In re H.M.K.
PRESTON, P.J.
{¶1} Mother-appellant, Diane K., appeals the trial court‘s judgment entry awarding permanent custody of H.M.K. to the Wyandot County Department of Job and Family Services (“WCDJFS“) and the trial court‘s judgment entry awarding legal custody of J.B.K.1 to his paternal uncle and aunt, Chris and Tara H. For the reasons that follow, we affirm the judgments of the trial court.
{¶2} On August 27, 2010, WCDJFS filed complaints alleging that H.M.K. was a dependent child as defined in
{¶3} Prior to filing the complaints in this case, WCDJFS had previous involvement with Diane involving her older children, one of which was allegedly sexually abused by Diane‘s male “friend” who was living in the home. (Id.). Similarly, this case involved substantiated allegations that Diane‘s live-in
{¶4} On September 7, 2010, Diane appeared and was appointed counsel; thereafter, the trial court entered conditional denials to the charges in the complaints regarding H.M.K. and J.B.K. on Diane‘s behalf. (Doc. Nos. 22, 26). At that time, the State indicated that it was just notified of the identity of children‘s fathers and would ascertain their addresses and attempt service. (Id.).
{¶5} On September 13, 2010, Marvin H., J.B.K.‘s father, appeared and was appointed counsel; thereafter, the trial court entered conditional denials to the charges in the complaint regarding J.B.K. on Marvin‘s behalf. (Doc. No. 29). The State notified the trial court that it had attempted to serve H.M.K.‘s father, Michael B., without success, and it believed that he was avoiding service, so the State would pursue service by publication. (Doc. No. 30).
{¶6} On September 14, 2010, WCDJFS filed a motion requesting that the trial court continue its adjudication hearing so that H.M.K.‘s father, Michael B., could be served by publication. (Doc. No. 23).
{¶7} On September 20, 2010, the trial court adjudicated H.M.K. a dependent child as to Diane upon her admission. (Doc. No. 33). On this same day, the trial court also adjudicated J.B.K. a dependent child upon Diane‘s
{¶8} On October 18, 2010, the trial court adjudicated H.M.K. a dependent child as to Michael B., who did not appear for the proceedings after receiving notice, according to Diane. (Doc. No. 35). That same day, the trial court adjudicated J.B.K. a dependent child as to Marvin H. upon his admission. (Doc. No. 34).
{¶9} On November 8, 2010, the trial court held a dispositional hearing and, thereafter, took the matter under advisement for post-hearing written arguments, because the Guardian Ad Litem (“GAL“) requested that the trial court grant WCDJFS temporary custody while WCDJFS requested only protective supervision. Counsel for Diane advocated for a middle-of-the-road approach whereby the children would remain in their mother‘s care with strict orders from WCDJFS concerning their supervisory capacity. (Case No. C 2102011, Doc. Nos. 35-37); (Case No. C 2102010, Doc. Nos. 36-38).
{¶10} On December 14, 2010, the trial court issued its judgment, ordering that WCDJFS be awarded protective supervision. (Case No. C 2102011, Doc. No. 38); (Case No. C 2102010, Doc. No. 39). The trial court also ordered, in pertinent
{¶11} On February 9, 2011, WCDJFS filed a motion to show cause why Diane should not be held in contempt of court for failing to abide by the court‘s orders. (Case No. C 2102010, Doc. No. 43); (Case No. C 2102011, Doc. No. 44). In particular, WCDJFS alleged that Diane: allowed adult men, who were friends of her adult daughter, to stay in the residence with the minor children; failed to fill out an application for day care through WCDJFS; refused to take a budgeting class even though she continued to have financial difficulties; failed to follow-up with school officials regarding H.M.K.‘s academic performance; failed to enroll H.M.K. in extracurricular activities in school; failed to ensure that H.M.K. accepted an agency employee‘s “friend” request on Facebook; failed to enroll J.B.K. in Head Start; and, failed to attend counseling at Firelands. (Id.); (Id.).
{¶12} On February 28, 2011, the trial court held a hearing on the motion, Diane admitted she was in contempt of the trial court‘s orders, and the trial court sentenced Diane to 30 days in jail but suspended the sentence for Diane to purge the contempt. (Case No. C 2102010, Doc. No. 48); (Case No. C 2102011, Doc. No. 49).
{¶14} On April 5, 2011, WCDJFS responded to the motion, arguing that the department does not have custody of J.B.K., rather protective supervision, and Marvin‘s custody dispute should be addressed in the pending paternity case, Wyandot County Juvenile Court I.E. case I 2103040. (Doc. No. 56).
{¶15} On April 15, 2011, the trial court dismissed Marvin‘s amended motion to establish parental visitation rights, finding that Marvin should have addressed visitation in the paternity case. (Doc. No. 57).
