In re B.R.

2019 Ohio 644

Opinion

[Cite as In re B.R., 2019-Ohio-644.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

: : IN RE: B.R. : Appellate Case No. 28182 : : Trial Court Case No. 2015-3158 : : (Appeal from Common Pleas Court – : Juvenile Division) : :

...........

OPINION

Rendered on the 22nd day of February, 2019.

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee,

KELLY M. SCHROEDER, Atty. Reg. No. 0080637, One South Main Street, Suite 1800, Dayton, Ohio 45402 Attorney for Defendant-Appellant, Mother

............. -2-

FROELICH, J.

{¶ 1} Mother appeals from a judgment of the Montgomery County Court of

Common Pleas, Juvenile Division, which granted permanent custody of her nine-year-old

son, B.R., to the Montgomery County Department of Job and Family Services, Children

Services Division (MCCS).1 For the following reasons, the juvenile court’s judgment will

be affirmed.

I. Procedural History

{¶ 2} MCCS began working with Mother in January 2015 after Mother made

threats against several people. Mother signed a case plan in February 2015 that

included requirements that Mother obtain stable housing and mental health treatment.

B.R. and his younger sibling stayed with Grandmother.2 Due to ongoing concerns, in

May 2015, MCCS filed a complaint, alleging that B.R. was neglected and dependent. In

June 2015, after a hearing before a magistrate, the juvenile court granted interim

temporary custody of B.R. to Grandmother. After a second hearing on August 6, 2015,

the magistrate granted temporary custody to Grandmother.

{¶ 3} In March 2016, MCCS moved for the juvenile court to grant legal custody of

B.R. to Grandmother. The motion and accompanying affidavit indicated that Mother had

not completed the mental health and substance abuse assessments requirements in her

case plan, that Mother had recently used marijuana, that Mother had quit her job and had

no verifiable income, that Mother had stable housing from October 2015 through February

1 Father’s parental rights also were terminated. However, Father is not a party to this appeal.

2 B.R. has a younger brother, L.P., who is four years younger than B.R. This appeal concerns only B.R. -3-

2016, but had recently moved to Youngstown, and that Mother had not visited with B.R.

The juvenile court held a hearing on the motion on July 8, 2016. The same day, the

juvenile court denied the motion for legal custody to Grandmother and, instead, granted

a first extension of temporary custody to her.

{¶ 4} On September 29, 2016, MCCS again filed a motion for legal custody of B.R.

to Grandmother. That motion was later withdrawn.

{¶ 5} On November 18, 2016, MCCS filed a motion for a second extension of

temporary custody with custody to be given to non-relative James Lacey (who had been

babysitting B.R. for days at a time) or, in the alternative, MCCS. The motion indicated

that Grandmother had permitted Mother to take B.R. and his sibling unsupervised to

Missouri and that Grandmother had recently married a registered sex offender with

several convictions related to sexual conduct with minors. Grandmother had reported

that she was no longer able to care for the children, and the children had been placed

with Lacey. In December 2016, after a hearing, the juvenile court granted interim

temporary custody of B.R. to Lacey.

{¶ 6} A dispositional hearing on the motion for a second extension of temporary

custody was held on January 25, 2017. The juvenile court granted a second extension

of temporary custody to Lacey; B.R.’s parents were granted supervised visitation. The

second extension of temporary custody was to expire on May 23, 2017.

{¶ 7} On April 5, 2017, MCCS filed a motion for legal custody of B.R. to Lacey.

The magistrate scheduled a dispositional hearing for June 5, 2017. By June 5, however,

Lacey was no longer willing to provide care for B.R. due to concerns about the safety of

other children in his home. The court, therefore, continued that matter until August 31, -4-

2017, and indicated that MCCS would need to file a new motion requesting custody to

MCCS.

{¶ 8} On June 7, 2017, MCCS filed a motion for interim temporary custody to

MCCS. On June 9, 2017, after an ex parte hearing, the juvenile court granted the motion

and terminated the temporary legal custody to Lacey. The dispositional hearing on

MCCS’s motion was set for August 31, 2017.

{¶ 9} On August 9, 2017, MCCS moved for permanent custody of B.R. The

magistrate held a hearing on the motion on August 31, 2017, during which Mother was

present with counsel. The day of the hearing, Mother’s counsel informed the court that

she had not received certain medical records from B.R.’s therapist, as requested in

discovery. The magistrate ordered MCCS to provide the therapist’s report and other

counseling records, and it granted a recess to allow Mother’s counsel to review the

documents.

{¶ 10} On September 21, 2017, the magistrate filed a lengthy decision granting

permanent custody to MCCS. Mother objected to the magistrate’s decision, and she

requested the preparation of a transcript and the appointment of a new attorney.

{¶ 11} On February 20, 2018, Mother, with new counsel, filed supplemental

objections. She asserted that the magistrate’s grant of permanent custody to MCCS was

against the manifest weight of the evidence, that the magistrate erred in allowing the

therapist to testify, that Mother’s lack of income was not proven, and that the magistrate

failed to consider all of the best-interest factors. MCCS opposed the objections.

{¶ 12} On September 25, 2018, in a 19-page decision, the juvenile court overruled

Mother’s objections and granted permanent custody of B.R. to MCCS. -5-

{¶ 13} Mother appeals from the juvenile court’s ruling, raising two assignments of

error. First, she claims that the juvenile court’s decision granting permanent custody to

MCCS was “not in accordance with R.C. 2151.414, was not in the child’s best interest,

and was against the manifest weight of the evidence.” Second, she claims that the

juvenile court erred in granting permanent custody to MCCS, because “MCCS failed to

file its motion for permanent custody within the time constraints of R.C. 2151.415(A) and

Juvenile Rule 14.” As part of her second assignment of error, Mother also claims that

she was prejudiced by MCCS’s discovery violation related to B.R.’s therapy records. We

will address Mother’s claims in reverse order.

