In re M.K.

2024 Ohio 5563

• Court: Ohio Court of Appeals
• Decided: November 22, 2024
• Docket: 2024 AP 08 0029
• Status: Published

Opinion

[Cite as In re M.K., 2024-Ohio-5563.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: M.K. & D.H. JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Andrew J. King, J.

Case No. 2024 AP 08 0029

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 23 JN 00364

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 22, 2024

APPEARANCES:

For Appellee For Appellant, L.H.

LISA VITALE ARNOLD RICHARD D. HIXSON Tuscarawas County Job & Family 3808 James Court, Suite 2 Services Zanesville, Ohio 43701 389 – 16th Street, S.W. New Philadelphia, Ohio 44663 Guardian ad Litem

MARY WARLOP 116 Cleveland Avenue, N.W., Suite 500 Canton, Ohio 44702 Tuscarawas County, Case No. 2024 AP 08 0029 2

Hoffman, J. {¶1} Appellant L.H. (“Mother”) appeals the August 15, 2024 Judgment Entry

entered by the Tuscarawas County Court of Common Pleas, Juvenile Division, which

terminated Mother’s parental rights with respect to her minor child (“the Child”) and

granted permanent custody of the Child to appellee Tuscarawas County Department of

Job and Family Services (“TCJFS”).

STATEMENT OF THE FACTS AND CASE

{¶2} Mother and T.H. (“Father”) are the biological parents of the Child.1 The

family has a history with TCJFS, both with and without court involvement, dating back to

August, 2019. Relative to the instant matter, TCJFS became involved with the family on

December 26, 2023, due to concerns about Mother’s mental health and her inability to

care for the Child and the Child’s older sibling (“the Sibling”). M.K., the father of the

Sibling, lives out of state and is a registered sex offender. Father has been convicted of

domestic violence, child endangering, menacing, and trespassing. Following a shelter

care hearing on December 28, 2023, the Child and the Sibling were placed in the

temporary custody of TCJFS. On the same day, TCJFS filed a complaint, alleging the

Child and the Sibling were neglected and dependent. The trial court appointed Attorney

Lisa Vitale Arnold as Guardian ad Litem (“GAL”) for the Child and the Sibling.

{¶3} Following an adjudicatory hearing on January 31, 2024, the trial court found

the Child and the Sibling to be dependent. The trial court granted Mother’s motion to

dismiss the allegation of neglect. Neither Father nor the father of the Sibling appeared

for the hearing. The trial court ordered the Child and the Sibling remain in the temporary

1 Father is not a party to this appeal and did not appear in the trial court. Tuscarawas County, Case No. 2024 AP 08 0029 3

custody of TCJFS. The trial court conducted a dispositional hearing on February 21,

2024. The trial court approved and adopted the case plan, and ordered the Child and the

Sibling remain in the temporary custody of TCJFS. Neither Father nor the father of the

Sibling appeared for the hearing. The Sibling was placed with C.H., an adult sister.

{¶4} During a meeting with the TCJFS caseworker on January 25, 2024, Mother

stated she did not wish to engage in case plan services to reunify with the Child and the

Sibling. Mother explained she did not want to “jump through hoops” and she knew the

Child and the Sibling were safe. Mother indicated she did not oppose C.H. being given

legal custody of the Sibling or TCJFS receiving permanent custody of the Child.

{¶5} Mother was granted supervised, one-hour weekly visits with the Child and

the Sibling. Since February 7, 2024, Mother attended only three (3) of six (6) scheduled

visits. Mother no-showed and failed to contact TCJFS about the missed visits. Mother’s

last visit was on February 28, 2024. After attending two (2) visits, the Sibling reported a

wish to no longer visit with Mother. TCJFS suspended Mother’s visitation on April 2, 2024,

due to the three (3) no-shows, which was a consequence of Mother’s violation of TCJFS’s

visitation policy.

