In re Mi.H.

2011 Ohio 6736

• Court: Ohio Court of Appeals
• Decided: December 28, 2011
• Docket: 26077 26096
• Status: Published

Opinion

[Cite as In re Mi.H., 2011-Ohio-6736.]

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

IN RE: MI.H. C.A. Nos. 26077 MAI.H. 26096 MI-J.H. MA-K.H. M.B. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN07-09-0845 DN07-09-0846 DN07-09-0847 DN07-09-0848 DN08-08-0660

DECISION AND JOURNAL ENTRY

Dated: December 28, 2011

WHITMORE, Judge.

{¶1} Appellants, Jaynett B. (“Mother”) and Michael H. (“Father”), have each appealed

from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that

terminated parental rights to Mi.H., Mai.H., Mi-J.H., Ma-K.H., and M.B., and placed the

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

Court affirms.

I

{¶2} Mother had six children, and the children had three different fathers. The oldest

child was placed in the legal custody of a paternal relative, and neither that child nor his father is

a party to this appeal. This appeal concerns the custody of the remaining five children.

Appellant Father is the biological parent of the next four children: Mi.H., born January 20, 2002; 2

Mai.H., born December 22, 2003; Mi-J.H., born April 25, 2005; and Ma-K.H., born February 23,

2007. The paternity of the youngest child, M.B., born August 11, 2008, was never established.

{¶3} A few months after CSB became involved with the family on a voluntary basis,

the police found three of the children alone and unsupervised. The police assumed custody of

the children under Juv.R. 6 and contacted CSB. The agency initiated the present action on

September 13, 2007. In due course, all five children were adjudicated to be dependent and were

placed in the temporary custody of CSB.

{¶4} Mother and Father were each provided with a case plan, and the agency attempted

to reunify the family. Mother’s case plan addressed her need to properly supervise the children

and to regularly get them to school and their appointments. Her plan required a parenting

assessment, parenting classes, a mental health assessment, a chemical dependency assessment,

and efforts to obtain employment and stable housing. Father’s case plan came into effect

following his release from prison on charges of domestic violence against Mother. His case plan

included requirements similar to those of Mother as well as an anger management program.

{¶5} Testimony established that two of the children have special needs. Mi.H. is in

counseling for aggressive behavior, depression, disruptive behavior, and to improve his social

skills. Mai.H. sees a psychiatrist for behavioral concerns and self-injurious behaviors, including

pulling out her hair and hitting herself.

{¶6} On March 4, 2009, CSB moved for permanent custody of all except the youngest

child. Before the motion was heard, however, all of the children were able to be placed in the

legal custody of relatives. The oldest child was placed with a paternal relative. The next four

children were placed with a maternal aunt, Sherica Burkett. The youngest child was placed with

a maternal cousin, Tony Knight, and his wife, Lysa. At that point, the trial court considered the 3

cases closed, save for “any future motions regarding the children’s custody, visitation and/or

support.”

{¶7} The placement of the oldest child remained satisfactory, and that child is not,

therefore, a party to this appeal. The other two placements eventually disrupted, however. The

placement with Ms. Burkett ended, at her request, because she became financially and

emotionally overwhelmed, and she had not received promised assistance from the parents or

other family members. The placement with the Knights ended when the couple decided to obtain

a divorce and expressed the belief that M.B. would be better off in his siblings’ foster home than

with a single parent. None of these relatives or the caseworker was able to locate alternative

relatives that were willing and able to assume custody, and the agency sought temporary custody

of the children. The five children were returned to the same foster home in which they had

previously resided. The children had visited with each other while they were separated into

different homes and shared a strong bond.

{¶8} Mother and Father were permitted to visit with the children, but they were very

inconsistent in their attendance. During the last few months, for example, Mother missed 19 of

29 visits and Father missed 17 of 25. The children loved Mother and missed her when she did

not show up, but their relationship with Father was not as strong. Also, Father had difficulty

managing the children during his visits, and he made no effort to comply with other aspects of

his case plan.

