[Cite as In re H.M., 2013-Ohio-237.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: IN THE MATTER OF: : Patricia A. Delaney, P.J. : William B. Hoffman, J. H.M., H.M. AND G.M. : Sheila G. Farmer, J. : : Case No. 2012 AP 09 0056 : : : OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 10 JN 00584
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 11, 2013
APPEARANCES:
For Appellee-Tuscarawas County For Appellant-C.S. Job and Family Services
DAVID HAVERFIELD JOHN A. GARTRELL 389 – 16th Street, S.W. Assistant Public Defender New Philadelphia, Ohio 44663 153 N. Broadway New Philadelphia, Ohio 44663
Guardian Ad Litem For Father-Gabriel Mortier
KAREN DUMMERMUTH DOUG JACKSON 349 East High Avenue 214 N. Dawson Street New Philadelphia, Ohio 44663 Dennison, Ohio 44621 [Cite as In re H.M., 2013-Ohio-237.]
Delaney, P.J.
{¶1} Appellant, C.S. (mother), appeals from the August 13, 2012 Judgment
Entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, terminating
her parental rights and granting permanent custody of H.M., H.M., and G.M. to
Tuscarawas County Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the mother of H.M. (DOB 10/20/04), H.M. (DOB 11/28/05) and
G.M. (DOB 1/20/07). Appellant and the children’s father, who is not part of this appeal,
have never been married.
{¶3} On November 22, 2010, Tuscarawas County Job and Family Services
(hereinafter “TCJFS”) filed a complaint alleging that the children were neglected and
dependent children. The complaint alleged, in part, that appellant had no housing and
had failed to meet the basic needs of her children. Pursuant to a Judgment Entry filed
the same day, the children were placed in the temporary custody of TCJFS. Appellant
was granted supervised visitation with the children “as is acceptable to TCJFS”.
{¶4} An adjudicatory hearing was held on December 22, 2010. At the hearing,
appellant stipulated that the children were neglected and dependent children and the
trial court found them to be neglected and dependent children. The trial court ordered
that the children would remain in the temporary custody of TCJFS.
{¶5} A case plan was filed with the court on December 22, 2010. The plan
required appellant to complete a psychological evaluation and follow any treatment
recommendations, to participate in parenting education classes and domestic violence Tuscarawas County App. Case No. 2012 AP 09 0056 3
counseling and to obtain appropriate housing. The plan also required appellant to
obtain steady employment and to provide for the basic needs of her children.
{¶6} A dispositional hearing was held on January 18, 2011. As memorialized in
a Judgment Entry filed on January 19, 2011, the trial court, upon consent of the parties
and the recommendation of the Guardian Ad Litem, ordered that the children remain in
the temporary custody of TCJFS. The trial court also adopted the case plan and ordered
that appellant’s visits with the children would remain supervised.
{¶7} On October 3, 2011, TCJFS filed a motion seeking a six month extension
of its temporary custody. TCJFS, in its motion, indicated that appellant had completed a
psychological evaluation and was actively engaged in counseling, that she had
completed parenting education and that her visits with the children went well. TCJFS
further alleged that appellant lacked any source of income and was residing in a one
bedroom apartment.
{¶8} Appellant, on November 10, 2011, filed a motion seeking expanded
visitation with the children on the basis that she had complied with her case plan. The
trial court, pursuant to a Judgment Entry filed on December 1, 2011, granted TCJFS’
motion to extend temporary custody, but did not grant appellant increased visitation with
the children.
{¶9} On April 2, 2012, TCJFS filed a motion seeking permanent custody of the
children. TCJFS, in its motion, alleged that the children had been in the temporary
custody of the agency for a period in excess of twelve out of the prior twenty-two
months and that appellant had failed to alleviate the conditions that caused the children
to be placed with the agency. A hearing on such motion was held on August 9, 2012. Tuscarawas County App. Case No. 2012 AP 09 0056 4
{¶10} At the hearing, Kristina Blick, case manager at TCJFS, testified that the
children had consistently been in the agency’s custody since November of 2010. She
testified that the children were placed in the agency’s custody because appellant moved
from place to place and lived with “some inappropriate individuals” and that the basic
needs of the children were not being met. T. at 3. According to Blick, the family had a
substantial history of involvement with child welfare agencies not only in Tuscarawas
County, but also in Georgia where they previously had resided. The issues in Georgia
concerned lack of stable housing, neglect and concerns of domestic violence.
{¶11} Blick testified that a case plan was developed for appellant that required
her to complete a psychological examination and to follow any recommendations, to
complete a parenting class and domestic violence counseling, and to be able to provide
for the children’s basic needs in terms of income and housing. Appellant completed a
psychological evaluation. The following testimony was adduced when Blick was asked
whether specific treatment recommendations were made for appellant:
{¶12} “A. Yes.
{¶13} “Q. Okay, what additional services was she required to do?
{¶14} “A. He [Dr. Dean at Community Mental Healthcare] recommended
individual counseling, uh, he also recommended that she see a physician regarding her
depression, and that she obtain employment by possibly being referred to the Bureau of
Vocational Rehabilitation, also that she be required to obtain her GED, and he
recommended parent education. Tuscarawas County App. Case No. 2012 AP 09 0056 5
{¶15} “Q. Okay, uh, so since follow (sic) the recommendations of the
psychological were part of the case plan, she was then required to complete those
items as well, correct?
{¶16} “A. Right.
{¶17} “Q. Alright, has she completed counseling?
{¶18} “A. Um, she started counseling early on in the case at Community Mental
Healthcare with Rosie Das. She attended about four to six sessions, and she
[appellant] terminated that in June of 2011. She’s recently reported that she’s started
seeing a counselor again, um, McKenzie Povlinko at Personal and Family Counseling
Services. Carrie was only willing to sign a release for us to verify her attendance at
those sessions. So she started, uh, at the end of June, attending weekly.
{¶19} “Q. So there was about a year gap in there where she wasn’t doing any
counseling?
{¶20} “A. Correct.
{¶21} “Q. Okay, and as far as her recent counseling, she’s unwilling to allow you
access to whatever information the counselor has, correct?
{¶22} “A. Right, other than that she’s attending.
{¶23} “Q. Okay, alright, from your perspective, has she successfully completed
that part of her case plan?
{¶24} “A. No.” T. at 5-6.
{¶25} Blick further testified that appellant successfully completed parenting
classes and domestic violence counseling, but had not obtained her GED and had not
been employed since the start of the case. While appellant was referred for services to Tuscarawas County App. Case No. 2012 AP 09 0056 6
the Bureau of Vocational Rehabilitation, Blick testified that appellant never followed
through after a work assessment was performed on her and that the Bureau closed
appellant‘s case because they did not have a current address for her. Appellant never
followed through with the program to see if she could obtain employment, but claimed
that her doctors told her that she could not work due to back issues.
{¶26} Blick further testified that appellant had no income and no residence of her
own and that, in her opinion, appellant was not in any position to provide for the basic
needs of her children. She further testified that appellant was not in any better position
now than when the case was initiated to meet such needs.
{¶27} Blick was questioned about appellant and her visitation with her children.
She testified that appellant had consistently visited with the children throughout the case
and that the visits remained supervised. According to Blick, the visits went well.
{¶28} Blick further testified that the children were all placed together in the same
foster home and had been during the entire time that they were in foster care. She
testified that the children were doing well in their foster home and that the foster parents
were interested in adopting them if permanent custody was granted to the agency.
While a relative home study was conducted to determine if the parental grandparents,
who resided in Georgia, were suitable, Blick testified that the state of Georgia would not
approve placement and that the agency was unable to pursue that as an option. Blick
further testified that she believed that it would be in the best interest of the children for
permanent custody to be granted to the agency.
{¶29} On cross-examination, Blick testified that appellant terminated counseling
because she did not like talking to people about her personal life and did not feel that Tuscarawas County App. Case No. 2012 AP 09 0056 7
counseling was helping her. She further testified that appellant had applied for social
security disability benefits due to physical issues caused by back problems, but had
been denied twice and was appealing. Blick testified that appellant told her that
appellant’s doctor said that she could not work.
{¶30} At the hearing, appellant testified that she was residing with a family friend
and had been doing so for about a month. She testified that she previously had been
renting an apartment, but had no way to pay her bills. According to appellant, she was
trying to get social security disability benefits. Appellant admitted that she had not had
income for the last fourteen months, but testified that she had received six months of
public assistance. Appellant also admitted that she had never followed up with the
Rehabilitation Services Commission and testified that she had no disc in her lower back
and had trouble sitting for long periods of time. She testified that her back problems
were a result of an epidural that she had received when her daughter was born. She
also testified that she never obtained her GED because “it was just a suggestion…” and
that she never had the motivation to get one. T. at 46-47. When questioned about her
counseling, appellant testified that she stopped attending because she did not like the
counselor. Appellant was unable to specify how she would provide for her children if she
did not receive social security disability benefits. She admitted that she had done
nothing since her social security appeal was denied in April of 2012 to secure
employment.
{¶31} The following is an excerpt from appellant’s testimony at the hearing:
{¶32} “Q. The problem is, ma’am, that if we look back and we say, we go back
to, um, we go back to January of 2006 is when Tuscarawas County opened the case, or Tuscarawas County App. Case No. 2012 AP 09 0056 8
had an investigation, we can go back 2006, 2007, 2008 is when we first start seeing, in
writing, children are dirty, family in the homeless shelter, uh, family without furniture and
mattresses. I mean, we have at least four years of showing failure to provide for the
children. That’s your responsibility, would you agree, that none of us have a
responsibility to provide for your children but the parents?
{¶33} “A. Correct.
{¶34} “Q. Okay, we have at least four years, most likely when we go back to
2006, January of 2006, Tusc. County, home in poor condition, mom not taking care of
the children, dad playing Xbox. Help Me Grow was involved at that time.
{¶35} “A. Correct.
{¶36} “Q. So we have issues dating all the way back to 2006. Now we’ve got a
case plan that clearly outlines what you have to do to get the children returned, okay,
and you’re saying you have food stamps so that should be enough?
{¶37} “A. No, there’s assistance out there for people who need it.” T. at 55-56.
{¶38} At the hearing, Chris Tracey, a supervised visitation monitor with Personal
and Family Counseling, testified that she supervised visitation between appellant and
her children. The visitation was for two hours a week. Tracey testified that appellant
missed five visits and had attended approximately 50 visits. According to Tracey, the
visits went well and the children entered the room smiling. Tracey testified that she had
no concerns with appellant’s visits and that it appeared appellant loved her children and
that they loved her.
{¶39} Pursuant to a Judgment Entry filed on September 10, 2012, the trial court
terminated appellant’s parental rights and granted permanent custody of the three Tuscarawas County App. Case No. 2012 AP 09 0056 9
children to TCJFS. The trial court found that the children could not and should not be
placed with either parent within a reasonable time and that appellant and the children’s
father had failed to substantially remedy the conditions causing the children to be
removed. The trial court further found that the children had been in the temporary
custody of TCJFS for a period in excess of twelve out of the prior twenty-two months.
{¶40} Appellant now raises the following assignment of error on appeal:
{¶41} “THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND FAMILY
SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
THE CHILDREN COULD NOT BE PLACED WITH MOTHER IN A REASONABLE
AMOUNT OF TIME, AND THAT AN AWARD OF PERMANENT CUSTODY WAS IN
THE CHILDREN’S BEST INTEREST.”
I
{¶42} Appellant, in her sole assignment of error, argues that the trial court erred
in awarding permanent custody of the children to TCJFS. Appellant specifically
contends that TCJFS failed to prove by clear and convincing evidence that the children
could not be placed with appellant within a reasonable amount of time and that an
award of permanent custody was in the children’s best interest.
{¶43} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
competent, and credible evidence upon which the finder of fact could base its judgment.
Cross Truck Equipment Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 1982
WL 2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent, Tuscarawas County App. Case No. 2012 AP 09 0056 10
credible evidence going to all the essential elements of the case will not be reversed as
being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54
Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶44} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evident in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶45} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶46} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, 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; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for Tuscarawas County App. Case No. 2012 AP 09 0056 11
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶47} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents 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; and (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.
{¶48} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial
court will usually determine whether one of the four circumstances delineated in R.C
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶49} In this case, the trial court found by clear and convincing evidence that
the children had been in the temporary custody of a public children services agency for
twelve or more months of a consecutive twenty-two-month period pursuant to R.C.
2151.414(B)(1)(d). Appellant does not challenge the trial court's finding. This finding
alone, in conjunction with a best-interest finding, is sufficient to support the grant of
permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118, 2008–Ohio–5458, ¶ 45. Tuscarawas County App. Case No. 2012 AP 09 0056 12
{¶50} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should
not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of
the child's parents.
{¶51} The trial court determined that the children could not be placed with
appellant within a reasonable time pursuant to R.C. 2151.414(E)(1), which requires the
following findings:
{¶52} “(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 the parents
for the purpose of changing parental conduct to allow them to resume and maintain
parental duties.”
{¶53} A review of the record supports the trial court's decision that the children
cannot be placed with appellant within a reasonable time and that the agency provided
reasonable case planning and diligent efforts to assist appellant to remedy the problems Tuscarawas County App. Case No. 2012 AP 09 0056 13
that caused the children to be removed. The record indicates that appellant has had a
long history with children’s services involvement, both in Ohio and Georgia. As noted
by the trial court, appellant has no income, has failed to obtain her GED due to lack of
motivation and has failed to follow through with counseling and with vocational training.
Appellant, on her own, terminated counseling for a year because she did not like her
counselor and did not like revealing personal details. While she recently started
counseling, she refused to provide TCJFS with a release. In addition, appellant does
not have her own housing and is not employed. As noted by the trial court in its
decision, appellant “is completely unable and unwilling to meet her parental
responsibilities.”
{¶54} We next turn to the issue of best interest. We have frequently noted, “[t]he
discretion which the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, given
the nature of the proceeding and the impact the court's determination will have on the
lives of the parties concerned.” In re Mauzy Children, 5th Dist. No. 2000CA00244, 2000
WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d
424 (8th Dist. 1994). The trial court determined it was in the best interest of the children
to be placed in the permanent custody of appellee pursuant to R.C. 2151.414(D), and
we agree.
{¶55} Testimony was adduced that the three children have been in the same
foster home for a period of time and were doing well. In addition, there was testimony
that the children had behavioral issues that had improved while they were in foster care.
Testimony also was adduced that the foster parents were interested in adopting the Tuscarawas County App. Case No. 2012 AP 09 0056 14
children. The Guardian Ad Litem, in her August 2, 2012 report, recommended that the
children be placed in the permanent custody of TCJFS. The Guardian Ad Litem noted
that, prior the children being in custody, the family was unstable and the parents had
been unable to make the necessary changes. Clear and convincing evidence supports
the trial court’s conclusion that it is in the best interest of the children to grant permanent
custody to TCJFS.
{¶56} Based on the foregoing, we find that the trial court did not err in awarding
permanent custody of the children to TCJFS.
{¶57} Appellant’s sole assignment of error is, therefore, overruled. Tuscarawas County App. Case No. 2012 AP 09 0056 15
{¶58} Accordingly, the judgment of the Tuscarawas County Court of Common
Pleas, Juvenile Division, is affirmed.
By: Delaney, P.J.
Hoffman, J. and
Farmer, J. concur
______________________________
JUDGES
PAD/d1218 [Cite as In re H.M., 2013-Ohio-237.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : H.M., H.M. AND G.M. : : : : JUDGMENT ENTRY : : : : CASE NO. 2012 AP 09 0056
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is
affirmed. Costs assessed to Appellant.
_________________________________