IN RE: M.H. K.H. ADJUDICATED DEPENDENT CHILDREN.
Case No. 17CA882
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY
Released: 08/10/17
[Cite as In re M.H., 2017-Ohio-7365.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Matthew P. Brady, Chillicothe, Ohio, for Appellant M.K.
Chase B. Bunstine, Chillicothe, Ohio, for Appellant R.H.
Rob Junk, Pike County Prosecuting Attorney, and Elisabeth M. Howard, Pike County Assistant Prosecuting Attorney, Waverly, Ohio, for Appellee.
McFarland, J.
{¶1} Appellants M.K. and R.H. appeal the trial court‘s judgment that awarded Appellee, Pike County Children‘s Services Board, permanent custody of their two biological children: five-year-old M.H.; and two-year-old K.H. The parents essentially argue that the trial court‘s decision to award Appellee permanent custody of the children is against the manifest weight of the evidence. More specifically, the mother asserts that clear and convincing evidence fails to support the trial court‘s findings that the children cannot be placed with either parent within a reasonable time or should not be placed with either parent and that permanent custody is in the
{¶2} Clear and convincing evidence supports the trial court‘s decision to grant Appellee permanent custody of the children. The evidence shows that the parents’ intellectual disabilities are so severe that they prevent them from providing an adequate permanent home for the children now and in the future. Therefore, under
{¶3} Additionally, placing the children in Appellee‘s permanent custody is in their best interest. Although the children share a strong bond with their parents, the children‘s foster family provides them with the interactions and interrelationships necessary for their health, safety, and welfare. The children are too young to directly express their wishes, but the guardian ad litem recommended that the trial court place the children in Appellee‘s permanent custody. At the time Appellee filed its permanent custody motion, the children had been in Appellee‘s continuous temporary custody for approximately nine months, and as of the date of the final permanent custody hearing, the children had been in Appellee‘s continuous
{¶4} The father also argues that the trial court erred by granting Appellee permanent custody when Appellee failed to show that it used reasonable efforts to reunify the family. Because the trial court entered reasonable efforts findings before Appellee filed its permanent custody motion, the trial court was not required to address reasonable efforts during the permanent custody proceeding.
{¶5} Accordingly, we overrule all of the parents’ assignments of error and affirm the trial court‘s judgment.
I. FACTS
A. Background
{¶6} Appellee first became involved with the parents three months after M.H.‘s birth. In 2012, Appellee removed then-three-month-old M.H.
{¶7} Over the course of the next year, the parents engaged in parenting classes, received in-home parent mentoring, and underwent psychological evaluations. The psychological evaluations indicated that both parents evidence cognitive delays, with intelligence quotients that place them in the extremely low range of intelligence. After approximately one year, appellee returned M.H. to the parents.
{¶8} In August 2015, Appellee received a report that the parents, M.H., and eleven-month-old K.H. were living on the property of the maternal grandmother “in a tent next to chicken coop.” When Appellee investigated, the caseworker found that the parents had “rigged electric cords throughout the tent.” Additionally, M.H. had “severe head lice,” both children were filthy, M.H. was not wearing pants, and K.H. had “a large boil on her bottom.” Appellee sought and obtained temporary emergency custody of the children.
{¶9} Shortly thereafter, Appellee filed a complaint alleging that the children are neglected and dependent. Appellee requested the court to grant it temporary custody of the children.
{¶11} Appellee developed a case plan for the family. The case plan required the parents (1) to complete parenting classes to assist them with developing solid parenting and coping skills, (2) to complete psychological and cognitive evaluations and to comply with any treatment recommendations, (3) to use the skills they acquired during parenting classes, and (4) to find and maintain appropriate housing.
{¶12} At a February 2016 review hearing, the court found that the parents completed psychological evaluations, obtained new housing, took parenting classes, and consistently visited the children.
{¶13} A May 2016 case review indicated that the parents had maintained a stable home for several months, completed psychological evaluations, completed parenting classes, and chose to continue individual and group sessions at Pike County Recovery Council. Appellee nevertheless expressed continued concerns regarding the parents’ mental capacities, their abilities to learn new parenting skills, and their abilities to properly care for
B. Permanent Custody Proceedings
{¶14} On June 28, 2016, Appellee filed a motion to modify the disposition to permanent custody. Appellee alleged that the children cannot be returned to either parent within a reasonable time or should not be placed with either parent and that awarding Appellee permanent custody is in the children‘s best interests. On that same date, Appellee filed an amended case plan. The case plan indicated that the children “have thrived in the foster home,” that they are “attached” to the foster parents, and that the foster parents asked about adopting the children if the court grants Appellee permanent custody.
1. Permanent Custody Hearing
{¶17} When Dr. Rippeth evaluated the parents in 2016, she found that their cognitive abilities had not changed and that they presented with similar patterns of behavior. She asked both parents the normal temperature range for a child, but neither correctly identified it.
