In re M.R.

[Cite as In re M.R., 2019-Ohio-3601.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re May.R., Mak.R. Court of Appeals Nos. L-19-1030
L-19-1039
Trial Court No. JC 17265056
DECISION AND JUDGMENT
Decided: September 6, 2019
*****
Laurel A. Kendall, for appellants.
Bradley W. King, for appellee.
*****
OSOWIK, J.
{¶ 1} This is a consolidated appeal from a judgment of the Lucas County Court of
Common Pleas, Juvenile Division, which terminated the parental rights of appellant-
father and appellant-mother to the subject minor children, May.R. and Mak.R., and
granted permanent custody to appellee, Lucas County Children Services Board. For the
reasons set forth below, this court affirms the judgment of the juvenile court.
{¶ 2} The following facts are relevant to this appeal. For clarity we note the
record shows the same juvenile court case for May.R. and Mak.R. involved a third child
of the appellant-mother with a different father, and neither the third child nor the third
child’s father are parties to this appeal. Accordingly, we limit our discussion to the
juvenile court case as it relates to May.R. and Mak.R.
{¶ 3} On October 2, 2017, appellee filed a complaint in dependency and neglect,
and a motion for shelter hearing, regarding May.R. and Mak.R. Since July 14, 2017,
appellee was involved with appellants’ family when Sylvania Township police reported
appellants, the parents of May.R. and Mak.R., for intoxication. The police reported
finding the home dirty and unkempt. In the case of appellant-father, the police reported
he admitted to smoking crack cocaine. The police also arrested appellant-father for an
outstanding commitment order from a 2011 domestic violence charge. At the time of the
complaint May.R. was two years old and Mak.R. was 10 months old.
{¶ 4} Appellee offered services to both appellants, and they failed to follow those
service recommendations. By September 18, 2017, appellant-father had continued his
involvement in the criminal justice system, and appellant-mother admitted herself to
Flower Hospital’s psychiatric unit. By October 1, 2017, both appellants were arrested on
charges of domestic violence, and the paternal grandmother to the children refused to
allow appellants to remain with her any longer. At the October 2, 2017 shelter care
hearing, the juvenile court granted initial temporary custody of the children to appellee.
2.
{¶ 5} At the subsequent shelter care hearing, the appellants stipulated to the
allegations in appellee’s complaint, to appellee’s temporary custody of the children, and
to their individual case plans for services. The juvenile court then adjudicated the
children were neglected by clear and convincing evidence. The juvenile court further
determined it is in the best interests of the children to grant temporary custody of the
children to appellee effective November 14, 2017, with the goal of reunification as stated
in appellee’s case plans for each appellant. The transcript of the November 14, 2017
hearing is in the record, and the juvenile court’s judgment entry was entered in the record
on December 12, 2017.
{¶ 6} Following a period of discovery and pre-trial hearings, on April 20, 2018,
appellant-father filed a motion for legal custody of the children because he “has done
everything needed to be awarded legal custody of his children and there is no reasonable
basis to delay reunification of the minor children and their Father.”
{¶ 7} Then on August 10, 2018, pursuant to R.C. 2151.23, 2151.413, and
2151.414 appellee moved for permanent custody of the children with the permanency
plan being reunification and legal custody. In addition, pursuant to R.C. 2151.353,
appellee moved for temporary custody of the children. Appellee alleged the children
could not be placed with appellants within a reasonable time or should not be placed with
appellants pursuant to R.C. 2151.414(E)(1), (2), (4) and (14) and that permanent custody
is in the children’s best interests pursuant to R.C. 2151.414(D).
3.
{¶ 8} Appellants repeatedly failed to follow their case plan treatment services for
domestic violence, substance abuse, mental health, and housing. Appellant-father
attended only 7 out of 19 mental health appointments, refused to comply with random
drug screens, and failed to complete domestic violence treatment. Appellant-mother
sporadically attended and failed to complete her mental health treatment case plan, and
stopped attending domestic violence treatment in May 2018. On June 6, 2018, appellant-
mother called police that appellant father was intoxicated and had an open warrant. On
June 9, 2018, appellant-mother was arrested for domestic violence against appellant
father.
