In re R.A.
- Reporters:
- ,
- Before:
- Mark L. Pietrykowski, Christine E. Mayle, Gene A. Zmuda
PIETRYKOWSKI, J.
{¶ 1} In this consolidated appeal, N.M., the mother and appellant herein, appeals two final judgments of the Erie County Court of Common Pleas, Juvenile Division that
Statement of the Case
{¶ 2} Appellant, N.M. (“Mother“), is the mother of two children, a daughter and a son. On April 19, 2018, the Agency filed a complaint alleging that the daughter was a neglected/dependent child due to concerns that she was not meeting developmental milestones, had significant delays, was suffering from a severe case of cradle cap, and had missed medical appointments. On May 31, 2018, the Agency filed a complaint alleging that the son was also a dependent child. At the time, the children were residing at 1423 North Forrest Drive in Sandusky, Ohio with Mother and her boyfriend, M.A. (“Father“), who is their biological father. J.M., the legal father of the children, who was married to Mother when she gave birth to them, has never had any involvement with the children.
{¶ 3} At adjudicatory hearings, held on June 12 and 26, 2018, Mother admitted to the dependency allegations. The Agency was awarded protective supervision over the children at the dispositional hearings in their respective cases. The Agency soon became concerned about the size of the children, and the ongoing caseworker requested that Peds on Wheels, a pediatric medical services provider, meet her at the family‘s home. After examining the children, the Peds on Wheels physician instructed the caseworker to take
{¶ 4} On August 3, 2018, the Agency filed a motion in each case requesting that the parents’ visitation with the children be suspended due to the parents having left behind bed bugs in the Agency lobby during their last visit. The juvenile court granted the motion on August 3, 2018, and the parents were told that they could resume visitation after providing documentation that they had remedied the bed bug problem.
{¶ 5} On September 10, 2019, the Agency filed motions for permanent custody, alleging that a transfer of permanent custody was in the best interest of the children because the children had been in the custody of the Agency for more than 12 months, they could not be placed with either parent within a reasonable time or should not be placed with their parents, the parents had demonstrated a lack of commitment to the children and had abandoned them, and the parents had not completed or complied with the case plan requirements.
{¶ 6} On September 27, 2019, the Agency filed a motion for a court order reinstating the parents’ visitation with the children, after the caseworker had obtained
{¶ 7} An evidentiary hearing on the Agency‘s motions for permanent custody was held on October 6, 2020, by which time the children had been in the custody of the Agency for nearly 27 months. On December 7, 2020, the magistrate issued a decision recommending that the Agency‘s motions for permanent custody be granted. On October 25, 2021, the juvenile court entered judgment entries approving and adopting the proposed decision of the magistrate. The juvenile court concluded that: (1) the children could not be placed with either parent within a reasonable time or should not be placed with either parent, as provided for in
Statement of the Facts
{¶ 8} Emeline Clyburn, the Agency‘s Investigation Supervisor, testified that the Agency first became involved with the family in February 2018, at which time only the
{¶ 9} Clyburn went to the family‘s residence with the Health Department to investigate and found that “the house was cluttered,” “[t]here was dirty laundry” and “food debris on the floor,” there were “cat litter boxes that needed to be cleaned,” and there were cockroaches present. Clyburn also noticed that the daughter, who was approximately 1 1/2 years old at the time, was “small,” “she had very poor trunk strength,” and she “was not able to hold herself up.” Clyburn testified that this was unusual, in her experience, as children that age are typically able to sit on their own and hold themselves upright, walk or crawl, and pull themselves up to stand. Clyburn also noticed that the daughter was “disheveled” and that she had on “a sleeper that was * * * soiled.” Furthermore, the daughter had cradle cap covering “most of the top of her head” and going “down the back of her neck and the sides of her face.” Clyburn explained that cradle cap is a skin condition that causes scaling and flaking on the head, and that it is typical for infants to have “small patches on the top of the head.” She further stated that, in her training and experience, “[i]t is unusual to have [cradle cap scales] covering that much of the body.”
{¶ 10} When the Agency later obtained the child‘s medical records, it also learned that the daughter had missed several non-routine medical appointments, including a
{¶ 11} Clyburn further testified that around the time that daughter was adjudicated to be dependent, Mother gave birth to her second child, a son, and the Agency filed for protective supervision over him as well. When Clyburn conducted a follow-up visit to the home, she became concerned when she saw that the son was dressed in nothing but a onesie garment. Clyburn further stated that in June of 2018, on the day when the case was passed to the ongoing caseworker, the agency also received concerns about the boy‘s size and about the fact that he was not feeding well or gaining weight.
