[Cite as In re C.M.B., 2020-Ohio-126.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
: IN RE: C.M.B., C.G., M.L.B. & C.J.G. : : Appellate Case No. 28523 : : Trial Court Case Nos. 2016-6164 : 2016-6166 : 2016-6168 : 2016-6169 : : (Appeal from Common Pleas Court – Juvenile Division)
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OPINION
Rendered on the 17th day of January, 2020.
MATHIAS H. HECK JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee, State of Ohio
ROBERT ALAN BRENNER, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Appellant, Mother
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HALL, J. -2-
{¶ 1} Mother appeals from the trial court’s judgment entry terminating her parental
rights and awarding appellee Montgomery County Children Services (“MCCS”)
permanent custody of four of her children.
{¶ 2} Mother advances two assignments of error. First, she contends the trial court
erred in finding that awarding permanent custody to MCCS was in the children’s best
interest. Second, she claims the trial court erred in denying a request for a continuance
so a home study could be completed for a relative in Florida.
{¶ 3} The record reflects that MCCS filed separate dependency complaints in
October 2016 regarding each of the four children at issue. At the time of the complaints,
the children were ages six, eight, nine, and eleven. The complaints alleged that the
children were dependent based on (1) sexual abuse allegations against Mother’s
boyfriend with regard to another of Mother’s children and (2) Mother’s admitted mental-
health issues as well as the agency’s substance-abuse concerns. Following orders of
interim temporary custody, the children were adjudicated dependent in November 2016
and MCCS obtained temporary custody. MCCS later obtained an extension of temporary
custody. Before that extension expired, the agency moved for permanent custody of all
four children in March 2018. Following two continuances of a scheduled dispositional
hearing to allow a home study to be completed for the paternal grandmother in Florida,
the matter was set for a November 8, 2018 dispositional hearing. The day before the
hearing, the attorney for the children requested another continuance for the Florida home
study to be completed. That request was denied. Oral requests for a continuance also
were denied at the outset of the November 8, 2018 hearing. The only witnesses at the
hearing were a caseworker and a psychologist, both of whom were called by MCCS. -3-
Mother did not testify, nor did either of the two fathers of the children at issue. Based on
the evidence presented, a magistrate awarded MCCS permanent custody of the four
children. Mother timely objected. As relevant to the present appeal, Mother objected to
the magistrate’s finding that awarding permanent custody to MCCS was in the children’s
best interest. She also objected to the magistrate’s denial of another continuance to allow
the Florida home study to be completed.
{¶ 4} In an August 12, 2019 decision and judgment entry, the trial court overruled
Mother’s objections and awarded MCCS permanent custody of the children. In a ruling
that was 17 single-spaced pages, the trial court independently examined the evidence
presented at the dispositional hearing. It addressed and considered Mother’s progress on
her case-plan objectives. It also found that the children had been in MCCS’s temporary
custody for at least 12 of the preceding 22 months and that awarding permanent custody
to the agency was in the children’s best interest. In reaching its best-interest
determination, the trial court analyzed and made findings with regard to each of the
pertinent statutory factors. Finally, with regard to the continuance issue, the trial court
noted that the permanent-custody hearing already had been continued twice to allow a
Florida home study to be completed. The trial court noted that the children had been in
MCCS’s care for more than two years and that it remained unclear when the home study
would be completed or whether the home would be approved. Under these
circumstances, the trial court found a third continuance unwarranted.
{¶ 5} A trial court’s decision to grant permanent custody to the State and to
terminate parental rights must be supported by clear and convincing evidence. In re L.C.,
2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066, ¶ 14. We apply an abuse-of-discretion -4-
standard, and we will not disturb such a decision on evidentiary grounds “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.” (Citation omitted.) Id.; see also In re S.S., 2d Dist. Miami No. 2011-
CA-07, 2011-Ohio-5697, ¶ 7. The phrase “abuse of discretion” implies a decision that is
unreasonable, arbitrary, or unconscionable. S.S. at ¶ 7. Therefore, a trial court’s
termination of parental rights cannot be reversed based on a mere difference of opinion
or substitution of our judgment for that of the lower court. Id.