{¶ 9} The juvenile court held a hearing on October 1, 2018, on appellee’s motion
for temporary custody of the children. The transcript of the hearing is not in the record,
but the court’s October 9, 2018 judgment entry is. The juvenile court granted appellee’s
motion with the permanency plan being reunification and legal custody, subject to the
pending custody motions.
{¶ 10} The dispositional hearing/trial on the pending permanent custody motions
was held on January 11, 2019, and the juvenile court heard testimony from various
witnesses and admitted evidence in the record. The transcript of the hearing is in the
record. By judgment entry journalized on February 6, 2019, the juvenile court granted
permanent custody to appellee for adoptive placement and made a number of findings
relevant to this appeal.
4.
{¶ 11} Pursuant to R.C. 2151.414(B)(1)(a), the juvenile court found by clear and
convincing evidence the children could not be returned to appellants within a reasonable
period of time and that an award of permanent custody is in their best interests.
{¶ 12} Pursuant to R.C. 2151.414(E)(1), the juvenile court found by clear and
convincing evidence that despite “reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the children to be
placed outside the home, the parents have failed continuously and repeatedly to
substantially remedy the conditions causing the children to be placed outside the home.”
In the 14-month period since case plan services were ordered by the juvenile court, the
appellants admitted they did not complete their case plans. Specifically, the juvenile
court found “that even with domestic violence education course the parents have failed to
remedy the conditions that led to the removal of the children.”
{¶ 13} Pursuant to R.C. 2151.414(E)(2), the juvenile court found by clear and
convincing evidence that appellants’ chronic mental illness, emotional illness, or
chemical dependency is so severe that they cannot provide an adequate permanent home
for the children or within one year pursuant to R.C. 2151.414(E)(2)(A) or
2151.353(A)(4). Both appellants admitted to not completing their mental health care
plans. In addition, both appellants “have demonstrated an inability to internalize how
their mental health affects their ability to parent the children” and “failed to provide any
reasonable explanation as to why their attendance in mental health treatment was so
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sporadic.” Appellant-father also admitted to two arrests for driving under the influence
and tested positive for cocaine while also refusing to provide regular drug screens.
{¶ 14} Pursuant to R.C. 2151.414(E)(4), the juvenile court found by clear and
convincing evidence that appellants “have demonstrated a lack of commitment toward
the children by failing to regularly support, visit, or communicate with the children when
able to do so.” Appellant-father failed to consistently visit the children and was
frequently late when he did. Appellant-mother was more consistent with her visitations,
but she refused to consistently attend her mental health treatment and secure stable and
appropriate housing. In the eight locations appellant-mother lived during the pendency of
this case, she “would willfully leave shelters or would be kicked out * * * [and] was also
evicted several times * * *.” The juvenile court found appellant mother “simply lacked
the commitment to her services and failed to provide the safety and stability these
children desperately need.”
{¶ 15} Pursuant to R.C. 2151.414(D)(1)(a), the juvenile court found by clear and
convincing evidence the “testimony overwhelmingly shows that the children have been
safe and stable in their placement with the caregivers.” The children are “thriving” in
their placements without the parents after they “finally experienced some stability.”
{¶ 16} Pursuant to R.C. 2151.414(D)(1)(d), the juvenile court found by clear and
convincing evidence:
Unfortunately, the parents have simply not demonstrated any ability
whatsoever to provide an adequate home for the children. Though services
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were put in place to address the issues leading to removal, the parents have
admittedly not completed their case plan. No reasonable explanations were
offered at trial for this lack of follow-through. Given the vulnerability of
these children, the parents’ lack of commitment, and the need for a safe and
stable home – the Court has no choice but to find that permanent custody is
in the children’s best interest.
{¶ 17} It is from the juvenile court’s February 6, 2019 judgment entry which
appellants filed their separate appeals.
{¶ 18} Appellant-father set forth two assignments of error:
I. The trial court abused its discretion by not extending the period of
temporary custody to Lucas County Children Services Board when he had
arguably completed his case plan services, had stable living arrangements at
the time of trial, and was making progress with his mental health.