II. Timeliness of MCCS’s Motion for Permanent Custody

{¶ 14} In her second assignment of error, Mother claims that the juvenile court

committed prejudicial error by granting MCCS’s motion for permanent custody when

MCCS failed to file its motion within the time requirements of R.C. 2151.415(A) and

Juv.R.14.

{¶ 15} R.C. 2151.415(A) provides, in relevant part:

* * * [A] public children services agency * * * that has been given temporary

custody of a child pursuant to section 2151.353 of the Revised Code, not

later than thirty days prior to the earlier of the date for the termination of the

custody order pursuant to division (H) of section 2151.353 of the Revised

Code or the date set at the dispositional hearing for the hearing to be held

pursuant to this section, shall file a motion with the court that issued the

order of disposition requesting that any of the following orders of disposition

of the child be issued by the court: -6-

***

(4) An order permanently terminating the parental rights of the child’s parents[.]

(Emphasis added.) See also Juv.R. 14(A), which contains language similar to R.C.

2151.415(A).

{¶ 16} MCCS states that a dispositional hearing on its motion for temporary

custody was set for August 31, 2017, and that it, consequently, was required to file its

motion for permanent custody no later than July 31, 2017.3 MCCS concedes that its

motion was not timely filed but argues that no prejudicial error resulted from its actions.

MCCS notes that Mother did not raise a timeliness issue either at the August 31, 2017

hearing or in her objections to the magistrate’s decision.

{¶ 17} Juv.R. 40(D)(3)(b)(iv) provides that “[e]xcept for a claim of plain error, a

party shall not assign as error on appeal the court’s adoption of any factual finding or legal

conclusion, whether or not specifically designated as a finding of fact or conclusion of law

under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as

required by Juv.R. 40(D)(3)(b).” “The purpose behind the appellate waiver rule is to

ensure that the trial judge shall have an opportunity to correct any errors occurring in the

trial judge’s court, the only exception being for plain error.” In re M.G. and C.G., 2d Dist.

Miami No. 07-CA-6, 2007-Ohio-3589, ¶ 15. “Thus, the failure to file objections waives

the right to appellate review and precludes relief from this court in the absence of civil

plain error.” In re A.P., 2d Dist. Montgomery No. 28023, 2019-Ohio-139, ¶ 10, citing In

re Etter, 134 Ohio App.3d 484, 731 N.E.2d 694 (1st Dist.1998).

{¶ 18} “[I]n appeals of civil cases, the plain error doctrine is not favored and may

3 Thirty days prior to August 31, 2017 would be August 1, 2017, not July 31, 2017. -7-

be applied only in the extremely rare case involving exceptional circumstances where

error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself.” In re A.J.S., 2d Dist. Miami No. 2007

CA 2, 2007-Ohio-3433, ¶ 16, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 679

N.E.2d 1099 (1997), syllabus.

{¶ 19} Mother did not challenge the untimeliness of MCCS’s motion for permanent

custody before the magistrate or in her objections to the magistrate’s ruling granting

permanent custody of B.R. to MCCS. Accordingly, she has waived all but plain error.

{¶ 20} We find no plain error in the juvenile court’s consideration of MCCS’s

untimely motion for permanent custody. At the outset, MCCS’s failure to file a timely

motion for permanent custody did not divest the juvenile court of jurisdiction to address

the motion. See In re Young, 76 Ohio St.3d 632, 669 N.E.2d 1140 (1996). In In re

Young, the Ohio Supreme Court held that, pursuant to R.C. 2151.353, a juvenile court

has jurisdiction to make a dispositional order after the statutory “sunset date” of a

temporary custody order, even though the children services agency failed to filed a motion

pursuant to R.C. 2151.415(A). Id. at 637. The court explained:

This holding allows the juvenile court to assess each situation on its

merits and does not mandate the return of children to a situation from which

they originally needed protection solely because the agency charged with

their care missed a filing deadline. Thus, we hold that when the sunset

date has passed without a filing pursuant to R.C. 2151.415 and the

problems that led to the original grant of temporary custody have not been -8-

resolved or sufficiently mitigated, courts have the discretion to make a

dispositional order in the best interests of the child. Where the original

problems have been resolved or sufficiently mitigated, courts may not make

further dispositional orders based on the original complaint.

Id. at 638. The supreme court cautioned, however, that the filings deadlines were not

meaningless. It stated:

That juvenile courts have continuing jurisdiction does not mean that

public children services agencies or private child-placing agencies can

ignore the mandates of the statute and rely on the court to save them from

their own failures or oversights. Neither does it mean that courts can grant

dispositional orders indiscriminately. The obligation to file a motion thirty

days prior to the sunset date is not vitiated and the failure to file is not

harmless error. See Endsley v. Endsley (1993), 89 Ohio App.3d 306, 624

N.E.2d 270. Accordingly, although the court has continuing jurisdiction,

temporary custody terminates when the sunset date passes without a filing

pursuant to R.C. 2151.415(A). However, because the court retains

jurisdiction over the child, it may make further dispositional orders as it

deems necessary to protect the child. We believe the General Assembly

granted continuing jurisdiction to the courts for just this reason.

Id.

