In re R.A.

[Cite as In re R.A., 2022-Ohio-1748.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
In re R.A. Court of Appeals No. E-21-048
E-21-049
Trial Court No. 2018 JD 010
2018 JN 034
DECISION AND JUDGMENT
Decided: May 25, 2022
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Ron Nisch, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} In this consolidated appeal, N.M., the mother and appellant herein, appeals
two final judgments of the Erie County Court of Common Pleas, Juvenile Division that
terminated her parental rights and granted permanent custody of her two children to the
Erie County Department of Job and Family Services (“the Agency”). For the following
reasons, we affirm.
Statement of the Case
{¶ 2} Appellant, N.M. (“Mother”), is the mother of two children, a daughter and a
son. On April 19, 2018, the Agency filed a complaint alleging that the daughter was a
neglected/dependent child due to concerns that she was not meeting developmental
milestones, had significant delays, was suffering from a severe case of cradle cap, and
had missed medical appointments. On May 31, 2018, the Agency filed a complaint
alleging that the son was also a dependent child. At the time, the children were residing
at 1423 North Forrest Drive in Sandusky, Ohio with Mother and her boyfriend, M.A.
(“Father”), who is their biological father. J.M., the legal father of the children, who was
married to Mother when she gave birth to them, has never had any involvement with the
children.
{¶ 3} At adjudicatory hearings, held on June 12 and 26, 2018, Mother admitted to
the dependency allegations. The Agency was awarded protective supervision over the
children at the dispositional hearings in their respective cases. The Agency soon became
concerned about the size of the children, and the ongoing caseworker requested that Peds
on Wheels, a pediatric medical services provider, meet her at the family’s home. After
examining the children, the Peds on Wheels physician instructed the caseworker to take
2.
the children directly to Firelands Hospital. At Firelands Hospital, both children were
examined and the son was given an IV. Thereafter, the children were transferred to
Rainbow Babies Hospital, where they were admitted for treatment relating to
malnutrition. Upon their release from Rainbow Babies Hospital, on July 16, 2018, the
Agency filed a motions for temporary custody in both cases. The motions were granted
by the juvenile court at an ex parte hearing.
{¶ 4} On August 3, 2018, the Agency filed a motion in each case requesting that
the parents’ visitation with the children be suspended due to the parents having left
behind bed bugs in the Agency lobby during their last visit. The juvenile court granted
the motion on August 3, 2018, and the parents were told that they could resume visitation
after providing documentation that they had remedied the bed bug problem.
{¶ 5} On September 10, 2019, the Agency filed motions for permanent custody,
alleging that a transfer of permanent custody was in the best interest of the children
because the children had been in the custody of the Agency for more than 12 months,
they could not be placed with either parent within a reasonable time or should not be
placed with their parents, the parents had demonstrated a lack of commitment to the
children and had abandoned them, and the parents had not completed or complied with
the case plan requirements.
{¶ 6} On September 27, 2019, the Agency filed a motion for a court order
reinstating the parents’ visitation with the children, after the caseworker had obtained
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paperwork from the homeless shelter where the parents were staying confirming that the
shelter was free of bed bugs. The juvenile court granted the motion on September 30,
2019, and the parents resumed visitation with the children on October 17, 2019, some 14
½ months after the suspension began.
{¶ 7} An evidentiary hearing on the Agency’s motions for permanent custody was
held on October 6, 2020, by which time the children had been in the custody of the
Agency for nearly 27 months. On December 7, 2020, the magistrate issued a decision
recommending that the Agency’s motions for permanent custody be granted. On
October 25, 2021, the juvenile court entered judgment entries approving and adopting the
proposed decision of the magistrate. The juvenile court concluded that: (1) the children
could not be placed with either parent within a reasonable time or should not be placed
with either parent, as provided for in R.C. 2151.414(B)(1)(a); (2) the children had been
abandoned, as provided for in R.C. 2151.414(B)(1)(b); (3) the children had been in the
temporary custody of the Agency for 12 or more months of a consecutive 22-month
period, as provided for in R.C. 2151.414(B(1)(d); and (4) permanent custody of the
children in the Agency was in the children’s best interest. Mother timely appealed the
juvenile court’s decisions.
Statement of the Facts
{¶ 8} Emeline Clyburn, the Agency’s Investigation Supervisor, testified that the
Agency first became involved with the family in February 2018, at which time only the
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daughter had been born. The Agency had received reports that the daughter was not
meeting developmental milestones, had significant delays, had missed medical
appointments, and was suffering from a very bad case of cradle cap.
{¶ 9} Clyburn went to the family’s residence with the Health Department to
investigate and found that “the house was cluttered,” “[t]here was dirty laundry” and
“food debris on the floor,” there were “cat litter boxes that needed to be cleaned,” and
there were cockroaches present. Clyburn also noticed that the daughter, who was
approximately 1 1/2 years old at the time, was “small,” “she had very poor trunk
strength,” and she “was not able to hold herself up.” Clyburn testified that this was
unusual, in her experience, as children that age are typically able to sit on their own and
hold themselves upright, walk or crawl, and pull themselves up to stand. Clyburn also
noticed that the daughter was “disheveled” and that she had on “a sleeper that was * * *
soiled.” Furthermore, the daughter had cradle cap covering “most of the top of her head”
and going “down the back of her neck and the sides of her face.” Clyburn explained that
cradle cap is a skin condition that causes scaling and flaking on the head, and that it is
typical for infants to have “small patches on the top of the head.” She further stated that,
in her training and experience, “[i]t is unusual to have [cradle cap scales] covering that
much of the body.”
