In re K.B.F.

2012 Ohio 1855

• Court: Ohio Court of Appeals
• Decided: April 27, 2012
• Docket: 24891
• Status: Published

Opinion

[Cite as In re K.B.F., 2012-Ohio-1855.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: K.B.F. :

: C.A. CASE NO. 24891

: T.C. NO. JC2008-6551

: (Civil appeal from Common Pleas Court, Juvenile Division) :

:

..........

OPINION

Rendered on the 27th day of April , 2012.

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee State of Ohio

GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio 45409 Attorney for Defendant-Appellant K.B.

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of K.B. filed 2

October 25, 2011. K.B. appeals from the October 11, 2011 decision of the juvenile court

which overruled her objections to the March 25, 2011 decision of the magistrate granting

permanent custody of K.B.’s daughter, K.B.F., to the Montgomery County Department of

Job and Family Services - Children Services Division (“Agency”). K.B. also has a son, who

was born in 2007, who is not the subject of this appeal.

{¶ 2} On July 16, 2008, the Agency filed a Neglect and Dependency

Complaint, in which it stated that it had received “numerous referrals” regarding K.B. The

Agency alleged that K.B. repeatedly left K.B.F., whose date of birth is August 12, 2004, and

her brother, “for hours and days at a time,” in the care of K.B.F.’s maternal grandmother,

who is “wheelchair bound and has Parkinson’s disease,” and who was accordingly unable to

care for the children. The complaint further alleged that the maternal grandmother currently

resides in an assisted living facility, and that K.B. lacked stable housing. The complaint

identifies the alleged father of K.B.F. and indicates that his address is unknown. After

appointing a Guardian ad Litem (“G.A.L.”) for K.B.F., and conducting a hearing, the

magistrate determined, on August 14, 2008, that it was in the best interest of K.B.F. to

remain in her home under the interim protective supervision of the Agency.

{¶ 3} On September 5, 2008, the magistrate issued an order of adjudication,

finding K.B.F. dependent. On November 3, 2008, the magistrate issued a decision and

order of protective supervision, and the magistrate approved of the Agency’s case plan

objectives for K.B. and incorporated the case plan as an order of the court.

{¶ 4} On December 16, 2008, the Agency filed a motion for temporary custody of

K.B.F. The attached affidavit of Donita Burks states that K.B. “continues to engage in 3

behaviors hazardous to [K.B.F.] and has ignored the Court-ordered case plan.” The

affidavit further states that K.B. left K.B.F. with the child’s maternal grandmother on

December 4, 2008, despite being ordered in her case plan not to do so, and it further alleged

that she left K.B.F. and her brother alone at other times. The affidavit states that on

October 23, 2008, there “was a domestic violence incident” between K.B. and her

“paramour,” and that K.B. refused to engage K.B.F. in domestic violence counseling, as

ordered in her case plan, “because she does not believe it is necessary.” The affidavit

provides that K.B. did not begin parenting classes as required by her case plan, that she

refused “Help Me Grow” services, and that she has not had the required Crisis Care

Assessment. According to the affidavit, K.B. has reported a history of depression, and “she

is currently having suicidal ideation.”

{¶ 5} On December 23, 2008, after a hearing, the magistrate granted interim

temporary custody of K.B.F. to the Agency. On May 4, 2009, the magistrate granted

temporary custody to the Agency.

{¶ 6} On November 2, 2009, the Agency filed a motion to extend temporary

custody. The attached affidavit of Donita Thompson provides that K.B. has not completed

her case plan objectives, has no stable housing, misses 1-2 visits with K.B.F. each month,

and is working at Cheeks Gentleman’s Club. On February 8, 2010, the magistrate granted

the Agency’s motion, extending the period of temporary custody to June 16, 2010. On

April 8, 2010, the Agency requested a second extension. The attached affidavit of Krista

Walakonis states that K.B. has made limited progress on her case plan, that she is “possibly

going to lose her housing and is not employed at this time.” The magistrate granted the 4

second extension on June 30, 2010.

{¶ 7} On October 6, 2010, the Agency filed a motion seeking permanent custody

of K.B.F. The attached affidavit of Donita Thomspon provides that K.B. has attended

“approximately 50%” of her scheduled visitations with K.B.F. and has not completed her

case plan objectives. It further states that K.B. “is losing her housing and reports having no

income.”

{¶ 8} At the permanent custody hearing, on March 17, 2011, Donita Thompson

testified that she has been involved in the matter since March, 2008, and that K.B.F. has

been in her current foster home since November, 2009. According to Thompson, K.B.F. is

“thriving in her current placement,” and she is an honor-roll student with perfect attendance.

Thompson further stated that K.B.F. is also involved in the church she attends with her

foster mother. Thompson stated that K.B.F. has special needs, having been diagnosed with

“Adjustment Disorder, Reactive Attachment Disorder, ADHD, PTSD, and Parent-Child

Relational Problem.” Thompson stated that K.B.F. also receives treatment for asthma.

Thompson stated that K.B.F. exhibited “a lot of negative behaviors” when she was first

placed in foster care. Thompson stated that K.B.F. had eating problems and would

regurgitate her food, and she “was having poor impulse control, a lot of manipulation, * * *

at one point very sexually inappropriate behaviors.” Thompson stated that K.B.F. reported

witnessing, in K.B.’s home, some of the sexually inappropriate behavior that she exhibited.

She stated that K.B.F. had been in weekly counseling since January, 2009, and that within

the last two months, due to her progress, she began to see the counselor on a bi-weekly basis.

Thompson stated that K.B.F.’s therapist did not approve of K.B.’s participation in her 5

therapy due to her “inconsistency with visits.” According to Thompson, K.B.F.’s father has

never been a part of her life. Thompson stated that K.B.F. has exhibited “drastic

improvement” in her current foster home. Thompson stated that K.B.F. calls her foster

mother “mom,” and that she is very bonded to her and to the foster mother’s extended

family. Thompson stated that the Agency had initially recommended that no other children

be placed in the home due to K.B.F.’s negative behavior, and that K.B.F. was the only child

in the home for over a year. She stated that there are now two other foster children in the

home.

{¶ 9} Thompson stated that K.B. completed a parenting and psychological

assessment in April, 2009, and that her case plan was developed as a result of the

assessment. Thompson stated that she believed K.B. understood what was required of her,

but she “would often say, I haven’t made this appointment, I just haven’t gotten around to it,

or things like that.” Thompson stated that K.B.’s objectives were to complete “domestic

violence counseling as recommended by the parenting and psychological assessment, that

she will participate in and complete a parenting education program, that she’ll maintain

stable, independent housing with utilities in her name,” maintain stable, independent

income, maintain a consistent visitation schedule with K.B.F. and participate in K.B.F.’s

therapy as recommended.

{¶ 10} Thompson stated that, before K.B.F. was removed from the home, the

Agency became aware that she had witnessed domestic violence between K.B. and her

“paramour,” and that in one incident, K.B.F was pushed. She stated that the Agency

required in the case plan that K.B. enroll K.B.F. in the children’s domestic violence program 6

at Artemis, but that K.B. did not follow through. Thompson stated that K.B. was referred

several times to Artemis House and PATH for her own domestic violence counseling as

well. She stated that while K.B. was referred to Artemis in October, 2008, she did not

begin attending the program until April, 2009. She completed the program in November,

2009, according to Thompson. During the interim period, Thompson stated that K.B. was

referred to PATH for domestic violence counseling. She stated that K.B. began counseling

at PATH in January, 2010, but was discharged in April, 2010 for noncompliance.

Thompson stated that K.B. advised her that she stopped attending because she did not want

to pay the per session fee of $1.00. Thompson stated that she was away from the Agency on

maternity leave from March, 2010 until July, 2010, and that when she returned to work, K.B.

was receiving domestic violence counseling at Oasis House. At the time of the hearing,

Thompson stated that weekly counseling was ongoing via telephone because the counselor

was no longer working at Oasis House.

{¶ 11} Thompson further stated that K.B. had not completed parenting skills

education. Thompson stated that K.B. was referred to Parent Link in 2008, and she was

discharged from the program in December, 2010, because of inconsistent attendance.

Thompson stated that she referred K.B. to Catholic Social Services, and that K.B. told her

that she did not attend the program there because the agency no longer offered it and there is

an age limit. Thompson stated that she contacted Catholic Social Services “and they said

that their program is still up and running and there is no age limit.” Thompson testified that

she relayed that information to K.B., who never followed through. Thompson next referred

K.B. to the PACE program, and she stated that K.B. was to begin that program on February 7

28, 2011. The program time conflicted with K.B.’s visitation with K.B.F., however, and

K.B. attended the visitation instead. Thompson stated that K.B. is signed up to begin a

parenting class on April 18, 2011.

{¶ 12} Regarding housing, Thompson stated that K.B. has not met her case plan

objective. Thompson stated that in December, 2010, K.B. moved into a two bedroom

apartment on Stop Eight Road, and that a friend of K.B.’s named “Rachel” is listed on the

lease. Thompson stated that K.B. told her that Rachel pays a portion of the utility bill.

Thompson stated that K.B. denies that Rachel resides there, but that when she visited the

apartment, Rachel appeared to be living there. She stated that the Agency did not perform a

background check on Rachel and that, given her presence in the apartment, Thompson did

not consider the apartment an appropriate placement for K.B.’s children. Even if Rachel

were not present, Thompson stated that she had further concerns about the apartment due to

K.B.’s tobacco usage. Thompson stated when she visited K.B. there was “a strong odor of

cigarette smoke,” and that she spoke to K.B. repeatedly about the importance of not smoking

in the apartment due to K.B.F.’s asthma.

{¶ 13} Prior to moving into the apartment, Thompson testified that K.B. resided

for three months with friends in Huber Heights, and that K.B. never allowed Thompson

access to that residence. Prior to that, K.B. resided in a three-bedroom apartment on

Wyoming Street from December, 2009, through August, 2010, with Rachel and Rachel’s

brother, Isaac. According to Thompson, that residence “was also often very dirty with a

foul odor, overflowing cat litter.” Thompson stated that prior to the Wyoming address,

K.B. “had about three different addresses * * *in 2009. She stayed in two different 8

apartments on Gummer, also a period of time she stayed in Centerville in an apartment with

a friend.” Thompson stated that when the Agency first became involved, K.B. resided with

her mother, and the home contained clutter, and pet urine and feces.

{¶ 14} Regarding K.B.’s income, Thompson stated that she has had several

different jobs and unstable income that has been difficult to verify. She stated that she

referred K.B. to the Job Center, Dayton Urban League and Oasis House for help finding

work. She stated that K.B. did not go to the Job Center or Dayton Urban League, but that

she received counseling at Oasis House beginning in July, 2010. Thompson stated that

K.B. was initially unemployed, and that she then worked at a store in the Dayton Mall for a

period of time, as well as a call center, a distribution center, a fast food restaurant, and KC

Lounge. At the time of the hearing, Thompson stated that K.B. reported that she was

employed at Flamingo’s strip club, earning $300.00 a week.

{¶ 15} Regarding K.B.’s visitation with K.B.F., Thompson stated that she has

weekly visits scheduled at the Agency for four hours. She described K.B.’s attendance as

“very inconsistent,” and she testified that from July, 2009 to December, 2010, K.B. missed

almost half of her visits. Since December, 2010, Thompson stated that K.B.’s visits have

been more frequent, although she missed two visits and arrived late at least three times.

Thompson stated that a late arrival results in cancellation of the visit. Thompson stated that

her last missed visit was on March 7, 2011. Thompson stated that K.B.F. had been

transported to the Agency on that day, and K.B.F. was upset when K.B. was not there.

{¶ 16} Since the frequency of K.B.’s visitations have increased, Thompson stated

that the visitations have become more meaningful to K.B.F. According to Thompson, K.B. 9

“interacts very well with [K.B.F.] She usually brings a meal. She will help [K.B.F.] with

homework. She often carries her around or has her sitting on her lap. That’s not always

been the case.” Thompson stated, from the Agency perspective, although K.B. has

improved, the visitation objective in the case plan has not been met.

{¶ 17} Thompson stated that she met with K.B.F.’s father three times after he was

located in October, 2010, and that he indicated that he did not want to have any contact with

his daughter. Thompson stated a child support order is in place, but that he does not make

payments. He last saw K.B.F. in March, 2008, according to Thompson. She stated that

there are no known paternal relatives beyond the father.

{¶ 18} Thompson stated that K.B. requested that the Agency complete a home study

on her uncle, who lives out of state, and she stated, “those relatives failed to complete the

home study process.” A home study of K.B.’s mother failed due to her health problems,

according to Thompson.

{¶ 19} Finally, Thompson stated that she believes it is in K.B.F’s best interest to

remain in Agency custody. Thompson testified that K.B.F.’s current foster mother is

willing to adopt K.B.F., and she stated that the Agency is not aware of any obstacles to the

adoption. Thompson stated that K.B.F. has indicated “that she would be happy with the

foster mom adopting her.”

{¶ 20} On cross-examination by counsel for K.B., Thompson stated that K.B.F.’s

foster mother is single, and that she has adult children of her own. She testified that K.B.F.

had been in three other foster homes prior to her current placement. When asked if K.B.’s

failure to participate in K.B.F.’s therapy was not the fault of K.B. but due to the refusal of 10

the therapist to allow K.B. to participate, Thompson responded, “the provider had a reason

for not allowing her into the therapy, which was directly the fault of your client.”

Thompson acknowledged that the objective for domestic violence counseling was in

progress. Regarding the parenting skills objective, Thompson stated that, while the class

K.B. was originally scheduled to take conflicted with her visitation schedule, the visitation

could have been changed to accommodate the class, but K.B. did not communicate with

Thompson in a timely manner to arrange the change. According to Thompson, K.B.

“expressed an interest in going to the class. She had not contacted me at all once she found

out it would be Monday during the same time as her visit until February 25th, which was

that Friday before the class was to start.” Regarding her observations of K.B. with K.B.F.

during visitations, she stated that K.B.’s interactions with her daughter have improved in the

last four months, and that there is a strong bond between K.B. and K.B.F., and she further

testified that since December, K.B. has visited more consistently than in the past. Thompson

stated that K.B. provided documentation that she was ill and had gone to the hospital for

treatment after one of her recent missed visits. Regarding the Agency policy of cancelling

visitation if K.B. was late, Thompson stated, “we’ve had to enforce that more strictly

because of her number of no-shows, and the children were transported, and she just didn’t

show at all. [K.B.F.] would become very emotional and upset. That would last for days

after her mom just not showing.”

{¶ 21} When asked about the Agency’s concerns about Rachel sharing expenses

with K.B. while the children are in Agency custody, Thompson stated that she would “like to

see her be able to maintain a home independently, as it’s listed on the case plan, to show that 11

she can provide and maintain rent and utilities independent of someone else, because if she’s

relying on them now, it might become problematic if that person is no longer in the home

and the children are there.” Thompson acknowledged that K.B. could cover her rent of

$490.00 a month with her $300.00 a week income. Thompson stated that while K.B.

reportedly has worked at Flamingos for over a year, she did not inform Thompson about her

job in 2010, and she has not provided “any statement on how long she’s been employed

there,” or any income tax documentation. According to Thompson, she “asked [K.B.]

several times in 2010, and she did not indicate at any point that she was employed. What

she most often said is that she was working odd jobs to earn income.” Thompson stated

that the Agency is not concerned about the particular type of job that K.B. has, as long as she

has stable income and is able to provide stable child care. Finally, regarding the wishes of

K.B.F., Thompson stated that the child told her that she wants to have “two mommies,” and

that she wanted to “be with her mom as well as foster mom. She’s not ever said to me

exclusively that she wants to be with her mom.”

{¶ 22} On cross-examination by counsel for K.B.F., Thompson stated that K.B.F.

has her own bedroom in her foster home, that she is closely bonded to her foster family, and

that she is doing well in school. Thompson stated that the foster mother has not indicated

that she intends to bring additional children into the home. Thompson stated that the foster

mother moved the family to a new home a month ago, and that the move “seems to have

affected [K.B.F.] in a positive way. She seems to like this current home a lot better, the

neighborhood, larger yard to play in, so on. She seems to enjoy being in the new home.”

{¶ 23} Donna Cox testified that she is a licensed professional counselor, and she 12

has provided counseling to K.B. since July 22, 2010. She stated that she saw K.B. weekly

until the first part of February, when they began “telephone consultations” because of “the

ice storms and snow storms that we had that came through Ohio, and there was also a

transition from Oasis House to my private counseling practice * * * .” Cox stated that she

previously worked at Oasis House as a volunteer. When asked about the nature of her

practice, Cox stated that she does “marriage counseling, post-traumatic stress, domestic

violence, any of the women’s issues. I also provide clergy care * * * and I also help with

impaired physicians, and I also see law enforcement personnel.”

{¶ 24} When asked to discuss K.B.’s progress, Cox responded, “she really has been

very compliant with treatment adherence. She is very resourceful, and she works very hard

in counseling, and I’ve always been pleased with her progress.” Cox stated that K.B.

missed one appointment due to illness and three other appointments due to inclement

weather. In addition to the formal “telephone consultations,” Cox stated that she and K.B.

exchange additional phone calls and text messages, and “the rate there is usually two average

per week.” Cox stated that she provided domestic violence counseling to K.B., and she

stated that she believed that case plan objective had been completed. She stated that she

recommended that K.B. participate in K.B.F.’s therapy, but that the Agency was not “open to

that happening even though that was my recommendation.” According to Cox, the Agency

was “looking for consistency, which was confusing, because she was being consistent with

my counseling sessions, and so that’s what I was basing it on.” Cox stated, regarding the

Agency, that she “felt like there was more like discouragement rather than encouragement *

* * from them * * * regarding my client.” Cox testified, “I felt that my client was making 13

an effort, and I felt that their response was that she wasn’t making an effort.”

{¶ 25} When asked about K.B.’s feelings for her children, Cox replied, “she has

very loving feelings towards her children, * * * there was talking about the developmental

stages her children were in, what she was seeing them accomplish during her visits.” Cox

stated that she never observed K.B. with her children. She testified that she is willing to

continue working with K.B. as long as K.B. needs counseling.

{¶ 26} On cross-examination, Cox stated that the Agency made her aware of K.B.’s

inconsistent visitation and lack of stable housing. Cox testified that she would continue to

work with K.B. on a pro bono basis, and she stated that K.B. is still in need of counseling.

Cox acknowledged that K.B.F.’s therapist is in the best position to determine whether K.B.’s

participation in K.B.F.’s therapy is in the child’s best interest. Cox stated that she has never

met K.B.F.

{¶ 27} K.B. testified that when her children were removed from her care, she had

just moved into her mother’s apartment. She stated that previously she “had an apartment

upstairs, but my income wasn’t sufficient enough to sustain that, so I moved downstairs with

my mom.” K.B. stated that she is 22 years old, and K.B.F. is six. K.B. stated that she

completed the parenting and psychological evaluation “pretty quickly.” The following

exchange occurred regarding her case plan objectives:

Q. How do you feel like you were able to progress on your case plan

during that first year, from 2008 - 2009?

A. There wasn’t much progression the first year.

Q. * * * And why was that? 14

A. Honestly, I didn’t take it seriously, to be honest. * * * things

about Children Services I had heard, I had thought that they took kids for

abuse and things like that, and my kids were fed, they were not abused,

anything like that, so I didn’t think they would keep them from me, so I didn’t

take it seriously at all.

Q. And how old were you when they were first taken out of your

care?

A. I was 18.

{¶ 28} K.B. stated that she completed the Artemis program, and that she “took way

longer than I should have to do it.” She stated that she began PATH in December, 2009 or

January, 2010. According to K.B., “they wouldn’t give me a set price,” and she stated that

she “just didn’t feel that it was really helping me, so I stopped going and started looking

into different domestic violence classes.” She confirmed that she began counseling with

Cox in July of 2010, and she stated that in addition to the Agency referral to Oasis House,

she “had got hooked up with Oasis House through my work, because they would come and -

- into [Flamingo’s] and talk to the girls.”

{¶ 29} The following exchange occurred regarding the consistency of her visitation:

Q. * * * At that beginning time, that first year, year and a half of your

case plan, were you visiting with the children regularly?

A. No.

Q. * * * what [were the] reasons for that?

A. Whatever reason I had at the time. It was only about the first 15

year that I was really inconsistent. When Donita went on maternity leave

and I had her replacement caseworker for that time, I started to become a lot

more consistent and trying a lot harder to get there.

* * * it’s no excuse, but it’s hard without a car, and it’s harder trying

to rely on other people and bus transportation, because I was late on one of

my visits and didn’t get to see my kids because the bus was late, so I arrived

five minutes late.

Q. What happens when you arrive late to a visit?

A. It’s cancelled. Well, for my daughter at least.

{¶ 30} The following exchange occurred regarding the tenor of K.B.’s visitations

with K.B.F.:

Q. How do you feel your visits go when you have your visits with

[K.B.F.]?

A. For the most part pretty good. Sometimes she’s a little harder to

handle than others. It depends on her mood. But, you know, she’s a good

kid, so it’s pretty easy most of the time, and she - - she made it a lot easier for

the most part.

Q. * * * do you feel like your visits have improved over the last

couple years then?

A. I honestly don’t necessarily see improvement. I never really saw

a problem with my visits. I do agree that some of my talk about my case

plan with her was inappropriate in the sense that she would ask me things, 16

and I didn’t go about telling - - explaining it the right way. I was using more

adult terms than I should have. But, you know, for the most part, I’ve always

thought that my interaction with [K.B.F.] has been good.

You know, during the summer I take her to the park that’s at Children

Services. You know, during the winter I try to let her watch movies, help

with homework, play games, read. So I have never really saw a problem. * *

*

{¶ 31} Regarding the parenting classes that conflicted with K.B.’s visitation, K.B.

testified, “* * *I did wait probably a couple days too long to get in touch with Donita, but I

called her on that Friday to see what we could do about switching visits or if I could cut it an

hour short or - - and it wasn’t possible at that time.” K.B. stated that she chose to attend

her visitation instead of the parenting class. K.B. stated that she is to begin an eight-week

parenting class in April.

{¶ 32} When asked if she had made any arrangements for day care for K.B.F. while

she is at work, K.B. responded, “* * * I have had Title 20 before. I don’t know how it will

work with my present income, but I do have a few people who are willing to care for my

daughter until I can either put her in day care or, you know, figure out a more permanent

plan.”

{¶ 33} K.B. stated that she began working at Flamingo’s in February, 2010. K.B.

stated that she quit her job at the KC Lounge “because the money wasn’t enough for me to

cut off my hours at Flamingo’s.” When asked why she did not advise Thompson that she

was working at Flamingo’s in 2010, she stated that she told the caseworker filling in while 17

Thompson was on maternity leave that she worked there, and “ * * * I asked her if it was an

appropriate job, because the reason why I had lied about it was because I was nervous that it

would look bad on me, that you know, it was not going to be viewed as appropriate and that

would hinder my case.” K.B. stated that “if I’m working what I plan to work if I were to

regain custody of my daughter, on average” she would make $300.00 a week.

{¶ 34} K.B. stated that she signed the lease on the apartment on Stop Eight Road in

November, 2010, and she moved into it in December, 2010. According to K.B., she

“needed a co-signer because I couldn’t get it because I do have a previous eviction from

2008.” She stated that her rent is $490.00 a month, her DP&L bill is between $45.00 and

$60.00, her cell phone bill is $60.00 a month, and she spends about $70.00 a month on

food. She stated that the cable television at the apartment is in Rachel’s name, and that it

will “probably get cut off” because “previously I owed Time Warner a lot of money, so

that’s why it’s not in my name.” According to K.B., Rachel is “in the process of moving

out” of the apartment. K.B. stated that the two beds in the apartment are “both mine.”

Regarding the sleeping arrangements in the event her children were to be returned to her,

K.B. stated, “I haven’t quite figured out what I was going to do because of visitation with my

son and him being there for weekends. I guess, you know, maybe give him my room when

he’s there, but [K.B.F.] - - my plan is to have [her] have her own room no matter what.”

K.B. further stated that K.B.F. would have “her own room like for the majority of the time.”

{¶ 35} K.B. stated that her participation in K.B.F.’s therapy was a case plan

objective, “but they said due to inconsistency with my visits, they wouldn’t allow me.”

When asked if she felt it were now appropriate for K.B.F. to be returned to her care, K.B. 18

responded, “I mean, there would be obviously a period of adjustment, but yes, I mean, I - -

the last thing I would want is to lose my daughter out of my life.”

{¶ 36} On cross-examination, K.B. stated that she lost custody of her son after a

hearing on January 27, 2011, and that he was placed with paternal relatives. When asked

when she began to take her case plan objectives seriously, K.B. responded, “I started taking

it a little more seriously in August of 2009, but I really, really put more effort in in May

2010, yeah.” When asked what made her get serious, she responded, “Reality hit me in the

face.” She cited K.B.F.’s birthday in August of 2009 and “just a lot of factors really kind

of made me wake up and realize * * * I wasn’t going about things the way I should.”

{¶ 37} When asked who she relied on for child care when her children lived with

her, K.B. replied, “my mom was the easiest person because I lived with her, you know, so I

mostly went for her. * * * on the occasion in which resulted in me coming to court, yes, I

did have a friend fall through because - - whatever the situation was, I don’t remember.”

K.B. stated that since the children have been removed, her mother has been placed in a

nursing home. K.B. stated that her work hours are 7:00 p.m. until 2:30 a.m., and she stated

that “Early Learning Tree on Main Street is open 24 hours,” and that it costs about $130.00 a

week for child care. K.B. stated that she has a child support obligation of “$50 a month per

child.” When asked if Rachel had been paying the rent at the apartment, K.B. stated, she

“has helped in the past. As of the past couple months, I’ve been paying rent by myself, but

she has been paying some of the other bills.” K.B. stated that she and Thompson exchanged

voice mails on March 7, 2011 when K.B. missed her visitation, and she called Thompson

back to “let her know that I was going to attempt to come, because I had thrown my back out 19

trying to move a couch, and I was going to attempt to come and to call me back if that was

okay, and then I never heard anything from her after that.” K.B. stated that K.B.F. has

reported to her that she has a good relationship with her foster mother, and that she is doing

well in school. When asked about any available family members with whom to place

K.B.F., K.B. stated that she has a sister with whom she has no contact.

{¶ 38} At the conclusion of the hearing the court asked the G.A.L if he had

anything to add to his latest report, and he stated that he had recently seen K.B.F., after

completing his report, and that she “shared with me that she wanted to stay with the foster

mother, and that was not solicited.” We note that the G.A.L.‘s most recent report, filed

March 15, 2011, indicates that he visited K.B.’s residence on March 12, 2011. The report

provides in part, “Mother feels that God has a plan, but feels that, financially, [K.F.B.]

would be better off with Foster Mother.” The report further describes K.B.’s apartment, and

indicates that K.B. has two dogs and a cat in the home, and that the “spare bedroom and

dining area had dog feces on the floor.” The G.A.L. recommended that the Agency be

granted permanent custody of K.B.F.

{¶ 39} The magistrate found that the Agency made reasonable efforts to prevent

K.B.F.’s removal, to eliminate her continued removal, and to make it possible for her to

return home. The magistrate further found that there are no relatives or non-relatives able to

accept custody of K.B.F, that she has been in foster care since December 22, 2008, for 12 or

more months out of the last 22 months. The magistrate found that K.B.F. is a special needs

child, and that her negative behaviors have greatly improved in foster care. The magistrate

found that K.B.F. is very bonded with her foster family and integrated into her foster 20

mother’s immediate and extended family. The magistrate noted that K.B.F. is in the first

grade and doing very well in school with perfect attendance, and that she is involved in her

church. The magistrate noted that K.B.F. is six and a half years old and too young “to

understand the complexities of permanent custody.” According to the magistrate, he

conducted an in camera hearing with the child and noted that she did not have “sufficient

maturity to adequately express her wishes.” The magistrate noted that K.B.F. stated that she

has “two mommies, and that her foster mother provides the care of her while she visits with

her biological mother.” The magistrate stated that in his report the G.A.L. noted that K.B.F.

“has had great difficulty expressing where she wants to live and that the discussion has been

very upsetting to her.” The magistrate then noted the G.A.L.’s statement at the conclusion

of the hearing that K.B.F. recently stated that she wants to remain with her foster mother,

and the magistrate noted that K.B.F.’s “attorney did not present any contradictory evidence.”

{¶ 40} The magistrate found that placement of K.B.F. with “the mother and father

is a threat to the child’s safety.” The magistrate found that the father has abandoned K.B.F.

The magistrate noted the objectives as set forth in K.B.’s case plan and found that K.B.

understood them. Specifically, the magistrate found that K.B. completed the parenting and

psychological assessment in April, 2009. Regarding domestic violence counseling, the

magistrate found that K.B. failed to take K.B.F. to counseling at Artemis as recommended.

The magistrate found that, after having been referred to Artemis and PATH in October,

2008, K.B. did not complete the four week class at Artemis until November, 2009. The

magistrate found that K.B. began attending PATH in January, 2010 but was discharged for

noncompliance. The magistrate found that K.B. has received domestic violence counseling 21

that commenced at Oasis House in July, 2010, and continues on a pro bono basis with Cox.

The magistrate noted that K.B. missed appointments due to illness and inclement weather.

The magistrate concluded that the domestic violence counseling objective was in progress.

{¶ 41} Regarding parenting classes, the magistrate noted that K.B. was referred to

Parenting Link in 2008 prior to the removal of her children, was noncompliant, and was

discharged. The magistrate found that K.B. failed to follow through with referrals to

Catholic Social Services, but that within the past month she enrolled in a parenting program

which begins in April, 2011. The magistrate found that this objective has not been met.

{¶ 42} Regarding housing, the magistrate noted that in 2008, K.B. was only 18

years old and living with her ill mother, in an unsanitary home. The magistrate found that

in 2009, K.B. lived in three different apartments. From December 2009 until August 2010,

the magistrate found that K.B. lived with “Rachel” and “Isaac” in Dayton; from August,

2010 through December, 2010, she lived in Huber Heights, and her contact with her

caseworker during that time was infrequent. The magistrate found that K.B. failed to

schedule a home visit with her caseworker or G.A.L. when she lived in Huber Heights. The

magistrate found that K.B. has resided in her current apartment since December, 2010, and

that “Rachel” assists with expenses. The magistrate concluded that K.B. “has never

maintained independent housing and does not currently have independent housing.”

{¶ 43} Regarding K.B.’s income, the magistrate found that she has a “history of

unstable income and employment.” The magistrate found that K.B. failed to provide

employment information regarding her work at Flamingo’s to her caseworker until January,

2011, because she was concerned “her position at Flamingo’s would be detrimental to her 22

case.” The magistrate found that while K.B. reports that she has been employed at

Flamingo’s for the last year, she reported five or six different employment positions from

2008 to the present. The magistrate further noted that K.B. has not provided check stubs or

tax records demonstrating steady employment, despite repeated requests, and that she has

not provided rent receipts or utility bills. The magistrate noted that the Agency provided

K.B. with multiple referrals to job seeking services, and that K.B. did not take advantage of

them. The magistrate found this objective to be in progress.

{¶ 44} Regarding visitation, the magistrate noted K.B.’s inconsistency, having

missed “about fifty percent” of her visits from July 2009 through December 2010. The

magistrate further noted that the Agency accordingly required K.B. to arrive prior to the

visitations so that K.B.F. would not be transported there until K.B.’s attendance was

confirmed, “to lessen the harmful impact on” K.B.F. The magistrate found that K.B.

missed two visits and appeared late for three visits from December, 2010 until March, 2011,

and K.B.’s late arrivals resulted in cancellations. The magistrate further noted

Thompson’s testimony that K.B. and K.B.F. are bonded, and that K.B.’s interactions with

K.B.F. have improved. According to the magistrate, K.B. “has a very immature and

cavalier attitude toward her case plan and reunification and did not want to accept that her

actions and inactions led to the removal and that only through consistency and stability

would her children be returned to her.” The magistrate found that this objective is in

progress, and that her overall progress on her case plan “can only be described as minimal.”

Finally, the magistrate noted that the G.A.L. recommended that the Agency be granted

permanent custody. 23

{¶ 45} Pursuant to R.C. 2151.414(E), the magistrate concluded that there is clear

and convincing evidence that K.B.F. cannot be placed with either parent within a reasonable

time for the following reasons: (1) the parents “have continuously and repeatedly failed to

substantially remedy the conditions causing the child to be placed outside of the home

despite reasonable case planning and diligent efforts” by the Agency; (2) the parents

demonstrated a lack of commitment toward the child; (3) the foster mother has provided a

stable and nurturing environment; (4) the child has expressed that she wants to live with her

foster mother; (5) the child has been in foster care for over 20 months; (6) the parents have

failed to demonstrate that they will become an appropriate custodian in the foreseeable

future, and no other relative has been identified to undertake the child’s custody; (7) none of

the factors set forth in R.C. 2141.414(E)(7) to (11) apply; and (8) it is in K.B.F.’s best

interest to be placed in the permanent custody of the Agency. The magistrate terminated

K.B.’s parental rights.

{¶ 46} K.B. filed four objections to the magistrate’s decision on April 6, 2011,

which she supplemented on May 18, 2011. K.B. objected to the Magistrate’s conclusion

that she failed to remedy the conditions causing K.B.F.’s removal; she objected to the

magistrate’s conclusion that she has demonstrated a lack of commitment to K.B.F.; she

objected to the magistrate’s conclusion that she would not be able to be a suitable and

appropriate custodian in the foreseeable future; and she objected to the magistrate’s

conclusion that it is in the best interest of K.B.F. to grant permanent custody to the Agency.

In her supplemental filing K.B. emphasized the bond between her and K.B.F., and that she

has adequate housing and stable income. She further asserted that the Agency “was more 24

discouraging than encouraging” about her progress with her case plan objectives. The

Agency filed a response on June 16, 2011.

{¶ 47} In its Decision overruling K.B.’s objections, after noting the magistrate’s

findings of fact and conclusions of law, and summarizing K.B.’s objections and the

Agency’s responses thereto, the trial court overruled K.B.’s objection to the magistrate’s

finding that she failed to substantially remedy the conditions causing removal, despite

diligent efforts by the Agency. Regarding K.B.’s objection to the magistrate’s conclusion

that K.B. demonstrated a lack of commitment to K.B.F., the court cited K.B.’s own

testimony that she did not initially take her case plan objectives seriously or believe that the

Agency would keep her children, as well as Thompson’s testimony that K.B. did not begin

to fulfill the case plan requirements until April, 2009. The court noted that K.B. had not

completed parenting classes, and that she did not begin counseling at Oasis House until

June, 2010. It was significant to the court that Cox stated that K.B. still needed therapy.

The court determined that K.B. “demonstrated a lack of commitment toward the Child and

has failed to complete recommended parenting classes and domestic violence counseling per

recommendation of the assessment.”

{¶ 48} Regarding K.B.’s ability to be a suitable custodian of K.B.F. in the future,

the court noted that K.B. has not demonstrated an ability to maintain stable, appropriate,

independent housing, noting that since K.B.F’s removal, K.B. has resided in seven different

residences. Thompson’s concern about the strong smell of cigarette smoke in the home was

of significance to the court, as well as the potential ongoing presence of Rachel in the home.

Finally, the court cited K.B.’s inconsistent employment history and determined that K.B.’s 25

income of $1200.00 a month at Flamingo’s was insufficient to cover her monthly expenses,

which the court determined totaled $1275.00 a month (Rent: $490.00, DP&L: $45.00, cell

phone: $60.00, food: $70.00, child support: $100.00, and daycare: $520.00 per month).

Finally, the court acknowledged “that [K.B.] was young when she had [K.B.F.], but when

the child was removed from the home, [K.B.] was 18 years old and has had over two (2)

years to complete her case plan objectives.” The Court concluded that K.B. failed to

complete her case plan objectives and that permanent custody to the Agency is in K.B.F.’s

best interest.

{¶ 49} K.B. asserts three assignments of error. We will consider her first and

second assignments of error together. They are as follows:

“THE TRIAL COURT ERRED IN FINDING THAT THE CHILD COULD NOT BE

PLACED WITH [HER] MOTHER WITHIN A REASONABLE TIME OR SHOULD NOT

BE PLACED WITH MOTHER BECAUSE OF A LACK OF COMMITMENT.”

And,

“THE TRIAL COURT ERRED IN FINDING THAT A GRANT OF PERMANENT

CUSTODY WAS IN THE BEST INTEREST OF THE CHILD.”

{¶ 50} According to K.B., she “demonstrated her commitment to her child: she was

alcohol and drug free, she had no diagnosed mental health issues, she obtained and

maintained employment, she had been in counseling for over a year and was doing well, she

had independent housing.” She further asserts that while reunification may not have been

appropriate at the time of the hearing, “she had a concrete, reasonable plan to achieve

reunification, * * * [and] [i]t was in the child’s best interest that mother be given a chance to 26

prove that she could complete her plan.”

{¶ 51} As this Court has previously noted:

The Revised Code authorizes a trial court to terminate parental rights

and grant permanent custody to the State upon a finding, by clear and

convincing evidence, that permanent custody is in a child’s best interest and

that the child has been in the State’s custody for at least twelve of the

preceding twenty-two months. R.C. 2151.414(B)(1)(d). Alternatively, a

trial court is authorized to grant permanent custody to the State if it finds, by

clear and convincing evidence, that permanent custody is in the child’s best

interest and that the child cannot be placed with a parent within a reasonable

period of time or should not be placed with either parent. R.C.

2151.414(B)(2).

When considering a motion for permanent custody, a trial court must

apply R.C. 2151.414(E), which identifies factors for determining whether a

child cannot or should not be placed with either parent within a reasonable

time. If a court finds, by clear and convincing evidence, that any one of the

R.C. 2151.414(E) factors exists, “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.” * * *. In re H.T. & Z.T., 2d Dist. Greene Nos.

10-CA-29, 10-CA-30, 2011-Ohio-1285, ¶ 22-23.

{¶ 52} R.C. 2151.414(E) sets forth the following as a factor justifying such a

finding: 27

(4) The parent has demonstrated a lack of commitment toward the

child by failing to regularly support, visit, or communicate with the child

when able to do so, or by other actions showing an unwillingness to provide

an adequate permanent home for the child.

{¶ 53} The trial court must also apply R.C. 2151.414(D), which provides a

non-exclusive list of “best interest” factors, including the child’s relationships with her

parents and siblings, other relatives, and her foster family; the wishes of the child; her

custodial history; the child’s need for a legally secure, permanent placement and whether

that may be achieved with or without a grant of permanent custody to the Agency.

{¶ 54} As this Court has previously noted:

A reviewing court must affirm a trial court’s decision regarding

permanent custody unless it is unsupported by clear and convincing evidence,

a level of proof that produces a firm belief as to the facts sought to be

established. * * * A trial court’s “decision to terminate parental rights will not

be overturned as against the manifest weight of the evidence 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 H.T. &

Z.T., ¶ 24.

{¶ 55} Having thoroughly reviewed the record, we find competent, credible

evidence from which the trial court could have determined that the statutory elements for

termination of K.B.’s parental rights were established. The trial court’s finding that K.B. 28

demonstrated a lack of commitment to K.B.F. is supported by the transcript of the March 17,

2011 hearing, and the record supports a finding that it is in K.B.F.’s best interest to grant

permanent custody to the Agency. While under Agency supervision, K.B. failed to comply

with her case plan, resulting in the grant of temporary custody to the Agency in December,

2008. Temporary custody was then twice extended due to K.B.’s continued failure to

comply with her case plan objectives. In October, 2010, the Agency sought permanent

custody, and Thompson detailed K.B.’s lack of compliance with her case plan at the

permanent custody hearing. From July, 2009 until December, 2010, K.B. missed almost

half of her visits with K.B.F. K.B. did not enroll K.B.F. in a domestic violence program,

she herself delayed attending the program at Artemis, and she was discharged from PATH

for noncompliance. Notwithstanding Cox’s favorable testimony about K.B.’s commitment

to her therapy, K.B. had not yet completed her parenting program at the time of the hearing.

She further did not have independent housing and utilities but instead was relying on Rachel

for help with expenses, contrary to her case plan. She stated that she had not “quite figured

out” the sleeping arrangements at the apartment if her children were returned to her.

Despite K.B.F.’s diagnosis of asthma, Thompson stated that K.B.’s apartment smelled

strongly of tobacco. Prior to moving into her apartment, K.B. lived in multiple residences,

and she acknowledged having been previously evicted in 2008. While K.B. testified that

she had been employed at Flamingo’s strip club since February, 2010, she admitted that she

“lied about it” to her case worker. While K.B. had recently become more consistent with

her visitation, her lengthy failure to properly address that objective with timely consistent

visits, her admitted failure to take the issue of K.B.F.’s custody seriously, her failure to 29

maintain adequate housing, and her failure to complete parenting classes undermine her

assertion that she is fully committed to her child. The record supports a conclusion that

K.B.’s behavior establishes an inability to provide an adequate, permanent home for K.B.F.

{¶ 56} Regarding K.B.F.’s best interest, Thompson’s testimony revealed that while

K.B.F. and K.B. are bonded, the child is very integrated into the home of her foster family,

and K.B.F. refers to her foster mother as “mom.” Since she has been in her current home,

K.B.F.’s negative behaviors have drastically improved, and she is thriving. Thompson

stated that K.B.F.’s therapy has been successful, and the frequency of therapeutic sessions

has been reduced. The G.A.L. reported, as the trial court noted, that K.B.F. most recently

expressed a wish to remain with her foster mother. K.B.F. has been in Agency custody for

more than twelve months of a consecutive twenty-two-month period. K.B.F. needs a legally

secure permanent placement, and that type of placement clearly cannot be achieved without

a grant of permanent custody to the Agency. K.B.’s assertion that she should have been

granted more time to regain custody “overlooks the importance of [K.B.F.’s] right to [a]

‘stable, secure, nurturing and permanent home in the near term.’ * * *.” In re S.K., S.K. &

J.K., 2d Dist. Clark Nos. 2008 CA 67, 2008 CA 68, 2008 CA 69, 2009-Ohio-427, ¶ 15.

{¶ 57} Since the trial court correctly determined that K.B. demonstrated a lack of

commitment to K.B.F., such that K.B.F. cannot be placed with K.B., and since the grant of

permanent custody of the child to the Agency is in K.B.F.’s best interest, K.B.’s first and

second assigned errors are overruled.

{¶ 58} K.B.’s third assigned error is as follows:

“THE TRIAL COURT ERRED IN FINDING THAT THE AGENCY HAD MADE 30

REASONABLE EFFORTS TO REUNITE THE CHILD WITH THE MOTHER.”

{¶ 59} According to K.B., “the Agency not only failed to prevent the removal of the

child, but in some ways actively prevented the mother from visiting with her child or

allowing her to participate in the child’s counseling. The Agency made almost no effort at

all towards reunifying the child with mother.”

{¶ 60} Thompson testified that K.B.F. became upset for days at a time when K.B.

failed to attend visitation, and that the Agency instituted the cancellation policy as a direct

result of K.B.’s inconsistency, to ensure that K.B. was in attendance prior to the transport of

K.B.F. to the Agency. Had she appeared on time, K.B. would not have been prevented from

visiting her daughter. Further, while K.B.’s participation in K.B.F.’s therapy was an

objective of her case plan, Thompson stated that the child’s therapist did not approve of her

participation as a direct result of her inconsistent visitation. In other words, K.B. herself is

responsible for being denied visitation and participation in K.B.F.’s therapy. Finally,

reunification of K.B. and K.B.F. was the Agency’s goal from the beginning, and K.B.

received numerous referrals for domestic violence counseling, parenting skills counseling,

and assistance with finding stable employment, all to help her achieve reunification. K.B.

either ignored the referrals or was dilatory in pursuing them. Since the Agency made

reasonable and diligent efforts to reunite K.B.F. and K.B., her third assigned error is

overruled.

{¶ 61} Having overruled K.B.’s assigned errors, the judgment of the trial court is

affirmed.

.......... 31

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps Gary C. Schaengold Hon. Anthony Capizzi