In re X.S.
IN RE:
X.S., DEPENDENT CHILD. [GABRIEL S. - APPELLANT] [AMANDA T. - APPELLANT] CASE NO. 10-20-09 OPINION
IN RE:
M.S., DEPENDENT CHILD. [GABRIEL S. - APPELLANT] [AMANDA T. - APPELLANT] CASE NO. 10-20-10 OPINION
IN RE:
G.S., DEPENDENT CHILD. [GABRIEL S. - APPELLANT] [AMANDA T. - APPELLANT] CASE NO. 10-20-11 OPINION
S.S., DEPENDENT CHILD. [AMANDA T. - APPELLANT] CASE NO. 10-20-12 OPINION
IN RE:
W.S., DEPENDENT CHILD. [AMANDA T. - APPELLANT] CASE NO. 10-20-13 OPINION
APPEARANCES:
Peter R. VanArsdel for Appellant, Gabriel S.
Gloria A. Dicke for Appellant, Amanda T.
Andrew J. Hinders for Appellee
{1} Father-appellant, Gabriel S., appeals the October 1, 2020 judgments of the Mercer County Court of Common Pleas, Juvenile Division, granting permanent custody of three of his children to appellee, Mercer County Department of Job and Family Services (“MCDJFS“). Mother-appellant, Amanda T., appeals the same court‘s October 1, 2020 judgments granting MCDJFS permanent custody of her five children, three of whom she shares with Gabriel. For the reasons that follow, we affirm.
I. Facts and Procedural History
{2} Gabriel and Amanda are the biological parents of X.S., born 2015, M.S., born 2013, and G.S., born 2012. In April 2017, X.S., M.S., and G.S. were placed in MCDJFS‘s custody after Gabriel “overdosed on an illegal drug, and [Amanda] was found to have used illegal drugs.” On June 27, 2017, X.S., M.S., and G.S. were adjudicated neglected and dependent in case number 32017016. By judgment entry dated July 14, 2017, X.S., M.S., and G.S. were continued in the temporary custody of MCDJFS.1
{4} On July 3, 2019, MCDJFS refiled complaints in the trial court alleging that X.S., M.S., and G.S., who had been in the temporary custody of MCDJFS without interruption since April 2017, were neglected and dependent children. The complaints also included requests for permanent custody of X.S., M.S., and G.S.
{5} An initial hearing was held on July 8, 2019, at which the magistrate continued X.S., M.S., and G.S. in the temporary custody of MCDJFS. The trial court adopted the magistrate‘s order on July 10, 2019.
{6} An adjudicatory hearing was held on August 13, 2019. At the hearing, Gabriel and Amanda proposed that they would stipulate to findings of dependency. In exchange, MCDJFS agreed to withdraw its requests for permanent custody of X.S., M.S., and G.S. MCDJFS also agreed that if the trial court found X.S., M.S., and G.S. to be dependent, a case plan would be prepared giving Amanda temporary custody of the children. The trial court approved the parties’ proposal and found X.S., M.S., and G.S. to be dependent children as alleged in the complaints. The trial court then proceeded to conduct a dispositional hearing, at which the trial court received evidence that Amanda had tested negative for drugs of abuse for the previous year, that she maintained custody of S.S. and W.S., that she was employed,
{7} On August 22, 2019, MCDJFS filed complaints in the trial court alleging that S.S. and W.S. were neglected or dependent children. The complaints included requests for permanent custody of S.S. and W.S. To support its complaints, MCDJFS alleged that Amanda was found to be under the influence of drugs on or about August 21, 2019, that she refused to comply with court-ordered drug testing, and that “at the time, [Amanda] was residing with the child[ren] in a homeless shelter with no other adult present to care for the child[ren].”
{8} That same day, MCDJFS filed motions for ex parte predispositional orders requesting that S.S. and W.S. be placed in the custody of MCDJFS pending a hearing. In addition, motions were filed requesting that X.S., M.S., and G.S. be returned to MCDJFS‘s custody pending a hearing. The trial court granted MCDJFS‘s motions, and all five children were placed in the custody of MCDJFS pending further hearing. Later that day, the trial court conducted a shelter-care hearing. By judgment entries dated September 9, 2019, the trial court ordered that all five children be placed in the temporary custody of MCDJFS.
{10} A dispositional hearing was held on October 21, 2019. At the hearing, MCDJFS withdrew its requests for permanent custody of S.S. and W.S. and asked that S.S. and W.S. be continued in the temporary custody of MCDJFS. The trial court continued S.S. and W.S. in the temporary custody of MCDJFS. The trial court filed its judgment entries of disposition on October 28, 2019.