{¶18} Dr. Rippeth indicated that neither parent responded well to the in-home parent mentoring service and parenting classes provided during the 2012 children services proceeding and that their cognitive delays likely inhibited any progress. She stated that even after the parents received in-home parent mentoring and completed parenting classes, neither has been
{¶19} Dr. Rippeth stated that because “cognitive ability changes little after one reaches adulthood, [the parents] will continue to struggle to implement the necessary parental skills and apply basic knowledge to parenting tasks necessary to meet the needs of [their] young children.” She reported that outpatient counseling will not improve the parents’ intellectual functioning, but both may “benefit from treatment aimed at teaching [them] a wide variety of positive coping skills.” Dr. Rippeth also indicated that the father may benefit from treatment aimed at “improving prosocial behaviors” and that the mother may benefit from treatment aimed at “increasing her independence skills” and “improving her social skills.” However, she cautioned that “[s]ignificant improvements are not likely to be seen with ongoing treatment.” Instead, “ongoing treatment may allow [the parents] to maintain [their] current level of functioning.
{¶20} Dr. Rippeth stated that the father‘s prognosis “to serve effectively in a primary parental role with his young children is limited” and that the mother‘s prognosis is “poor.” She reported that “[e]ven if [the
{¶21} During her testimony, Dr. Rippeth indicated that as long as the parents have ongoing assistance, they could meet the basic health and safety needs of the children. She explained that “ongoing assistance” means that the parents would need “daily helpers” in the home, “[d]aily reminders or visual cues of actions to take in certain events,” and “[o]ngoing counseling to improve [the] level of independent functioning.” Dr. Rippeth stated that an example of a “daily reminder” might be “a written reminder of * * * what if my child does have a temperature, what number do I look for? How do I respond if that‘s the number?” She related that the parents would need to have a person in their home on a daily basis for “a significant period of time.”
{¶22} Dr. Rippeth also testified that the parents would need ongoing counseling, which she explained as “mental health counseling to continue to try to further improve their independent functioning. So their ability to maintain the household. Their ability to manage finances. Their ability to maintain personal hygiene and parental tasks involved on a daily basis.”
{¶24} Ms. Leasure related that appellee next encountered the family in August 2015. She testified that at the time, the parents, M.H., and eleven-month-old K.H. were living in a tent surrounded by a chicken coop. She stated that “the children were filthy head to toe” and had “a pretty significant lice infestation.” Ms. Leasure reported that “the caseworker actually spent at least an hour trying to comb through the lice and was still not able to even make a dent.” She additionally explained that K.H. “had a large boil-like cyst on her bottom and there was food [sic] in her diaper.” Ms. Leasure further related that K.H. “was severely * * * developmentally delayed.” Ms. Leasure stated that at the time of the August 2015 removal, K.H. was eleven months old and she “could not sit up on her own for a long period of time,”
{¶25} She explained that Appellee prepared a case plan for the family, and the case plan required the parents to maintain housing, complete parenting classes, receive a mental health evaluation, and visit the children regularly. Ms. Leasure stated that the parents have complied with the case plan. She reported that the parents obtained appropriate housing, completed parenting classes, obtained psychological evaluations, and regularly visited the children. Ms. Leasure additionally related that she did not notice any issues regarding the parents’ care of the children during the supervised visits at the agency or during the four-hour home visits that M.K.‘s sister, M.L., supervised. She further testified that the parents seem to share a strong bond with the children.
{¶26} Ms. Leasure stated that Appellee requested permanent custody of the two children due to “a concern that [the parents] would not be able to maintain the children in their care by themselves long term.” Ms. Leasure believes that the parents “would do okay in a short-term situation, but * * * the pattern and their history with Children‘s Services is when they have a life-changing decision to make such as moving or, or something of that nature, [o]ftentimes the decision is not the correct one and the children are
{¶27} Ms. Leasure stated that the children “have made remarkable changes” since their removal from the parents. She testified that after Appellee removed the children, M.H. “had a very hard time adjusting * * *. Um, she had some hoarding going on. She actually would take food from the foster parents’ pantry and hide them under her pillow and state that she needed to save them for her daddy.” Ms. Leasure related that M.H. no longer hoards in her foster care placement and further reported that “within a few weeks they both gained a lot of weight,” and K.H. “was able to crawl across the floor.” Ms. Leasure indicated that K.H. now “seems to be normal functioning.” She further related that M.H.‘s preschool teacher reported that M.H. “is most likely cognitively delayed” and will “most likely require special needs throughout school.” She also stated that M.H. has progressed in her speech and socially. Ms. Leasure explained: “She‘s a social butterfly.”
{¶28} She testified that the two children are placed in the same foster home and are bonded to one another. She stated that Appellee would try to
{¶29} Ms. Leasure explained that Appellee investigated placing the children with M.L., their maternal aunt, and completed a home study. She stated that on June 23, 2016, Appellee notified M.L. of the home improvements she needed to make before Appellee would approve her home for placement. For instance, Appellee requested M.L. to repair or install a new stove, repair or install new smoke alarms, and obtain a fire extinguisher. Appellee also advised M.L. that she needed to (1) clean up and prepare the spare bedroom for the children, (2) remove an old, unsafe tree house and tire swing, (3) place tools and equipment in an area that is inaccessible to children, (4) make appropriate child care arrangements during M.L.‘s work hours, and (5) obtain a mental health assessment. Appellee further requested M.L.‘s roommate to complete a background check. Ms. Leasure testified that Appellee also advised M.L. that M.L.‘s and M.K.‘s mother (E.K.), who had a long history with children services, could not live in M.L.‘s home and asked M.L. to remove E.K.‘s belongings from the home.