{¶ 10} When the Agency later obtained the child’s medical records, it also learned
that the daughter had missed several non-routine medical appointments, including a
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neurologist visit, to address developmental delays, and a dermatology appointment, to
address her cradle cap. During a home visit, a team from “Help Me Grow” parent
support services advised Clyburn that the daughter “had a multitude of concerns that
needed to be addressed.” Clyburn testified that Mother did not appear to understand the
scope of her daughter’s developmental needs.
{¶ 11} Clyburn further testified that around the time that daughter was adjudicated
to be dependent, Mother gave birth to her second child, a son, and the Agency filed for
protective supervision over him as well. When Clyburn conducted a follow-up visit to
the home, she became concerned when she saw that the son was dressed in nothing but a
onesie garment. Clyburn further stated that in June of 2018, on the day when the case
was passed to the ongoing caseworker, the agency also received concerns about the boy’s
size and about the fact that he was not feeding well or gaining weight.
{¶ 12} Clyburn testified that the condition of the parents’ home improved
somewhat during her home visits, but that there were continuing concerns about the smell
of sour milk that was in the household, dirty laundry that was strewn about the home, and
a dirty diaper that was discovered on the couch. Clyburn also suspected that there was
some sort of a drug problem, after she smelled marijuana in the home during at least two
home visits. Clyburn further observed during home visits that both parents “appeared to
be disheveled” and “in need of a bath.” There were also mental health concerns with
respect to the parents. That said, Clyburn confirmed that Mother was cooperative in
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signing releases for medical records, and that it was not initially recommended that the
children be removed from the home.
{¶ 13} Jody Moen, an ongoing caseworker who worked on the case for
approximately two months, beginning in June 2018, testified that she went to the parents’
home on June 12, 2018 and “observed both children to have large heads and small
bodies.” Moen testified that she visited the family multiple times over the next month,
and that she felt “something was not right,” as evidenced by the fact that the son was not
gaining weight and because the daughter was very thin, developmentally delayed, and
had no muscle control over her neck or middle section. Moen took the children to their
primary care physician for a weight check, but the doctor’s office did not discern that
anything was wrong.
{¶ 14} Moen continued to talk to the parents about having Peds on Wheels come
to the home so that a pediatrician could examine the children, but the parents refused to
consent. Moen took her supervisor to the home on July 3, 2018, because she continued to
suspect that something was wrong, but the supervisor did not agree with her. The
following week, the Agency received a report from a person who was concerned that the
children “looked unhealthy, looked very low weight,” and “weren’t developmentally on
task.” In order to investigate the new complaint, Moen met the doctor from Peds on
Wheels at the family’s home on July 13, 2018. The doctor, after examining the children,
instructed Moen to take them directly to Firelands Hospital, because they were both
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underweight. At the hospital, staff examined the children and placed an IV in the son.
Both children were admitted into Firelands Hospital and, soon after, were transported to
Rainbow Babies Hospital, in Cleveland. The Agency decided to file for emergency
temporary custody of the children, and subsequently took custody of them upon their
discharge from Rainbow Babies Hospital, in July 2018.
{¶ 15} Moen testified that after the Agency took custody of the children, the
parents did not seem very interested in reunification. They never asked about the
children when Moen met with them, although they did visit the children twice while
Moen was the caseworker. On August 3, 2018, the Agency obtained a court order
suspending the parents’ visitation, because it was discovered that during their last visit
they had left behind bed bugs in the lobby area of the Agency. Moen advised the parents
that they could reestablish visitation by having a company come to their home and
confirm that they no longer had bed bugs. By the middle of August, however, when
Moen passed the case on to another caseworker, the parents had yet to act on this advice.
Moen testified that the parents never contacted her during this, or any other time, to ask
about the children.
{¶ 16} Moen amended the case plan after the Agency received temporary custody
of the children to include anger management instruction for Father, parenting instruction
for both Mother and Father, Help Me Grow releases, mental health assessments for both
parents, the requirement of a clean safe home, home visits, monthly face-to-face visits,
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and a psychological assessment with a parenting component. Moen testified that Mother
was “doing her mental health” through Firelands, but that Father had not begun to
address any of the requirements that were on his case plan. At the time Moen turned the
case over in mid-August 2018, the Agency’s concerns had not been remedied and she
could not recommend returning the children to their parents’ custody.
{¶ 17} Ashley Gilbert, the ongoing caseworker who has had the case since August
2018, testified that the case plan required both parents to complete a mental health
assessment, a psychological assessment with a parenting component, agency-approved
parenting classes, and certain activities in the home to address the bed bug and cockroach
issues and to keep the home sanitary. The case plan also required father to complete
anger management instruction. At the time Gilbert took over the case in August 2018,
neither parent had completed any of the case plan requirements. After Father’s drug
screen tested positive for cocaine and both parents admitted to actively using cocaine, the
case plan was amended in January 2019 to require that both parents also complete a drug
and alcohol assessment, follow all treatment recommendations, and submit to random
drug screens. During visits with parents, Gilbert also observed evidence of illicit drug
use in the home, including drug paraphernalia, what appeared to be a crack pipe,
marijuana, bongs, a white substance in a plastic bag, and prescription bottles lying on the
floor. In October 2019, the case plan was further amended to add additional housing and
personal hygiene requirements for the parents.