{11} At the same dispositional hearing, the trial court also reviewed X.S.‘s, M.S.‘s, and G.S.‘s prior dispositions. The trial court continued X.S., M.S., and G.S. in the temporary custody of MCDJFS.
{12} On October 29, 2019, MCDJFS filed a motion to approve and adopt amendments to Case Plan 1.02. A case plan review hearing was held on November 5, 2019. Gabriel did not attend this hearing. However, his attorney orally objected to portions of the proposed amended case plan. The trial court overruled the objections. On November 22, 2019, the amended case plan, designated Case Plan 1.03, was approved and journalized in X.S.‘s, M.S.‘s, and G.S.‘s cases. Case Plan
{13} On April 20, 2020, MCDJFS filed motions for permanent custody of all five children. A permanent-custody hearing was held on July 29-30, 2020. On October 1, 2020, the trial court granted MCDJFS‘s motions for permanent custody.
II. Assignments of Error
{14} On October 21, 2020, Gabriel filed a notice of appeal. He raises the following two assignments of error for our review:
- The trial court erred in not following the mandates of
O.R.C. 2151.412 in response to objections to the case plan. - The agency failed to use reasonable efforts to reunify Gabriel S. with his children.
{15} On October 26, 2020, Amanda filed her own separate notice of appeal. She raises the following two assignments of error for our review:
- The trial court‘s judgment in granting permanent custody was against the manifest weight of the evidence and contrary to law.
- The trial court‘s decision of granting permanent custody to the Department should be overruled because the case plan was fatally defective and not in accordance with the Ohio Revised Code.
{16} We will first address Amanda‘s two assignments of error, followed by Gabriel‘s two assignments of error.
A. Amanda‘s First Assignment of Error: Is the trial court‘s decision to award permanent custody of Amanda‘s five children to MCDJFS against the manifest weight of the evidence?
{17} In her first assignment of error, Amanda argues that the trial court‘s decision to grant permanent custody of her five children to MCDJFS is against the manifest weight of the evidence. Specifically, Amanda challenges the trial court‘s determinations that her children cannot be placed with her within a reasonable time.
i. Manifest-Weight Review of Permanent-Custody Decisions
{18} “When an appellate court reviews whether a trial court‘s permanent custody decision is against the manifest weight of the evidence, the court ‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.‘” In re Dn.R., 3d Dist. Shelby No. 17-20-06, 2020-Ohio-6794, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001).
{19} In a permanent-custody case, the ultimate question for a reviewing court is “whether the juvenile court‘s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 43.
{20} “Reviewing courts should accord deference to the trial court‘s decision because the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that cannot be conveyed to us through the written record.” In re S.D., 5th Dist. Stark No. 2016 CA 00124, 2016-Ohio-7057, ¶ 20. “A reviewing court should find a trial court‘s permanent custody decision against the
ii. Standards and Procedures for the Termination of Parental Rights
{21} The right to raise one‘s child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.
{22} ”
{23} Although Amanda mentions the children‘s “best interest” at various points in her appellate brief, her brief does not include any specific references to the best-interest factors set forth in
[T]he court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to [
R.C. 2151.414(A) ], by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:(a) The child is not abandoned or orphaned, 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, * * * 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.
* * *
(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 * * *.
{25} “Specifically concerning
[f]ollowing 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.
iii. The trial court‘s decision to award permanent custody of the children to MCDJFS is not against the manifest weight of the evidence.
{26} In its judgment entries granting permanent custody of X.S., M.S., G.S., S.S., and W.S. to MCDJFS, the trial court made the following findings under
The children have been in the custody of the Department twelve or more months of a consecutive twenty-two month period. During that period, [Amanda] had the children in her custody for less than ten days before the children were removed once again during an emergency hearing due to her inability to care for all five young children.
* * *
The court does find that * * * X.S., M.S., and G.S. have been in the custody of the Department for in excess of 12 out of 24 [sic] months and that * * * W.S. and S.S. have been in the custody of the Department since August of 2019.
* * *
[Amanda] has shown interest and desire to have her children and she appears to love them. She has taken advantage of services offered by the Department that she considers important to herself. However, she has not shown the ability to put her children above her emotional needs for a very long time. She is still facing the issue that led to the children‘s removal in the first place. Her lapses with serious drugs have occurred even when [she] is aware a permanent custody motion is pending. While the court is aware of what she has accomplished, it is very aware of what she has not. She cannot provide a safe, secure environment for the children within a reasonable time despite the amount of time that has elapsed and the services that have been offered. She still feels that these issues are just mistakes that should not count. The children have waited long enough.