{¶16} On April 29, 2011, WCDJFS filed a motion for emergency custody of the children, alleging that Diane allowed the children to visit Marvin H., a registered sex offender. (Case No. C 2102010, Doc. No. 51); (Case No. C
{¶17} On June 29, 2011, WCDJFS filed a supplemental motion for emergency custody of H.M.K., alleging that, while in the foster home, J.B.K., who was five years of age, was humping H.M.K.; H.M.K., who was ten years of age, possessed pornography on her Nintendo DIS; and, H.M.K. had a disturbing fascination with the condom isle at the grocery store. (Case No. C 2102010, Doc. No. 61). On that same day, WCDJFS filed a motion for an order placing J.B.K. in the temporary custody of his paternal uncle and aunt, Chris and Tara H. (Case No. C 2102011, Doc. No. 69).
{¶18} On July 5, 2011, the trial court filed an entry noting that it would be inappropriate to grant Chris and Tara H. temporary custody of J.B.K. since there is a pending hearing concerning temporary custody as between Diane and WCDJFS, and J.B.K. is currently developing a relationship with his foster parents. (Case No. C 2102011, Doc. No. 73). Consequently, the trial court set the motion for hearing on the same date as the hearing scheduled to rule on WCDJFS’ motion for temporary custody. (Id.).
{¶20} On September 22, 2011, WCDJFS filed a motion for Diane to have unsupervised visitation with the children. (Case No. C 2102010, Doc. No. 71); (Case No. C 2102011, Doc. No. 84). That same day the Court Appointed Special Advocate (“CASA“), through the GAL, filed an objection to WCDJFS’ motion for unsupervised visitation. (Case No. C 2102010, Doc. No. 72); (Case No. C 2102011, Doc. No. 85). Also that same day, Marvin H. filed another motion seeking visitation with J.B.K. (Doc. No. 86).
{¶21} On October 18, 2011, the trial court held a hearing on the various motions. On October 24, 2011, Marvin H., with the parties consent, filed an exhibit consisting of his sexual-offender treatment records, assessments, and progress reports in support of his motion for visitation. (Doc. No. 89).
{¶22} On January 13, 2012, the trial court filed an entry granting Marvin H. visitation with J.B.K. under WCDJFS’ supervision. (Doc. No. 91). The trial court also granted Diane‘s motion for unsupervised visitation with H.M.K. for two to three hours at a time, as scheduled with WCDJFS; however, the trial court denied Diane‘s motion for unsupervised visitation with J.B.K. at this time since Diane had failed to properly supervise him. (Case No. C 2102010, Doc. No. 77); (Case
{¶23} On March 8, 2012, WCDJFS filed a motion for an order placing J.B.K. in the temporary custody of his paternal uncle and aunt, Chris and Tara H. (Doc. No. 96). WCDJFS represented that the foster mother was no longer a placement option, and that J.B.K. has bonded with his uncle and aunt throughout the case. (Id.). On March 14, 2012, Marvin H. filed an objection to the motion. (Doc. No. 98). On March 20, 2012, the trial court continued WCDJFS’ temporary custody of J.B.K.; however, it allowed J.B.K. to be placed into Chris and Tara H.‘s home on the condition that they pass a home study since no other foster homes were available. (Doc. No. 99).
{¶24} On May 2, 2012, WCDJFS filed a motion requesting that Diane‘s unsupervised visitation time with H.M.K. be increased to six hour increments, which motion was granted. (Doc. Nos. 85-86). On this same date, WCDJFS filed a motion requesting that Diane be granted unsupervised visitation with J.B.K., and that J.B.K. be placed in the temporary, relative custody of Chris and Tara H. (Case No. C 2102011, Doc. No. 103).
{¶25} On May 24, 2012, the trial court granted Diane unsupervised visitation with J.B.K.; however, the trial court ordered WCDJFS to conduct unannounced visits and immediately report any concerns to the court. (Doc. No.
{¶26} On June 13, 2012, however, WCDJFS’ filed a motion requesting that Diane‘s visitation time with the children be returned to supervised visitation since Diane failed to properly supervise them during her unsupervised visitation time. (Case No. C 2102010, Doc. No. 88); (Case No. C 2102011, Doc. No. 106). The trial court granted the motion the same day. (Case No. C 2102010, Doc. No. 89); (Case No. C 2102011, Doc. No. 107).
{¶27} On July 27, 2012, WCDJFS filed a motion seeking permanent custody of H.M.K. (Doc. No. 91). That same day, WCDJFS filed a motion asking the court to grant Chris and Tara H. legal custody of J.B.K. (Doc. No. 108).
{¶28} On October 24, 2012, the trial court held a hearing on the motion for permanent custody of H.M.K. and motion for legal custody of J.B.K. (Case No. C 2102010, Doc. No. 97); (Case No. C 2102011, Doc. No. 109).
{¶29} On November 7, 2012, the trial court granted Chris and Tara H. legal custody of J.B.K., awarded Diane reasonable supervised visitation as agreed between the parties, and terminated WCDJFS’ protective supervision. (Doc. No. 118). The trial court also ordered Diane to provide the Wyandot County Child Support Enforcement Agency (“CSEA“) with income information for child support calculation purposes, and CSEA was ordered to provide copies of the
{¶30} On November 27, 2012, CSEA filed notice of the child support calculation with the trial court and the parties, indicating that Diane‘s child support for J.B.K. should be $314.30 per month, plus a $6.29 per month processing fee, when health insurance is provided. (Doc. No. 121).