9.
{¶ 18} When Gilbert took over the case in August 2018, the parents’ visitation
with the children had already been suspended due to the bed bug issue. In order for them
to resume their visitation, the parents were required to obtain documentation from a pest
inspector or someone else who could confirm there were no bed bugs in their residence.
A couple of weeks after Gilbert took over the case, the parents moved out of their home
and into a motel. Gilbert gave the parents the telephone number of a Terminix pest
control service, which she had confirmed would perform one free inspection per year,
and she told them that because they lived in a commercial property, they would need to
have the motel manager call to schedule an inspection. Gilbert continued to follow up
with the parents and to advise them of what they needed to do to resume their visitation,
but they never made any attempt to address the bed bug concern. As a result, the parents
went 14 ½ months without visiting the children. Gilbert testified that during this time,
the parents did not ask about their children. When the parents later moved into a
homeless shelter, Mother told Gilbert that she had talked to a manager about getting
documentation to confirm that the shelter did not have bed bugs. When Gilbert still did
not receive any documentation from Mother, Gilbert herself reached out to the shelter and
was able to obtain a letter confirming that they had no current bed bug problem. Gilbert
then advised the parents to contact their respective attorneys to petition the court to
reinstate their visitations. When, after several weeks, the parents had yet to file a
petition, the Agency filed its own motion to reinstate visitation, on the parents’ behalf.
10.
The visitations finally resumed on October 17, 2019. During one of these resumed visits,
the parents brought gallon-size bags of Cheerios for each child. Gilbert stated that she
was concerned about the amount of food the children were consuming during the visit
and about the fact that the parents were not paying attention to what the children were
doing, because both children had almost choked on food numerous times while trying to
eat too fast.
{¶ 19} Gilbert testified that the Agency had to stop in-person visitations from the
middle of March 2020 through June 2020 due to the COVID-19 pandemic. During that
time, the parents did not have or request any video or telephone contact with the children.
They resumed visitation in early June 2020, but Gilbert testified that there was “still
limited bond attachment” observed between the parents and the children.
{¶ 20} Gilbert testified that Mother “had a job pretty consistently throughout the
ongoing case,” even though she switched employers several times and, over the relevant
time period, held a total of approximately five jobs. Gilbert testified that Father struggled
with employment, having held a total of eight or nine different jobs, each of which
typically lasted only a matter of weeks. Gilbert confirmed that Father spent more time
unemployed than employed and that, according to Mother, Father “was at home a lot with
the children while [Mother] was out working.”
{¶ 21} With respect to the parents’ housing, Gilbert explained that they started on
North Forrest Drive, moved into three different motels, later moved into a homeless
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shelter, and finally moved into their current residence, where, at the time of the hearing,
they had lived for approximately one year. Gilbert described their current residence as
dirty, cluttered with trash bags, with trash on the floor, crusted food all over the stove and
counter areas, and dishes stacked up in the kitchen. Gilbert further testified that the home
“usually has a foul odor” from dirty laundry or body odor. Gilbert also observed drug
paraphernalia and knives left out in the parents’ home. Furthermore, the parents did not
have any furniture or proper sleeping arrangements for the children. Thus, Gilbert
testified that she could not approve their housing.
{¶ 22} Gilbert confirmed that the parents had completed parenting classes in
March of 2019, a psychological assessment with a parenting component, and that Mother
had taken all drug screens when asked. Although Mother had previously been compliant
with the mental health and drug and alcohol components of the case plan, she was no
longer compliant at the time of the hearing, because she had stopped attending services in
April 2020. Father was also not compliant with the mental health and drug and alcohol
components of the case plan, having failed to engage in any services since January 2020.
{¶ 23} Gilbert testified that in her professional opinion, the parents had not
demonstrated a commitment to reunification with their children, based on the 14 ½-
month time period during which they failed to visit their children, their lack of
engagement, and their failure to follow through with their own treatment. Gilbert further
testified that the parents could not provide an adequate permanent home for the children,
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and that it was her opinion that the children could not be placed with either parent within
a reasonable amount of time. The biggest barriers to placing the children with their
parents, according to Gilbert, was the unaddressed substance abuse concerns and the lack
of insight by the parents as to what they need to change going forward.
{¶ 24} Gilbert testified that she does not feel that there is an attachment between
the children and their parents, and that the children simply associate the parental visits
with “play time and food.” By contrast, Gilbert testified that the children, who have been
with their current foster family since September 2019, “are extremely bonded” to their
foster parents and have “really grown and developed over the course of the last year.”
During that time, both children have engaged in speech therapy, occupational therapy,
physical therapy, and behavioral counseling. The daughter also sees a neurologist at least
twice a year, to ensure that certain spots she has on her brain are not getting worse, and
she has undergone genetic testing for autism. The son is still engaged in Help Me Grow
services. Gilbert testified that she does not believe that the biological parents understand
the extent of the children’s special needs or that they would be able to keep up with all of
the necessary treatments if they were reunited with the children. Thus, she testified that it
was her opinion that an award of permanent custody to the Agency was in the children’s
best interest.
