IN RE: D.F. & A.W.F.
Appellate Case No. 29350
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 27, 2022
2022-Ohio-1781
Trial Court Case Nos. G-2018-000278-0N, 0Q and H-2018-000279-0P, 0R; (Appeal from Common Pleas Court-Juvenile Division)
Rendered on the 27th day of May, 2022.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Appellee, Montgomery County Children Services
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Dayton, Ohio 45434 Attorney for Appellant, Mother
TUCKER, P.J.
{¶ 2} Because the record clearly and convincingly establishes that the children had been in the temporary custody of MCCS for 12 or more months out of a consecutive 22-month period and that an award of permanent custody to MCCS was in the children‘s best interest, we affirm.
I. Facts and Procedural History
{¶ 3} D.F. was born in December 2006 and A.W.F. was born in May 2009. Both boys lived with Mother for the majority of their lives. Father has not been involved with the children and has not participated in this case.
{¶ 4} A.W.F. has been diagnosed with numerous disorders including autism, attention deficit hyperactivity disorder, Tourette‘s syndrome, and intermittent explosive disorder. He takes five different medications for the management of his conditions. D.F. has been diagnosed with disruptive mood dysregulation, attention deficit hyperactivity combined presentation, and developmental coordination disorder. He takes three different medications for his conditions. Mother receives treatment for post-traumatic stress disorder, anxiety, and depression, and has been prescribed three
{¶ 5} MCCS has been involved with this family since early 2017 when D.F. and A.W.F. were discovered home alone while Mother was at work. When police responded to the home, they noted a foul odor in the residence. The entire home was in disarray with dog feces throughout. The officers discovered raw, spoiled meat on the kitchen floor and expired food in the refrigerator. They also noted moldy dishes piled in the kitchen. Mother was arrested and convicted of misdemeanor child endangering. The children were placed outside the home but were subsequently returned to Mother‘s care.
{¶ 6} In January 2018, staff at D.F.‘s school noted he was arriving at school in dirty clothes with an obvious odor about him. The school resource officer, Thomas Hamlin, was alerted, and a welfare check was conducted on January 18, 2018. When Hamlin arrived at the home, he noted numerous dogs running in the house. Hamlin observed and smelled dog feces throughout the home. He also observed that the only toilet in the home was clogged with feces. Hamlin found that there was no edible food in the home and that there was standing water in both the kitchen sink and bathtub. The house was cluttered with debris, and trash was strewn about the home. None of the beds had sheets or blankets.
{¶ 7} A.W.F. and D.F. were removed from the home. Mother was arrested and charged with felony child endangering. Mother was ultimately convicted as charged. On January 19, 2018, MCCS filed a complaint alleging that D.F. and A.W.F. were abused, neglected and dependent. The children were placed in the emergency custody of MCCS that day. On February 23, 2018, the juvenile court adjudicated the children to be
{¶ 8} A case plan was implemented for Mother. The case plan objectives included the following: (1) complete a mental health assessment and follow any recommendations; (2) complete of a parenting psychological assessment and follow any recommendations; (3) complete a parenting education course and demonstrate improvement in parenting skills; (4) maintain the home to a minimally acceptable standard; (5) work with a financial planner in order to address a pending foreclosure action; (6) attend appointments with the children; (7) participate in monthly caseworker visits; (8) attend weekly visitation with the children; and, (9) sign information release forms.
{¶ 9} In December 2018, MCCS referred Mother to Agape for Youth, Inc. (“Agape“), an entity which provides assistance to families in the reunification effort. Agape personnel work directly with families for approximately five to ten hours per week. The case was assigned to Donna Merrill, who first met with Mother on December 4, 2018. Merrill noted that Mother‘s house was cluttered and had a strong odor of urine. Merrill‘s primary focus was on getting the home clean and making it safe for the children while also providing Mother with skills to help her deal with the behavioral needs of the boys.
