[Cite as In re J.M., 2012-Ohio-4705.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN RE: J.M., K.M., M.M. : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. : : : Case No. 2012-CA-23 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court of Common Pleas, Juvenile Division, Case Nos. 2010-AB-0081, 2010-AB-0082, 2010- AB-0083
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 8, 2012
APPEARANCES:
TREVOR J. INNOCENTI JULIE BLAISDELL 117 W. Main Street, Ste. 206 239 West Main Street Lancaster, OH 43130 Lancaster, OH 43130
DAVID SHAVER BRIAN HERZBERGER 647 Hill Road North, Ste. B 125 W. Waterloo Street Pickerington, OH 43147 Canal Winchester, OH 43110 [Cite as In re J.M., 2012-Ohio-4705.]
Gwin, P.J.
{¶1} Appellants the minor children J.M., K.M. and M.M. [“Children”] appeal the
March 23, 2012, judgment entry of the Fairfield County Court of Common Pleas,
Juvenile Court Division, which placed J.M. in a planned permanent living arrangement
with the agency and which terminated adoptive-mother Paula Mayo’s1 parental rights
with respect to her minor children M.M. and K.M. and granted permanent custody of the
children to appellee, Fairfield County Child Protective Services (hereinafter “FCCPS”).
I. PROCEDURAL HISTORY
{¶2} J.M.’s date of birth is February 18, 1995. K. M.’s date of birth is January 7,
1998. M.M.'s date of birth is March 26, 2001.
{¶3} FCCPS removed the children from their biological mother and their
biological father’s and assumed custody of the girls. The girls were then placed in the
legal custody of their biological maternal grandmother. Tragically, the biological maternal
grandmother was killed in an automobile accident. No custody provisions had been
made concerning these children prior to the death of the biological maternal grandmother
and, therefore, the children were again placed back in the custody of FCCPS. J. M., K.
M. and M. M. were eventually placed in the permanent custody of FCCPS and their
biological maternal great-aunt, Paula Mayo, adopted them as a single parent after the
Agency assumed permanent custody. Paula Mayo is sixty-three years old.
{¶4} A voluntarily agreement for care was signed by Paula Mayo on April 15,
2010, giving FCCPS custody of the children. On June 29, 2010, FCCPS filed
dependency/neglect complains on behalf of the children. On July 1, 2010, the children
were placed in the temporary shelter custody of FCCPS and on August 17, 2010, the 1 Adoptive mother has appealed in 5th District No. 2012 CA 00018. Fairfield County, Case No. 2012-CA-23 3
children were found to be dependent minors and were placed in the temporary custody
of FCCPS. On November 2, 2010, FCCPS filed a motion requesting that J. M. be placed
in a planned permanent living arrangement with the Agency and filed motions requesting
that K. M. and M. M. be placed in the permanent custody of FCCPS.
{¶5} The trial on the motions took place on September 13, 2011, December 8,
2011 and concluded on January 31, 2012. The Court heard testimony from Jolyn Pugh,
Paula Mayo, Lesley Greenwood, Jasmine Mayo, Deborah Hochbein, Ronda Brown, and
Brian Herzberger. The Court noted that on September 6, 2011, Brian Herzberger filed
the Guardian Ad Litem's report, which supported the Agency's motion for permanent
custody. At the conclusion of all of the testimony, the Court ordered the parties to provide
proposed findings of fact and conclusions of law to the Court.
{¶6} A. Permanent Custody Trial.
{¶7} When FCCPS removed the children in April 2010, they found the upstairs
toilet primarily used by the girls "overflowing" with human feces and a knee-high layer of
rotting food and garbage in the girls' bedroom. Soiled clothing and underpants belonging
to the children were strewn about the room. Gnats were found throughout the home,
attracted by the rotting food and garbage. Ms. Mayo also showed signs of hoarding
behavior. During her psychological evaluations, Ms. Mayo described her house
resembling something from the TV show "Hoarders."
{¶8} Although the conditions of her home had improved between 2010 and
January 2012, the improvement was intermittent. The home met minimal standards for
roughly thirty to sixty days, but then regressed. Those standards involved removal of Fairfield County, Case No. 2012-CA-23 4
animal and human feces, disposal of garbage, having pathways in the home that made it
accessible for a person with mobility issues and a child with special needs.
{¶9} There had been significant periods where FCCPS was unable to observe
and assess Ms. Mayo's home because Ms. Mayo had cancelled the visits. During an
unannounced visit in December 2011, the Agency was only permitted to view Ms.
Mayo's living room. While the room met minimal standards, the Agency could not assess
the rest of the house during the unannounced visit. Ms. Mayo cancelled the appointment
scheduled for the month of January 2012.
{¶10} On January 31, 2012, Ms. Mayo presented current photographs of her
home, but the photographs did not include the upstairs area that had previously been
filled with garbage and rotting food. No photos were presented of the areas where the
children would be living. FCCPS stated that Ms. Mayo did not successfully comply with
that aspect of the case plan.
{¶11} FCCPS was also concerned about Ms. Mayo's financial ability to maintain
her home. Ms. Mayo had an income of $1,155 per month and a mortgage payment of
$1,121 per month. Ms. Mayo had not made a mortgage payment on her home since
August 2011. Ms. Mayo was confident that she would receive a mortgage loan
modification, but had not established that she would actually obtain the loan modification.
Ms. Maya's testified that if the mortgage modification was not granted she would return
to work.
{¶12} Ms. Mayo exhibited evidence of confusion, which would significantly affect
her ability to parent. Ms. Mayo denied being impaired by medications or having memory
problems caused by medications. Throughout the history of the case, however, Ms. Fairfield County, Case No. 2012-CA-23 5
Mayo had difficulty forming sentences, speech delays, confusion about appointments,
and difficulty remembering conversations.
{¶13} Ms. Mayo missed an appointment with her psychologist, Evie Adlemen
whom she was to see every two weeks. When Ms. Adlemen called Ms. Mayo about the
missed appointment, Ms. Mayo sounded "foggy" and said that amount of medication she
had taken the night before for her pain caused her to oversleep. A child psychologist in
the community refused to see Ms. Mayo because of her numerous missed appointments
and cancellations. Ms. Mayo's arthritis physician, who must see her every three months
to refill her prescriptions, refused to refill her medications because of the number of times
she has cancelled or missed appointments.
{¶14} FCCPS presented evidence that the Agency become involved in April
2010 concerning a State Highway Patrol report where Ms. Mayo was found driving with
the children in her vehicle and appeared to be under the influence of a substance. At the
outset of the case, she was unable to identify what medications she was taking or why
she was taking them. Ms. Mayo "had little recollection of how she was actually acting at
[the] time" of the girls' removal, but did recall that her brother told her that she was acting
like a "space cadet.” During her psychological evaluation, she was unable to identify the
first president of the United States, though she was readily able to do so during her trial.
On several occasions, she was observed with dry mouth, her mouth hanging down to the
side, or having difficulties with comprehension. Occasions where she appeared to be
under the influence of a substance continued through 2011. (In May 2011, Ms. Mayo
was observed slurring her speech and appeared not to be her "normal self." Fairfield County, Case No. 2012-CA-23 6
{¶15} Between December 2011 and the January 2012, Ms. Mayo became
confused and disoriented on her way to a Zanesville, Ohio appointment for J.M. at the
Agency. Ms. Mayo had been to the Zanesville facility at least ten times before. Despite
this, she had trouble driving to the facility, and trouble describing her current location
when she contacted the Agency for directions. Although Ms. Mayo's grasp on what
medications she took had improved by January 2012, she continued to miss
appointments, and at times seemed unsure of what physicians she was seeing and why
she was seeing them.
{¶16} Concerns were also introduced concerning Ms. Mayo’s mobility. The
bedrooms in Ms. Mayo's home were on the second floor and the third floor was an attic.
If the children were returned, their rooms would have been on the second floor of the
house, and that the third floor would have become a play area for them. Ms. Mayo stated
that she had no problems going up or down stairs. During her counseling sessions, Ms.
Mayo said that her physical limitations restricted her from going upstairs to the second
floor, which was why she "wasn't sure what it was like ... where the girls’ bedrooms...
were located."
{¶17} In an April 2011 home visit, she went upstairs on her hands and knees.
Even during visits to the FCCPS, Ms. Mayo had "extreme difficulty" walking between the
lobby and the visiting room, and used the Agency's wheelchair because of her pain. The
staircase leading to the proposed play area for the children was "like a ladder with steps
in between." Because they are steep, "tricky" and lack a railing the third floor stairs are
more difficult to use than normal stairs. Fairfield County, Case No. 2012-CA-23 7
{¶18} The girls needed constant supervision because J.M., K.M. and M.M. were
special needs children. The girls needed constant supervisions, both inside and outside
the home. Supervision inside the home was important because they have a history of
abusive behavior amongst themselves. J.M. had been physically aggressive to her
sisters, who have expressed fear of her. Although Ms. Mayo recognized the importance
of being able to access the upstairs areas of her home, Ms. Mayo did not believe that
she has any physical limitations that would have made her unable to provide adequate
supervision for the children.
{¶19} Outside the home, Ms. Mayo's mobility was a concern because J.M. had a
history of running away. Ms. Mayo, who did not have a plan to prevent J.M. from running
away, testified that she would physically pursue in her car or scooter if J.M. ran away.
Ms. Mayo had not been seen using the motorized scooter outside the home. Ms. Mayo
kept the scooter in her home. The scooter was extremely heavy. Even two people could
not carry the scooter out by hand, and a ramp was necessary to take the scooter out of
the home. Ms. Mayo testified that she had a temporary ramp, but the Agency had not
seen it. Ronda Brown, a good friend of Ms. Mayo's, had not seen the ramp either.
Additionally, the children needed constant supervision outside the home because they
could not have been left alone due to the risk of victimization. J.M. and K.M. were
extremely vulnerable to victimization, and M.M. was also vulnerable to victimization.
{¶20} Pursuant to the request of the children's attorney, the court conducted an
in-camera interview of the children on September 13, 2011. The children indicated that
they wanted to go home to live with their mother, Paula Mayo. Additionally, J.M. testified
that she has grown since being removed from Paula Mayo's home and would comply Fairfield County, Case No. 2012-CA-23 8
with the rules of the house. J.M. further testified that she was nearing her seventeenth
birthday and would return to Paula Mayo's home upon turning 18.
{¶21} Jody Ash and Miranda Zircher, the children's counselors, stated that Paula
had made progress in recent months with her treatment goals. They also stated that
there is a strong bond between Paula Mayo and the Children and that severing this bond
would be detrimental to the children.
{¶22} Robin A. Rippeth, the psychologist who completed the Psychological
Evaluation for Paula Mayo, testified that she recommended that the agency begin home-
based therapy with the children and Ms. Mayo. FCCPS never followed the
recommendation that in home visitation begin.
{¶23} Based upon the testimony the trial court found that "it is undisputed that
there is a significant bond between Paula Mayo, J. M., K. M. and M. M."
{¶24} B. the Trial Court’s Decision.
{¶25} The trial court upon reviewing the evidence made the following findings,
Although currently, the exact cause of Paula Mayo's confusion is
unknown, Paula Mayo still exhibits evidence of confusion which would
significantly impact her ability to parent This aspect of the case plan has
not been successfully completed, and is relevant to the Court.
***
Paula Mayo's mobility issues have a significant impact on her ability
to supervise these children and are relevant to the Court the mobility
issues, as a portion of Paula Mayo's health issues, have not been Fairfield County, Case No. 2012-CA-23 9
resolved and Paula Mayo has not successfully complied with this aspect
of the case plan.
In April 2010, upon the removal of the girls from Paula Mayo's
home, the hygiene of the girls was extremely poor. Jasmine Mayo could
not recall the last time she had bathed. Throughout the history of this
case, Paula Mayo has exhibited times when her clothes are dirty and she
has an odor of her body about her person. Given Paula Mayo's hygiene
and/or mobility issues, it is going to be extremely difficult for her to
maintain appropriate hygiene for the children. Paula Mayo has not
successfully completed this aspect of the case plan and this hygiene issue
is relevant to the Court.
Paula Mayo believes that she will qualify for a loan reduction
program, but it has not yet been established that she will definitely obtain
the loan reduction. Paula Mayo does have a stable source of income
through her retirement plan. However, she has been behind on many of
her bills, has not paid her mortgage since August 2011, has used check
cashing companies on at least two occasions, and throughout the history
of this case, has not paid any child support for the children. Paula Mayo
has no explanation as to how her bills got so far behind. There is still a
viable concern as to whether Paula Mayo can financially provide for Fairfield County, Case No. 2012-CA-23 10
herself and the children, and therefore, this aspect of the Case plan has
not been successfully completed and is relevant to the Court.
Paula Mayo has minimized her health and financial issues and has
not consistently been forthcoming with information. In late 2011, Paula
Mayo had a staph infection and did not report it Fairfield County Child
Protective Services even though she visited her children at Fairfield
County Child Protective Services. This failure to disclose potentially
placed her children, Agency case workers and employees, and all other
families who frequent Fairfield County Child Protective Services to be at
risk to developing a staph infection. This failure to disclose her medical
condition could be potentially dangerous if the children were returned to
her care and is relevant to the Court.
Paula Mayo has not utilized this counseling service. Paula Mayo
focuses on her hoarding behavior more than working on parenting issues.
Paula Mayo has not been consistent in counseling, as there was a period
of approximately two (2) months where Paula Mayo did not attend any
counseling sessions. Paula Mayo has a simplistic view of this case that if
the house is clean, the children can return. Paula Mayo stated that the
focus of her counseling shifted to parenting issues during her most recent
appointment with Dr. Adelman, which occurred one (1) week prior to the
January 31, 2012 trial. It is a major concern that Paula Mayo has been Fairfield County, Case No. 2012-CA-23 11
seeing Dr. Adelman for almost one (1) year, yet the main focus of the
counseling only recently became parenting issues. It is also concerning
that Paula Mayo does not recognize all of the limitations of the children
and represents in counseling that the girls are higher functioning than is
truly the case.
Through Fairfield County Child Protective Services' facilitation,
Paula Mayo has also had the opportunity to engage in counseling with the
mental health counselors for J.M., K.M. and M.M. With respect to J.M.’s
counselor, Paula Mayo has not utilized this resource. Paula Mayo has
attended four (4) counseling sessions and has missed four (4) counseling
sessions. It is therapeutically recommended for J.M. that J.M. be living in
an intensely supervised and structured environment with a caregiver who
has a clear understanding of the special needs of J.M. J.M. has
oppositional behaviors, has threatened suicide, has significant sexualized
behavior, has sexual identity issues, and is extremely vulnerable for
abuse. Paula Mayo does not have the appropriate insight to the severity of
jasmine Mayo's mental health and safety issues, and Paula Mayo
minimizes these issues. Paula Mayo minimizes her role in the removal of
J.M. from the home by stating that things would be different if J.M. came
home, as J.M. "has learned her lesson." Paula Mayo has not formulated a
realistic plan to deal with J.M.’s behavior. J.M. has been described as "a
ticking time bomb," yet Paula Mayo's plan to deal with J.M.’s behaviors is Fairfield County, Case No. 2012-CA-23 12
simply to watch her or that J.M. just will not behave that way if returned to
Paula Mayo.
K.M. has multiple handicaps and will require lifetime care. K.M. has
physical issues which require her to wear adult diapers. These physical
issues create hygiene issues, as well, as K.M. often requires assistance to
keep herself clean. K.M. has major cognitive issues to the point where it is
difficult for K.M. to form words. K.M. is easily overwhelmed and is
extremely vulnerable to victimization. K.M. has limited social skills and
requires a structured environment with one-on-one attention and
guidance. Paula Mayo minimizes K.M.’s issues by stating that K.M. does
not present a challenge from a parenting perspective. Paula Mayo also
minimizes K.M.’s physical issues by saying that K.M. did not wear adult
diapers when she lived with Paula Mayo and Paula Mayo does not expect
K.M. to continue to wear adult diapers if returned to Paula Mayo.
M.M. does not yet have all the behavior or cognitive issues that her
older sisters' possess, however, M.M. is starting to exhibit basic cognitive
limitations and defiant behavior. Although it cannot yet be determined, all
indications are that M.M. is developing some of the issues of her older
sisters. M.M. has been described as loyal to her sisters and Paula Mayo,
and at times has assumed the parental role with her sisters and Paula
Mayo. It is a major concern that if Paula Mayo cannot acknowledge and
understand the existing conditions of J.M. and K.M., then she will not be
able to recognize the developing conditions of M.M. This minimizing Fairfield County, Case No. 2012-CA-23 13
behavior of Paula Mayo concerning all of the children is relevant to the
Court.
The psychological evaluation of Paula Mayo indicates that she has
a simplistic plan for supervision of the children. The psychological
evaluation questions Paula Mayo's understanding of the need for
supervision of the children. The psychological evaluation indicates that
Paula Mayo does not fully grasp the vulnerability of the children and the
evaluation indicates that Paula Mayo is dependent on others to fulfill her
own needs. The information contained in the psychological evaluation is
relevant to the Court.
It is undisputed that there is a significant bond between Paula
Mayo, J.M., K.M. and/or M.M. These children have suffered much loss
throughout their life and Paula Mayo has been their only source of family
support. FCCPS will maintain the relationship between Paula Mayo and
the children as long as it is practical, healthy and available to do so.
{¶26} In the case sub judice, the trial court further found, pursuant to R.C. 2151.
414(B)(1)(d) that the children had been in the temporary custody of the agency for a
period of time in excess of twelve of the prior twenty-two consecutive months.
{¶27} On March 23, 2012, the trial court filed Findings of Fact and Judgment
Entries in each child’s case, which placed J.M. in a planned permanent living
arrangement with the agency and which terminated her parental rights with respect to his Fairfield County, Case No. 2012-CA-23 14
minor children M.M. and K.M. and granted permanent custody of the children to
appellee, FCCPS.
{¶28} It is from these entries that the adoptive-mother Paula Mayo and the minor
children, J.M., K.M. and M.M. have appealed.
II. Assignments of Error
{¶29} On appeal, the Children assert the following assignments of error,
{¶30} “I. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING
EVIDENCE THAT IT WAS IN THE BEST INTEREST OF THE MINOR CHILDREN TO
GRANT PERMANENT CUSTODY TO THE FAIRFIELD COUNTY CHILD PROTECTIVE
SERVICES AGENCY AS REQUIRED BY OHIO REVISED CODE SECTION 2151.414.
{¶31} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY
TO THE AGENCY WHERE THE EVIDENCE CLEARLY INDICATED THAT THERE HAD
BEEN INSUFFICIENT EFFORTS TOWARDS REUNIFICATION. AS REQUIRED BY
OHIO REVISED CODE SECTION 2151.414.
{¶32} “III. THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO THE AGENCY WHERE IT WAS MANIFEST THAT THE PARENT WAS
MAKING SUBSTANTIAL PROGRESS TOWARDS REUNIFICATION AS REQUIRED BY
{¶33} “IV. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE
PSYCHOLOGICAL EFFECTS OF PERMANENT CUSTODY ON THE MINOR
CHILDREN.” Fairfield County, Case No. 2012-CA-23 15
A. Burden Of Proof
{¶34} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a
parent's rights has been described as, “* * * the family law equivalent to the death
penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th
Dist.1991). Therefore, parents “must be afforded every procedural and substantive
protection the law allows.” Id.
{¶35} An award of permanent custody must be based upon clear and convincing
evidence, R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and
convincing evidence” as “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23(1986).
B. Standard of Review
{¶36} The Ohio Supreme Court has delineated our standard of review as
follows,
Where the degree of proof required to sustain an issue must be
clear and convincing, a reviewing court will examine the record to Fairfield County, Case No. 2012-CA-23 16
determine whether the trier of facts had sufficient evidence before it to
satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1,
12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v.
Rimenik, 115 Ohio St. 11, 152 N.E. 14.
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will
affirm the trial court's findings “if the record contains competent, credible evidence by
which the court could have formed a firm belief or conviction that the essential statutory
elements for a termination of parental rights have been established.” In re Adkins, 5th
Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557,
¶17.
{¶37} In Cross, the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added). Fairfield County, Case No. 2012-CA-23 17
{¶38} III. Requirements for Permanent Custody Awards
{¶39} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶40} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's
parents.;
(b) The child is abandoned; Fairfield County, Case No. 2012-CA-23 18
(c) The child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period, or 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 and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
{¶41} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶42} A. Reasonable Efforts to Prevent the Removal of the Child from the
Child's Home.
{¶43} In the case judice, FCCPS filed its Motion for Permanent Custody
pursuant to R.C. 2151.414. Pursuant to R.C. 2151.419, the agency that removed the
child from the home must have made reasonable efforts to prevent the removal of the
child from the child's home, eliminate the continued removal of the child from the home, Fairfield County, Case No. 2012-CA-23 19
or make it possible for the child to return home safely. The statute assigns the burden of
proof to the agency to demonstrate it has made reasonable efforts.
{¶44} However, R.C. 2151.419 does not apply in a hearing on a motion for
permanent custody filed pursuant to R.C. 2151.413 and 2151.414. In re C.F., 113 Ohio
St.3d 73, 81, 2007–Ohio–1104, 862 N.E.2d 816, (Citation omitted). Therefore, the trial
court was not required to make a specific finding that FCCPS had made reasonable
efforts to reunify the family. In In re C.F., supra, the court also stated that this does not
mean that the agency is relieved of the duty to make reasonable efforts,
At various stages of the child-custody proceeding, the agency may
be required under other statutes to prove that it has made reasonable
efforts toward family reunification. To the extent that the trial court relies
on 2151.414(E)(1) at a permanent custody hearing, the court must
examine the reasonable case planning and diligent efforts by the agency
to assist the parents' when considering whether the child cannot and
should not be placed with the parent within a reasonable time.
Id. at paragraph 42.
{¶45} R.C. 2151.414.(E)(1) requires proof that the FCCPS engaged in
reasonable case planning and made “diligent” efforts to assist the parents in remedying
the problems that caused the removal of the children.
{¶46} FCCPS filed its request for permanent custody pursuant to R.C. 2151.414.
A review of the record indicates at multiple review hearings, the Court found FCCPS
utilized reasonable efforts to reunify the family. Therefore, the showing of reasonable
efforts was not required to be proven by the state or found by the Court during the Fairfield County, Case No. 2012-CA-23 20
permanent custody hearing. In re J.J.F., 5th Dist. No. 2009-CA-00133, 2009-Ohio-4736,
¶26.
{¶47} One particular section, R.C. 2151.414(E)(1), does require the court to
examine the “reasonable case planning and diligent efforts by the agency to assist the
parents” when determining whether a child should not or could not be returned to a
parent within a reasonable time. This requirement and examination should not be
confused with the reasonable efforts requirement as set forth by R.C. 2151.419 as
requiring the trial court to determine reasonable efforts at every permanent custody
motion brought under R .C. 2151.413 or 2151.414.
{¶48} We find that the evidence established that FCCPS did provide services
designed to alleviate the problem that led to the children’s removal and did make diligent
efforts to assist Mayo in remedying the problem.
{¶49} B. Parental Placement within a Reasonable Time- R.C. 2151.414(B)
(1) (a).
{¶50} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed with
the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a
finding under R.C. 2151.414(E) (1) – (15), the court shall determine the children cannot
or should not be placed with the parent. A trial court may base its decision that a child
cannot be placed with a parent within a reasonable time or should not be placed with a
parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of
one factor alone will support a finding that the child cannot be placed with the parent
within a reasonable time. See In re: William S., 75 Ohio St.3d 95, 1996-Ohio-182, 661 Fairfield County, Case No. 2012-CA-23 21
N.E.2d 738; In re: Hurlow, 4th Dist. No. 98 CA 6, 1998 WL 655414(Sept. 21, 1998); In re:
Butcher, 4th Dist. No. 1470, 1991 WL 62145(Apr 10, 1991); In re: B.B., 5th Dist. No.
2010CA00151, 2010-Ohio-4618, ¶24.
{¶51} R.C. 2151.414(E) sets forth factors a trial court is to consider in
determining whether a child cannot be placed with either parent within a reasonable
period of time or should not be placed with the parents. Specifically, Section (E)
provides, in pertinent part, as follows:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the
court shall consider all relevant evidence. If the court determines, by clear
and convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the
child's parents, the court shall enter a finding that the child cannot be
placed with either parent within a reasonable time or should not be placed
with either parent:
(1) Following the placement of the child outside the child's home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused
the child to be placed outside the home, the parent has failed continuously
and repeatedly to substantially remedy the conditions causing the child to Fairfield County, Case No. 2012-CA-23 22
be placed outside the child's home. In determining whether the parents
have substantially remedied those conditions, the court shall consider
parental utilization of medical, psychiatric, psychological, and other social
and rehabilitative services and material resources that were made
available to the parents for changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the parent that
is so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year after the court holds the hearing pursuant to division (A) of
this section or for the purposes of division (A)(4) of section 2151.353 of
the Revised Code;
(3) The parent committed any abuse as described in section
2151.031 of the Revised Code against the child, caused the child to suffer
any neglect as described in section 2151.03 of the Revised Code, or
allowed the child to suffer any neglect as described in section 2151.03 of
the Revised Code between the date that the original complaint alleging
abuse or neglect was filed and the date of the filing of the motion for
permanent custody;
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child Fairfield County, Case No. 2012-CA-23 23
when able to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for the child;
(5) The parent is incarcerated for an offense committed against the
child or a sibling of the child;
(6) The parent has been convicted of or pleaded guilty to an
offense under division (A) or (C) of section 2919.22 or under section
2903.16, 2903.21, 2903.34, 2905.01, 2905.02, 2905.03, 2905.04,
2905.052907.07, 2907.08, 2907.09, 2907.12, 2907.21,2907.22, 2907.23,
2907.252907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01,
2911.02, 2911.11, 2911.12,2919.12, 2919.24, 2919.25, 2923.12, 2923.13,
2923.161, 2925.02, or 3716.11 of the Revised Code and the child or a
sibling of the child was a victim of the offense or the parent has been
convicted of or pleaded guilty to an offense under section 2903.04 of the
Revised Code, a sibling of the child was the victim of the offense, and the
parent who committed the offense poses an ongoing danger to the child or
a sibling of the child.
(7) The parent has been convicted of or pleaded guilty to one of the
following:
(8) The parent has repeatedly withheld medical treatment or food
from the child when the parent has the means to provide the treatment or
food, and, in the case of withheld medical treatment, the parent withheld it
for a purpose other than to treat the physical or mental illness or defect of Fairfield County, Case No. 2012-CA-23 24
the child by spiritual means through prayer alone in accordance with the
tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two
or more times due to alcohol or drug abuse and has rejected treatment
two or more times or refused to participate in further treatment two or
more times after a case plan issued pursuant to section 2151.412 of the
Revised Code requiring treatment of the parent was journalized as part of
a dispositional order issued with respect to the child or an order was
issued by any other court requiring treatment of the parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section or
2151.415 of the Revised Code, or under an existing or former law of this
state, any other state, or the United States that is substantially equivalent
to those sections, and the parent has failed to provide clear and
convincing evidence to prove that, notwithstanding the prior termination,
the parent can provide a legally secure permanent placement and
adequate care for the health, welfare, and safety of the child.
(12) The parent is incarcerated at the time of the filing of the motion
for permanent custody or the dispositional hearing of the child and will not
be available to care for the child for at least eighteen months after the
filing of the motion for permanent custody or the dispositional hearing. Fairfield County, Case No. 2012-CA-23 25
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the child.
(14) The parent for any reason is unwilling to provide food, clothing,
shelter, and other basic necessities for the child or to prevent the child
from suffering physical, emotional, or sexual abuse or physical, emotional,
or mental neglect.
(15) The parent has committed abuse as described in section
2151.031 of the Revised Code against the child or caused or allowed the
child to suffer neglect as described in section 2151.03 of the Revised
Code, and the court determines that the seriousness, nature, or likelihood
of recurrence of the abuse or neglect makes the child's placement with the
child's parent a threat to the child's safety.
(16) Any other factor the court considers relevant.
{¶52} In this case, the trial court made its permanent custody findings pursuant
to R.C. 2151.414(E)(1), (4) and/or (16). The trial court further found that J.M. could not
be placed with adoptive-mother within a reasonable time or should not be placed with
her and that, due to J.M.’s age and J.M.’s desire not to be adopted, placement in a
planned permanent living arrangement would be in her best interest. J.M. was seventeen
years old.
{¶53} As set forth above, the trial court’s findings are based upon competent
credible evidence. The record includes the recommendation of the Guardian ad Litem for
the children, and the testimony of several witnesses at trial. The trial court was in the
best position to determine the credibility of the witnesses. Fairfield County, Case No. 2012-CA-23 26
{¶54} The children love Ms. Mayo and Ms. Mayo loves her children and has
developed a bond. The evidence demonstrated the successful efforts the adoptive
mother had made in the case to regain custody of her children. On that point, the
evidence demonstrates that any improvement that Ms. Mayo has made in her life is
tentative and, perhaps, temporary, and that she is at risk of relapse. The trial court found
that, regardless of Ms. Mayo’s compliance with aspects of his case plan, she was still not
able to be a successful parent to her special needs children.
{¶55} In the case of In re: Summerfield, 5th Dist. No. 2005CA00139, 2005-Ohio-
5523, this court found where, despite marginal compliance with some aspects of the
case plan, the exact problems that led to the initial removal remained in existence, a
court does not err in finding the child cannot be placed with the parent within a
reasonable time.
{¶56} Based upon the foregoing, as well as the entire record in this case, the
Court properly found the children could not or should not be returned to the adoptive
mother within a reasonable time. Despite offering numerous services, the adoptive
mother was unable to mitigate the concerns that led to the children's removal.
B. The Best Interest of the Children.
{¶57} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the wishes of
the child as expressed directly by the child or through the child's guardian ad litem, with Fairfield County, Case No. 2012-CA-23 27
due regard for the maturity of the child; (3) the custodial history of the child; and (4) the
child's need for a legally secure permanent placement and whether that type of
placement can be achieved without a grant of permanent custody.
{¶58} The focus of the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d
309, 315, 642 N.E.2d 424(8th Dist. 1994). A finding that it is in the best interest of a child
to terminate the parental rights of one parent is not dependent upon the court making a
similar finding with respect to the other parent. The trial court would necessarily make a
separate determination concerning the best interest of the child with respect to the rights
of the mother and the rights of the father.
{¶59} The trial court made findings of fact regarding the children’s best interest.
It is well-established that “[t]he discretion which the juvenile court enjoys in determining
whether an order of permanent custody is in the best interest of a child should be
accorded the utmost respect, given the nature of the proceeding and the impact the
court's determination will have on the lives of the parties concerned.” In re: Mauzy
Children, 5th Dist. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000), quoting In re
Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).
{¶60} As an appellate court, we neither weigh the evidence nor judge the
credibility of witnesses. Our role is to determine whether there is relevant, competent and
credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries, 5th Dist. No. CA-5758, 1981 WL 6321(Feb. 10, 1982). Reviewing courts should
accord deference to the trial court’s decision because the trial court has had the Fairfield County, Case No. 2012-CA-23 28
opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that
cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St.
3d 71, 523 N.E.2d 846.
{¶61} In the present case, the trial court's decision indicates it considered the
best interest factors. Upon review of the record, it is clear that the record supports the
trial court's finding that granting the motion for permanent custody is in the children's
best interest. The trial court concluded the children's need for legally secure placement
could not be achieved without awarding permanent custody to FCCPS.
{¶62} The record makes clear that appellant failed to complete the majority of
the case plan provided by FCCPS. The psychological evaluation indicates that Paula
Mayo does not fully grasp the vulnerability of the children and the evaluation indicates
that Paula Mayo is dependent on others to fulfill her own needs. Paula Mayo was
provided an opportunity to attend counseling to improve her parenting skills. However,
she has not utilized this resource. Paula Mayo has attended four (4) counseling sessions
and has missed four (4) counseling sessions.
{¶63} It is therapeutically recommended for J.M. that J.M. be living in an
intensely supervised and structured environment with a caregiver who has a clear
understanding of the special needs of J.M. Paula Mayo minimizes K.M.'s issues by
stating that K.M. does not present a challenge from a parenting perspective. Paula Mayo
also minimizes K.M.’s physical issues. If Paula Mayo cannot acknowledge and
understand the existing conditions of J.M. and K. M. then she will not be able to
recognize the developing conditions of M. M. Fairfield County, Case No. 2012-CA-23 29
{¶64} The record contains competent, credible evidence that J.M. was initially
placed in foster care with her sisters, but has been moved ten times. She was removed
from the same care as K.M. and M.M. because she has been physically aggressive
towards them and to smaller children. K.M. and M.M. expressed fear of J.M. (T. Jan. 31,
2012 at 188). Presently, J.M. is with a therapeutic foster family who has done a “really
good job of...keeping her safe.” (Id. at 190). K.M. and M.M. appear very close and get
along well with their foster family. (Id. at 193). No other family members are available to
care for any of the children. (Id. at 196-197). In spite of the deep bond between the
children and Ms. Mayo, it is in the best interest of the children to be placed with FCCPS.
(Id. at 198-199; 201-202).
{¶65} “A trial court is not required to specifically enumerate each factor under
R.C. 2151.414(D) in its decision. However, there must be some indication on the record
that all of the necessary factors were considered.” (Citations omitted.) In re C.C., 10th
Dist. No. 04AP–883, 2005–Ohio–5163, ¶ 53.
{¶66} Upon a careful review of the trial court's journal entry and the record of
this case we find that the trial court took into account the interaction and interrelationship
of J.M., K.M. and M.M. Further the trial court addressed the interaction and
interrelationship between the adoptive mother and the children.
{¶67} Clear and convincing evidence supported the trial court’s decision finding
that it was in children's best interests to FCCPS’ motion for permanent custody.
III. Conclusion
{¶68} For these reasons, we find that the trial court’s determination that the
adoptive mother had failed to remedy the issues that caused the initial removal and Fairfield County, Case No. 2012-CA-23 30
therefore the child could not be placed with her within a reasonable time or should not be
placed with her was based upon competent, credible evidence and is not against the
manifest weight or sufficiency of the evidence. We further find that FCCPS engaged in
reasonable case planning and made “diligent” efforts to assist the adoptive mother in
remedying the problems that caused the removal of the children.
{¶69} The trial court took into account the interaction and interrelationship
of J.M., K.M. and M.M. Further the trial court addressed the interaction and
interrelationship between adoptive mother and the children. Despite some compliance
with some aspects of the case plan, the exact problems that led to the initial removal
remained in existence.
{¶70} We further find that the trial court’s decision that permanent custody to
FCCPS was in the child’s best interest was based upon competent, credible evidence
and is not against the manifest weight or sufficiency of the evidence.
{¶71} Because clear and convincing evidence in the record supports the trial
court’s judgment, we overrule the children’s four assignments of error. Fairfield County, Case No. 2012-CA-23 31
{¶72} J.M., K.M. and M.M.’s four assignments of error are overruled in their
entirety, and the judgment of the Fairfield County Court of Common Pleas, Juvenile
Court Division is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. JOHN W. WISE
WSG:clw 0925 [Cite as In re J.M., 2012-Ohio-4705.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: J.M., K.M., M.M. : : : : : : JUDGMENT ENTRY : : : : CASE NO. 2012-CA-23
For the reasons stated in our accompanying Memorandum-Opinion, we overrule the
Children four assignments of error, and affirm the judgment of the Fairfield County Court
of Common Pleas, Juvenile Court Division. Costs to appellant.