{¶30} And, Ms. Leasure stated that in addition to the foregoing, Appellee had concerns regarding M.L.‘s ability to protect the children. She
{¶31} Following a three-month recess, Caseworker Julie Lundy testified that she completed M.L.‘s home study and compiled a list of improvements M.L. needed to make before Appellee could approve her home for placement. Ms. Lundy explained that she initially had concerns regarding the safety of M.L.‘s home. She stated that M.L. used a hot plate instead of functioning stove, M.L. did not have a fire extinguisher, and the smoke alarms did not work. Ms. Lundy further related that M.L. did not have a room prepared for the children and that the outdoor area had several safety hazards, including old play equipment, lawnmowers, and “random tanks.” She also stated that M.L. did not have childcare arranged for the times when M.L. would be working.
{¶32} Ms. Lundy explained that the day before she testified, she followed up with M.L. She stated that M.L. still was using a hot plate, but she had obtained a fire extinguisher and fixed the smoke alarms. Additionally, M.L. had set up two beds for the children. She testified that one bed was located in the middle of the living room and did not have any safety rails. The second bed was located in a bedroom “and it‘s extremely high for a child * * * and there are no safety rails.” Ms. Lundy further stated
{¶33} Ms. Lundy indicated that she had concerns about placing the children with M.L., because M.L. does not have many people who could provide support, she does not have childcare experience, and she has not had a visit alone with the children. She explained that she “asked [M.L.] over and over again to try to explain her bond with the children and she was unable to verbalize that she loves the children, that she cared for the children.”
{¶34} And, Ms. Lundy explained that Appellee continued to have concerns regarding whether M.L. would permit M.L.‘s mother (E.K.) to reside in the home. She testified that she had been E.K.‘s caseworker for over seven years, and E.K. “had substantiated neglect issues and * * * extreme hoarding issues.”
{¶35} Following Ms. Lundy‘s testimony, Appellee re-called Ms. Leasure. She stated that during the three-month recess, she had approximately six interactions with M.L. Ms. Leasure explained that she continued to remind M.L. of the home improvements she needed to make in order for Appellee to approve her home for placement. She testified that the previous Monday, M.L. finally called to schedule a mental health evaluation.
{¶36} Ms. Leasure additionally explained an incident that occurred during the three-month recess. On October 26, 2016, the parents had a home visit with the children that M.L. supervised. When the parents returned the children to the agency at the end of the visit, Ms. Leasure learned that K.H. “was not acting right.” She found the child unresponsive, with her eyes “rolled in the back of her head.” She shook her leg and called her name, but K.H. did not respond. The foster parents took K.H. to the emergency room. K.H. was later transported to Nationwide Children‘s Hospital in Columbus and admitted to the intensive care unit.
{¶37} Next, Ms. Leasure asked the parents what happened to K.H., and the mother stated that K.H. “just laid around and did not want to play with anybody and was sleepy” during the visit. The mother explained that the parents took K.H.‘s temperature and it registered at 103 degrees. The mother stated that the parents gave K.H. “a little teaspoon” of “baby Tylenol.” The mother claimed that after they gave K.H. the medicine, “she turned right around, was running around and was fine.” She asked the mother at what point K.H. became tired and unresponsive. The mother
{¶38} Then, Ms. Leasure later informed the parents that the hospital reported that K.H. tested positive for Sudafed. The mother stated that she had not given K.H. Sudafed. She asked the mother what the thermometer read when she took K.H.‘s temperature, and the mother responded, “one point zero, zero, zero point zero, zero.” She became concerned that the mother may not know how to read a thermometer and she further questioned the parents about their October 26th visit. The mother stated that on the way to the agency on the date of the incident, the parents detected that K.H. was hot, so they stopped and bought Motrin. She noted that this statement contradicted the mother‘s earlier statement. She additionally indicated that the parents presented a receipt for the medication that they gave K.H., and the receipt shows that they purchased the medication at 1:45 pm, which would have been at the beginning of their visit, and not at the end.
{¶39} Ms. Leasure stated that she examined the parents’ home to look for Sudafed or any medication containing the active ingredient in Sudafed, but she did not find any. As she was leaving, the mother informed Ms. Leasure that the mother had received a prescription for a cold. Ms. Leasure learned that the active ingredient in the prescription was
{¶40} The parents presented testimony from Recovery Council Supervisor Cynthia Brushart. Ms. Brushart testified that the parents have been attending Recovery Council for over one year. She stated that the parents have “done everything we‘ve asked them to do;” they have completed parenting courses (which included CPR and first aid training), as well as alcohol and drug classes. Ms. Brushart indicated that the parents appear to enjoy the social aspects and have continued to attend parenting classes. Ms. Brushart explained that even though the parents attend regularly, she could not attest whether the parents have learned proper parenting techniques. She related that she has not observed the parents with the children.
{¶41} Next, M.L. testified on the parents’ behalf. She explained that she is willing and able to take custody of the children, if the court decides that the children should not be placed with their parents. M.L. stated that she has remedied the problems Appellee identified in her home study. M.L. explained that her smoke alarms work and that she obtained a fire
{¶42} M.L. stated that she has worked at Dairy Queen for approximately nine years. She explained that she works both day and night shifts, but if she had custody of the children, she could try to change her schedule in order to provide proper care for the children. M.L. indicated that she contacted Community Action to discuss childcare during her working hours, but she learned that she would be unable to receive assistance unless the children were in her custody.