{¶9} Eventually, CSB moved for permanent custody once again. Both the guardian ad

litem and the caseworker supported the motion. The guardian ad litem testified that the three

oldest children reported that they wanted to live with the foster parents where they felt safe. The

children had resided with the same foster parents for a substantial period of time, and the foster 4

parents were interested in adopting all of them if the agency obtained permanent custody. The

psychiatrist testified that although the children were difficult to handle, the foster parents were

doing a fine job with them. The caseworker testified to observing frequent signs of affection

between the foster parents and the children. Mi.H.’s counselor attributed his recent improvement

to the fact that the foster home is a very stable and structured environment where the child feels

safe. Mai.H.’s psychiatrist attributed her progress to the foster parents and noted that she is very

attached to them.

{¶10} Mother sought legal custody of all five children and alternatively requested legal

custody with protective supervision in CSB. Father sought legal custody of his four children and

alternatively requested that legal custody be awarded to the paternal grandmother, but she had

not seen the children for over a year. A maternal great uncle, Richard Burkett, moved for legal

custody of M.B., the youngest child, but the uncle had had little contact with M.B. since early in

these proceedings.

{¶11} Following a hearing on all pending motions, the trial court granted permanent

custody of the five children to CSB. The trial court noted that Mother recognized she was unable

to care for her children and found that the other potential caregivers had not nurtured a positive

relationship with the children. Mother and Father have separately appealed, and they have each

assigned three errors for review. The parents’ assignments of error and supporting arguments are

virtually identical.

Mother’s Assignment of Error Number One

“THE TRIAL COURT DENIED MOTHER HER FUNDAMENTAL RIGHT TO RAISE HER CHILDREN WHEN THE COURT REOPENED THE WITHIN CASE ON JULY 28, 2010, INSTEAD OF OPENING A NEW CASE AND PROVIDING MOTHER WITH THE OPPORTUNITY TO FULLY WORK THE CASE PLAN.” 5

Mother’s Assignment of Error Number Two

“MOTHER’S DUE PROCESS RIGHTS WERE DENIED WHEN THE CASE WAS REOPENED RATHER [THAN] A NEW CASE BEING FILED.”

Father’s Assignment of Error Number One

“THE TRIAL COURT DENIED FATHER HIS FUNDAMENTAL RIGHT TO RAISE HIS CHILDREN WHEN THE COURT REOPENED THE WITHIN CASE ON JULY 28, 2010 INSTEAD OF OPENING A NEW CASE AND PROVIDING FATHER WITH THE OPPORTUNITY TO FULLY WORK THE CASE PLAN[.]”

Father’s Assignment of Error Number Two

“FATHER’S DUE PROCESS RIGHTS WERE DENIED WHEN THE CASE WAS REOPENED RATHER THAN A NEW CASE BEING FILED[.]”

{¶12} Through their first two assignments of error, Mother and Father have contended

that the trial court erred in proceeding on CSB’s second motion for permanent custody by

“reopening” the existing case instead of creating a new case and providing them with an

additional year to work on their case plans. They argue that when the legal custody placements

disrupted, due process required the agency to file a “new case” rather than continuing with the

existing case.

{¶13} The parents have waived and/or forfeited this argument on appeal because they

either stipulated to the result or failed to raise the issue before the trial court. See State v. Payne,

114 Ohio St.3d 502, 2007-Ohio-4642, at ¶23. When the legal custody placements ended, neither

parent requested that a new case be filed, nor did they object to the change in disposition from

legal custody to temporary custody with the agency. Mother did not even attend the relevant

hearings, and Father stipulated to the disposition of temporary custody for his children. Finally,

neither parent raised a due process argument before the trial court. Finding no structural error,

we conclude that the parents have forfeited all but plain error. Payne, at ¶23-24. Moreover, the

claimed error does not reach the level of plain error as we also conclude that no error occurred. 6

{¶14} The parents cite R.C. 2151.353(F) in support of their claim that the trial court

should have opened a new case, apparently taking the position that the jurisdiction of the juvenile

court lapsed after one, or potentially two years, of temporary custody.

{¶15} R.C. 2151.353(F) provides as follows:

“Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion pursuant to section 2151.415 of the Revised Code, the temporary custody order shall continue and not terminate until the court issues a dispositional order under that section. In resolving the motion, the court shall not order an existing temporary custody order to continue beyond two years after the date on which the complaint was filed or the child was first placed into shelter care, whichever date is earlier, regardless of whether any extensions have been previously ordered pursuant to division (D) of section 2151.415 of the Revised Code.” R.C. 2151.353(F).

{¶16} The Ohio Supreme Court has held that the passing of the statutory time periods in

R.C. 2151.353(F) “does not divest juvenile courts of jurisdiction to enter dispositional orders.”

In re Young Children (1996), 76 Ohio St.3d 632, syllabus. Where parenting problems still

remain unresolved after the specified periods of time, “courts have the discretion to make a

dispositional order in the best interests of the [children].” Id. at 638. The Young Court

emphasized that “because the court retains jurisdiction over the [children], it may make further

dispositional orders as it deems necessary to protect the [children].” Id. In fact, “[t]he juvenile

court retains jurisdiction over those children to ensure their safety and proper treatment until they

become adults.” In re Cross, 96 Ohio St.3d 328, 2002-Ohio-4183, at ¶10, citing R.C.

2151.353(E)(1).

{¶17} Moreover, although a grant of legal custody to an individual is intended to be

permanent in nature, the trial court is specifically authorized by statute to modify or terminate

such an order if it finds, as it did here, that a change has occurred in the circumstances of the 7

legal custodian and that such a change is necessary to serve the best interest of the child. R.C.

2151.42(B). In addition, where the agency has requested the court to modify or terminate a

previous order of disposition, the court is further authorized to “hold a hearing upon the motion

as if the hearing were the original dispositional hearing.” R.C. 2151.353(E)(2). Consequently,

the juvenile court retained jurisdiction over the children, was entitled to terminate the order of

legal custody, and was authorized to make a further disposition.

{¶18} Although Ohio statutes do not specify exactly how much time parents have to

work on case plans, the courts generally permit a reasonable amount of time under the

circumstances and as is necessary to effectuate the best interests of the children. In this regard, it

is worth noting that by the time of the permanent custody hearing, the present matter had been

pending for nearly four years and, in that time, the parents had not made any notable progress

toward reunification. By any measure, these children deserved to be moving towards a

permanent placement and not just “starting over.”

{¶19} The first two assignments of error of Mother and of Father are overruled.

Mother’s Assignment of Error Number Three

“THE TRIAL COURT ERRED IN GRANTING [CSB] PERMANENT CUSTODY WHEN THE COURT DID NOT FIND THAT [CSB] HAD MADE [REASONABLE] EFFORTS TO RETURN THE CHILDREN TO A PARENT[.]”

Father’s Assignment of Error Number Three

“THE TRIAL COURT ERRED IN GRANTING [CSB] PERMANENT CUSTODY WHEN THE COURT DID NOT FIND THAT [CSB] HAD MADE [REASONABLE] EFFORTS TO RETURN THE CHILDREN TO A PARENT[.]” 8

{¶20} In their third assignments of error, Mother and Father have claimed that the trial

court failed to enter a finding that CSB had made reasonable efforts to return the children to a

parent or explain why the agency was not required to enter such a finding.

{¶21} In making this argument, the parents have relied upon R.C. 2151.419. This

statute indicates the several points in the course of custody proceedings when the trial court is

required to determine that a children services agency made reasonable efforts to (1) prevent the

removal of a child from the child’s home, (2) eliminate the continued removal of a child from the

child’s home, or (3) make it possible for a child to return safely home. R.C. 2151.419(A)(1).

The trial court is not, however, required to make such a determination at the same time it grants

permanent custody to the agency unless reasonable efforts were not established earlier in the

proceeding. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, at ¶43.

{¶22} Neither parent has argued that the agency failed to make the necessary reasonable

efforts determinations in any of the earlier hearings. Consequently, the trial court did not err in

failing to make a finding of reasonable efforts at the time it granted permanent custody of the

children to the agency. See In re Tyler C., 6th Dist. No. L-07-1159, 2008-Ohio-2207, at ¶75

(holding that a finding of reasonable efforts was not necessary when the agency’s request for

permanent custody followed an adjudication and an initial disposition of legal custody to

mother).

{¶23} Mother’s third assignment of error and Father’s third assignment of error are

overruled. 9

III

{¶24} Mother’s three assignments of error are overruled. Father’s three 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(E). The Clerk of the Court of Appeals is

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

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

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

BELFANCE, P. J. MOORE, J. CONCUR 10

APPEARANCES:

KENNETH C. MARTIN, Attorney at Law, for Appellant.

JAMES E. BRIGHTBILL, Attorney at Law, for Appellant.

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