{¶ 25} Bridget Lemberg, the Lab Director and Toxicologist at Forensic Fluids
Laboratory, testified that three of the 16 samples collected from Mother tested positive
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for cocaine, as recently as March 29, 2019. She also testified that 12 of the 17 samples
collected from Father had tested positive for drugs, including amphetamines,
methamphetamines, and cocaine.
{¶ 26} Allison Roth, the children’s foster mother, testified that the children had
been placed with her and her husband since September 2019. When the children arrived
at her home, the daughter had just started walking and was behind both developmentally
and verbally; she could not speak any words and communicated only through screaming
and yelling. The son was not walking or speaking, and his motor skills were delayed.
Both children had eating issues; they swallowed their food whole and shoveled it in their
mouths to the point where Roth had to perform the Heimlich maneuver on each of them
approximately ten times over the course of one year.
{¶ 27} Roth testified that both children go to speech therapy twice a week and to
occupational and physical therapy once a week. They also attend behavioral counseling,
they see a nutritionist, and they regularly see the dentist and eye doctor. The son is
engaged in Help Me Grow, while the daughter graduated from the program. Roth
testified that both children have night terrors, though the daughter has them much more
frequently than does the son. The night terrors began shortly after the children’s first
visitation with their parents in October 2019, subsided during the 2 1/2 months that
visitation was paused due to the pandemic, and then started again on June 4, 2020, when
visitations with the parents resumed. Roth also noticed that the children were making
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greater strides in the weeks during which visitation with the parents had been suspended
due to the pandemic; not only did the daughter’s night terrors almost disappear, but the
children began speaking in full sentences and the daughter’s eczema went away. Once
the visitations resumed in June 2020, however, the children regressed.
{¶ 28} Roth testified that both children had made great strides in the last year.
They now eat every two hours, maintain a consistent schedule, and are both potty-trained.
However, the children are still not within the normal range on the growth chart and have
various issues left to resolve. Roth feels that the children are bonded to her and to her
husband, and she stated that she and her husband are willing to continue to provide a
home for them.
{¶ 29} Patty James, the children’s CASA representative, testified that the children
are receiving very good and diligent care in their foster home, and that they have
developed a strong bond with their foster parents. James testified that the daughter has
had many developmental delays, but that she has made progress by going to the SPOT
Program, as well as to speech, physical and occupational therapy. James has observed
visits between the children and their biological parents, during which she has not noticed
any excitement from the children or any bond with the parents. James has also visited the
parents a couple of times at the motel in which they were living, which she described as
cramped, cluttered, not clean, and dark. In addition, James attempted two visits with the
parents at their current residence, but no one answered the door. James confirmed that
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Mother has had some successes, including completion of parenting classes and a
psychological assessment. However, James testified that it was her opinion that the
parents could not adequately meet the children’s needs, because “it appears that they
struggle with meeting some of their own needs.” She, therefore, recommended that the
juvenile court award permanent custody of the children to the Agency.
{¶ 30} James Melle, the children’s guardian ad litem, also testified that the
children were thriving in their foster home, and that their foster family is making sure that
their special needs are met. He further testified that after observing a visit between
parents and the children, he was concerned that there was not a strong bond with the
children. Melle testified that he also has concerns about not being able to schedule a time
with parents to view their current residence, and about the fact that Mother failed to send
pictures of the home, as she had previously offered. Melle, therefore, testified that he
believes it is in the children’s best interest that they be placed in the permanent care of
the Agency and that they stay with their foster parents.
Assignment of Error
{¶ 31} Mother asserts the following assignment of error on appeal:
I. The Trial Court’s conclusion that there was clear and convincing
evidence that the Agency met its burden under R.C. Sec. 2151.414, was
against the manifest weight of the evidence.
16.
Analysis
{¶ 32} In her sole assignment of error, Mother asserts that the juvenile court’s
conclusion that there was clear and convincing evidence that the Agency had met its
burden pursuant to R.C. 2151.414 was against the manifest weight of the evidence. The
Agency asserts that Mother’s assignment of error is “incorrect and not well-founded,”
because there is clear and convincing evidence that one or more of the conditions set
forth in R.C. 2151.414(B)(1)(a) through (e) applies and because granting permanent
custody to the Agency is in the child’s best interest.
{¶ 33} R.C. 2151.414 delineates “specific findings a juvenile court must make
before granting an agency’s motion for permanent custody of a child.” In re T.J., 2021-
Ohio-4085, 180 N.E.3d 706, ¶ 36 (6th Dist.), citing In re A.M., 166 Ohio St.3d 127,
2020-Ohio-5102, 184 N.E.3d 1, ¶ 18. As relevant here, the court must find by clear and
convincing evidence (1) that one or more of the conditions in R.C. 2151.414(B)(1)(a)
through (e) applies and (2) that a grant of permanent custody is in the child’s best
interest. See R.C. 2151.414(B)(1); see also In re T.J. at ¶ 36 and In re A.M. at ¶ 18. All
of the courts findings under R.C. 2151.414 must be supported by clear and convincing
evidence. In re T.J. at ¶ 36. “Clear and convincing evidence” is evidence that allows the
trier of fact “to form a firm conviction or belief that the essential statutory elements for a
termination of parental rights have been established.” Id.
17.
