In re C.H.

[Cite as In re C.H., 2021-Ohio-2809.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
IN RE: C.H. C.A. Nos. 21AP0001
C.H. 21AP0002
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
CASE Nos. 2018 JUV-C 001061
2018 JUV-C 001060
DECISION AND JOURNAL ENTRY
Dated: August 16, 2021
CALLAHAN, Judge.
{¶1} Appellant, C.H. (“Mother”), appeals from a judgment of the Wayne County Court
of Common Pleas, Juvenile Division, that terminated her parental rights to her two minor children
and placed them in the permanent custody of Wayne County Children Services Board (“CSB”).
This Court affirms.
I.
{¶2} Mother is the biological mother of C.H., born October 3, 2011; and C.H., born April
20, 2013. Although Mother had four other biological children, they are not parties to this appeal.
During the trial court proceedings, the father of C.H. and C.H. (“Father”) was struck by a vehicle
and died a few weeks later in the hospital.
{¶3} CSB has a history with Mother dating back to 2008 before the birth of her first
child. The facts of that case were not detailed in this record except that CSB was concerned about
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Mother’s lack of safe and stable housing, her mental health, and her involvement with violent men.
Mother’s first child was removed from her custody shortly after birth and Mother’s parental rights
were ultimately terminated. The record does not indicate whether Mother’s parental rights to that
child were terminated voluntarily or involuntarily.
{¶4} In addition to C.H. and C.H., this case initially involved three of Mother’s other
children. At a hearing during July 2020, however, for reasons that are not clear from the record,
Mother agreed to relinquish her parental rights to those children. This Court will confine its review
of this case to the facts relevant to C.H. and C.H.
{¶5} On October 18, 2018, CSB filed complaints, alleging that C.H. and C.H. were
neglected and dependent children because the family was homeless; Mother and Father were not
meeting the children’s basic needs; they were regularly exposing the children to inappropriate
adults including multiple registered sex offenders; and both children, then five and eight years old,
had exhibited sexualized behavior. On December 5, 2018, C.H. and C.H. were adjudicated
dependent children. Two weeks later, both children were placed in the temporary custody of CSB
and the proposed case plan was adopted as an order of the court.
{¶6} The case plan required Mother to complete a psychological and family assessment
and follow all reasonable recommendations, including individual counseling and any medication
management, if needed; complete a program of parenting classes; obtain and maintain stable
housing and income; and visit the children weekly.
{¶7} During this case, Mother completed parenting classes, visited her children
regularly, and secured and maintained stable income and housing. Mother also obtained a
psychological assessment with the same psychologist who evaluated her in 2008. The
psychologist diagnosed Mother with bipolar disorder; autism spectrum disorder; attention deficit
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hyperactivity disorder, combined type; and personality disorder with histrionic, narcissistic, and
avoidant traits.
{¶8} The psychologist recommended that Mother see a psychiatrist for medication
management and engage in counseling with “a therapist who is skilled in working with individuals
with [Mother’s] type of personality disorder.” The psychologist emphasized that Mother tends to
avoid her problems and devotes much time and energy trying to convince others that she has no
problems. She further observed that Mother “takes pride in her ability to manipulate others” and
that “it is vital that a therapist be made aware of this in order to work effectively with her.”
{¶9} Mother did not see a psychiatrist for medication management. She did follow
through with individual counseling, but she went to a different agency where she had been
receiving counseling with a licensed clinical counselor prior to the psychologist’s formal
assessment of her. Although Mother admittedly had been receiving social security benefits for
more than 20 years for her childhood diagnosis of bipolar disorder, she apparently did not report
that history to her counselor. Consequently, Mother’s counselor worked with Mother to address
only her self-reported symptoms of depression and anxiety, not any of her diagnoses from the
formal assessment by the licensed psychologist.
{¶10} Throughout this case, one of CSB’s primary concerns about Mother’s ability to care
for her children was her history of becoming involved with men who either abused her or posed a
risk to her children because they were convicted sex offenders whose victims had been children.
During this case, Mother continued to be involved with convicted sex offenders and abusive men,
one of whom she believed abused one of her children. In response to CSB’s concerns, Mother
tended to minimize the risk posed by these men and/or lied about having any contact with them.
