[Cite as In re B.H., 2018-Ohio-3207.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re B.H. Court of Appeals No. L-18-1059
Trial Court No. JC 17261214
DECISION AND JUDGMENT
Decided: August 8, 2018
*****
Laurel A. Kendall, for appellant.
Bradley W. King, for appellee.
JENSEN, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, Juvenile Division, awarding permanent custody of B.H. to Lucas County Children
Services (“LCCS”) and terminating the parental rights of the biological parents. For the
reasons that follow, we affirm the decision of the trial court. {¶ 2} B.H. was born at Monroe Regional Hospital in Monroe, Michigan, on
March 9, 2017, to A.H. (“mother”). Paternity of the child has never been established.
{¶ 3} On March 10, 2017, LCCS received a referral indicating that when mother
arrived at the hospital, she stated that she was shopping in the area. However, there were
no shopping areas near the hospital. The referral further indicated that when the maternal
grandmother arrived at the hospital to visit the newborn baby, the grandmother asked the
hospital to not leave B.H. alone with mother.
{¶ 4} On March 13, 2017, LCCS filed a complaint in dependency and motion for
shelter care hearing. In its complaint, LCCS alleged that three of mother’s children were
removed from the home in 2015 because the children had taken mother’s psychotropic
medication. The complaint further alleged that mother had been diagnosed with bipolar
disorder and possible schizophrenia, had a past psychiatric hospitalization, and had
stopped taking prescribed medication. Legal custody of mother’s three older children
was awarded to a relative on September 15, 2015. LCCS further alleged, “Mother
admitted to [a LCCS caseworker] that she hears ‘voices’ but she tries to ignore them.”
{¶ 5} A shelter care hearing was held on March 13, 2017, and LCCS was granted
emergency custody. The case plan filed April 13, 2017, required mother to follow all
recommendations of her mental health service provider and complete an agency approved
parenting program.
{¶ 6} An administrative review progress report was filed with the court on
September 15, 2017. The report explained that in October 2016, legal custody of
2. mother’s three older children was transferred to one of mother’s relatives because of
mother’s mental health issues.
{¶ 7} At the time of the report, mother was receiving mental health services at
Zepf Center. LCCS believed that mother had not taken her prescribed psychotropic
medication for over a year. She had not yet been referred to parenting classes due to a
“lack of progress” in mental health services. The report indicated that mother missed two
visits with B.H. When she did attend, she typically left the child in her car seat. During
one visit, mother tried to feed B.H. chicken and suckers even though child was less than
six months old.
{¶ 8} On October 30, 2017, LCCS filed a motion for permanent custody. A
hearing was held January 25, 2018. Counsel for mother, counsel for LCCS, counsel for
CASA, the LCCS caseworker, CASA for B.H., and the LCCS supervisor were present.
Mother failed to appear despite indicating to her attorney that she would appear. Service
was perfected for “John Doe” father and the named alleged father. At the close of the
hearing, the trial court granted LCCS’s motion for permanent custody. Mother appealed.
First Assignment of Error
{¶ 9} In her first assignment of error, mother alleges:
The trial court erred in finding that appellee [LCCS] had made a
reasonable effort to reunify the minor child with [mother], when LCCS
filed for permanent custody only six months after the child was adjudicated.
3. {¶ 10} Mother argues because the child had not been in the agency’s custody for
two years or longer, she “still qualified for temporary custody.” She claims that the trial
court “had discretion to extend temporary custody for several more months, at least, to
allow mother additional time to engage in mental health services and to take a parenting
class.”
{¶ 11} In its complaint, appellee alleged that B.H. could not be placed with her
parents within a reasonable time pursuant to R.C. 2151.414(B)(1)(a). Thus, the agency
was not required to wait until the child had been in temporary custody for the 12 months
required when a petition is filed under R.C. 2151.414(B)(1)(d) grounds. See In re C.W.,
104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 27. We find no merit to
mother’s first assignment of error.
Second Assignment of Error
{¶ 12} In her second assignment of error, mother asserts:
The decision granting custody of the minor child to [LCCS] was
against the manifest weight of the evidence.
{¶ 13} Under certain circumstances, a trial court can award permanent custody to
a public children’s services agency upon finding that 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,” so long as the court also determines that the award of permanent custody
is in the child’s best interests. See R.C. 2151.414(B)(1).
4. {¶ 14} Under R.C. 2151.414(E), a finding, by clear and convincing evidence, that
one of the conditions listed in R.C. 2151.414(E)(1)-(16) exists is necessary to establish
that the child cannot be placed with either parent within a reasonable time or should not
be placed with either parent. In re William S., 75 Ohio St.3d 95, 661 N.E.2d 738,
syllabus. In turn, R.C. 2151.414(D) lists relevant factors to be considered by the court in
determining whether an award of permanent custody to a public children’s services
agency is in the best interest of the child.
{¶ 15} Clear and convincing evidence is evidence that will “produce in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be established.” In
re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 16} Here, the trial court made two findings relating to mother under the
conditions listed in R.C. 2151.414(E). First, under R.C. 2151.414(E)(1), the trial court
held that mother failed “continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child’s home.”
{¶ 17} R.C. 2151.414(E)(1) states:
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
5. 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
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[Cite as In re B.H., 2018-Ohio-3207.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re B.H. Court of Appeals No. L-18-1059
Trial Court No. JC 17261214
DECISION AND JUDGMENT
Decided: August 8, 2018
*****
Laurel A. Kendall, for appellant.
Bradley W. King, for appellee.
JENSEN, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, Juvenile Division, awarding permanent custody of B.H. to Lucas County Children
Services (“LCCS”) and terminating the parental rights of the biological parents. For the
reasons that follow, we affirm the decision of the trial court. {¶ 2} B.H. was born at Monroe Regional Hospital in Monroe, Michigan, on
March 9, 2017, to A.H. (“mother”). Paternity of the child has never been established.
{¶ 3} On March 10, 2017, LCCS received a referral indicating that when mother
arrived at the hospital, she stated that she was shopping in the area. However, there were
no shopping areas near the hospital. The referral further indicated that when the maternal
grandmother arrived at the hospital to visit the newborn baby, the grandmother asked the
hospital to not leave B.H. alone with mother.
{¶ 4} On March 13, 2017, LCCS filed a complaint in dependency and motion for
shelter care hearing. In its complaint, LCCS alleged that three of mother’s children were
removed from the home in 2015 because the children had taken mother’s psychotropic
medication. The complaint further alleged that mother had been diagnosed with bipolar
disorder and possible schizophrenia, had a past psychiatric hospitalization, and had
stopped taking prescribed medication. Legal custody of mother’s three older children
was awarded to a relative on September 15, 2015. LCCS further alleged, “Mother
admitted to [a LCCS caseworker] that she hears ‘voices’ but she tries to ignore them.”
{¶ 5} A shelter care hearing was held on March 13, 2017, and LCCS was granted
emergency custody. The case plan filed April 13, 2017, required mother to follow all
recommendations of her mental health service provider and complete an agency approved
parenting program.
{¶ 6} An administrative review progress report was filed with the court on
September 15, 2017. The report explained that in October 2016, legal custody of
2. mother’s three older children was transferred to one of mother’s relatives because of
mother’s mental health issues.
{¶ 7} At the time of the report, mother was receiving mental health services at
Zepf Center. LCCS believed that mother had not taken her prescribed psychotropic
medication for over a year. She had not yet been referred to parenting classes due to a
“lack of progress” in mental health services. The report indicated that mother missed two
visits with B.H. When she did attend, she typically left the child in her car seat. During
one visit, mother tried to feed B.H. chicken and suckers even though child was less than
six months old.
{¶ 8} On October 30, 2017, LCCS filed a motion for permanent custody. A
hearing was held January 25, 2018. Counsel for mother, counsel for LCCS, counsel for
CASA, the LCCS caseworker, CASA for B.H., and the LCCS supervisor were present.
Mother failed to appear despite indicating to her attorney that she would appear. Service
was perfected for “John Doe” father and the named alleged father. At the close of the
hearing, the trial court granted LCCS’s motion for permanent custody. Mother appealed.
First Assignment of Error
{¶ 9} In her first assignment of error, mother alleges:
The trial court erred in finding that appellee [LCCS] had made a
reasonable effort to reunify the minor child with [mother], when LCCS
filed for permanent custody only six months after the child was adjudicated.
3. {¶ 10} Mother argues because the child had not been in the agency’s custody for
two years or longer, she “still qualified for temporary custody.” She claims that the trial
court “had discretion to extend temporary custody for several more months, at least, to
allow mother additional time to engage in mental health services and to take a parenting
class.”
{¶ 11} In its complaint, appellee alleged that B.H. could not be placed with her
parents within a reasonable time pursuant to R.C. 2151.414(B)(1)(a). Thus, the agency
was not required to wait until the child had been in temporary custody for the 12 months
required when a petition is filed under R.C. 2151.414(B)(1)(d) grounds. See In re C.W.,
104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 27. We find no merit to
mother’s first assignment of error.
Second Assignment of Error
{¶ 12} In her second assignment of error, mother asserts:
The decision granting custody of the minor child to [LCCS] was
against the manifest weight of the evidence.
{¶ 13} Under certain circumstances, a trial court can award permanent custody to
a public children’s services agency upon finding that 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,” so long as the court also determines that the award of permanent custody
is in the child’s best interests. See R.C. 2151.414(B)(1).
4. {¶ 14} Under R.C. 2151.414(E), a finding, by clear and convincing evidence, that
one of the conditions listed in R.C. 2151.414(E)(1)-(16) exists is necessary to establish
that the child cannot be placed with either parent within a reasonable time or should not
be placed with either parent. In re William S., 75 Ohio St.3d 95, 661 N.E.2d 738,
syllabus. In turn, R.C. 2151.414(D) lists relevant factors to be considered by the court in
determining whether an award of permanent custody to a public children’s services
agency is in the best interest of the child.
{¶ 15} Clear and convincing evidence is evidence that will “produce in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be established.” In
re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 16} Here, the trial court made two findings relating to mother under the
conditions listed in R.C. 2151.414(E). First, under R.C. 2151.414(E)(1), the trial court
held that mother failed “continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child’s home.”
{¶ 17} R.C. 2151.414(E)(1) states:
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
5. 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.
{¶ 18} During the disposition hearing, Karahn Scott, a caseworker with LCCS,
testified that she first met mother on March 22, 2017, after learning that three of mother’s
older children were in the legal custody of paternal relatives. Ms. Scott testified that
mother’s older children had been removed due to mother’s untreated mental health
issues. Despite having been linked with the Zepf Center for mental health treatment,
mother stopped taking her psychotropic medication when she became pregnant with B.H.
{¶ 19} After B.H. was removed from mother, the case plan required mother to
reengage in mental health treatment and participate in a LCCS approved parenting class.
Mother was inconsistent with her mental health treatment. On various occasions, mother
made appointments with mental health care providers but failed to appear at the
appointments.
{¶ 20} While mother did meet regularly with the caseworker, she missed several
appointments because of work or illness. Sometimes, mother missed her appointments
because she forgot they had been scheduled.
6. {¶ 21} Ms. Scott testified that on one occasion, mother reported to her that “the
voices have told her to hurt her children, kill her children.” Ms. Scott further testified
that she witnessed mother talking to herself.
{¶ 22} Jeffry Chesser is a security guard for LCCS. Mr. Chesser testified that he
had had an opportunity to observe some of mother’s visits with B.H. He indicated that
during some visits, mother interacted appropriately with the child. On at least one
occasion, mother attempted to feed the child food inappropriate for her age. Sometimes,
mother played music or sent text messages on her phone, despite being told that it was
against the rules during visits. On a number of occasions, mother handed B.H. to Mr.
Chesser so that she could step out of the room and talk on her cell phone. Mr. Chesser
recalled a visit where mother was reciting lyrics to a song that included vulgarity and
profanity. At the time, there were other parents and children in the visitation room. On
one occasion, mother’s visit with B.H. was terminated because mother verbally
threatened Mr. Chesser.
{¶ 23} Upon our review of the record, we find that the evidence supports
the trial court’s finding that mother failed continuously and repeatedly to
substantially remedy the conditions causing B.H. to be placed outside the child’s
home.
{¶ 24} Under R.C. 2151.414(E)(4), the trial court held that mother has
“demonstrated a lack of commitment toward the child by failing to regularly support,
7. 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.”
{¶ 25} In support of its holding, the trial court cited mother’s failure to “actively
participate” in mental health services “in a previous case and the current case.” While the
evidence demonstrates that mother was frequently encouraged to engage in treatment, she
failed to participate in counseling or take her prescribed medication. The record supports
the trial court’s finding that mother’s failure “demonstrates a clear lack of commitment
toward remedying the conditions of removal and reunifying with this child.”
{¶ 26} This court has previously explained that “the existence of only one of the
factors under R.C. 2151.414(E) is sufficient to determine that a child cannot be placed
with a parent within a reasonable time.” In re S.P., 6th Dist. Lucas No. L-14-1113, 2014-
Ohio-5075, ¶ 32, quoting In re R.L., 9th Dist. Summit No. 27214, 27233, 2014-Ohio-
3117, ¶ 24. Upon review of the evidence, we find that the record contains competent,
credible evidence supporting the trial court’s conclusions that one or more of the factors
enumerated in R.C. 2151.414(E) exists.
{¶ 27} As set forth above, when determining whether a grant of permanent
custody is in a child’s best interest, the trial court “must consider all the relevant factors,
including those enumerated in R.C. 2151.414(D): the interaction and interrelationships
of the child, the wishes of the child, the custodial history of the child, the child’s need for
permanence in his life, and any applicability of the factors in R.C. 2151.414(E)(7) to
(11).” In re E.M., 9th Dist. Wayne No. 15CA0033, 2015-Ohio-5316, ¶ 13.
8. {¶ 28} Here, the trial court found that it is in the best interest of the child to award
permanent custody to LCCS because the “interaction and interrelationship between the
child and her caregiver supports a finding of permanent custody.” In its decision, the
court indicated “the child is in need of a legally secure permanent placement and this can
only be achieved through an award of permanent custody to LCCS.”
{¶ 29} At the hearing Ms. Scott testified that B.H. has been placed in foster care
since she was discharged from the hospital after delivery. B.H. is “very bonded” with the
foster parent.
{¶ 30} The guardian ad litem assigned to the case testified that she is confident
that mother loves her child. However, the “voices” in mother’s head are a cause of
concern. The guardian ad litem testified that mother will not “in any way, be able to
effectively and safely parent this baby.”
{¶ 31} After reviewing the evidence, we conclude that the trial court’s decision
that a grant of permanent custody to LCCS is in B.H.’s best interest was supported by
clear and convincing evidence.
{¶ 32} For the reasons set forth above, mother’s second assignment of error is not
well-taken.
{¶ 33} On consideration, the judgment of the Lucas County Court of Common
Pleas, Juvenile Division, is affirmed. Costs of this appeal are assessed to appellant
pursuant to App.R. 24.
Judgment affirmed.
9. In re B.H. C.A. No. L-18-1059
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
10.