II. The state did not provide by clear and convincing evidence that
father: (i) failed continuously and repeatedly to substantially remedy the
conditions causing the children to be placed outside the family home
pursuant to R.C. 2151.414(E)(1); (ii) suffers from chronic mental illness or
chemical dependency that is so severe that he is unable to parent his
children pursuant to R.C. 2151.414(E)(2); (iii) has demonstrated a lack of
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commitment to the children pursuant to R.C. 2151.414(E)(4); and (iv) the
children cannot be placed with him within a reasonable time pursuant to
R.C. 2151.414(B)(1)(a).
{¶ 19} Appellant-mother set forth three assignments of error:
I. The trial court abused its discretion by not extending the period of
temporary custody to Lucas County Children Services Board when mother
had arguably made significant progress with her case plan services, had
stable housing and employment, and was making progress with her mental
health.
II. The state did not provide by clear and convincing evidence that
mother: (i) failed continuously and repeatedly to substantially remedy the
conditions causing the children to be placed outside the family home
pursuant to R.C. 2151.414(E)(1); (ii) suffers from chronic mental illness or
chemical dependency that is so severe that she is unable to parent her
children pursuant to R.C. 2151.414(E)(2); (iii) has demonstrated a lack of
commitment to the children pursuant to R.C. 2151.414(E)(4); and (iv) the
children cannot be placed with her within a reasonable time pursuant to
R.C. 2151.414(B)(1)(a).
III. The agency/GAL recommendation that mother leave father in
order to improve her chances of reunification is plain error as against public
policy.
8.
I. Continuance
{¶ 20} Both appellants argue in their first assignments of error the juvenile court
should have granted extensions to the period of temporary custody by appellee. We will
address these assignments of error together.
{¶ 21} In support of his first assignment of error, appellant-father argues the
juvenile court should have granted a temporary custody time extension for up to six
months pursuant to R.C. 2151.415(D)(1). He argues he either “arguably completed” or
made “substantial progress” towards completing his case plan services for mental health,
housing and domestic violence. He further argues “he believed he could achieve within
six months from the trial date” completion of his case plan services, including finding
suitable housing and grief counseling “in order to demonstrate his ability to maintain his
sobriety.”
{¶ 22} In support of her first assignment of error, appellant-mother argues the
juvenile court should also have granted a temporary custody time extension for up to six
months pursuant to R.C. 2151.415(D)(1). Appellant-mother argues she made “substantial
progress” in her case plan services for mental health, domestic violence, and housing,
given her employment and transportation options. She further argues “an extension of
time to finalize stable housing in her own name is in the best interests of the children.”
{¶ 23} Appellee responded the trial court did not err. Appellee argued appellants
provided no support for a second six-month extension “when they were unable to
[complete their case plan services] in the previous 15 months leading up to the permanent
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custody hearing.” Appellee argued that while appellants pointed to recent deaths in the
family as disrupting their case plans, the juvenile court correctly pointed to each
appellant’s need to comply with their case plan services existed before the deaths in the
family.
{¶ 24} Despite appellants’ arguments, we reviewed the record and do not find that
either appellant orally requested appellee extend temporary custody of the children at the
January 11, 2019 dispositional hearing/trial in this matter. In addition, R.C.
2151.415(D)(1) concerns appellee, not appellants, requesting to extend appellee’s
temporary custody of the children. Appellee did not make a second request at the
dispositional hearing.
{¶ 25} Rather, the record shows appellants each made oral requests for
continuances at the start of the dispositional hearing. We review the grant or denial of a
continuance for an abuse of discretion. In re Edward M., 6th Dist. Lucas Nos.
L-04-1282, L-04-1304, 2005-Ohio-3354, ¶ 21, citing State v. Unger, 67 Ohio St. 2d 65,
67, 423 N.E.2d 1078 (1981). Abuse of discretion “‘connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140(1983), quoting State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 26} The transcript of the January 11, 2019 dispositional hearing indicates
appellant-father knowingly decided to represent himself pro se at the hearing. Despite
deep concerns expressed on the record, the juvenile court accepted his decision and
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learned he had prepared for the hearing with notes on his cell phone. When appellant-
father asked for a continuance “to bring people into court,” the juvenile court denied the
motion: “No, I am not going to continue this case. This is something that you could have
raised with me before today. But I’m not going to continue the case now that we’re all
here for trial. * * * That’s not in your children’s best interests.” Appellant-father replied,
“Okay. I understand that.”