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{¶11} Father was a sex offender who had been convicted of a felony sex offense many
years ago. Mother knew about his past when she married him, but she downplayed the significance
of Father’s prior sex crime because he was a juvenile when he committed the offense. Mother was
also aware that Father had become a mentor to other sex offenders after they were released from
prison. One of the sex offenders that Father mentored was a man named Dustin, a Tier III
registered sex offender. Dustin was adjudicated delinquent for committing one sex offense while
he was a juvenile. As an adult, Dustin was convicted in 2008 and 2014 of two separate sex
offenses, both of which involved child victims. The facts underlying the 2008 conviction involved
Dustin repeatedly victimizing a three-year-old child. Although Mother told CSB that she had no
relationship with Dustin after Father died, CSB had received information from several sources that
Mother and Dustin had an ongoing relationship.
{¶12} On August 27, 2020, CSB moved for permanent custody of C.H. and C.H.
Following a hearing on the motion, the trial court terminated parental rights and placed both
children in the permanent custody of CSB. Mother appeals and raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED THE
DISCRETION OF THE COURT BY MOVING FORWARD WITH THE
GRANTING OF PERMANENT CUSTODY OF THESE CHILDREN IN LIGHT
OF THE COVID-19 STATE RESTRICTIONS AND THE TOLLING OF TIME
BY THE OHIO SUPREME COURT.
{¶13} Mother’s first assignment of error is that the trial court erred by failing to grant her
motion to continue the permanent custody hearing. Mother filed a written request for a
continuance of the permanent custody hearing on October 23, 2020, twelve days before the
hearing was scheduled to begin on November 4, 2020, so she complied with the requirement of
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Juv.R. 19 and Juv.R. 22(E) that she file a motion for a continuance in writing at least seven days
before the scheduled hearing.
{¶14} Loc.R. 5.05(A) of the Court of Common Pleas of Wayne County, Juvenile Division,
further provides that “[n]o continuances of any hearing * * * shall be considered unless the movant
complies with the following requirements:”
1. Motions must be in writing and state the specific reason for the request, the date
on which the need arose, and representation that the other attorneys of record,
guardian ad litem, and self-represented parties have been contacted along with their
positions as to whether they are consenting to the continuance.
2. The motion for continuance must be accompanied by a proposed entry. If the
motion is for a parentage/custody/visitation/support hearing, the proposed entry
must contain a new hearing date previously obtained by the moving party and
cleared with opposing counsel.
{¶15} Although Mother filed a written motion for a continuance and referred to health
restrictions caused by the COVID-19 pandemic as the reason for her request, she did not indicate
whether other counsel and the guardian ad litem had agreed to a continuance. Loc.R. 5.05(A)(1).
Moreover, she did not accompany her motion with a proposed entry to reschedule the hearing to
another date that had been scheduled with the court and “cleared with opposing counsel.” Loc.R.
5.05(A)(2). Because Mother failed to comply with the requirements of the local rule for requesting
a continuance of the permanent custody hearing, the trial court was not required to consider her
motion. Therefore, the trial court did not err by denying her motion for a continuance. Mother’s
first assignment of error is overruled.1
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY OF
THESE CHILDREN TO [CSB] AS THE MANIFEST WEIGHT OF THE
1
Although Mother also argues that the COVID-19 tolling orders affected the merits of the
trial court’s permanent custody decision, that argument will be addressed under her second
assignment of error.
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EVIDENCE PRESENTED CLEARLY AND CONVINCINGLY
DEMONSTRATED THE CHILDREN’S BEST INTEREST [IS] BEST SERVED
BY THEIR RETURN TO THEIR MOTHER’S CARE.
{¶16} Through her second assignment of error, Mother challenges the weight of the
evidence supporting the trial court’s permanent custody decision. Before a juvenile court may
terminate parental rights and award permanent custody of a child to a proper moving agency, it
must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the
children are abandoned; orphaned; have been in the temporary custody of the agency for at least
12 months of a consecutive 22-month period; one of these children or another child of the same
parent has been adjudicated abused, neglected, or dependent three times; or that the children cannot
be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant
of permanent custody to the agency is in the best interest of the children, based on an analysis
under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S.,
75 Ohio St.3d 95, 98-99 (1996). Clear and convincing evidence is that which will “produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
(Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶17} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations and citations omitted.) Eastley
v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court
“must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
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{¶18} The trial court found that the first prong of the permanent custody test was satisfied
because the children had been in the temporary custody of CSB for at least 12 months of a
consecutive 22-month period. Mother refers to arguments made under her first assignment of error
to challenge that finding. Essentially, she points to evidence that her ability to visit her children
and work on reunification services was limited by COVID-19 health restrictions barring in-person
visits and services for several months during this case. Because the health restrictions limited her
ability to work toward reunification with her children, she asserts that the trial court should not
have found that the “12 of 22” ground was satisfied in this case.