After reviewing the record, we conclude that clear and convincing evidence supports these findings.
a. X.S., M.S., and G.S. have been in MCDJFS‘s temporary custody for 12 or more months of a consecutive 22-month period.
{27} As indicated above, Amanda argues that the trial court‘s decision to grant permanent custody to MCDJFS is against the manifest weight of the evidence because the record does not support the trial court‘s determinations under
{28} Therefore, the record clearly and convincingly supports the trial court‘s findings under
b. Clear and convincing evidence supports that S.S. and W.S. cannot be placed with Amanda within a reasonable time due to her recurring drug use.
{29} In its October 1, 2020 judgment entries awarding permanent custody of S.S. and W.S. to MCDJFS, the trial court noted that S.S. and W.S. had been in MCDJFS‘s custody since August 2019. However, in contrast to X.S.‘s, M.S.‘s, and
{30} In its motions for permanent custody of S.S. and W.S., MCDJFS argued that the trial court could use either
{31} At the permanent-custody hearing, Amanda testified she first began some sort of drug counseling in 2017 when X.S., M.S., and G.S. were removed from her custody. Amanda testified that MCDJFS wanted her to complete a drug assessment through Foundations Behavioral Health Services (“Foundations“). (July 30, 2020 Tr. at 289). She stated that she did “a little bit of counseling” at a facility in Van Wert and she acknowledged that she was “exposed” to counseling beginning in 2017, but she testified that she “never followed through and completed it.” (July 30, 2020 Tr. at 289-290).
{32} Nevertheless, Amanda did eventually find a program to help her address her drug use, though it does not appear that MCDJFS referred her to the program. Amanda testified she was in “active addiction” when she discovered she
{33} As of the summer of 2019, Amanda‘s efforts appeared to be paying off. At the August 13, 2019 dispositional hearing, the trial court found that Amanda had tested negative for drugs of abuse for an entire year. Indeed, drug-testing results admitted as evidence at the permanent-custody hearing demonstrate that Amanda consistently tested negative for illegal drugs throughout July 2019. (Joint Ex. 2).
{34} However, Amanda could not maintain her sobriety. On August 21, 2019, Amanda appeared intoxicated and refused to submit to drug screening. While Amanda did not test positive for illegal drugs when she finally submitted to testing on August 22, 2019, and while she regularly tested negative for illegal drugs for the next month and a half, Amanda began periodically testing positive for illegal drugs beginning in October 2019. (Joint Exs. 1, 2). Amanda tested positive for morphine
{35} Carrie Hammersley, a caseworker for MCDJFS, testified that after the five children were removed from Amanda‘s custody following the August 21, 2019 incident, she suggested that Amanda enter an inpatient drug treatment program. (July 29, 2020 Tr. at 89-91). Hammersley stated that she also recommended inpatient treatment to Amanda in December 2019 after Amanda tested positive for cocaine, amphetamine, and methamphetamine. (July 29, 2020 Tr. at 90-91). However, according to Hammersley, Amanda declined on both occasions to enter an inpatient treatment program. (July 29, 2020 Tr. at 125). Hammersley testified that Amanda was not receptive to inpatient treatment because “[s]he didn‘t feel that she had that much of a problem, she wasn‘t using every day, it was, you know, under stress.” (July 29, 2020 Tr. at 125-126). She also indicated that Amanda was worried
{36} Although Amanda did not enter an inpatient treatment program, MCDJFS did provide Amanda with counseling and therapy services through Foundations. Amanda started therapy with Skylar Howell, a home-based therapist with Foundations, in October 2019. (July 29, 2020 Tr. at 156); (July 30, 2020 Tr. at 246). While Howell‘s services were not directed specifically at addressing Amanda‘s drug use, Howell testified that she would talk to Amanda about her drug use, the barriers to her sobriety, and her plans for staying sober. (July 29, 2020 Tr. at 167). Amanda testified that Howell “touched on the addictions therapy while she was doing it” and that they “mainly talked more about addiction.” (July 30, 2020 Tr. at 245-246). Yet, Howell eventually concluded that targeted drug counseling would better suit Amanda‘s needs. Thus, in June 2020, Howell discharged Amanda from home-based therapy and referred her to Cristina Lim, a substance abuse and mental health counselor at Foundations. (July 29, 2020 Tr. at 158, 188, 190). According to Howell, Amanda was receptive to drug counseling, and Amanda testified that, as of the date of the permanent-custody hearing, she had been working with Lim for a little over a month. (July 29, 2020 Tr. at 164); (July 30, 2020 Tr. at 244). Lim testified that she had met with Amanda three times as of the date of the permanent-custody hearing but that she had yet to complete a full assessment of
Amanda‘s substance-abuse issues. (July 29, 2020 Tr. at 191-192). When asked how long it would take for Amanda to overcome her substance-abuse issues, Lim declined to give an estimate and stated that “[i]t‘s different for different individuals.” (July 29, 2020 Tr. at 196).