{¶6} The trial court conducted review hearings on April 22, 2024, and June 24,

2024, and maintained the status quo. On May 7, 2024, TCJFS filed a motion to modify

prior disposition of the Child to permanent custody as well as a motion to modify prior

disposition of the Sibling to legal custody. The trial court conducted a hearing on the

motions on August 13, 2024. On the day of the hearing, Mother filed a motion to extend

temporary custody in order for her to work on her case plan. Therein, Mother stated “she

was not mentally balanced at the time the caseplan [sic] services were commenced,” Tuscarawas County, Case No. 2024 AP 08 0029 4

adding she had been evicted and living in her car. August 13, 2024 Motion to Extend

Temporary Custody/Caseplan Services at p. 1, unpaginated. Mother explained she

moved to Virginia in April, 2024, where she resides with her mother and “has been able

to stabilize herself so as to productively work a plan.” Id.

{¶7} At the hearing, Mother and the father of the Sibling stipulated to a grant of

legal custody of the Sibling to C.H. The trial court found the stipulations were knowingly

and voluntarily made and accepted the same. The trial court denied Mother’s motion to

extend temporary custody.

{¶8} The following evidence was presented at the hearing:

{¶9} C.H., who was 21 years old at the time of the hearing, is Mother’s daughter

and currently the legal guardian of the Sibling. C.H. stated she moved out of Mother’s

home when she was approximately 17 years old. C.H. testified Mother is schizophrenic,

and since C.H. was little, “it’s like a cycle.” Transcript of August 13, 2024 Hearing at p.

15. C.H. explained Mother would do well for a period of time, but would stop taking her

medication because she felt better, and then would spiral. When Mother hit “rock bottom,”

she would hallucinate and would not take care of her children. C.H. recalled the cycles

would occur every couple of months. C.H. has visited the Child at his foster placement

and observed improvements in the Child’s behavior. C.H. expressed concerns about the

Child return returning to Mother due to Mother’s mental health issues.

{¶10} Breana Bryant, the ongoing TCJFS caseworker assigned to the family,

testified regarding the family’s history with TCJFS, which dated back to August, 2019.

The concerns at the time were truancy involving the Sibling, domestic violence, and drug

use in the home. After Mother worked an informal case plan, the Sibling was reunified Tuscarawas County, Case No. 2024 AP 08 0029 5

and the case was closed. TCJFS became involved with the family again in June, 2021,

due to concerns about Father being intoxicated when the Child and the Sibling were in

his care. Mother was advised if Father returned to the home, there would be

repercussions. The case was closed in August, 2021. There was no court involvement in

that case.

{¶11} In September, 2021, Father was found at the home and arrested on

outstanding warrants for domestic violence and child endangering. Father was convicted

of both charges. Mother worked a case plan and she was reunited with the Child and the

Sibling in December, 2022. TCJFS maintained protective supervision until such was

terminated by the trial court in June, 2023.

{¶12} Bryant stated the instance case commenced on December 26, 2023, due

to Mother’s mental health and inability to care for the Child and the Sibling. Mother was

hearing voices and hallucinating. Mother had stopped taking her medication and lost her

job as a result. The Sibling took on the role of caring for the Child. TCJFS was granted

temporary custody. When Bryant met with Mother on January 25, 2024, Mother advised

the caseworker she did not want to jump through hoops again and work a case plan.

Mother stated she just wanted to see the Child and the Sibling. Mother told Bryant “she

was okay with where her children were at, and that they were safe.” Tr. at p. 29. Mother

had visits with the Child and the Sibling, but the visits were suspended in March, 2024,

after Mother had three no-shows.

{¶13} Bryant noted Mother had no contact with TCJFS from February 28, 2024,

until July 22, 2024, when she reached out to Bryant, asking what she needed to do to get

the Child back. Bryant advised Mother TCJFS had filed for permanent custody and the Tuscarawas County, Case No. 2024 AP 08 0029 6

hearing was in three (3) weeks. Bryant had no contact with Father throughout the

pendency of the case.

