In re H.M.K.

2013 Ohio 4317

• Court: Ohio Court of Appeals
• Decided: September 30, 2013
• Docket: 16-12-15, 16-12-16
• Status: Published

Opinion

[Cite as In re H.M.K., 2013-Ohio-4317.]

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

IN THE MATTER OF:

H.M.K., CASE NO. 16-12-15

ADJUDICATED DEPENDENT CHILD. OPINION [DIANE K. - APPELLANT].

J.B.K., CASE NO. 16-12-16

Appeals from Wyandot County Common Pleas Court Juvenile Division Trial Court Nos. C 2102010 and C 2102011

Judgments Affirmed

Date of Decision: September 30, 2013

APPEARANCES:

Charles R. Hall, Jr. for Appellant Douglas D. Rowland for Appellee, Wyandot Co. DJFS Case Nos. 16-12-15, 16-12-16

PRESTON, P.J.

{¶1} Mother-appellant, Diane K., appeals the trial court’s judgment entry

awarding permanent custody of H.M.K. to the Wyandot County Department of

Job and Family Services (“WCDJFS”) and the trial court’s judgment entry

awarding legal custody of J.B.K.1 to his paternal uncle and aunt, Chris and Tara H.

For the reasons that follow, we affirm the judgments of the trial court.

{¶2} On August 27, 2010, WCDJFS filed complaints alleging that H.M.K.

was a dependent child as defined in R.C. 2151.04(C), and that J.B.K. was a

dependent and neglected child as defined in R.C. 2151.04(C) and 2151.03(A)(2).

(Doc. Nos. 1, 1). The complaints were based on substantiated allegations of

Diane’s failure to supervise her children. (Id.); (Id.). H.M.K.’s case was assigned

trial court case no. C 2102010, and J.B.K.’s case was assigned trial court case no.

C 2102011. (Id.).2

{¶3} Prior to filing the complaints in this case, WCDJFS had previous

involvement with Diane involving her older children, one of which was allegedly

sexually abused by Diane’s male “friend” who was living in the home. (Id.).

Similarly, this case involved substantiated allegations that Diane’s live-in

1 The case concerning this minor child originally was filed using the initials “J.B.R.,” but the initials of the minor child were subsequently changed to “J.B.K.” upon WCDJFS’ motion. (Doc. Nos. 1, 32). Although the final judgment entry uses the initials “J.H.K.,” it does not appear that the trial court actually changed the case name; therefore, we elect to use the initials “J.B.K.” herein for this minor child. (Doc. No. 118). 2 Where it is unclear, citations to the docket will include the trial court case number; otherwise, only the docket number will be cited. Filings concerning H.M.K. are in trial court case no. C 2102010, and filings concerning J.B.K. are in trial court case no. C 2102011.

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boyfriend physically and sexually abused H.M.K. (Id.). With respect to J.B.K.,

WCDJFS alleged that Diane failed to properly care for J.B.K. when he was a

toddler and allowed J.B.K. to escape from her home. (Id.).

{¶4} On September 7, 2010, Diane appeared and was appointed counsel;

thereafter, the trial court entered conditional denials to the charges in the

complaints regarding H.M.K. and J.B.K. on Diane’s behalf. (Doc. Nos. 22, 26).

At that time, the State indicated that it was just notified of the identity of

children’s fathers and would ascertain their addresses and attempt service. (Id.).

{¶5} On September 13, 2010, Marvin H., J.B.K.’s father, appeared and was

appointed counsel; thereafter, the trial court entered conditional denials to the

charges in the complaint regarding J.B.K. on Marvin’s behalf. (Doc. No. 29). The

State notified the trial court that it had attempted to serve H.M.K.’s father,

Michael B., without success, and it believed that he was avoiding service, so the

State would pursue service by publication. (Doc. No. 30).

{¶6} On September 14, 2010, WCDJFS filed a motion requesting that the

trial court continue its adjudication hearing so that H.M.K.’s father, Michael B.,

could be served by publication. (Doc. No. 23).

{¶7} On September 20, 2010, the trial court adjudicated H.M.K. a

dependent child as to Diane upon her admission. (Doc. No. 33). On this same

day, the trial court also adjudicated J.B.K. a dependent child upon Diane’s

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admission, and the State dismissed Count Two charging Diane with neglect.

(Doc. No. 32). The trial court granted WCDJFS protective supervision of the

children for the development of a case plan with the goal of reunification. (Case

No. C 2102010, Doc. No. 33); (Case No. C 2102011, Doc. No. 32).

{¶8} On October 18, 2010, the trial court adjudicated H.M.K. a dependent

child as to Michael B., who did not appear for the proceedings after receiving

notice, according to Diane. (Doc. No. 35). That same day, the trial court

adjudicated J.B.K. a dependent child as to Marvin H. upon his admission. (Doc.

No. 34).

{¶9} On November 8, 2010, the trial court held a dispositional hearing and,

thereafter, took the matter under advisement for post-hearing written arguments,

because the Guardian Ad Litem (“GAL”) requested that the trial court grant

WCDJFS temporary custody while WCDJFS requested only protective

supervision. Counsel for Diane advocated for a middle-of-the-road approach

whereby the children would remain in their mother’s care with strict orders from

WCDJFS concerning their supervisory capacity. (Case No. C 2102011, Doc. Nos.

35-37); (Case No. C 2102010, Doc. Nos. 36-38).

{¶10} On December 14, 2010, the trial court issued its judgment, ordering

that WCDJFS be awarded protective supervision. (Case No. C 2102011, Doc. No.

38); (Case No. C 2102010, Doc. No. 39). The trial court also ordered, in pertinent

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part, that Diane keep the children away from violent or sexual offenders; H.M.K.

be removed from all but one social networking website; and, H.M.K. “friend” a

WCDJFS’ employee on Facebook so that H.M.K.’s communications could be

monitored. (Id.); (Id.).

{¶11} On February 9, 2011, WCDJFS filed a motion to show cause why

Diane should not be held in contempt of court for failing to abide by the court’s

orders. (Case No. C 2102010, Doc. No. 43); (Case No. C 2102011, Doc. No. 44).

In particular, WCDJFS alleged that Diane: allowed adult men, who were friends

of her adult daughter, to stay in the residence with the minor children; failed to fill

out an application for day care through WCDJFS; refused to take a budgeting class

even though she continued to have financial difficulties; failed to follow-up with

school officials regarding H.M.K.’s academic performance; failed to enroll

H.M.K. in extracurricular activities in school; failed to ensure that H.M.K.

accepted an agency employee’s “friend” request on Facebook; failed to enroll

J.B.K. in Head Start; and, failed to attend counseling at Firelands. (Id.); (Id.).

{¶12} On February 28, 2011, the trial court held a hearing on the motion,

Diane admitted she was in contempt of the trial court’s orders, and the trial court

sentenced Diane to 30 days in jail but suspended the sentence for Diane to purge

the contempt. (Case No. C 2102010, Doc. No. 48); (Case No. C 2102011, Doc.

No. 49).

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{¶13} On March 11, 2011, Marvin H. filed a motion to establish parenting

time with J.B.K. (Doc. No. 52). On March 16, 2011, Marvin H. filed an amended

motion for parenting time, alleging that the trial court’s order that J.B.K. have no

contact with anyone convicted of a sexual offense effectively denied him of any

parenting time because he was convicted of a sexual offense in 2000. (Doc. No.

53). Marvin alleged that he inappropriately touched his then-girlfriend’s four-

year-old daughter while she was bathing. (Id.). However, Marvin alleged that he

was rehabilitated after serving two years in prison, attending one and a half years

of sexual-offender treatment, and receiving five years of post-release counseling

through an independent agency. (Id.).

{¶14} On April 5, 2011, WCDJFS responded to the motion, arguing that

the department does not have custody of J.B.K., rather protective supervision, and

Marvin’s custody dispute should be addressed in the pending paternity case,

Wyandot County Juvenile Court I.E. case I 2103040. (Doc. No. 56).

{¶15} On April 15, 2011, the trial court dismissed Marvin’s amended

motion to establish parental visitation rights, finding that Marvin should have

addressed visitation in the paternity case. (Doc. No. 57).

{¶16} On April 29, 2011, WCDJFS filed a motion for emergency custody

of the children, alleging that Diane allowed the children to visit Marvin H., a

registered sex offender. (Case No. C 2102010, Doc. No. 51); (Case No. C

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2102011, Doc. No. 58). The trial court held a hearing on the motion that same

day. Thereafter, on May 9, 2011, the trial court issued an entry concluding that

WCDFS’ emergency removal was proper, continuing WCDJFS’ temporary

custody of the children, and scheduling a full hearing. (Case No. C 2102010, Doc.

No. 56); (Case No. C 2102011, Doc. No. 62).

{¶17} On June 29, 2011, WCDJFS filed a supplemental motion for

emergency custody of H.M.K., alleging that, while in the foster home, J.B.K., who

was five years of age, was humping H.M.K.; H.M.K., who was ten years of age,

possessed pornography on her Nintendo DIS; and, H.M.K. had a disturbing

fascination with the condom isle at the grocery store. (Case No. C 2102010, Doc.

No. 61). On that same day, WCDJFS filed a motion for an order placing J.B.K. in

the temporary custody of his paternal uncle and aunt, Chris and Tara H. (Case No.

C 2102011, Doc. No. 69).

{¶18} On July 5, 2011, the trial court filed an entry noting that it would be

inappropriate to grant Chris and Tara H. temporary custody of J.B.K. since there is

a pending hearing concerning temporary custody as between Diane and WCDJFS,

and J.B.K. is currently developing a relationship with his foster parents. (Case No.

C 2102011, Doc. No. 73). Consequently, the trial court set the motion for hearing

on the same date as the hearing scheduled to rule on WCDJFS’ motion for

temporary custody. (Id.).

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{¶19} On September 9, 2011, Marvin H. filed a motion for custody of

J.B.K. (Case No. C 2102011, Doc. No. 79).

{¶20} On September 22, 2011, WCDJFS filed a motion for Diane to have

unsupervised visitation with the children. (Case No. C 2102010, Doc. No. 71);

(Case No. C 2102011, Doc. No. 84). That same day the Court Appointed Special

Advocate (“CASA”), through the GAL, filed an objection to WCDJFS’ motion for

unsupervised visitation. (Case No. C 2102010, Doc. No. 72); (Case No. C

2102011, Doc. No. 85). Also that same day, Marvin H. filed another motion

seeking visitation with J.B.K. (Doc. No. 86).

{¶21} On October 18, 2011, the trial court held a hearing on the various

motions. On October 24, 2011, Marvin H., with the parties consent, filed an

exhibit consisting of his sexual-offender treatment records, assessments, and

progress reports in support of his motion for visitation. (Doc. No. 89).

{¶22} On January 13, 2012, the trial court filed an entry granting Marvin H.

visitation with J.B.K. under WCDJFS’ supervision. (Doc. No. 91). The trial court

also granted Diane’s motion for unsupervised visitation with H.M.K. for two to

three hours at a time, as scheduled with WCDJFS; however, the trial court denied

Diane’s motion for unsupervised visitation with J.B.K. at this time since Diane

had failed to properly supervise him. (Case No. C 2102010, Doc. No. 77); (Case

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No. C 2102011, Doc. No. 91). The trial court ordered that the children remain in

WCDJFS’ temporary custody. (Id.); (Id.).

{¶23} On March 8, 2012, WCDJFS filed a motion for an order placing

J.B.K. in the temporary custody of his paternal uncle and aunt, Chris and Tara H.

(Doc. No. 96). WCDJFS represented that the foster mother was no longer a

placement option, and that J.B.K. has bonded with his uncle and aunt throughout

the case. (Id.). On March 14, 2012, Marvin H. filed an objection to the motion.

(Doc. No. 98). On March 20, 2012, the trial court continued WCDJFS’ temporary

custody of J.B.K.; however, it allowed J.B.K. to be placed into Chris and Tara H.’s

home on the condition that they pass a home study since no other foster homes

were available. (Doc. No. 99).

{¶24} On May 2, 2012, WCDJFS filed a motion requesting that Diane’s

unsupervised visitation time with H.M.K. be increased to six hour increments,

which motion was granted. (Doc. Nos. 85-86). On this same date, WCDJFS filed

a motion requesting that Diane be granted unsupervised visitation with J.B.K., and

that J.B.K. be placed in the temporary, relative custody of Chris and Tara H.

(Case No. C 2102011, Doc. No. 103).

{¶25} On May 24, 2012, the trial court granted Diane unsupervised

visitation with J.B.K.; however, the trial court ordered WCDJFS to conduct

unannounced visits and immediately report any concerns to the court. (Doc. No.

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104). The trial court also granted Chris and Tara H. temporary, relative custody of

J.B.K. (Id.).

{¶26} On June 13, 2012, however, WCDJFS’ filed a motion requesting that

Diane’s visitation time with the children be returned to supervised visitation since

Diane failed to properly supervise them during her unsupervised visitation time.

(Case No. C 2102010, Doc. No. 88); (Case No. C 2102011, Doc. No. 106). The

trial court granted the motion the same day. (Case No. C 2102010, Doc. No. 89);

(Case No. C 2102011, Doc. No. 107).

{¶27} On July 27, 2012, WCDJFS filed a motion seeking permanent

custody of H.M.K. (Doc. No. 91). That same day, WCDJFS filed a motion asking

the court to grant Chris and Tara H. legal custody of J.B.K. (Doc. No. 108).

{¶28} On October 24, 2012, the trial court held a hearing on the motion for

permanent custody of H.M.K. and motion for legal custody of J.B.K. (Case No. C

2102010, Doc. No. 97); (Case No. C 2102011, Doc. No. 109).

{¶29} On November 7, 2012, the trial court granted Chris and Tara H. legal

custody of J.B.K., awarded Diane reasonable supervised visitation as agreed

between the parties, and terminated WCDJFS’ protective supervision. (Doc. No.

118). The trial court also ordered Diane to provide the Wyandot County Child

Support Enforcement Agency (“CSEA”) with income information for child

support calculation purposes, and CSEA was ordered to provide copies of the

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calculation to the parties for a seven-day written objection period. (Id.). The trial

court did not grant Marvin H. visitation time with J.B.K.; however, Marvin H.

indicated at the hearing that, if Chris and Tara H. were to receive placement, “he

was done.” (Id.). On November 13, 2012, the trial court filed a nunc pro tunc

entry removing personal identifiers from its previous entry. (Doc. No. 120).

{¶30} On November 27, 2012, CSEA filed notice of the child support

calculation with the trial court and the parties, indicating that Diane’s child

support for J.B.K. should be $314.30 per month, plus a $6.29 per month

processing fee, when health insurance is provided. (Doc. No. 121).

{¶31} On November 28, 2012, the trial court granted WCDJFS permanent

custody of H.M.K., terminating the parental rights of Diane and Michael B. (Case

No. C 2102010, Doc. No. 97).

{¶32} On December 10, 2012, Diane filed a notice of appeal from the trial

court’s judgment entry awarding WCDJFS permanent custody of H.M.K., which

was assigned appellate case no. 16-12-15. (Doc. No. 101). That same day she

filed a written objection and request for a hearing regarding the child support

calculation for J.B.K. (Doc. No. 123). The trial court ordered that Diane pay

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$314.30 per month in child support for J.B.K. that same day without a hearing.

(Doc. No. 124).3

{¶33} On December 13, 2012, Diane filed a notice of appeal from the trial

court’s judgment entry granting Chris and Tara H. legal custody of J.B.K., which

was assigned appellate case no. 16-12-16. (Doc. No. 125).

{¶34} On February 28, 2013, this Court sua sponte consolidated the cases

for appeal purposes, with all filings under case no. 16-12-15.

{¶35} Diane now appeals raising two assignments of error specially related

to H.M.K., one assignment of error specifically related to J.B.K., and two

assignments of error related to both children.4 For ease of analysis, we will

address the assignments of error in that order, combining them where appropriate.

Assignment of Error No. I

The Trial Court’s decision to terminate Appellant’s parental rights and grant permanent custody to the Wyandot County Job and Family Services is against the manifest weight of the evidence.

Assignment of Error No. II

The Trial Court erred in granting permanent custody for the children because it was not in their best interest.

3 It appears that the trial court ordered the child support as calculated by CSEA without holding a hearing on Diane’s written objection because her objection was filed outside the seven-day time limitation ordered by the trial court. (Case No. C 2102011, Doc. No. 118). This issue has not been raised on appeal. 4 The fathers of H.M.K. and J.B.K., Marvin H. and Michael B., are not parties to this appeal.

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{¶36} In her first assignment of error, Diane argues that the trial court’s

decision to award WCDJFS permanent custody of the children was against the

manifest weight of the evidence, because she completed her case plan thereby

purging her prior contempt, the GAL recommended that she have visitation with

H.M.K. despite the grant of permanent custody, and the trial court relied upon its

speculation of future problems to make its decision.

{¶37} In her second assignment of error, Diane argues that granting

WCDJFS permanent custody of H.M.K. was not clearly and convincingly in the

child’s best interest. In particular, Diane argues that the trial court discounted her

bond with H.M.K. and that she had completed her case plan.

{¶38} As an initial matter, we note that Diane’s arguments concerning

permanent custody, although they appear to relate to both children, must

necessarily be limited to H.M.K. since the trial court granted WCDJFS permanent

custody of H.M.K. only. Chris and Tara H. were granted legal custody of J.B.K.,

and the trial court granted Diane parental visitation rights. With that caveat in

mind, we proceed to our analysis of these assignments of error.

{¶39} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right,”

and a parent’s right to the custody of his or her child has been deemed

“paramount.” In re Murray, 52 Ohio St.3d 155, 157, (1990), quoting Stanley v.

Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972); In re Hayes, 79 Ohio St.3d 46,

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48 (1997); In re Perales, 52 Ohio St.2d 89, 97 (1977). Therefore, parents “must

be afforded every procedural and substantive protection the law allows.” Hayes at

48.

{¶40} Except under certain circumstances, a public children services

agency that has had temporary custody of a child for twelve or more months of a

consecutive twenty-two month period must file a motion for permanent custody.

R.C. 2151.413(D)(1). A trial court may grant the motion if the court determines,

by clear and convincing evidence, that it is in the best interest of the child, and

“[t]he 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 * * *.” R.C. 2151.414(B)(1)(d).

{¶41} To determine whether granting the agency permanent custody is in

the best interest of the child, R.C. 2151.414(D) provides a non-exclusive list of

factors for the trial court to consider:

(1) The interaction and interrelationship of the child with the

child’s parents, siblings, relatives, foster caregivers and out-of-home

providers, and any other person who may significantly affect the

child;

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(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 or private child placing agencies for twelve or

more months of a consecutive twenty-two month period ending on

or after March 18, 1999;

(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;

(5) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

{¶42} Clear and convincing evidence is more than a preponderance of the

evidence but not as much evidence as required to establish guilt beyond a

reasonable doubt as in a criminal case; rather, it is evidence which provides the

trier of fact with a firm belief or conviction as to the facts sought to be established.

In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn.

v. Massengale, 58 Ohio St.3d 121, 122 (1991).

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{¶43} Upon review, an appellate court “must examine the record and

determine if the trier of fact had sufficient evidence before it to satisfy this burden

of proof.” Meyer at 195, citing In re Adoption of Holcomb, 18 Ohio St.3d 361,

368 (1985). A reviewing court will not reverse a trial court’s determination unless

it is not supported by clear and convincing evidence. Meyer at 195, citing

Holcomb at 368 and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986).

{¶44} The history preceding WCDJFS’ motion for permanent custody is

important in this case. By the time WCDJFS filed the complaints, it had received

multiple reports concerning Diane’s failure to supervise her children beginning on

September 11, 2003. (Complaint, Doc. No. 1, Statement of Facts, attached). To

put it bluntly, Diane has a history of allowing men into her life that physically and

sexually abuse her children—H.M.K. is not the first victim of Diane’s negligent

supervision. (Id.). H.M.K. is also not the first of Diane’s children to have severe

head lice. (Id.). Attached to the September 11, 2009 GAL report were multiple

police reports involving Diane’s failure to supervise J.B.K., a police report about a

sexual assault that occurred against Diane’s now emancipated daughter, Kayla,

and multiple police reports for domestic violence against Diane in the children’s

presence, including one incident where a knife was used.

{¶45} At the June 28, 2011 hearing on WCDJFS’ motion for emergency

custody, Marvin H. testified that he is J.B.K.’s father, no relation to H.M.K., and

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he is a convicted sex offender. (Tr. at 6-8). Marvin H. testified that he was

convicted of gross sexual imposition after inappropriately touching his

stepdaughter, who was under five years old at the time, while she was bathing.

(Id. at 8-9). Marvin H. testified that, with Diane’s consent, he continued to visit

J.B.K. despite the trial court’s order that the children have no contact with sex

offenders. (Id. at 8). He testified that he also visited H.M.K. during these visits,

which included three overnight visits at his home. (Id. at 12-13). Marvin H.

testified that his girlfriend was staying with him during the overnight visits,

though she does not regularly live with him. (Id. at 13-14).

{¶46} Diane admitted that she allowed Marvin H. to have companionship

with J.B.K. despite the trial court’s order otherwise. (Id. at 15-16). Diane also

testified that she has been socializing with Mark Hoffman, though he was a friend

not a boyfriend, and she denied dating a man named “Bill” before that. (Id. at 17).

Diane testified that Hoffman, not Bill, attended H.M.K.’s softball games with her.

(Id. at 18). When she was asked about whether Hoffman had ever been convicted

of a sexual offense, Diane testified “[n]o. * * * Because he’s got five kids.” (Id.).

When asked about whether Hoffman had ever been convicted of domestic

violence, Diane testified, “I don’t think he -- I don’t think he’d hurt anybody.”

(Id.). Diane testified that her children met Hoffman when he helped her move, but

she did not contact the agency to screen Hoffman. (Id. at 18-19). Diane testified

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that H.M.K. has a Nintendo DSI, but she was unaware it had pornography on it.

(Id. at 19-20).

{¶47} Brenda Hanawalt, the foster-mother, testified that H.M.K. and J.B.K.

have been in her home since April 28, 2011, and H.M.K. had severe head lice

when she first came. (Id. at 20-21). Hanawalt observed J.B.K. humping H.M.K. a

few times; Hanawalt testified that J.B.K. grabbed H.M.K. by the waist and was

“humping on her like a sexual thing.” (Id. at 23). When Hanawalt asked the

children how they learned this behavior, the children first indicated that J.B.K.

walked in on his older sister and boyfriend having sex once. (Id. at 23). When it

happened a second time, H.M.K. indicated that J.B.K. must have learned this

behavior from her Nintendo DSI. (Id. at 23-24).

{¶48} After testimony concerning the pornography on the Nintendo DSI

and humping incidents was introduced, the attorneys for mother and father moved

for a continuance since WCDJFS’ motion did not give notice of these issues for

the hearing. (Id. at 24-29). The trial court granted the motion, allowing WCDJFS

to amend its motion for a further hearing. (Id.).

{¶49} On October 18, 2011, the hearing continued on WCDJFS’ amended

motion and Hanawalt testified that H.M.K. was “pretty much sexually advanced,”

and H.M.K. was showing other children on the school bus pornography that she

had in her Nintendo DSI. (Tr. at 11). Hanawalt testified that H.M.K. was

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laughing when J.B.K. was humping her. (Id. at 12). Hanawalt further testified

that, during the first week she was in the home and they went to the pharmacy for

head lice treatment, H.M.K. was checking out different types of condoms at the

store and talking to her about different gels and lubricants. (Id.). Hanawalt

testified that J.B.K. is struggling academically in school, and does not understand

rules. (Id. at 13). She further testified that H.M.K. talks to her mother about men

and partying quite frequently. (Id. at 15). Hanawalt testified that Diane has used

her cell phone during every visitation period she observed. (Id. at 16). She

testified that Diane does not ask her about how the children are doing in school,

but she thinks Diane talks to the children about school. (Id. at 17). Hanawalt

testified that, about two to three weeks after H.M.K. arrived in her home, H.M.K.

was having bed-wetting incidents and nightmares about fighting off Brad Russell,

one of Diane’s old boyfriends, from touching her. (Id. at 18-19).

{¶50} Kristina Renee Ratliff, the WCDJFS social worker assigned to the

case, testified that the agency became involved after J.B.K. was discovered outside

of the home several times due to lack of supervision. (Id. at 22-23). Ratliff

testified that Diane allowed the children to stay at Marvin H.’s house, a convicted

sex offender, even though she was not permitted to do so per court order. (Id. at

23-24). Ratliff testified that H.M.K. has not disclosed any inappropriate sexual

behavior to her counselor; however, Ratliff testified that H.M.K.’s counselor

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indicated that H.M.K. may have some underlying issues that she is not yet

comfortable talking about. (Id. at 41). Ratliff testified that H.M.K., a ten-year-old

girl, has been exposed to a great deal of sexualized behavior, including

pornography on her Nintendo DSI. (Id.). Ratliff testified that H.M.K. is obsessed

with impressing boys, and, for that reason, H.M.K. will need extra supervision.

(Id. at 42). Ratliff testified that Diane talks to H.M.K. about men, which seems to

be a huge focus for both Diane and H.M.K. (Id. at 49).

{¶51} On October 24, 2012, the trial court held a hearing on WCDJFS’

motion for permanent custody of H.M.K. and motion to grant Chris and Tara H.

legal custody of J.B.K. Salisa Lynn Halloway testified that H.M.K., now twelve

years old, has been residing in her foster home since the beginning of March

(2012). (Oct. 24, 2012 Tr. at 53, 55). Halloway testified that she lives with her

boyfriend, Dave Boes, and her three sons, Cody, Colin, and Conner. (Id.).

Halloway testified that H.M.K. stopped wetting the bed and having nightmares,

though she started doing that again the week of the court hearing. (Id. at 54).

Halloway testified that H.M.K. is doing better in school, though she continues to

be about a year behind academically, despite their efforts at homework every

night. (Id. at 54-55). Halloway testified that H.M.K. played softball in the

summer, participated in “Midget Cheerleading,” and now wants to participate in

gymnastics. (Id. at 55). Halloway testified that H.M.K.’s visitation with her

-20- Case Nos. 16-12-15, 16-12-16

mother has been “okay,” though it has changed from supervised to unsupervised

back to supervised visitation. (Id. at 56). She testified that H.M.K. still needs and

wants to see her mother, though H.M.K. does not talk to her much about it. (Id.).

{¶52} On cross-examination, Halloway testified that her three boys are ages

twelve, fifteen, and seventeen. (Id. at 57). She testified that the boys get along

with H.M.K., though the older boys are rarely around the house due to their sports

schedule and driving privileges. (Id.). Halloway testified that she is acting as

H.M.K’s mother figure while she is staying in the home, and Dave is trying to be a

father figure for H.M.K., who has never had a father. (Id. at 58). Halloway and

Dave have talked about adopting H.M.K. in the event adoption is an option, and

H.M.K. asked them if they were adopting her. (Id. at 60). Halloway testified that

she took H.M.K. for supervised visits with her mother almost every week, though

some of the visits did not occur due to scheduling conflicts. (Id. at 60, 63).

Halloway testified that most of the visits happened. (Id. at 63). Halloway testified

that H.M.K. told her that during her last visit with her mother, her mother told her

that she hopes H.M.K. picks her, so H.M.K. believed that the outcome of the case

depended on her. (Id. at 63-64). Halloway denied observing H.M.K. exhibit any

inappropriate sexual behavior or interest in condoms. (Id. at 65). Halloway also

testified that H.M.K. has very limited, supervised time on Facebook, once or twice

a week for fifteen to twenty minutes. (Id.).

-21- Case Nos. 16-12-15, 16-12-16

{¶53} Ratliff testified that she is the ongoing caseworker for H.M.K. and

J.B.K, and H.M.K. has been in WCDJFS’ temporary custody since May 9, 2011.

(Id. at 66, 82). Ratliff testified that, prior to the removal of the children, the

agency had been involved with the family several times due to J.B.K. getting out

of the home and roaming the community wearing only his underwear. (Id.).

Ratliff testified that she encouraged Diane to remedy the situation, but nothing

seemed to work, so the agency had to intervene. (Id. at 67). Ratliff testified that

the agency developed a case plan to help Diane with parenting and financial skills,

to help H.M.K. academically, and to ensure the children were not around any

people with a history of violence or sexual abuse. (Id. at 67-68). Ratliff testified

that Diane completed her parenting classes and attended one budgeting class after

being strongly encouraged to do so. (Id. at 68). Ratliff testified that Diane has

completed most of her case plan, but the agency is requesting permanent custody

of H.M.K., because Diane failed to put those skill sets into practice and continues

to allow dangerous people access to her children. (Id. at 69).

{¶54} Ratliff testified that she has been working with Diane for years, not

months, and her biggest frustration with Diane is that she appears to put her

boyfriends before her children. (Id.). Despite their multiple conversations on the

subject, Diane continued to expose her children to men who have a violent history,

some of which have been convicted of sexual offenses against children, which had

-22- Case Nos. 16-12-15, 16-12-16

caused some of her children to be sexually abused, according to Ratliff. (Id. at 69-

70). Ratliff testified that there were allegations that Diane’s live-in boyfriend,

Brad Russell, was sexually inappropriate with Diane’s eldest daughter (not a party

herein), and Diane allowed Russell to continue living in the home after the

allegations, though they did eventually break up. (Id. at 70). After Russell, Diane

moved into another man’s home who was just a “friend” and stayed there for quite

a while. (Id.). After she moved out of that residence, Diane brought another

man—also just a “friend”—to one of H.M.K.’s dance performances, which was an

extra visitation period for Diane and no one else. (Id. at 70-71). Ratliff testified

that Diane was supposed to clear potential boyfriends with the agency. (Id. at 71).

Ratliff testified that, after this man, Diane brought another man, who she

introduced as a boyfriend, to H.M.K.’s softball game. (Id. at 72).

{¶55} Ratliff testified that Donald Mauck was living with Diane, though

she is not sure how long Mauck lived with Diane because Diane hid the

relationship from her. (Id.). Ratliff testified that the agency discovered that

Mauck had been charged with disseminating sexually explicit materials to minors.

(Id.). J.B.K. disclosed to Chris and Tara H. that, one time when Diane and the

children were at Putt-Putt during an unsupervised visitation, Diane hid Mauck in

the bathroom since she believed that Ratliff might be making an unannounced

visit. (Id. at 73). Ratliff testified that, when Diane picked up H.M.K. at her foster

-23- Case Nos. 16-12-15, 16-12-16

home to go to Putt-Putt, she went alone and then picked up Mauck later so no one

would know that Mauck was going along. (Id. at 79). Ratliff testified that, when

she confronted Diane about hiding Mauck from the agency, Diane admitted it was

wrong but did it anyway. (Id. at 79-80). Ratliff testified that she and her

supervisor, Rodney Traxler, confronted Diane about Mauck, and Diane stated that

she did not think it was fair that she could not have a boyfriend like everyone else.

(Id. at 73). Ratliff testified that Diane thought Mauck could be around her

children since he was charged, but not convicted, of the criminal offense. (Id. at

74). Ratliff testified that Mauck’s Facebook page has sexually explicit content,

and amidst the photographs of partially-naked females was a photograph of a

fully-clothed H.M.K. (Id.). Mauck and H.M.K. are Facebook friends, so H.M.K.

would have access to these sexually explicit photographs, and Mauck’s sexually

explicit comment about having a threesome with another woman. (Id. at 75).

Ratliff testified that Diane claimed that she was unaware of the content of

Mauck’s Facebook page. (Id. at 76). Ratliff testified that she found Diane’s

ignorance concerning, because she told Diane that, if she is going to have a

relationship, she needs to investigate that person as much as possible and report

any concerns she has to the agency for investigation. (Id.).

{¶56} Ratliff testified that, after Diane and the children left Putt-Putt and

were still on visitation time, Diane allowed H.M.K. to go swimming at a friend’s

-24- Case Nos. 16-12-15, 16-12-16

house, unsupervised. (Id. at 80). Ratliff testified that the agency had had prior

involvement with the friend’s family. (Id.). According to Ratliff, during this time,

H.M.K. went with her friend and two boys into a wooded area together for a walk.

(Id. at 81). Ratliff testified that Diane stated that she never asked the friend’s

mother to supervise her daughter, which meant that H.M.K. was unsupervised for

four hours during Diane’s scheduled visitation time. (Id. at 81-82). According to

Ratliff, this triggered the agency’s filing of the motion to terminate Diane’s

unsupervised visitations with H.M.K. (Id. at 82). Ratliff testified that, during

Halloween 2011 trick-or-treating with her children, Diane was accompanied by a

female friend who was intoxicated. (Id. at 83). Ratliff testified that it was

concerning that Diane was constantly bringing inappropriate people to her

visitation time. (Id. at 85). Ratliff testified that Diane loves her children and that

the visitations have gone well, overall, but Diane continues to expose her children

to dangerous individuals and allows her children to do whatever they want to do.

(Id. at 85-86). Ratliff testified that, in her six years as a caseworker, she has never

been more frustrated with someone than Diane, because she has explained things

to her so many times, and yet Diane either does not understand or ignores her. (Id.

at 87). Although Diane has been completing her case plan, Diane continues to

make poor decisions, like allowing the children to go with Marvin H. (Id. at 88).

-25- Case Nos. 16-12-15, 16-12-16

Ratliff does not like to give up on a family, personally, but she did not feel there

was anything more the agency could do for reunification. (Id. at 90).

{¶57} Ratliff testified that Marvin H. is J.B.K.’s father, and Marvin did not

agree with the agency’s decision to place J.B.K. in the temporary custody of Chris

and Tara H. (Id. at 91-92). Ratliff testified that Marvin indicated that he was done

with the agency if J.B.K. was placed with Chris and Tara H., and Marvin has not

contacted her since the placement, despite her multiple efforts to reach him. (Id. at

92). She testified that Michael B. is H.M.K.’s father, but he has not contacted the

agency with respect to her case. (Id. at 93). Ratliff testified that Diane is not

currently dating Mauck, though she is dating another man she met from work, and

Ratliff only found out about this new boyfriend through H.M.K. (Id.).

{¶58} Ratliff testified that the agency is only asking for permanent custody

of H.M.K. since Chris and Tara H. are an appropriate legal placement for J.B.K.,

and no family member has come forward for H.M.K. (Id. at 95). Ratliff testified

that Diane does not accept responsibility for her actions; instead, it is always

someone else’s fault, whether that is the agency, CASA, Marvin H., Chris H., etc.

(Id. at 96-97). Ratliff testified that H.M.K. told her that she wanted her foster

mother to adopt her, though later H.M.K. indicated that she did not want to talk to

the judge about her wishes because she did not want to upset her mother. (Id. at

98). H.M.K. told Ratliff that she knew her foster mother would take better care of

-26- Case Nos. 16-12-15, 16-12-16

her, but she did not want to hurt her mother. (Id. at 99). Ratliff testified that

H.M.K. shoulders a heavy burden for a young girl, and that much of that stems

from Diane treating H.M.K. more like a friend than a daughter. (Id.). Ratliff

testified that J.B.K. goes back and forth regarding his placement—sometimes he

states that he wants to be with his mommy; other times he states that Chris and

Tara H. will take better care of him. (Id. at 100). Ratliff testified that she thinks

some of it stems from the fact that Chris and Tara H. discipline J.B.K., so

sometimes he is upset and holds a grudge. (Id.).

{¶59} On cross-examination, Ratliff testified that Diane interacts well

during visitation, has “pretty much completed everything on the original Case

Plan,” has stable work, has completed parenting and budgeting classes, and has an

appropriate house. (Id. at 101). Ratliff admitted that the agency moved for

permanent custody primarily for two reasons: who Diane brings into the

children’s lives, and her lack of supervision of the children. (Id. at 101-102).

Ratliff testified that, prior to his placement with Chris and Tara H., J.B.K. was

placed with a foster mother, Brenda Hanawalt, for about a year. (Id. at 102).

Ratliff testified that J.B.K. was not completely potty trained prior to his removal,

and Brenda worked with J.B.K., who continued to have bed-wetting incidents.

(Id.). Ratliff testified that, as Tara H. has indicated, J.B.K. responds better to

males than he does females, and Brenda was a single mother. (Id.).

-27- Case Nos. 16-12-15, 16-12-16

{¶60} Ratliff testified that the agency and Chris and Tara H. had a

disagreement concerning who was responsible to ensure supervised visitation

between J.B.K. and Diane, which caused Diane to miss two scheduled visitations.

(Id. at 104-106). According to Ratliff, some of the supervised visitation had to be

scheduled on weekends, and Chris and Tara H. felt like the agency should be

responsible to transport J.B.K. for the visitation periods, not them. (Id. at 105).

Ratliff testified that Chris spoke with her supervisor and they worked out the issue,

which meant Ratliff was responsible for the transportation. (Id.). Ratliff testified

that weekend visitations were difficult for the agency workers, and weekday

visitation was generally all right, except when Diane would not show up. (Id. at

110). Ratliff denied that the agency’s failure to make weekend visitations work

had anything to do with the fact that the motion for permanent custody had already

been filed. (Id. at 111). Ratliff testified that all of the scheduling conflicts had

already been set in motion prior to the decision to file for permanent custody.

(Id.).

{¶61} Ratliff testified that she conducted a background check on Diane’s

current boyfriend, which did not reveal any criminal history. (Id. at 112). Ratliff

testified that Diane was also a Facebook friend with Mauck, and Mauck also had

pictures of Diane on his Facebook page. (Id. at 115). Ratliff testified that J.B.K.

is more bonded with Diane than H.M.K. is at this point, and H.M.K. is “almost

-28- Case Nos. 16-12-15, 16-12-16

kind of removing herself from that bond just because I think that she knows that

she’s better off where she is.” (Id. at 116).

{¶62} Ratliff testified that visitation has been difficult to schedule, in part,

due to Diane’s work schedule since she works second shift and some weekends,

too. (Id. at 117). She testified that Diane has made efforts to see H.M.K.

cheerleading and playing softball, and attended a car show with H.M.K. (Id.).

Ratliff testified that she does not think Diane’s issue stems from her inability to

care for two children at the same time; rather, Diane continues to make bad

choices, not following rules that put her children in potentially harmful situations.

(Id. at 120-121). Ratliff testified that Diane has never asked her about the

children’s academic progress, though she would occasionally ask J.B.K. about his

school behavior. (Id. at 121). She further testified that Diane failed to enroll

J.B.K. in Head Start, which was part of the Case Plan, and J.B.K. is repeating

kindergarten. (Id. at 122). Ratliff testified that H.M.K. has made some progress in

school, and her foster mother has been working with her on her homework. (Id. at

123).

{¶63} Ratliff testified that she was concerned about the four hours of

unsupervised time H.M.K. spent at her friend’s house since she was in the woods

with boys, and H.M.K. is highly sexualized for her age. (Id. at 123-124). Ratliff

testified that, after her time in the woods, H.M.K. returned with scratches all over

-29- Case Nos. 16-12-15, 16-12-16

her legs and, particularly, on her knees. (Id. at 124). Ratliff testified that H.M.K.

revealed to her that Diane has been recently telling her not to have a boyfriend,

though she would tell her otherwise in the past, and H.M.K. told Ratliff that she

thinks her mother was just saying this to impress the agency. (Id. at 125). Ratliff

testified that she is concerned with Diane’s lack of supervision of H.M.K. and

because of her highly sexualized behavior H.M.K. is going to get pregnant. (Id.).

Ratliff testified that Diane has taught H.M.K. that rules can be disobeyed, and

H.M.K. has learned to lie about ridiculous things. (Id. at 126). Ratliff testified

that Diane and H.M.K. have had conversations much like two girlfriends would

have—about boys, people getting divorced, and people cheating on each other.

{¶64} Ronette Kate Smith-Cheney, the GAL, testified that she filed a report

in this case, and her opinion is the same as reflected in her report (to grant

WCDJFS’ permanent custody of H.M.K. and to grant Chris and Tara H. legal

custody of J.B.K.). (Id. at 128-129). On cross-examination, Smith-Cheney

testified that she would like to see H.M.K. have some contact with her mother, as

she wishes; however, Smith-Cheney acknowledged that there is only so much they

can control after adoption. (Id. at 130-131). She testified that she recommends

that Chris and Tara H. be granted legal custody of J.B.K., and that he have

visitation with Diane. (Id. at 131-132). Smith-Cheney testified that Diane did not

-30- Case Nos. 16-12-15, 16-12-16

have any regard for court orders, and she is concerned that H.M.K. will either

become pregnant or be molested by someone in the home. (Id. at 136). She

testified that she was concerned about J.B.K.’s safety since he was getting out of

the house and was running towards the street. (Id. at 137). Smith-Cheney testified

that, even if the trial court could not guarantee that the children have continued

contact with Diane, that fact would not change her recommendations. (Id. at 139).

{¶65} Diane K. testified that she has worked at Bucyrus [Precision]

Technology making shafts for Honda transmissions for over a year. (Id. at 142).

Diane testified that she is currently working second shift, but by the first of the

year, the plant is moving to a three days on, three days off schedule, which will

enable her to work from 6:30 a.m. to 6:30 p.m. three days per week. (Id. at 143).

She testified that the three days on would rotate requiring her to work some

weekends. (Id. at 144). Diane testified that, since she has a better job, she can

afford to hire a babysitter, a woman who is a registered nurse, to watch the

children after school and take them to their extracurricular activities on the days

she is working. (Id. at 145). Diane testified that she has lived in Nevada (Ohio)

for the past two years, but she recently put an offer on a farmhouse in Crestline,

Ohio, and she is supposed to close the deal by November 15th (2012). (Id. at

146). Diane testified that the house has three bedrooms, one and a half baths, and

has a large yard. (Id. at 147). Diane testified that she completed parenting classes

-31- Case Nos. 16-12-15, 16-12-16

and had been implementing the new parenting skills a few weeks before J.B.K.

was removed, and he was responding well. (Id.). Diane testified that she wants

her children to be safe and she needs to monitor who comes to her home; she

further testified that she needs to discipline the children even if it makes them

mad. (Id. at 148). Diane testified that she asked the foster mother about the

children’s academic progress regularly, and she requested reports from the schools

last year. (Id. at 149). She also testified that she spoke to the children all the time

about their schooling. (Id.).

{¶66} Diane testified that she was unable to visit J.B.K. for three weeks

since her car broke down, and she was unable to see J.B.K. another three weeks

due to the disagreement between the agency and Chris and Tara H. regarding

transportation. (Id. at 150). She testified that she was informed J.B.K. is taking

medication, and Diane testified that she did not want her children to be on

medication since it could damage their liver. (Id. at 151). Diane testified that she

preferred talking with J.B.K. rather than giving him medication, and Diane

attributed J.B.K.’s behavioral problems with his removal from the home and from

one school to another. (Id.). Diane testified that she is no longer seeing Mauck

due to his inappropriate posts on Facebook, of which she was previously unaware

and did not discover until the agency notified her. (Id. at 152, 154). Diane

testified that she has spent little time on Facebook since February (2012) since she

-32- Case Nos. 16-12-15, 16-12-16

works seven days a week. (Id. at 153). Diane testified that she was unaware of

how many Facebook friends H.M.K. has, and she removed Mauck from her

Facebook friends’ roster a couple weeks after she learned of the inappropriate

content he had on his Facebook page. (Id. at 153, 155).

{¶67} Diane testified that “Oribringer” is her new boyfriend she met

through work, and she had the agency check him out after she had one date with

him. (Id. at 155). Diane testified that Oribringer raised two boys and said he

would be willing to help raise her children so they could have a stable home. (Id.).

Diane testified that “[i]t would totally tear [her] apart if [she] lost [her] kids

altogether.” (Id. at 156). She testified that the children would be devastated to

lose her as well. (Id.). When asked about her failures to keep the children safe,

Diane testified that that was the past, and she is trying to better her life, and she

has found a responsible babysitter, which she blamed as the cause of the agency’s

initial involvement. (Id. at 156-157). Diane testified that she has made extra

efforts to be involved in H.M.K.’s life, including attending softball games,

cheerleading, and dance recitals, and even visited with H.M.K. when the agency

was unable to supervise. (Id. at 157). Diane testified that H.M.K. was not

unsupervised for four hours at her friend’s house; rather, H.M.K. checked in with

her every half-hour. (Id. at 158). Diane testified that she and her children moved

in with one male friend, Nutter, only because she was laid off six times in the last

-33- Case Nos. 16-12-15, 16-12-16

seven years, and she did not want to go on welfare to support her family. (Id. at

159).

{¶68} On cross-examination, Diane testified that she is buying the house

with her new boyfriend, who she has known for six months and has been dating

since September (2012). (Id. at 161-162). Diane testified that she met Mauck

through Yearbook, which is an online social networking site similar to Facebook,

and spoke to him for about a month before she began dating him. (Id. at 162-163).

She testified that she met Mauck, and a few weeks later he moved into her home,

and he lived there from February to May. (Id. at 163). Diane testified that she

asked Mauck if he had any sexual offenses, and Mauck said “no.” (Id. at 164).

Diane testified that Mauck did not work, but he kept the house clean and mowed

the yard in exchange for living at the house. (Id.).

{¶69} Diane testified that the school sent her copies of her children’s report

cards, but she never had direct contact with the teachers. (Id. at 164-165). Diane

did not know the names of the children’s school teachers. (Id. at 165). Diane

testified that she disciplined J.B.K. by restricting his access to movies and sitting

him in a chair. (Id. at 166). Diane testified that she spanked her children a few

times when they really needed it, but not every time they disobeyed, because she

did not want to hurt her children. (Id.). Diane testified that she learned the value

-34- Case Nos. 16-12-15, 16-12-16

of honesty with her children through the parenting classes, and she is honest with

her children. (Id. at 167).

{¶70} Diane testified that Mauck was not hiding in the restroom at Putt-

Putt, but that he had to use the restroom, and she was joking around about him

hiding in front of the children, which she testified she should not have done. (Id.

at 168). Diane testified that, prior to the hearing, she told H.M.K. that she did not

want to lose her, and that H.M.K. might be adopted and she would never see

H.M.K. again. (Id. at 169). Diane admitted that this probably burdened H.M.K.,

but H.M.K. needed to know what could happen. (Id.).

{¶71} Diane testified that Ratliff has tried to support her and help keep the

children in the home. (Id. at 170). She testified that she never left the children

alone with Mauck. (Id. at 174). Diane identified WCDJFS’ exhibit two as a

screen shot from Mauck’s Facebook page. (Id. at 176). Exhibit two contains a

photograph of a woman with her legs open exposing her underwear upon which

the words “ALL YOU CAN EAT” appear on the front. (Id. at 179); (WCDJFS’

Ex. 2). The exhibit also contains a post with the following question, “If you could

change something about your life, what would it be and why?” (Oct. 24, 2012 Tr.

at 179.). Mauck’s response to this question was “id [sic] have a good looking bi

woman for me and my girl[.]” (Id.). Diane testified that, after she verified these

things were on Mauck’s Facebook page, she confronted Mauck and told him to

-35- Case Nos. 16-12-15, 16-12-16

remove them because they were inappropriate. (Id. at 178). Diane also testified

that she remembered “the birthday girl” on Mauck’s Facebook page, which Diane

identified as the photograph of a young naked woman holding a birthday cake,

with birthday hats covering her breasts and a bow on her genital area, depicted on

WCDJFS’ exhibit three. (Id. at 181). Diane admitted that Mauck’s Facebook

postings were a problem, but she testified that she did not have time to monitor his

internet usage since she was working seven days a week. (Id. at 182). Diane

identified WCDJFS’ exhibit four as a photograph of H.M.K. that was on Mauck’s

Facebook page, which Mauck probably took from H.M.K.’s Facebook page after

they became Facebook friends. (Id. at 183). Diane testified that Mauck was

charged with “disseminating matter to a minor off of one of his old cell phones,”

but she was not alarmed because Mauck never tried to be alone with H.M.K. and

he was not convicted. (Id. at 186). Diane testified that she never allowed Mauck

to babysit her children. (Id. at 187).

{¶72} Diane testified that she did not want her children on drugs, like

Ritalin, to address their behaviors, because the drugs have serious side effects.

(Id. at 188). Diane testified that she did not feel responsible for the fact that

J.B.K., now six years old, was not fully potty trained. (Id. at 189). When asked if

she felt any responsibility for J.B.K. needing to repeat kindergarten, Diane

testified that it was a little bit of the agency’s fault for removing J.B.K. from his

-36- Case Nos. 16-12-15, 16-12-16

old school and a little bit of her fault since she did not enroll him into preschool,

though she tried to at four places unsuccessfully. (Id. at 190). Diane also blamed

H.M.K.’s decline in school to the fact that she was now attending a new school,

and the agency has “uprooted” her life. (Id. at 191-192). Diane testified that her

bad decision-making was in the past, she finished her case plan, and she was now

trying to better her life. (Id. at 194, 199).

{¶73} After reviewing the aforementioned testimony in light of the history

of the case and the GAL reports, the trial court determined that granting WCDJFS

permanent custody of H.M.K. was in her best interest and that H.M.K. cannot be

placed with either of her parents.5 With respect to the latter finding, the trial court

noted that H.M.K.’s father, Michael B., has shown absolutely no interest in the

proceedings, and, Diane has failed to remedy the conditions which caused H.M.K.

to be removed from the home. (Nov. 28, 2012 Entry, Doc. No. 97). The trial

court acknowledged that Diane had completed the case plan goals, but that

“compliance with the case plan, without more, does not entitle a parent to

custody.” (Id., citing In the Matter of McKenzie, 9th Dist. No. 95CA 0015 (Oct.

18, 1995)). The trial court expressed its concern that Diane fails to supervise

H.M.K. who is a highly sexualized young girl who has already exhibited sexual

behaviors. (Id.). The trial court found that Diane was unable to put H.M.K.’s

5 Although this latter finding was supported by the record, it was not necessary in this case since H.M.K. had been in WCDJFS’ temporary custody for twelve consecutive months out of a twenty-two month period. Compare R.C. 2151.414(B)(1)(a), (B)(1)(d).

-37- Case Nos. 16-12-15, 16-12-16

supervision above her own need to have male companionship. (Id.). Diane,

according to the trial court, has brought H.M.K. into an adult world and made her

a co-conspirator in keeping Diane’s secrets. (Id.). The trial court found that,

instead of protecting H.M.K. after being alerted to her highly sexualized nature,

Diane allowed her to live with and Facebook “friend” Mauck, who had several

pictures of scantily clothed and naked women on his Facebook page, amongst

which appeared a photo of H.M.K. (Id.).

{¶74} Diane argues that the trial court’s decision was against the manifest

weight of the evidence because she completed her case plan. Although Diane

reluctantly completed a majority of her case plan, she failed to complete very

critical case plan goals. For example, one of the case plan goals required Diane to

provide H.M.K. with proper supervision at all times and to have anyone

supervising the children screened by the agency. (Amended Case Plan, Doc. No.

41). The record indicates that Diane allowed H.M.K. to be around multiple men

who were not previously screened by the agency, and Diane allowed H.M.K. to

spend several hours at a friend’s house where H.M.K. was not properly supervised

and took a “walk” in the woods with several young boys. While H.M.K. alleged

that nothing happened, it is at least questionable given her high level of curiosity

with sex, her exposure to pornography, and the multiple scratches located on her

-38- Case Nos. 16-12-15, 16-12-16

knees. The GAL reported that this friend’s father was a registered sex offender.

(Sept. 9, 2011 GAL Report).

{¶75} Many of the men Diane allowed near H.M.K. either had sexually-

related convictions or charges, and H.M.K. had nightmares about one of Diane’s

live-in boyfriends (Brad Russell) inappropriately touching her, which raises an

implication that something may have actually occurred—something H.M.K.’s

counselor suggested and something that H.M.K.’s older sister, Kayla, alleged.

(Sept. 13, 2010 GAL Report). Diane allowed H.M.K. to be supervised by Marvin

H.—a sexual offender whose offense involved a young female like H.M.K.—in

violation of the trial court’s order. The case plan specifically required Diane to

keep the children away from individuals with sexual or violent offenses. In

addition to being a sex offender, Marvin H. was convicted of disorderly conduct.

(Oct. 18, 2011 Tr. at 96).

{¶76} Another case plan goal required Diane to remove H.M.K. from all

social media websites, except one, and to ensure that H.M.K.’s age was

appropriately listed on the website. (Id.). While Diane may have followed the

letter of this goal, she certainly did not fulfill its spirit, which was to protect

H.M.K. while she was on social media websites. Instead, Diane allowed H.M.K.

to have unmonitored Facebook usage where she was exposed to Mauck’s

-39- Case Nos. 16-12-15, 16-12-16

inappropriate Facebook photographs and his sexual remarks.6 Simply clicking on

Mauck’s Facebook page (a five-minute task, at most) would have alerted any

reasonable mother to the danger Mauck posed to a young girl like H.M.K. Diane

also failed for several weeks to ensure that H.M.K. friended an agency worker so

that her activity could be monitored. Diane did not just allow Mauck—who was

charged with disseminating sexual material to a minor—to be Facebook friends

with H.M.K.; rather, Diane allowed Mauck to live in the home with her children

while she worked many hours outside of the home. While Diane claimed that

Mauck was never alone with the children, this is highly doubtful given Diane’s

past negligent supervision. While Diane did encourage and attend H.M.K.’s

extracurricular activities as required under the case plan, she showed minimal

interest in H.M.K.’s academic progress, only requesting report cards once. Diane

was unable to provide the name of her children’s teachers, and she failed to meet

with them.

{¶77} Diane argues that the GAL recommended that H.M.K. have

continued contact with Diane despite recommending that the trial court grant

WCDJFS’ motion for permanent custody. While it is true that the GAL testified

that H.M.K. wants and would benefit from some limited, supervised contact with 6 It appears that Mauck’s Facebook comments about having a bisexual woman for him and his girlfriend occurred when Mauck was living with Diane as her boyfriend, implicating Diane, H.M.K.’s mother, in this sexual debauchery. (See Oct. 24, 2012 Tr. at 76, 177-178). The implication that her mother would engage in a three-some with another female could have had devastating effects on H.M.K. Regardless of the timing of the comment, it only exacerbates H.M.K.’s sexual curiosity, which is wholly inappropriate for a girl her age.

-40- Case Nos. 16-12-15, 16-12-16

Diane in the future, the GAL admitted that that issue may not be within the

agency’s control after H.M.K. is adopted. (Oct. 24, 2012 Tr. at 131-132); (Oct. 17,

2012 GAL Report). The GAL also testified that, even if H.M.K. cannot continue

to have contact with Diane, she still recommends granting the motion for

permanent custody. (Tr. at 139).

{¶78} The GAL Reports in this case strongly support the trial court’s grant

of permanent custody. In her September 13, 2010 report, the GAL indicated that

Diane blamed the agency’s involvement on her older daughter, Kayla, for failing

to supervise J.B.K. while she was working. This confirmed Ratliff’s testimony

that Diane repeatedly blamed others for the problems in her family. Diane also

reported that she, Kayla, H.M.K., and J.B.K. were all residing at her friend Andy

Nutter’s home since she lost her previous job. Diane reported that her other

daughter, Tori (age 14), has been in the custody of her father and his new wife for

two years. She reported that Michael B., H.M.K.’s father, was recently released

from prison for a domestic violence conviction (meaning he has had multiple

domestic violence convictions), and he had been convicted of several sexual

offenses prior to 1997. Kayla indicated that her mother’s boyfriend, Brad Russell,

who lived in the home from 2007 to April 2010, had molested and physically

abused her and H.M.K. for years. The school counselor indicated that H.M.K.

dresses inappropriately, and H.M.K. repeats what her mother does with men

-41- Case Nos. 16-12-15, 16-12-16

behind closed doors to boyfriends at school. She also revealed that H.M.K. had

bruises and cuts on her body from Russell.

{¶79} On October 12, 2010, the GAL reported that H.M.K. stated that she,

her mother, and J.B.K. were moving in with Michael B., who has a history of

criminal drug abuse, domestic violence, and sexual imposition. In the September

9, 2011 report, the GAL indicated that she investigated the home of H.M.K.’s

friend, and discovered that the friend’s father was a registered sex offender. The

GAL also reported that Diane allowed H.M.K. to invite a boyfriend to the softball

picnic unbeknownst to the foster-mother. Attached to the report were multiple

police reports involving Diane’s failure to supervise J.B.K., which led to

WCDJFS’ involvement, a police report about a sexual assault that occurred against

Kayla, and police reports concerning multiple domestic violence incidents where

Diane was a victim, including one incident where a knife was used.

{¶80} On October 17, 2012, the GAL reported that Diane continued to have

a relationship with Mauck even after Ratliff indicated that WCDJFS was going to

seek permanent custody of H.M.K. The GAL further reported that, in the summer

of 2012, Mauck was indicted for felony assault on a paramedic after feigning a

heart attack. The GAL recommended that the trial court grant WCDJFS

permanent custody of H.M.K. with the goal of finding a suitable foster/adoptive

placement that would facilitate visitation between H.M.K. and Diane.

-42- Case Nos. 16-12-15, 16-12-16

{¶81} Diane also argues that the trial court ignored the fact that she purged

her contempt and inappropriately relied on speculation about future problems.

The trial court’s judgment entry clearly refutes these claims. The trial court noted

that Diane was permitted to purge her contempt, but the trial court found

disturbing that Diane was more motivated to complete her case plan goals by a

potential jail sentence than the loss of her children. (Nov. 28, 2012 Entry, Doc.

No. 97). The trial court’s judgment entry does not speculate about future events; it

explains Diane’s failure to put her children’s well-being above her own desires.

{¶82} Finally, Diane argues that the trial court failed to account for the fact

that WCDJFS failed to modify the case plan in order to reunify the family. As the

trial court found, WCDJFS made more than reasonable efforts toward

reunification in this case. The original complaints were filed in August 2010; the

trial court granted WCDJFS’ permanent custody of H.M.K. in November 2012,

more than two years later. In the interim, Diane was given multiple opportunities

to achieve reunification, and the case plan was modified multiple times. (Doc.

Nos. 42, 54, 78). Despite WCDJFS’ reasonable efforts, Diane continually made

bad choices, usually involving men, which jeopardized the reunification process.

Even after Diane violated the trial court’s order that she keep the children away

from sex offenders and violent persons, the agency, over the GAL’s objection,

moved the trial court to grant Diane unsupervised visitation, and the trial court,

-43- Case Nos. 16-12-15, 16-12-16

though reluctant, allowed the same. (Doc. Nos. 71-72, 77). Yet, when given this

opportunity, Diane failed to properly supervise H.M.K.’s Facebook activity and

allowed her to go to a friend’s house to swim with young males, where the friend’s

father was a sexual offender. Ratliff testified that, over the course of the past two

years, she has been very frustrated with Diane because, despite her best efforts,

Diane still chooses to place men above the well-being of her children. Even after

WCDJFS filed for permanent custody, Diane was in the process of purchasing a

home with a new man she had known for “over six months” and had dated for one

month, with the idea that he was going to be a father-figure for her children.7

{¶83} After reviewing the entire record herein, we hold that the trial court’s

decision to grant WCDJFS permanent custody of H.M.K. was clearly and

convincingly in H.M.K.’s best interest and not against the manifest weight of the

evidence.

{¶84} Diane’s first and second assignments of error are, therefore,

overruled.

Assignment of Error No. III

The trial court’s dispositional order of relative placement for [J.B.K.] was against the manifest weight of the evidence.

7 We make no observation concerning the man’s character beyond the fact that he, too, thought buying a house with Diane after dating her for a couple months was wise; rather, we observe the fact that Diane thought it advisable to purchase a house with a new boyfriend she had been dating only for a couple months, at most, and to invite her children into that home. These decisions, like many before, demonstrate that Diane lacks the foresight to protect her children and continually thinks of her desire to be in a relationship first and her children’s well-being second.

-44- Case Nos. 16-12-15, 16-12-16

{¶85} In her third assignment of error, Diane argues that the trial court’s

order granting Chris and Tara H. legal custody of J.B.K. was against the manifest

weight of the evidence, because she completed her parenting classes and J.B.K.

was responding better to her new skills; she broke off her relationship with her

boyfriend after she discovered his Facebook page; she has a close bond with

J.B.K.; she purged her contempt; and, she allowed J.B.K. to visit his father,

Marvin H., because she confused orders from two different cases.

{¶86} “A juvenile court has broad discretion in the disposition of an

abused, neglected, or dependent child.” In re C.W., 3d Dist. No. 16-09-26, 2010-

Ohio-2157, ¶ 10, citing R.C. 2151.353(A); Juv.R. 34(D). A reviewing court will

not reverse the trial court’s dispositional decision as being against the manifest

weight of the evidence if it is supported by competent, credible evidence. In re

C.W. at ¶ 11 (citations omitted).

{¶87} Among the trial court’s dispositional options is granting legal

custody of the minor child to a person identified in the complaint or in a motion

filed prior to the dispositional hearing. R.C. 2151.353(A)(3). Whether the trial

court is issuing its first disposition or modifying its disposition, the best interest of

the child is the trial court’s primary consideration. In re C.W. at ¶ 11 (citations

omitted); R.C. 2151.42(A). The trial court must also consider which situation will

best promote the child’s “care, protection, and mental and physical development”

-45- Case Nos. 16-12-15, 16-12-16

understanding that a child should be separated from his family environment “only

when necessary for the child’s welfare or in the interests of public safety.” In re

C.W. at ¶ 11, citing R.C. 2151.01(A).

{¶88} R.C. 2151.353 does not provide factors that the court should consider

for determining the child’s best interests in a request for legal custody. In re E.A.,

8th Dist. No. 99065, 2013-Ohio-1193, ¶ 13, citing In re G.M., 8th Dist. No. 95410,

2011-Ohio-4090, ¶ 16; In re Pryor, 86 Ohio App.3d 327, 336 (4th Dist.1993).

While not specifically required, to determine the best interest of a child for

purposes of R.C. 2151.353(A)(3), trial courts may be guided by the factors listed

in R.C. 3109.04(F)(1) or 2151.414(D). In re G.M., 2011-Ohio-4090, at ¶ 15

(either set of factors can be applied); In re Metz/Fonner, 5th Dist. No.

2007CA00175, 2008-Ohio-1390, ¶ 42-46 (applying factors from both sections);

Pryor, 86 Ohio App.3d at 336 (applying R.C. 3109.04(F)(1) factors); In re

Bradford, 10th Dist. No. 01AP-1151, 2002-Ohio-4013, ¶ 49 (same); In re Memic,

11th Dist. Nos. 2006-L-049, 2006-L-050, and 2006-L-051, 2006-Ohio-6346, ¶ 26

(same); In re K.B., 12th Dist. No. CA2012-03-063, 2013-Ohio-858, ¶ 11 (same);

In re E.A., 2013-Ohio-1193, at ¶ (applying R.C. 2151.414(D) factors); In re T.A.,

9th Dist. No. 22954, 2006-Ohio-4468, ¶ 17 (same). See also In re Bixler, 3d Dist.

Nos. 13-05-41 and 13-05-42, 2006-Ohio-3533, ¶ 25, fn. 1 (R.C. 3109.04 is

sufficient to make best interest determination since Chapter 21 does not provide a

-46- Case Nos. 16-12-15, 16-12-16

definitive standard). Quite frankly, the differences in the best interest factors in

these two provisions are of little consequence, since the factors are merely

instructive on the question of a child’s best interests. In re G.M., 2011-Ohio-4090,

at ¶ 16.

{¶89} Although the trial court herein did not cite which best interest factors

it applied—those outlined in R.C. 3109.04 or 2514.414(D)—the trial court’s

analysis suggests it considered those factors listed in R.C. 2151.414(D). (Nov. 7,

2012 JE, Doc. No. 118). The trial court noted many of the same concerns it had

with Diane in H.M.K.’s case in J.B.K.’s case—most of those concerns stemming

from Diane’s inability to place her children’s needs, even the most basic need of

adequate supervision, above her need for male companionship. (Id.).

{¶90} The trial court observed that WCDJFS’ initial involvement stemmed

from Diane leaving H.M.K., a ten-year-old, in charge of supervising J.B.K., a

four-year-old, and H.M.K. allowing J.B.K. to escape from the home. (Id.). The

trial court noted that J.B.K., now six years old, is not properly potty trained, has

disobedience problems, and struggles academically, which is due, in part, to

Diane’s failure to ensure J.B.K. was enrolled in Head Start, per the case plan.

(Id.). Diane was unable to name the school J.B.K. attends or his teacher. (Id.).

The trial court found troubling not Diane’s decision to forgo medication to address

J.B.K.’s behavioral problems; but rather, Diane’s failure to implement the

-47- Case Nos. 16-12-15, 16-12-16

alternative strategy she articulated for dealing with J.B.K.’s behavioral problems.

(Id.). The trial court also found troubling Diane’s decision to purchase a home in

October with a new boyfriend who she started dating in August—a man that had

not been screened by the agency and whom Diane intended to be a father-figure

for the children. (Id.). The bottom line, according to the trial court, was that once

Diane “expends the energy necessary to keep her job and the energy necessary to

obtain and maintain a relationship with a man, she has nothing left to offer

[J.B.K.].” (Id.). The trial court noted Chris and Tara H. are willing to help J.B.K.

and have provided him with the attention and discipline he deserves, and J.B.K. is

progressing in this stable and safe environment. (Id.).

{¶91} Upon review of the entire record herein, we cannot conclude that the

trial court abused its discretion by awarding Chris and Tara H. legal custody of

J.B.K. nor was the trial court’s decision against the manifest weight of the

evidence. In addition to the testimony above with respect to H.M.K. which is

relevant here, it was noted several times by case workers and foster parents, alike,

the lack of supervision that Diane provided J.B.K. During several of the

supervised visitation periods, Diane failed to properly supervise J.B.K. while she

was busy talking or texting on her cell phone or talking to park patrons—time she

should have spent visiting and supervising her children. (Oct. 24, 2012 Tr. at 136-

137); (Oct. 18, 2011 Tr. at 15-16, 44-46, 53-55, 74-76); (Sept. 9, 2011 GAL

-48- Case Nos. 16-12-15, 16-12-16

Report) (during the July 14, 2011 visitation, Diane spent 45 minutes talking to a

friend rather than supervising/visiting J.B.K.); (during Aug. 11, 2011 visit, Diane

was talking with a male park patron on bicycle for over 45 minutes; Kayla spent

more time with J.B.K. than Diane); (Oct. 12, 2011 GAL Report) (during October

18, 2011 visit, Diane failed to supervise J.B.K. while he was kicking at other

children who were attempting to go down the slide; and then, J.B.K. ran down the

steps of the slide rather than sliding down the slide).8 Diane failed to take an

interest in J.B.K.’s academic success and failed to provide him with proper

discipline that further exacerbated his academic difficulties. J.B.K. was also

exhibiting sexualized behavior in the first foster home, and Diane’s track record

with her other children, including those not parties to this case, is concerning for

J.B.K.’s future. Diane failed to provide J.B.K. with proper discipline, as well,

which affected his academic performance.

{¶92} Diane’s arguments are meritless. As we have already mentioned, she

did not complete the most important case plan goals, as she alleges. Diane’s

excuse for allowing Marvin H. visitation with J.B.K.—that she confused orders

from two different cases—is not credible since she acknowledged in open court

that she knew the children were not supposed to be around sexual offenders. (June

8 The incidents from the GAL reports are not exhaustive but merely illustrative—to list all of the incidents of Diane’s failed supervision would take several pages. This is especially troubling given that Diane knew she was being monitored during these visits and yet still failed to adequately supervise J.B.K. subjecting him to very serious dangers, including automobile traffic on several instances.

-49- Case Nos. 16-12-15, 16-12-16

28, 2011 Tr. at 12-13); (Oct. 18, 2011 Tr. at 52). Besides that, even if Diane was

confused about Marvin H.’s visitation rights with respect to J.B.K., that does not

explain why she allowed Marvin H. to visit H.M.K., with whom he had no

relationship or familial connection, for an overnight visit. (Id.); (Id. at 23-24, 51-

52, 95). Finally, Diane argues that she ended her relationship with Mauck after

the agency revealed to her the inappropriate content on his Facebook page. This

argument misses the mark, too. Diane tends to make the right decisions when she

is forced to do so, but she failed repeatedly to be proactive to protect the children

in the first place. The fact that Diane is playing house again with a man she met

six months ago without previously screening this man through the agency

demonstrates that she has not learned from her past mistakes but perpetually

repeats them. The trial court’s decision to grant Chris and Tara H. legal custody

of J.B.K. was supported by the record and not an abuse of its discretion.

{¶93} Diane’s third assignment of error is, therefore, overruled.

Assignment of Error No. IV

The Wyandot County Job and Family Services failed its duty to use reasonable case planning and diligent efforts at reunification.

Assignment of Error No. V

The Wyandot County Job and Family Services did not make a good faith effort to reunify the Appellant with her children.

-50- Case Nos. 16-12-15, 16-12-16

{¶94} In her fourth and fifth assignments of error, Diane argues that

WCDJFS failed to make reasonable efforts and amend the case plan to achieve

reunification.9

{¶95} R.C. 2151.412 requires the agency to develop case plans with the

general goal of reunification. R.C. 2151.419 requires that the trial court find at the

adjudication that the agency has made reasonable efforts to return the child to the

child’s home or was not required to do so. “Reasonable efforts means that a

children’s services agency must act diligently and provide services appropriate to

the family’s need to prevent the child’s removal or as a predicate to reunification.”

In re D.A., 6th Dist. No. L-11-1197, 2012-Ohio-1104, ¶ 30 (citations omitted).

“‘Reasonable efforts’ does not mean all available efforts. Otherwise, there would

always be an argument that one more additional service, no matter how remote,

may have made reunification possible.” In re M.A.P., 12th Dist. Nos. CA2012-08-

164 and CA2012-08-165, 2013-Ohio-655, ¶ 47, citing In re K.L., 12th Dist. No.

CA2012-08-062, 2013-Ohio-12, ¶ 18.

{¶96} The record in this case demonstrates that the agency made reasonable

efforts toward reunification. As previously highlighted, the case plans were

amended multiple times to address Diane’s issues. (Case No. C 2102010, Doc.

9 Assignment of error five on page 16 of Diane’s brief states “CPSU did not have make [sic] a good faith effort to reunify the appellant with his children.” (Emphasis added). It appears that the word “his” is a typographical error and both the fourth and fifth assignments of error relate to Diane, the only party to this appeal.

-51- Case Nos. 16-12-15, 16-12-16

Nos. 42, 55. 78); (Case No. C 2102011, Doc. Nos. 39, 60, 92). The agency, over

the GAL’s objection, requested that Diane be granted unsupervised visitations, and

Diane failed to properly supervise the children during these unsupervised

visitations. (Id., Doc. No. 71); (Id., Doc. No. 84). The agency also worked around

Diane’s busy work schedule to accommodate visitation periods, allowing her to

exercise supervised visitation on several weekends. (Oct. 24, 2012 Tr. at 104-

111). The agency provided Diane with parenting classes, budgeting classes, and

counseling for her and her children. (Id. at 67-68). Still, Diane continued to make

bad decisions subjecting her children to dangerous men.

{¶97} Ratliff, the social worker assigned to the cases, testified that “Diane

appears to put boyfriends before her children. * * * She exposed them to men who

have violent history, who have been convicted of sexual offenses against children.

And * * * some of her children have been sexually abused.” (Oct. 24, 2012 Tr. at

69). Ratliff further testified:

I never had to explain things so many times to one person and then

just continue to ignore everything I say. I don’t know if it’s ignoring

me or just not getting it. I think she gets it. I think that she just

chooses not to listen to me. I just don’t know. We have given her so

many opportunities to get her kids back and to work towards

reunification. And it’s like every step we take forward she makes us

-52- Case Nos. 16-12-15, 16-12-16

take five steps back because of the decisions that she makes even

though everything is in place for her to get her kids back.

I mean, she was doing her Case Plan and everything. She was

doing what she needed to do, but then she has to go and make a poor

decision of letting the children go with Marvin [H.], when it was

very specific that they are not supposed to go there and she did it

anyways. (Id. at 87-88).

{¶98} As Ratliff noted, no case plan modification or further counseling

would have corrected the major problem in this case—Diane’s decision to elevate

her relationships with men over the well-being of her children. Despite the

countless admonitions to change, Diane failed to do so, and, at some point, the

children can no longer be victims of Diane’s poor decision-making.

Consequently, we cannot find that the trial court erred in determining that the

agency made reasonable efforts toward reunification in this case.

{¶99} Diane’s fourth and fifth assignments of error are, therefore,

{¶100} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed WILLAMOWSKI and SHAW, J.J., concur. /jlr

-53-