{¶19} This Court recently rejected the same argument based on similar facts in In re A.L.,
9th Dist. Wayne Nos. 20AP0047, 20AP0048, 20AP0049, and 20AP0052, 2021-Ohio-1982, ¶ 16-
18. As in In re A.L., the facts of this case involved a lengthy period of time that the children were
in the temporary custody of the agency before the COVID-19 pandemic caused restrictions on in-
person case plan services. The “12 of 22” time period began in this case on December 5, 2018,
when C.H. and C.H. were adjudicated dependent, because that was less than 60 days after their
removal from the home. See In re A.L., 2021-Ohio-1982, at ¶ 17, citing R.C. 2151.414(B)(1)(d).
C.H. and C.H. were placed in the temporary custody of CSB two weeks later, and the case plan
was adopted at that time.
{¶20} As in In re A.L., COVID-19 health restrictions were implemented in late March
2020. See id. at ¶ 18. By that time, C.H. and C.H. had been in the temporary custody of CSB for
more than 15 months and Mother had been receiving court-ordered case plan services during that
time. There are no facts in this case to distinguish it from the facts relevant to this issue in In re
A.L. Mother has “failed to demonstrate that COVID-19 restrictions prevented [her] from having
a meaningful opportunity to work on the case plan for more than 12 months of a consecutive 22-
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month period.” Id. Therefore, she has failed to demonstrate any error in the trial court’s “12 of
22” finding.
{¶21} Next, Mother challenges the trial court’s finding that permanent custody was in the
best interest of C.H. and C.H. When determining the children’s best interest, the trial court must
consider all relevant factors, including: the interaction and interrelationships of the children, the
wishes of the children, their custodial history; their need for permanence in their lives and whether
such a placement can be achieved without a grant of permanent custody, and whether any of the
factors set forth in R.C. 2151.414(E)(7)-(11) apply to the facts of this case. R.C.
2151.414(D)(1)(a)-(e); see In re R.G., 9th Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284,
¶ 11.
{¶22} Mother’s interaction with her children during this case was limited to supervised
visitation because CSB remained concerned about Mother’s ability to supervise them alone and
protect them from harm. The evidence was not disputed that both children enjoyed their visits
with Mother and that there is a parent-child bond between them. Mother visited her children
consistently, had actively engaged in parenting classes, and attempted to implement the parenting
techniques that she had learned. Although some of CSB’s witnesses testified that Mother was not
always able to control the children when they misbehaved, the evidence was not disputed that
Mother had made significant progress in utilizing appropriate tactics to discipline her children.
{¶23} Although Mother had made significant progress on some of the goals of the case
plan, case plan compliance is not determinative of the best interest of the children. See In re S.S.,
9th Dist. Summit Nos. 29511 and 29514, 2020-Ohio-1354, ¶ 15. Moreover, there was evidence
before the trial court that Mother had not remedied many of her parenting problems. The primary
concern of CSB and the trial court was Mother’s ability to provide a safe and stable environment
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for her children in an unsupervised setting. Mother was involved in counseling but was not
addressing any of the specific diagnoses of the psychological expert in this case. Notably, she had
not followed the psychologist’s explicit recommendations that she see a psychiatrist for medication
management and engage in counseling with “a therapist who is skilled in working with individuals
with [Mother’s] type of personality disorder.” Consequently, Mother had not addressed her
ongoing problem of exposing her children to dangerous adults.
{¶24} Mother acknowledged at the hearing that Dustin, a Tier III sex offender, could not
be around any children. Mother insisted that she had ended all contact with Dustin, but the trial
court questioned her credibility, noting that her testimony was contradicted by other evidence
presented at the hearing.
{¶25} CSB presented the testimony of several witnesses who had repeatedly seen Mother
with Dustin, as recently as a few weeks before the hearing. Two witnesses, who had once stayed
with Mother in her apartment while they were homeless, testified that they had seen Mother with
Dustin on multiple occasions. One of them testified that he believed that Dustin had been living
with Mother because he saw Dustin’s belongings scattered all over the apartment. The other
testified that Mother told her that she had ended her relationship with Dustin because he beat her,
but the witness continued to see Mother with Dustin afterward. Mother also allowed other families
with children to stay in her home and have contact with Dustin.
