IN RE: K.M.S., ABUSED, DEPENDENT NEGLECTED CHILD; IN RE: K.S., ABUSED, DEPENDENT NEGLECTED CHILD; IN RE: M.C., ABUSED, DEPENDENT NEGLECTED CHILD
CASE NOS. 9-15-37, 9-15-38, 9-15-39
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
January 17, 2017
2017-Ohio-142
SHAW, J.
Appeals from Marion County Common Pleas Court Juvenile Division, Trial Court Nos. 13 AB 0006, 13 AB 0007 and 13 AB 0008. Judgments Affirmed.
Robert C. Nemo for Appellant, Thomas Conkle Jr.
Todd A. Workman for Appellant, Amber Smith
Justin J. Kahle for Appellee
{¶1} This consolidated appeal concerns custody of three minor children K.M.S. (case number 13AB0006), K.S. (case number 13AB0007), and M.C. (case number 13AB0008). The appellants are the mother of the children, Amber Smith (“Amber“), and the father of M.C., Tom Conkle (“Tom“). The father of K.M.S. did not participate in the trial court proceedings despite being properly served, and the father of K.S. remains unknown.
{¶2} Amber and Tom appeal the September 14, 2015 judgments of the Marion County Court of Common Pleas, Family Division, which granted the motions for permanent custody of the children filed by Appellee, Marion County Children Services (“the Agency“), and terminated Amber‘s and Tom‘s parental
Statement of the Case
{¶3} While these appeals concern three separate cases with two separate appellants, we will discuss their procedural histories together, as they are intertwined.
Initial Agency‘s Involvement
{¶4} The Agency filed complaints in all three cases on January 10, 2013, alleging that Amber‘s children were neglected and dependent children, as defined in
{¶5} The trial court appointed a guardian ad litem (“GAL“) for the children. After a hearing, the trial court issued temporary orders by which it required Amber to abstain from the use of illegal drugs, complete drug screenings, and allow the Agency to enter the home to assess the safety and well-being of the children.
{¶6} On February 7, 2013, the Agency filed amended complaints, in which it listed Tom as the father of M.C. The first case plan was filed and approved on February 8, 2013. It listed Tom as the biological father of M.C. and a nonrelated adult of K.M.S. and K.S. The concerns expressed in the plan included Amber having difficulty dealing with K.M.S.‘s unruly behavior, failure to give K.M.S. her ADHD medicine, M.C. being born underweight and drug positive, Amber‘s and Tom‘s ongoing drug use, as well as Amber‘s mental health and history of abuse as a child. The plan included objectives for Amber and Tom to complete in order to reduce risk and address safety issues of the children.
{¶7} On February 27, 2013, Amber appeared in court for an adjudication pre-trial and agreed to stipulate to the children being dependent. (Doc. Nos. 18, 19.) Tom did not appear at the hearing. The Agency presented evidence in support of its complaint and the trial court made dependency findings as to K.M.S., K.S., and M.C. with regard to Amber based upon Amber‘s stipulation and the evidence presented by the Agency. (Id.)
{¶9} On April 29, 2013, Tom appeared before the court. The trial court advised Tom of his right to counsel during the proceeding and his right to have one appointed if he were determined to be indigent. Tom waived his right to counsel and stipulated to M.C. being a dependent child. (Doc. Nos. 25, 26.) Based upon the stipulations and the evidence presented by the Agency in support of its complaint, the trial court found M.C. to be a dependent child. The trial court issued orders allowing the children to remain in the legal custody of Amber, but with a “safety plan” in effect directing Amber not to have unsupervised contact with the children or be under the influence of drugs while with the children. Tom was to assist Amber in providing care for the children and arrange for appropriate care while he was at work. (See Doc. No. at 26, 27). The matter was set for a thirty-day review.