{¶ 12} Clyburn testified that the condition of the parents’ home improved somewhat during her home visits, but that there were continuing concerns about the smell of sour milk that was in the household, dirty laundry that was strewn about the home, and a dirty diaper that was discovered on the couch. Clyburn also suspected that there was some sort of a drug problem, after she smelled marijuana in the home during at least two home visits. Clyburn further observed during home visits that both parents “appeared to be disheveled” and “in need of a bath.” There were also mental health concerns with respect to the parents. That said, Clyburn confirmed that Mother was cooperative in
{¶ 13} Jody Moen, an ongoing caseworker who worked on the case for approximately two months, beginning in June 2018, testified that she went to the parents’ home on June 12, 2018 and “observed both children to have large heads and small bodies.” Moen testified that she visited the family multiple times over the next month, and that she felt “something was not right,” as evidenced by the fact that the son was not gaining weight and because the daughter was very thin, developmentally delayed, and had no muscle control over her neck or middle section. Moen took the children to their primary care physician for a weight check, but the doctor‘s office did not discern that anything was wrong.
{¶ 14} Moen continued to talk to the parents about having Peds on Wheels come to the home so that a pediatrician could examine the children, but the parents refused to consent. Moen took her supervisor to the home on July 3, 2018, because she continued to suspect that something was wrong, but the supervisor did not agree with her. The following week, the Agency received a report from a person who was concerned that the children “looked unhealthy, looked very low weight,” and “weren‘t developmentally on task.” In order to investigate the new complaint, Moen met the doctor from Peds on Wheels at the family‘s home on July 13, 2018. The doctor, after examining the children, instructed Moen to take them directly to Firelands Hospital, because they were both
{¶ 15} Moen testified that after the Agency took custody of the children, the parents did not seem very interested in reunification. They never asked about the children when Moen met with them, although they did visit the children twice while Moen was the caseworker. On August 3, 2018, the Agency obtained a court order suspending the parents’ visitation, because it was discovered that during their last visit they had left behind bed bugs in the lobby area of the Agency. Moen advised the parents that they could reestablish visitation by having a company come to their home and confirm that they no longer had bed bugs. By the middle of August, however, when Moen passed the case on to another caseworker, the parents had yet to act on this advice. Moen testified that the parents never contacted her during this, or any other time, to ask about the children.
{¶ 16} Moen amended the case plan after the Agency received temporary custody of the children to include anger management instruction for Father, parenting instruction for both Mother and Father, Help Me Grow releases, mental health assessments for both parents, the requirement of a clean safe home, home visits, monthly face-to-face visits,
{¶ 17} Ashley Gilbert, the ongoing caseworker who has had the case since August 2018, testified that the case plan required both parents to complete a mental health assessment, a psychological assessment with a parenting component, agency-approved parenting classes, and certain activities in the home to address the bed bug and cockroach issues and to keep the home sanitary. The case plan also required father to complete anger management instruction. At the time Gilbert took over the case in August 2018, neither parent had completed any of the case plan requirements. After Father‘s drug screen tested positive for cocaine and both parents admitted to actively using cocaine, the case plan was amended in January 2019 to require that both parents also complete a drug and alcohol assessment, follow all treatment recommendations, and submit to random drug screens. During visits with parents, Gilbert also observed evidence of illicit drug use in the home, including drug paraphernalia, what appeared to be a crack pipe, marijuana, bongs, a white substance in a plastic bag, and prescription bottles lying on the floor. In October 2019, the case plan was further amended to add additional housing and personal hygiene requirements for the parents.
{¶ 19} Gilbert testified that the Agency had to stop in-person visitations from the middle of March 2020 through June 2020 due to the COVID-19 pandemic. During that time, the parents did not have or request any video or telephone contact with the children. They resumed visitation in early June 2020, but Gilbert testified that there was “still limited bond attachment” observed between the parents and the children.
{¶ 20} Gilbert testified that Mother “had a job pretty consistently throughout the ongoing case,” even though she switched employers several times and, over the relevant time period, held a total of approximately five jobs. Gilbert testified that Father struggled with employment, having held a total of eight or nine different jobs, each of which typically lasted only a matter of weeks. Gilbert confirmed that Father spent more time unemployed than employed and that, according to Mother, Father “was at home a lot with the children while [Mother] was out working.”
