[Cite as In re C.P., 2018-Ohio-2758.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re C.P., K.P., N.P. Court of Appeals No. L-18-1020
Trial Court No. JC 16258992
DECISION AND JUDGMENT
Decided: July 13, 2018
*****
Laurel A. Kendall, for appellant.
Carmille L. Akande, for appellee.
JENSEN, J.
I. Introduction
{¶ 1} Appellant, M.W., appeals the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, granting a motion for permanent custody filed by
appellee, Lucas County Children Services (“LCCS”), thereby terminating her parental rights with respect to her three children, C.P., K.P., and N.P. (collectively referred to as
“the children”).1
A. Facts and Procedural Background
{¶ 2} This matter stems from a referral LCCS received on October 5, 2016, in
which it was alleged that appellant and the children were residing in a hotel where
appellant was engaged in prostitution. Additionally, the referral alleged that appellant
left the children alone and had not enrolled them in school.
{¶ 3} Three days later, LCCS received another referral alleging that N.P. was
sexually assaulted at the hotel. Subsequently, appellant admitted to an LCCS caseworker
that she had a history of prostitution and was being financially supported by a former
prostitution client. She also acknowledged that the children had not been to school
during the 2016-2017 school year.
{¶ 4} LCCS received a third referral relating to appellant and the children on
October 26, 2016. In this referral, it was alleged that the children were left alone in their
hotel room while appellant was “just in another hotel room with friends.” Shortly after
receiving the third referral, LCCS was informed by the children’s paternal grandmother
that appellant had placed the children with the grandmother and authorized the
grandmother to care for them.
1 The children’s father, Ca.P., did not file a notice of appeal and is therefore not a party to this proceeding. He was in prison for felonious assault during the pendency of these proceedings and, according to LCCS’s complaint, is expected to be released on December 7, 2018.
2. {¶ 5} As a result of the foregoing referrals, LCCS filed a complaint in
dependency, neglect, and abuse, and motion for shelter care hearing on November 14,
2016. In its complaint, LCCS sought an emergency shelter care hearing, to be followed
by an adjudication hearing at which LCCS would seek a determination that the children
were dependent, neglected, and abused.
{¶ 6} A shelter care hearing was held, at which appellant agreed to an award of
temporary custody to LCCS. Consequently, the court awarded interim temporary
custody to appellant’s relative, K.B., with supervised visitation for appellant. The court
found that LCCS had made and continued to make reasonable efforts to prevent the
removal of the children from the home. Additionally, the court ordered appellant to
undergo a diagnostic assessment and drug screen.2 The court then set the matter for an
adjudication hearing on January 3, 2017.
{¶ 7} On December 6, 2016, LCCS filed appellant’s original case plan with a goal
of reunification. The case plan included a diagnostic assessment, as well as mental health
services, substance abuse treatment, domestic violence counseling, and stable housing.
{¶ 8} On December 8, 2016, LCCS filed an amended complaint in dependency,
neglect, and abuse, alleging concerns for the safety of the children while in the care of
K.B. due to her husband’s extensive criminal history and substance abuse. LCCS also
2 Two days after LCCS filed its complaint, the court received the results of appellant’s drug screen, which revealed that appellant had tested positive for oxycodone and opiates.
3. alleged concerns that appellant was having unsupervised contact with the children in
contravention of the court’s prior order.
{¶ 9} The adjudication hearing in this matter was held on January 3, 2017. At the
hearing, the children were found to be neglected, and N.P. was found to be abused. The
court continued the matter for disposition and scheduled a hearing for February 6, 2017.
At the disposition hearing, the court awarded temporary custody to LCCS. In its order,
the court again found that LCCS had made reasonable efforts to prevent the removal of
the children from the home. The court listed those efforts, which included substance
abuse treatment, mental health treatment, domestic violence counseling, and housing
services. Additionally, the court ordered appellant to submit to another drug screen.
{¶ 10} A subsequent shelter care hearing was held based upon LCCS’s amended
complaint. At the hearing, the court ordered that interim temporary custody of the
children be transferred from K.B. to LCCS while awaiting further investigation in
whether placement with another relative would be appropriate. In its order, the court
once again found that LCCS had made reasonable efforts to prevent the removal of the
children from the home.
{¶ 11} On May 15, 2017, the court held a review hearing. The court found that
LCCS had continued to make reasonable efforts to prevent the removal of the children
from the home. As to appellant’s response to those efforts, the court found that
appellant’s substance abuse attendance had been sporadic. Further, the court determined
4. that appellant had not yet begun domestic violence counseling. As to housing, the court
noted that appellant was living with a friend.
{¶ 12} Three months later, LCCS filed its motion for permanent custody. In its
motion, LCCS alleged that the children could not or should not be placed with either of
their parents within a reasonable time and that permanent custody was in the children’s
best interest. LCCS also asserted that appellant failed to comply with her case plan
services. Specifically, LCCS stated that appellant continued to abuse substances, having
tested positive for oxycodone, benzodiazepine, opiates, buprenorphine, alprazolam,
sertraline, clonazepam, fentanyl, cocaine, and gabapentin. LCCS also noted that
appellant missed several of her drug screens, and had only completed 4 out of 16
individual sessions for mental health counseling. As to services for domestic violence,
LCCS asserted that appellant had only completed three sessions since being referred four
months prior.
{¶ 13} A two-day hearing on LCCS’s motion for permanent custody began on
December 12, 2017. At the hearing, LCCS called three witnesses. Appellant did not
testify, nor did she call any witnesses on her behalf.
{¶ 14} As its first witness, LCCS called Martha Campbell, the clinical director for
alcohol and drug services at A Renewed Mind. Campbell testified that LCCS referred
appellant to A Renewed Mind in December 2016 for a biopsychosocial assessment.
Following the assessment, Campbell diagnosed appellant with opiate use disorder and
antisocial personality disorder. Based upon that diagnosis, Campbell recommended
5. weekly sessions of individual dual diagnosis treatment that would provide services for
appellant’s mental health and substance abuse issues. According to Campbell, appellant
was not consistent in attending the weekly sessions. Specifically, Campbell testified that
appellant “never really came for the first individual session until February, and then she
came to a couple and then there were three or four cancellations, a couple of no shows. I
am not sure of the exact number, but it was very inconsistent attendance.”
{¶ 15} Concerning appellant’s substance abuse, Campbell noted that appellant had
consistently tested positive for various opiates without producing a prescription for such
substances. At one point, appellant provided a disc to Campbell that was purported to
contain her medical records. However, the disc had a hole in it and no data could be
retrieved. When approached about the condition of the disc, appellant insisted that the
disc did not have a hole in it when she provided it to Campbell. Campbell made multiple
phone calls to appellant’s doctor to obtain medical records that would support appellant’s
claim that her opiate use was prescribed. Her calls were never answered. No further
effort was made by appellant to produce evidence of a prescription for opiates.
Additionally, appellant informed Campbell that she had taken suboxone that she received
from a friend because she could not sleep. Appellant explained her positive test for
cocaine by suggesting that the test result may have been due to the fact that she was
around other people who were using cocaine.
{¶ 16} As a result of appellant’s positive drug screens, intensive outpatient
services were offered to appellant in May 2017. The intensive outpatient program
6. included three sessions per week. Campbell stated that appellant did not participate until
August 2017, when she attended orientation and one additional session.
{¶ 17} Ultimately, Campbell testified that appellant stopped participating with A
Renewed Mind. As a result of appellant’s noncompliance with her case plan services,
appellant was unsuccessfully discharged from A Renewed Mind in October 2017.
{¶ 18} As its second witness, LCCS called the caseworker assigned to this case,
Danielle Stroble. Stroble testified that appellant and the children have a history with
LCCS dating back to a report of abuse and neglect that LCCS received in 2010. In 2013,
LCCS received another report of neglect. In 2014, LCCS received two referrals, one for
neglect and another for sexual abuse, which was unsubstantiated. One additional referral
was made in 2015 for neglect. Finally, Stroble testified that LCCS received three
referrals in 2016 related to sexual abuse that took place prior to the referral that initiated
these proceedings in October 2016.
{¶ 19} According to Stroble, LCCS developed a case plan with the goal of
reunification after becoming involved in this matter. The services offered in the case
plan included mental health services, substance abuse treatment, and a domestic violence
victim’s program. Additionally, appellant was expected to obtain stable housing.
{¶ 20} As to the domestic violence services, Stroble indicated that appellant was
referred to Family Services of Northwest Ohio, Project Genesis, on April 24, 2017.
Stroble testified that appellant did not begin participation in domestic violence services
until June 20, 2017, after failing to appear for two prior appointments that had been
7. scheduled. After completing intake, appellant attended three educational sessions in July
2017. Stroble indicated that the Project Genesis program lasts between eight and twelve
weeks. Appellant attended the three educational sessions and did not return for any
additional sessions. As a result, Stroble testified that appellant failed to complete her
domestic violence services.
{¶ 21} With regard to appellant’s substance abuse issues, LCCS asked Stroble
whether appellant had ever produced a prescription authorizing her use of opiates, to
which Stroble responded in the negative. As was the case with Campbell, Stroble had a
“very hard time getting in contact” with appellant’s doctor.
{¶ 22} On cross-examination, Stroble stated that appellant had secured housing
through the financial support of her “on-and-off-again boyfriend,” although Stroble
indicated that LCCS was concerned about domestic violence issues between appellant
and her boyfriend. Further, Stroble testified that appellant’s visits with the children were
going well and the children seemed to be bonded to appellant.
{¶ 23} As its third and final witness, LCCS called the children’s guardian ad litem,
Sharon Fitzgerald, who recommended that the court grant LCCS’s motion for permanent
custody. In support of her recommendation, Fitzgerald cited the instability in the
children’s lives regarding their housing, education, and medical issues. Fitzgerald also
expressed concerns with appellant’s history of substance abuse and her denial of any
substance abuse problems. In sum, Fitzgerald opined that reunification of the children
and appellant would not be an option. Specifically, Fitzgerald testified: “I don’t see any
8. progress at all in this case. Everything is – I mean, currently I don’t know that she’s
actively engaged in any service, and any of the services that she would have to engage in
would take a considerable period of time at this point.”
{¶ 24} On January 2, 2018, the court issued its decision on LCCS’s motion for
permanent custody. In its decision, the court found that the children had been in the
temporary custody of LCCS for 12 or more of months of a consecutive 22-month period.
Further, under R.C. 2151.414(E)(1), the court found that appellant failed to substantially
remedy the conditions causing the children to be removed from the home despite
reasonable case planning and diligent efforts by LCCS to assist her to remedy such
conditions.
{¶ 25} In support of its finding under R.C. 2151.414(E)(1), the court indicated that
appellant obtained stable housing, but otherwise failed to complete the remaining case
plan services. In particular, the court noted that appellant failed to complete domestic
violence services and was unsuccessfully discharged from substance abuse and mental
health programs. On the subject of appellant’s substance abuse and mental health issues,
the court found that such issues were so severe that they made her unable to provide an
adequate permanent home within one year under R.C. 2151.414(E)(2). The court went
on to note that appellant had tested positive for a number of drugs on several occasions,
and failed to present any prescriptions that would justify her usage of such drugs.
{¶ 26} Ultimately, the court found that the children could not be placed with either
parent within a reasonable time and should not be placed with either parent, and that an
9. award of permanent custody to LCCS was in the children’s best interest. Consequently,
the court granted LCCS’s motion for permanent custody, thereby terminating appellant’s
parental rights in the children. Appellant’s timely appeal followed.
Assignments of Error
{¶ 27} On appeal, appellant presents the following assignments of error for our
review:
I. The trial court erred in finding that appellee Lucas County
Children Services Board had made a reasonable effort to reunify the minor
child with appellant M.W.
I. The trial court erred to appellant’s prejudice * * * by allowing
testimony about medical issues for which no foundation was laid (one
instance) and which was arguably beyond the scope of the [witness’s]
qualifications (one instance). This testimony violated the rules of evidence
and prejudiced appellant’s right to a fair trial as guaranteed by the state and
federal constitutions.
III. The trial [court’s grant of] appellee Lucas County Children
Services Board’s motion for permanent custody was against the manifest
weight of the evidence.
{¶ 28} For ease of discussion, we will address appellant’s assignments of error out
of order, beginning with the second assignment of error. Appellant’s first and third
assignments of error are interrelated and will be addressed simultaneously.
10. II. Analysis
A. Evidentiary Issue
{¶ 29} In her second assignment of error, appellant argues that the trial court erred
in allowing testimony about medical issues for which no foundation was laid and which
was arguably beyond the scope of the witness’s qualifications.
{¶ 30} Generally, “[t]he trial court has broad discretion in the admission of
evidence, and unless it has clearly abused its discretion and the defendant has been
materially prejudiced thereby, an appellate court should not disturb the decision of the
trial court.” State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). An abuse of
discretion connotes that a court’s attitude in reaching its decision was arbitrary,
unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶ 31} Here, appellant takes issue with the following evidence that was allowed
over her objection at the hearing on LCCS’s motion for permanent custody during
Campbell’s redirect examination:
Q: When you work with patients, are you knowledgeable about
what prescriptions they receive from different doctors, is that a part of your
assessment?
A: Yeah, we ask what meds they’ve been on in the past and
currently.
Q: And why is that important to you?
11. A: Well, if it’s – it speaks to what kind of symptoms they have,
what their diagnosis might be. We – if we’re going to refer them to a
psychiatrist, we need to know what has worked in the past, what hasn’t
worked.
Q: Why did you diagnose [appellant] with opiate use disorder?
A: Because she was reporting taking a lot of opiates daily,
prescribed. She said they were prescribed.
Q: From December of 2016 until September of 2017, did she ever
produce for you any prescriptions for Percocet or anything else?
A: No.
Q: And did any doctor send any letters to you indicating the
prescriptions that she was prescribed?
[Appellant’s counsel]: I am going to ask to have that stricken
because there was no indication that there was any request of any doctor
being made.
The Court: Overruled.
{¶ 32} Prior to this testimony, Campbell had testified that she made several phone
calls to the doctor that allegedly prescribed appellant’s medications, to no avail.
Following this colloquy, LCCS went on to question Campbell as to the details of her
phone calls, whether she left any voicemails, and whether her calls were ever returned.
12. {¶ 33} On appeal, appellant argues that the trial court should have excluded
Campbell’s testimony indicating that appellant’s doctor did not send her any letters
detailing appellant’s prescriptions. She insists that such testimony was admitted without
a proper foundation and was unfairly prejudicial under Evid.R. 403 in that it inaccurately
inferred that appellant had the burden of proof as to the existence of prescriptions. We
find no merit to this argument.
{¶ 34} Initially, we note that Campbell testified during direct examination that her
diagnosis of opiate use disorder was not dependent upon whether appellant had, in fact,
been prescribed the drugs that were found in her system. On that point, Campbell stated
that the drugs discovered in appellant’s system were addictive regardless of whether they
were prescribed or not.
{¶ 35} As to foundation, Campbell testified on direct examination as to her efforts
to secure evidence of appellant’s prescriptions from her doctor. These efforts included
several phone calls to the doctor, some of which resulted in voicemails inviting a return
phone call for the purpose of ascertaining whether appellant was prescribed the drugs that
were found in her system as a result of her drug screens. Having explored Campbell’s
attempts to communicate with the doctor, it logically follows that LCCS would question
Campbell as to whether any return correspondence from the doctor was forthcoming. In
light of Campbell’s testimony on direct examination, we find a proper foundation to
support the challenged evidence.
13. {¶ 36} Concerning unfair prejudice, Evid.R. 403(A) states that relevant evidence
“is not admissible if its probative value is substantially outweighed by the danger of
unfair prejudice, of confusion of the issues, or of misleading the jury.” Upon due
consideration, we find that the challenged evidence is clearly relevant to the question of
whether appellant was actually prescribed the prescription opiates that she was ingesting.
We do not find that merely asking whether Campbell received written correspondence
from appellant’s doctor amounted to an attempt to prejudicially and improperly shift the
burden of proof from LCCS to appellant. LCCS was simply eliciting testimony to
explain Campbell’s attempts to substantiate appellant’s claim that she was only taking
drugs for which she had a prescription. The probative value of this evidence was not
substantially outweighed by any unfair prejudice to appellant. Consequently, we find that
the trial court did not abuse its discretion in overruling appellant’s objection.
{¶ 37} Next, appellant argues that the trial court abused its discretion in overruling
her objection to the following testimony:
Q: Okay. Being that you’ve been in this field since 1997, does it
concern you when patients test positive for these different types of drugs?
A: Yes.
Q: Why does it concern you?
A: Because it’s a mixture of things that shouldn’t be all together
probably. Different –
14. [Appellant’s counsel]: Once again I am going to object. I don’t
believe this individual witness is qualified to answer that question.
{¶ 38} As to this testimony, appellant asserts that the trial court abused its
discretion because Campbell was not qualified as an expert prior to opining as to the fact
that the cocktail of drugs found in appellant’s system “shouldn’t be all together.” Having
examined the testimony in its context, we find that Campbell’s statement did not
constitute a medical opinion requiring an expert witness. In her statement, Campbell was
merely revealing why she was personally concerned about appellant’s drug screens.
Campbell’s concern in this regard was telling because it was informed by decades of
experience and her position as the clinical director for alcohol and drug services at A
Renewed Mind. Campbell did not opine that the drug cocktail contained in appellant’s
system was dangerous to any degree of medical certainty, but simply stated that she
personally believed that the mixture of drugs “probably” should not have been taken
together. Campbell was not testifying as an expert, and therefore did not need to be
qualified as such.
{¶ 39} Having found no merit to appellant’s evidentiary arguments, we find
appellant’s second assignment of error not well-taken.
B. Reasonable Efforts and Manifest Weight
{¶ 40} In her first assignment of error, appellant argues that the trial court erred in
finding that LCCS made reasonable efforts to reunify her with the children. In her third
15. assignment of error, appellant argues that the trial court’s grant of LCCS’s motion for
permanent custody was against the manifest weight of the evidence.
{¶ 41} “A trial court’s determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence.” In re A.H.,
6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th
Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. In conducting a
review on manifest weight, the reviewing court “weighs the evidence and all reasonable
inferences, considers the credibility of the witnesses and determines whether in resolving
conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Eastley v. Volkman,
132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. We recognize that, as the
trier of fact, the trial court is in the best position to weigh the evidence and evaluate the
testimony. In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994).
Thus, “[I]n determining whether the judgment below is manifestly against the weight of
the evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts.” Eastley at ¶ 21, quoting Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, fn. 3, 461 N.E.2d 1273 (1984).
{¶ 42} Here, the trial court concluded that permanent custody to LCCS was
warranted based on its finding under R.C. 2151.414(E)(1) that appellant failed to
substantially remedy the conditions causing the children to be removed from the home
16. despite reasonable case planning and diligent efforts by LCCS to assist her to remedy
such conditions. Appellant challenges the trial court’s reasonable efforts determination
under R.C. 2151.414(E), specifically taking issue with LCCS’s attempts at ascertaining
whether she was prescribed the medication for which she tested positive throughout the
pendency of this case.
{¶ 43} R.C. 2151.414(E) provides, in relevant part:
If the court determines, by clear and convincing evidence, at a
hearing held pursuant to division (A) of this section or for the purposes of
division (A)(4) of section 2151.353 of the Revised Code 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 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
17. the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
{¶ 44} The issue in a reasonable-efforts determination is not whether the agency
could have done more, but whether it did enough to satisfy the reasonableness standard in
R.C. 2151.414(E)(1). In re A.B., 6th Dist. Lucas Nos. L-12-1069 and L-12-1081, 2012-
Ohio-4632, ¶ 25. “A ‘reasonable effort’ is an ‘honest, purposeful effort, free of malice
and the design to defraud or to seek an unconscionable advantage.’” Id., quoting In re
Weaver, 79 Ohio App.3d 59, 63, 606 N.E.2d 1011 (12th Dist.1992).
{¶ 45} Regarding LCCS’s efforts at reunification, Stroble testified that LCCS has
been involved with appellant since 2010. In this case, appellant was afforded a variety of
case plan services including mental health services, substance abuse treatment, and a
domestic violence victim’s program. Additionally, appellant was expected to obtain
stable housing. While appellant appeared to have secured stable housing, the court found
that appellant failed to make progress on her remaining case plan services. Having
examined the record, we agree.
{¶ 46} According to Campbell’s testimony, appellant was expected to participate
in weekly sessions to address her mental health and substance abuse issues. Campbell
stated that appellant was “very inconsistent” in her attendance, and consistently tested
positive for various opiates without producing a prescription for such substances. Both
Campbell and Stroble testified as to their pursuit of documentation that would
substantiate appellant’s claim that she was prescribed the medications that were found in
18. her system. These efforts included securing a medical release from appellant and making
multiple phone calls to appellant’s doctor, which went unreturned. Notably, appellant
acknowledged that she did not have a prescription for the suboxone and cocaine that were
found in her system. An intensive outpatient program was offered to appellant, but
appellant only attended orientation and one additional session. Having failed to take
advantage of the mental health and substance abuse services afforded to her, appellant
was unsuccessfully discharged from A Renewed Mind in October 2017. Stroble testified
that appellant failed to complete her domestic violence services, having only attended
three educational sessions in a program that is designed to take between eight and twelve
weeks to complete.
{¶ 47} In light of the case plan services offered to appellant in this case, most of
which appellant failed to utilize, we find that the trial court’s finding that LCCS made
reasonable efforts to reunify appellant and the children was not against the manifest
weight of the evidence. See In re O.T., 6th Dist. Lucas No. L-17-1195, 2018-Ohio-1615,
¶ 22 (holding that reasonable efforts were made by LCCS where mother was offered
services in a companion case that included family counseling and substance abuse
services, but mother failed to participate in such services). Moreover, we find no merit to
appellant’s contention that LCCS did not make reasonable efforts to determine whether
appellant had, in fact, been issued prescriptions for the drugs that were found in her
system given the lengths to which Campbell and Stroble went in order make such
determination.
19. {¶ 48} Accordingly, appellant’s first and third assignments of error are not well-
taken.
III. Conclusion
{¶ 49} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE James D. Jensen, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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