{¶10} On May 20, 2013, the Agency filed a motion for temporary emergency custody of the children because Amber tested positive for heroin and marijuana while caring for the children. (See Doc. No. at 27.) In support of the motion, the Agency stated that it had decided to discontinue the “safety plan” because Amber had not tested positive for heroin since the “safety plan” was initiated.2 On May 13, 2013, the caseworker went to the home to inform Amber that the “safety plan” would no longer be in effect. The caseworker was greeted by an individual at the home who informed her that Amber was not there and was living at her old apartment. The caseworker went to Amber‘s apartment, but was not able to make contact with her. The next morning, the caseworker returned to both Tom‘s home and Amber‘s apartment and was not able to make contact with Amber at her apartment until the following afternoon. At that time, the caseworker observed Amber caring for the children in her apartment with her cousin present. The caseworker administered a drug screen to Amber and she tested positive for marijuana, heroin, and Klonipin. The caseworker reported that Amber admitted to the drug use and indicated that she was in possession of illegal drugs, which she intended to sell for money.
{¶12} Initially, K.M.S. and K.S. were placed together with the same foster family, while M.C. was in another placement. Throughout the course of the proceedings, K.M.S. had five different placements because of her behavioral problems, which manifested in K.M.S. attempting to or actually hurting other children in the household, including K.S.3 K.M.S. was placed with a relative for a short period of time, but the placement was disrupted due to her behavior. The Agency explored other potential kinship placements for each of the children, but could not find a suitable relative willing to accept the placement. K.M.S. was eventually placed at a state facility, Buckeye Ranch, where she continued to exhibit behavioral problems. K.S. also displayed behavioral issues, and the Agency was
{¶13} The record discloses that throughout the first year of the Agency‘s involvement, Amber and Tom struggled to remedy their substance abuse and addiction issues. Amber initially participated in rehabilitation treatment and counseling, but failed to consistently attend appointments and eventually was unsuccessfully terminated from the programs. The Agency also offered for Amber to participate in Family Dependency Treatment Court, but Amber declined. Tom completed the initial assessment for substance abuse treatment, but failed to follow through with the treatment. Both Amber and Tom continued to test positive for heroin and marijuana on screenings.
{¶14} The record indicates that as the case proceeded Amber and Tom stopped using most illegal drugs, but they continued to use marijuana. The caseworker observed this conduct demonstrated a lack of insight into the seriousness of the situation, and a lack of commitment to be fully engaged in the recommended treatment. Amber‘s and Tom‘s attendance at counseling sessions were inconsistent, and they only started to more actively participate in their treatment toward the conclusion of the Agency‘s involvement.
{¶15} Despite their struggles with substance abuse and addiction, the caseworker‘s notes indicated that both Amber and Tom visited with the children
Motion for Permanent Custody
{¶16} On September 26, 2014, the Agency moved for modification of temporary custody to permanent commitment. As the basis for permanent custody, the Agency alleged that the children had been in its temporary custody for twelve or more months of a consecutive twenty-two-month period; the children could not be placed with either parent within a reasonable amount of time as determined by the analysis of
{¶17} On January 29, 2015, Amber filed a motion for custody, requesting that Ronald James, the children‘s maternal grandmother‘s boyfriend, be designated the legal custodian of the minor children. Amber also requested that the court interview K.M.S. Tom moved for in-camera interviews with each child.
{¶18} A hearing on the matter of permanent custody took place on April 21, July 8, and July 9, 2015. At the time of the April hearing, K.M.S. was ten years old, K.S. was nearly seven years old, and M.C. was nearly three years old. The report of GAL was filed on July 30, 2015, with a recommendation that the children should be placed in the permanent custody of the Agency. (Doc. No. at 162.) The GAL
{¶19} Amber and Tom appeal, raising the following assignments of error.
Amber‘s Assignments of Error
- The trial court erred when it granted permanent custody of the minor children to the State as it was not in the best interest of the children.
- The trial court erred when it granted permanent custody of the minor children to the State when the State failed to make reasonable efforts at reunification.
- The trial court erred when it granted permanent custody of the minor children to the State when the children could have been placed with the biological parents within a reasonable time.
- The trial court erred when it granted permanent custody of the minor children to the State when the children could have been placed with alternative caregivers and said placement would have been in the children‘s best interest.
Tom‘s Assignments of Error
- The trial court erred by finding that granting permanent custody of Appellant‘s daughter and his two step-daughters to Appellee was in the best interest of the children.
- Appellee neither made a good faith effort at achieving reunification nor used reasonable efforts to do so.
- The trial court erred in finding that the children could not be placed with their parents within a reasonable period of time or should not be placed with the parents.