{¶31} On November 28, 2012, the trial court granted WCDJFS permanent custody of H.M.K., terminating the parental rights of Diane and Michael B. (Case No. C 2102010, Doc. No. 97).
{¶32} On December 10, 2012, Diane filed a notice of appeal from the trial court‘s judgment entry awarding WCDJFS permanent custody of H.M.K., which was assigned appellate case no. 16-12-15. (Doc. No. 101). That same day she filed a written objection and request for a hearing regarding the child support calculation for J.B.K. (Doc. No. 123). The trial court ordered that Diane pay
{¶33} On December 13, 2012, Diane filed a notice of appeal from the trial court‘s judgment entry granting Chris and Tara H. legal custody of J.B.K., which was assigned appellate case no. 16-12-16. (Doc. No. 125).
{¶34} On February 28, 2013, this Court sua sponte consolidated the cases for appeal purposes, with all filings under case no. 16-12-15.
{¶35} Diane now appeals raising two assignments of error specially related to H.M.K., one assignment of error specifically related to J.B.K., and two assignments of error related to both children.4 For ease of analysis, we will address the assignments of error in that order, combining them where appropriate.
Assignment of Error No. I
The Trial Court‘s decision to terminate Appellant‘s parental rights and grant permanent custody to the Wyandot County Job and Family Services is against the manifest weight of the evidence.
Assignment of Error No. II
The Trial Court erred in granting permanent custody for the children because it was not in their best interest.
{¶37} In her second assignment of error, Diane argues that granting WCDJFS permanent custody of H.M.K. was not clearly and convincingly in the child‘s best interest. In particular, Diane argues that the trial court discounted her bond with H.M.K. and that she had completed her case plan.
{¶38} As an initial matter, we note that Diane‘s arguments concerning permanent custody, although they appear to relate to both children, must necessarily be limited to H.M.K. since the trial court granted WCDJFS permanent custody of H.M.K. only. Chris and Tara H. were granted legal custody of J.B.K., and the trial court granted Diane parental visitation rights. With that caveat in mind, we proceed to our analysis of these assignments of error.
{¶39} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right,” and a parent‘s right to the custody of his or her child has been deemed “paramount.” In re Murray, 52 Ohio St.3d 155, 157, (1990), quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972); In re Hayes, 79 Ohio St.3d 46, 48 (1997); In re Perales, 52 Ohio St.2d 89, 97 (1977). Therefore, parents “must be afforded every procedural and substantive protection the law allows.” Hayes at 48.
{¶40} Except under certain circumstances, a public children services agency that has had temporary custody of a child for twelve or more months of a consecutive twenty-two month period must file a motion for permanent custody.
{¶41} To determine whether granting the agency permanent custody is in the best interest of the child,
(1) 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;
(2) 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; (3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999;
(4) 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;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶42} Clear and convincing evidence is more than a preponderance of the evidence but not as much evidence as required to establish guilt beyond a reasonable doubt as in a criminal case; rather, it is evidence which provides the trier of fact with a firm belief or conviction as to the facts sought to be established. In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122 (1991).
{¶44} The history preceding WCDJFS’ motion for permanent custody is important in this case. By the time WCDJFS filed the complaints, it had received multiple reports concerning Diane‘s failure to supervise her children beginning on September 11, 2003. (Complaint, Doc. No. 1, Statement of Facts, attached). To put it bluntly, Diane has a history of allowing men into her life that physically and sexually abuse her children—H.M.K. is not the first victim of Diane‘s negligent supervision. (Id.). H.M.K. is also not the first of Diane‘s children to have severe head lice. (Id.). Attached to the September 11, 2009 GAL report were multiple police reports involving Diane‘s failure to supervise J.B.K., a police report about a sexual assault that occurred against Diane‘s now emancipated daughter, Kayla, and multiple police reports for domestic violence against Diane in the children‘s presence, including one incident where a knife was used.
{¶45} At the June 28, 2011 hearing on WCDJFS’ motion for emergency custody, Marvin H. testified that he is J.B.K.‘s father, no relation to H.M.K., and
{¶46} Diane admitted that she allowed Marvin H. to have companionship with J.B.K. despite the trial court‘s order otherwise. (Id. at 15-16). Diane also testified that she has been socializing with Mark Hoffman, though he was a friend not a boyfriend, and she denied dating a man named “Bill” before that. (Id. at 17). Diane testified that Hoffman, not Bill, attended H.M.K.‘s softball games with her. (Id. at 18). When she was asked about whether Hoffman had ever been convicted of a sexual offense, Diane testified “[n]o. * * * Because he‘s got five kids.” (Id.). When asked about whether Hoffman had ever been convicted of domestic violence, Diane testified, “I don‘t think he -- I don‘t think he‘d hurt anybody.” (Id.). Diane testified that her children met Hoffman when he helped her move, but she did not contact the agency to screen Hoffman. (Id. at 18-19). Diane testified
{¶47} Brenda Hanawalt, the foster-mother, testified that H.M.K. and J.B.K. have been in her home since April 28, 2011, and H.M.K. had severe head lice when she first came. (Id. at 20-21). Hanawalt observed J.B.K. humping H.M.K. a few times; Hanawalt testified that J.B.K. grabbed H.M.K. by the waist and was “humping on her like a sexual thing.” (Id. at 23). When Hanawalt asked the children how they learned this behavior, the children first indicated that J.B.K. walked in on his older sister and boyfriend having sex once. (Id. at 23). When it happened a second time, H.M.K. indicated that J.B.K. must have learned this behavior from her Nintendo DSI. (Id. at 23-24).