{¶ 27} The dispositional hearing transcript indicates appellant-mother also
requested a continuance at the start because she did not meet with her attorney prior to
the hearing. Appellant-mother finally contacted her attorney the day before the hearing,
“So we haven’t had adequate time to actually subpoena witnesses to go forward to trial.”
Appellant-mother used a Wi-Fi phone where her attorney could not reach her. Her
attorney stated, “She never actually told me [she could not meet], Your Honor. She just
would never set a date.” The juvenile court denied the motion:
No, the continuance * * * is going to be denied. Look, this pretrial
was set – this was October 16th. This case has been going on since October
of 2017. It’s almost a year and-a-half old, and there is no reason that
between October and now if your phone didn’t work for three months that
you couldn’t have written [your attorney] a letter or something if you
really, really wanted to get in touch with him. So, no, I’m not granting a
continuance. Whether I grant permanent custody or not, either way, these
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children need some stability and permanency, and I’m not going to drag it
out for them anymore, no.
{¶ 28} The transcript also shows that during appellant-father’s direct examination
by his standby attorney and during appellant-mother’s direct examination by her attorney,
each gave new reasons for a continuance in order to make more progress on their
individual case plans. However, neither renewed their motions for a continuance after
the court’s denial. In addition, neither the caseworker nor the guardian ad litem for the
children recommended a continuance because appellants failed to make the progress with
their case plans they claimed to have made.
{¶ 29} Even if we deem the appellants had renewed their motions for a
continuance, the juvenile court denied them with the findings to support the decision on
permanent custody:
I mean, Dad, I’m very concerned about your current alcohol use
and/or cocaine use. This started with using crack cocaine way back and
alcohol, I read. I don’t understand why you, at a time when you need to
prove that you’re doing well, that you would not drop, provide drops when
you were requested by the caseworker. And when you did, you tested
positive just a month and-a-half ago for cocaine. I’m so glad that you’re in
grief counseling. You clearly do need that. My heart goes to you with all
of your losses, because at least two of them were very tragic. And I can’t
ignore the fact, though, that your mental health issues began prior to the
12.
loss of these people who were close to you. And I’m guessing that the
issues have been exacerbated, meaning gotten worse because of these
deaths. You did miss a lot of meetings with your doctor at Zepf. And you
indicated that * * * some you just forgot a lot of times, but you did miss
some. And my understanding from the exhibit that you provided * * * I’m
not sure [the 20-minute medical appointment doctor is] really in a position
to say that you * * * would be able to have custody of your children and be
safe with them. And he didn’t say that. He said he didn’t have any reason
to think you would not be able to be around them. Those are different
things.
The housing is still not stable. I know you’re looking for a place.
Mom doesn’t get along with your mom. That’s what I heard today. * * *
Mom, you just don’t go to mental health treatment. And when you
talk about getting your treatment by being on the phone with your therapist,
that’s not treatment. And I really struggle with so many of the excuses and,
frankly, lies that have come across from you today. When you say you
can’t get to treatment, you have a family car but you have to pick between
treatment and visits. That makes no sense. * * * You have been doing
visits all along, all along. * * * [E]arly on when we started, you can’t call
your attorney but you’re able to call your therapist on a regular basis from
either work or home? So that wasn’t truthful. You haven’t been in touch
13.
with your attorney to help him prepare for this case. You blame CSB that
they didn’t get you all into marriage counseling sooner so now we’re doing
that on our own. Well, why didn’t you do that on your own a long time ago
for the sake of your children? There’s a lot of things that you both could
have and should have done to prove that you really are making a difference
in your lives for your children. But at the critical time, particularly since
August when this motion for permanent custody was filed and you knew,
boy, this is my last chance, I better do it, you didn’t. So I am not satisfied
that another three or six months would make any difference after a year
and-a-half.