{¶ 34} In the instant case, the trial court found, with respect to the first
requirement, that R.C. 2151.414(B)(1)(a), (b), and (d) applied, i.e., that the children
cannot and should not be placed with either of the parents within a reasonable time, that
the children were abandoned, and that the children have been in the temporary custody of
the Agency for 12 or more months of a consecutive 22-month period. On appeal, Mother
contends that the juvenile court’s findings that the children were abandoned and that they
could not be placed with either of their parents within a reasonable time or they should
not be placed with their parents were against the manifest weight of the evidence.
Importantly, however, Mother does not dispute the juvenile court’s finding, pursuant to
R.C. 2151.414(B)(1)(d), that the children have been in the temporary custody of the
Agency for 12 or more months of a consecutive 22-month period. As the first prong of
the permanent custody test is satisfied where “one or more” of the conditions set forth in
R.C. 2151.414(B)(1)(a) through (e) applies, the juvenile court’s undisputed finding under
R.C. 2151.414(B)(1)(d) is sufficient to establish the first requirement of the statute. See
In re B.C., 12th Dist. Warren Nos. CA2018-03-024, CA2018-03-027, 2018-Ohio-2673, ¶
16 (“To satisfy part two of the permanent custody test, only one of the [R.C.
2151.414(B)(1)(a) through (e)] findings need be met.”); In re D.P., 6th Dist. Erie No. E-
11-023, 2011-Ohio-4138, ¶ 52 (“Once a finding is made by the court satisfying one of the
factors enumerated in R.C. 2151.414(B)(1), the trial court must only determine if an
award of permanent custody to the agency is in the child’s best interest.”).
18.
{¶ 35} Next, we consider the second prong of the permanent custody test,
involving the question of whether a grant of permanent custody is in the child’s best
interest. It is the Agency’s burden to prove by clear and convincing evidence that the
grant of permanent custody is in the child’s best interest. See In re A.M., ¶ 19. In making
a best interest determination, a court is guided by R.C. 2151.414(D)(1), which provides:
In determining the best interest of a child * * *, 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 * * *;
(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.
{¶ 36} A trial court’s determination in a permanent custody case is reviewed under
a manifest-weight-of-the-evidence standard. In re P.W., 6th Dist. Lucas No. L-12-1060,
19.
2012-Ohio-3556, ¶ 20. Pursuant to this standard, “we must weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
the trier of fact clearly lost its way in resolving evidentiary conflicts so as to create such a
manifest miscarriage of justice that the decision must be reversed.” In re T.J., 2021-
Ohio-4085, 180 N.E.3d 706 at ¶ 40, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). In performing this analysis, “we must be mindful that the
juvenile court, as the trier of fact, is in the best position to weigh evidence and evaluate
testimony.” In re T.J. at ¶ 40. The juvenile court’s discretion in determining whether an
order of permanent custody is in the best interest of a child “should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
determination will have on the lives of the parties concerned.” (Internal quotation marks
and citations omitted.) In re C.P., 10th Dist. Franklin No. 08AP-1128, 2009-Ohio-2760,
¶ 10.
{¶ 37} In the instant case, the juvenile court found that granting the Agency
permanent custody was in the children’s best interest. Mother contends in her appeal that
the court “misapplied or misstated several facts” in its consideration of the relevant best
interest factors.
{¶ 38} Regarding the best interest factor set forth in R.C. 2151.414(D)(1)(a),
which deals with the children’s relationships with others, the magistrate found that:
20.
The caseworker repeatedly asked both [Father] and [Mother] for the names
of relatives who could be a potential option for permanency for the
children. The only name was [Mother’s] mother and [Mother’s] mother did
not complete the paperwork provided by the Agency. There have been no
relationships or interaction with the children by paternal or maternal
relatives. When visitation between the children and parents resumed on
October 17, 2019, at that first visit the caseworker brought the children into
the visitation room where the parents were seated; the parents didn’t get up
to greet their children, nor show any love or affection; and the children
didn’t move towards their parents. The caseworker opined she doesn’t feel
there is a bond between the children and parents. Both the CASA and GAL
concurred that they don’t believe the children have a strong bond with their
parents. Conversely, it was clear from the testimony of the GAL and the
foster-mom that both children are strongly bonded to their foster parents,
who they have lived with full-time since September 27, 2019.
{¶ 39} The juvenile court further supplemented the findings regarding the
children’s relationships, as follows:
[N]one of the parties ([J.M.], Mother and [Father]), have demonstrated
much of a commitment to, nor have they established a strong bond with the
child[ren]. There are no relatives who have shown interest in or have had
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contact with the child[ren]. The child[ren] [are] strongly bonded with
[their] sibling and foster parents.
{¶ 40} Mother has not challenged any of the court’s findings as to this factor.
Indeed, caseworkers Moen and Gilbert each testified that after the Agency took custody
of the children, the parents did not seem interested in reunification and never asked about
the children during any of their home visits. Both caseworkers also testified that the
parents never contacted them to ask how the children were doing, including during the 14
½ months that their visitation was suspended. Furthermore, the parents did not have or
request any video or telephone contact with the children when the Agency was forced to
halt in-person visitations from mid-March through June 2020 due to the pandemic.
{¶ 41} Caseworker Gilbert further testified that she does not believe that there is
an attachment between the children and their parents. The CASA representative and the
guardian ad litem echoed this opinion at the hearing. Conversely, they all testified that
the children have a strong bond with their foster parents, who they have lived with since
September 2019. The foster mother testified that the children are bonded to both her and
her husband, and that they are willing to continue to provide a home for them.
