In re C.B.

2012 Ohio 2691

• Court: Ohio Court of Appeals
• Decided: June 18, 2012
• Docket: 13-12-06, 13-12-07
• Status: Published

Opinion

[Cite as In re C.B., 2012-Ohio-2691.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

IN THE MATTER OF:

C.B., CASE NO. 13-12-06

NEGLECTED/DEPENDENT CHILD.

[LATOYA BROWN - APPELLANT] OPINION [JAMES CARSWELL - APPELLANT]

J.C., CASE NO. 13-12-07

[LATOYA BROWN - APPELLANT] OPINION [JAMES CARSWELL - APPELLANT]

Appeals from Seneca County Common Pleas Court Juvenile Division Trial Court Nos. 20850071 and 20850072

Judgments Affirmed

Date of Decision: June 18, 2012 Case No. 13-12-06 and 13-12-07

APPEARANCES:

Scott B. Johnson for Appellant, James Carswell

Shane M. Leuthold for Appellant, Latoya Brown

Tiffany F. Hoyt for Appellee, Seneca Co. Dept. of Job & Family Services

SHAW, P.J.

{¶1} Mother-appellant, Latoya Brown (“Latoya”), and father-appellant,

James Carswell (“James”), appeal the January 6, 2012 judgment of the Seneca

County Court of Common Pleas, Juvenile Division, granting permanent custody of

their children, C.B and J.C., to appellee, the Seneca County Department of Job and

Family Services (the “Agency”), and terminating their parental rights.

{¶2} On August 21, 2008, the Agency filed a complaint alleging C.B. (born

in August of 2006) and J.C. (born in October of 2007) to be neglected and

dependent children. The complaint was filed based upon information received by

the Agency that the children had witnessed an episode of domestic violence

between Latoya and a male companion in a motel room in Monroe, Michigan.

Latoya was reportedly under the influence of drugs at the time. The police were

called to the scene and Latoya was arrested and placed in jail as a result of the

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incident.1 The same day the Agency also filed an ex parte motion for temporary

custody, requesting the children be placed in the temporary custody of their

maternal grandmother and under the protective supervision of the Agency, which

was subsequently granted by the trial court.

{¶3} On October 27, 2008, a shelter care hearing was held. The evidence

adduced at this hearing revealed that James was the putative father of C.B. and

J.C., and that genetic testing was completed in Lucas County finding James to be

C.B.’s biological father. However, there was no indication that James submitted

to genetic testing with regard to J.C. It was later confirmed through genetic testing

that James is also J.C.’s biological father.

{¶4} On October 3, 2008, the Agency filed a case plan, which addressed

Latoya’s and James’ history of domestic violence and substance abuse, and

attempted to remedy the issues prompting the Agency’s removal of the children,

which included Latoya’s and James’ inability to provide their children with stable

housing. Both Latoya and James were required to submit to substance abuse

assessments, to attend classes on domestic violence, substance abuse and

parenting, and to provide stable and appropriate housing for the children. In an

amendment to the case plan, Latoya was prohibited from visiting the children at

the home of their maternal grandmother and was required to set up visitation

1 The record indicates that Latoya later pled guilty to an “assaulting/resisting and obstructing a police officer” charge, a felony under Michigan law.

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through the Agency. James was permitted to have unsupervised visitation with the

children upon the successful completion of a home study.

{¶5} On November 19, 2008, the adjudication hearing was held. Latoya

did not attend the hearing because she was in jail at the time. James was also not

present at the hearing, or at any of the prior hearings, despite being properly

served with notice of the proceedings. Based on the evidence elicited at the

hearing, the magistrate adjudicated the children neglected and dependent. The

findings and recommendations of the magistrate were journalized in her January

22, 2009 decision, which was subsequently adopted and approved by the trial

court.

{¶6} On March 10, 2009, the Agency filed a motion for ex parte orders

requesting the children be removed from their placement in their maternal

grandmother’s home due to concerns that their maternal grandmother was abusing

drugs. The information came about after the children’s maternal grandmother was

involved in a single car accident. The police found drugs in the car and the

children’s maternal grandmother tested positive for cocaine on a drug screen. As a

result, the Agency took temporary custody of the children, whom were then placed

in foster care. The goal of the case plan continued to be reunification of the

children with their parents. Latoya’s visitation with the children was to be

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facilitated through Patchworks House, a neutral off-site location, under the highest

level of supervision.

{¶7} On May 21, 2009, the case plan was amended to require Latoya to be

at Patchworks House thirty minutes prior to her visits with the children and to

suspend her visitation if she missed two or more visits. This change was made due

to the fact that during the prior five visits, Latoya was forty-five minutes late to

one, and missed the other four. The Agency also noted that Latoya had failed to

comply with any of the objectives listed in the case plan. At this point in time,

James had been recently released from jail on a felony non-support charge. While

in jail, James completed parenting classes and some domestic violence classes.

The Agency reserved filing a motion for permanent custody based in part on

James reporting his interest in gaining custody of C.B. and J.C. However, James

was now also required to have his visitation with the children be facilitated

through Patchworks House under the highest level of supervision.

{¶8} On September 14, 2009, the magistrate entered a decision continuing

the children’s temporary custody with the Agency in foster care placement.

Latoya was again incarcerated on pending criminal charges and her visitations

with the children had been suspended due to her failing to attend previously

scheduled visits. Latoya also showed no progress in meeting the objectives in the

case plan. The magistrate’s decision indicated that James had been visiting with

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the children upon his prior release from jail, but was subsequently incarcerated

again due to violating his probation by testing positive for drugs.

{¶9} On November 16, 2009, the Agency filed a motion requesting an order

terminating its temporary custody of the children and placing them in temporary

custody of Leslie Reynolds in a kinship placement. The children’s placement with

Ms. Reynolds was made at James’ request when the Agency notified him of its

intentions to seek permanent custody of the children. At this time, James was

completing a court-ordered correctional based drug treatment program in Lucas

County and Latoya continued to be incarcerated. The children’s temporary

placement with Leslie Reynolds was subsequently approved by the trial court and

the Agency continued to have protective supervision over the placement.

{¶10} On March 10, 2010, an amendment to the case plan was filed

modifying James visitation from unsupervised visits with the children to visits

under the supervision of Leslie Reynolds or an appropriate off-site agency. The

reason for the change in James’ visitation was due to the fact that he took the

children to a hotel to see Latoya, who had been recently released from prison,

where all four of them spent two days together. This was done in violation of the

case plan, which suspended Latoya’s supervised visitation at a neutral off-site

agency with the children due to her non-compliance with the case plan.

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{¶11} On May 25, 2010, the Agency moved to have the children removed

from Leslie Reynolds’ custody. Ms. Reynolds informed the Agency that she was

no longer interested in having the children placed with her due to concerns over

the relationship between Latoya and James. After a shelter care hearing, the court

approved the children’s removal from Leslie Reynolds’ home and again placed the

children in the temporary custody of the Agency in foster care. Neither James nor

Latoya was present at the hearing due to being incarcerated at the time.

Specifically, Latoya was in jail pending a felony robbery charge and James was in

jail on charges related to drug trafficking. 2

{¶12} On August 2, 2010, James filed a motion for legal custody as a

dispositional alternative requesting the children be placed in the temporary

custody of their “paternal aunt,” Kenisha White. In the meantime, Latoya had

been sentenced to three years in prison for her robbery conviction, with her stated

prison term ending in May 2013, and James was sentenced to an eight-month

prison term for his conviction of trafficking in drugs.

{¶13} On August 27, 2010, the Agency filed a motion requesting

permanent custody of the children and alleging that the children cannot be placed

with either parent in a reasonable amount of time nor should they be returned to

2 Latoya’s robbery charge stemmed from an incident in which she was caught on video entering a gas station and demanding money from the clerk with her hand in her front pocket making it appear as if she had a gun. On July 22, 2010, Latoya pled guilty to the charge. On June 11, 2010, James pled guilty to trafficking in Marijuana.

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either parent, and that it is in the best interest of the children for permanent

custody to the Agency to be granted. See R.C. 2151.414(B)(1)(a), (E)(15).

{¶14} On October 12, 2010, the magistrate filed a decision permitting the

Agency to arrange supervised visitations between Kenisha White and the children,

and to have a home study completed of Ms. White’s home. This was done in an

effort to explore a possible kinship placement of the children with Ms. White.

{¶15} On December 1, 2010, the Agency dismissed its motion for

permanent custody of the children filed on August 27, 2010 due to scheduling

conflicts with the Guardian ad litem (“GAL”) in the case and the Agency’s

inability to reschedule the permanent custody hearing within the statutory 200-day

timeframe. The same day the Agency refiled its motion for permanent custody.

{¶16} On February 9, 2011, the GAL filed a report, in which she noted that

Kenisha White could offer the children a potentially safe and permanent home, but

expressed her concerns with the placement being suggested at the behest of James

and Latoya instead of on Ms. White’s initiative. On the same day, a hearing was

held regarding the Agency’s motion for permanent custody and James’ motion for

an order placing the children in the temporary custody of Kenisha White. At the

hearing, James’ counsel requested a continuance to allow for additional time to

implement the kinship placement with Kenisha White. The GAL also indicated

that a grant of additional time to explore the kinship placement with Ms. White

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would be in the children’s best interest. As a result, the court continued the

proceedings on the Agency’s motion for permanent custody to allow the children

to begin to visit with Ms. White so that they could eventually be placed with her.

James was provided with supervised visitation with the children at Patchworks

House. Latoya continued to be incarcerated at this time. The parties agreed at the

hearing that if the transition of placing the children with Kenisha White was not

progressing successfully, the Agency would refile its motion for permanent

custody.

{¶17} On April 29, 2011, the Agency refiled its motion for permanent

custody of the children. Kenisha White was no longer committed to taking

temporary custody of the children. Ms. White missed several scheduled

visitations with the children and informed the ongoing caseworker that she had

concerns about the children being placed in her home. It was later revealed that

Ms. White is not actually related to James, despite the representations made to the

court by the parents that Ms. White was the children’s paternal aunt. During this

time, James had not exercised any of his visitations with the children and had also

refused to take a drug test. Latoya was still incarcerated and was denied judicial

release.

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{¶18} On June 10, 2011, the GAL filed a second report in the case. This

time the GAL recommended the court grant the Agency’s motion for permanent

{¶19} On June 14 and 15, 2011, a hearing on the Agency’s motion for

permanent custody and James’ motion for legal custody of Kenisha White as a

dispositional alternative was held before the magistrate. Several witnesses

testified, including the children’s current foster mother, Tawana Craddolph,

Latoya, the GAL, the ongoing caseworker, Jay Rishty, and Kenneth Kreais, a

friend of Latoya’s. James did not appear at the hearing. James’ counsel made an

oral motion to continue the proceedings in light of James’ absence, which was

overruled by the magistrate.

{¶20} On August 9, 2011, the magistrate issued a 31-page decision on the

matter. Based on the evidence adduced at the hearing, the magistrate found that

the children had been in the temporary custody of the Agency in excess of twelve

months of a consecutive twenty-two-month period. See R.C. 2151.414(B)(1)(d).

The magistrate also found that the evidence supported finding that the children

cannot be placed with either parent within a reasonable time or should not be

placed with either parent. See R.C. 2151.414(B)(1)(a).

{¶21} The magistrate found by clear and convincing evidence that the

Agency had used reasonable efforts to reunite the children with the parents but

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that the parents have failed to substantially comply with the case plans. The

magistrate then concluded that based on the relevant statutory considerations, it

was in the best interest of the children to be in the permanent custody of the

Agency. Thus, the magistrate found by clear and convincing evidence that the

Agency’s motion for permanent custody should be granted, terminating Latoya’s

and James’ parental rights.

{¶22} Both Latoya and James subsequently filed objections to the

magistrate’s decision. On January 6, 2012, the trial court specifically addressed

and overruled each of Latoya’s and James’ objections to the magistrate’s decision.

The trial court found that the statutory and best interest findings of the magistrate

were supported by the evidence in the record and approved the magistrate’s

decision. Thus, the trial court found that the Agency used reasonable efforts to

reunite the children with their parents and granted the Agency’s motion for

permanent custody, terminating Latoya’s and James’ parental rights. James’

motion for an order placing the children with Kenisha White was also dismissed.

{¶23} Latoya and James now appeal the trial court’s decision, asserting the

following assignments of error.

LATOYA’S ASSIGNMENT OF ERROR NO. I

THE COURT’S GRANT OF PERMANENT CUSTODY TO THE SENECA COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

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LATOYA’S ASSIGNMENT OF ERROR NO. II

THE TRIAL [sic] ERRORED [sic] BY NOT GRANTING APPELLANT/FATHER’S MOTION FOR CONTIUANCE [sic].

LATOYA’S ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED BY ADMITTING AND RELYING ON THE GUARDIAN AD LITEM REPORTS THAT CONTAINED UNDERLYING HEARSAY INFORMATION AND THAT WERE SUBMITTED OUTSIDE THE REQUIREMENTS OF THE SUPREME COURT SUPERINTENDENCE RULE 48 AND FOR NOT INSURING THE GUARDIAN AD LITEM WAS IN COMPLIANCE WITH THE SUPREME COURT SUPERINTENDENCE RULE 48.

LATOYA’S ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED BY FINDING THAT THE SENECA COUNTY DEPARTMENT OF JOB’S [sic] AND FAMILY SERVICES HAD MADE REASONABLE EFFORTS TO REUNIFY THE FAMILY.

JAMES’ ASSIGNMENT OF ERROR NO. I

THE COURT ERRED IN ADMITTING AND RELYING ON THE GUARDIAN AD LITEM REPORTS THAT CONTAINED UNDERLYING HEARSAY INFORMATION, AND THAT WERE SUBMITTED OUTSIDE THE REQUIREMENTS OF THE SUPREME COURT SUPERINTENDENCE RULE 48.

JAMES’ ASSIGNMENT OF ERROR NO. II

THE COURT BELOW ERRED IN AFFIRMING THE MAGISTRATE’S DENIAL OF A CONTINUANCE OF THE PERMANENT CUSTODY HEARING SO THAT THE FATHER COULD ATTEND THE HEARING AND PROVIDE EVIDENCE AND TESTIMONY.

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JAMES’ ASSIGNMENT OF ERROR NO. III

THE FINDINGS AND CONCLUSIONS OF THE COURT BELOW WERE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶24} Because Latoya’s and James’ assignments of error raise the same

issues, we elect to discuss them together. Furthermore, for ease of discussion we

will address the assignments of error out of order.

Latoya’s and James’ Second Assignments of Error

{¶25} In their second assignments of error, both Latoya and James argue

that the trial court erred when it overruled their objections to the magistrate’s

decision denying the oral motion made by James’ counsel to continue the

permanent custody hearing because James was unavailable to attend the hearing.

{¶26} Juvenile Rule 23 provides that “[c]ontinuances shall be granted only

when imperative to secure fair treatment for the parties.” It is well-settled that

“[t]he grant or denial of a continuance is a matter which is entrusted to the broad,

sound discretion of the trial judge. An appellate court must not reverse the denial

of a continuance unless there has been an abuse of discretion.” State v. Unger, 67

Ohio St.2d 65, 67 (1981). An abuse of discretion implies that the court’s attitude

was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

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{¶27} Nevertheless, the right of due process requires that “a defense

counsel be afforded the reasonable opportunity to prepare his case.” State v.

Sowders, 4 Ohio St.3d 143 (1983). The Supreme Court of Ohio has recognized: “

‘There are no mechanical tests for deciding when a denial of a continuance is so

arbitrary as to violate due process. The answer must be found in the

circumstances present in every case, particularly in the reasons presented to the

trial judge at the time the request is denied.’ ” Unger at 67 quoting Ungar v.

Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841 (1964). The trial court may consider

factors such as the length of the delay requested, prior requests for continuances,

the inconvenience to the parties, witnesses, counsel, and the court, whether the

movant contributed to the circumstances giving rise to the request for a

continuance, and other relevant factors depending on the facts of the case. State v.

Landrum, 53 Ohio St.3d 107 (1990).

{¶28} The magistrate in her decision stated the following with regard to the

oral motion for a continuance made on James’ behalf by his counsel.

Father, James Carswell, Sr., was not present and did not appear for either date [of the permanent custody hearing]. He is represented by counsel. [James’ counsel] informed the court that Father contacted him on June 13, 2011 at 4:45 p.m. to inform [his counsel] that he was unable to make it to the hearing on June 14, 2011 as he was in Atlanta, Georgia. Father then stated that he was without transportation to make it from Toledo, Ohio to Tiffin, Ohio for the hearing, even though he had just told [his counsel] he was out of state. Father further stated to [his counsel] that he wanted the attorney that he spoke to [a]

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few weeks ago to represent him in this matter. Finally he told him that he wanted a new attorney for these matters. [James’ counsel] informed the court that he believed that the other attorney he spoke to was [J.C.’s attorney] in these matters. *** Father gave three reasons for not being able to attend the hearing. The magistrate does not find any of the excuses reasonable. The first notice of these hearings was personally served on Father on February 2, 2011. The second notice for these hearing dates was sent to Father by certified mail on or about May 2, 2011 and [a] certified return receipt was filed by the court on May 6, 2011. Father has had more than enough time to make sure he was not out of state, had arranged and secured transportation, or seek another attorney to represent him in these matters.

(Magistrate’s Decision, Aug. 9, 2011, at p. 2).

{¶29} On appeal, neither James nor Latoya dispute the fact that James was

properly served with notice of the permanent custody proceedings and that he had

ample time to secure another attorney if he was dissatisfied with the one appointed

to him. In fact, his own counsel on the record informed the court that he had

called James two weeks prior to the permanent custody hearing to remind him of

the hearings dates.

{¶30} James cites to In re Edward M., 6th Dist. Nos. L-04-1282, L-04-

1304, 2005-Ohio-3354, in support of his position. However, in that case, the

father-appellant did not appear at the permanent custody hearing because he was

suddenly hospitalized. In reversing the decision of the trial court overruling

father-appellant’s motion for a continuance, the Sixth District noted that the

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father’s absence at the proceedings was through no fault of his own, he had always

appeared for scheduled hearings, never before asked for a continuance and had

attended all scheduled visits with the children except when he was hospitalized.

Here, the record demonstrates that James consistently missed court hearings

requiring his attorney to ask for multiple continuances due to James’ absences, and

that James failed to regularly exercise visitation with his children.

{¶31} Moreover, it is apparent from the record that James was continually

represented by counsel throughout the custody proceedings with the Agency,

despite the fact that James chose to not actively participate in the case. James

never provided the court with a valid excuse for his lack of involvement in such a

crucial court proceeding resulting in the termination of his parental rights.

Accordingly, under the particular facts and circumstances presented in this case,

we conclude that the trial court did not abuse its discretion in overruling the oral

motion made by James’ counsel to continue the permanent custody hearing.

Latoya’s and James’ second assignments of error are overruled.

Latoya’s Third Assignment of Error and James’ First Assignment of Error

{¶32} In these assignments of error, Latoya and James contend that the trial

court erred when it overruled their objections to the magistrate’s decision

challenging the admissibility of the GAL’s report. Latoya and James assert two

reasons in support of their argument that the GAL’s report was inadmissible.

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First, they argue that the GAL did not comply with the guidelines established in

Sup.R. 48 because she never observed James interact with the children. Second,

they argue that the GAL report contains hearsay. However, neither parent

identifies a specific portion of the report to contain hearsay, but instead simply

makes a general assertion regarding the inadmissibility of the report.

{¶33} Initially, we note that neither Latoya nor James objected to the

admissibility of the GAL’s report at the permanent custody hearing. It is well

established that if a party fails to object at the trial court level, that party waives all

but plain error. “A ‘plain error’ is obvious and prejudicial although neither

objected to nor affirmatively waived which, if permitted, would have a material

adverse affect on the character and public confidence in judicial proceedings.”

Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982). The Ohio Supreme

Court has discussed the application of the plain error doctrine in civil cases,

finding that, “[i]n appeals of civil cases, the plain error doctrine is not favored and

may 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.” Goldfuss v. Davidson, 79 Ohio St.3d 116, syllabus (1997).

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{¶34} Here, both Latoya and James were provided with a full and fair

opportunity to cross-examine the GAL regarding her observations and findings at

the permanent custody hearing. The record indicates that the GAL was assigned

to the case in August of 2009 after replacing the original CASA assigned to the

case. At the permanent custody hearing, the GAL testified that during the time she

was on the case, she was unable to observe James interact with the children

because James’ visitation at Patchworks House was done prior to her taking over

the case. However, she explained that she read the reports of her predecessor

regarding James’ visits which indicated that his visits went “wonderfully” and by

all reports he was doing “remarkably well.” (Trans. at 140, 146). The GAL also

testified that she was hoping James “would do what he needed to do to get these

kids.” (Trans. at 140).

{¶35} The record indicates that James was able to get unsupervised

visitation with the children and saw the children on a somewhat regular basis

when they lived with Leslie Reynolds. However, the GAL testified that after the

placement with Ms. Reynolds terminated and the children were returned to foster

care, James failed to exercise visitation with the children partially due in part to

being incarcerated during some of this time, but also due to his own lack of

initiative. Specifically, the GAL noted that James had not seen the children since

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March of 2010 and had neglected to set-up visitations since last being released

from prison in early 2011.

{¶36} Finally, both the magistrate’s decision and the judgment entry of the

trial court granting permanent custody of the children to the Agency revealed that

the magistrate’s and trial court’s reliance on the GAL’s report was minimal.

Rather, both cited to the evidence presented at the permanent custody hearing in

addition to the extensive record in the case proceedings as the basis for their

determinations.

{¶37} For all these reasons, we find that the magistrate did not commit

plain error when it admitted the GAL’s report into evidence. Likewise, we

conclude that neither Latoya nor James suffered any prejudice as a result of the

magistrate’s and trial court’s limited consideration of the GAL’s report.

Therefore, Latoya’s third and James’ first assignments of error are overruled.

Latoya’s Fourth Assignment of Error

{¶38} In her fourth assignment of error, Latoya contends that the trial court

erred when it determined that the Agency used reasonable efforts to reunify the

children with her.

{¶39} The Revised Code imposes a duty on the part of children services

agencies to make reasonable efforts to reunite parents with their children where

the agency has removed the children from the home. R.C. 2151.419; see, also, In

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re Brown, 98 Ohio App.3d 337, 344 (1994). Further, the agency bears the burden

of showing that it made reasonable efforts. R.C. 2151.419(A)(1). “Case plans are

the tools that child protective service agencies use to facilitate the reunification of

families who * * * have been temporarily separated.” In re Evans, 3d Dist. No. 1–

01–75, 2001–Ohio–2302. To that end, case plans establish individualized

concerns and goals, along with the steps that the parties and the agency can take to

achieve reunification. Id. Agencies have an affirmative duty to diligently pursue

efforts to achieve the goals in the case plan. Id. “Nevertheless, the issue is not

whether there was anything more that [the agency] could have done, but whether

the [agency’s] case planning and efforts were reasonable and diligent under the

circumstances of this case.” In re Leveck, 3d Dist. Nos. 5–02–52, 5–02–53, 5–02–

54, 2003–Ohio–1269, ¶ 10.

{¶40} On appeal, Latoya points to the fact that she was incarcerated for the

majority of the time the children were in the Agency’s temporary custody and

argues that the Agency failed to ensure she maintained reasonable contact and/or

visitation with C.B. and J.C. In particular, Latoya claims that she was denied

phone contact with C.B. and J.C. when she tried to call the children while they

lived with Tawana Craddolph, the children’s foster mother. Latoya also contends

that the Agency failed to provide sufficient case plan services to her so that she

could meet the objectives in the case plan.

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{¶41} First, Latoya’s claim that she was denied phone contact and/or

visitation with her children while she was incarcerated is unsubstantiated by the

record. Ms. Craddolph testified that she never denied Latoya phone contact with

the children while they were in her care. Ms. Craddolph further testified that she

only received one call from Latoya asking to speak to the children, at which point

Latoya was able to talk to the children. Other than this one phone call, Ms.

Craddolph explained that she had received calls from the prison but was not home

at the time to accept the calls. Moreover, there is no indication in the record that

Latoya ever petitioned the court to set up visitation with the children at the prison.

However, the record does indicate that when Latoya was intermittently released

from prison during the three years of the Agency’s involvement, she only

sporadically visited the children and frequently would not show for scheduled

visitations, despite the Agency’s efforts to facilitate her visitations.

{¶42} Second, the evidence at the permanent custody hearing revealed that

the Agency made several attempts to assist Latoya with her drug addiction, which

appeared to be a major obstacle in her ability to meet the objectives in the case

plan. Specifically, Jay Rishty, the ongoing caseworker on the case, testified that

the Agency helped get Latoya admitted into a rehabilitation facility, which cost the

Agency $1,500.00. However, Latoya left the facility before completing the

program. Mr. Rishty also arranged for Latoya to live at a homeless shelter, which

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worked with a counseling center and would help Latoya meet some of the

counseling requirements stated in the case plan. Latoya left the shelter two days

later. In addition, Latoya continued to test positive on drug screens throughout the

three years the Agency had temporary custody of her children.

{¶43} Based on the foregoing, we find that the Agency satisfied its duty to

diligently pursue efforts to achieve the goals in the case plan. The Agency’s case

planning and efforts were reasonable and diligent under the circumstances of this

case. It is evident that Latoya’s failure to actively meet the objectives in the case

plan was through no one’s fault but her own. The record is replete with instances,

in which the Agency attempted to assist Latoya with remedying the issues

preventing her from reunifying with C.B. and J.C., but Latoya chose not to

participate in removing those barriers. Therefore, we find that the magistrate and

the trial court did not err when they determined that the Agency had made

reasonable efforts to prevent the continued removal of the children from Latoya’s

home. Latoya’s fourth assignment of error is overruled.

Latoya’s First Assignment of Error and James’ Third Assignment of Error

{¶44} In these assignments of error, Latoya and James claim that the

findings and conclusions of the magistrate and the trial court granting permanent

custody of C.B. and J.C. to the Agency were not supported by the manifest weight

of the evidence.

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{¶45} As an initial matter, we note that “[i]t is well recognized that the

right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3d

Dist. Nos. 9–06–12, 9–06–13, 2006–Ohio–4841, ¶ 9, citing In re Hayes, 79 Ohio

St.3d 46, 48 (1997). The Supreme Court of Ohio has held that a parent “must be

afforded every procedural and substantive protection the law allows.” In re

Hayes, supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (1991). Thus, it is with

these constructs in mind that we proceed to determine whether the trial court erred

in granting permanent custody of the children to the Agency.

{¶46} Section 2151.414(B)(1) of the Revised Code provides, inter alia, that

a trial court:

may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:

(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, * * * and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child's parents.

(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.

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(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two- month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and * * * the child was previously in the temporary custody of an equivalent agency in another state.

R.C. 2151.414(B)(1)(a-d) (emphasis added).

{¶47} The Supreme Court of Ohio has held that “[c]lear and convincing

evidence is that measure or degree of proof which will produce in the mind of the

trier of facts a firm belief or conviction as to the allegations sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Further, “[i]t is

intermediate; being more than a mere preponderance, but not to the extent of such

certainty as is required beyond a reasonable doubt as in criminal cases. It does not

mean clear and unequivocal.” Id., citing Merrick v. Ditzler, 91 Ohio St. 256

(1915). In addition, when “the degree of proof required to sustain an issue must

be clear and convincing, a reviewing court will examine the record to determine

whether the trier of facts had sufficient evidence before it to satisfy the requisite

degree of proof.” Cross, supra (citations omitted); see, also, In re Adoption of

Holcomb, 18 Ohio St.3d 361, 368 (1985).

{¶48} At the outset, we note that Latoya and James do not dispute the

finding of the magistrate and the trial court that the children have been in the

Agency’s temporary custody in excess of the required twelve or more months in a

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consecutive twenty-two-month period. See R.C. 2151.414(B)(1)(d). In addition

to the court finding a grant of permanent custody to the Agency is in the children’s

best interest, this finding without more provides the court with the appropriate

grounds to grant the Agency’s motion for permanent custody. However, the

magistrate and the trial court made the additional finding that the children cannot

be placed with either parent within a reasonable time or should not be placed with

either parent. R.C. 2151.414(B)(1)(a). The assignments of error raised are related

to this additional finding by the magistrate and the trial court, therefore, in the

interest of justice we will address the arguments made regarding the adequacy of

this specific finding.

{¶49} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a)

that the children cannot be placed with either parent within a reasonable time or

should not be placed with either parent, the Revised Code states as follows:

(E) In determining at a hearing held pursuant to division (A) of this section * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section * * * that one or more of the following exist as to each of the child’s parents, 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:

(1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the

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problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.

***

(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;

(12) The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available to care for the child for at least eighteen months after the filing of the motion for permanent custody or the dispositional hearing.

(13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child.

(16) Any other factor the court considers relevant.

R.C. 2151.414(E) (emphasis added).

{¶50} On appeal, Latoya and James contend that the evidence at the

permanent custody hearing was insufficient for the magistrate and the trial court to

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conclude that they have demonstrated a lack of commitment toward their children

by failing to regularly support, visit, or communicate with their children when able

to do so, or by other actions showing an unwillingness to provide an adequate

permanent home for the children. See R.C. 2151.414(E)(4). Notably, neither

Latoya nor James dispute the fact that their repeated incarceration during the

three-year period of the Agency’s involvement prevented them from providing

care for C.B. and J.C. See R.C. 2151.414(E)(13).

{¶51} Specifically with regard to her arguments on appeal, Latoya contends

that the evidence at the permanent custody hearing establishes that, while she has

been incarcerated, she has successfully completed substance abuse programs,

“family responsibility” programs, and participated in an anxiety group that

addresses mental health related issues. Latoya also asserts that the evidence at the

hearing demonstrates she has filed a second motion for judicial release and is

hopeful that it will be granted. Furthermore, Latoya points to the testimony

provided at the hearing by her friend Kenneth Kreais, in which Mr. Kreais

confirmed that Latoya and the children can stay with him at his home upon

Latoya’s release from prison. Latoya claims this evidence proves her commitment

to her children in that she is now actively working toward some of the objectives

in the case plan and that if she is given an additional six months before the trial

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court ruled on the Agency’s permanent custody motion, then she will hopefully be

released from prison and able to provide the children with stable housing.

{¶52} Despite Latoya’s contentions, there is an overwhelming amount of

evidence in the record to support the findings of the magistrate and the trial court

on this issue. The record demonstrates that Latoya was given ample opportunity

to complete the minimal objectives in the case plan in order to regain custody of

her children, but that she chose not to take the initiative to accomplish these tasks

during the limited intervals of time that she was released from prison.

{¶53} For instance, Latoya consistently failed to exercise visitation with her

children in accordance with the case plan. In fact, Jay Rishty, the ongoing

caseworker in the case, testified that Latoya would either arrive late to visitations

at Patchwork House or not show up at all. Mr. Rishty testified that this was

having a noticeably harmful effect on the children. As a result, the Agency would

not take the children to Patchwork House for Latoya’s visits unless Latoya had

called 24-hours in advance to confirm she would be there. This procedure was

implemented because the disappointment of waiting for Latoya to arrive to the

visitations and then have her not show was becoming too much for the children to

handle. Moreover, Latoya admitted at the permanent custody hearing that her

visitations with the children were sporadic and that she had missed visits. The last

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time Latoya saw C.B. and J.C. was in March of 2010 when James violated the

case plan and took the children to see Latoya at a hotel in Toledo.

{¶54} At the permanent custody hearing, Latoya also admitted to using

drugs during her intermittent releases from prison. Latoya explained that her drug

use contributed to her not taking seriously the case plan and the Agency’s

involvement with the custody of C.B. and J.C. Latoya testified that it is difficult

for her to stay clean and sober when she is not incarcerated. Latoya further

admitted that it has only been in the last year, during her most recent incarceration,

that she has begun to take steps to meet the objectives in the case plan. Mr. Rishty

confirmed that Latoya loses control of her life when she is not in prison.

Specifically, he testified that during the past three years, a pattern has emerged in

Latoya’s behavior that upon her release from prison she returns to her chronic

drug abuse and unstable housing, which consists of her living in various hotels.

{¶55} Finally, Latoya’s assertion of her impending early release from

prison is purely speculative. The record demonstrates that her stated prison term

expires in May 2013 and there is no indication that Latoya’s motion for judicial

release has been granted. In addition, Kenneth Kreais did testify that Latoya and

the children could stay with him upon Latoya’s release from prison. However,

Mr. Kreais stated that it would only be on a temporary basis, for weeks or maybe

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months, but that he would not provide a permanent solution to Latoya’s repeated

inability of providing stable housing for the children.

{¶56} As for his part, James argues on appeal that the record demonstrates

that he has made efforts to maintain custody of C.B. and J.C. and has attempted to

meet the objectives of the case plan. In addition, James points to the two kinship

placements he requested the Agency to explore as evidence of his commitment to

his children.

{¶57} At the outset, we note that even though James had arranged for the

children to be placed in the temporary custody of “relatives” under the Agency’s

protective supervision, there was no evidence that either Leslie Reynolds or

Kenisha White were actual blood relatives of James or the children, as James

represented to the court. In fact, it appears from the testimony at the permanent

custody hearing that Ms. Reynolds had a personal relationship with James and was

only willing to take custody of the children if Latoya remained out of the picture.

However, upon Latoya’s previous release from jail in 2010, Ms. Reynolds lost

interest in having custody of the children and the “kinship” placement fell apart.

As for Kenisha White, the record establishes that she never took the initiative to

set up the “kinship” placement and ultimately told the Agency that she was not

interested in having temporary custody of the children. Thus, James’ suggested

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“kinship” placements did not provide adequate alternatives to the children’s

permanent custody with the Agency.

{¶58} In addition, the testimony at the permanent custody hearing

establishes that James had the potential to be a good father to the children, but that

he lacked initiative and follow through when it came to doing the work to regain

custody of C.B. and J.C. Although not to the same extent as Latoya, James was

intermittently incarcerated during the three years of the Agency’s involvement

with the children. However, unlike Latoya, James had more free time during the

three year period, when he was not incarcerated, to establish consistent visitations

with C.B. and J.C. but chose not to do so. Furthermore, at no point in time during

these proceedings was James able to provide stable housing for the children. He

lived in Toledo with his aunt, who made it clear that she did not want to be

involved with the children’s custody. Moreover, the record is replete with

instances in which James failed to appear at pertinent hearings during this case,

including the permanent custody hearing which was James’ last opportunity to

present evidence demonstrating why the Agency’s motion for permanent custody

should not be granted.

{¶59} Mr. Rishty, the ongoing caseworker, testified that “we have now

been on this case for three years. The parents are in no better position, in fact,

they are in a worse position now to take custody of their children.” (Trans. at

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166). The record of these proceedings and the evidence elicited at the permanent

custody hearing supports this conclusion. Thus, we find that the determination of

both the magistrate and the trial court that Latoya and James demonstrated a lack

of commitment toward their children by failing to regularly support, visit, or

communicate with their children when able to do so, or by other actions showing

an unwillingness to provide an adequate permanent home for the children was

supported by clear and convincing evidence. Accordingly, we conclude that the

magistrate’s and the trial court’s determinations that the children cannot be placed

with either Latoya or James within a reasonable period of time or should not be

placed with them were not against the manifest weight of the evidence.

{¶60} Although we conclude that the findings of the magistrate and the trial

court regarding R.C. 2151.414(B)(1)(a) were not against the manifest weight of

the evidence, before granting permanent custody of C.B. and J.C. to the Agency,

the magistrate and the trial court also had to find that granting permanent custody

to the Agency was in the children’s best interest. Latoya and James contend that

the magistrate and the trial court erred in finding permanent custody is in the

children’s best interest and that the decisions were against the manifest weight of

the evidence.

{¶61} In order to determine whether granting permanent custody to an

agency is in a child’s best interest, the court must consider all relevant factors,

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including, but not limited to, five enumerated factors listed in R.C. 2151.414(D).

These factors are:

(1) The interaction and interrelationship of the child with the child’s parent, siblings, relatives, foster caregivers 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 for the maturity of the child;

(3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies * * * for twelve or more months of a consecutive twenty-two month period * * *;

(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 to the agency; and

(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

{¶62} On appeal, Latoya and James argue that the magistrate and the trial

court overlooked the strong bonds the children have with their half-siblings and

relatives in their determinations that granting permanent custody of the children to

the Agency is in their best interest. See R.C. 2151.414(D)(1).

{¶63} The evidence in the record of the children’s relationships with their

half-siblings and relatives is limited. At the time of the permanent custody hearing

C.B. and J.C. had spent two-thirds of their short lives in the Agency’s temporary

custody. C.B was barely two-years-old when the Agency became involved and

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J.C. was almost ten-months old. The children had not seen their maternal

grandmother since 2009 and their maternal half-sister had moved to Chicago to

live with her father. Tawana Craddolph, the children’s foster mother and the only

consistent parental figure in their lives, testified that the children had seen their

paternal half-siblings once at a birthday party and that James was unaware that

C.B. and J.C. visited with his other children. Ms. Craddolph also testified that the

children have learned to be reserved about whom they identify as their “family”

and truly only consider each other their “family.”

{¶64} In contrast, there was ample evidence presented at the permanent

custody hearing demonstrating that the lack of permanency in the children’s living

situation and the constant roller coaster of being shuffled from one person’s home

to another, which was done at Latoya’s and James’ requests, were beginning to

have a detrimental effect on them. See R.C. 2151.414(D)(4). Ms. Craddolph

explained that C.B. and J.C. “need some permanency in their [lives]. They don’t

need to keep going to cousins, aunties, whoever and—because when they keep

doing that then they get returned back to the agency, that’s like a fall for them to

say, “Where do I belong?” You know, it’s like a scab being opened constantly to

them, that there’s no healing right now for it so.” (Trans. at 38). Both the ongoing

caseworker and the GAL assigned to the case echoed similar sentiments about the

children’s need for a permanent home. Specifically, the GAL testified that the

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children have begun to exhibit behavior and attachment issues, and that it has been

recommended that they seek counseling to address these problems. The GAL

explained she believed that once the children were in a “forever home” they would

flourish.

{¶65} Based on the evidence in the record, we conclude that the

determinations of the magistrate and the trial court that it is in the best interest of

the children to grant permanent custody to the Agency were supported by clear

and convincing evidence and were not against the manifest weight of the evidence.

Therefore, Latoya’s first and James’ third assignments of error are overruled.

{¶66} For all these reasons, the judgments of the Seneca County Court of

Common Pleas, Juvenile Division, are affirmed.

PRESTON and ROGERS, J.J., concur.

/jlr

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