{¶ 21} With respect to the parents’ housing, Gilbert explained that they started on North Forrest Drive, moved into three different motels, later moved into a homeless
{¶ 22} Gilbert confirmed that the parents had completed parenting classes in March of 2019, a psychological assessment with a parenting component, and that Mother had taken all drug screens when asked. Although Mother had previously been compliant with the mental health and drug and alcohol components of the case plan, she was no longer compliant at the time of the hearing, because she had stopped attending services in April 2020. Father was also not compliant with the mental health and drug and alcohol components of the case plan, having failed to engage in any services since January 2020.
{¶ 23} Gilbert testified that in her professional opinion, the parents had not demonstrated a commitment to reunification with their children, based on the 14 ½-month time period during which they failed to visit their children, their lack of engagement, and their failure to follow through with their own treatment. Gilbert further testified that the parents could not provide an adequate permanent home for the children,
{¶ 24} Gilbert testified that she does not feel that there is an attachment between the children and their parents, and that the children simply associate the parental visits with “play time and food.” By contrast, Gilbert testified that the children, who have been with their current foster family since September 2019, “are extremely bonded” to their foster parents and have “really grown and developed over the course of the last year.” During that time, both children have engaged in speech therapy, occupational therapy, physical therapy, and behavioral counseling. The daughter also sees a neurologist at least twice a year, to ensure that certain spots she has on her brain are not getting worse, and she has undergone genetic testing for autism. The son is still engaged in Help Me Grow services. Gilbert testified that she does not believe that the biological parents understand the extent of the children‘s special needs or that they would be able to keep up with all of the necessary treatments if they were reunited with the children. Thus, she testified that it was her opinion that an award of permanent custody to the Agency was in the children‘s best interest.
{¶ 25} Bridget Lemberg, the Lab Director and Toxicologist at Forensic Fluids Laboratory, testified that three of the 16 samples collected from Mother tested positive
{¶ 26} Allison Roth, the children‘s foster mother, testified that the children had been placed with her and her husband since September 2019. When the children arrived at her home, the daughter had just started walking and was behind both developmentally and verbally; she could not speak any words and communicated only through screaming and yelling. The son was not walking or speaking, and his motor skills were delayed. Both children had eating issues; they swallowed their food whole and shoveled it in their mouths to the point where Roth had to perform the Heimlich maneuver on each of them approximately ten times over the course of one year.
{¶ 27} Roth testified that both children go to speech therapy twice a week and to occupational and physical therapy once a week. They also attend behavioral counseling, they see a nutritionist, and they regularly see the dentist and eye doctor. The son is engaged in Help Me Grow, while the daughter graduated from the program. Roth testified that both children have night terrors, though the daughter has them much more frequently than does the son. The night terrors began shortly after the children‘s first visitation with their parents in October 2019, subsided during the 2 1/2 months that visitation was paused due to the pandemic, and then started again on June 4, 2020, when visitations with the parents resumed. Roth also noticed that the children were making
{¶ 28} Roth testified that both children had made great strides in the last year. They now eat every two hours, maintain a consistent schedule, and are both potty-trained. However, the children are still not within the normal range on the growth chart and have various issues left to resolve. Roth feels that the children are bonded to her and to her husband, and she stated that she and her husband are willing to continue to provide a home for them.
{¶ 29} Patty James, the children‘s CASA representative, testified that the children are receiving very good and diligent care in their foster home, and that they have developed a strong bond with their foster parents. James testified that the daughter has had many developmental delays, but that she has made progress by going to the SPOT Program, as well as to speech, physical and occupational therapy. James has observed visits between the children and their biological parents, during which she has not noticed any excitement from the children or any bond with the parents. James has also visited the parents a couple of times at the motel in which they were living, which she described as cramped, cluttered, not clean, and dark. In addition, James attempted two visits with the parents at their current residence, but no one answered the door. James confirmed that
{¶ 30} James Melle, the children‘s guardian ad litem, also testified that the children were thriving in their foster home, and that their foster family is making sure that their special needs are met. He further testified that after observing a visit between parents and the children, he was concerned that there was not a strong bond with the children. Melle testified that he also has concerns about not being able to schedule a time with parents to view their current residence, and about the fact that Mother failed to send pictures of the home, as she had previously offered. Melle, therefore, testified that he believes it is in the children‘s best interest that they be placed in the permanent care of the Agency and that they stay with their foster parents.
Assignment of Error
{¶ 31} Mother asserts the following assignment of error on appeal:
I. The Trial Court‘s conclusion that there was clear and convincing evidence that the Agency met its burden under
R.C. Sec. 2151.414 , was against the manifest weight of the evidence.
{¶ 32} In her sole assignment of error, Mother asserts that the juvenile court‘s conclusion that there was clear and convincing evidence that the Agency had met its burden pursuant to
{¶ 33}
In determining the best interest of a child * * *, the court shall consider all relevant factors, including, but not limited to, the following:
(a) 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;
(b) 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;
(c) The custodial history of the child * * *;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 36} A trial court‘s determination in a permanent custody case is reviewed under a manifest-weight-of-the-evidence standard. In re P.W., 6th Dist. Lucas No. L-12-1060, 2012-Ohio-3556, ¶ 20. Pursuant to this standard, “we must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice that the decision must be reversed.” In re T.J., 2021-Ohio-4085, 180 N.E.3d 706 at ¶ 40, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In performing this analysis, “we must be mindful that the juvenile court, as the trier of fact, is in the best position to weigh evidence and evaluate testimony.” In re T.J. at ¶ 40. The juvenile court‘s discretion in determining whether an order of permanent custody is in the best interest of a child “should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.” (Internal quotation marks and citations omitted.) In re C.P., 10th Dist. Franklin No. 08AP-1128, 2009-Ohio-2760, ¶ 10.
{¶ 37} In the instant case, the juvenile court found that granting the Agency permanent custody was in the children‘s best interest. Mother contends in her appeal that the court “misapplied or misstated several facts” in its consideration of the relevant best interest factors.
{¶ 38} Regarding the best interest factor set forth in
{¶ 39} The juvenile court further supplemented the findings regarding the children‘s relationships, as follows:
[N]one of the parties ([J.M.], Mother and [Father]), have demonstrated much of a commitment to, nor have they established a strong bond with the child[ren]. There are no relatives who have shown interest in or have had
contact with the child[ren]. The child[ren] [are] strongly bonded with [their] sibling and foster parents.
{¶ 40} Mother has not challenged any of the court‘s findings as to this factor. Indeed, caseworkers Moen and Gilbert each testified that after the Agency took custody of the children, the parents did not seem interested in reunification and never asked about the children during any of their home visits. Both caseworkers also testified that the parents never contacted them to ask how the children were doing, including during the 14 1/2 months that their visitation was suspended. Furthermore, the parents did not have or request any video or telephone contact with the children when the Agency was forced to halt in-person visitations from mid-March through June 2020 due to the pandemic.
{¶ 41} Caseworker Gilbert further testified that she does not believe that there is an attachment between the children and their parents. The CASA representative and the guardian ad litem echoed this opinion at the hearing. Conversely, they all testified that the children have a strong bond with their foster parents, who they have lived with since September 2019. The foster mother testified that the children are bonded to both her and her husband, and that they are willing to continue to provide a home for them.
{¶ 42} We find that the weight of the evidence supports the juvenile court‘s findings and that the court properly considered
{¶ 43} Regarding the best interest factor set forth in
{¶ 44} We find that the children‘s wishes, as expressed by the CASA representative and the guardian ad litem, favored the Agency under
{¶ 45} With respect to the best interest factor set forth in
{¶ 46} Furthermore, Mother‘s efforts to maintain visitation and seek reunification have been limited. The parents’ visitation with the children was suspended for 14 1/2
{¶ 47} These facts support the juvenile court‘s finding that
{¶ 48} With respect to
The children most definitely need a legally secure permanent placement, as attested to by the caseworker, foster-mom, CASA and the GAL. The children‘s mother and father cannot provide a permanent home for them, as they have a history of unstable housing and employment and haven‘t demonstrated they comprehend the children‘s special needs, let alone have the ability to meet those needs. Neither parent successfully completed mental health services or drug and alcohol services as directed by the case plan. Both parents have pending felony child endangering charges against
them, concerning these children. The CASA summed it up best when she testified that the parents cannot meet the children‘s needs, as they struggle to meet their own needs.
{¶ 49} The juvenile court found:
Child[ren] need[] a legally secure placement and [the Agency] is the only one able to provide that now or in the foreseeable future. Specifically, the evidence established that Mother and [Father] show lack of organization, initiative and insight sufficient to meet their children‘s special as well as basic needs. They have had over two years to get the help they needed and have not done so. They presented no evidence challenging this.