{¶ 42} We find that the weight of the evidence supports the juvenile court’s
findings and that the court properly considered R.C. 2151.414(D)(1)(a).
{¶ 43} Regarding the best interest factor set forth in R.C. 2151.414(D)(1)(b),
which deals with the children’s wishes, the magistrate found that neither child is old
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enough to be able to express their wishes regarding permanency, and that “[b]oth the
GAL and CASA believe that it would be in the children’s best interest to grant permanent
custody to [the Agency] to facilitate adoption (note, the foster-mom testified that she and
her husband are willing to provide the children a home as long as they need one.).”
Mother has not challenged any of the court’s findings as to this factor. Indeed, the
guardian ad litem and the CASA representative both testified that they believed that
granting permanent custody to the Agency was in the children’s best interest.
{¶ 44} We find that the children’s wishes, as expressed by the CASA
representative and the guardian ad litem, favored the Agency under R.C.
2151.414(D)(1)(b) and that the juvenile court’s decisions were not against the manifest
weight of the evidence.
{¶ 45} With respect to the best interest factor set forth in R.C. 2151.414(D)(1)(c),
regarding custodial history, the magistrate found that the children were placed in the
custody of the Agency on July 16, 2018 “and have remained in the custody of the Agency
since, a period of over two years.” The juvenile court further found that the children had
been removed from their home at two years and two months of age, respectively, and that
they had “lived away from [their] parents most of [their] life.” Mother has not disputed
these findings.
{¶ 46} Furthermore, Mother’s efforts to maintain visitation and seek reunification
have been limited. The parents’ visitation with the children was suspended for 14 ½
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months, between August 2018 and October 2019, due to a bed bug infestation.
Caseworkers Moen and Gilbert each testified that although they had advised the parents
as to how to reestablish visitation, the parents failed to take the necessary actions. The
parents’ in-person visitation with the children was also halted from mid-March through
June 2020, due to the pandemic, during which time the parents did not have or request
any video or telephone contact with the children. Finally, the record establishes that
neither parent had substantially complied with the case plan requirements, which further
delayed reunification.
{¶ 47} These facts support the juvenile court’s finding that R.C.
2151.414(D)(1)(c) weighed in favor of granting permanent custody to the Agency.
{¶ 48} With respect to R.C. 2151.414(D)(1)(d), regarding the children’s need for a
legally secure placement, the magistrate found:
The children most definitely need a legally secure permanent placement, as
attested to by the caseworker, foster-mom, CASA and the GAL. The
children’s mother and father cannot provide a permanent home for them, as
they have a history of unstable housing and employment and haven’t
demonstrated they comprehend the children’s special needs, let alone have
the ability to meet those needs. Neither parent successfully completed
mental health services or drug and alcohol services as directed by the case
plan. Both parents have pending felony child endangering charges against
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them, concerning these children. The CASA summed it up best when she
testified that the parents cannot meet the children’s needs, as they struggle
to meet their own needs.
{¶ 49} The juvenile court found:
Child[ren] need[] a legally secure placement and [the Agency] is the only
one able to provide that now or in the foreseeable future. Specifically, the
evidence established that Mother and [Father] show lack of organization,
initiative and insight sufficient to meet their children’s special as well as
basic needs. They have had over two years to get the help they needed and
have not done so. They presented no evidence challenging this.
{¶ 50} “Although the Ohio Revised code does not define the term, ‘legally secure
permanent placement,’ courts have generally interpreted the phrase to mean ‘a safe,
stable, consistent environment where a child’s needs will be met.” In re T.J., 2021-Ohio-
4085, 180 N.E.3d 706 at ¶ 59.
{¶ 51} Mother contends that the juvenile court incorrectly concluded that her
employment and housing instability was a negative factor. As indicated above,
caseworker Gilbert, who has been assigned to the case since August 2018, testified that
Mother “has had a job pretty consistently throughout the ongoing case,” having held
approximately five jobs. However, Gilbert further testified that Father has struggled with
employment, and has spent more time unemployed than employed. Mother still lives
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with Father and has previously indicated that he is the person who supervises the children
while she works. Father has not complied with the case plan requirements, including the
mental health and drug and alcohol components. Furthermore, Father has refused drug
screens and, on 12 occasions, has tested positive for drugs, including amphetamines,
methamphetamines, and cocaine.
{¶ 52} With respect to the parents’ housing, the caseworker testified that the
parents started on North Forrest Drive, moved into three different motels, later moved
into a homeless shelter, and finally moved into their current residence at the time of the
hearing. The parents had been in their current residence for approximately one year at
the time of the hearing. However, testimony by caseworker Gilbert established that the
parents’ current residence is dirty and cluttered with trash bags, there are dishes stacked
up in the kitchen area, and there is food crusted all over the stove and countertops.
Gilbert further testified that the home “usually has a foul odor” from dirty laundry or
body odor. She also observed drug paraphernalia and knives left out in the parents’
home. In addition, the parents did not have any furniture or proper sleeping arrangements
for the children in the residence. Gilbert, therefore, could not approve the parents’
housing. Patty James, the children’s CASA representative, testified that she had
attempted two visits to the parents’ current residence, but no one had answered the door.
James Melle, the children’s guardian ad litem, testified that he also had concerns about
not being able to schedule a time with the parents to view their current residence, and that
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Mother had failed to send him pictures of the home after offering to do so. Thus, the
juvenile court’s finding that parents have “a history of unstable housing and
employment,” is supported by the record and, further, supports the granting of permanent
custody to the Agency.
