In re D.M.

[Cite as In re D.M., 2018-Ohio-4579.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: D.M. : JUDGES:
C.B. : Hon. W. Scott Gwin, P.J.
P.B. : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
:
:
: Case Nos. 18 CA 15
: 18 CA 16
: 18 CA 17
:
: OPINION
.
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case Nos.
16JC00412, 16JC00502, 16JC00412
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 9, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MARK PERLAKY MELISSA M. WILSON
232 W. 3rd Street 323 Guernsey County Children Services
Dover, OH 44622 274 Highland Avenue
Cambridge, OH 43725
For Appellant Ronald Blackstone
JEANETTE MOLL
P. O. Box 461
ZANESVILLE, OH 43701
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 2
Wise, Earle, J.
{¶ 1} Appellant-Mother L.M appeals the decision of the Stark County Court of
Common Pleas, Juvenile Division, which granted permanent custody of her sons, D.M,
P.B and C.B, to Appellee Guernsey County Children's Services (GCCS).
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant is the mother of D.M, born February 15, 2014, P.B, born
November 28, 2015, and C.B, born October 23, 2016. D.M's father is unknown. R.B is
the father of P.B and C.B.
{¶ 3} On August 30, 2016, a complaint filed by GCCS alleged D.M and P.B were
neglected, abused and dependent. Concerns included father's alcohol abuse and
unexplained injuries to D.M. Ex parte custody was granted to GCCS on the same date.
{¶ 4} At an adjudicatory hearing held on November 7, 2016, parents stipulated to
the children being dependent pursuant to R.C. 2151.04(B) and (C), and the trial court
found them dependent. The children remained in the temporary custody of GCCS. C.B
was born shortly before the adjudicatory hearing and immediately placed in GCCS
temporary custody. C.B's case was consolidated with that of D.M and C.B. All three boys
were placed in a foster home in December 2016 where they remained for the duration of
this matter.
{¶ 5} A dispositional hearing was held on November 21, 2016. The previous order
of temporary custody was continued and the parents were ordered to comply with the
GCCS case plan adopted by the court. Appellant was to complete a mental health
assessment and follow all recommendations, comply with Help Me Grow and Early Head
Start for D.M and P.B, not to use physical discipline with either child and learn effective
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 3
alternatives, assist the agency in establishing paternity of D.M, maintain sobriety, and to
ensure she had the ability to provide for the basic needs of the children - food, clothing,
shelter, medical, and educational.
{¶ 6} There were concerns for appellant's mental health and individual therapy
was recommended. Her attendance, however, was sporadic and she was discharged for
missing appointments.
{¶ 7} Appellant and R.B fared well for approximately six months. This led to
progressive visits in January 2017. However, due to housing concerns involving insects
in the house, visits were moved back to the agency until appellant and R.B could secure
new housing. They secured that housing in May 2017, and progressive visits began
again, but quickly deteriorated. R.B was overwhelmed by the stress of having all three
children in the house and stated to workers that he did not know how he was going to
manage work, cooking and cleaning and taking care of the children. In June, 2017, both
appellant and R.B relapsed and began drinking again. In October, R.B tested positive for
methamphetamine and THC.
{¶ 8} During one hour visits with the children, mother was observed to become
overwhelmed when attempting to care for more than one child at a time. She appeared
to need R.B to manage all three children.
{¶ 9} On September 8, 2017, GCCS filed a motion for permanent custody of the
children. At an annual review hearing held September 18, 2017, the trial court granted a
6-month extension of temporary custody. But on January 10, 2018, GCCS filed a motion
to dismiss the motion for permanent custody so that kinship placement options raised by
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 4
appellant could be explored. When none of the proposed options were found to be
appropriate, GCCS again filed a motion for permanent custody on February 26, 2018.
{¶ 10} Following another six-month extension of temporary custody granted to
GCCS, a permanent custody hearing was held on June 12, 2018. As of the day of the
hearing, D.M and P.B had been in the temporary custody of GCCS continuously since
August 29, 2016. C.B had been in the continuous custody of GCCS since October 25,
2016.
{¶ 11} During the hearing GCCS called five witnesses – two case workers, the
CASA/GAL, a parent educator from Tri County Early Head Start, a clinical chemical
dependency and mental health counselor from Cedar Ridge Behavioral Health Solutions
who worked with appellant and father, and one of the children's foster parents. Although
appellant filed a motion for legal custody, she did not testify or call witnesses. R.B testified
on his own behalf.
{¶ 12} On June 18, 2018, the trial court issued findings of fact and conclusions of
law finding that GCCS had made reasonable efforts to prevent removal of the children
and make it possible for them to return home to either appellant or father. However, due
to the parents' inability to make significant progress in their case plans or to make parental
commitment to the children, the court found it in the best interests of the children to
terminate the parental rights of appellant, R.B, and the unknown father of D.M, and place
the children in the permanent custody of GCCS. Appellant's motion for legal custody was
denied due to her failure to prosecute the same.
{¶ 13} Appellant subsequently filed an appeal and the matter is now before this
court for consideration. She raises one assignment of error as follows:
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 5
I
{¶ 14} "THE TRIAL COURT ABUSED ITS DISCRETION IN WARDING (SIC)
PERMANENT CUSTODY TO GCCS AS GCCS FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT THE CHILDREN COULD NOT BE PLACED WITH
MOTHER IN A REASONABLE AMOUNT OF TIME, AND THAT AN AWARD OF
PERMANENT CUSTODY WAS IN THE CHILDREN'S BEST INTEREST."
