IN THE MATTER OF: S.S., DEPENDENT CHILD. [JOANN B. PERSINGER – APPELLANT]. IN THE MATTER OF: J.S., DEPENDENT CHILD. [JOANN B. PERSINGER – APPELLANT]. IN THE MATTER OF: K.P., DEPENDENT CHILD. [JOANN B. PERSINGER – APPELLANT].
CASE NO. 8-12-06, CASE NO. 8-12-07, CASE NO. 8-12-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
March 4, 2013
2013-Ohio-747
Appeals from Logan County Common Pleas Court Juvenile Division, Trial Court Nos. 11-CS-0008, 11-CS-0009 and 11-CS-0010
APPEARANCES:
Bridget D. Hawkins for Appellant
Deborah K. Brown for Appellee, Logan Co. Children’s Services
Miranda A. Warren, Guardian Ad Litem
PRESTON, P.J.
{¶1} Mother-appellant, Joann B. Persinger, appeals the judgments of the Logan County Court of Common Pleas, Juvenile Division granting Logan County Children Services (“LCCS“) permanent custody of her three minor children. We affirm.
{¶2} On February 9, 2011, a mandatory reporter contacted LCCS concerning the care and well-being of Persinger’s three minor children: S.S. (male), born June 2005; J.S. (male), born September 2008; and, K.P. (female),
{¶3} On February 11, 2011, after investigating the allegations, LCCS filed complaints alleging that the three minor children were dependent and neglected children as defined in
{¶4} On April 13, 2012, the trial court held an adjudicatory hearing wherein the State dismissed the neglect allegation in the complaint and amended language in the complaint detailing the dependency action. (Doc. No. 54). Thereafter, Persinger and Brian Otis S., the biological father of S.S. and J.S., admitted to the dependency finding. (Id.). The trial court found the minor children to be dependent and granted LCCS temporary custody of the minor children.
{¶6} On May 11, 2011, Bowman filed a motion seeking placement or, alternatively, extended visitation with K.P. (Doc. No. 63). On May 13, 2011, the State filed a motion asking the trial court to find that no reasonable efforts were required to reunify K.P. with Bowman since he had been convicted of a sexually oriented offense involving his seven-year-old stepdaughter. (Doc. No. 65).
{¶7} On June 28, 2011, the motions came on for hearing, and Bowman indicated that he would withdraw his motion and would permanently surrender his parental rights to K.P. (Doc. No. 68). The trial court withdrew Bowman’s motion, granted the State’s motion, and continued temporary custody of the minor children with LCCS. (Id.).
{¶8} On June 30, 2011, the Guardian Ad Litem (“GAL“) filed a report recommending that Bowman’s parental rights to K.P. be permanently terminated since the same was in K.P.’s best interest. (Doc. No. 70).
{¶9} On July 1, 2011, the trial court held a hearing upon Bowman’s permanent surrender of parental rights and granted LCCS permanent custody of K.P. with respect to Bowman. (Doc. No. 73).
{¶11} On February 8, 2012, the trial court granted LCCS’ motion for an extension of temporary custody. (Doc. No. 97). On February 15, 2012, LCCS filed a motion seeking permanent custody. (Doc. No. 98).
{¶12} On June 13, 2012, the GAL filed a report recommending that the trial court grant LCCS’ motion for permanent custody. (Doc. No. 152). On June 14-15, 2012, the trial court held hearings on the motion, and, on June 16, 2012, granted LCCS’ motion for permanent custody. (Doc. No. 156).
{¶13} On August 10, 2012, Persinger filed a notice of appeal. (Doc. No. 163).2 The cases were assigned appellate case nos. 8-12-06, 8-12-07, and 8-12-08, which this Court subsequently consolidated for appeal purposes.
{¶14} Persinger now appeals raising one assignment of error for our review.
The Trial Court erred in granting permanent custody of the minor children to the Logan County Children’s Services Board.
{¶15} In her sole assignment of error, Persinger argues that the trial court erred in granting LCCS’ motion for permanent custody because she completed her case plan goals; alternatively, she argues she was not given sufficient time to complete her case plan goals. Finally, Persinger contends that the trial court’s findings were not supported by clear and convincing evidence.
{¶16} We begin our discussion by noting that “[p]arents have a ‘fundamental liberty interest’ in the care, custody, and management of [their children].” In re Murray, 52 Ohio St.3d 155, 157 (1990), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). The right to raise one’s children is an “essential” and “basic civil right.” Id., citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923). A parent’s right to manage the rearing of his or her children is among those inalienable rights secured by the natural law, which
{¶17} “[P]arents have the right of restraint over their children and the duty of correcting and punishing them for misbehavior.” In re Schuerman, 74 Ohio App.3d 528, 531 (3d Dist.1991). Parents have the right to use reasonable physical discipline, or corporal punishment, to prevent and punish a child’s misconduct. State v. Hauenstein, 121 Ohio App.3d 511, 516 (3d Dist.1997) citing State v. Suchomski, 58 Ohio St.3d 74, 75 (1991); In re J.L., 2008-Ohio-1488, at ¶ 12; In re Luke, 3d Dist. No. 14-10-26, 2011-Ohio-4330, ¶ 21. The right of parents to administer reasonable corporal punishment is deeply rooted in the history and traditions of this nation. In re J.L., 2008-Ohio-1488, at ¶ 12, citing State v. Hoover, 5 Ohio App.3d 207, 211 (6th Dist.1982), quoting Quinn v. Nolan, 7 Dec.Rep. 585, 586 (1879) (“From the time of Solomon to the present, parents have had the right, in a proper manner and to a proper degree, of inflicting corporal punishment upon their children * * *.“). See also 1 Blackstone, COMMENTARIES, RIGHTS OF PERSONS, CHAPTER 16: OF PARENT AND CHILD, Section 2 (under the common law, parents may correct an underage child in a reasonable manner).
