In re M.H.

2014 Ohio 5478

Opinion

[Cite as In re M.H., 2014-Ohio-5478.]

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

IN RE: M.H. C.A. Nos. 27313 R.H. 27317

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 12 05 0319 DN 12 05 0320

DECISION AND JOURNAL ENTRY

Dated: December 15, 2014

CARR, Presiding Judge.

{¶1} Appellants, Priscilla B. (“Mother”) and M.H. (“Father”), appeal from a judgment

of the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental

rights and placed their two minor children in the permanent custody of Summit County Children

Services Board (“CSB”). This Court affirms.

I.

{¶2} Mother and Father are the natural parents of M.H., born December 17, 2005, and

R.H., born February 26, 2008. The children were removed from the parents’ custody during

May 2012, because their home was filthy and infested with bugs. Walls and ceilings in the home

were also collapsing, the roof leaked, and electrical wires were exposed in some areas. The

parents later agreed to an adjudication of dependency. 2

{¶3} Throughout this case, the reunification goals for both parents were to: (1) “attain

clean, safe, stable, independent housing, with functioning utilities free of any infestations [,]” and

(2) “demonstrate knowledge of appropriate parenting skills, including * * * how to provide a

safe environment for the children, the knowledge and ability to meet the children’s basic and

medical needs, and age appropriate discipline techniques.”

{¶4} The underlying and ongoing problems in this case stemmed from the parents’

cognitive limitations. According to their parenting assessments, Mother had an IQ of 75.

Father’s IQ was slightly lower and he also had physical disabilities, both of which had resulted

from complications during his birth. The psychologist who performed the assessment observed

that neither parent demonstrated any insight into the reasons for the children’s removal from the

home. He opined that they would never be able to parent their children without extensive

supervision in their home due to their cognitive impairments.

{¶5} Nevertheless, CSB connected the parents with service providers who attempted to

help them improve their parenting skills and insight into the needs of their children. Although

the parents were cooperative with CSB and most of their service providers, they made little

progress during the case toward developing the skills they needed to provide their children with a

suitable home.

{¶6} CSB moved for permanent custody during October 2013. The parents

alternatively moved for an extension of temporary custody or for the children to be placed in the

legal custody of a relative. Shortly after the motion for permanent custody was filed, the parents

relocated to a three-bedroom, government-subsidized apartment. The caseworker visited that

home and, although she saw two roaches in the home during one visit, the home was

exterminated and bugs were no longer a problem. 3

{¶7} At the hearing on the alternate dispositional motions, it was not disputed that the

parents tried to comply with the requirements of the case plan, including completing two sets of

parenting classes at their own expense, obtaining suitable housing, and regularly visiting their

children, who were always happy to see them. All witnesses agreed that the parents and children

were bonded.

{¶8} On the other hand, the trial court also heard undisputed testimony that, despite all

of their case planning efforts, the parents remained unable to meet the children’s needs because

of their cognitive limitations. Numerous witnesses testified that, despite their cooperation in

completing two sets of parenting classes, the parents did not seem to know how to implement

what they had been taught.

{¶9} The trial court ultimately found that both children had been in the temporary

custody of CSB for more than 12 of the prior 22 months and that permanent custody was in their

best interests. Therefore, it terminated parental rights and placed the children in the permanent

custody of CSB.

{¶10} Mother and Father separately appealed and their appeals were later consolidated.

After an initial review of the record, this Court questioned whether CSB had exerted reasonable

reunification efforts to reunify the family prior to moving for permanent custody. Consequently,

this Court requested that the parties brief that issue, which was not raised in the trial court.

Based on the specific arguments briefed by the parties, and because the trial court had no reason

to address the reasonableness of CSB’s reunification efforts at the permanent custody hearing,

see In re C.F., 113 Ohio St.3d 73, syllabus (2006), this Court declines to address the

supplemental issue and will instead confine its review to the parties’ original briefs. 4

II.

MOTHER’S ASSIGNMENT OF ERROR

THE TRIAL COURT’S DECISION TO GRANT THE STATE’S MOTION FOR PERMANENT CUSTODY IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

FATHER’S ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN FINDING THAT PERMANENT CUSTODY WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, AND THAT THE GRANT OF PERMANENT CUSTODY WAS SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶11} Because Mother and Father both challenge the weight of the evidence supporting

the trial court’s decision, we will address their assignments of error together. R.C.

2151.414(B)(1) establishes a two-part test for courts to apply when determining whether to grant

a motion for permanent custody to a public children services agency. The statute requires the

court to find, by clear and convincing evidence, that: (1) one of the enumerated factors in R.C.

2151.414(B)(1)(a)-(e) apply, and (2) permanent custody is in the best interest of the child. R.C.

2151.414(B)(1). Clear and convincing evidence is that which is sufficient to produce in the mind

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

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶12} The trial court found that the first prong of the test was satisfied because both

children had been in the temporary custody of CSB for more than 12 of the prior 22 months. The

parents do not dispute that finding but instead contest the trial court’s finding that permanent

custody was in the children’s best interests.

{¶13} When determining whether a grant of permanent custody is in the children’s best

interests, the juvenile court must consider all the relevant factors, including those enumerated in 5

R.C. 2151.414(D): the interaction and interrelationships of the children, their wishes, their

custodial history, and their need for permanence in their lives. See In re R.G., 9th Dist. Summit

Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11. “Although the trial court is not precluded from

considering other relevant factors, the statute explicitly requires the court to consider all of the

enumerated factors.” In re Smith, 9th Dist. Summit No. 20711, 2002 WL 5178, *3 (Jan. 2,

2002); see also In re Palladino, 11th Dist. Geauga No. 2002-G-2445, 2002-Ohio-5606, ¶ 24.

{¶14} Although both parents visited the children regularly and the children were always

excited and happy to see them, the visits never progressed beyond supervised visitation. The

children’s counselor, who supervised one of the visits, was concerned about the lack of

interaction between the parents and children. She testified that she needed to prompt the parents

to interact with M.H. and R.H. The parents never began counseling with the children because

they had failed to consistently attend their own, individual counseling sessions.

{¶15} During this case, Mother and Father completed two sets of parenting classes.

After the first set of general parenting classes, CSB observed that they were not able to

implement what they had learned. Their second set of classes was designed to address some of

their specific parenting problems, such as hygiene, discipline, nutrition, anger management, and

school readiness. A witness who had instructed the parents testified that Father’s participation

during the classes was not good because he often fell asleep. Mother tended to argue about what

they were teaching her. In the end, after completing the second set of classes, the instructor

concluded that the parents had not learned what they needed to know to be able to parent their

children.

{¶16} CSB remained concerned that the parents continued to lack an ability to make

appropriate parenting choices for their children. For example, Mother had informed the 6

caseworker that she had recently reestablished a relationship with her own father, who is a

convicted sex offender. Despite his sex offender status, Mother seemed to believe that he would

be an appropriate person to help her care for her children.

{¶17} Several other witnesses similarly testified that Mother and Father clearly loved

their children and wanted to be able to provide them with a suitable home, but they were unable

to do so. Witnesses who had observed the parents interact with their children testified that they

continually needed to redirect the parents to correct their inattention to their children or

inappropriate behavior.

{¶18} When the children came into CSB care, each had been exposed to ongoing and

extreme insect infestation, as well as other hazards and potential neglect in their home. R.H. also

suffered from delays in her expressive speech and fine motor skills. Each child had excessive

fears of insects, which caused “destructive sleep” and even caused them to be fearful while

awake. Their counselor explained that M.H. would hear buzzing sounds and have terrible fears

of being stung or bitten. Through the consistency, care, and attention that they had received

while in foster care, each child was demonstrating decreased fears, improved behavior, and

developmental and academic improvements. M.H. told his counselor that he felt safe in his

current foster home.

{¶19} There was evidence before the court that the children loved their parents and

wanted to be reunited with them. Closer to the time of the hearing, however, M.H. told the

guardian ad litem that he wanted to spend one day with his parents and one day with the foster

parents. The children were bonded with each other, with their parents, and with their current

foster parents. The foster parents were interested in adopting the children and had expressed a

willingness to allow the parents to continue visiting the children. 7

{¶20} The guardian ad litem opined that permanent custody was in the children’s best

interests. As several witnesses had already explained, the parents did not interact appropriately

with their children and failed to demonstrate any insight into their parenting problems. The

guardian ad litem was particularly concerned that, after almost two years of case planning

efforts, the parents still failed to recognize that there was anything wrong with their prior, bug-

infested and hazard-laden home. She opined that, no matter how hard they try, these parents

will not be capable of providing their children with a suitable home.

{¶21} M.H. and R.H. spent the early years of their lives living with their parents where

their need for a safe and stable home was not consistently met. Since their removal from their

parents’ home nearly two years before the permanent custody hearing, the children’s needs were

being met on a consistent basis, they were engaged in regular counseling, and they were

overcoming their fears, behavioral problems, and developmental delays. During this time,

however, they had lived in three different temporary placements and were in need of a legally

secure permanent home.

{¶22} Mother and Father were not able to provide the children with a suitable permanent

home because the parents lacked the ongoing assistance and supervision that they would need to

safely parent the children. Although they qualified for a few hours per week of community-

based assistance, the evidence demonstrated that these parents needed much more extensive help

to parent their children. Their only family support system was a maternal great-grandmother,

who had dementia. CSB had considered several relatives to take legal custody of the children

but were unable to find any suitable relative placement for the children. A second cousin

testified at the hearing that she would be willing to help with the children, but she had not seen

the children throughout this case and had no bond with them. 8

{¶23} Consequently, the trial court reasonably concluded that a legally secure

permanent placement would only be achieved by placing the children in the permanent custody

of CSB and that such a disposition was in the children’s best interests. The parents’ assignments

of error are overruled.

III.

{¶24} The parents’ assignments of error are overruled. The judgment of the Summit

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

Judgment affirmed.

There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

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

Costs taxed to Appellants.

DONNA J. CARR FOR THE COURT 9

WHITMORE, J. MOORE, J. CONCUR

APPEARANCES:

SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

GINA D’AURELIO, Attorney at Law, for Appellee.

LINDA BENNETT, Guardian ad litem.