{¶ 30} Despite appellants urging us to find they have substantially completed their
individual case plans, the record indicates otherwise because they had only recently
reengaged in services prior to the dispositional hearing. This court has consistently held
that the juvenile court is not required to prolong the custody proceedings for a parent to
begin to cooperate in the case planning process. In re A.A., 6th Dist. Lucas No.
L-17-1162, 2017-Ohio-8705, ¶ 37.
{¶ 31} We reviewed the entire record and do not find the juvenile court abused its
discretion when it separately denied appellant-father and appellant-mother their oral
requests to continue the dispositional hearing at the start of the hearing. We do not find
the juvenile court’s attitude was unreasonable, arbitrary or unconscionable when it
refused to delay the dispositional hearing any further.
14.
{¶ 32} Appellant-father’s first assignment of error and appellant-mother’s first
assignment of error are not well-taken.
II. Permanent Custody Determination
{¶ 33} Both appellants argue in their second assignments of error the juvenile
court’s decision on the permanent custody of the children was against the manifest
weight of the evidence. We will address these assignments of error together.
{¶ 34} Appellant-father argues for his second assignment of error the juvenile
court erred by finding clear and convincing evidence to support its permanent custody
decision. He argues appellee never required him to attend parenting classes, so his ability
to parent the children is not an area of concern. He further argues any lapses in his
mental health and substance abuse treatment plans are mitigated by the type of work he
did (demolishing crack houses) and by the deaths of his family members within the past
year.
{¶ 35} Appellant-mother also argues for her second assignment of error the
juvenile court erred by finding clear and convincing evidence. She argues appellee never
required her to attend parenting classes, and any lapses in her mental health and domestic
violence treatment plans are mitigated by her full-time work with only one vehicle shared
by three drivers.
{¶ 36} In response to both arguments, appellee argues the record contains clear
and convincing evidence to support the juvenile court’s permanent custody award of the
children to appellee as being in their best interests.
15.
{¶ 37} We review the juvenile court’s determination of permanent custody under a
manifest weight of the evidence standard. In re D.R., 6th Dist. Lucas No. L-17-1240,
2018-Ohio-522, ¶ 37. 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.” Id. We are mindful the juvenile court was
the trier of fact and was “in the best position to weigh evidence and evaluate testimony.”
Id.
{¶ 38} “In order to terminate parental rights and award permanent custody of a
child to a public services agency under R.C. 2151.414, the juvenile court must find, by
clear and convincing evidence, two things: (1) that one of the enumerated factors in R.C.
2151.414(B)(1)(a)-(e) apply, and (2) that permanent custody is in the best interests of the
child.” In re C.J., 6th Dist. Lucas No. L-17-1095, 2017-Ohio-8612, ¶ 14, citing R.C.
2151.414(B)(1).
{¶ 39} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and 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, 471, 120 N.E.2d 118 (1954), paragraph
three of the syllabus. A judgment on permanent custody supported in the record by some
16.
competent, credible evidence by which the court could have formed a firm belief as to all
the essential elements will not be reversed on appeal as being against the manifest
weight of the evidence. In re Denzel M., 6th Dist. Lucas No. L-03-1337, 2004-Ohio-
3982, ¶ 8. This standard applies to cases decided under either R.C. 2151.353(A)(4) or
2151.414(B)(1)(d). In re Tiffany Y., 6th Dist. Sandusky No. S-03-004, 2003-Ohio-6203,
¶ 12.
A. R.C. 2151.414(B)(1) Factors
{¶ 40} For the first prong, the record shows the juvenile court determined by clear
and convincing evidence the children could not be returned to appellants within a
reasonable period of time and that an award of permanent custody is in their best interests
pursuant to R.C. 2151.414(B)(1)(a). As stated in R.C. 2151.414(B)(1)(a):
Except as provided in [R.C. 2151.414(B)(2)], the court may grant
permanent custody of a child to a movant if the court determines at the
hearing held pursuant to [R.C. 2151.414(A)], 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: (a) the child is not abandoned
or orphaned, has not been in the temporary custody of one or more public
children services agencies * * * for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
or more public children services agencies * * * for twelve or more months
17.
of a consecutive twenty-two-month period * * *, 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.