{¶ 53} Mother also disputes the juvenile court’s finding that she neglected to
attend to the children’s medical and development needs. Specifically, the juvenile court
found that:
Mother and [Father] neglected to attend to the medical, physical and
developmental needs of the children resulting in them being hospitalized on
an emergency basis for malnourishment and failure to thrive. * * * Mother
and [Father], both, show little initiative to learn about and to apply what is
necessary to meet [daughter’s] special needs, let alone both children’s basic
needs.
{¶ 54} The magistrate similarly found that:
The initial concerns, why the Agency filed complaints asking for protective
supervision, was neglect. [Daughter] had severe cradle cap and the parents
were missing doctors’ appointments for her. Several months later when the
Agency filed an emergency Motion for Custody it was due to a doctor’s
concern with the children’s failure to thrive. [Father and Mother] never
seemed to internalize what their children would need to live a safe, healthy
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life. They also showed little insight regarding understanding why their
children were removed from them in the first place, despite the fact that
when the children were taken to the local Emergency Room, they were then
sent to Rainbow Babies Hospital.
{¶ 55} Contrary to Mother’s claim, there is abundant clear and convincing
evidence in the record to support the juvenile court’s finding that the parents failed to
attend to the medical, physical and developmental needs of the children. The Agency’s
Investigation Supervisor Clyburn testified that the Agency first became involved with the
family in February 2018, after receiving reports that the daughter was not meeting
developmental milestones, had some significant delays, had missed medical
appointments, and had “a very bad case of cradle cap.” Clyburn testified that when she
went to the home to investigate, she noticed that the daughter, who was approximately 1
½ years old at the time, was “small,” “she had very poor trunk strength,” and she “was
notable to hold herself up.” She testified that this was unusual, in her experience, as
children that age are typically able to sit on their own and hold themselves upright, walk
or crawl, and pull themselves up to stand. Clyburn also noticed that daughter had cradle
cap covering “most of the top of her head and down the back of her neck and the sides of
her fact.” Clyburn testified that it was highly unusual to have cradle cap covering that
much of a child’s body. Furthermore, when the Agency obtained the daughter’s medical
records, it learned that she had missed several non-routine medical appointments,
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including a neurologist visit, to address developmental delays, and a dermatology
appointment, to address the cradle cap. When Clyburn did a home visit with the team
from Help Me Grow, they advised that the child had a multitude of concerns that needed
to be addressed. According to Clyburn, Mother did not appear to understand the scope of
her daughter’s developmental needs.
{¶ 56} Caseworker Moen also testified that she “observed both children to have
large heads and small bodies. Moen testified that she felt “something was not right” – the
son was not gaining weight and the daughter was very thin, developmentally delayed, and
had no muscle control over her neck or middle section. Moen took the children to their
primary care physician for a weight check, but the doctor’s office did not discern that
anything was wrong. Moen continued to talk to the parents about having Peds on Wheels
come into the home so that a pediatrician could examine the children, but the parents
refused to consent. Moen also took her supervisor to the home on July 3, 2018, because
she still felt that something was wrong, but her supervisor did not agree with her. The
following week, the Agency received a report from a person who was concerned that the
children “looked unhealthy, looked very low weight,” and “weren’t developmentally on
task.” Moen then met Peds on Wheels at the family’s home on July 3, 2018, and the
doctor asked her to take the children to Firelands Hospital immediately, because both
children were underweight. At the hospital, staff examine the children and placed an IV
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in the son. Both children were admitted into the hospital and were subsequently
transported to Rainbow Babies Hospital, in Cleveland.
{¶ 57} The juvenile court’s finding that that the parents showed little initiative to
learn about and apply what is necessary to meet the children’s special needs is also
supported by the record. The children’s foster mother testified that both children go to
speech therapy twice a week and to occupational and physical therapy once a week. In
addition, they attend behavioral counseling, they see a nutritionist, and they regularly see
the dentist and eye doctor. The daughter also sees a neurologist at least twice a year to
address spots on her brain, and has undergone genetic testing for autism. She son is still
engaged in Help Me Grow services.
{¶ 58} Caseworker Gilbert, who has had the case since August 2018, testified that
she does not believe that the parents understand the extent of the children’s special needs
or that they would be able to keep up with all of the children’s treatments, if they were
reunified with the children. The CASA representative also testified that she does not
believe that the parents can adequately meet the children’s needs, because “it appears that
they struggle with meeting some of their own needs.” Thus, there was ample evidence in
the record to support the juvenile court’s findings that the parents neglected to attend to
the medical, physical, and developmental needs of the children, and that they have failed
to learn about and apply what is necessary to meet the children’s ongoing special needs.
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{¶ 59} Mother additionally disputes the juvenile court’s finding that the parents
appear to have many unmet behavioral issues as demonstrated by their drug use, lack of
safe and sanitary housekeeping, and their lack of healthy personal hygiene. Mother,
however, tested positive for cocaine on three occasions, most recently on March 29,
2019. Father also tested positive for drugs -- including amphetamines,
methamphetamines, and cocaine -- on 12 occasions. As previously noted, Mother still
resides with Father and has indicated that he supervises the children while she works.