{¶26} Moreover, although Mother had stable housing at the time of the hearing through
Wayne Metropolitan Housing Authority, she had repeatedly risked losing that housing by violating
specific terms of her lease. CSB presented evidence that Mother had violated her lease on multiple
occasions by allowing people who were not on the lease to stay there for more than three
consecutive days and by allowing Dustin, a sex offender, to stay there. Although Mother denied
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that she had allowed Dustin to stay with her, she admitted that she had allowed other families to
stay with her for extended periods of time when they needed a place to stay. Consequently, the
trial court reasonably concluded that Mother lacked the stability to provide her children with a safe
and stable home.
{¶27} The trial court also considered the wishes of the children. Despite Mother’s
argument to the contrary, the court did consider that both children had expressed a desire to return
home, at least earlier in the case. The trial court further noted that there had been conflicting
evidence about the children’s current wishes and ultimately concluded that the children seemed to
be happy with Mother and in their foster homes. The court also considered the opinion of the
guardian ad litem that permanent custody was in the best interest of both children because they felt
safe in their current foster placements, and she did not believe that Mother could provide them
with a safe home.
{¶28} By the time of the permanent custody hearing, C.H. and C.H. had been in the
temporary custody of CSB for nearly two years. During that time, Mother had not demonstrated
that she was willing and able to protect her children from inappropriate adults. Prior to coming
into agency custody, these children had lived with Mother, where they had been exposed to sexual
predators. Mother herself testified that she believed one of these children had been sexually abused
by a man named Mark, but Mark had never been prosecuted. Mother accepted no responsibility
for the fact that her child had been exposed to that alleged perpetrator or multiple other sex
offenders.
{¶29} CSB had investigated several relatives for potential placement but was unable to
find anyone who was willing and able to provide these children with a safe and stable permanent
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home. Consequently, the court concluded that the children needed a legally secure permanent
placement that would be achieved by granting CSB permanent custody.
{¶30} Finally, the trial court found that R.C. 2151.414(E)(11) applied to the facts of this
case. R.C. 2151.414(E)(11) is a first prong ground for permanent custody and also a specific factor
that should be considered by the trial court when determining the best interest of the children. See
R.C. 2151.414(E)(11); R.C. 2151.414(D)(1)(e). R.C. 2151.414(E)(11) is satisfied if “[t]he parent
has had parental rights involuntarily terminated with respect to a sibling of the child * * * and the
parent has failed to provide clear and convincing evidence to prove that, notwithstanding the prior
termination, the parent can provide a legally secure permanent placement and adequate care for
the health, welfare, and safety of the child.”
{¶31} As Mother correctly asserts, there is nothing in the record to demonstrate that her
parental rights to any of her other children had been terminated “involuntarily.” The evidence at
the hearing demonstrated that Mother voluntarily surrendered her parental rights to the three other
children who had been parties to this case. The circumstances surrounding the termination of
mother’s rights to her oldest child were not explained in much detail, so it is unclear whether her
parental rights were terminated voluntarily or involuntarily. Consequently, the trial court erred in
determining that these facts satisfied the factor set forth in R.C. 2151.414(E)(11).
{¶32} Although the trial court incorrectly found that R.C. 2151.414(E)(11) had been
proven, Mother has failed to demonstrate prejudicial error. The trial court did not utilize its
incorrect R.C. 2151.414(E)(11) finding to satisfy the first prong of the permanent custody test.
Instead, it considered that finding as part of its determination about the best interest of the children.
In its 17-page decision, the trial court devoted only a few sentences to its R.C. 2151.414(E)(11)
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finding and noted that Mother had “voluntarily surrendered” her parental rights to the three other
children who had been parties to this case.
{¶33} Furthermore, Mother has failed to demonstrate that the trial court erred in
considering the facts underlying this finding: that Mother had lost custody of four other children.
In addition to the statutory best interest factors set forth in R.C. 2151.414(D), the trial court is
required to consider “other relevant factors[]” and no one best interest factor is given more weight
than any other. In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.
{¶34} Moreover, under R.C. 2151.414(D)(1), the trial court was required to considerer
the interaction and interrelationships of these children with their siblings, so it was relevant that
the children have several siblings who are no longer legally part of the family unit. Therefore,
although the trial court erred by characterizing these facts as meeting the requirements of R.C.
2151.414(E)(11), Mother has failed to demonstrate that it erred in considering these facts as part
of its best interest analysis.
{¶35} Given the evidence before the trial court, it did not lose its way in concluding that
the best interest factors weighed in favor of permanent custody to CSB. Mother’s second
assignment of error is overruled.
III.
{¶36} Mother’s assignments of error are overruled. The judgment of the Wayne County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
MICHELLE FINK, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.