{¶ 41} Pursuant to R.C. 2151.414(E), 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, the juvenile court “shall consider all relevant evidence” by clear and
convincing evidence, including whether one or more of the factors described in R.C.
2151.414(E)(1)-(16) exists. Although the juvenile court found many R.C. 2151.414(E)
factors to support its holding, it needed to only find one. In re C.F., 113 Ohio St. 3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 50.
{¶ 42} Pursuant to R.C. 2151.414(E)(1), the juvenile court found by clear and
convincing evidence that despite case plan services for over 14 months specifically
targeting appellants’ joint issues of mental health and domestic violence, and, in the case
of appellant-father, substance abuse, to remedy the problems that initially caused May.R.
and Mak.R. to be placed outside the home, the parents failed continuously and repeatedly
to substantially remedy those conditions and failed to demonstrate “any insight as to the
issues that led to the removal of the children.” R.C. 2151.414(E)(1) states:
In determining at a hearing held pursuant to [R.C. 2151.414(A)]
* * * whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
18.
convincing evidence, * * * that one or more of the following exist as to
each of the child’s parents, the court shall enter a finding that the child
cannot be placed with either parent within a reasonable time or should not
be placed with either parent: (1) following the placement of the child
outside of the child’s home and notwithstanding reasonable case planning
and diligent efforts by the agency to assist the parents to remedy the
problems that initially caused the child to be placed outside the home, the
parents 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.
{¶ 43} It is undisputed the record shows each appellant stipulated to the juvenile
court’s November 14, 2017 determination May.R. and Mak.R. were neglected. It is also
undisputed the record shows each appellant stipulated to the juvenile court’s orders
removing the children from appellants’ home and granting temporary custody to appellee.
It is also undisputed the record shows each appellant stipulated to the juvenile court’s
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orders approving appellee’s individualized case plans with the goal of reunification.
R.C. 2151.412(E). Appellants were bound by the terms of the case plans. R.C.
2151.412(F)(1).
{¶ 44} At the dispositional hearing the appellants admitted they did not complete
their case plans while asserting their subject beliefs that they had substantially completed
them. Those subjective beliefs were not corroborated by any other evidence in the
record. See R.C. 2151.412(F)(2). The record showed appellant-father’s relapses for
substance abuse offenses, domestic violence and mental health issues, and of appellant-
mother’s relapses for domestic violence and mental health. Appellant-father was arrested
for DUI on November 26, 2017; appellant-mother called the police on him for domestic
violence on June 6, 2018; he tested positive for cocaine on November 19, 2018; and then
he was arrested for DUI again on November 24, 2018. With respect to appellant-mother,
although she testified she substantially completed her mental health treatment, she missed
about half of her weekly appointments, according to the caseworker. It is undisputed that
appellant-mother completed her domestic violence treatment services. However, the
record showed she relapsed on domestic violence three times during the course of this
case, according to the caseworker: “Based on the behaviors and the contact that I’ve had
with [appellant-mother], it does not seem that she has an understanding of how domestic
violence has impacted her and that she minimizes what has happened.”
{¶ 45} Both appellants had erratic, unstable housing situations, and during the
course of the 14-month case, eight residences were identified in the record. Sometimes
20.
appellants lived together, but often they did not. At the time of the hearing, they were
again living together at his mother’s residence to the surprise of both the caseworker and
the guardian ad litem. The caseworker testified, “Also, it is of a concern that if the
parents are living with [appellant-father’s] mother, that is where the children were
removed from and had incidents. There’s been multiple occurrences that [appellant-
mother] has informed me of not getting along with [her mother-in-law].”
{¶ 46} Although the juvenile court’s finding pursuant to R.C. 2151.414(E)(1)
satisfied the requirements of R.C. 2151.414(B)(1)(a), the court made further findings in
the record by clear and convincing evidence pursuant to R.C. 2151.414(E)(2) and (4).
