Rachel’s sixth assignment of error, and in Joel’s fifth assignment of
error, they argue that the trial court violated their religious freedom when it allowed
LCCS to use “certain religious traditions” of the parents as reasons to not reunify
the children with them. More specifically, Rachel argues that LCCS “continually
imposed its definition of what is an appropriate relationship for a husband and wife,
and it does not include a wife who, through her faith and tradition, delegates most
of the family responsibilities to her husband.” (Rachel’s Appt. Br. at 21). Joel
argues that LCCS improperly equated their religious family structure to abuse, and
that the trial court equated the beliefs with mental health issues.
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Standard of Review
{¶91} Ohio has long followed the rationale of Wisconsin v. Yoder, 406 U.S.
205, 92 S. Ct. 1526 (1972), and other United States Supreme Court precedent
regarding balancing the government’s interest and the individual’s right to freely
exercise his religion. See e.g., State v. Whisner, 47 Ohio St. 2d 181, 351 N.E.2d 750
(1976). In order to determine whether the government has impermissibly infringed
upon a person’s free exercise of religion, a three-part test is applied: (1) are the
religious beliefs truly held, (2) has the government infringed upon the person’s
constitutional right to the free exercise of religion, and (3) if the first and second
questions are answered affirmatively, has the state demonstrated a compelling
interest for its infringement which is done in the least restrictive means. State v.
Schmidt, 29 Ohio St. 3d 32, 34, 505 N.E.2d 627 (1987); In re Z.S., 3d Dist. Defiance
No. 4-09-20, 2010-Ohio-1929, ¶ 95.
Analysis
{¶92} In analyzing this issue on appeal, we must begin by noting that while
the record is clear that Joel and Rachel were “religious,” it is far less clear as to what
their religious beliefs were. There are some references in the record that Joel and
Rachel may have been associated with the Pentecostal church. However, Joel’s
brief states that they are actually “New Order Amish.” Regardless of the title, there
are plenty of references to the appellants having more “traditional” views on
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husband as a breadwinner and wife as a homemaker, but the record is scant on
defining the parents’ actual religious beliefs. This is particularly true given that
neither parent elected to testify to further define these issues. Nevertheless, in the
interests of justice, we will assume that the parents’ religious beliefs were sincerely
held, as there is no indication to the contrary, and we will also assume that their
religious beliefs were defined enough to merit further examination.
{¶93} Even with these assumptions, we still cannot find that LCCS or the
trial court infringed upon appellants’ rights to free exercise of religion in this matter.
At the inception of S.M.’s case, Rachel did not drive or have access to
transportation. Because of this, S.M. was missing appointments that could cause
long-term irreparable damage to her development. In addition, with S.M. missing
appointments, Rachel was also not present to learn that she should not be feeding
her child baby food, especially in the reclined position that S.M. was placed in.
Moreover, Rachel also had no access to money. Rachel expressed to caseworkers
and mental health professionals that she did not feel like an equal partner in the
marriage, and she essentially indicated that these things made it difficult to care for
a special needs child adequately.
{¶94} In response to these issues, LCCS set case goals to make Rachel a
more equal partner in the marriage, to get her access to money and make her
mobile—not in some apparent attempt to fashion her into a “modern” woman away
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from her religion, but to insure that she could care for her special needs child in the
event that she needed to make it to appointments or needed help when Joel was not
around. Nothing in the record suggests that LCCS wanted appellants to give up
their religious beliefs, or for Rachel to stop being a homemaker. To the contrary,
H.M. was actually specifically placed in faith-based foster care due to her religious
upbringing.
{¶95} Furthermore, a potentially major issue arose involving appellants’
“religious” beliefs when H.M. made her disclosures to her parents about the alleged
sexual assaults perpetrated by her brothers. Rather than seek any treatment for the
matter, the family merely “prayed” over it to have the boys stop, leaving the girls in
the home with them. Protecting the girls from sexual assault would certainly
represent a compelling government interest.