{¶43} M.L. explained her “bond” with the children: “[W]hen [K.H.] was little,” she “would hold my hand and try to walk.” She stated that K.H. “always put her hands out wanting me to hold her.” M.H. “would run at [her] and call [her] Aunt Snacky.” M.L. explained that she “would kind of have like little candy cakes or something like that in [her] purse [that M.H.] always wanted.” M.L. stated that sometimes she surprised M.H. “with a
{¶44} M.L. stated that the parents love their children and that during the time she supervised their visits, the parents engaged appropriately with the children. M.L. did not observe anything concerning.
{¶45} M.L. described what a typical day would be like, if the children lived with her. She would “get up, get dressed, have breakfast, [and] see what the weather is outside. If it is cold, if it is hot. If it is cold, then limit them to the outside so they won‘t get any sickness [sic]. Um, see what kind of activities I have at the house. Uh, I got some education shows I can show them. From kid shows and stuff like that. Uh, don‘t have any hard toys or rolly [sic] toys. I just have stuffed bears.” M.L. stated that she does not “know much” about M.H.‘s learning disabilities, but she has “some learning books and go through with her [sic].”
{¶46} M.L. stated that she “had no idea,” at the time of the allegations, that her now-deceased boyfriend possibly sexually abused M.K. M.L. explained that M.K. “never told [her] anything,” and that her boyfriend denied the allegations. M.L. stated that when she learned of the allegations, she did not break up with him.
{¶48} M.L. explained the October 26, 2016 incident as follows. K.H. touched the mother‘s hand, and K.H. “was burning up.” M.L. drove to the store and the mother purchased children‘s ibuprofen. When they arrived at home, they took K.H.‘s temperature. M.L. did not recall what the thermometer read, because “it was Celsius.” M.L. stated that they went to the neighbors who informed M.L. and the mother that the child had a fever.
{¶49} M.L. testified that before administering the ibuprofen to K.H., M.L. and the mother looked at the medication box to ascertain the correct dosage. M.L. poured the medicine into the cup and handed the cup to the father. The father gave K.H. the medicine, but K.H. spit it out. M.L. stated
{¶50} M.L. drove the parents and the children back to the agency at the end of the visit. Two blocks before they arrived at the agency, K.H. fell asleep. M.L. did not notice anything concerning, except that K.H. appeared sick and tired. M.L. does not know how the child would have obtained Sudafed.
{¶51} When they returned to the agency, M.L. informed the foster mother that K.H. had a fever and that she is sick, so they had given K.H. “Tylenol.”
{¶52} The mother testified that she and the father currently live in a three-bedroom townhouse. She stated that (1) they have maintained the same home since January 2016, (2) appellee has not identified any concerns with their present home, (3) she completed a psychological evaluation, (4) she took parenting classes, and (5) she did “everything [appellee] asked for.” The mother related that she loves her children and has “great” interaction with them. She believes that she can care for the children and that when she needs help, she can ask M.L. or a family friend.
{¶54} The mother stated that if the court does not return the children to her and the father, then she would like the children to be placed with M.L. She related that M.L. “loves” the children, that they are “just like two peas in a pod,” and that they are “happy” and “outgoing.” She later indicated that the children have never been to M.L.‘s house.
{¶55} The mother explained the October 26 incident as follows. When she picked up the children, she noticed that K.H.‘s “little hand was on fire.” The mother touched K.H.‘s leg and discovered “the same thing.” She asked M.L. to drive to the store. The mother asked a store employee for help choosing the right medicine and purchased children‘s ibuprofen.
{¶56} When they arrived home, M.L. took K.H. to the father. K.H. did not want to do anything. The mother looked at the box of medicine and handed it to M.L. M.L. measured it, and the mother handed the medicine to
{¶57} The mother testified that after this incident, she was prescribed medication containing pseudoephedrine—the active ingredient in Sudafed. The mother stated that she did not have this medication on October 26 and had not been prescribed it before November 3.
{¶58} On cross-examination, the mother admitted that she was involved with the agency when M.H. was around three months old. The mother recognized that the agency claimed that the parents neglected M.H., but the mother believed that “W.I.C. stuck [M.H.] on the wrong formula.” The mother stated that she and the father worked with the agency for approximately one year. She took parenting classes, and Help Me Grow
{¶59} The mother denied that the family was living in a tent when the agency removed the children in August 2015. Instead, she claimed that the family was living on “Waldren Hill.” The mother stated that she complied with the case plan. She indicated that she knows how to keep the children away from “harmful things.” She stated that she was not taught to keep harmful things out of the children‘s reach the first time she took parenting classes, when M.H. was removed.
{¶60} When questioned whether M.L.‘s now-deceased boyfriend sexually abused her, the mother responded affirmatively, but stated that he was not able to “hurt” her. The mother testified that she is not concerned whether M.L. would protect the children from “something like that.” The mother explained that she “never did bring [the abuse] to [M.L.‘s] attention [so] it‘s not [M.L.‘s] fault.” The mother stated that M.L. knew about the allegations, but M.L. did not “know my side because I always hid.” She indicated that she hid because she did not want anyone “to know.”
{¶61} When asked what the thermometer read on October 26, the mother responded that she did not remember, but she thinks it stated “one zero three.” The mother explained that she showed the thermometer to
{¶62} The father testified that he does not completely understand why the children were removed in August 2015. He explained that he has complied with the case plan. He stated that he and the mother have maintained their current home for the past year; he completed parenting classes; he obtained a psychological evaluation; and he regularly visited the children. The father related that he interacts with the children during the visits and that M.H. “cries and stuff” when it is time to leave.