We will not disturb those findings. We find there was some competent, credible evidence
by which the juvenile court could form a firm belief as to the first prong of a permanent
custody determination.
B. Best Interests of the Children
{¶ 47} For the second prong, the juvenile court must consider “all relevant factors,
including, but not limited to” the five enumerated factors described in R.C.
2151.414(D)(1)(a)-(e). In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816,
at ¶ 52. “The statute is written broadly to allow a free-ranging inquiry by the juvenile
court judge. All relevant best interests factors are to be considered to allow the judge to
make a fully informed decision before terminating parental rights, privileges and
responsibilities.” In re Tiffany Y., 6th Dist. Sandusky No. S-03-004, 2003-Ohio-6203, at
¶ 13-14. The juvenile court’s discretion in determining the best interests of May.R. and
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Mak.R. with an order of permanent custody is accorded the utmost respect due to the
nature of the proceeding and the impact on the lives of the parties concerned. In re D.R.,
6th Dist. Lucas No. L-17-1240, 2018-Ohio-522, at ¶ 37.
{¶ 48} The record shows the juvenile court determined the best interests of May.R.
and Mak.R. after considering R.C. 2151.414(D)(1)(a) and (d), which state:
In determining the best interest of a child at a hearing held pursuant
to [R.C. 2151.414(A)] or for the purposes of [R.C. 2151.353(A)(4) or (5)]
or [R.C. 2151.415(C)], the court shall consider all relevant factors,
including, but not limited to, the following:
(a) The interaction and interrelationship of a 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.
***
(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.
{¶ 49} The juvenile court found, pursuant to R.C. 2151.414(D)(1)(a), by clear and
convincing evidence May.R. and Mak.R. thrive in their foster caregiver placements
because they “finally experienced some stability. These are young children who have
spent a significant portion of their lives in substitute care.” The record shows the
children had been removed from appellant’s home for at least 466 days.
22.
{¶ 50} The record shows appellant-mother testified it was in the children’s best
interests for her to have permanent custody, and appellant-father testified it was in the
children’s best interests for him to have permanent custody. Each argued they loved the
children and would never hurt them. In addition, the caseworker and the guardian ad
litem each testified it was in the children’s best interests for permanent custody to be
awarded to appellee. These witnesses testified that since appellants were unable to
follow their individualized case plans and manage their lives, appellants could not also
meet the needs of the two small children, who would be entirely dependent on appellants.
{¶ 51} Although the juvenile court’s finding under R.C. 2151.414(D)(1)(a)
satisfied the requirements of R.C. 2151.414(D)(1), the court made further findings in the
record by clear and convincing evidence pursuant to R.C. 2151.414(D)(1)(d). We will
not disturb those findings. We find there was some competent, credible evidence by
which the juvenile court could form a firm belief as to the second prong of a permanent
custody determination.
{¶ 52} We do not find the juvenile court clearly lost its way to create such a
manifest miscarriage of justice as to require reversal of the judgment regarding the
permanent custody of May.R. and Mak.R.
{¶ 53} Appellant-father’s second assignment of error and appellant-mother’s
second assignment of error are not well-taken.
23.
III. Plain Error
{¶ 54} In support of her third assignment of error, appellant-mother argues the
juvenile court committed plain error by relying on testimonial evidence suggesting
appellant-mother divorce appellant-father for reunification purposes. Appellant-mother
argued testimony by the caseworkers and the guardian ad litem indicated appellant-
mother’s “indecisiveness about staying with father.” Appellant-mother argued “she
clearly received the message that if she would leave father, she would improve her
chances of reunification with the children.” Appellant-mother concluded that such
suggestion of divorce “as a solution to * * * neglect * * * cases” is contrary to the public
policy to sustain marriages.
{¶ 55} In response, appellee argues the juvenile court did not commit plain error.
Appellee argues both appellants raised with the guardian ad litem and the caseworker
their separate concerns about the other spouse. Appellant-mother said appellant-father
was “not good for her and that [she] should not be with him,” and appellant-father
discussed leaving appellant-mother because of her mental health issues. The guardian
ad litem testified “each parent should independently work on their case plan services,
rather than focusing on marital qualms” because “reunification with their children had
urgency and a distinct timeline.” Appellee argues no evidence in the record mentions
divorce.