{¶96} In its judgment entries, the trial court made a reference to Joel’s
religion, stating as follows.
[Joel] simply cannot provide and meet[] the general and
individual needs of each daughter. Father’s mental health issues,
combined with his reliance on faith; resistance to consider the
advice of health care providers; inability to cope with reported
abuse among his children; distrust of government – interferes
with his amenability to accept that his perception of the world is
unhealthy and prevents him from receiving the help that has been
offered.
(Emphasis added.) (Doc. No. 260; Doc. No. 194). While the trial court referenced
Joel’s faith, it was only in passing. In addition, Joel’s reliance on faith alone to
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correct sexual assault could appropriately have been viewed negatively by the trial
court.
{¶97} After reviewing the record, we cannot find that there is enough
evidence that LCCS, or the trial court for that matter, infringed on appellants’
religious rights. Even assuming there was some intrusion, it would still be
warranted in this instance to whatever minimal extent it was done. Thus we cannot
find that there was error in this case, let alone reversible error. For these reasons,
Rachel’s sixth assignment of error and Joel’s fifth assignment of error are overruled.
Rachel’s Third Assignment of Error
{¶98} In Rachel’s third assignment of error, she argues that the trial court
erred by denying motions to dismiss LCCS’s permanent custody motions that were
made on the fourth day of the permanent custody hearing. At that time, Joel’s
attorney filed motions to dismiss, contending that the cases had not been completed
within the two year “Sunset Date” wherein an agency had to take action, even
though LCCS had already filed its motions for permanent custody in the case of
both girls and was proceeding on those motions. Rachel’s attorney orally joined the
motions to dismiss. They contended that the entire cases had to be completed within
two years. The motions were denied by the trial court.
{¶99} On appeal, Rachel renews the argument, claiming that pursuant to In
re Young, 76 Ohio St. 3d 632 (1996), these permanent custody cases were not
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Case Nos. 8-18-46, 47, 55, 56
completed before the “Sunset Date.” The “Sunset Date” is the date upon which
temporary custody is terminated when there is no motion filed pursuant to R.C.
2151.415(A). However, In re Young, which Rachel uses as support for her
argument, dealt with a situation where an agency had not even filed a permanent
custody motion at all prior to the “Sunset Date,” thus it is wholly inapplicable here
where there were timely filed motions.
{¶100} In this case, LCCS timely filed its permanent custody motions (the
parties did not even dispute this issue when arguing the motions to dismiss), the
matter proceeded to the final hearing within the 120 days as required by statute
(though the fifth day of the final hearing was finished slightly after the 120 days due
to scheduling issues amongst all of the parties). See R.C. 2151.414(A)(2) (“The
court shall hold the hearing scheduled pursuant to division (A)(1) of this section not
later than one hundred twenty days after the agency files the motion for permanent
custody, except that, for good cause shown, the court may continue the hearing for
a reasonable period of time beyond the one-hundred-twenty-day deadline. The court
shall issue an order that grants, denies, or otherwise disposes of the motion for
permanent custody, and journalize the order, not later than two hundred days after
the agency files the motion.”).
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Case Nos. 8-18-46, 47, 55, 56
{¶101} Under these circumstances we cannot find that the trial court erred
given that Rachel has shown us no compelling authority to the contrary. Therefore,
Rachel’s third assignment of error is overruled.
Rachel’s Seventh Assignment of Error
{¶102} In Rachel’s seventh assignment of error, she argues that she was
deprived of effective assistance of counsel at the permanent custody hearing. More
specifically, she argues that her third and final attorney in this matter was appointed
a “mere” two months prior to the first day of testimony in the permanent custody
hearing. She contends that it was not enough time to prepare. In addition, Rachel
argues that her attorney failed to effectively cross-examine witnesses, leaving the
bulk of cross-examination to Joel’s attorney, who had his own agenda separate from
Rachel.