{37} In addition to the Foundations counselors that MCDJFS made available to Amanda, the record reflects Amanda utilized other counseling services between August 2019 and the date of the permanent-custody hearing. After receiving a referral from the shelter at which she was staying, Amanda started counseling at Momentum Counseling and Consultation (“Momentum“) in late August 2019. (July 29, 2020 Tr. at 34); (July 30, 2020 Tr. at 28). Amanda did not receive specialized substance-abuse counseling at Momentum, and Amanda‘s counselors at Momentum ultimately referred her to an addiction specialist. (July 29, 2020 Tr. at 46, 144). Amanda stopped attending counseling appointments at Momentum at the end of December 2019. (July 29, 2020 Tr. at 34, 142).
{38} In their testimonies at the permanent-custody hearing, Amanda‘s various counselors had similar assessments of Amanda‘s progress in and attitude toward counseling. Although Amanda‘s counselors at Momentum testified that Amanda had not completed all of their counseling goals for her, they each testified that they were satisfied with Amanda‘s progress at the time their relationships with Amanda ended. (July 29, 2020 Tr. at 38-39, 42, 143, 146). In addition, Howell and
{39} For her part, Amanda indicated she planned to continue drug counseling with Lim and that she was already benefitting from the counseling. (July 30, 2020 Tr. at 245). She stated that she does not want to continue using drugs and that, through counseling, she is trying to change her behaviors and become the best mother she can be. (July 30, 2020 Tr. at 254, 267). However, Amanda acknowledged she is an addict, and she testified that though she would like to say that she would never use drugs again, she could not guarantee that she will never relapse. (July 30, 2020 Tr. at 291).
{40} Finally, evidence about Amanda‘s social life was also presented at the permanent-custody hearing. In January 2020, Amanda began living in an apartment in St. Marys after moving out of the shelter in Celina. Soon after moving into the apartment, Amanda began allowing an acquaintance named Jordan Helmstetter to stay with her. Although Amanda‘s apartment was not Helmstetter‘s primary
{41} We conclude the trial court‘s findings under
{42} Since X.S., M.S., and G.S. were first removed from Amanda‘s custody in 2017, MCDJFS has consistently connected Amanda with counseling services, including, at times, specialized substance-abuse counseling. The record indicates Amanda failed to fully utilize the services offered to her during the early stages of these cases. When Amanda relapsed in August 2019, MCDJFS recommended that Amanda enter an inpatient drug treatment program. Amanda twice refused MCDJFS‘s suggestion. MCDJFS then provided Amanda with home-based therapy services through Foundations. Although Amanda‘s home-based therapist was not a substance-abuse specialist, Amanda‘s drug use and her plans for staying sober were frequently the focus of their counseling sessions. Thus, the record demonstrates that beginning in 2017 and continuing through S.S. and W.S.‘s removal in August 2019 and the filing of the permanent-custody motions in April 2020, MCDJFS made considerable efforts to help Amanda address her substance-abuse issues.
{43} In spite of MCDJFS‘s efforts to help Amanda, as well as Amanda‘s own independent efforts with Momentum and the House of Hope, Amanda has not satisfactorily resolved her substance-abuse issues. Amanda has certainly made
{44} Finally, it is difficult to project when, if ever, Amanda will be able to put her substance-abuse issues behind her. Although Amanda intends to continue substance-abuse counseling with Lim and Lim expects Amanda to be cooperative going forward, Amanda is still in the early stages of her most recent attempt at substance-abuse counseling. Accordingly, while it is possible that Amanda may one day develop the skills she needs to cope with stress without resorting to drugs, the record does not establish that that day is imminent. The record simply does not support that S.S. and W.S. can be placed with Amanda in a drug-free home in the reasonably foreseeable future.
{45} Because the trial court‘s
{46} Amanda‘s first assignment of error is overruled.