{¶63} The father indicated that he has four other children from prior relationships who range in age from eighteen to twenty-four. One is a teacher, one is in a Christian academy and preparing to be a nun, one is a “gamer,” and one works as an emergency medical technician. The father stated that he has good relationships with these children.
{¶64} The father testified that he has an adequate support system in place that would enable him to provide proper care for the children. He believes he would find help if the children needed to go to the doctor. He additionally related that he could call upon his daughter who is a teacher to help with any learning disabilities the children might display.
{¶66} The father explained his version of the October 26 incident as follows. M.L. brought K.H. into the house and placed her on his lap. K.H. “burnt” him. He stated that they needed “to take her tests” and he retrieved a thermometer. Her temperature was “a hundred point two.” M.L. poured some medicine and handed it to him. He gave K.H. a taste and she spit it out. Afterwards, K.H. “laid around for a little bit.” Later, she got up, went outside, and “just laid there and kept closing her eyes.” He held her for a “long time.” K.H. fell asleep on the drive to the agency and woke up when he removed her from the car. She “opened her eyes and looked at me and closed her eyes and went back to sleep.” He did not give K.H. any other medicine that day and he did not see anyone else give her medicine.
{¶67} On cross-examination, the father denied that he took parenting classes in 2012, when M.H. was removed. He agreed that he obtained a psychological evaluation, but then later stated that he did not “even know who [Dr. Rippeth] is.” The father related that he does not believe that he cooperated with the psychological evaluation, because he did not “understand what she was trying to do” and he “was sick at the time.” He
2. Trial Court‘s Decision
{¶68} On January 17, 2017, the trial court granted Appellee permanent custody of M.H. and K.H. The court determined that that the children cannot be returned to either parent within a reasonable time or should not be returned to either parent and that placing the children in Appellee‘s permanent custody is in their best interest.
{¶69} In concluding that the children cannot be returned to either parent within a reasonable time or should not be returned to either parent, the court found that the “parents are unable to care for the minor children.” The court stated that the parents’ “intellectual disabilities are so severe that it makes them unable to provide consistent and adequate care for the children now and in the future.” The court noted that the parents had prior involvement with children services in 2012 with respect to M.H.‘s failure to gain weight. The court found that despite the extensive services provided throughout the 2012 case, the parents failed to perceive the danger that their 2015 living conditions posed to M.H., a toddler, and K.H., an infant. The court explained:
“The crux of this case is the parents’ extremely low intelligence level and the effect that has on their ability to provide a safe and appropriate home for their girls. [Appellee] provided undisputed, uncontested expert testimony that [the] parents, due to their extremely low intellectual functioning, are unable to care for their children and that there isn‘t any chance their parenting skills will improve in the future.”
{¶70} The court also noted that Dr. Rippeth‘s updated psychological evaluations indicated that the probability of the parents safely caring for the children was low. In her January 20, 2016 evaluation, Dr. Rippeth stated that “cognitively [the mother] is not likely to be able to engage in appropriate decision making regarding parental activities; further stating, ‘Even following the participation and completion of parenting classes and in-home parent mentoring services, [the mother] has been unable to consistently provide a stable living environment for her children.’ ” Dr. Rippeth‘s 2012 evaluation concerning the father states that “it doesn‘t appear that [the father] has the critical thinking skills and problem solving skills to respond to various parental concerns and therefore, is likely to have difficulty meeting his child‘s daily living needs.” The father “is likely to easily forget concepts learned and have difficulty identifying situations that concepts apply to.” The court stated: “Unfortunately, it doesn‘t matter how many parenting classes [the father] takes, he is likely unable to apply those skills to daily parenting of M.H. and K.H. [The f]ather‘s testimony on
{¶71} The court also observed that Dr. Rippeth testified that neither parent could tell her the normal temperature range for a child. The mother could not identify the difference between a mild fever requiring medication and a severe fever requiring immediate medical attention. Dr. Rippeth testified that the parents’ inability to competently take their children‘s temperature is indicative of how their low intelligence directly affects their ability to care for the children.
{¶72} The court found that the parents displayed Dr. Rippeth‘s prediction on October 26, 2016, when the parents thought that K.H. was burning up with a fever after touching her skin while the child was wearing her coat. The court noted that the testimony was unclear as to what the child‘s actual temperature was when the parents administered the medicine and that the parents reported the child‘s temperature “anywhere from 100.2 to 103.2 to 10.3 [sic] and 1.000.00 [sic].” The maternal aunt seemed to think the thermometer gave a Celsius temperature. The court determined that “[i]t was clear from the parties’ testimony that they were very confused over the very simple parenting function of taking their child‘s temperature.” The court noted that the end-result was that the child ended up in the hospital and
{¶73} The court did not question the parents’ love for the children. The court noted that the parents completed all requirements of the case plan and have visited with the children “religiously.” However, the court determined that “the safety and best interest of the minor children are paramount.”
{¶74} The court also considered the best interest factors. With respect to the children‘s interactions and interrelationships, the court found that the children are very bonded to each other, to the foster family, and to their parents, but that the children have had limited contact with their maternal aunt and do not share a bond with her. Regarding the children‘s wishes, the court determined that the children are too young to directly express their wishes but recognized that the guardian ad litem recommended that the court award Appellee permanent custody.