{¶ 6} Under R.C. 2151.414, the trial court was authorized to award permanent
custody to MCCS based on a finding, by clear and convincing evidence, (1) that granting
permanent custody to the agency was in the best interest of Mother’s children and (2)
that the children had been in the temporary custody of MCCS for 12 or more months of a
consecutive 22-month period. With regard to the best-interest determination, R.C.
2151.414(D) directs the trial court to consider all relevant factors, including but not limited
to: (1) 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; (2) the wishes
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 or private child
placing agencies for 12 or more months of a consecutive 22-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 R.C. 2151.414(E)(7) through (11) are applicable. In re S.J., 2d Dist.
Montgomery No. 25550, 2013-Ohio-2935, ¶ 14-15. -5-
{¶ 7} Here the trial court made the findings required to award MCCS permanent
custody. Among other things, it found by clear and convincing evidence that Mother’s
children had been in MCCS’s temporary custody for more than 12 months of a
consecutive 22-month period and that an award of permanent custody to the agency was
in the children’s best interest. On appeal, Mother does not dispute the 12-in-22 finding,
which is supported by the record. The only issue raised in Mother’s first assignment of
error is whether the trial court’s best-interest finding was supported by clear and
convincing evidence.1
{¶ 8} In its decision, the trial court made comprehensive findings on each of the
statutory best-interest factors. It also assessed Mother’s progress on each of her case-
plan objectives. The trial court noted that MCCS initially became involved based on
allegations that a sibling of the four children at issue was being sexually abused. An
investigation resulted in that allegation being unsubstantiated. In the course of its
investigation, however, MCCS learned of allegations that one of the four children involved
in this case also was being sexually abused by Father Two, with whom Mother was
residing. A caseworker described that allegation as being “indicated,” meaning the
agency had enough evidence to believe abuse occurred but not enough evidence to
prove it. As set forth above, MCCS also had concerns about Mother’s mental health and
allegations of drug abuse. After MCCS became involved and filed its dependency
1 The father of two of Mother’s four children (“Father One”) had no involvement with MCCS and took no part in the proceedings below although counsel did appear on his behalf. The father of the other two children (“Father Two”) did participate in a case plan and did appear for the permanent-custody hearing. However, he did not testify at the hearing, did not file any objections to the magistrate’s decision, and is not a party to this appeal by Mother. -6-
complaints, the four children at issue were placed in foster care. They had been in foster
care for more than two years at the time of the permanent-custody hearing.
{¶ 9} With regard to Mother’s case-plan objectives, the trial court noted that she
had completed a mental-health assessment, which included diagnoses of bipolar and
schizoid affective disorders, and had followed recommendations, including medication.
The trial court also noted that Mother had completed a drug and alcohol assessment and
that she did not receive any follow-up recommendations. Mother also successfully had
completed parenting classes and had visited her children consistently.
{¶ 10} The trial court’s concerns with regard to Mother’s case plan involved
housing and income. The trial court made the following findings:
At the time of the hearing, Mother reported living with [Father Two]
at his aunt’s house. (Tr. 19). The caseworker stated that the aunt’s
residence is a two bedroom home and would not be enough space for four
children. (Tr. 19). Mother was given information on Section 8 housing, but
she did not qualify for [S]ection 8 housing, as she had owed money to a
landlord following an eviction from the subsidized housing in September
2017. (Tr. 21). Mother’s housing was appropriate from October 2016
through September 2017. (Tr. 21). After it was determined that Mother was
not eligible for Section 8 housing, the caseworker referred Mother to
PepZee Realty. (Tr. 55). The Agency reported that they would not be able
to help Mother with her past bills. (Tr. 56). The caseworker discussed with
Mother that she would need to pay Section 8 prior to the Agency being able
to assist her with housing. (Tr. 56). The Agency has not made any referrals -7-
for housing since that time. (Tr. 59).