The trial court committed prejudicial error by not ruling on the appropriateness of an alternative placement that would have been in the best interest of the children.
{¶20} Before addressing the particular assignments of error, we summarize the law applicable to this case.
Summary of Permanent Custody Procedure
{¶21}
Permanent Custody Test: First Prong—R.C. 2151.414(B)(1)
{¶22} The first prong of the test requires a finding by clear and convincing evidence that there exists one of the statutorily-prescribed situations of
- 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.
- The child is abandoned.
- The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
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, * * * . - The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
Permanent Custody Test: Second Prong—Best Interest of the Child
{¶23} “If the trial court determines that any provision enumerated in
{¶24} Under
- 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;
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; - 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, * * * ;
- 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;
- Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
Standard of Review
{¶25} When an appellate court reviews whether a trial court‘s permanent custody decision is against the manifest weight of the evidence, the 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 trial ordered.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App. 3d 103, 115 (9th Dist. 2001).
{¶26} In a permanent custody case, the ultimate question for a reviewing court is “whether the juvenile court‘s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 43. “Clear and convincing evidence” is: “[T]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104, (1986).
{¶27} In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368 (1985), citing Cross v. Ledford, 161 Ohio St. 469 (1954) (Once the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.). “Thus, if the children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm belief that permanent
{¶28} As an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence, upon which the fact finder could base its judgment. In re B.H., 5th Dist. Fairfield No. 14-CA-53, 2014-Ohio-5790, ¶ 79. Reviewing courts should accord deference to the trial court‘s decision because the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that cannot be conveyed to us through the written record. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 79-80 (1984).
{¶29} Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, ” ‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court should find a trial court‘s permanent custody decision against the manifest weight of the evidence only in the ” ‘exceptional case in which the evidence weighs heavily against the [decision].’ ” Id., quoting Martin at 175; accord State v. Lindsey, 87 Ohio St.3d 479, 483 (2000).
{¶31} At the outset we note that Amber and Tom raise similar arguments on appeal, therefore we elect to discuss their corresponding assignments of error together.
First and Third Assignments of Error
{¶32} In their first assignments of error, Amber and Tom challenge the second prong of the permanent custody test, alleging that the trial court erred in its best interest determination. The third assignments of error concern the first prong of the permanent custody test and allege that the children could have been placed with their parents within a reasonable period of time.
First Prong of the Permanent Custody Test—R.C. 2151.414(B)(1)
{¶33} As stated above, in order to satisfy the first prong of the permanent custody test, the trial court had to find one of the statutorily-prescribed situations of
{¶34} In their third assignments of error, Amber and Tom seem to suggest that the trial court was also required to find that the children could not be placed
{¶35} Accordingly, we conclude that the trial court was not required to find that the children could not or should not be placed with the parents within a reasonable period of time. Therefore, any errors alleged with respect to the trial court‘s failure to make such a finding or to the trial court‘s analysis of factors of
Second Prong of the Permanent Custody Test—Best Interest Test under R.C. 2151.414(D)(1)
{¶36} The following evidence was presented to the trial court relative to the best interest consideration in
{¶37} The Agency presented the testimony of the ongoing caseworker, Jackie Hamilton, who stated that she became involved with the case in February of 2013. At that time, Amber was the primary caretaker of the children. She maintained that from the beginning the Agency‘s goal was reunification. She also confirmed that the children were permitted to remain in Amber‘s custody during the first three months the case was open. Ms. Hamilton recalled that one of the case plan objectives was for Amber to complete a mental health assessment within thirty days of the court-stamped date on the case plan. In March 2013, Ms. Hamilton drove Amber to the Marion Area Counseling Center and watched the children in the waiting room so that Amber could comply with that case plan requirement. The recommendations from the assessment were for Amber to attend counseling at least once a month. She was also prescribed medication to treat her depression and anxiety issues. Ms. Hamilton recalled that in May of 2013, the Agency removed the children from Amber‘s custody because she tested positive for opiates and other drugs.
{¶38} The Agency also learned of troublesome behavior exhibited by Amber during the first year of the Agency‘s involvement. In the fall of 2013, Amber, who lived in government-assisted housing, allowed an individual named “Amigo” to live in her apartment for $50.00 a week. (July 8 & 9, 2015, trans. at 138-140). At trial, Amber explained that she did this to earn money for Christmas presents. During the
{¶39} Amber eventually completed the drug and alcohol assessment required by the case plan. Ms. Hamilton assisted Amber in enrolling in some rehabilitation programs in 2014 for opioid addiction. One such program was a clinic under the supervision of Dr. Mark Piacentini. At trial, Lisa Smith, a medical assistant with the program explained that the “recovery group” assisted people suffering from heroin addiction by conducting small group meetings and prescribing either Suboxone or Subutex to assist with the withdraw symptoms from heroin.
{¶40} In order to get a seven-day prescription for the medication, a “patient” must meet the requirements of the program, which included attending regular meetings and passing a urine test. Ms. Smith testified that Amber first came to the program in April of 2014 and continued weekly with the program until July 2014, when she was caught attempting to “cheat” on a drug test by using someone else‘s
{¶41} Ms. Hamilton, the ongoing caseworker, testified that in addition to drug addiction and substance abuse, Amber‘s struggle with depression and anxiety was another concern specifically addressed in the case plan. She recalled that Amber sporadically attended counseling sessions and eventually stopped going all together. Amber also stopped taking her medications claiming she did not feel like she needed them any longer. This point was corroborated by the testimony of Kasey Bisch, a substance abuse and mental health counselor at Marion Area Counseling Center. Ms. Bisch recalled first seeing Amber in 2014 for depression and anxiety issues. She had developed a treatment plan for Amber which consisted of recognizing triggers, relapse prevention, and anxiety management. Amber was supposed to meet with her at least once month, but was eventually “terminated” from the program later in 2014. Ms. Bisch explained that “termination” occurs when a client is inactive for ninety days. (April 21, 2015 Trans. at 68).
{¶42} Ms. Bisch recalled that Amber came back to the Marion Area Counseling Center to resume treatment in January 2015 after completing an updated assessment. Ms. Bisch outlined some of Amber‘s treatment goals which included
Evidence Regarding Tom
{¶43} With regard to Tom, Ms. Hamilton, the ongoing caseworker, testified that his drug use was the Agency‘s primary concern. She explained that in the beginning the children were removed from Amber, the primary caregiver, which is why the initial case plan only addressed her. Tom was subsequently identified as M.C.‘s father and considered to be the children‘s secondary caregiver. However, it was later discovered that Tom was also using illegal drugs—i.e., heroin and marijuana. Tom also failed to comply with the “safety plan” put in place by the Agency by permitting Amber to have unsupervised contact with the children.
{¶45} Despite the clear directives in the case plan, Tom did not complete a drug and alcohol assessment until April of 2014—over a year after the case was initiated. However, Tom did not return to the Marion Area Counseling Center until January 2015, when he met with Heidi Walter, who assisted him in devising a treatment plan. According to Ms. Walter, and the written plan signed by Tom, Tom was to meet with her one to four times a month. At the time of the hearing in April of 2015, Tom had only met with her once in March 2015. Ms. Walter observed in her report that Tom appeared highly motivated to become heroin free to gain custody of the children. However, she also noted Tom expressed hope that marijuana would be legalized soon and his intent to continue to use marijuana from time to time if the children came to live with him.
{¶46} Amber‘s and Tom‘s continued marijuana use was confirmed by drug screens which were administered throughout the case. The last drug screens were given during the permanent custody hearing in July 2015. Both Amber and Tom
Evidence Pertaining to the Children‘s Placements
{¶47} The evidence presented regarding the children‘s custodial history during the pendency of the Agency‘s involvement revealed the following.
{¶48} Amanda Fries, clinical counselor at Mid-Ohio Psychological Services, testified that she worked with K.M.S. during the case from September 2013 to February 2015. She recalled seeing K.M.S. every two weeks for an hour session and described the objective was to improve K.M.S.‘s destructive behavior at home and at school as well as to decrease her anxiety. According to Ms. Fries, K.M.S. had made progress in reducing her anxiety and in improving her interactions with others.