{¶75} The court next reviewed the children‘s custodial history. The court noted that the children initially were removed from the home on
{¶76} The court also considered the children‘s need for a legally secure permanent placement and whether they could achieve that type of placement without awarding Appellee permanent custody. The court determined that the parents cannot provide the children with a legally secure permanent placement. The court explained:
“After extensive parenting classes, case management services and agency support, [the parents] are not able to care for the minor children long term. Based upon the testimony and report of Dr. Rippeth, parents do not have the cognitive capabilities to care for the children on a long term basis, and cannot develop the skills necessary to do so.”
{¶77} The court additionally determined that the maternal aunt cannot provide the children with a legally secure permanent placement. The court noted that Ms. Lundy testified M.L.‘s home is not appropriate for the children. The court also observed that M.L. had six months to prepare her home for placement and to complete a mental health assessment, but she did not schedule the mental health assessment until the week before the final permanent custody hearing. The court further pointed to the following circumstances to support its determination that M.L. cannot provide the
{¶78} The court thus concluded that the children cannot and should not be returned to their parents within a reasonable time and that placing the children in Appellee‘s permanent custody is in their best interest. Therefore, the court granted Appellee permanent custody of the two children.
II. ASSIGNMENTS OF ERROR
{¶79} M.K. raises two assignments of error:
- The trial court committed reversible error in finding by clear and convincing evidence that the children cannot be placed with either of the children‘s parents within a reasonable time or should not be placed with the children‘s parents when such a finding was against the manifest weight of the evidence.
The trial court committed reversible error in finding that permanent custody was in the best interests of the minor children when such a finding was against the manifest weight of the evidence.
{¶80} The father raises two assignments of error:
- The trial court erred in terminating appellant‘s parental rights as Children Services did not make reasonable efforts to permit the children to return home.
- The trial court erred in terminating appellant‘s parental rights as placement with a relative could have been achieved without a grant of permanent custody to Children Services[.]
III. ANALYSIS
{¶81} In their assignments of error, the parents essentially argue that the trial court‘s decision to award Appellee permanent custody of the children is against the manifest weight of the evidence.
{¶82} In her first assignment of error, the mother asserts that clear and convincing evidence fails to support the trial court‘s finding that the children cannot be placed with either parent within a reasonable time or should not be placed with either parent. In her second assignment of error, the mother argues that the evidence fails to support the trial court‘s finding that permanent custody is in the children‘s best interest.
{¶83} In his first assignment of error, appellant argues that Appellee failed to use reasonable efforts to reunify the family and, thus, that the trial court erred by granting Appellee permanent custody. In his second
A. STANDARD OF REVIEW
{¶84} A reviewing court generally will not disturb a trial court‘s permanent custody decision unless the decision is against the manifest weight of the evidence. In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
“Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black‘s Law Dictionary 1594 (6th Ed.1990).
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
“Clear and convincing evidence” means: “[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, 103-04, 495 N.E.2d 23 (1986). In determining whether a trial court based its
” ‘[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * * If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’ ” Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
Deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). Accord In re Christian, 4th Dist. Athens No. 04CA10, 2004-Ohio-3146, ¶ 7. As the Supreme Court of Ohio long-ago explained: “In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation cannot be conveyed to a reviewing court by printed record.” Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
{¶85} Additionally, unlike an ordinary civil proceeding in which a jury has no contact with the parties before a trial, in a permanent custody case a trial court judge may have significant contact with the parties before a permanent custody motion is even filed. In such a situation, it is not unreasonable to presume that the trial court judge had far more opportunities to evaluate the credibility, demeanor, attitude, etc., of the parties than this
B. PERMANENT CUSTODY PRINCIPLES
{¶86} A parent has a “fundamental liberty interest” in the care, custody, and management of his or her child and an “essential” and “basic civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982); In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829. A parent‘s rights, however, are not absolute. D.A. at ¶ 11. Rather, ” ‘it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the pole star 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). Thus, the state may terminate parental rights when a child‘s best interest demands such termination. D.A. at ¶ 11. Before a court may award a children services agency permanent custody of a child,
“To provide for the care, protection, and mental and physical development of children subject to Chapter 2151. of the Revised Code, whenever possible, in a family environment, separating the child from the child‘s parents only when necessary for the child‘s welfare or in the interests of public safety; * * *.”
R.C. 2151.01(A) .
C. PERMANENT CUSTODY FRAMEWORK
{¶87} A children services agency may obtain permanent custody of a child by (1) requesting it in the abuse, neglect or dependency complaint under
{¶88}
“(a) The child is not abandoned or orphaned or has not 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, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents. (b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) 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.
(e) 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.”