{¶48} After testimony concerning the pornography on the Nintendo DSI and humping incidents was introduced, the attorneys for mother and father moved for a continuance since WCDJFS’ motion did not give notice of these issues for the hearing. (Id. at 24-29). The trial court granted the motion, allowing WCDJFS to amend its motion for a further hearing. (Id.).
{¶49} On October 18, 2011, the hearing continued on WCDJFS’ amended motion and Hanawalt testified that H.M.K. was “pretty much sexually advanced,” and H.M.K. was showing other children on the school bus pornography that she had in her Nintendo DSI. (Tr. at 11). Hanawalt testified that H.M.K. was
{¶50} Kristina Renee Ratliff, the WCDJFS social worker assigned to the case, testified that the agency became involved after J.B.K. was discovered outside of the home several times due to lack of supervision. (Id. at 22-23). Ratliff testified that Diane allowed the children to stay at Marvin H.‘s house, a convicted sex offender, even though she was not permitted to do so per court order. (Id. at 23-24). Ratliff testified that H.M.K. has not disclosed any inappropriate sexual behavior to her counselor; however, Ratliff testified that H.M.K.‘s counselor
{¶51} On October 24, 2012, the trial court held a hearing on WCDJFS’ motion for permanent custody of H.M.K. and motion to grant Chris and Tara H. legal custody of J.B.K. Salisa Lynn Halloway testified that H.M.K., now twelve years old, has been residing in her foster home since the beginning of March (2012). (Oct. 24, 2012 Tr. at 53, 55). Halloway testified that she lives with her boyfriend, Dave Boes, and her three sons, Cody, Colin, and Conner. (Id.). Halloway testified that H.M.K. stopped wetting the bed and having nightmares, though she started doing that again the week of the court hearing. (Id. at 54). Halloway testified that H.M.K. is doing better in school, though she continues to be about a year behind academically, despite their efforts at homework every night. (Id. at 54-55). Halloway testified that H.M.K. played softball in the summer, participated in “Midget Cheerleading,” and now wants to participate in gymnastics. (Id. at 55). Halloway testified that H.M.K.‘s visitation with her
{¶52} On cross-examination, Halloway testified that her three boys are ages twelve, fifteen, and seventeen. (Id. at 57). She testified that the boys get along with H.M.K., though the older boys are rarely around the house due to their sports schedule and driving privileges. (Id.). Halloway testified that she is acting as H.M.K‘s mother figure while she is staying in the home, and Dave is trying to be a father figure for H.M.K., who has never had a father. (Id. at 58). Halloway and Dave have talked about adopting H.M.K. in the event adoption is an option, and H.M.K. asked them if they were adopting her. (Id. at 60). Halloway testified that she took H.M.K. for supervised visits with her mother almost every week, though some of the visits did not occur due to scheduling conflicts. (Id. at 60, 63). Halloway testified that most of the visits happened. (Id. at 63). Halloway testified that H.M.K. told her that during her last visit with her mother, her mother told her that she hopes H.M.K. picks her, so H.M.K. believed that the outcome of the case depended on her. (Id. at 63-64). Halloway denied observing H.M.K. exhibit any inappropriate sexual behavior or interest in condoms. (Id. at 65). Halloway also testified that H.M.K. has very limited, supervised time on Facebook, once or twice a week for fifteen to twenty minutes. (Id.).
{¶54} Ratliff testified that she has been working with Diane for years, not months, and her biggest frustration with Diane is that she appears to put her boyfriends before her children. (Id.). Despite their multiple conversations on the subject, Diane continued to expose her children to men who have a violent history, some of which have been convicted of sexual offenses against children, which had
{¶55} Ratliff testified that Donald Mauck was living with Diane, though she is not sure how long Mauck lived with Diane because Diane hid the relationship from her. (Id.). Ratliff testified that the agency discovered that Mauck had been charged with disseminating sexually explicit materials to minors. (Id.). J.B.K. disclosed to Chris and Tara H. that, one time when Diane and the children were at Putt-Putt during an unsupervised visitation, Diane hid Mauck in the bathroom since she believed that Ratliff might be making an unannounced visit. (Id. at 73). Ratliff testified that, when Diane picked up H.M.K. at her foster
{¶56} Ratliff testified that, after Diane and the children left Putt-Putt and were still on visitation time, Diane allowed H.M.K. to go swimming at a friend‘s
{¶57} Ratliff testified that Marvin H. is J.B.K.‘s father, and Marvin did not agree with the agency‘s decision to place J.B.K. in the temporary custody of Chris and Tara H. (Id. at 91-92). Ratliff testified that Marvin indicated that he was done with the agency if J.B.K. was placed with Chris and Tara H., and Marvin has not contacted her since the placement, despite her multiple efforts to reach him. (Id. at 92). She testified that Michael B. is H.M.K.‘s father, but he has not contacted the agency with respect to her case. (Id. at 93). Ratliff testified that Diane is not currently dating Mauck, though she is dating another man she met from work, and Ratliff only found out about this new boyfriend through H.M.K. (Id.).
{¶58} Ratliff testified that the agency is only asking for permanent custody of H.M.K. since Chris and Tara H. are an appropriate legal placement for J.B.K., and no family member has come forward for H.M.K. (Id. at 95). Ratliff testified that Diane does not accept responsibility for her actions; instead, it is always someone else‘s fault, whether that is the agency, CASA, Marvin H., Chris H., etc. (Id. at 96-97). Ratliff testified that H.M.K. told her that she wanted her foster mother to adopt her, though later H.M.K. indicated that she did not want to talk to the judge about her wishes because she did not want to upset her mother. (Id. at 98). H.M.K. told Ratliff that she knew her foster mother would take better care of
{¶59} On cross-examination, Ratliff testified that Diane interacts well during visitation, has “pretty much completed everything on the original Case Plan,” has stable work, has completed parenting and budgeting classes, and has an appropriate house. (Id. at 101). Ratliff admitted that the agency moved for permanent custody primarily for two reasons: who Diane brings into the children‘s lives, and her lack of supervision of the children. (Id. at 101-102). Ratliff testified that, prior to his placement with Chris and Tara H., J.B.K. was placed with a foster mother, Brenda Hanawalt, for about a year. (Id. at 102). Ratliff testified that J.B.K. was not completely potty trained prior to his removal, and Brenda worked with J.B.K., who continued to have bed-wetting incidents. (Id.). Ratliff testified that, as Tara H. has indicated, J.B.K. responds better to males than he does females, and Brenda was a single mother. (Id.).
{¶61} Ratliff testified that she conducted a background check on Diane‘s current boyfriend, which did not reveal any criminal history. (Id. at 112). Ratliff testified that Diane was also a Facebook friend with Mauck, and Mauck also had pictures of Diane on his Facebook page. (Id. at 115). Ratliff testified that J.B.K. is more bonded with Diane than H.M.K. is at this point, and H.M.K. is “almost
{¶62} Ratliff testified that visitation has been difficult to schedule, in part, due to Diane‘s work schedule since she works second shift and some weekends, too. (Id. at 117). She testified that Diane has made efforts to see H.M.K. cheerleading and playing softball, and attended a car show with H.M.K. (Id.). Ratliff testified that she does not think Diane‘s issue stems from her inability to care for two children at the same time; rather, Diane continues to make bad choices, not following rules that put her children in potentially harmful situations. (Id. at 120-121). Ratliff testified that Diane has never asked her about the children‘s academic progress, though she would occasionally ask J.B.K. about his school behavior. (Id. at 121). She further testified that Diane failed to enroll J.B.K. in Head Start, which was part of the Case Plan, and J.B.K. is repeating kindergarten. (Id. at 122). Ratliff testified that H.M.K. has made some progress in school, and her foster mother has been working with her on her homework. (Id. at 123).
{¶63} Ratliff testified that she was concerned about the four hours of unsupervised time H.M.K. spent at her friend‘s house since she was in the woods with boys, and H.M.K. is highly sexualized for her age. (Id. at 123-124). Ratliff testified that, after her time in the woods, H.M.K. returned with scratches all over
{¶64} Ronette Kate Smith-Cheney, the GAL, testified that she filed a report in this case, and her opinion is the same as reflected in her report (to grant WCDJFS’ permanent custody of H.M.K. and to grant Chris and Tara H. legal custody of J.B.K.). (Id. at 128-129). On cross-examination, Smith-Cheney testified that she would like to see H.M.K. have some contact with her mother, as she wishes; however, Smith-Cheney acknowledged that there is only so much they can control after adoption. (Id. at 130-131). She testified that she recommends that Chris and Tara H. be granted legal custody of J.B.K., and that he have visitation with Diane. (Id. at 131-132). Smith-Cheney testified that Diane did not
{¶65} Diane K. testified that she has worked at Bucyrus [Precision] Technology making shafts for Honda transmissions for over a year. (Id. at 142). Diane testified that she is currently working second shift, but by the first of the year, the plant is moving to a three days on, three days off schedule, which will enable her to work from 6:30 a.m. to 6:30 p.m. three days per week. (Id. at 143). She testified that the three days on would rotate requiring her to work some weekends. (Id. at 144). Diane testified that, since she has a better job, she can afford to hire a babysitter, a woman who is a registered nurse, to watch the children after school and take them to their extracurricular activities on the days she is working. (Id. at 145). Diane testified that she has lived in Nevada (Ohio) for the past two years, but she recently put an offer on a farmhouse in Crestline, Ohio, and she is supposed to close the deal by November 15th (2012). (Id. at 146). Diane testified that the house has three bedrooms, one and a half baths, and has a large yard. (Id. at 147). Diane testified that she completed parenting classes
{¶66} Diane testified that she was unable to visit J.B.K. for three weeks since her car broke down, and she was unable to see J.B.K. another three weeks due to the disagreement between the agency and Chris and Tara H. regarding transportation. (Id. at 150). She testified that she was informed J.B.K. is taking medication, and Diane testified that she did not want her children to be on medication since it could damage their liver. (Id. at 151). Diane testified that she preferred talking with J.B.K. rather than giving him medication, and Diane attributed J.B.K.‘s behavioral problems with his removal from the home and from one school to another. (Id.). Diane testified that she is no longer seeing Mauck due to his inappropriate posts on Facebook, of which she was previously unaware and did not discover until the agency notified her. (Id. at 152, 154). Diane testified that she has spent little time on Facebook since February (2012) since she
{¶67} Diane testified that “Oribringer” is her new boyfriend she met through work, and she had the agency check him out after she had one date with him. (Id. at 155). Diane testified that Oribringer raised two boys and said he would be willing to help raise her children so they could have a stable home. (Id.). Diane testified that “[i]t would totally tear [her] apart if [she] lost [her] kids altogether.” (Id. at 156). She testified that the children would be devastated to lose her as well. (Id.). When asked about her failures to keep the children safe, Diane testified that that was the past, and she is trying to better her life, and she has found a responsible babysitter, which she blamed as the cause of the agency‘s initial involvement. (Id. at 156-157). Diane testified that she has made extra efforts to be involved in H.M.K.‘s life, including attending softball games, cheerleading, and dance recitals, and even visited with H.M.K. when the agency was unable to supervise. (Id. at 157). Diane testified that H.M.K. was not unsupervised for four hours at her friend‘s house; rather, H.M.K. checked in with her every half-hour. (Id. at 158). Diane testified that she and her children moved in with one male friend, Nutter, only because she was laid off six times in the last
{¶68} On cross-examination, Diane testified that she is buying the house with her new boyfriend, who she has known for six months and has been dating since September (2012). (Id. at 161-162). Diane testified that she met Mauck through Yearbook, which is an online social networking site similar to Facebook, and spoke to him for about a month before she began dating him. (Id. at 162-163). She testified that she met Mauck, and a few weeks later he moved into her home, and he lived there from February to May. (Id. at 163). Diane testified that she asked Mauck if he had any sexual offenses, and Mauck said “no.” (Id. at 164). Diane testified that Mauck did not work, but he kept the house clean and mowed the yard in exchange for living at the house. (Id.).
{¶69} Diane testified that the school sent her copies of her children‘s report cards, but she never had direct contact with the teachers. (Id. at 164-165). Diane did not know the names of the children‘s school teachers. (Id. at 165). Diane testified that she disciplined J.B.K. by restricting his access to movies and sitting him in a chair. (Id. at 166). Diane testified that she spanked her children a few times when they really needed it, but not every time they disobeyed, because she did not want to hurt her children. (Id.). Diane testified that she learned the value
{¶70} Diane testified that Mauck was not hiding in the restroom at Putt-Putt, but that he had to use the restroom, and she was joking around about him hiding in front of the children, which she testified she should not have done. (Id. at 168). Diane testified that, prior to the hearing, she told H.M.K. that she did not want to lose her, and that H.M.K. might be adopted and she would never see H.M.K. again. (Id. at 169). Diane admitted that this probably burdened H.M.K., but H.M.K. needed to know what could happen. (Id.).
{¶71} Diane testified that Ratliff has tried to support her and help keep the children in the home. (Id. at 170). She testified that she never left the children alone with Mauck. (Id. at 174). Diane identified WCDJFS’ exhibit two as a screen shot from Mauck‘s Facebook page. (Id. at 176). Exhibit two contains a photograph of a woman with her legs open exposing her underwear upon which the words “ALL YOU CAN EAT” appear on the front. (Id. at 179); (WCDJFS’ Ex. 2). The exhibit also contains a post with the following question, “If you could change something about your life, what would it be and why?” (Oct. 24, 2012 Tr. at 179.). Mauck‘s response to this question was “id [sic] have a good looking bi woman for me and my girl[.]” (Id.). Diane testified that, after she verified these things were on Mauck‘s Facebook page, she confronted Mauck and told him to
{¶72} Diane testified that she did not want her children on drugs, like Ritalin, to address their behaviors, because the drugs have serious side effects. (Id. at 188). Diane testified that she did not feel responsible for the fact that J.B.K., now six years old, was not fully potty trained. (Id. at 189). When asked if she felt any responsibility for J.B.K. needing to repeat kindergarten, Diane testified that it was a little bit of the agency‘s fault for removing J.B.K. from his