Further, caseworker Gilbert testified that she observed evidence of illicit drug use in the
parents’ home, including drug paraphernalia, what appeared to be a crack pipe,
marijuana, bongs, a white substance in a plastic bag, and prescription drug bottles lying
on the floor. Gilbert also testified that the parents’ current residence is dirty and cluttered
with trash, and that the home “usually has a foul odor” from either dirty laundry or body
odor. Thus, there is clear and convincing evidence in the record supporting the juvenile
court’s finding that the parents have unmet behavioral issues.
{¶ 60} Finally, Mother disputes the juvenile court’s finding that she did not
successfully complete mental health services or drug and alcohol services, as directed by
the case plan. Caseworker Gilbert testified that although Mother had previously been
compliant with the mental health and drug and alcohol components of the case plan, she
was no longer compliant at the time of the hearing, because she had stopped attending
services in April 2020, though she claimed to have resumed services the week before the
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hearing. Father, who resides with Mother, was also not compliant with the mental health
and drug and alcohol components of the case plan, not having engaged in services since
January 2020. As the juvenile court noted, the parents “have had over two years to get
the help they needed and have not done so.”
{¶ 61} That Mother and Father may have complied with some aspects of the case
plan does nothing to alter the outcome of this analysis in this case. As this court has
recently recognized, case plan compliance, while relevant to a best-interest
determination, is not dispositive of it. See In re T.J., 2021-Ohio-4085, 180 N.E.3d 706 at
¶ 72. Even “substantial compliance” “is but one of many factors the court may find
relevant * * * in rendering its judgment.” Id. at ¶ 76. Here, the juvenile court found that
the best interest factors supporting an award of permanent custody to the Agency
outweighed Mother’s completion of parts of her case plan. We find that the evidence
supports that decision.
{¶ 62} With respect to R.C. 2151.414(D)(1)(e), regarding whether any of the
factors in R.C. 2151.414(E)(7) through (11) apply to the parents and children, the
magistrate found that divisions (E)(7)(c) and (E)(10) were relevant or, at least, potentially
relevant. R.C. 2151.414(E)(7)(c) and (E)(10) set forth the following factors:
(7) The parent has been convicted of or pleaded guilty to one of the
following:
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(c) An offense under division (B)(2) of section 2919.22 of the
Revised Code or under an existing or former law of this state, any other
state, or the United States that is substantially equivalent to the offense
described in that section and the child, a sibling of the child, or another
child who lived in the parent’s household at the time of the offense is the
victim of the offense;
***
(10) The parent has abandoned the child.
{¶ 63} In relationship to the current case, the magistrate stated the following:
The Magistrate finds that concerning (E)(7)(c) both parents have been
indicted for two counts of child endangering, felonies of the third degree.
However, at the time of hearing the charges are pending and they have not been
convicted nor plead guilty. The Magistrate also finds that (E)(10) applies to [J.M.,
Mother and Father].
{¶ 64} Regarding section (E)(7)(c), testimony at the hearing established that
Mother and Father had pending charges of child endangering that had not been resolved.
The magistrate’s decision accurately reflects the fact that, although there were pending
charges at the time of the hearing, there were no convictions against either Mother or
Father. Thus, it appears from the magistrate’s decision that section (E)(7)(c) was
properly rejected as a factor in the custody determination.
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{¶ 65} Regarding section (E)(10), there is abundant evidence that the parents
abandoned the children. “For purposes of [Chapter 2151], a child shall be presumed
abandoned when the parents of the child have failed to visit or maintain contact with the
child for more than ninety days, regardless of whether the parents resume contact with
the child after that period of ninety days.” R.C. 2151.011(C). Here, the parents went 14
1/2 consecutive months without visiting the children after their visitation was suspended
on August 3, 2018, due to bed bugs. During this time period, the parents never asked
about the children or attempted to speak to them over the phone or video.
{¶ 66} Mother’s suggestion that the finding of abandonment was inappropriate
because the decision not to remedy the bed bug problem was not the product of her
“active choices” is wholly without merit. As indicated above, Mother’s visitation was
suspended due to bed bugs that the parents had left behind in the lobby area during their
last visit. Both caseworkers testified that they advised Mother numerous times that that
the parents could reestablish visitation by having a company come into their home and
confirm that they no longer had bed bugs. Caseworker Gilbert provided the parents with
the telephone number of a company that she had confirmed would perform one free
inspection per year, and she advised Mother to have the motel manager where the parents
were staying call to schedule an appointment. Despite these referrals and advisements,
the parents voluntarily chose not to resolve the bed bug issue. Mother later advised
Gilbert that she had talked to a manager at the homeless shelter where she was staying
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about getting the necessary documentation, but she again failed to follow through.
Finally, Gilbert herself reached out to the shelter and was able to obtain the necessary
documentation. When, several weeks later, the parents had still failed to file a petition to
resume visitation, it was the Agency that filed a motion on the parents’ behalf to resume
their visitations. We, therefore, find that the record contains clear and convincing
evidence supporting the magistrate’s finding that the parents “voluntarily chose not to
remedy their bed bug problem and it was their choices that led to their inability to see
their children.”
{¶ 67} For all of the foregoing reasons, we find that the juvenile court’s decisions
were supported by clear and convincing evidence and were not against the manifest
weight of the evidence. We find that Mother’s assignment of error is without merit.
Therefore, the judgment of the Erie County Common Pleas Court, Juvenile Division is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
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In re R.A.
E-21-048, E-21-049
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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