{¶ 15} In her sole assignment of error, appellant argues the trial court abused its
discretion in granting permanent custody to GCCS because GCCS failed to prove that
the children could not be placed with appellant within a reasonable period of time, or that
the grant of permanent custody was within the best interests of the children. We disagree.
Permanent Custody
{¶ 16} R.C. 2151.414(B)(1) states permanent custody may be granted to a public
or private agency if the trial court determines by clear and convincing evidence at a
hearing held pursuant to division (A) of R.C. 215.414, that it is in the best interest of the
child and 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.
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 6
(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* *
*.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been
adjudicated an abused, neglected, or dependent child on three
separate occasions by any court in this state or another state.
{¶ 17} Clear and convincing evidence is that evidence “which will provide 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), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St. 3d 361, 481 N.E.2d 361 (1985).
“Where the degree of proof required to sustain an issue must be clear and convincing, a
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.” Cross at 477.
{¶ 18} In determining whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents pursuant to R.C.
2151.414(B)(1)(a), a trial court is to consider the existence of one or more factors under
R.C. 2151.414(E) including in relevant part:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 7
agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child's home. In
determining whether the parents have substantially remedied those
conditions, the court shall consider parental utilization of medical,
psychiatric, psychological, and other social and rehabilitative
services and material resources that were made available to the
parents for the purpose of changing parental conduct to allow them
to resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent
that is so severe that it makes the parent unable to provide an
adequate permanent home for the child at the present time and, as
anticipated, within one year after the court holds the hearing pursuant
to division (A) of this section or for the purposes of division (A)(4) of
section 2151.353 of the Revised Code;
***
Best Interests
{¶ 19} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interest of a child:
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 8
(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 the Revised Code,
the child was previously in the temporary custody of an equivalent
agency in another state;
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 9
(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.
{¶ 20} First, appellant argues because she substantially complied with her case
plan services, the trial court erred in granting permanent custody to GCCS. But even if
she had substantially complied, this court has previously recognized, “that even where a
parent has participated in his or her case plan and completed most or all of the plan
requirements, a trial court may still properly determine that such parent has not
substantially remedied the problems leading to agency involvement.” Matter of L.D. 5th
Dist. Licking No. 18 CA 0023, 2018-Ohio-3380 ¶ 34, citing In re Pendziwiatr/Hannah
Children, 5th Dist. Tuscarawas App. No. 2007 AP 03 0025, 2007-Ohio-3802, ¶ 27.
{¶ 21} That is the case here. GCCS has been involved with appellant and her
family since 2014. The children had been in the temporary custody of GCCS for more
than the requisite period of time under R.C. 2151.414(B)(1)(d). During GCCS's
involvement beginning in 2014, there have been 35 incident reports involving the children
and not much has improved. In an attempt to prevent removal of the children from their
home, GCCS assisted appellant in numerous ways including referrals to service
providers, an exploration into possible kinship placement, progressive visits, and financial
assistance for things such as rental deposits, gas, car seats, food diapers, and strollers.
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 10
(T) 54-56. Despite these efforts, taken over the course of more than two years, appellant
has been unable to get to a point where reunification with her children can take place.
{¶ 22} Although appellant appears to need R.B to assist in parenting the children,
she and R.B have a tumultuous relationship riddled with violence. Appellant further
appeared unable to cope with the stress of caring for all three children at once during the
one-hour visits that took place during the pendency of this matter, making it questionable
to find she would be capable of parenting full time on her own. Appellant struggles to
divide her attention between the three children, thus being unable to provide proper
supervision in order to keep the children safe from harming themselves. Appellant has
also been unable to keep the children safe from R.B who has allegedly harmed D.M in
the past. D.M is in fact terrified of R.B. Transcript (T), 23, 48-50, 132-135,178.
{¶ 23} Progressive visits were started several times, but then suspended due to
housing concerns involving insects in the home, as well as substance abuse and
domestic violence issues. There are also concerns regarding appellant's mental health.
She failed, however, to consistently engage in treatment as per her case plan and was
terminated from treatment. Appellant was further either unable or unwilling to obtain and
maintain employment. During the course of this case, appellant changed jobs eleven
times. (T) 18-20, 23-24, 30-35.
{¶ 24} Meanwhile, D.M and P.B have been in the same foster home since
September 29, 2016. C.B went to the same foster home right after he was born. All three
children have either behavior issues or other special needs which require a great deal of
supervision and active parenting. The needs of all three are being appropriately
Guernsey County, Case Nos. 18 CA 15, 18 CA 16, 18 CA 17 11
addressed in their foster home. Further, they have been in foster care so long that they
have become bonded and integrated into the home. (T) 118-125, 127-129.
{¶ 25} Based on the foregoing, we reject appellant's arguments. GCCS presented
ample evidence to demonstrate by clear and convincing evidence that the children cannot
and should not be placed with appellant, and further that it was within the best interest of
the children to grant the agency permanent custody. The trial court's finding of the same,
therefore, was not against the manifest weight of the evidence.
{¶ 26} Appellant's assignment of error is overruled.
{¶ 27} The judgment of the Guernsey County Court of Common Pleas, Juvenile
Division, is affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/rw