B. Amanda‘s Second Assignment of Error: Did MCDJFS submit adoption plans that fulfilled MCDJFS‘s obligations under R.C. 2151.413(E) ?
{47} In her second assignment of error, Amanda argues the trial court‘s decision granting permanent custody of the children to MCDJFS should be reversed because “the case plan was fatally defective and not in accordance with the laws of this state.” Although Amanda acknowledges that MCDJFS submitted a proposed case plan for each child during the second day of the permanent-custody hearing on July 30, 2020, she claims the case plans did not include adoption plans sufficient to meet the requirements of
{48}
{49} However, Amanda‘s principal argument under her second assignment of error does not concern the timing of the submission of MCDJFS‘s adoption plans. Instead, Amanda challenges the content of MCDJFS‘s July 30, 2020 proposed case plans. Amanda observes that “the Department‘s case plan fails to document any efforts for permanency, but merely states ‘the agency has requested PC for the boys.‘” She further maintains that “[t]he case plan states no recruitment activities taken by the agency nor does it state recruitment efforts in finding the adoptive home.” According to Amanda, “[l]ogic would assume the Department had intentions on the temporary custodians to be recruited as the adoptive parents; however, such a case plan fails to dictate any efforts on behalf of the Department.”
{51} Amanda‘s second assignment of error is overruled.
{52} In his first assignment of error, Gabriel argues the trial court erred by approving and adopting MCDJFS‘s proposed amendments to Case Plan 1.02. Gabriel suggests that after his attorney lodged objections to MCDJFS‘s proposed amendments to Case Plan 1.02 at the November 5, 2019 case plan review hearing, the trial court was required to hold an additional hearing on the objections. He maintains that the trial court erred by approving and adopting MCDJFS‘s proposed amendments to Case Plan 1.02 without first conducting another hearing to specifically consider his objections.
i. Procedures for Amending Case Plans
{53} “The procedures for the creation and amendment of a case plan are statutorily mandated.” In re S.D-M., 9th Dist. Summit Nos. 27148 and 27149, 2014-Ohio-1501, ¶ 26. Specifically, Ohio law does not permit substantive changes to a case plan “without recourse to the mandatory procedure set out in
(2) Any party may propose a change to a substantive part of the case plan, including, but not limited to, the child‘s placement and the visitation rights of any party. A party proposing a change to the case plan shall file the proposed change with the court and give notice of the proposed change in writing before the end of the day after the day of filing it to all parties and the child‘s guardian ad litem. All parties and the guardian ad litem shall have seven days from the date the
notice is sent to object to and request a hearing on the proposed change. (a) If it receives a timely request for a hearing, the court shall schedule a hearing pursuant to [
R.C. 2151.417 ] to be held no later than thirty days after the request is received by the court. The court shall give notice of the date, time, and location of the hearing to all parties and the guardian ad litem. The agency may implement the proposed change after the hearing, if the court approves it. The agency shall not implement the proposed change unless it is approved by the court.(b) If it does not receive a timely request for a hearing, the court may approve the proposed change without a hearing. If the court approves the proposed change without a hearing, it shall journalize the case plan with the change not later than fourteen days after the change is filed with the court. If the court does not approve the proposed change to the case plan, it shall schedule a hearing to be held pursuant to [
R.C. 2151.417 ] no later than thirty days after the expiration of the fourteen-day time period and give notice of the date, time, and location of the hearing to all parties and the guardian ad litem of the child. If, despite the requirements of [R.C. 2151.412(F)(2) ], the court neither approves and journalizes the proposed change nor conducts a hearing, the agency may implement the proposed change not earlier than fifteen days after it is submitted to the court.
ii. The Objections to the Proposed Amendments to Case Plan 1.02
{54} On October 29, 2019, MCDJFS filed a motion to approve amendments to Case Plan 1.02. The next day, the trial court filed a notice scheduling a case plan review hearing for November 5, 2019. There is no indication in the record that Gabriel or his attorney specifically requested the hearing. Furthermore, Gabriel did not file written objections to the proposed amendments, nor did he file his own proposed amendments in writing.