Standard of Review
{¶103} “In permanent custody proceedings, where parents face losing their
children, we apply the same test as the test for ineffective assistance of counsel in
criminal cases.” In re E.C., 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 40.
“In order to prove an ineffective assistance of counsel claim, the appellant must
carry the burden of establishing (1) that his or her counsel's performance was
deficient and (2) that this deficient performance prejudiced the defendant.” In re
C.N., 3d Dist. Hardin Nos. 6-17-16 and 6-17-23, 2018-Ohio-2442, ¶ 16,
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Case Nos. 8-18-46, 47, 55, 56
quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). If the petitioner cannot prove one of these elements, “it [is] unnecessary
for a court to consider the other prong of the test.” State v. Walker, 3d Dist. Seneca
No. 13-15-42, 2016-Ohio-3499, ¶ 20.
{¶104} “In order to show deficient performance, the defendant must prove
that counsel’s performance fell below an objective level of reasonable
representation.” State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d
810, ¶ 95. “Debatable strategic and tactical decisions may not form the basis of a
claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better
strategy had been available.” State v. Conley, 2d Dist. Montgomery No. 26359,
2015-Ohio-2553, ¶ 56, citing State v. Cook, 65 Ohio St. 3d 516, 524, 605 N.E.2d 70
(1992).
{¶105} As for deficient performance, a petitioner needs to show that the
deficient performance prejudiced the appellant. Strickland at 687. “To show
prejudice, the defendant must show a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” Conway at ¶ 95.
Analysis
{¶106} In this case, Rachel makes several bald arguments asserting her
counsel was ineffective without remotely showing how she was prejudiced. For
example, she complains that when Joel’s attorney lodged objections to certain
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Case Nos. 8-18-46, 47, 55, 56
documents, reports, or testimony presented at the final hearing, Rachel’s attorney
merely concurred rather than crafting an additional argument. Given that some of
the motions or objections lodged were granted, it would not seem there was any
prejudice. Moreover, it could be readily seen as strategic not to repeat arguments
of another counsel when the final permanent custody hearing was already five days
long, held over multiple months. Thus Rachel’s argument is not well-taken.
{¶107} Rachel also claims that her attorney could not have had enough time
to prepare for such a complex case in only two months. However, there is no
indication that her attorney was unprepared; it is simply pure speculation.
Moreover, even if her attorney somehow was not fully prepared by the first hearing,
the attorney had additional time before each next phase of the hearing to prepare.
The record is wholly devoid of evidence of counsel being unprepared or of there
being a direct resulting prejudice from it.
{¶108} Next, Rachel argues that her counsel failed to appropriately cross-
examine H.M. to more fully develop the relationship between H.M. and her mother.
However it was clear from the testimony that H.M. loved her mother but she did not
feel protected. Rachel herself made statements that she did not feel like she could
protect her children. Therefore we fail to see any error here, or any resulting
prejudice.
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{¶109} Finally, Rachel argues that her attorney failed to develop a record
regarding Rachel’s health issues, such as the impact her surgeries had on her ability
to actively work the case plan. Again, the record is devoid of information as to how
this would help her or how it would change the outcome of the case. Notably,
Rachel and Joel elected not to testify, perhaps because there were pending charges
against their boys and they did not want to have to address any of their actions
regarding those issues. We will not second guess counsel who is presumed to be
competent on these issues. In addition, some of Rachel’s health issues were
presented through various counselors and evaluators, thus the trial court was aware.
Therefore, this argument is also not well-taken.
{¶110} Reviewing Rachel’s assignment of error in its entirety, she is unable
to show how her counsel was deficient or how she was directly prejudiced by any
of the purported deficiencies. Therefore, her seventh assignment of error is
overruled.
Conclusion
{¶111} For the foregoing reasons, Rachel and Joel’s assignments of error are
overruled and the judgments of the Logan County Common Pleas Court, Juvenile
Division, awarding permanent custody of S.M. and H.M. to LCCS are affirmed.
Judgments Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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