{¶18} A public children services agency that has been granted temporary custody of a child pursuant to
{¶19} To determine the best interest of a child, the court is required to consider all relevant factors, including, but not limited to:
(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, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or 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 and, as described in division (D)(1) of section 2151.413 of the Revised
Code, the child was previously in the temporary custody of an equivalent agency in another state; (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.
{¶20} To determine whether a child cannot or should not be placed with either parent within a reasonable period of time,
(1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative
services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. (2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code;
* * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
* * *
(13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child.
(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to
prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
{¶21} “Clear and convincing evidence” is more than a mere preponderance of the evidence, but not of such certainty as is required by “beyond a reasonable doubt” as in a criminal case; rather, it is evidence that provides the trier of fact with a firm belief or conviction as to the facts sought to be established. In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122 (1991). Upon review, an appellate court ‘“must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.“’ Id., quoting In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985). A reviewing court will reverse a trial court’s determination if it is not supported by clear and convincing evidence. Id., citing Holcomb, 18 Ohio St.3d at 368; In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986).
{¶23} Flanigan also testified that Persinger indicated that she would put J.S.’s hands behind his back and hold them tightly to prevent J.S. from moving his hands, and that she would have Bowman step in when she became tired. (Id. at 83). Persinger demonstrated how she held J.S.’s hands, and pressed hard on the inner part of Flanigan’s wrist and held his hands tightly. (Id.). At first, Persinger denied using tape to hold J.S.’s hands behind his back, but later that day, Persinger admitted she did use masking tape on J.S.’s hands so they could get things done around the house. (Id.); (Id. at 85).
{¶24} Flanigan testified that J.S. and S.S. were removed and placed with Gary Stapleton and another male, neighbors who occasionally watched the boys. (Id. at 86). However, LCCS subsequently filed for emergency custody after they learned that Stapleton used a fly swatter to discipline J.S. (Id. at 86-87). According to Flanigan, Stapleton demonstrated how he would raise the fly swatter in the air and J.S. would cower in fear. (Id.). Persinger denied any physical relationship with Bowman, calling him merely a roommate, though she later admitted that Bowman could be K.P.’s father, testified Flanigan. (Id.). Flanigan was involved in the case for 30 days, and then the case was transferred to
{¶25} On cross-examination, Flanigan testified that LCCS did not remove the children due to spanking; but rather, LCCS removed the children because J.S. was spanked 20-25 times and Persinger admitted she would continue spanking J.S. until he cried and responded emotionally. (Id. at 88-89). When asked if he knew the time frame for the 20-25 spanks J.S. received, Flanigan testified that he only knew it happened over a weekend after J.S. put holes in the wall. (Id. at 89-90). Flanigan could not tell from the bruising if J.S. had been spanked with the belt during this same incident, but Bowman admitted using a belt in the past to spank J.S. while Persinger held J.S. down. (Id. at 92). Persinger knew Stapleton for a long time, according to Flanigan, though he could not recall their relationship, if any, and he testified that Stapleton and the other man were low functioning, over fifty with no other children residing in their home. (Id. at 91, 93-94). LCCS did not believe Stapleton was physically disciplining the children but merely threatening physical discipline with the fly swatter. (Id. at 88-90). Flanigan testified that J.S.’s response to the fly swatter indicated that he was used to being struck. (Id. at 90). He also testified that, when he first came to the home, S.S. and K.P. were “extremely, extremely, extremely dirty.” (Id.). On the other hand, Flanigan testified that the home was “extremely, extremely clean * * * not a thing
{¶26} Chris Christensen, a long-term placement caseworker with LCCS, testified that he was assigned to Persinger’s three minor children, S.S., J.S., and K.P. (Id. at 96-97). Christensen testified that Persinger entered into a case plan with the goal of reunification. (Id. at 97). Christensen testified that Brian Otis S. was not included on the case plan since he was incarcerated until April 13, 2014. (Id.). Christensen testified that Bowman was adjudicated the father of K.P., but he surrendered his parental rights to K.P. (Id. at 98). Christensen testified that, as part of the case plan, Persinger was required to provide a stable and safe home environment for her children; be capable of dealing with the behaviors of S.S. and J.S.; go to counseling sessions; be involved in the medical and educational needs of the children; and, obtain a psychological evaluation. (Id. at 99).