{¶ 10} During a visit to the home in early January 2019, Merrill noted that the home was “uncomfortably cold” and had an “overwhelming” odor of urine. Tr. p. 147. Merrill also observed that the house was cluttered with trash and had dried feces on the floor. The boys’ mattresses were on the floor with no sheets or blankets. The kitchen was cluttered with old food and dirty dishes.
{¶ 12} After the spring break visit ended, A.W.F. made an allegation that D.F. had sexually assaulted him during the visit. Following an investigation, it could not be determined whether an assault had occurred. However, MCCS restricted visitations between the children to supervised visits. MCCS paused its reunification effort due to Mother‘s inability to maintain the home in a minimally acceptable standard and her inability to effectively supervise the children. At that point, Agape closed its case, and Merrill had a final home meeting with Mother.
{¶ 13} Eventually, Mother again began working toward cleaning the home. Once
{¶ 14} During the pendency of this case, D.F. has been in the same foster home
{¶ 15} A.W.F.‘s behavioral problems and mental health symptoms deteriorated as he got older. He exhibited inappropriate sexual behavior, which had escalated to the point that he had attempted to masturbate in front of other people. He had been violent toward his peers and made comments about raping little girls and setting people on fire. He hoarded and consumed his own feces.1
{¶ 16} A.W.F. had had five foster home care placements. At one point, he was in a foster home in which MCCS had previously placed some of its most challenging children. However, in September 2018, A.W.F.‘s behavior escalated to the point that he was hospitalized for ten days in the psychiatric ward of Cincinnati Children‘s Hospital for psychosis and hallucinations. A.W.F. was then removed from that foster placement; the foster parents did not believe they could safely house A.W.F. because he had acted violently toward the other children in the home.
{¶ 17} In May 2019, A.W.F. was placed in a group home in Montgomery County, where he has remained. At one point, the group home contemplated making a removal request because the staff members did not believe they could care for A.W.F. and because Mother was combative with the staff. Thereafter, MCCS limited Mother‘s contact with A.W.F., and his behavior somewhat improved. The home hired additional
{¶ 18} A hearing on the motion for permanent custody was conducted on November 12 and 13, 2020. Thereafter, the magistrate found that the children had been in the custody of MCCS for 12 out of 22 consecutive months and that a grant of permanent custody to MCCS was in the best interest of the children. Mother filed timely objections to the magistrate‘s decision. On December 8, 2021, the trial court overruled Mother‘s objections and awarded permanent custody of both children to MCCS.
{¶ 19} Mother appeals.
II.
{¶ 20} Mother asserts the following as her sole assignment of error:
THE JUVENILE COURT ERRED WHEN IT GRANTED PERMANENT CUSTODY OF THE CHILDREN TO [MCCS].
{¶ 21} Ohio recognizes that “parents who are ‘suitable’ have a ‘paramount’ right to the custody of their children.” In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977). (Other citations omitted.) However, the rights of the parent “are not absolute, but are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App.1974). “Ultimately, parental interests are subordinate to the child‘s interest when determining the appropriate resolution of a
{¶ 22} Ohio‘s statutes regarding termination of parental rights recognize the importance of determining the best interest of a child.
{¶ 23} Here the juvenile court made the findings required to award MCCS permanent custody. Specifically, the court found the children had been in the custody of MCCS for 12 or more months of a consecutive 22-month period and that awarding permanent custody to MCCS was in their best interest. We review the court‘s decision for an abuse of discretion, and we will not disturb custody decisions on evidentiary grounds “if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established.” In re T.D., 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 5, citing In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. The phrase “abuse of discretion” implies a decision that is unreasonable, arbitrary, or unconscionable. Id.
{¶ 24} Mother does not dispute that the children had been in the temporary custody of MCCS for 12 or more months of a consecutive 22-month period. Instead, she asserts that the evidence did not support the finding that awarding permanent custody to MCCS was in the best interest of the children. Her argument in support focuses exclusively on the assertion that she has met her case plan goals.