Mother and [Father Two] acquired an apartment in “The Foundry,”
which the Agency was in hopes would be appropriate because it had
enough space for all the children. (Tr. 21). However, [Father Two] lost his
employment and they moved out. (Tr. 21-22). The parents have not had
appropriate housing since that time. (Tr. 22). The Agency has concerns with
Mother residing with [Father Two] due to allegations of sexual abuse that
were indicated. (Tr. 28).
Mother has worked sporadically throughout the case, including jobs
at McDonald’s, Capital Cleaners, Mahle, Sears, and a few factory jobs. (Tr.
23). At the time of the hearing, Mother had just recently obtained a job at
McDonald’s. (Tr. 23). The Agency believed that Mother may qualify for
Social Security Disability due to her mental health issues and made a
referral through their family support worker to help Mother. (Tr. 23). Mother
did not contact the family support worker back. (Tr. 23).
(August 12, 2019 Decision and Final Judgment Entry at 5-6.)
{¶ 11} Finally, with regard to the statutory best-interest factors, the trial court
analyzed them as follows:2
Under R.C. 2151.414(D), the best interest of the child encompasses
“all relevant factors,” including:
(1) The interaction and interrelationship of the child with the child’s
2 Given the detailed nature of the trial court’s findings and their significance to the outcome of Mother’s appeal, we have elected to quote the trial court’s best-interest analysis in full. -8-
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child;
The MCCS caseworker observed the children to be bonded with their
parents, and did not express any concerns with visitation. Both Mother and
[Father Two] have visited the children consistently. The GAL also noted that
the children are bonded with their parents, in addition to sharing a strong
bond with each other. The children are bonded with Mother and have
expressed to the caseworker that they would like to be returned to Mother.
(Tr. 57).
Paternal grandmother * * * had brief contact with the children in 2017
while she resided in Ohio. [She] has continued to have some phone contact
with the children through [Father Two]. [Two of the children] reported to the
GAL that they know their paternal grandmother, and have been to her house
before. (GAL Report, Pg. 3).
Each of the children are in a foster-to-adopt home. Each child
represented to the GAL that they are doing well in their placements, and
have received therapy services through the Agency.
(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;
According to the GAL Report filed on November 6, 2018, [two of the
children] indicated that their first preference was to return to their parents’
care, but both were willing to go to Florida if that wasn’t possible. [The other -9-
two children] indicated that they wished to return home to their parents as
their first choice. Likewise, [two of the children] have stated to the GAL that
they wish to be returned to Mother. [One of the children] also expressed
willingness to go to Florida with her siblings if necessary so that she could
remain with her siblings. The children have expressed to the caseworker
that they would like to be returned to Mother. (Tr. 57).
(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 or private child placing agencies for twelve or more months of a
consecutive twenty-two month period ending on or after March 18, 1999.
It has already been determined that the children have been in the
temporary custody of the Agency for twelve or more months of a
consecutive twenty two month period. The children were removed from their
parents’ home on October 4, 2016 and subsequently placed into foster care.
None of the children have ever returned to their parents’ care. The children
were initially all placed together in the same foster home. One child * * *
was later placed in the temporary custody of her aunt * * *. However, the
child returned to foster care in August 2017 where she has remained for the
duration of the case. The other three children have all remained together in
the same placement, though they switched homes in January 2018.
(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; -10-
None of the parents have completed their case plan. [Father One]
did not have contact with the Agency and did not engage in any services. It
is apparent that [Father One] was not actively seeking reunification with his
children.
Mother has completed various case plan objectives. She has
completed a parent[ing] class and has been consistent in her mental health
treatment. However, Mother has not had adequate housing since
September 2017. At the time of the hearing, Mother continued to reside with
[Father Two] and his aunt in a residence that was deemed inappropriate for
the children, as it is a two bedroom home without adequate space for the
children and all the adults. Mother’s employment history has been
inconsistent and unstable. Mother did not follow through with a referral for
obtaining benefits.
[Father Two] completed various case plan objectives. However,
[Father Two] also did not have adequate housing. Although [Father Two]
completed a parenting and psychological evaluation, he failed to follow
through with the recommendations. [Father Two] was recommended to
complete a psychosexual evaluation due to the existence of multiple sexual
abuse allegations. However, [Father Two] did not complete the evaluation.
In sum, the biggest remaining concerns are appropriate housing,
income stability, and sexual abuse allegations made against [Father Two].
At the time of the hearing, little progress was made on remedying those
concerns. The parents were still residing together with relatives. Both had -11-
inconsistent employment histories. [Father Two] refused to complete a
psychosexual evaluation.
[One child] has had issues with her grades, but was improving. (Tr.
42). She has been going to a therapist through Eastway, but is starting in
the Red Zone program through her school. (Tr. 43). [Another child] receives
therapy services through NYAP. (Tr. 43). [A third child] does not have any
special needs, but sees a therapist through the school. (Tr. 44). [The fourth
child] does not have any special needs or medical needs, but also sees a
therapist. (Tr. 44).
[One child] is in a foster to adopt placement. (Tr. 45). The agency
was looking into placing [a second child] into the same foster home * * *.
(Tr. 45). [The two other children’s] foster home in Cincinnati is a foster to
adopt home. (Tr. 46).
Various relatives were looked at as potential placements for the
children. [One child] was temporarily placed in the custody of an aunt * * *.
However, [the aunt] expressed that she no longer wished to be the child’s
custodian. Maternal Grandmother * * * was also explored as a placement.
However, her home study did not pass, as she was residing with a paramour
whom sexual abuse allegations were indicated against. Paternal
grandmother * * * expressed interest in taking [two of the children], and
eventually all four children. On April 27, 2018, motions were filed by the
Agency for an expedited home study to be completed. However, as of the
time of the hearing, the home study had not been completed. It is uncertain -12-
whether the home study was going to pass. The GAL stated that he could
not opine as to whether the placement is safe or appropriate without the
results of the home study. The GAL also stated in his report, “The
grandmother’s delay in making herself known as a possible placement
causes me concern.”
It is also important to note that at the time the permanent custody
hearing was held, the time period for granting a second extension of
temporary custody had expired. No party filed a motion for custody to the
paternal grandmother, nor did the paternal grandmother seek intervention
to file for custody in this matter. The paternal grandmother did not appear
for the permanent custody hearing. Other than brief contact in 2017 and
some phone contact through [Father Two], it does not appear that the
paternal grandmother has had significant involvement in this matter.
Consideration of placement of the child with a relative is not a statutory
requirement. In re F.C., 2010-Ohio-3113 (2d. Dist.), P24. Courts are not
required to favor a relative if, after considering all the factors, it would be in
the child’s best interest for the agency to be granted permanent custody. In
re P.P., 2003-Ohio-1051 (2d. Dist.), P30.
(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
The Court finds that [Father One] has abandoned the children
pursuant to R.C. 2151.414(E)(10). Under Chapter 2151 of the Revised
Code, a child shall be presumed abandoned when the parents of the child -13-
have failed to visit or maintain contact with the child for more than ninety
days. [Father One] has not had any contact with his children throughout the
duration of this matter.
The GAL recommended that the agency’s Motion for Permanent
Custody be sustained as to all four children. The GAL stated in his report,
“these children have been out of the care of their mother and [Father Two]
for a considerable amount of time and at this time it does not appear to me
that either parent separately or together are in a position to assume parental
responsibility for any of these children.” After an independent review of the
available [sic] and in consideration of the factors outline[d] in R.C. 2151.414,
the Court finds that the State presented clear and convincing evidence that
it is in the children’s best interest for permanent custody to be granted to
MCCS. The objection is OVERRULED.
(August 12, 2019 Decision and Final Judgment Entry at 9-12.)
{¶ 12} In a one-page argument, Mother asserts that returning the children to her
was in their best interest. She cites hearing testimony about the children being bonded
with her and wanting to return home. She also cites her completion of several case-plan
requirements. With regard to employment, Mother notes that she was working at the time
of the hearing. She further notes that the caseworker’s only concern about her shared
residence was that it was too small to accommodate the four children. As for concerns
about sexual abuse by Father Two, Mother stresses that the allegations were “indicated”
but not proven. She also points out that Father Two denied the allegations and refused
to undergo the required psychosexual assessment for that reason. -14-
{¶ 13} Upon review, we find Mother's first assignment of error to be unpersuasive.
The trial court appropriately considered the children’s attachment to Mother and their
wishes in its best-interest analysis. Although the children’s wishes were relevant, the trial
court was not obligated to follow them. The trial court also noted Mother’s case-plan
progress. Although Mother had completed several objectives, two major ones still caused
MCCS concern, namely stable employment and housing. As set forth above, the trial
court characterized Mother’s employment history as “inconsistent and unstable.” During
MCCS’s involvement in the case, Mother had obtained and lost several jobs. She had
started working at McDonald’s shortly before the hearing. The trial court also noted that
Mother did not follow through on a referral for potential disability benefits. With regard to
housing, the trial court noted that Mother was living with Father Two in a two-bedroom
house he shared with his aunt. The house was too small to accommodate four children,
and Mother had failed to obtain and maintain suitable housing throughout MCCS’s
involvement in the case. As for the sexual abuse allegations against Father Two, we
agree with Mother that MCCS considered them “indicated” but not proven. In any event,
MCCS did not take the position that the children absolutely could not reside with Mother
and Father Two due to the allegations. As part of Father Two’s case plan, MCCS simply
wanted him to undergo a psychosexual evaluation to help alleviate the agency’s
concerns. The fact that Father Two denied the allegations did not compel MCCS to accept
his denial at face value. Nor did his denial entitle Father Two to ignore his case-plan
requirements.
{¶ 14} In short, the evidence presented at the permanent-custody hearing
supported the trial court’s findings and its analysis of the statutory best-interest factors. -15-
The trial court’s best-interest analysis reflects that it engaged in a sound reasoning
process. The trial court acted within its discretion in finding that awarding permanent
custody to MCCS was in the best interest of Mother’s children. Accordingly, the first
assignment of error is overruled.
{¶ 15} In her second assignment of error, Mother contends the trial court abused
its discretion in denying a continuance for a home study to be completed on the paternal
grandmother in Florida. Mother notes that the home-study delay was attributable in part
to a hurricane. Mother also suggests that two of the four children possibly could have
moved to Florida to live with the paternal grandmother if a home study were approved,
and the other two children then could have been reunited with her in the two-bedroom
residence she shared with two other adults.
{¶ 16} Upon review, we see no abuse of discretion in the trial court’s denial of a
continuance for the home study. The record reflects that the trial court previously had
granted two continuances due to the pending Florida home study, resulting in the
permanent-custody hearing already being delayed by approximately seven months. The
third request for a continuance was untimely under the local rules, and it remained unclear
if or when the Florida home study would be completed. The trial court noted that the
children already had been in MCCS’ care for more than two years. In the course of its
ruling, the trial court additionally made the following observations:
It is also important to note that at the time the permanent custody
hearing was held, the time period for granting a second extension of
temporary custody had expired. No party filed a motion for custody to the
paternal grandmother, nor did the paternal grandmother seek intervention -16-
to file for custody in his matter. The paternal grandmother did not appear
for the permanent custody hearing. Other than brief contact in 2017 and
some phone contact * * *, it does not appear that the paternal grandmother
has had significant involvement in this matter. * * *
(August 12, 2019 Decision and Final Judgment Entry at 11.)
{¶ 17} Based on the circumstances before it, the trial court acted within its
discretion in denying a third continuance of the permanent-custody hearing. The record
persuades us that the trial court’s resolution of the issue was reasonable and not an abuse
of discretion. The second assignment of error is overruled.
{¶ 18} The judgment of the Montgomery County Common Pleas Court is affirmed.
DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck Jr. Lisa M. Light Robert Alan Brenner Candi Rambo Jeffrey Livingston Christopher Deal Randall Stump, GAL Hon. Helen Wallace