{¶27} Christensen testified that Persinger began counseling with Ruth Montgomery at CAM; and in November 2011, Persinger began counseling with Deb Brownlee. (Id. at 99-100). He testified that Persinger had her initial assessment with Brownlee, though Persinger lacked follow through on follow up sessions. (Id. at 100). According to Christensen, Persinger was required to attend
{¶28} Persinger has not been able to obtain employment and meet the children’s ongoing needs, such as food, according to Christensen. (Id. at 104). Christensen testified that Persinger’s church friends have maintained her apartment while she is incarcerated. (Id.). He also testified that Persinger received around $15,000 from her mother’s estate, which Persinger used to pay a year’s worth of rent (from July 2011 to July 2012). (Id.). Christensen testified Persinger’s church friends may be paying for August rent, but he is not sure how Persinger intends to pay rent thereafter. (Id.). Persinger has not divulged whether or not she has any money remaining from her mother’s estate, and Persinger did
{¶29} Christensen testified that Persinger did not complete her case plan goals with respect to visitation because it is still difficult for her to deal with S.S.’s behaviors and give an adequate amount of time to all of her children. (Id. at 103). Christensen testified that the agency initially transported the children to Caring Kitchen, where Persinger was residing, for a one-hour visitation period once a week. (Id. at 105-106). LCCS asked Persinger to begin coming to the agency for visitations, which she did, and the visitation was increased to two hours. (Id. at 106). According to Christensen, Persinger asked for divided visitation, one hour with K.P. and one hour with J.S. and S.S., in order to better bond with K.P., which the agency found agreeable. (Id.). Christensen testified that LCCS terminated visitation after Persinger was incarcerated due to the possible negative impact on the children. (Id. at 107). Christensen testified that his only other concern was Persinger’s admission that she put a gun to her ex-mother-in-law’s head when her two older children were removed from her home. (Id.).
{¶30} On cross-examination, Christensen testified that the incident with the ex-mother-in-law occurred many years ago when Persinger was using drugs. (Id. at 107-108). He testified that he still has concerns with Persinger’s difficulty dealing with S.S.’s temper tantrums, and her continually siding with S.S. in
{¶31} On further cross-examination, Christensen testified that Persinger had employment, though it was questionable whether or not her home environment was stable. (Id. at 115). Christensen also testified that Persinger had housing for a year since she paid for her rent, and he was not sure how much money she used to pay for a year’s worth of rent. (Id. at 116). Christensen testified that Persinger missed one counseling session because she was likely incarcerated. (Id. at 117). He also testified that Persinger is continuing to receive counseling while she is incarcerated, and he has no evidence that Persinger has neglected the medical needs of the children. (Id.). Christensen testified that Persinger has been involved in one medical appointment for S.S.’s surgery, but
{¶32} Christensen testified that he did not observe a bond between S.S., J.S., and Persinger during the visitations. (Id. at 124). He further testified that J.S. would play independently during the visitation and would not incorporate his mother. (Id.). According to Christensen, Persinger would try to converse with J.S. but her primary focus was dealing with S.S.’s behavior. (Id.). On the other hand, Christensen testified that S.S. did not need to be the center of attention when he was in the Frost home, and he plays well with J.S. and his foster siblings. (Id. at 125). He testified that his primary issue with Bowman was the physical abuse that occurred with J.S., and he was a registered sex offender for an offense occurring with one of his step daughters. (Id. at 126). Christensen testified that S.S. told the foster parents that Bowman touched his pee-pee, but he was not sure
{¶33} Nicholas Russell, a counselor at Consumer Advocacy Model (“CAM“), testified that S.S. began counseling sessions with Robin Hemminger on April 26, 2010. (Id. at 70-72). Russell testified that Hemminger transferred S.S. to him in September 2010, at which point he met Persinger, who was S.S.‘s legal custodian. (Id. at 72). Russell testified that S.S. was unruly, suffered from attention deficient hyper activity disorder, and was, generally, uncontrollable. (Id.). S.S. was diagnosed with encopresis, or bowel movements, without overflow or constipation, and enuresis, according to Russell. (Id.). Russell testified that S.S. was not toilet trained, and he was voiding in inappropriate places and at inappropriate times. (Id.). Russell testified that, due to transportation issues,
{¶34} Erin Miller, a part time case aide and part time in-home caseworker with LCCS from December 2010 to October 2011, testified that she supervised a number of Persinger‘s visits with her three children in Urbana and at the agency. (Id. at 54-55). Miller testified that Persinger usually visited her children for two hours on alternating weekends at the agency and in Urbana, with transportation assistance from LCCS. (Id. at 55). Miller testified that the visitations generally went very well, though there was one incident when J.S. wandered toward the road. (Id. at 56). Persinger shared too much information with the children, according to Miller; for example, Persinger shared information about body parts with S.S. when she was using the restroom and told her children she was using contraceptives when they were conceived. (Id. at 57). Miller testified that Persinger had difficulty following visitation time constraints, causing them often to rush through meals. (Id. at 58). Miller testified that, one time, Persinger allowed J.S. and S.S. to feed bread to ducks in a park, even though the park had posted signs stating not to feed the ducks. (Id.). Miller testified that the boys really enjoyed this activity. (Id.); (Id. at 59). Miller testified that she noticed a significant improvement in Persinger‘s judgment from the time she started the visitations, especially when Persinger began bringing meals for the children. (Id.
{¶35} Krista Brey, a LCCS case aide, testified that she supervised three visitations with Persinger. (Id. at 61). Brey testified that one of the visitations occurred in Persinger‘s apartment in Urbana, which Brey described as appropriate and clean. (Id. at 62). Brey testified that, overall, the visitations went well, though she thought Persinger communicated with her children inappropriately, calling S.S. and J.S. her “sexy little men.” (Id.). Brey also testified that, one time after the children were messy from eating dinner at the agency, J.S. wanted to change his clothes, and J.S. stated, “look, my underwear has a penis pouch.” (Id. at 62-63). According to Brey, Persinger then looked at S.S. and said, “[S.S.], tell us your nickname for your penis, that you used to call your penis.” (Id. at 63). Brey also testified that, when she made an in-home visit in January, Persinger answered the door in her bathing suit, and Persinger had the children change into their bathing suits and join her in a baby pool that Persinger had in her dining room. (Id. at 63). Persinger stated that an LCCS employee, Emily Pool, gave her permission to have the baby pool in the house for the children. (Id.). Brey testified that Emily actually told Persinger she could take the children to the YMCA pool. (Id. at 64). Brey testified that one of Persinger‘s friends was in the apartment during the visitation and stated that she was moving in with Persinger
{¶36} On cross-examination, Brey testified that she only supervised three visits for a total of six hours. (Id. at 66). Brey testified that the interaction between Persinger and the children was pretty good. (Id.). She also testified that the apartment was warm during the pool incident, and the children appeared to have fun. (Id. at 66-67). She testified that the children were in no danger, and the pool had about six inches of water. (Id. at 67). Brey testified that she was not sure whether Persinger‘s friend, who she talked with during the visitation, lived with Persinger or lived next door to Persinger. (Id.). Brey also testified that, since K.P. was taken from Persinger at seven weeks old, she would expect that K.P. had a
{¶37} Grace Shoessow, an early childhood mental health consultant, testified that she provided weekly, in-home coaching sessions to help Persinger with parenting and understanding her children‘s needs. (Id. at 132-133). In particular, Shoessow testified that she was helping Persinger develop consistency in her responses to her children‘s actions and helping her develop the ability to multi-task with three children in the home. (Id. at 135). Shoessow testified that Persinger enjoyed preparing and bringing the children meals and this was an area of strength for Persinger. (Id. at 136). Shoessow testified that Persinger was always very willing to participate in the parenting classes and was able to put the curriculum into practice during the activity sessions, but she had difficulty implementing the curriculum with the children. (Id.). Persinger had the most difficulty with identifying and meeting the needs of each child according to their developmental stage and recognizing that their needs were changing as they were growing up, according to Shoessow. (Id.). Shoessow further testified that Persinger was under a high level of stress and anxiety, which affected her ability to focus on the needs of her children. (Id. at 137). She testified that Persinger was
{¶38} According to Shoessow, another issue that affects Persinger‘s parenting is the importance she places on relationships with men to her self-concept. (Id. at 139). Shoessow testified that Persinger saw her children as extensions of herself rather than as individuals with their own rights. (Id.). She testified that Persinger is a “very loving and demonstrative mother” and enjoys interacting with her children; however, Persinger has difficulty interacting with one child while at the same time monitoring the safety of the other children. (Id. at 140). Shoessow testified that Persinger often stressed about her finances, and she was having a difficult time adjusting to living on her own in a large home. (Id. at 140-141). Shoessow testified that Persinger had given up custody of her two older children to a family member, and Persinger was unclear about her financial obligations to those two children. (Id. at 142). Shoessow testified that Persinger loves her children and has made efforts to meet their needs, but Persinger lacks the ability to meet the needs of the children, particularly their emotional needs. (Id. at 143).
{¶39} Debra Brownlee, a counselor/therapist at Consolidated Care Inc., testified that Persinger began depression counseling at Consolidated beginning in April 2009, and Persinger was transferred to her care in May 2009. (Id. at 148-
{¶40} According to Brownlee, Persinger indicated that she was having “psychotic episodes” since her mother passed away, where she becomes dizzy, cannot see or focus, and is fatigued all day. (Id. at 154). Brownlee testified that she changed Persinger‘s diagnosis to depressive disorder NOS, a psychotic disorder NOS, and a personality disorder. (Id.). Describing one of her psychotic episodes, Persinger told Brownlee that, while she was driving to Dayton, she saw a car going up in front of her and coming back and things were jumping, so she had to pull over. (Id. at 154-155). Brownlee would not classify these episodes as “anxiety attacks.” (Id. at 157-158). Brownlee also testified that Persinger informed her that sexual charges were pending or had already been resolved
{¶41} Marilyn Cohn, the assistant director of a shelter in Urbana called Caring Kitchen, testified that Persinger was a client who stayed in the facility twice, from February 11, 2011 to March 17, 2011; and, from March 23, 2011 to July 30, 2011. (Id. at 161-163). Cohn testified that Persinger did not comply with the shelter rules when she left without letting anyone know where she was going. (Id. at 163). Cohn testified that Persinger apologized and promised to do better, so Caring Kitchen allowed her to return for a second time. (Id.). Cohn testified that she assisted Persinger in obtaining social services, including counseling at CAM, counseling with Brownlee, Job and Family Services aide, and assistance from Brandon Deskins, with adult parole. (Id.). According to Cohn, Persinger was also referred to the health department to take several pregnancy tests, and Persinger
{¶42} Cohn testified that Persinger was required to meet with her on a daily basis, and Persinger made major improvements from the first stay to the second stay at the shelter. (Id. at 165). Cohn testified that Persinger was clean, really wanted to get her children returned, was following through on her appointments, looking for jobs, and “100 percent” better than her first stay at the shelter. (Id.). Persinger obtained a PRN job at Wendy‘s and was looking for another job, testified Cohn. (Id.). Cohn testified that Persinger was making better decisions, though she still had some difficulty finding a job. (Id. at 166). Persinger indicated that she received around a $10,000 inheritance from her mother, though Persinger thought it was going to be more than that. (Id.). She also testified that Deskins talked to Persinger about using some of the inheritance to pay her child support arrearage to stay out of prison, but Persinger was concerned about getting housing so she paid a year‘s worth of rent, instead. (Id. at 167). Cohn testified that the father of Persinger‘s last child, Bowman, would call Persinger often while she was staying at the shelter the first time, but Persinger subsequently told him to stop calling. (Id. at 167-168). Cohn testified that her concern for placing the children with Persinger would be that she has no place to live and she does not have any
{¶43} On cross-examination, Cohn testified that Persinger was not a full-time employee at Wendy‘s and was getting about ten hours per week when she was working there. (Id. at 171). Cohn testified that Tony Fraley was living at Caring Kitchen for a period of time as well, and Persinger went to church with Fraley. (Id.). Cohn did not express any concerns about Sprinkle, but Cohn testified that Fraley was “very unstable,” mentally speaking. (Id. at 172). On re-direct, Cohn testified that Persinger enjoyed Wendy‘s and wanted more hours. (Id.).
{¶44} Dr. Glen Feltz, a licensed clinical psychologist, testified that he examined Persinger and determined that she had no signs of psychosis or extreme depressive mood state; she had complete orientation, awareness of the surroundings and who she was and where she was; she had no suicidal or homicidal ideations; and, she had good eye contact and fluent speech. (Id. at 12-14, 16, 26). According to Dr. Feltz, Persinger scored an 82 on the Stanford Binet cognitive test, meaning she was “at the low-average intellectual range, indicating [she] had adequate intellectual abilities to respond to the world and incorporate information from her environment.” (Id. at 17). Persinger‘s Minnesota Multiphasic Personality Inventory (“MMPI“) revealed that she had a sound
{¶45} Dr. Feltz testified that Persinger‘s Parenting Stress Inventory (“PSI“) relative to S.S. revealed that “she had fairly good knowledge about what would be required to be a parent,” and she saw S.S. as “somewhat demanding,” meaning S.S. requires a lot of her attention. (Id. at 19-20). Dr. Feltz testified that Persinger felt “a degree of warmth in dealing with [S.S.]. She felt connected to the child. She did not feel like the child intruded on her lifestyle.” (Id. at 20). Persinger exhibited signs of stress, though the source of that stress did not originate with her being a parent, according to Dr. Feltz. (Id.). Dr. Feltz testified that Persinger‘s “CRI” test, a test designed to determine how individuals cope with challenging situations, indicated that Persinger felt she had a good ability to respond to her environment, but Persinger would tend to avoid problems, even though she may feel confident to handle them. (Id. at 21-22, 31). Dr. Feltz further testified that Persinger‘s Bender Gestalt test results indicated the possibility of some “extreme emotional kind of disturbance,” which is usually a learning disability. (Id. at 22-
{¶46} Dr. Feltz identified State‘s exhibit five as a copy of his report. (Id. at 26). He also testified that Persinger does not respond to the world emotionally but “from a practical pragmatic task-oriented” state of reference. (Id. at 26-27). When asked about an incident when Persinger told her children, “Mommy is a big ice cream cone. Come lick me” during an agency visitation, Dr. Feltz testified that Persinger stated she meant it as a playful thing, and she realized that it was inappropriate and apologized for the incident. (Id. at 27). Dr. Feltz testified that Persinger has high dependency needs, meaning that she sought to get her emotional needs met through relationships, and he expressed concern that Persinger‘s dependency needs could interfere with her ability to recognize her children‘s needs. (Id. at 28). Dr. Feltz testified that Persinger had some attention-seeking tendencies, and it was difficult to know whether she could set her needs aside for her children‘s needs. (Id. at 29).
{¶47} On cross-examination, Dr. Feltz testified that Persinger was not out of the normal range for any psychological disorders, and he did not observe any “serious personality concerns” with Persinger. (Id. at 30, 32). Dr. Feltz also testified that Persinger‘s test results indicated that she answered truthfully, and
{¶48} Sara Frost, a certified foster parent with LCCS, testified that she and her husband, William Frost, have served as J.S., S.S., and K.P.‘s foster parents since February 10, 2011. (Id. at 38-39). Sara testified that the children appear to be thriving in their home. (Id. at 40). She testified that S.S. is like a “big brother” to J.S., and her son, Trenton, who is four. (Id. at 39-40). Sara testified that K.P. is a little over one and a half years old and follows around the boys quite a bit. (Id. at 40). Sara testified that all of the children treat her oldest daughters, Brittany Profitt (23) and Brooke (22), as big sisters, and the children know her parents and an older couple in the neighborhood who baby sit them, Hope and Kenny Martin, as “grandma” and “grandpa.” (Id. at 39, 41). Sara testified that her husband is employed at Mid States Packaging, and she is a full-time mom. (Id. at 41).
The best way I can describe [S.S.] when – the difference, he was a bit wild. Very hard to settle down. He had a hard time calming down. He had a lot – a little disregard for people around him. For example he was playing. He would just like…say he was on his trike. He would just run the other child over like he didn‘t even see them there. [S.S] was soiling his pants. He had smeared his bowel movements around the house. He destroyed property. He urinated in his bed nightly. And he had a hard time, just even when he did use the restroom, he would make a mess. He had a hard time using the toilet. Even to get a baby-sitter, he would just throw fits on
them. He was very similar to a 2-year old child throwing fits and not being potty trained. All of that has changed now. He is just…he just does…very well. He can calm himself down. He is doesn‘t [sic] soil his bed or his pants. He doesn‘t wet his bed. So, all of those bad things, I guess I said prior, he doesn‘t do now.
(Id. at 43-44). Sara testified that S.S. had been attending counseling through a CAM program in Urbana, which they continued until the counselor felt he did not need further counseling. (Id. at 44-45). Sara testified that J.S. is two and one-half years old and is not quite potty trained. (Id. at 45). J.S. is very shy and timid and when he first came to their home, he would hide under the table a lot, especially if they raised their voice to him, according to Sara. (Id. at 45-46). Sara testified that J.S. does not behave this way anymore and now hugs them freely when he was shy to hug them before. (Id. at 46). Sara testified that she received K.P. as an infant, and that K.P. is simply growing up. (Id.). On cross-examination, Sara testified that S.S.‘s CAM counselor, Nick, told her that Persinger brought S.S. for counseling to address his aggressive behavior. (Id. at 46-47). Sara testified that Persinger regularly exercised her visitation rights except after she was incarcerated. (Id. at 47-48)
{¶50} William Frost, Sara‘s husband, testified that all of the minor children get along with members of his family, and they do many family activities. (Id. at
{¶51} Miranda Warren, the guardian ad litem (GAL), testified that she recommended that the trial court grant LCCS’ motion for permanent custody in her report filed on June 13, 2012. (Id. at 144-145). Warren testified that she has concerns about Persinger‘s ability to maintain the children‘s basic needs for hygiene and cleanliness. (Id. at 145). Warren testified that when K.P. was removed from the home, it appeared that she had not been bathed since returning
{¶52} Sara Elliot, a kindergarten teacher at Indian Lake Elementary School, testified that she had S.S. in her previous year‘s class, and that S.S. made significant progress while in school. (Id. at 173-174). Elliot testified that S.S. has always been well-behaved, has honed his fine motor skills, and is reading above grade level. (Id. at 174). She testified that, at the beginning of the year, S.S. had problems going to the bathroom on the school bus because he was not using the bathroom all day while at school. (Id. at 175). Elliot testified that, by the end of the school year, S.S. was asking to go the bathroom and the problem was resolved. (Id.). Elliot described S.S. as “a great kid. Very eager to please. Very well
{¶53} Paula Frew, Persinger‘s younger sister, testified that Persinger has two older children, Phillip and Kyle, from her first husband, Phillip Persinger. (Id. at 177-178). Frew testified that her sister left Phillip after he became abusive. (Id. at 178). Frew testified that Persinger told her that she voluntarily gave custody of her two older boys to her ex-mother-in-law and ex-father-in-law; but later, Persinger told her that the boys were taken from her due to her drug use. (Id. at 179). Frew testified that her sister was aware of her child support obligation, though she did not exercise parenting time with the boys or really acknowledge them anymore. (Id.).
{¶54} Frew further testified that her sister never married S.S. and J.S.‘s father but lived with him in their parents’ home. (Id. at 180). Frew testified that their mother wanted the boys’ father out of the home because he was verbally abusive to the boys. (Id.). She testified that Persinger stayed in the home taking care of their mother, who was bed-ridden, until their mother passed away. (Id.). After that, in December 2010, Persinger moved into Bowman‘s house, according to Frew. (Id. at 181). Frew testified that LCCS became involved after Bowman hit S.S. with a belt four times, and S.S. told his teacher about the incident. (Id.). Frew testified that Persinger did not view this discipline as inappropriate;
{¶55} Concerning Persinger‘s parenting, Frew testified that “she tries and she means well,” but she is not sure Persinger has the ability to implement correct parenting. (Id. at 183, 185). Frew testified that, one time when she accompanied Persinger during a visitation, Persinger planned an activity with toxic paint that was all over the children and near their food, and Frew was especially concerned that K.P. would put the paint in her mouth. (Id. at 183-184). Frew testified that Persinger had a lot of learning difficulties when she was growing up due to her seizures and the medication she was taking for the seizures. (Id. at 184). On cross-examination, Frew testified that Persinger did a very good job of caring for their mother, even though she had two children living at the home at the same time. (Id. at 186). Frew also testified that S.S. and J.S. behaved when she babysat them. (Id. at 186-187). On re-direct, Frew testified that, when her mother died, she received less than a $10,000.00 inheritance. (Id. at 187-188). Frew testified
{¶56} Thereafter, the State rested, and the defense presented its case the next day. (June 15, 2012 Tr. at 4). Persinger testified that she is currently living in a pre-release center and is currently incarcerated for nonpayment of child support involving her two older sons and their grandmother. (Id. at 4-5). Persinger testified that she would be released on July 4, 2012. (Id. at 5). Persinger identified exhibits one, two, and three as certificates she obtained while incarcerated for Anger Resolution, Positive Parenting, and Stewards of Children Class. (Id. at 7). Persinger testified that she learned about controlling her anger, modified grounding, and protecting her children from sexual predators during these courses. (Id.).
{¶57} Persinger testified that S.S.‘s behavior was beginning to improve, and J.S. was beginning to have problems acting out, so she began parenting classes to address those problems. (Id. at 6). Persinger testified that S.S. began having bowel movement incidents in December, after being removed from the home, and S.S. had to be reminded to go to the bathroom. (Id. at 8). According to Persinger, S.S. began having trouble with potty training and accidents, particularly at night, after his father went to prison in 2009. (Id.). Persinger thought the night-time accidents were due to nightmares since S.S. would scream out in his sleep. (Id. at
{¶58} Persinger testified that she had permission to feed the ducks in the park. (Id. at 10). Persinger testified that she would arrive to office visits early since she had an issue with transportation, and her only transportation was provided through welfare and public transportation. (Id.). Persinger denied ever holding J.S. down while Bowman used a belt to spank him, and she testified that she scolded Bowman for using a belt on J.S. (Id. at 11). Persinger testified that she missed her two counseling sessions with Christensen because she was in jail on the failure to pay child support charge, and she only missed a total of two sessions. (Id. at 11-13). Persinger testified that she took S.S. for counseling when he was about three and a half years old, and S.S. was placed on medication for his attention and aggression problems. (Id. at 16).
{¶59} Persinger testified that she could not have avoided prison for nonpayment of child support, because she was told she would have to pay the entire $30,000.00 she owed, and she could not pay that amount. (Id. at 12). She testified that her rent was $450.00 per month, and she paid for a year‘s worth of rent so she would have a place to live. (Id. at 13). She also testified that she was working on an as-needed-basis at Wendy‘s, and she walked to work since it was
{¶60} On cross-examination, Persinger testified that she was married to Phillip Persinger for 18 months and nine days, and they had two children, Phillip and Kyle, ages 14 and 13, respectively. (Id. at 19). Persinger testified that her husband treated the children well, though he was a little controlling since he was going off of drugs. (Id. at 19-20). She testified that she left Phillip, and she and
{¶61} Persinger testified that, after her first husband Phillip, she began a five-year relationship with Brian Otis S. and had two children with him, S.S. and J.S. (Id. at 23). She testified that Brian was a good provider; however, he was physically aggressive toward S.S., yelling at him constantly and hitting S.S. with a belt. (Id. at 23-24). Persinger testified that she left Brian because she received reports of Brian‘s “unusual punishment” of S.S. (Id. at 24). She further testified that Brian is currently incarcerated for fleeing and alluding, and, when she left
{¶62} Persinger testified that she knew Bowman from childhood, and she moved in with him in December 2010, though she was not aware that he was a sex offender. (Id. at 25-27). Persinger testified that she was aware that Bowman was obsessive compulsive, which is why his home was so clean, and she was aware of Bowman using a belt for spankings, though she was not aware that he was taping J.S.‘s hands behind his back. (Id. at 27, 50). She also testified that she was aware that Bowman would dress up in an Army-like uniform, call himself “Drill Sergeant Charles,” carry a play gun, and march S.S. around the property yelling at him as a form of discipline. (Id. at 27-28). Persinger testified that she did not really have a relationship with Tony Fraley—that he was more into her than she was into him—and she left Fraley after she learned he had been abusive in his past. (Id. at 28-29). Persinger testified that, after Fraley, she began an on-again-
{¶63} Persinger further testified that her mother passed away in May 2010, and she received a little more than $9,000.00 as an inheritance, which she used all but a little over $1,000.00 of, to pay for a year‘s worth of rent. (Id. at 30). She testified that, after she received the inheritance, she placed Bill Yates, a family friend, in charge of her finances so she would not spend the money unwisely. (Id. at 30-31). Persinger testified that her former probation officer, Brandon Deskins, indicated that she could make monthly payments on her child support arrearage, but this option was no longer available when she was in court. (Id. at 31). Persinger will get $310.00 per month for six months in social security benefits upon her release, and she would also qualify for food stamps. (Id. at 32). She testified that she has two months left of her prepaid rent, and rent is $450.00 per month, not including utilities, which are around $100.00 per month. (Id.).
{¶64} Persinger testified that she first started seeing Brownlee after she called Champaign County Children Services (CCCS) because she was having difficulty with S.S. (Id. at 33). According to Persinger, CCCS placed her in the Family and Children First Cluster to help provide her basic services, and she met with Brownlee to deal with her depression after Brian was incarcerated. (Id. at 33-34). She testified that she has taken medication for epilepsy since 2004, and she
{¶65} Concerning her apartment, Persinger testified that she planned to put her bedroom downstairs to give the children separate bedrooms for privacy reasons. (Id. at 37-38). Persinger denied giving S.S. special preference over J.S., though she admitted that she had certain toys for S.S. only, and S.S. would take these toys for “alone time,” when he could play by himself. (Id. at 38-39). Persinger testified that she does not have a driver‘s license, though she can get it reinstated by retaking a driving exam. (Id. at 40-41). She testified that she was
{¶66} Persinger further testified that she gave custody of Phillip and Kyle to her ex-mother-in-law because she was addicted to heroin. (Id. at 44). Persinger testified that she still had rights to Phillip and Kyle and could have obtained custody of them after she dealt with her heroin addiction, but she felt the boys were better off with her ex-mother-in-law since she did not have a job. (Id. at 45). Persinger testified that she intends to find a full-time job after she is released from prison, and a friend, Geri Adkins, would assist her with day care. (Id. at 46-47). Persinger testified that she could pay for day care, food, and medical assistance with governmental assistance. (Id. at 47). She testified that, before the DNA testing, she was not sure whether K.P.‘s father was Ryan or Bowman, because she was with Ryan just prior to Bowman. (Id. at 49). Persinger testified that, after charges were filed against Ryan, Brownlee advised her to end the relationship, so she left Ryan. (Id.). Persinger denied taping her children‘s hands behind their back, and she testified that she was not aware that Bowman was taping their hands. (Id. at 49-50). She further testified that she would have stopped Bowman from doing this if she knew it was happening. (Id. at 54). According to Persinger,
{¶67} Persinger testified that Gary, a 60-year-old man who was her babysitter growing up, would watch J.S. occasionally. (Id.). According to Persinger, Gary was no longer working and lived with his brother, Ronnie, and she was not aware that Gary was using a fly swatter to discipline J.S. (Id. at 56-57). Persinger testified that she would send J.S. to Gary when she had to take S.S. to
{¶68} David Sprinkle testified that he has known Persinger for 12-13 years, and she has babysat his two children. (Id. at 67-68). According to Sprinkle, Persinger interacted very well with his children, and she interacts very well with
{¶69} After reviewing the evidence presented, the trial court determined that granting LCCS’ motion for permanent custody was in the minor children‘s best interest. (July 16, 2012 JE, Doc. No. 156). The trial court found that
{¶71} Persinger‘s scheduled release date was July 4, 2012, though she speculated that she would be granted judicial release. (June 15, 2012 Tr. at 5). It is also unclear how Persinger will continue to avoid further incarceration for failing to pay her child support obligation.
{¶72} Closely tied to the case plan goal of employment, a second case plan goal required Persinger to seek, obtain, and maintain stable housing. (Doc. No. 21). After LCCS became involved, Bowman evicted Persinger from his home, requiring her to live in a shelter. Near the end of July 2011, Persinger obtained an apartment; however, Persinger‘s subsequent incarceration and lack of employment raised serious concern over her ability to maintain housing after her release since the lease and prepaid rent ended prior to her release date. (Doc. No. 88). It was unclear how Persinger intended to maintain her apartment after her public assistance ended, besides her testimony that she might have a job with a friend.
{¶73} Aside from failing to complete her case plan goals, the record clearly and convincingly demonstrated that the children should not be placed with Persinger. Persinger suffers from a “chronic emotional illness” affecting her ability to recognize and empathize with the needs of her children.
{¶74} Besides her dangerous male companions, Persinger allowed Gary Stapleton, a low functioning male neighbor who threatened physical violence upon the children, to watch J.S. several times. There was also testimony that Persinger
{¶75} The GAL also raised serious concerns about Persinger should the trial court not grant LCCS permanent custody. While recognizing that Persinger loved her children, the GAL testified that Persinger was simply unable to meet the children‘s most basic needs, and Persinger was unwilling to sacrifice her need for male companionship even for her children‘s safety. The evidence also showed that S.S. and J.S. improved dramatically with the Frosts but would quickly regress after visiting Persinger.
{¶76} Persinger argues that LCCS should have waited for her to obtain judicial release so she could continue her case plan. We disagree. LCCS provided Persinger with ample opportunity to complete her case plan. LCCS provided Persinger with transportation assistance, social services, counseling, and in-home
{¶77} Although none of the concerns in this case alone may have warranted granting LCCS permanent custody of S.S., J.S., and K.P., granting LCCS’ motion was in the minor children‘s best interest when viewed in light of all the circumstances. Upon review of the record, we therefore conclude that the trial court‘s findings were supported by clear and convincing evidence, and the trial court did not err by granting LCCS’ motion for permanent custody.
{¶78} Persinger‘s assignment of error is overruled.
{¶79} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr