[Cite as In re A.R., 2019-Ohio-389.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTERS OF: : JUDGES: : Hon. William B. Hoffman, P.J. A.R. : Hon. Craig R. Baldwin, J. B.R. : Hon. Patricia A. Delaney, J. W.R. : : : Case No. 2018CA00091 : 2018CA00097 : 2018CA00098 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case Nos. 2016JCV1124, 2016JCV1125, 2016JCV1126
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 6, 2019
APPEARANCES:
For Plaintiff-Appellant Judi Morris For Defendant-Appellee
BETH A. LIGGETT JAMES B. PHILLIPS Stark County Public Defender Stark County Department 201 Cleveland Ave. S.W., Suite 104 of Job and Family Services Canton, Ohio 44702 221 Third St. S.E. Canton, Ohio 44702 Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 2
Baldwin, J.
{¶1} Appellant, Mother of the three juveniles who are the subject of this case,
appeals the decision of the Stark County Court of Common Pleas, Family Court Division,
granting the state’s motion for permanent custody of B.R. and his siblings, W.R. and A.R.
The appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant’s children, B.R., W.R., and A.R., were taken into the temporary
custody of Stark County Department of Jobs and Family Services (Agency) in December
2016 after an unsuccessful non-court intervention beginning in April 2016 failed to resolve
the issues brought to the attention of the Agency. A case plan was established and
approved but the Agency concluded that mother failed to make sufficient progress toward
completion of the plan and, in April 2018, filed for permanent custody. After a hearing in
June 2018 permanent custody of the children was granted to the Agency. Appellant
contends she was making progress on the plan and should be allotted an additional six
months to complete the goals and regain custody of her children.
{¶3} Appellant has a history with the Agency beginning before 2000, but despite
continued contact and services, the issues regarding parenting remained unresolved.
Appellant lost custody of three children in 2001 due to medical neglect and abuse and
was convicted of child endangering. The Agency received multiple complaints of neglect
and maltreatment of A.R. since her birth in 2003 and both A.R. and B.R were removed
from the appellant’s care in 2005 due to allegations of neglect. Appellant completed a
case plan in 2006 and the children were returned to her custody, but the Agency Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 3
continued to receive calls reporting concerns about the emotional, medical and physical
mistreatment of the children.
{¶4} The Agency provided services in a non-court related case beginning in April
2016, but the attempt to resolve the problems brought to the Agency’s attention was
unsuccessful. The Agency received additional reports of neglect and dependency of the
children as well as allegations of abuse by their father who allegedly choked B.R. On
December 6, 2016, the Agency filed a complaint alleging the children were dependent
and neglected. An ex parte order was granted, putting the children in the temporary
custody of the Agency. The complaint came on for hearing and the Agency dismissed
the allegation of neglect and appellant admitted to the dependency of the children. The
father did not appear at the hearing and the state presented evidence regarding his
parental rights and responsibilities. The trial court found the children dependent.
{¶5} A case plan to reunify the children with appellant was submitted by the
Agency and approved by the Court. The plan required appellant to complete a parenting
evaluation at Northeast Ohio Behavioral Health. Appellant completed the evaluation and
was offered the following case plan services: complete a drug/alcohol assessment and
follow all recommendations; complete Goodwill Parenting; participate in anger
management at Free Space; and maintain stable housing and income. The case plan
was filed on January 4, 2017 and was incorporated into the order granting the agency
temporary custody on March 1, 2017. An amended case plan was filed on June 2, 2017
and, on November 1, 2017, the agency filed a motion to extend temporary custody.
{¶6} Appellant made minimal progress toward the completion of her case plan
over the period of time in which the children were in temporary custody. She successfully Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 4
completed the drug and alcohol assessment and there were no further issues regarding
the abuse of drugs or alcohol. However, her compliance with the remaining and more
important elements of her case plan fell short of fulfilling any of the requirements. Aimee
Thomas, Ph.D., J.D., PCC-S, the psychologist and professional licensed clinical counsel
that evaluated appellant, concluded that appellant had not made successful progress
toward the resolution of the issues that led to the removal of the children. The case worker
assigned to appellant felt that additional time would not alter the status of the case and
the evidence that appellant has received some of the same services in the past provides
significant support to her conclusion.
{¶7} Appellant appeared at all appointments and visits with minor exceptions and
the witnesses for the state conceded that her attendance was appropriate. Despite her
regular attendance at the Good Will Parenting Program and Free Space Anger
Management, she failed to make any progress toward resolving the problems that caused
the children to be removed from the home. She failed to complete even a minimal number
of course requirements at the Good Will Parenting Program, was unable to articulate and
work toward goals and failed to internalize the information provided and use it to properly
parent and interact with her children.
{¶8} Appellant did appear at scheduled visits with her children, but did not
interact with them, even after staff intervened. She would not speak to the children unless
they first spoke with her. Visitation with B.R. and W.R. was terminated at the
recommendation of the children’s therapist, who believed the visits were
counterproductive to the children’s progress, the children had behavior problems after the
visit and they told their therapists they did not want to continue visits with appellant. The Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 5
last visit with B.R. was March 7, 2017 and the last visit with W.R. was September 29,
2017. From that date until the hearing on the motion for permanent custody appellant did
not request a visit and there is nothing in the record to show that she had any contact with
either B.R. or W.R. in that time.
{¶9} Appellant attended anger management classes and completed the
program, but failed to make any progress. She had no insight into the impact of abuse
on the children and made no progress toward recognizing how abuse and neglect
affected them. She refused to accept any responsibility for the inappropriate physical
disciplining of the children, casting the blame on the children’s behavior problems.
{¶10} Appellant was currently residing with two people who had been convicted
of child endangerment, in a home that was found to be unsafe for the children during a
planned visit. Appellant had received instruction regarding how to prepare the home for
the return of the children, the opportunity to make the changes and notice of the date of
the visit and still failed to prepare a suitable space for the children.
{¶11} The children, B.R., W.R. and A.R. suffered from multiple problems that
would make parenting them difficult for any person. B.R. suffers from suicidal and
homicidal ideations, depressive disorder, ADHD, autism spectrum disorder and is
intellectually disabled. A.R. has major depressive disorder, destructive mood
dysregulation disorder, has expressed suicidal and homicidal ideations, and had been
hospitalized as a result. W.R. is intellectually disabled, has ADHD, seizures, unspecified
affective mood disorder and PTSD. These problems made it even more imperative for
appellant to work diligently to address the issues that led to the removal of the children Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 6
from the home. Her failure to make any progress led the case worker to conclude that
appellant could not safely care for any of the children.
{¶12} The Agency filed a motion seeking permanent custody of the children on
April 27, 2018 and the matter was heard on June 12, 2018. The trial court terminated
appellant’s parental rights and granted permanent custody to the Agency on June 14,
2018 and appellant filed a timely appeal and submitted three assignments of error:
{¶13} “I. THE TRIAL COURT'S DECISION THAT SCDJFS MET THE
STATUTORY FINDINGS FOR PERMANENT CUSTODY IS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶14} “II. SCDJFS' WITHHOLDING OF VISITATION DOES NOT CONSTITUTE
ABANDONMENT BY APPELLANT.”
{¶15} “III. THE TRIAL COURT'S DECESION THAT TERMINATION OF
PARENTAL RIGHTS WAS IN THE BEST INTEREST OF THE CHILDREN IS AGAINST
THE MAINIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
ANALYSIS
{¶16} We will address appellant’s first and third assignments of error together as
they both claim the decision of the trial court was against the manifest weight of the
evidence and was based upon insufficient evidence. As an appellate court, we neither
weigh the evidence nor judge the credibility of the witnesses. Our role is to determine
whether there is relevant, competent and credible evidence upon which the fact finder
could base its judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL
2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent, credible
evidence going to all the essential elements of the case will not be reversed as being Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 7
against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54
Ohio St.2d 279, 376 N.E.2d 578 (1978). On review for manifest weight, the standard in a
civil case is identical to the standard in a criminal case: a reviewing court is to examine
the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine “whether in resolving conflicts in the evidence, the
jury [or finder of fact] clearly lost its way and created such a manifest miscarriage of justice
that the conviction [decision] must be reversed and a new trial ordered.” State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins,
78 Ohio St.3d 380, 678 N.E.2d 541, 1997-Ohio-52; Eastley v. Volkman, 132 Ohio St.3d
328, 972 N.E.2d 517, 2012-Ohio-2179. In weighing the evidence, however, we are always
mindful of the presumption in favor of the trial court's factual findings. Eastley at ¶ 21.
{¶17} While not clearly stated in her assignments of error, the remedy appellant
requests is an extension of time to complete the tasks described in the case plan,
indirectly admitting that she has not completed the requirements of the case plan despite
her assertions regarding the progress she has made over the sixteen months that the
children have been in the temporary custody of the state. The decision to grant or deny
an extension of temporary custody lies in the discretion of the juvenile court. In re P.B.,
9th Dist. Summit No. 23276, 2006–Ohio–5419, ¶ 36, citing R.C. 2151.415(D)(1) and (2).
The juvenile court is authorized to exercise its discretion to extend temporary custody
only if it finds, by clear and convincing evidence, the following three things: “ ‘(1) that such
an extension is in the best interests of the child, (2) that there has been significant
progress on the case plan, and (3) that there is reasonable cause to believe that the child
will be reunified with a parent or otherwise permanently placed within the period of Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 8
extension.’ ” In re J.P.–M., 9th Dist. Summit Nos. 23694 and 23714, 2007–Ohio–5412, ¶
12, quoting In re P.B. at ¶ 36. Before the juvenile court may grant either permanent
custody or a six-month extension of temporary custody, it must conduct a best interest
analysis. In re S.D., 9th Dist. Lorain Nos. 15CA010864 and 15CA010867, 2016–Ohio–
1493, ¶ 30. Accordingly, “[i]f permanent custody was in the children's best interests, the
alternative disposition of extending temporary custody was not.” Id., citing In re I.A., 9th
Dist. Summit No. 26642, 2013–Ohio–360, ¶ 10; see also In re N.M., 9th Dist. Summit No.
28118, 2016–Ohio–5212, ¶ 18.
{¶18} We note that appellant presented no evidence to support her contention that
it would be in the best interest of the children to extend her case plan for an additional six
months. We find that the record does not contain clear and convincing evidence that
appellant has made significant progress on the case plan, or that there is reasonable
cause to believe that the children will be reunified with appellant within the period of
extension. The appellant relies upon her prior experience completing a court imposed
case plan in 2006 as some evidence that she is capable of complying with the state’s
requirements, given time. Appellant provided little detail regarding that contact with the
state in the 2005-2006 time period, and the lone fact that she has completed a case plan
over ten years ago can just as easily be interpreted as evidence that she failed to retain
any of the information provided by that experience. That interpretation, combined with
the evidence that the Agency attempted to resolve this matter with an out of court case
plan for six months leads inexorably to the conclusion that an additional six months is
unlikely to result in a reunification of the children with appellant. We cannot find that there Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 9
is clear and convincing evidence that an extension is in the best interest of the children,
so we consider whether the trial court’s award of permanent custody serves that interest.
{¶19} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶20} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, and the child cannot be placed with either of the child's parents
within a reasonable time or should not be placed with the child's parents; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period.
{¶21} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,
but not limited to, the following: (1) the interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (2) the wishes of the child as
expressed directly by the child or through the child's guardian ad litem, with due regard Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 10
for the maturity of the child; (3) the custodial history of the child; and (4) 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.
{¶22} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶23} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶24} As set forth in our statement of the facts and case above, we find there was
sufficient and substantial competent evidence appellant failed to remedy the problems
which initially caused the removal of the children from their home. Appellant failed to
complete her case plan services. We also find that appellant has abandoned B.R. and W.
R. as she has had no visit, contact or communication with B.R. since March 7, 2017 and
none with W. R. since September 29, 2017. Appellant excuses her failure by blaming the
Agency’s decision to terminate visitation due to the Mother’s behavior and the children’s
wishes. Appellant was represented by competent counsel and a guardian ad litem was Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 11
appointed to protect her interests. We find no reason to believe that she was not aware
of other avenues to maintain contact with the children and the opportunity to reconnect
by devoting time and effort to completing the case plan. She failed to comply with the
Agency’s requirements and made no attempt to contact B. R. or W.R. Her failure to take
responsibility for the consequences of her own actions is consistent with the court’s
finding that she will likely never complete the requirement of the case plan.
{¶25} Based upon the foregoing, we find the trial court's finding B.R. and W.R.
have been abandoned by appellant, that B.R., W.R. and A.R have been in the continuous
temporary custody of the Agency for twelve out of the last twenty-two consecutive months
and that the children could not be placed with either parent within a reasonable period of
time or should not be placed with the parents was not against the manifest weight of the
evidence. We further find the trial court's finding it was in the best interest of the children
to grant permanent custody to the Agency was not against the manifest weight of the
evidence. The children have mental health and emotional issues. A.R. has only an
unhealthy bond with appellant and the benefits of permanency outweigh any harm that
might be caused by the severing of the bond. B.R. and W. R. have no bond with appellant
so the benefits of permanency are in the child's best interests and the child will not be
harmed by the severing of a bond. All of the children have expressed a desire to not have
any further contact with appellant and the record contains unrebutted evidence that they
have little or no bond with each other. The children were improving in foster care, all of
the children are adoptable and they will benefit from a permanent resolution which cannot
be achieved without granting permanent custody.
{¶26} Appellant’s first and third assignments of error are overruled. Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 12
{¶27} In her second assignment of error, appellant attempts to shift the blame for
her failure to visit B.R. and W.R. to the Agency because visitation was terminated by the
Agency upon the recommendation of the children’s therapists. Appellant contends she
cannot be held responsible for failure to visit when visits were prohibited by the Agency.
Her attempt to absolve herself only further exposes her focus on herself over her children.
{¶28} The relevant Code section describes abandonment as a failure to visit or
maintain contact for more than ninety days. R.C. 2151.011(C). We find no error in the
trial court's determination that B.R. and W.R. were abandoned. Although the appellant
was unable to visit them because visitation was suspended, the record contains nothing
to suggest she was in any way prevented from maintaining contact with the children by
other means, such as telephone calls, letters or cards. It was the mother’s voluntary action
in failing to interact with the children in any way during visits, along with her failure to
begin making any progress on the case plan, which led to the suspension of visitation.
Under these facts, the trial court did not err in determining that B.R. and W.R. were
abandoned. In re C.C., 12th Dist. Warren No. CA2011-11-113, 2012-Ohio-1291, ¶¶ 18-
19.
{¶29} Appellant’s contention that she was not made aware of the fact that she had
the option of contacting her children through other means is no defense to her failure to
make the attempt. The record contains no evidence that she made any attempt to contact
the children from the date that she last saw them in 2017, well over six months prior to
the filing of the motion for permanent custody. We find that appellant bears the
responsibility for the lack of contact and that the trial court did not abuse its discretion in
finding the children abandoned. Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 13
{¶30} Appellant’s second assignment of error is overruled.
{¶31} The decision of the Stark County Court of Common Pleas, Family Court
Division is affirmed.
By: Baldwin, J.
and Delaney, J. concur
Hoffman, P.J. concurs in part, Dissents in part separately. Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 14
Hoffman, J., concurring in part, and dissenting in part
{¶32} I concur in the majority’s analysis and disposition of Appellant’s first and
third assignments of error with respect to the trial court’s determination all three children
were in the continuous temporary custody of the Agency for 12 out of the last 22
consecutive months, and further that the three children cannot be placed with either
parent within a reasonable time or should be placed with them. I disagree with the
majority’s conclusion in its discussion of Appellant’s first assignment of error the evidence
supported Appellant abandoned B.R. and W.R.1 Accordingly, I dissent from the majority’s
decision to overrule Appellant’s second assignment of error.
{¶33} I begin by noting under the two issue rule, if any one of the three grounds
found by the trial court to exist, i.e., R.C. 2151.414(B)(1)(a), (b), or (d), was supported by
the evidence, the decision would be affirmed. Appellant did not challenge the trial court’s
finding under R.C. 2151.414(B)(1)(d) the children were in the temporary custody of the
Agency for twelve or more months of a consecutive twenty-two month period. Having
failed to do so, Appellant’s arguments as to the trial court’s findings regarding R.C.
2151.414(B)(1)(a) and (b) are moot.
{¶34} I also note it is internally inconsistent for a trial court to find both R.C.
2151.414(B)(1)(a) and (b) apply with regard to the same child. Subsection (a) applies
when the child is not abandoned [or orphaned] while subsection (b) applies when the child
is abandoned.2
1 The trial court’s Findings of Fact and Conclusions of Law with respect to B.R. does not find Appellant abandoned B.R., although such finding is made in the Judgment Entry. The trial court’s determination W.R. was abandoned is found in both its Findings of Fact and Conclusion of Law, and Judgment Entry. 2 If the trial court had indicated these were alternative findings, such internal inconsistency would be
eliminated. Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 15
{¶35} I find the trial court’s decision Appellant abandoned B.R. and W.R. is not
supported by the evidence. The trial court based its decision on the fact Appellant had
failed to visit them for a period in excess of ninety days.3
{¶36} I find the Agency’s decision to terminate Appellant’s visits, although justified
due to her inability to bond with the children during those visits, and because the visits
adversely affected the children, does not constitute abandonment. Appellant did not
voluntarily fail to appear at those visits. She appeared until ordered not to. Her failure to
visit thereafter was involuntary. During the pendency of the case, Appellant successfully
completed the drug and alcohol assessment, and there were no further issues regarding
her abuse of drugs and alcohol. Appellant appeared at all appointments and visits, with
minor exceptions. She had regular attendance at the Goodwill Parenting Program and
Free Space Anger Management. Conceding the fact Appellant demonstrated minimal
benefits from the programs, her compliance with the appearance and attendance
requirements belies a finding of abandonment when her ability to visit was take away
involuntarily. Such circumstances do not justify the family law equivalent of the death
penalty in a criminal case. In re Smith, 77 Ohio App.3d 1, 16 (1991).
3The trial court did not base its finding of abandonment on Appellant’s failure to maintain contact with the children for more than ninety days. Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098 16
{¶37} I would affirm the trial court’s finding R.C. 2151.414(B)(1)(a) and (d) apply,
but would reverse its finding R.C. 2151.414(B)(1)(b) applies. However, because of the
two issue rule, I affirm the trial court’s decision to terminate Appellant’s parental rights
with respect to all three children.