This 5th day of November 2019, this cause came on for hearing to approve the Case Plan, filed on October 29, 2019. * * * The Court reviewed the Plan with the parties. Following discussion with counsel, the Court noted objections to the Plan by [Gabriel‘s counsel], first that [Gabriel] wanted visits with the child[ren] to be unsupervised and second that he wanted visits to take place at his residence in the Village of Rockford, Ohio, on Saturdays between 12:00 p.m. and 4:00 p.m. Finally, [Gabriel] agreed to the drug testing provision, if it also took place at his Rockford residence. * * * Over the noted objections of [Gabriel‘s counsel], the Court approved the Case Plan as filed * * *
iii. The trial court did not err by approving and adopting MCDJFS‘s proposed amendments to Case Plan 1.02.
{56} As an initial matter, we find that Gabriel‘s “objections” to MCDJFS‘s proposed amendments were not objections as contemplated by
{57} Furthermore, under Case Plan 1.02, Gabriel was allowed two two-hour supervised visits per week with X.S., M.S., and G.S. at a neutral site. In its proposed amendments to Case Plan 1.02, MCDJFS suggested a visitation schedule that would allow Gabriel one two-hour supervised visit per week with X.S., M.S., and G.S. in an agency setting. By requesting that he be allowed one four-hour unsupervised visit per week with X.S., M.S., and G.S. at his residence in Rockford, Gabriel was not looking to preserve the status quo. Instead, Gabriel was proposing a plan of visitation that was not contemplated either in Case Plan 1.02 or in MCDJFS‘s proposed amendments to Case Plan 1.02. Consequently, Gabriel‘s “objections” are best described as proposed changes to Case Plan 1.02.
{58} Viewing Gabriel‘s “objections” as proposed amendments to Case Plan 1.02, we cannot say that the trial court erred by approving and adopting MCDJFS‘s proposed amendments without holding an additional hearing. Under
{60} Moreover, it is far from clear that Gabriel would have been available to attend a separate hearing on his proposed changes or that he would have been able to assist his attorney in preparing for such a hearing. At the permanent-custody hearing, Gabriel testified that he left Ohio in August 2019 to seek work in Kentucky and Tennessee. (July 30, 2020 Tr. at 305-306). According to Gabriel, while he was in Kentucky and Tennessee, his phone “didn‘t hardly work at all, like, hardly ever.” (July 30, 2020 Tr. at 330-331). He stated that he returned to Ohio sometime in December 2019, though the exact date of his return is unclear. (July 30, 2020 Tr. at 305-306). Thus, even if the trial court had scheduled an additional hearing for some time in early- or mid-December 2019, Gabriel has not established that he would have returned to Ohio to attend the hearing. See
{61} Finally, we note that our conclusion would be the same even if Gabriel‘s “objections” were treated as actual objections to MCDJFS‘s proposed changes to Case Plan 1.02. First, there is authority suggesting that an oral objection to a case plan is not sufficient under
{62} Gabriel‘s first assignment of error is overruled.
D. Gabriel‘s Second Assignment of Error: Did the trial court commit prejudicial error when it found that MCDJFS “made reasonable efforts with [Gabriel] to prevent the removal of the children and reunification“?
{63} In his second assignment of error, Gabriel takes issue with the trial court‘s determination that MCDJFS made reasonable efforts both to prevent the removal of X.S., M.S., and G.S. and to reunite him with his children. Gabriel claims “[t]here was no finding by the trial court prior to the hearing on the permanent custody motion that the department made reasonable efforts to reunify the family” and that “[t]herefore, there was an obligation for the court to make a reasonable efforts determination.” He does not dispute that the trial court made reasonable-efforts determinations in its judgment entries granting MCDJFS‘s motions for permanent custody, but he argues that the trial court‘s determinations are erroneous
i. Reasonable Efforts
{64} “[V]arious sections of the Revised Code refer to the agency‘s duty to make reasonable efforts to preserve or reunify the family unit,” most notably
removes a child from the child‘s home or continues the removal of a child from the child‘s home, the court shall determine whether the public children services agency * * * has made reasonable efforts to prevent the removal of the child from the child‘s home, to eliminate the continued removal of the child from the child‘s home, or to make it possible for the child to return safely home.
ii. The trial court did not commit any prejudicial error with respect to finding that MCDJFS made reasonable efforts to reunify Gabriel with his children.
{65} Gabriel maintains that the trial court was required to make reasonable-efforts determinations under
{66} Because the trial court made reasonable-efforts findings under
{67} Gabriel‘s second assignment of error is overruled.
IV. Conclusion
{68} For the foregoing reasons, Gabriel‘s and Amanda‘s assignments of error are overruled. Having found no error prejudicial to the appellants herein in the particulars assigned and argued, we affirm the judgments of the Mercer County Court of Common Pleas, Juvenile Division.
Judgments Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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