{¶49} Despite efforts to stabilize her destructive behavior, K.M.S. was eventually placed at a state facility, Buckeye Ranch, in March of 2015 because she
{¶50} K.S. and M.C. remained in two different foster placements. At the time of the April 21, 2015 hearing, K.S. was six years old and had been in the care of Jessie and Tammy Glen since January 2014. The Glens both testified to their strong bond with K.S. They also had a one-and-a-half-year-old child in the home
{¶51} Melissa Farnsworth, three-year-old M.C.‘s foster mother, testified that M.C. has been in her care since June of 2013, when M.C. was nine-months old. M.C. is Ms. Farnsworth‘s first foster child and lives in the home with her five-year-old son, whom she described as acting like M.C.‘s “big brother.” (April 21, 2015 Trans. at 166). She stated that M.C. is thriving and is developmentally advanced for her age. She also transported M.C. to the Agency for visitation with Amber and Tom and noted that M.C. is excited to see them. She expressed a willingness to adopt M.C. if the Agency were to be granted permanent custody of M.C.
Guardian Ad-Litem
{¶52} The GAL also provided testimony expressing concerns with Amber‘s ability to parent the children due to her mental health issues and both parents’ lack of consistent attendance at counseling and continued illegal drug use. Specifically, the GAL noted in her report that according to Amber‘s psychological and parenting
{¶53} The GAL noted Tom‘s consistent employment and appropriate housing reflected positively upon him, but concerns with Tom‘s criminal history, which included a recent attempted assault conviction and past convictions for drug-related offenses overshadowed those considerations. She was also troubled by the fact that Tom failed to follow through with the counseling recommendations and continued his marijuana use.
{¶54} With regard to K.M.S., the GAL noted that she had changed living environments six times during the case mostly because caregivers were unable to manage her behaviors, which consisted of lying, harming other children, defiant behavior and refusal to follow rules. The GAL noted that K.M.S. had similar behavioral issues in school, which resulted in a suspension for choking another
{¶55} As for K.S., the GAL noted that she also displayed behavioral issues, which resulted in her removal from her first foster home in January 2014 and placement in the Glen‘s home where she resided at the time of the permanent custody hearing. According to the GAL‘s report, K.S. was diagnosed with ADHD and had to repeat her Kindergarten school year. Specifically, K.S. was tested her first year of Kindergarten, the 2013-2014 school year, and determined to be functioning mentally and emotionally at the level of a three-year-old. However, during her second Kindergarten year, the GAL noted that K.S. showed “significant improvement and will be progressing to the next grade level.” (Id. at 8). According to the GAL, the Glens have provided K.S. with a stable environment where her needs are met and she is thriving there. They have also expressed a willingness to continue to care for K.S. and adopt her.
{¶56} The GAL testified that the youngest, M.C., had been in her current placement for over two years and by all accounts is developmentally on target and does not appear to have any lingering effects from being born premature and positive for THC (marijuana) and oxycodone. The GAL observed that Ms.
{¶57} Regarding the children‘s wishes the GAL relayed her conversations with K.M.S. in which she expressed a desire to be with Amber while acknowledging that her “mom‘s the one who got us into this mess.” (Doc. No. 135 at 8). The GAL also testified that K.M.S. wanted Amber to “do what she needs to get her back.” (August 24, 2015 trans. at 37). The GAL determined that K.S.‘s and M.C.‘s wishes were difficult to ascertain because they do not understand the situation. However, based upon her experience as the GAL for the children for over two years, the children‘s need for secure and permanent placement, and her concerns with Amber and Tom being able to appropriately parent the children, the GAL opined that it is in the best interest of the children for the trial court to grant the Agency‘s motion for permanent custody.