{¶89} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
1. R.C. 2151.414(B)(1)
{¶90} The mother‘s first assignment of error challenges the trial court‘s “(2) Chronic mental illness, chronic emotional illness, intellectual disability, 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.” A trial court may base its decision that a child cannot be placed with either parent within a reasonable time or should not be placed with either parent upon the existence of any one of the statutory factors. The existence of a single factor will support a finding that a child cannot be placed with either parent within a reasonable time or should not be placed with either parent. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 50, citing In re William S. (1996), 75 Ohio St.3d 95, 661 N.E.2d 738, syllabus. {¶93} Additionally, during the permanent custody hearing recess, the mother displayed an inability to provide proper basic care for a sick child. The mother, even with assistance from the maternal aunt, was unable to correctly read the child‘s body temperature. True, the mother sought the neighbors’ assistance in reading the thermometer and requested assistance when purchasing medication, but this incident shows that her intellectual disabilities is so severe that she cannot provide an adequate permanent home {¶94} Moreover, we disagree with the mother that In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, mandates a different conclusion. In D.A., the Supreme Court of Ohio held: “When determining the best interest of a child under {¶95} The court also considered whether a parent‘s limited cognitive ability satisfies {¶96} The D.A. court thus concluded that {¶98} To the extent D.A. also requires a finding of harm or threat of harm to a child under {¶99} Moreover, when Appellee removed the children in August 2015, both children displayed clear signs of inadequate care. M.H. had a severe lice infestation. K.H. was severely developmentally delayed and had a large boil-like cyst on her bottom. This objective evidence indicates that the mother‘s intellectual disability left her unable to properly care for the children, resulting in unintentional harm to the children. {¶100} Furthermore, the trial court relied upon the parents’ past case history with Appellee. The court observed that the agency removed three-month-old M.H. from the parents’ custody due to her failure to thrive. Shortly after M.H.‘s removal, she started gaining weight. The court noted that during the approximately one-year period that M.H. was removed, the parents received in-home parent mentoring services and completed parenting classes. While the agency ultimately returned M.H. to the parents, the agency later intervened when it learned that the family was living in a tent. {¶101} Consequently, because the trial court did not focus solely upon the mother‘s limited cognitive abilities when terminating her parental rights and when ascertaining the children‘s best interest, D.A. does not mandate a reversal of the trial court‘s judgment. {¶102} Additionally, we do not agree with the mother that her case plan compliance necessarily proves that the children can be placed with her within a reasonable time or should not be placed with her. As we have often noted, a parent‘s case plan compliance may be a relevant, but not necessarily conclusive, factor when a court considers a permanent custody motion. In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, ¶ 46 (“[s]ubstantial compliance with a case plan is not necessarily dispositive on the issue of reunification and does not preclude a grant of permanent custody to a children‘s services agency.“); see In re S.S., 4th Dist. Jackson No. 16CA7 and 16CA8, 2017-Ohio-2938, ¶164; In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 59; In re N.L., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶35 (stating that substantial compliance with a case plan, in and of itself, does not establish that a grant of permanent custody to an {¶103} Accordingly, based upon the foregoing reasons, we overrule the mother‘s first assignment of error. {¶104} In her second assignment of error, the mother asserts that the evidence fails to support the trial court‘s finding that permanent custody is in the children‘s best interest. In particular, she contends that the evidence shows that either the parents or M.L. could have provided the children with a {¶105} In his second assignment of error, the father also challenges the trial court‘s best interest determination, but on a more limited basis than the mother. Instead of disputing the trial court‘s application of the totality of the best interest factor, the father contests only the trial court‘s {¶106} {¶108} The children share a bond with their parents, and the parents clearly love their children. However, according to Dr. Rippeth, the parents lack the cognitive ability to effectively parent the children. The record contains objective evidence to support Dr. Rippeth‘s opinion. At eleven months of age, K.H. was so developmentally delayed that she was unable to sit on her own or crawl. Within weeks of her placement in the foster home, she was achieving age-appropriate milestones. K.H. also had a large boil-like cyst on her bottom, and M.H. had a severe lice infestation. In 2012, appellee removed M.H. from the parents’ custody due to the then-three-month-old‘s failure to thrive. Shortly after M.H.‘s removal, she gained weight. The children‘s physical manifestations at the time of the removals show that they had not been receiving adequate care. {¶109} Furthermore, the parents’ decision to live in a tent rigged with electrical cords shows that they fail to recognize conditions that create safety hazards for the children. Additionally, the incident involving the parents’ attempt to ascertain K.H.‘s body temperature illustrates that they are unable, without assistance, to provide basic medical care for their children. Thus, while on the surface, the parents and the children share a loving relationship, the parents’ intellectual disabilities place the children in harm‘s way and {¶110} The children share a bond with each other and with the foster family. The record indicates that the children have thrived in foster care and that the foster parents have expressed interest in adopting the children. While we cannot discount the loving family bond that exists between the biological parents and their children, the foster family environment provides the children with the interactions and interrelationships needed to provide for their health, safety, and welfare. {¶111} The children are too young to directly express their wishes, but the guardian ad litem recommended that the trial court grant appellee permanent custody. In re S.M., 4th Dist. Highland No. 14CA4, 2014-Ohio-2961, ¶ 32 (noting that {¶112} M.H. was removed from her parents’ custody when she was three months old and remained in Appellee‘s temporary custody for approximately one year. Less than two years later, M.H. again was removed from her parents’ custody and placed in Appellee‘s temporary custody. She {¶113} K.H. was removed from her parents’ custody when she was eleven months old. She has been in Appellee‘s continuous temporary custody since that time. As of the