{¶ 21} Here, B.R. had been placed with his grandmother until November 2016 and

then with Lacey until May 2017. MCCS obtained interim temporary custody of B.R. on

June 9, 2017, after Lacey indicated that he was no longer able to care for the child. A -9-

dispositional hearing was scheduled for August 31, 2017 on the motion for temporary

custody. Upon the filing of MCCS’s motion for permanent custody on August 9, 2017,

the juvenile court promptly appointed new counsel for Mother on August 10, 2017, and

Mother’s counsel submitted a discovery request the same day. MCCS filed its witness

list on August 11, 2017. MCCS’s motion for permanent custody was not filed at least 30

days before the August 31 hearing date, but there is no evidence that Mother lacked

adequate notice of the hearing date or of the permanent custody motion or that she was

unable to prepare adequately for the August 31, 2017 hearing. Mother made no

objection when MCCS indicated at the August 31, 2017 hearing that it would proceed on

the motion for permanent custody and withdraw its motion for temporary custody.

{¶ 22} Mother argues that she was prejudiced by the untimeliness of MCCS’s

motion for permanent custody, because she did not receive complete discovery from

MCCS, namely certain medical records. Mother argues that “MCCS’s failure to abide by

the time constraints made it impossible for Mother’s attorney to obtain or move to compel

key documents regarding the Child’s therapeutic records.”

{¶ 23} During the pre-trial portion of the August 31, 2017 hearing, Mother’s counsel

informed the juvenile court that she had received a discovery packet from the prosecutor’s

office, but it did not include any of the records from SAFY, the Flexman Clinic, or

Adolescent Oasis, all of which were therapeutic records for B.R. Counsel stated that she

had called the prosecutor a week before the hearing to ask for those records, but she had

not received them. Counsel noted that the SAFY counselor was listed as a witness, and

she stated that she could not adequately cross-examine the counselor without the

records. -10-

{¶ 24} When asked by the court if the prosecutor had any SAFY records, the

prosecutor responded, “I do not have any SAFY records, Your Honor. I have only

touched base with Jaime, the therapist, via telephone conversation and had

conversations in regards to [the child’s] therapy. I do not have any records.

Additionally, the Flexman Institute records that [Mother’s counsel] is referring to, that was

just sent to the caseworker yesterday. The caseworker has not provided me – did not

provide me with the copy of the Flexman Institute, nor was I planning on introducing that

evidence.” (Tr. at 7.)

{¶ 25} The court told the prosecutor that she had to make a copy of the Flexman

records for Mother’s counsel, since those records were requested by Mother. Mother’s

counsel then noted that MCCS apparently also had records from Adolescent Oasis and

SAFY. The juvenile court admonished the prosecutor that she was required to ask her

client (MCCS) if it had those records and, if it did, to present those records to opposing

counsel. The court continued, “You cannot just count on your client having the records

and not – giving them to you. That isn’t – that isn’t appropriate.” (Tr. at 8.) The court

ordered a recess so that all of the therapeutic records in MCCS’s possession could be

copied and provided to Mother’s counsel.

{¶ 26} While the record reflects that MCCS did not provide complete discovery to

Mother prior to the August 31, 2017 hearing, the juvenile court addressed the issue by

ordering the State to provide certain records to Mother prior to the hearing and by granting

a recess so that Mother could review the therapist’s summary report, which was four

pages in length, and other records. Mother did not ask for a continuance of the hearing

before or after receipt of the records. From this record, we cannot conclude that the -11-

untimely filing of MCCS’s motion for permanent custody prejudiced Mother or that the

juvenile court committed plain error when it addressed MCCS’s motion for permanent

custody.

{¶ 27} Mother’s second assignment of error is overruled.

III. Standards for Motion for Permanent Custody

{¶ 28} In Ohio, a juvenile court is authorized to terminate parental rights and to

grant permanent custody to a children services agency in several enumerated

circumstances. These circumstances include a finding that (1) permanent custody is in

a child’s best interest, coupled with a finding that (2) the child cannot be placed with either

parent within a reasonable period of time or should not be placed with either parent. R.C.

2151.414(B)(1)(a); In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14.

The burden of proof is on the children services agency. In re L.C., 2d Dist. Clark No.

2010 CA 90, 2011-Ohio-2066, ¶ 14.

{¶ 29} R.C. 2151.414(E) identifies factors for determining whether a child cannot

or should not be placed with either parent within a reasonable period of time. If a court

finds, by clear and convincing evidence, that any one of the R.C. 2151.414(E) factors

exists, the court shall enter a finding that the child cannot be placed with either parent

within a reasonable time or should not be placed with either parent. In re E.D., 2d Dist.

Montgomery No. 26261, 2014-Ohio-4600, ¶ 9. These factors include, among all other

relevant factors, the parent’s failure continuously and repeatedly to substantially remedy

the conditions that caused the child to be placed outside the home; severe chronic mental

illness or chemical dependency of the parent that makes the parent unable to provide an

adequate permanent home at the present time or, as anticipated, within one year of the -12-

hearing; the parent’s abuse or neglect of the child; the parent’s demonstrated lack of

commitment toward the child by failing to regularly support, visit, or communicate with the

child or by other actions that show an unwillingness to provide an adequate permanent

home for the child; and the parent’s unwillingness 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. R.C.

2151.414(E)(1)-(4), (14). The juvenile court must consider “all relevant evidence” in

determining whether a child cannot or should not be placed with a parent within a

reasonable period of time. R.C. 2151.414(E).

{¶ 30} R.C. 2151.414(D)(1) directs the juvenile court to consider all relevant factors

when determining the best interest of the child, including but not limited to: (a) the

interaction and interrelationship of the child with the child’s parents, relatives, foster

parents 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; (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 12 or more months of a consecutive 22-month period; (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; and (e) whether any of the factors in

R.C. 2151.414(E)(7) through (11) are applicable.4 See also In re L.C. at ¶ 15.

{¶ 31} All of the court’s findings must be supported by clear and convincing

evidence. R.C. 2151.414(E); In re J.R., 2d Dist. Montgomery No. 21749, 2007-Ohio-

4 None of the factors in R.C. 2151.414(E)(7) through (11) are applicable in this case. -13-

186, ¶ 9. A juvenile court’s decision on termination of parental rights “will not be

overturned as against the manifest weight of the evidence if the record contains

competent, credible evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements for a termination of parental rights have

been established.” (Citations omitted.) In re L.J., 2d Dist. Clark No. 2015-CA-85, 2016-

Ohio-2658, ¶ 21, citing In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15.

{¶ 32} Furthermore, “issues relating to the credibility of witnesses and the weight

to be given the evidence are primarily for the trier of fact.” In re A.J.S., 2d Dist. Miami

No. 2007-CA-2, 2007-Ohio-433, ¶ 22. The “rationale of giving deference to the findings

of the trial court rests with the knowledge that the trial judge is best able to view the

witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co.,

Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); In re J.Y., 2d Dist. Miami

No. 2007-CA-35, 2008-Ohio-3485, ¶ 3.

IV. Permanent Custody to MCCS

{¶ 33} In her first assignment of error, Mother claims that the juvenile court’s

decision to grant permanent custody of B.R. to MCCS was not in accordance with R.C.

2151.414, was not in B.R.’s best interest, and was against the manifest weight of the

evidence.

{¶ 34} The evidence presented at the August 31, 2017 hearing was as follows.

{¶ 35} Thea Tremain, a caseworker with MCCS, initially met Mother in August

2014 and became reacquainted with Mother in January 2015. In January 2015, MCCS

received a referral based on allegations that Mother had been arrested on a menacing -14-

warrant involving Father’s girlfriend’s teenaged daughter. B.R. was placed on a safety

plan with Grandmother.5 At that time, MCCS had concerns regarding Mother’s housing

stability, medical care for her children, her incarceration, and mental health concerns.

B.R. was adjudicated dependent on August 20, 2015. B.R. remained with Grandmother

until August 2016.

{¶ 36} In August 2016, Grandmother took B.R. to St. Louis, where Mother was

living, and Mother reported to Tremain that she (Mother) was unable to care for the child.

Tremain requested that Mother return B.R., and Mother placed B.R. with Lacey. In

October 2016, B.R. was placed on a safety plan with Lacey.

{¶ 37} Tremain testified that B.R. remained with Lacey until June 2017. Tremain

explained that B.R. had behavior issues from the start of the placement with Lacey.

B.R.’s behaviors progressed from bed-wetting to hitting himself and others to acting out

sexually. B.R. was placed in a foster home after June 2017. Tremain reported that B.R.

was doing fairly well in the foster home and at school. B.R. had stopped acting out

sexually at home; he had some ongoing issues with bed-wetting and was stealing candy

and other objects. B.R. was not having significant behavioral issues at school, although

his teacher had reported some inattentive behavior. B.R. had an IEP for speech needs.

{¶ 38} Tremain testified that a case plan was created at the beginning of the case

with a goal to reunify B.R. with Mother. The case plan had since been amended.

Tremain stated that Mother signed the case plan, read her case plan objectives, and

agreed to the objectives she was to complete. Tremain indicated that she discussed the

5 B.R. and his younger brother had remained together until B.R. was removed from Lacey’s home in June 2017. -15-

case plan objectives “at almost every meeting I had with [Mother]” and that she tried to

meet with Mother monthly.

{¶ 39} Mother’s case plan objectives were (1) to obtain a mental health

assessment and follow the recommendations, (2) to obtain a substance abuse

assessment and following the recommendations, (3) to obtain and maintain stable

housing, (4) to obtain and maintain income sufficient to support her children, (5) to sign

releases of information, (6) to visit her children, and (7) to meet with the caseworker

monthly. Mother signed the requested releases, with the exception of a release for

South Community.

{¶ 40} Tremain indicated that the mental health assessment was part of the case

plan, because “Mother’s behavior has been impulsive and erratic throughout the last three

years.” Referrals were made to South Community throughout the case (2015-2017) and

to Eastway (2017). Tremain stated that Mother had not completed the mental health

objective. Tremain further testified that referrals were made for an alcohol and drug

assessment due to Mother’s repeated statements that she used marijuana. Mother

reported that she started a Day-Mont intake in 2015, and engaged in services with South

Community in 2015 and with Compass Solutions in 2016. Tremain testified that Mother

was then engaged with South Community for mental health and substance abuse

diagnosis; Mother attended therapy one or two times per month.

{¶ 41} On cross-examination by the guardian ad litem (GAL), Tremain testified that

Mother reported that she had done an intake with Day-Mont in January or February of

2015 and was assigned to “work with” someone there and a substance abuse group.

When Tremain followed up with Mother about Day-Mont, Mother would say that she was -16-

unable to contact of the individual to whom she had been assigned. Mother reported to

Tremain that she started a mental health assessment in May 2015, but did not complete

it. Mother reported to Tremain that she had an intake with South Community in August

2015 and was diagnosed with bipolar disorder and cannabis dependence; Mother stated

that she was prescribed three medications. Mother had services in place until early fall

2015, when Mother lost her health insurance. At that time, Mother said she was no

longer seeking services at South Community. Tremain testified that Mother had

consistently stated for the past two and one-half years that she did not need or want

therapy and did not feel she had a mental health problem.

{¶ 42} Mother reported that she went back to South Community in the winter of

2016, but did not sign a release of information for Tremain. In April 2016, Mother had a

therapy intake with Compass Solutions in Youngstown. Mother was in Youngstown for

approximately three months. Her next intake was at Our Lady’s Inn in January or

February 2017 in St. Louis. Mother resumed with South Community after her return to

Dayton, and she has completed six sessions of therapy.

{¶ 43} The GAL also asked Tremain about drug screenings. Tremain testified

that MCCS did not perform drugs screens on Mother, but Mother reported testing positive

for marijuana in January 2017; Mother was pregnant at that time. Mother reported

testing negative in August 2017 during prenatal screening.

{¶ 44} Tremain testified that Mother had housing, and that it was safe and

appropriate for B.R. Mother had lived at this location since April 2017. Tremain

indicated that Mother did not have stable housing at the beginning of the case, and she

had lived at several apartments throughout the case. Tremain stated that one of the -17-

reasons MCCS initially got involved was due to reports that Mother was selling her food

stamps to stay in motels. Tremain testified that, at the beginning of the case, Mother

lived in different apartments for a few months or less; Mother did not always have utilities

during that time. Tremain indicated that Mother’s residences were usually well kept and

tidy, although one residence in spring 2015 was left in very poor condition. In spring and

summer of 2016, Mother resided in Youngstown, and then Mother moved to St. Louis,

residing at a shelter. Mother returned to Dayton in April 2017 and was in the same

apartment at the time of the hearing. Tremain considered Mother’s housing requirement

to be “ongoing.”

{¶ 45} Upon questioning by the GAL, Tremain stated that Mother had discussed

numerous plans to move throughout the case. Mother expressed her desire to move to

other parts of Ohio, particularly Sardinia, and mentioned moving as recently as the week

before the hearing. Mother stated that she was thinking of leaving the county or the state

to give birth, i.e., away from MCCS. Tremain stated that Mother had periodically stayed

in hotels during the course of the case.

{¶ 46} As to Mother’s income, Tremain testified that mother reported working full-

time at a restaurant since April or May of 2017, which MCCS verified. At the time of the

hearing, Mother reported that she was on maternity leave. Tremain was not aware

whether the restaurant considered her to be an employee. Tremain stated that Mother

had applied for “benefits” but she did not have current income. Tremain stated that

Mother had income throughout the case, but she had frequent lapses in her benefits, i.e.,

she would be sanctioned and lose her medical insurance and food stamps. Tremain

considered the income requirement to be “ongoing.” -18-

{¶ 47} On questioning by the GAL, Tremain stated Mother had not paid child

support for her children, to Tremain’s knowledge. Mother did provide diapers when her

younger child was an infant. Tremain indicated that money was a source of tension

between Mother and Grandmother.

{¶ 48} In terms of meeting with the caseworker, Tremain testified that Mother was

very cooperative at times, but at other times would schedule appointments and no-show.

Tremain stated that the missed appointments were “sporadic, depending on what was

going on with her life, where she was residing.” Tremain indicated that Mother was

compliant at that time.

{¶ 49} Tremain further discussed Mother’s visitation with the children. Initially,

visitation was to be agreed upon by Mother and Grandmother. Tremain believed that

Mother had sporadic contact with the children in 2015. Mother told Tremain that she

would be working or not able to visit or that Grandmother would not allow her to visit or

that she did not have transportation. After B.R. was placed with Lacey, Mother did not

visit with B.R. between October 2016 and April 2017 and had “very sporadic” phone

conversations during that time. Mother was in-and-out of the Dayton area during that

time, but did not visit the children when she was in town.

{¶ 50} Tremain stated that Mother had visited with B.R. regularly since May 2017.

She described B.R. as “withdrawn” and “sad” during recent visitations with Mother.

Tremain stated that she observed little interaction between Mother and B.R. and that she

had advised Mother to reduce the use of electronic devices during visitation. Tremain

stated that Mother seemed unaware of how statements and comments she made may

impact B.R., specifically relating to activities she may engage in or her unborn child. -19-

Tremain testified that issues arose after a visitation on May 16, 2017; Lacey and B.R.

both reported that Mother told B.R. in the bathroom that he should “hump” other children

in the Lacey home. B.R. told Tremain that he had done so. Tremain stated that Mother

denied asking B.R. to engage in that conduct.

{¶ 51} Tremain stated that Mother and B.R. were bonded and that B.R. wanted a

relationship with Mother. Tremain opined that she did not see a strong bond on Mother’s

end and that the relationship appeared more sibling-like than parental.

{¶ 52} Tremain stated that she looked into several individuals whom Mother or

Father had identified as possible placements for B.R. Tremain indicated that one was

not a suitable placement and others were not willing or able to care for B.R. Tremain

described B.R. as a “lovable, sweet kid” and believed that he was adoptable, but indicated

he was not in a foster-to-adopt home. When asked why MCCS did not believe that B.R.

could be reunified with Mother in the foreseeable future, Tremain responded,

His significant emotional, intellectual, behavioral problems at this point in

time, along with his medical issues are not something that [Mother] has

shown she’s capable of caring for. She doesn’t maintain stable housing or

income for any period past six months, if that. And she’s shown that she’s

not willing to engage in mental health treatment to address her concerns.

(Tr. at 118.)

{¶ 53} Jessica Lacey (James Lacey’s daughter) testified that B.R. stayed in her

home from approximately October 2016 until early June 2017. Jessica was an

acquaintance of Mother’s and she babysat B.R. and his younger brother prior to their

placement in her home. When B.R. stayed at Jessica’s home, the residents included -20-

Jessica’s father James, James’s girlfriend, Jessica’s fiancée, Jessica’s sister, Jessica’s

four children, B.R., and B.R.’s younger brother.

{¶ 54} Jessica testified that B.R. had a hard time adjusting to living in her home.

He was very argumentative, was “touching inappropriately,” and wet the bed. B.R.

urinated on the couch and on other children’s beds. B.R. would make verbal threats of

violence against the Laceys and his mother. Some of B.R.’s tantrums were “over the

top,” and Jessica witnessed B.R. choke, scratch, and bite himself. These behaviors

continued during his stay with the Laceys.

{¶ 55} Jessica testified that Mother visited B.R. two or three times while B.R. lived

in the Laceys’ home, beginning around Easter 2017. Jessica testified that, once Mother

started visiting with B.R., B.R.’s behavior became more aggressive and sexual toward

other children in the house. Jessica testified that B.R. admitted to her that he had tried

to molest her children. When Jessica asked B.R. why he thought his behavior was okay,

B.R. said that he acted as he did because his mother told him to do it. B.R. told Jessica

that his mother would take him to the restroom at their visit at Children Services and would

whisper in his ear and tell him to do sexual things to Jessica’s children. At the time, B.R.

was 8 years old, and two of Jessica’s children were 2 and 7 years old.

{¶ 56} Since April 11, 2017, B.R. had received therapy at SAFY, a therapeutic

foster care agency and outpatient mental health facility. His therapist, Jaime Surber,

testified that B.R. had been diagnosed with adjustment disorder with mixed disturbance

of mood and conduct. She sees B.R. for one hour each week, focusing on trauma,

anxiety, and behavioral issues. Surber testified that trauma was an issue for B.R.,

because he expressed that his being left by his mother at the Laceys’ house was very -21-

traumatic to him. B.R. reported that Mother dropped him off, saying that she would be

back after work, but she never returned.

{¶ 57} Surber testified that B.R.’s behaviors were a focus, because he was “acting

out severely” in the Laceys’ home. Surber testified that B.R. discussed his sexualized

behaviors with her. B.R. reported that he was “humping” other children; B.R. described

in detail one incident where he pulled down another boy’s pants, had the boy over a bed,

and was bending over the boy humping him. B.R. told Surber that his mother had taken

him to the bathroom and that she leaned down and told him to do those things. Surber

stated that she had spoken with B.R. about body parts, private parts, and appropriate

behaviors; after it was explained, B.R. seemed “embarrassed a little bit about what he

had done” and seemed to realize that his behavior was not appropriate.

{¶ 58} B.R. reported to Surber that he would choke himself and bang his head

when he was upset. B.R. and Surber discussed an incident where B.R. pulled a butcher

knife on another child in the home. B.R. told Surber that he had urinated in the home

out of anger, had hit other children, and had thrown dog feces at another child.

{¶ 59} Surber testified that B.R.’s behavior had improved at his new placement and

he was not acting out sexually or threatening to kill himself or others, but he was still

defiant and had frequent meltdowns. Surber testified that B.R. no longer met the

requirements for a conduct disorder. Surber questioned whether B.R. had ADHD; she

stated that his behavior could be anxiety-related. Surber believed that B.R. might have

some cognitive delays, but none had been diagnosed.

{¶ 60} Surber testified that anxiety was another focus for B.R. She stated that

B.R. worried a lot about his mother and was afraid that something would happen to her. -22-

Surber stated that she and B.R. talked a lot about what he could and could not control.

During the week before the hearing, Surber noticed that B.R. was “breathing funny” when

they were discussing his biggest trauma, i.e., being left by his mother with James Lacey.

B.R. also told her that his stomach was upset. Surber worked with B.R. about using

deep breathing and counting to ten before he reacts as ways to cope with anxiety.

Surber stated that B.R. got upset when discussing Mother, and he made detailed

drawings of specific incidents, such as when Mother left him with James Lacey and when

Mother was choked by a boyfriend. Surber had concerns that B.R. might have been

physically and sexually abused, but B.R. had never disclosed any incidents. Surber did

not see signs of anxiety when B.R. was not discussing Mother.

{¶ 61} Surber testified that B.R. saw Mother a couple hours per week. B.R. had

reported sadness and anxiety after the visits, but not during the visits. B.R. expressed

sadness at not being able to see his brother or to go home with Mother.

{¶ 62} Courtney Price, who had been B.R.’s guardian ad litem since May 2015,

also testified. Price testified that she had spoken several times with B.R. According to

Price, B.R. talked a lot about how he did not have much food with Mother and that he did

not always have a bed of his own or blankets. When B.R. moved to a new location, he

was always happy to have a lot of food and a place to sleep. B.R. also had repeatedly

stated that Mother was not often there, and Price testified that B.R. appeared to be more

bonded with Grandmother, who seemed to parent and raise him. B.R. had stopped

asking about Grandmother, but spoke frequently and consistently about Grandmother as

the primary caregiver for him and his brother.

{¶ 63} Price testified that she had observed several interactions between B.R., -23-

Mother, and Grandmother. Price stated that she met B.R. and Grandmother in May

2015, but did not observe Mother with her children for the first year and a half of the case.

Mother had court-ordered visitation with B.R. and Price every Sunday at Grandmother’s

house, but Mother always cancelled. Price stated that Grandmother tried to facilitate

visits, offering to take B.R. to different places, but Mother did not take advantage of those

offers. Price did not observe Mother with B.R. until an annual review.

{¶ 64} Price stated that Mother attended regular visitations during the two months

prior to the hearing. On occasion, Price observed Mother interact “very well” with B.R.;

the two would play “Memory” and B.R. laughed and smiled when Mother was around.

On other recent visits, Mother and B.R. had very little interaction; B.R. would “stare[ ] at

a tablet” or they would go outside and Mother played with B.R.’s brother.

{¶ 65} Price was aware that Mother resided in St. Louis for several months and

that she returned to Dayton periodically during that time. Price was not aware of any

visits by Mother with B.R. when she was in the Dayton area.

{¶ 66} Price testified that, at the time of the hearing, B.R. was 8 years old and

would be turning 9 within a month. B.R. was beginning second grade. She explained

that, due to the instability in housing and moving around, B.R. attended kindergarten two

or three times. B.R. never attended preschool. Price stated that B.R.’s graduation from

kindergarten “was a huge, huge deal to him, and Mother swore she would be there, and

I don’t believe she attended.” Price stated that she had significant concerns that B.R.

would not be enrolled in or attending school if Mother were to get custody. Price

explained that Mother “does not stay in the same place longer than a couple months, and

even geographically, if it’s in one city, there are multiple moves.” Price testified that B.R. -24-

was on an IEP for speech and there were some concerns about possible cognitive

disability; Price stated that the IEP needed to be updated.

{¶ 67} Price stated that Mother had always been very good about getting back to

her (Price) and maintaining communication. Price testified that her interactions with

Mother always had been “very pleasant” and “positive”, but “unrealistic.” Mother

repeatedly told Price that she did not have any mental health problems, but had reported

a historic diagnosis of bipolar disorder and ADHD.

{¶ 68} Price described B.R. as “very cute” and “very sweet,” but currently

“incredibly sad.” Price stated that she had seen him where he’s “bouncing off the walls”

and where he “is just zoned out”; she described B.R. currently as “zoned out” and “a

zombie.” Price stated that his speech was difficult to understand, and he was “incredibly

withdrawn.” She described his decline as recent and sudden, and she believed that the

decline was in part due to B.R.’s separation from his younger brother, who was not

removed from Lacey’s home. B.R. recently talked about wanting to die and to hurt other

people.

{¶ 69} Price stated that she had concerns about Mother’s resuming custody of B.R.

She stated that B.R. had significant special needs. Price was concerned about Mother’s

“mental health, substance abuse, about basic stability, housing, food, education, medical

care.” Price indicated that B.R. had to have multiple permanent teeth removed because

of decay in his mouth. Price testified that she believed permanent custody to MCCS was

in B.R.’s best interest, because she did not believe B.R.’s basic and special needs would

be met if he were returned to Mother. She also stated that there had had been an

exhaustive search for anyone to take him, and no one could be found. -25-

{¶ 70} Price believed B.R. was adoptable. Price testified on cross-examination

that B.R. had always maintained that he would like to live with Mother.

{¶ 71} Mother testified on her own behalf. She stated that she had lived at her

current apartment in Dayton since April 11, 2017; she was the sole lessee on a one-year

lease. The apartment had two bedrooms, one of which would be B.R.’s. Mother was

pregnant at the hearing, and she indicated that the new baby would sleep in her bedroom.

Mother had bedding for B.R.

{¶ 72} Mother stated that she was employed at a restaurant, but was on maternity

leave; Mother planned to return to work in mid-October 2017. Mother’s net income was

approximately $360 to $380 every two weeks at the restaurant. Mother stated that child

support of approximately $110 ($55 per child) was deducted from her paychecks.

Mother was receiving food assistance and had an upcoming hearing in September for

cash. Mother testified that she would have food for her children through food assistance.

{¶ 73} Mother testified that she had a mental health assessment in early May and

began biweekly appointments on May 31, 2017. Mother stated that she was diagnosed

with impulsive disorder, and she was working on coping skills and communication.

Mother had not been prescribed medication. Mother stated that, since beginning

therapy, she believed that she had been coping better with others, including her

caseworker. Mother acknowledged that she had, in the past, expressed that she did not

need therapy, but she testified that therapy was helpful. Mother believed that she was

currently up to date on her releases.

{¶ 74} Mother testified that her last positive drug test was January 20, 2017.

Mother stated that she stopped smoking and social drug use upon learning of her current -26-

pregnancy. Mother stated that her last drug screen was June 20, 2017, and the

screening was negative. Mother testified that a drug screen would be negative if she

were tested that day.

{¶ 75} Mother was asked about the allegation that she told B.R., while in a

bathroom, to act out. Mother denied the incident occurred. Mother stated that she

always told B.R. to respect Lacey, because she did not know what would happen if he

(Lacey) could not care for B.R. Mother felt that she had good visits with B.R. and tried

to bond with him. Mother stated that she started taking a tablet to visitation a few weeks

before, because B.R. was no longer interested in the toys. Mother stated that she

brought food and occasionally gifts to visitation. Mother asked B.R. what was wrong

when he seemed down or quiet during visitation.

{¶ 76} Mother testified that she would do “everything possible” to care for B.R. if

custody were returned to her. She stated that she would take B.R. to counseling and

any necessary doctor appointments and would be engaged with his school. Mother

stated that she wanted B.R. to be able to bond with the new baby. Mother expressed

that B.R. was excited about the new baby. Mother stated that, if custody were returned

to her, she would reach out to B.R.’s paternal family and to her father (B.R.’s maternal

grandfather).

{¶ 77} On cross-examination by MCCS, Mother testified about her compliance with

her case plan objectives. She acknowledged that she had mental health assessments

in January and May of 2015, but did not follow through. In August 2015, she did an

assessment at South Community, which diagnosed her with bipolar disorder, and

followed up for a couple months; Mother stated that she had “really no good reason” for -27-

her disengagement. Mother stated that she did an assessment with Compass Solutions

in August 2016 and was involved there for three months, until she moved back to Dayton.

Mother testified that she sought mental health services in St. Louis and was compliant

with those programs. Mother agreed that she was currently being seen at South

Community and was compliant with their recommendations.

{¶ 78} Mother repeated on cross-examination that her last positive drug screen

was in January 2017, and that she had not used drugs since she learned she was

pregnant.

{¶ 79} When asked about her housing, Mother testified that she had had several

residences throughout the case. She initially lived in three different apartments in the

Dayton area, staying for approximately one month, three months, and three to four

months, respectively. Mother resided in Youngstown for approximately four months.

Mother moved back to Dayton and then moved to St. Louis. In St. Louis, she resided

with a friend from October 2016 to January 2017 and then at a shelter from January 2017

to April 2017. Mother had been in her current apartment since April 2017.

{¶ 80} As for her income, Mother testified that her baby was due on September 12,

2017, and she planned to return to work 4 to 6 weeks after the birth. Mother indicated

that she would be promoted when she returned. Mother was positive that the restaurant

deducted child support from her paycheck.

{¶ 81} Mother testified that her court-ordered visitation when Grandmother had

custody was Sundays from noon to 8:00 p.m. Mother indicated that she visited,

however, during different days of the week. Mother did not visit every week, but visited

most months for two to three hours per visit. Mother described her visits as “sporadic.” -28-

Mother stated that she did not visit B.R. when she lived in St. Louis, and she denied

returning to Dayton during that time. Mother again denied that the “bathroom incident”

occurred during visitation in May 2017.

{¶ 82} Mother testified that she no longer had plans to move out of Montgomery

County. Mother stated that she would use public transportation to get B.R. to any

appointments he needed.

{¶ 83} In overruling Mother’s objections to the magistrate’s grant of permanent

custody to MCCS, the juvenile court found that B.R. could not be placed with Mother

within a reasonable period of time. The juvenile court reviewed the evidence regarding

Mother’s case plan objectives and concluded that Mother failed continuously and

repeatedly to substantially remedy the conditions causing B.R. to be placed outside the

home. See R.C. 2151.414(E)(1). Noting that Mother denied that she had mental health

or substance abuse issues, the court further found that Mother had a “chronic mental

illness, chronic emotional illness, * * * or chemical dependency” that was so severe that

she was unable to provide an adequate permanent home for B.R. at the present time and

within one year. See R.C. 2151.414(E)(2).

{¶ 84} The court further found that Mother demonstrated a lack of commitment to

B.R. See R.C. 2151.414(E)(4). The court reasoned: “When maternal grandmother had

custody of the child, Mother provided little to no support for the child. Mother and Father

have both gone months without visiting the child. Moreover, as previously discussed in

detail, Mother and Father have failed to address their case plan objectives.” Finally, the

court concluded that Mother was unwilling to provide food, clothing, shelter, and other

basic necessities for B.R. See R.C. 2151.414(E)(14). The court highlighted B.R.’s lack -29-

of educational foundation, Mother’s failure to attend B.R.’s kindergarten graduation,

Mother’s frequent moves, B.R.’s speech and possible cognitive disabilities, and B.R.’s

lack of dental care.

{¶ 85} Moreover, the juvenile court concluded that permanent custody to MCCS

was in B.R.’s best interest. The juvenile court extensively reviewed B.R.’s difficulties in

adjusting to the Laceys’ home and information about B.R.’s behavior and emotional state

throughout the case, as reported by Jessica Lacey, Surber, Tremain, and Price. The

juvenile court found that the factor concerning the interrelationships of B.R. with

caregivers and family favored granting permanent custody to MCCS. The juvenile court

acknowledged that B.R. consistently maintained that he wanted to return to Mother and

that he wants to have contact with his sibling. However, the juvenile court found that this

factor weighed neither for nor against the granting of permanent custody to MCCS. The

juvenile court reviewed B.R.’s custodial history and concluded that the factor weighed in

favor of granting permanent custody to MCCS. Additionally, the juvenile court concluded

that a legally secure, permanent placement could not be achieved without granting

permanent custody to MCCS.

{¶ 86} Finally, the juvenile court concluded that MCCS made reasonable efforts to

reunify B.R. with Mother. The court found: “General services provided to the family by

MCCS to assist in reunification included case referrals, information, substitute care,

transportation and home studies. * * * While a case plan was developed, both Mother and

Father made minimal effort in working the case plan.”

{¶ 87} Based on the evidence presented, the juvenile court’s determinations that

B.R. could not be returned to Mother within a reasonable period of time, that permanent -30-

custody to MCCS was in the best interest of B.R., and that MCCS made reasonable

efforts to reunify B.R. with Mother were supported by clear and convincing evidence and

were not against the manifest weight of the evidence. We find no error in the juvenile

court’s determination to grant permanent custody of B.R. to MCCS.

{¶ 88} Mother’s first assignment of error is overruled.

V. Conclusion

{¶ 89} The juvenile court’s judgment will be affirmed.

.............

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck Michael P. Allen Kelly M. Schroeder Christopher Fogt Courtney Price Andrew Schlueter Hon. Anthony Capizzi