{¶ 50} “Although the Ohio Revised code does not define the term, ‘legally secure permanent placement,’ courts have generally interpreted the phrase to mean ‘a safe, stable, consistent environment where a child‘s needs will be met.” In re T.J., 2021-Ohio-4085, 180 N.E.3d 706 at ¶ 59.
{¶ 51} Mother contends that the juvenile court incorrectly concluded that her employment and housing instability was a negative factor. As indicated above, caseworker Gilbert, who has been assigned to the case since August 2018, testified that Mother “has had a job pretty consistently throughout the ongoing case,” having held approximately five jobs. However, Gilbert further testified that Father has struggled with employment, and has spent more time unemployed than employed. Mother still lives
{¶ 52} With respect to the parents’ housing, the caseworker testified that the parents started on North Forrest Drive, moved into three different motels, later moved into a homeless shelter, and finally moved into their current residence at the time of the hearing. The parents had been in their current residence for approximately one year at the time of the hearing. However, testimony by caseworker Gilbert established that the parents’ current residence is dirty and cluttered with trash bags, there are dishes stacked up in the kitchen area, and there is food crusted all over the stove and countertops. Gilbert further testified that the home “usually has a foul odor” from dirty laundry or body odor. She also observed drug paraphernalia and knives left out in the parents’ home. In addition, the parents did not have any furniture or proper sleeping arrangements for the children in the residence. Gilbert, therefore, could not approve the parents’ housing. Patty James, the children‘s CASA representative, testified that she had attempted two visits to the parents’ current residence, but no one had answered the door. James Melle, the children‘s guardian ad litem, testified that he also had concerns about not being able to schedule a time with the parents to view their current residence, and that
{¶ 53} Mother also disputes the juvenile court‘s finding that she neglected to attend to the children‘s medical and development needs. Specifically, the juvenile court found that:
Mother and [Father] neglected to attend to the medical, physical and developmental needs of the children resulting in them being hospitalized on an emergency basis for malnourishment and failure to thrive. * * * Mother and [Father], both, show little initiative to learn about and to apply what is necessary to meet [daughter‘s] special needs, let alone both children‘s basic needs.
{¶ 54} The magistrate similarly found that:
The initial concerns, why the Agency filed complaints asking for protective supervision, was neglect. [Daughter] had severe cradle cap and the parents were missing doctors’ appointments for her. Several months later when the Agency filed an emergency Motion for Custody it was due to a doctor‘s concern with the children‘s failure to thrive. [Father and Mother] never seemed to internalize what their children would need to live a safe, healthy
life. They also showed little insight regarding understanding why their children were removed from them in the first place, despite the fact that when the children were taken to the local Emergency Room, they were then sent to Rainbow Babies Hospital.
{¶ 55} Contrary to Mother‘s claim, there is abundant clear and convincing evidence in the record to support the juvenile court‘s finding that the parents failed to attend to the medical, physical and developmental needs of the children. The Agency‘s Investigation Supervisor Clyburn testified that the Agency first became involved with the family in February 2018, after receiving reports that the daughter was not meeting developmental milestones, had some significant delays, had missed medical appointments, and had “a very bad case of cradle cap.” Clyburn testified that when she went to the home to investigate, she noticed that the daughter, who was approximately 1 1/2 years old at the time, was “small,” “she had very poor trunk strength,” and she “was notable to hold herself up.” She testified that this was unusual, in her experience, as children that age are typically able to sit on their own and hold themselves upright, walk or crawl, and pull themselves up to stand. Clyburn also noticed that daughter had cradle cap covering “most of the top of her head and down the back of her neck and the sides of her fact.” Clyburn testified that it was highly unusual to have cradle cap covering that much of a child‘s body. Furthermore, when the Agency obtained the daughter‘s medical records, it learned that she had missed several non-routine medical appointments,
{¶ 56} Caseworker Moen also testified that she “observed both children to have large heads and small bodies. Moen testified that she felt “something was not right” – the son was not gaining weight and the daughter was very thin, developmentally delayed, and had no muscle control over her neck or middle section. Moen took the children to their primary care physician for a weight check, but the doctor‘s office did not discern that anything was wrong. Moen continued to talk to the parents about having Peds on Wheels come into the home so that a pediatrician could examine the children, but the parents refused to consent. Moen also took her supervisor to the home on July 3, 2018, because she still felt that something was wrong, but her supervisor did not agree with her. The following week, the Agency received a report from a person who was concerned that the children “looked unhealthy, looked very low weight,” and “weren‘t developmentally on task.” Moen then met Peds on Wheels at the family‘s home on July 3, 2018, and the doctor asked her to take the children to Firelands Hospital immediately, because both children were underweight. At the hospital, staff examine the children and placed an IV
{¶ 57} The juvenile court‘s finding that that the parents showed little initiative to learn about and apply what is necessary to meet the children‘s special needs is also supported by the record. The children‘s foster mother testified that both children go to speech therapy twice a week and to occupational and physical therapy once a week. In addition, they attend behavioral counseling, they see a nutritionist, and they regularly see the dentist and eye doctor. The daughter also sees a neurologist at least twice a year to address spots on her brain, and has undergone genetic testing for autism. She son is still engaged in Help Me Grow services.