{¶ 25} The record shows that Mother had worked on her case plan. Indeed, she had completed several of the case plan goals. However, some of the goals had not been met. For example, the record demonstrates that Mother completed a mental health assessment and attended therapy at the Flexman Clinic. However, she quit attending therapy in February 2019. When confronted about the lack of ongoing services, Mother claimed that she was completing therapy through another service, but she did not provide documentation to verify these services. Approximately a year later, in April 2020, MCCS received a letter from a counseling service indicating that Mother was engaged in therapy for anxiety. This record supports a finding that Mother had been somewhat compliant with the mental health component of her case plan. However, it also shows that she did not resume counseling services until MCCS filed for permanent custody.
{¶ 26} Mother also completed a parenting assessment and attended parenting classes through different services including MCCS, Agape, and United Rehabilitation Services. However, both the caseworker and Merrill, the Agape employee, testified that Mother would initially show some improvement after the classes, but she would not
{¶ 27} Additionally, MCCS provided services through Agape in order to help Mother learn to maintain her home while caring for the children. However, the record amply demonstrates that Mother consistently failed to maintain the home in a manner suitable and safe for raising children. Even after extensive services were provided, she informed MCCS that she could not maintain the home while simultaneously caring for the
{¶ 28} Based upon this record, we cannot conclude Mother had substantially complied with portions of her case plan. Furthermore, even had Mother successfully complied with every requirement of her case plan, this court has stated that completion of a case plan is not dispositive of a best interest analysis. In re T.D., 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 12. Accord In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist.). “When the focus is on the child‘s best interest, a trial court conceivably could terminate parental rights even if a parent completed all of her case-plan objectives.” (Citation omitted.) T.D. at ¶ 12, citing In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 59. Case plans are “simply ‘a means to a goal, but not the goal itself,’ and other considerations still may justify an award of permanent custody to a children-services agency.” (Citations omitted.) Id., quoting In re J.H., 12th Dist. Clinton No. CA2015-07-014, 2016-Ohio-640, ¶ 47.
{¶ 29} In determining the best interest of a child,
{¶ 30} With regard to the interaction and interrelationship of the children to significant others, we note there is no dispute that Mother loves the children and that the boys are bonded with her. However, the boys are not bonded with one another. D.F. expressed resentment that his Mother expects him to help care for A.W.F., and he had no interest in being with A.W.F.
{¶ 31} D.F. was in a foster-to-adopt placement. There was evidence that he had bonded with his foster family and enjoyed his time in their home. He stated that he was allowed to be just a kid in the foster home rather than being expected to take care of a sibling. He also had expressed that he was not embarrassed about the condition of his foster home like he was about Mother‘s home.
{¶ 32} A.W.F.‘s therapist stated it would be a challenge for A.W.F. to have a meaningful relationship with anyone due to his disabilities. However, he received appropriate care and supervision in the group home.
{¶ 33} Both boys had expressed the desire to return to Mother. However, D.F. did not want A.W.F. in the home. The guardian ad litem recommended an award of permanent custody to MCCS.
{¶ 34} The trial court found that both children were in need of a legally secure placement, which could not be achieved without a grant of permanent custody to MCCS. The boys had been in the temporary custody of MCCS since in January 2018. MCCS attempted reunification of Mother with both children, but the condition of the home
{¶ 35} On this record, the juvenile court did not err in terminating Mother‘s parental rights and awarding permanent custody to MCCS; there was clear and convincing evidence that the children had been in the temporary custody of MCCS for more than 12 months of a 22-month period. Further, the evidence supported the court‘s finding that an award of permanent custody was in the children‘s best interest.
{¶ 36} The sole assignment of error is overruled.
III. Conclusion
{¶ 37} The judgment of the juvenile court is affirmed.
DONOVAN, J. and WELBAUM, J., concur.
Mathias H. Heck, Jr.
Lisa M. Light
Robert Alan Brenner
Michael P. Brush
Carl A. Lux
J.S.
Hon. Helen C. Wallace