{¶ 56} We review appellant-mother’s claim of plain error with utmost caution.
Goldfuss v. Davidson, 79 Ohio St. 3d 116, 121, 679 N.E.2d 1099 (1997).
24.
In appeals of civil cases, the plain error doctrine is not favored and
may be applied only in the extremely rare case involving exceptional
circumstances where error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation of
the judicial process, thereby challenging the legitimacy of the underlying
judicial process itself.
Id., at syllabus. The party asserting plain error has the burden of proving the error
affected the outcome of the proceeding, i.e., that appellee would not have been granted
permanent custody of the children but for the error. State v. Morgan, 153 Ohio St. 3d
196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 52.
{¶ 57} In support of this assignment of error, appellant-mother points to her direct
examination regarding her housing situation during the pendency of this case. She
testified, “I was told if I went to the shelter and tried to get housing on my own, that I
would get a six-month extension, and someone would put in for a six-month extension.
They’ve been trying to get me and my husband to leave each other since day one, telling
us it’s a race to the finish line.” She then described her departures from her various
housing situations as being motivated either by irritation at strict rules in shelters,
evictions by landlords or transportation difficulties, not because of pressures to divorce
her husband.
25.
{¶ 58} The caseworker testified, “I’ve consistently told her I am not going to tell
her to leave him or to stay, that is up to her.” According to the caseworker, appellant-
mother and appellant-father separately raised the issue of their problematic marriage:
From the beginning of this case, I can remember the first few visits
[appellant-mother] mentioned not being able to say things in front of him.
But moving forward it has been consistent up and down of whether she was
going to stay with him or that she was going to leave. On the other end of
that, [appellant-father] has also mentioned that, you know, him being alone
might be best or that, you know, he has concerning (sic.) behaviors for
[appellant-mother] as well. * * * He has stated to me, I believe it was in
December, that he * * * and I quote him saying, “lost in the sauce” for
[appellant-mother]. And that’s when he mentioned that perhaps it’s better
for him to be alone at that time. And he also mentioned that there’s been an
incident of her accusing him of cheating and sniffing his crotch at that time.
So I think it’s been a constant up and down with them as well as the
housing situation. It’s never been clear if [appellant-mother] is with
[appellant-father] or if she is not with [him].
{¶ 59} The guardian ad litem testified that appellant-mother “has said I can’t be
with my husband, he’s not good for me, and then she goes back to him. There’s been at
least two police phone calls regarding domestic violence involving mom either as a
victim or as a perpetrator of it. * * * [T]o me, the issues that caused this case to be
26.
brought into the court still exist today.” The guardian ad litem further testified, “With
mom I’ve had many conversations with her about how I don’t believe that dad is good for
her mental health because he spirals, she spirals. But she has chosen to stay with him,
which is her choice, and that is fine but I do not see the progress being made that I think
she can make on her own.”
{¶ 60} Contrary to appellant-mother’s claims, we do not find any witnesses
advocated appellant-mother divorce appellant-father as a means of reunification of the
children. Both the caseworker and the guardian ad litem lauded appellants’ efforts to
engage a marriage counselor, but no appointment was scheduled at the time of the
hearing. In addition, the trial court’s judgment entry made no finding of fact in reliance
on any inference of appellant-mother divorcing appellant-father.
{¶ 61} We reviewed the entire record and do not find appellant-mother met her
burden demonstrating plain error existed in this case making this the exceptional
circumstance. We do not find the juvenile court’s decision granting permanent custody
of May.R. and Mak.R. to appellee was in reliance on the appellants divorcing each other.
{¶ 62} Appellant-mother’s third assignment of error is not well-taken.
{¶ 63} On consideration whereof, we find the judgment of the juvenile court
terminating appellants’ parental rights and granting permanent custody of May.R. and
Mak.R. to appellee was supported by clear and convincing evidence. The judgment of
27.
the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellants are
ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, P.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/.
28.