{¶ 58} Caseworker Gilbert, who has had the case since August 2018, testified that she does not believe that the parents understand the extent of the children‘s special needs or that they would be able to keep up with all of the children‘s treatments, if they were reunified with the children. The CASA representative also testified that she does not believe that the parents can adequately meet the children‘s needs, because “it appears that they struggle with meeting some of their own needs.” Thus, there was ample evidence in the record to support the juvenile court‘s findings that the parents neglected to attend to the medical, physical, and developmental needs of the children, and that they have failed to learn about and apply what is necessary to meet the children‘s ongoing special needs.
{¶ 60} Finally, Mother disputes the juvenile court‘s finding that she did not successfully complete mental health services or drug and alcohol services, as directed by the case plan. Caseworker Gilbert testified that although Mother had previously been compliant with the mental health and drug and alcohol components of the case plan, she was no longer compliant at the time of the hearing, because she had stopped attending services in April 2020, though she claimed to have resumed services the week before the
{¶ 61} That Mother and Father may have complied with some aspects of the case plan does nothing to alter the outcome of this analysis in this case. As this court has recently recognized, case plan compliance, while relevant to a best-interest determination, is not dispositive of it. See In re T.J., 2021-Ohio-4085, 180 N.E.3d 706 at ¶ 72. Even “substantial compliance” “is but one of many factors the court may find relevant * * * in rendering its judgment.” Id. at ¶ 76. Here, the juvenile court found that the best interest factors supporting an award of permanent custody to the Agency outweighed Mother‘s completion of parts of her case plan. We find that the evidence supports that decision.
{¶ 62} With respect to
(7) The parent has been convicted of or pleaded guilty to one of the following:
(c) An offense under division (B)(2) of section 2919.22 of the Revised Code or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to the offense described in that section and the child, a sibling of the child, or another child who lived in the parent‘s household at the time of the offense is the victim of the offense;* * *
(10) The parent has abandoned the child.
{¶ 63} In relationship to the current case, the magistrate stated the following:
The Magistrate finds that concerning (E)(7)(c) both parents have been indicted for two counts of child endangering, felonies of the third degree. However, at the time of hearing the charges are pending and they have not been convicted nor plead guilty. The Magistrate also finds that (E)(10) applies to [J.M., Mother and Father].
{¶ 64} Regarding section (E)(7)(c), testimony at the hearing established that Mother and Father had pending charges of child endangering that had not been resolved. The magistrate‘s decision accurately reflects the fact that, although there were pending charges at the time of the hearing, there were no convictions against either Mother or Father. Thus, it appears from the magistrate‘s decision that section (E)(7)(c) was properly rejected as a factor in the custody determination.
{¶ 66} Mother‘s suggestion that the finding of abandonment was inappropriate because the decision not to remedy the bed bug problem was not the product of her “active choices” is wholly without merit. As indicated above, Mother‘s visitation was suspended due to bed bugs that the parents had left behind in the lobby area during their last visit. Both caseworkers testified that they advised Mother numerous times that that the parents could reestablish visitation by having a company come into their home and confirm that they no longer had bed bugs. Caseworker Gilbert provided the parents with the telephone number of a company that she had confirmed would perform one free inspection per year, and she advised Mother to have the motel manager where the parents were staying call to schedule an appointment. Despite these referrals and advisements, the parents voluntarily chose not to resolve the bed bug issue. Mother later advised Gilbert that she had talked to a manager at the homeless shelter where she was staying
{¶ 67} For all of the foregoing reasons, we find that the juvenile court‘s decisions were supported by clear and convincing evidence and were not against the manifest weight of the evidence. We find that Mother‘s assignment of error is without merit. Therefore, the judgment of the Erie County Common Pleas Court, Juvenile Division is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
Mark L. Pietrykowski, J. JUDGE
Christine E. Mayle, J. JUDGE
Gene A. Zmuda, J. JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.