{¶73} After reviewing the aforementioned testimony in light of the history of the case and the GAL reports, the trial court determined that granting WCDJFS permanent custody of H.M.K. was in her best interest and that H.M.K. cannot be placed with either of her parents.5 With respect to the latter finding, the trial court noted that H.M.K.‘s father, Michael B., has shown absolutely no interest in the proceedings, and, Diane has failed to remedy the conditions which caused H.M.K. to be removed from the home. (Nov. 28, 2012 Entry, Doc. No. 97). The trial court acknowledged that Diane had completed the case plan goals, but that “compliance with the case plan, without more, does not entitle a parent to custody.” (Id., citing In the Matter of McKenzie, 9th Dist. No. 95CA 0015 (Oct. 18, 1995)). The trial court expressed its concern that Diane fails to supervise H.M.K. who is a highly sexualized young girl who has already exhibited sexual behaviors. (Id.). The trial court found that Diane was unable to put H.M.K.‘s
{¶74} Diane argues that the trial court‘s decision was against the manifest weight of the evidence because she completed her case plan. Although Diane reluctantly completed a majority of her case plan, she failed to complete very critical case plan goals. For example, one of the case plan goals required Diane to provide H.M.K. with proper supervision at all times and to have anyone supervising the children screened by the agency. (Amended Case Plan, Doc. No. 41). The record indicates that Diane allowed H.M.K. to be around multiple men who were not previously screened by the agency, and Diane allowed H.M.K. to spend several hours at a friend‘s house where H.M.K. was not properly supervised and took a “walk” in the woods with several young boys. While H.M.K. alleged that nothing happened, it is at least questionable given her high level of curiosity with sex, her exposure to pornography, and the multiple scratches located on her
{¶75} Many of the men Diane allowed near H.M.K. either had sexually-related convictions or charges, and H.M.K. had nightmares about one of Diane‘s live-in boyfriends (Brad Russell) inappropriately touching her, which raises an implication that something may have actually occurred—something H.M.K.‘s counselor suggested and something that H.M.K.‘s older sister, Kayla, alleged. (Sept. 13, 2010 GAL Report). Diane allowed H.M.K. to be supervised by Marvin H.—a sexual offender whose offense involved a young female like H.M.K.—in violation of the trial court‘s order. The case plan specifically required Diane to keep the children away from individuals with sexual or violent offenses. In addition to being a sex offender, Marvin H. was convicted of disorderly conduct. (Oct. 18, 2011 Tr. at 96).
{¶76} Another case plan goal required Diane to remove H.M.K. from all social media websites, except one, and to ensure that H.M.K.‘s age was appropriately listed on the website. (Id.). While Diane may have followed the letter of this goal, she certainly did not fulfill its spirit, which was to protect H.M.K. while she was on social media websites. Instead, Diane allowed H.M.K. to have unmonitored Facebook usage where she was exposed to Mauck‘s
{¶77} Diane argues that the GAL recommended that H.M.K. have continued contact with Diane despite recommending that the trial court grant WCDJFS’ motion for permanent custody. While it is true that the GAL testified that H.M.K. wants and would benefit from some limited, supervised contact with
{¶78} The GAL Reports in this case strongly support the trial court‘s grant of permanent custody. In her September 13, 2010 report, the GAL indicated that Diane blamed the agency‘s involvement on her older daughter, Kayla, for failing to supervise J.B.K. while she was working. This confirmed Ratliff‘s testimony that Diane repeatedly blamed others for the problems in her family. Diane also reported that she, Kayla, H.M.K., and J.B.K. were all residing at her friend Andy Nutter‘s home since she lost her previous job. Diane reported that her other daughter, Tori (age 14), has been in the custody of her father and his new wife for two years. She reported that Michael B., H.M.K.‘s father, was recently released from prison for a domestic violence conviction (meaning he has had multiple domestic violence convictions), and he had been convicted of several sexual offenses prior to 1997. Kayla indicated that her mother‘s boyfriend, Brad Russell, who lived in the home from 2007 to April 2010, had molested and physically abused her and H.M.K. for years. The school counselor indicated that H.M.K. dresses inappropriately, and H.M.K. repeats what her mother does with men
{¶79} On October 12, 2010, the GAL reported that H.M.K. stated that she, her mother, and J.B.K. were moving in with Michael B., who has a history of criminal drug abuse, domestic violence, and sexual imposition. In the September 9, 2011 report, the GAL indicated that she investigated the home of H.M.K.‘s friend, and discovered that the friend‘s father was a registered sex offender. The GAL also reported that Diane allowed H.M.K. to invite a boyfriend to the softball picnic unbeknownst to the foster-mother. Attached to the report were multiple police reports involving Diane‘s failure to supervise J.B.K., which led to WCDJFS’ involvement, a police report about a sexual assault that occurred against Kayla, and police reports concerning multiple domestic violence incidents where Diane was a victim, including one incident where a knife was used.
{¶80} On October 17, 2012, the GAL reported that Diane continued to have a relationship with Mauck even after Ratliff indicated that WCDJFS was going to seek permanent custody of H.M.K. The GAL further reported that, in the summer of 2012, Mauck was indicted for felony assault on a paramedic after feigning a heart attack. The GAL recommended that the trial court grant WCDJFS permanent custody of H.M.K. with the goal of finding a suitable foster/adoptive placement that would facilitate visitation between H.M.K. and Diane.