{¶58} After the presentation of evidence at the permanent custody hearing, the trial court discussed on the record the motions filed by Amber and Tom requesting the trial court to conduct an in-camera interview of the children. The trial court expressed concerns with conducting an in-camera interview with K.M.S. due to her ongoing emotional struggles and worried about disturbing the progress gained in her current placement and causing her to have a setback. As for M.C., the trial court concluded the three-year-old lacked sufficient maturity and reasoning ability to provide the Court with appropriate responses to assist in its consideration
Determinations of the Trial Court
{¶59} In its judgment entry granting the Agency‘s motion for permanent custody, the trial court found “by clear and convincing evidence that it is in the best interest of the children that they be committed to the permanent custody of Marion County Children Services in accordance with
{¶60} The trial court discussed the children‘s current placement at the time of the permanent custody hearing and the progress they made in overcoming developmental and behavioral obstacles while in those placements since their removal from Amber‘s home. See
{¶61} The trial court noted in its judgment entry that it interviewed K.S. and “determined that she lacks the maturity and reasoning ability to express her wishes and concerns.” (Doc. No. 165 at 5). As previously mentioned, the trial court stated on the record its reasons for deciding not to interview K.M.S. and M.C. to ascertain their wishes. However, the trial court reviewed the both the testimony and the report
{¶62} The trial court also considered the children‘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. See
{¶63} In addition to the best interest factors listed in
(1) Following the placement of the child outside 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 parent has 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.
(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code;
{¶64} On appeal, Amber and Tom attempt to oversimplify the record by arguing that the trial court‘s decision to grant the Agency‘s motion for permanent custody was solely based upon their continued marijuana use. However, this argument ignores the extensive evidence present in the record and discussed at length in this opinion of Amber‘s and Tom‘s failure to utilize the resources provided to them by the Agency and their decision to prioritize their use of illegal drugs over the best interest of the children, which was the primary cause of the children‘s removal from their home. Amber and Tom both assert that the caseworker approved of their marijuana use and appear to claim that they are now being unfairly punished for it.
{¶65} To the contrary, the record demonstrates the ongoing caseworker attempted to reduce the initial pressure on Amber and Tom, both self-admitted drug addicts, to cease the use of all illegal substances at once and instead allowed them to focus on stopping one drug at a time, with heroin being the obvious greater addiction concern. Even giving Amber and Tom the benefit of the doubt that they misunderstood the Agency‘s position on their marijuana use, the testimony at the
{¶66} A review of the record shows that there is competent and credible evidence regarding each of the factors set forth in
{¶67} In their second assignments of error, Amber and Tom argue that the Agency did not make a good faith effort or use reasonable efforts to reunify them with the children. The
{¶68} To that end, case plans establish individualized concerns and goals, along with the steps that the parties and the agency can take to achieve reunification. In re Evans at * 3. Agencies have an affirmative duty to diligently pursue efforts to achieve the goals in the case plan. Id. “Nevertheless, the issue is not whether there was anything more that [the agency] could have done, but whether the [agency‘s] case planning and efforts were reasonable and diligent under the circumstances of this case.” In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶ 10. We also note that the statute provides that in determining whether reasonable efforts were made, the child‘s health and safety is paramount. See
{¶70} The record is replete with instances in which the Agency‘s caseworker, Ms. Hamilton, personally attempted to help Amber meet the case plan objectives, in addition to making the appropriate referral to the treatment and counseling facilities. For example, one of the very first court-ordered requirements was for Amber to have a mental health assessment done within thirty days. Ms. Hamilton drove Amber, who at the was the primary caretaker of the children, to the counseling center and watched the children so that Amber could get the assessment completed.8
{¶72} Ms. Hamilton also drove Amber to several appointments at the two rehabilitation programs to help Amber recover from her heroin addiction. Amber was also offered to participate in the Family Court Dependency Treatment Program, which Amber declined to do. On one occasion after she left work and was on her way home, Ms. Hamilton observed Amber walking home from one of her visitations with the children at the Agency. Ms. Hamilton stopped and offered Amber a ride home, which Amber accepted.
{¶73} Ms. Hamilton also testified that the Agency made arrangements for Amber and Tom to have visitation with the children one to two times a week. The
{¶74} The record in this case demonstrates that the Agency used reasonable case planning efforts to assist Amber and Tom in achieving the goal of reunification with the children. Accordingly, we find that the Agency‘s case planning and efforts were reasonable and diligent under the circumstances of this case. Amber‘s and Tom‘s second assignments of error are overruled.
Fourth Assignments of Error
{¶75} In their fourth assignments of error, Amber and Tom claim the trial court erred when it failed to rule on Amber‘s motion requesting the trial court designate Ronald James as the legal custodian of the children as an alternative placement to permanent custody. Amber filed this motion four months after the Agency filed for permanent custody of the children.
{¶77} Moreover, there is no requirement that a trial court find by clear and convincing evidence that a relative is an unsuitable placement option prior to granting permanent custody to an agency. In re Dylan B., 5th Dist. Stark No. 2007-CA-00362, 2008-Ohio-2283, ¶ 67, citing In re Shaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, at ¶ 64 In re S.E., 12th Dist. Clermont No. CA2008-05-045, 2008-Ohio-5300, ¶ 26, citing In re Lewis, 4th Dist. Athens No. 01CA20, 2001-Ohio-2618, *9 (Nov. 7, 2001). Indeed, the statutory duty imposed by
{¶78} Here, the record reflects that Ronald James is the paramour of Amber‘s mother. The Agency‘s caseworker arranged to visit Mr. James’ home to
{¶79} The GAL experienced similar trouble arranging a visit of Mr. James’ home. The day before the first permanent custody hearing, Mr. James contacted her to reschedule the visit. The GAL completed the home visit on May 22, 2015 and concluded that the home was not ready to have three young children live there. She expressed concerns over where the children would sleep. Mr. James’ home had previously been a duplex and the upstairs bedrooms where the children were to stay did not have access from the interior of the home. Rather, in order to access the upstairs level, it was necessary to use an outdoor stairway and enter another door, which did not have a door knob, but just a deadbolt lock and a handle. The GAL did not observe any beds for the children and noticed obscenities written on the walls of the bedrooms. At the July permanent custody hearing, Mr. James had yet to remedy these issues to make the home habitable and safe for the children.
{¶80} Moreover, Mr. James acknowledged that he was not familiar with K.M.S.‘s specific behavioral issues or the precise reasons for her treatment at Buckeye Ranch. The GAL worried that Mr. James may become overwhelmed with the three children and their corresponding issues. The GAL also noted that another person living in Mr. James’ home, Amber‘s mother, had a criminal history including convictions for theft, possession of cocaine, and misuse of credit cards. The GAL
{¶81} For all these reasons, the assignments of error are overruled and the judgments are affirmed.
Judgments Affirmed
PRESTON, J. concurs.
WILLAMOWSKI, J. DISSENTS
{¶82} I dissent from the majority opinion and would remand the matter to the trial court for further findings. In order to terminate parental rights, the trial court is required to find 1) the child cannot or should not be placed with either parent within a reasonable time; 2) the child is abandoned; 3) the child is orphaned without relatives who can take permanent custody; 4) the child has been in the temporary custody of the agency for at least 12 of a consecutive 22 month period; or 5) the parent(s) have already lost custody of another child on three separate occasions.
[I]t is not the prerogative of the appellate court to “review the factual record or narrative and then make the necessary inferences to determine whether the trial court must have considered each of the required statutory factors.” Instead, the
judgment entry must identify the clear and convincing evidence that supports a finding that each factor was considered.
In re H.M., supra at ¶ 28 quoting In re D.H., supra at ¶ 20. The function of this court is not to determine whether the trial court could possibly have made the required findings based upon the record; it is the job of the trial court to make factual findings. Our task is to make sure that the trial court made the findings as required by law.
{¶84} Here, there is no dispute that the children had been in the permanent custody of the agency for more than 12 months in a consecutive 22 month period. Once that finding was made, the trial court was required to consider the statutory factors set forth in
{¶85} For example, factor (a) requires the trial court to analyze the interaction and interrelationship of the child and the parents, siblings, and others. The only discussion involved a statement that there was a bond between the children and the parents. Doc. 165 at 5-6. No analysis was provided regarding how the children interacted with siblings or other care-givers. Factor (b) requires the trial court to address the wishes of the children. While the trial court mentioned that one child was unable to express her wishes, it did not address the other two children, one of which was older. The trial court also did not address the wishes of the eldest daughter who indicated through the GAL that she wished to remain with her mother.
{¶86} Since the trial court did not specifically address all the statutory factors, did not make findings relevant to the factors, and did not cite the factors in making its best-interest conclusion, it did not comply with the statutory requirements. This court should not be combing through the record to find facts which might support findings if the trial court had made them that will then support the trial court‘s conclusions. The trial court should be the party to determine the
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