date of the final permanent custody hearing, K.H. had spent approximately sixteen consecutive months in Appellee‘s temporary custody. {¶114} “Although the Ohio Revised Code does not define the term, ‘legally secure permanent placement,’ this court and others have generally interpreted the phrase to mean a safe, stable, consistent environment where a child‘s needs will be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL 925423, *9 (Aug. 9, 2001) (implying that “legally secure permanent placement” means a “stable, safe, and nurturing environment“); see also In re K.M., 10th Dist. Franklin Nos. 15AP–64 and 15AP–66, 2015-Ohio-4682, ¶ 28 (observing that legally secure permanent placement requires more than stable home and income but also requires environment that will provide for child‘s needs); In re J.H., 11th Dist. Lake No. 2012–L–126, 2013–Ohio–1293, ¶ 95 (stating that mother unable to provide legally secure permanent placement when she lacked physical and emotional stability and that father unable to do so when he lacked grasp of parenting concepts); In re J.W., 171 Ohio App.3d 248, 2007-Ohio-2007, 870 N.E.2d 245, ¶ 34 (10th Dist.) (Sadler, J., dissenting) (stating that a legally secure permanent placement means “a placement that is stable and consistent“); Black‘s Law Dictionary 1354 (6th Ed. 1990) (defining “secure” to mean, in part, “not exposed to danger; safe; so strong, stable or firm as to insure safety“); Id. at 1139 (defining “permanent” to mean, in part, “[c]ontinuing or enduring in the same state, status, place, or the like without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient“). Thus, “[a] legally secure permanent placement is more than a house with four walls. Rather, it generally encompasses a stable environment where a child will live in safety with one or more dependable adults who will provide for the child‘s needs.” M.B. at ¶ 56. Furthermore, a trial court that is evaluating a child‘s need for a legally secure permanent placement and whether the child can achieve that type of placement need not determine that terminating parental rights is “not only a necessary option, but also the only option.” Schaefer, supra, at ¶ 64. Rather, once the court finds the existence {¶115} Here, clear and convincing evidence supports the trial court‘s finding that the children need a legally secure permanent placement and that they cannot achieve this type of placement without granting appellee permanent custody. As we have already detailed, the parents’ intellectual disabilities leave them unable to provide the children with an adequate permanent home. Their intellectual disabilities affect their abilities to make healthy parenting decisions and leave the children vulnerable to harm. The parents have shown that they might be able to provide the children with an adequate permanent home, if they have “ongoing assistance,” meaning in-home, daily assistance from an individual who would be present in the home for a “significant” period of time. The parents did not show that they have such “ongoing assistance” in place. Moreover, even if the parents had “ongoing assistance” from an in-home provider, it is not clear that this provider would assist the parents twenty-four hours per day, seven days per week. Without constant supervision, the children would remain at risk. Thus, clear and convincing evidence supports the court‘s finding that the {¶116} Additionally, we disagree with the parents that M.L. could provide the children with a legally secure permanent placement. A trial court that is evaluating a child‘s best interest need not determine no suitable person is available for placement. Schaefer, supra, at ¶ 64. Moreover, courts are not required to favor relative placement if, after considering all the factors, it is in the child‘s best interest for the agency to be granted permanent custody. Id.; accord In re T.G., 4th Dist. Athens No. 15CA24, 2015-Ohio-5330, ¶ 24; In re V.C., 8th Dist. Cuyahoga No. 102903, 2015-Ohio-4991, ¶ 61 (stating that relative‘s positive relationship with child and willingness to provide an appropriate home did not trump child‘s best interest). Additionally, we observe that “[i]f permanent custody is in the child‘s best interest, legal custody or placement with [a parent or other relative] necessarily is not.” In re K.M., 9th Dist. Medina No. 14CA0025–M, 2014-Ohio-4268, ¶ 9. {¶117} Accordingly, the trial court was not required to determine that placement with M.L. was impossible before it could grant appellee permanent custody of the children. Furthermore, the evidence supports a finding that M.L. would not provide the children with a legally secure {¶118} We believe that based upon a consideration of all of the evidence presented during the permanent custody hearing, as well as the trial court‘s unique position to observe the parties throughout the pendency of the case, the trial court reasonably could have formed a firm belief that permanent custody is in the children‘s best interest. We therefore do not believe that the trial court‘s finding that awarding Appellee permanent custody is in the children‘s best interests is against the manifest weight of the evidence. {¶119} In his first assignment of error, the father argues that the trial court erred by granting Appellee permanent custody of the children when Appellee did not use reasonable efforts to reunify the family. The father claims that Appellee did not give the parents sufficient time to attempt reunification, but instead, sought permanent custody only nine months after the date the court adjudicated the children dependent. {¶120} {¶121} Here, the father‘s appeal does not originate from one of the types of hearings specifically listed in {¶122} Accordingly, based upon the foregoing reasons, we overrule the father‘s first assignment of error. {¶113} Having overruled all of the parents’ assignments of error, we affirm the trial court‘s judgment. JUDGMENT AFFIRMED. It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed equally to each Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pike County Common Pleas Court, Juvenile Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment Only. For the Court, BY: Matthew W. McFarland, Judge Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
2. BEST INTEREST
b. Children‘s Wishes
c. Custodial History
d. Legally Secure Permanent Placement
D. REASONABLE EFFORTS
E. CONCLUSION
NOTICE TO COUNSEL
Notes
(7) The parent has been convicted of or pleaded guilty to one of the following:
(a) An offense under section
(b) An offense under section
(c) An offense under division (B)(2) of section
(d) An offense under section
(e) An offense under section
(f) A conspiracy or attempt to commit, or complicity in committing, an offense described in division (E)(7)(a), (d), or (e) of this section.
(8) The parent has repeatedly withheld medical treatment or food from the child when the parent has the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent withheld it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual means through prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued pursuant to section
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the child pursuant to this section or section Highland App. No. 16CA25 19