{¶82} Finally, Diane argues that the trial court failed to account for the fact that WCDJFS failed to modify the case plan in order to reunify the family. As the trial court found, WCDJFS made more than reasonable efforts toward reunification in this case. The original complaints were filed in August 2010; the trial court granted WCDJFS’ permanent custody of H.M.K. in November 2012, more than two years later. In the interim, Diane was given multiple opportunities to achieve reunification, and the case plan was modified multiple times. (Doc. Nos. 42, 54, 78). Despite WCDJFS’ reasonable efforts, Diane continually made bad choices, usually involving men, which jeopardized the reunification process. Even after Diane violated the trial court‘s order that she keep the children away from sex offenders and violent persons, the agency, over the GAL‘s objection, moved the trial court to grant Diane unsupervised visitation, and the trial court,
{¶83} After reviewing the entire record herein, we hold that the trial court‘s decision to grant WCDJFS permanent custody of H.M.K. was clearly and convincingly in H.M.K.‘s best interest and not against the manifest weight of the evidence.
{¶84} Diane‘s first and second assignments of error are, therefore, overruled.
Assignment of Error No. III
The trial court‘s dispositional order of relative placement for [J.B.K.] was against the manifest weight of the evidence.
{¶86} “A juvenile court has broad discretion in the disposition of an abused, neglected, or dependent child.” In re C.W., 3d Dist. No. 16-09-26, 2010-Ohio-2157, ¶ 10, citing
{¶87} Among the trial court‘s dispositional options is granting legal custody of the minor child to a person identified in the complaint or in a motion filed prior to the dispositional hearing.
{¶88}
{¶89} Although the trial court herein did not cite which best interest factors it applied—those outlined in
{¶90} The trial court observed that WCDJFS’ initial involvement stemmed from Diane leaving H.M.K., a ten-year-old, in charge of supervising J.B.K., a four-year-old, and H.M.K. allowing J.B.K. to escape from the home. (Id.). The trial court noted that J.B.K., now six years old, is not properly potty trained, has disobedience problems, and struggles academically, which is due, in part, to Diane‘s failure to ensure J.B.K. was enrolled in Head Start, per the case plan. (Id.). Diane was unable to name the school J.B.K. attends or his teacher. (Id.). The trial court found troubling not Diane‘s decision to forgo medication to address J.B.K.‘s behavioral problems; but rather, Diane‘s failure to implement the
{¶91} Upon review of the entire record herein, we cannot conclude that the trial court abused its discretion by awarding Chris and Tara H. legal custody of J.B.K. nor was the trial court‘s decision against the manifest weight of the evidence. In addition to the testimony above with respect to H.M.K. which is relevant here, it was noted several times by case workers and foster parents, alike, the lack of supervision that Diane provided J.B.K. During several of the supervised visitation periods, Diane failed to properly supervise J.B.K. while she was busy talking or texting on her cell phone or talking to park patrons—time she should have spent visiting and supervising her children. (Oct. 24, 2012 Tr. at 136-137); (Oct. 18, 2011 Tr. at 15-16, 44-46, 53-55, 74-76); (Sept. 9, 2011 GAL
{¶92} Diane‘s arguments are meritless. As we have already mentioned, she did not complete the most important case plan goals, as she alleges. Diane‘s excuse for allowing Marvin H. visitation with J.B.K.—that she confused orders from two different cases—is not credible since she acknowledged in open court that she knew the children were not supposed to be around sexual offenders. (June
{¶93} Diane‘s third assignment of error is, therefore, overruled.
Assignment of Error No. IV
The Wyandot County Job and Family Services failed its duty to use reasonable case planning and diligent efforts at reunification.
Assignment of Error No. V
The Wyandot County Job and Family Services did not make a good faith effort to reunify the Appellant with her children.
{¶95}
{¶96} The record in this case demonstrates that the agency made reasonable efforts toward reunification. As previously highlighted, the case plans were amended multiple times to address Diane‘s issues. (Case No. C 2102010, Doc.
{¶97} Ratliff, the social worker assigned to the cases, testified that “Diane appears to put boyfriends before her children. * * * She exposed them to men who have violent history, who have been convicted of sexual offenses against children. And * * * some of her children have been sexually abused.” (Oct. 24, 2012 Tr. at 69). Ratliff further testified:
I never had to explain things so many times to one person and then just continue to ignore everything I say. I don‘t know if it‘s ignoring me or just not getting it. I think she gets it. I think that she just chooses not to listen to me. I just don‘t know. We have given her so many opportunities to get her kids back and to work towards reunification. And it‘s like every step we take forward she makes us
take five steps back because of the decisions that she makes even though everything is in place for her to get her kids back. I mean, she was doing her Case Plan and everything. She was doing what she needed to do, but then she has to go and make a poor decision of letting the children go with Marvin [H.], when it was very specific that they are not supposed to go there and she did it anyways. (Id. at 87-88).
{¶98} As Ratliff noted, no case plan modification or further counseling would have corrected the major problem in this case—Diane‘s decision to elevate her relationships with men over the well-being of her children. Despite the countless admonitions to change, Diane failed to do so, and, at some point, the children can no longer be victims of Diane‘s poor decision-making. Consequently, we cannot find that the trial court erred in determining that the agency made reasonable efforts toward reunification in this case.
{¶99} Diane‘s fourth and fifth assignments of error are, therefore, overruled.
{¶100} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr