In re J.H.

2021 Ohio 4283

Opinion

[Cite as In re J.H., 2021-Ohio-4283.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: J. H. C.A. No. 29970

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 20 02 0116

DECISION AND JOURNAL ENTRY

Dated: December 8, 2021

SUTTON, Judge.

{¶1} Appellant, K.L. (“Mother”) appeals from a judgment of the Summit County Court

of Common Pleas, Juvenile Division, that terminated her parental rights to her minor child and

placed the child in the permanent custody of Summit County Children Services Board (“CSB”).

This Court affirms.

I.

{¶2} Mother is the biological mother of J.H., born September 1, 2006. CSB has been

unable to identify the child’s biological father. Mother also has adult children who are not

parties to this appeal.

{¶3} On February 6, 2020, CSB filed a complaint, alleging that J.H. was an abused,

neglected, and dependent child because the agency had received several reports about then 13-

year-old J.H.’s behavioral problems and Mother’s inability or unwillingness to supervise the

child. During the previous two months, CSB had received at least four intake referrals involving 2

this child. On one occasion, Mother had reported to the police that J.H. was missing and, when

the police found J.H., they could not locate Mother. On another occasion, Mother informed CSB

personnel that she could not control the child’s behavior and wanted nothing to do with him.

{¶4} CSB would later learn that, during the past several years, Mother often left J.H.

with other adults for extended periods of time or at home alone and that J.H. often ran away from

home. Although CSB had not filed any prior juvenile court cases pertaining to J.H., it had

received approximately 40 intake referrals pertaining to him and his older siblings, who are now

adults. During 2018 and 2019, J.H. was removed from Mother’s home multiple times pursuant

to Juv.R. 6.

{¶5} The juvenile court adjudicated J.H. a dependent child and later placed him in the

temporary custody of CSB. The case plan focused primarily on mental health treatment for both

J.H. and Mother. J.H. engaged in individual counseling and psychiatric treatment throughout

this case and his behavior, emotional state, and school performance significantly improved.

Mother, however, engaged in counseling only sporadically and failed to work with her counselor

on how to improve her relationship with J.H. Throughout this case, Mother blamed J.H.’s

removal from her custody on the child’s behavioral problems and did not gain any insight into

how she may have contributed to the child’s removal from the home. Mother insisted that she

did not need any case plan services.

{¶6} On October 20, 2020, CSB moved to suspend Mother’s visits with J.H., alleging

that: Mother had missed more than half of her scheduled visits with J.H.; Mother and J.H. did not

communicate much during the visits; after CSB increased the length of the visits from one hour

to two hours, Mother asked that the visits be reduced to one hour; J.H. had repeatedly voiced his 3

opposition to visiting Mother; and the child’s counselor and the guardian ad litem believed that

suspending visits was in the best interest of J.H. Visitation was suspended shortly afterward.

{¶7} CSB later moved for permanent custody of J.H., alleging that J.H. could not be

returned to Mother’s custody within a reasonable time or should not be returned to her and that

permanent custody was in the child’s best interest. R.C. 2151.414(B)(1)(a). Following a hearing

on the motion, the trial court terminated parental rights and placed J.H. in the permanent custody

of CSB. Mother appeals and raises two assignments of error, which will be addressed together

because they are closely related.

II.

ASSIGNMENT OR ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED THE PARENTS’ RIGHTS AND PLACED THE CHILD IN THE PERMANENT CUSTODY OF [CSB] WHEN THE AGENCY DID NOT COMPLY WITH COURT ORDERS AND PROVIDE REASONABLE REUNIFICATION[] EFFORTS BY PROVIDING A REFERRAL FOR FAMILY COUNSELING.

ASSIGNMENT OR ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT GRANTED PERMANENT CUSTODY AND SHOULD HAVE GRANTED A SIX-MONTH EXTENSION, [AS ITS JUDGMENT WAS] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶8} Mother’s assignments of error challenge the merits of the trial court’s permanent

custody decision. Before a juvenile court may terminate parental rights and award permanent

custody of a child to a proper moving agency, it must find clear and convincing evidence of both

prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the

temporary custody of the agency for at least 12 months of a consecutive 22-month period; the

child or another child of the same parent has been adjudicated abused, neglected, or dependent 4

three times; or that the child cannot be placed with either parent, based on an analysis under R.C.

2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of

the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and

2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). Clear and convincing

evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.” (Internal quotations omitted.) In re Adoption of Holcomb,

18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph

three of the syllabus.

{¶9} The trial court found that J.H. could not be placed with Mother within a

reasonable time or should not be placed with her because Mother failed to substantially remedy

the conditions that caused J.H. to be placed outside the home and, alternatively, that Mother

demonstrated a lack of commitment to J.H. See R.C. 2151.414(B)(1)(a); 2151.414(E)(1); and

2151.414(E)(4). The court also found that permanent custody was in the best interest of J.H.

Mother does not directly dispute the evidence supporting the trial court’s findings, as it was not

disputed at the hearing that the parent-child relationship between Mother and J.H. had

deteriorated to the point that J.H. no longer wanted to live with Mother or even see or speak to

her.

{¶10} Mother’s defense to the permanent custody motion at the hearing and again on

appeal is that, although she attempted to work toward reunification with J.H., she was prevented

from doing so by circumstances that were beyond her control. Specifically, she asserts that she

was unable to visit J.H. or work toward repairing her relationship with him because of (1) health

restrictions caused by the Covid-19 pandemic; and (2) CSB’s failure to comply with a specific 5

requirement of the case plan and a subsequent court order that CSB arrange for her to have

family counseling with J.H.

{¶11} Although Mother purports to base the second part of her argument on whether

CSB made “reasonable efforts” to reunify her with J.H., her argument is not actually an

argument about the reasonableness of the agency’s reunification efforts. “Reasonable efforts” is

a broad term used throughout R.C. Chapter 2151, but is not defined by statute. The Ohio

Supreme Court has explained that the term “reasonable efforts” broadly refers to “[t]he state’s

efforts to resolve the threat to the child before removing the child or to permit the child to return

home after the threat is removed[.]’” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28,

quoting Crossley, Defining Reasonable Efforts: Demystifying the State’s Burden Under Federal

Child Protection Legislation, 12 B.U.Pub.Int.L.J. 259, 260 (2003).

{¶12} Mother does not challenge the agency’s overall efforts to assist her in working

toward reunification. Instead, she asserts that CSB deliberately impeded her reunification efforts

by disregarding an explicit order of the court. According to Mother, CSB failed to comply with

an order of the trial court that it provide Mother and J.H. with family counseling. We will

address each of Mother’s defenses separately.

Covid-19 Health Restrictions

{¶13} Mother begins by arguing that she was prevented from having contact with J.H.

for several months during this case because Covid-19 health restrictions precluded in-person

visits with J.H. and she did not have the capability to participate in Zoom video calls. Mother

asserts in her brief that Covid-19 restrictions prevented in-person visits for nearly four months.

The only evidence presented at the hearing, however, was that Mother was unable to visit J.H. in

person for approximately two months at the beginning of the pandemic. In-person visits 6

resumed during June 2020. Moreover, when Mother was permitted to see J.H. in person, she

attended less than half of the scheduled visits and she and J.H. had only “minimal” interaction.

{¶14} As noted above, CSB later increased Mother’s weekly visits from one hour to two

hours, but Mother asked that the visits be decreased again to one hour per week. Mother offered

no explanation for the change. Mother’s visits were eventually suspended because of Mother’s

lack of attendance and active participation in the visits, the child’s expressed wishes, and the

recommendations of the child’s counselor and the guardian ad litem. The evidence demonstrated

that Mother’s lack of interaction with J.H. was primarily the result of her own lack of effort to

see him, not the health restrictions caused by the Covid-19 pandemic.

{¶15} Next, Mother argues that she was prevented from working toward reunification

with J.H. because she was never able to engage in family counseling with him to work through

their differences. She maintains that CSB violated the case plan and a court order by failing to

provide them with family counseling. Although Mother asserts that family counseling was

mandated in this case, the record reveals that any requirement for family counseling was left to

the discretion of the counselors for Mother and J.H.

{¶16} The case plan, which became binding upon all parties when it was adopted,

required that Mother obtain a mental health assessment and follow all treatment

recommendations, “including, but not limited to, individual, family, and/or group counseling[.]”

See R.C. 2151.412(F)(1). A subsequent order of the trial court required CSB to arrange for

Mother and J.H. to have family counseling “depending upon the recommendations of their

counselors.” The evidence at the hearing was clear, however, that neither counselor had

recommended family counseling. 7

{¶17} Mother’s counselor testified that Mother did not begin counseling until several

months after the case plan was adopted. Moreover, the counselor had recommended that Mother

engage in counseling for one to two hours per week, but Mother attended sessions only

sporadically and rarely participated for a full one to two hours. Mother never spoke to her

counselor about her involvement with CSB or her problems communicating with J.H. Mother’s

counselor explained that Mother’s participation was “so inconsistent” that she and Mother had to

reacquaint themselves and establish a rapport every time they had a session. According to

Mother’s counselor, it was essentially like starting over again each time they met.

{¶18} When the counselor spoke to Mother about her lack of participation, Mother

responded that she would engage in counseling more consistently when she felt like opening up.

Because Mother attended counseling sessions infrequently, she had not made much progress and

would likely be terminated by the agency for lack of participation. The counselor testified that

she did not recommend family counseling because of Mother’s lack of participation.

{¶19} The child’s counselor testified that Mother never reached out to him to discuss

family counseling with J.H. He also had not spoken to Mother’s counselor because Mother

refused to sign a release. The child’s counselor had not recommended family counseling

because J.H. did not want to talk about Mother or have counseling with her. Because neither

counselor recommended family counseling between Mother and J.H., CSB had no obligation to

arrange it.

{¶20} Mother has failed to demonstrate any merit to her defenses to the permanent

custody motion. Consequently, her first and second assignments of error are overruled. 8

III.

{¶21} Mother’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETTY SUTTON FOR THE COURT

HENSAL, P. J. CALLAHAN, J. CONCUR. 9

APPEARANCES:

ANGELINA GINGO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

MICHAEL GOEBL, Guardian ad Litem.