{¶14} Bryant explained Mother was not on the case plan filed on January 29,

2024, because she had denied case plan services. Mother had a negative drug screen

on December 26, 2023, and a positive drug screen for TCH on January 24, 2024. Bryant

stated Mother had failed to remedy the concerns which led to the removal of the Child

from the home. Bryant recalled the Sibling attended only two (2) visits with Mother before

expressing a desire not to visit Mother. During the two (2) visits, the Sibling was parenting

the Child. Mother did not have much interaction with the Child during the one visit with

only the Child. The Child played with toys and entertained himself.

{¶15} The Child is currently in the same foster home in which the Child was placed

during the case initiated in September, 2021. When the Child returned to the foster home,

the Child had a lot of behavioral issues and was not potty trained. The Child had

previously had a routine and structure with the foster family. The Child is bonded with the

foster family and is particularly attached to the foster mother. The Child does well with

the other children in the foster home. The foster parents are willing to adopt the Child.

Bryant noted the Child had been in the foster family’s care for half of the Child’s life.

{¶16} Mary Warlop, the GAL, testified she was also the GAL in the case initiated

in September, 2021. Warlop indicated she had not had any contact with Mother or Father

during the present matter. Warlop was concerned about the Child returning to Mother’s

care due to Mother’s history of untreated mental health issues, problems with her stability,

and lack of contact with the Child. Warlop was unable to observe Mother’s visits with the

Child as a result of the suspension of Mother’s visits. Warlop observed the Child in the Tuscarawas County, Case No. 2024 AP 08 0029 7

foster home on several occasions. Warlop found the home safe and appropriate. The

Child is well-loved, interacts appropriately with the foster parents, and is bonded and

attached to them. Warlop expressed her belief permanent custody was in the best interest

of the Child.

{¶17} Mother testified on her own behalf. She acknowledged her mental health

issues and her struggles to get her medication properly adjusted. Mother had been living

with her uncle, but he evicted her after two or three weeks. Mother lived in her car for a

couple of months. Mother stated she called the homeless shelter, but no one answered.

Mother indicated she was taking her medication at the time of the hearing. Mother moved

to Virginia in late March, early April, 2024, and was residing with her mother. Mother

explained she stopped visiting the Child because during her prior visit, the Child said

something which upset her. Mother was seeing a psychiatrist in Virginia and her

medication was properly adjusted. Mother expressed her willingness to work on a case

plan and felt she was in a position to do so.

{¶18} During cross-examination, TCJFS Attorney Lisa Vitale Arnold questioned

Mother, “you stopped visiting [the Child] because of a statement [the Child] made to you.

So, your solution to help [the Child] through whatever [the Child] was going through was

to go away and have no contact?” Tr. at p. 91. Mother responded, “No. * * * I was

homeless. I mean, I was living out in my car. * * * I didn’t want [the Child] to see me that

way.” Id. Mother explained she did not want to work a case plan because she had already

done so in the prior case. Mother insisted she would be able to care for the Child because

“if I take my medication every day, I know that nothing’s going to happen.” Id. at p. 97.

Mother downplayed her history of cycles with respect to her mental health. Mother Tuscarawas County, Case No. 2024 AP 08 0029 8

indicated she did not return to Ohio after moving to Virginia because she and her mother

“argued about whether or not [she] should come back here to Ohio to get [the Child and

the Sibling].” Id. at p. 94.

{¶19} Via Judgment Entry filed August 15, 2024, the trial court terminated

Mother’s parental rights with respect to the Child and granted permanent custody of the

Child to TCJFS. The trial court found the Child could not and should not be placed with

Mother within a reasonable time and Mother continually and repeatedly failed to remedy

the conditions which caused the Child's removal. The trial court also found a grant of

permanent custody was in the best interest of the Child. In addition, the trial court granted

legal custody of the Sibling to C.H., based upon Mother’s stipulation and the

recommendation of the GAL. The trial court denied Mother's motion for an extension of

temporary custody.

{¶20} It is from this judgment entry Mother appeals, raising the following

assignments of error:

I. THE TRIAL COURT’S FINDING THAT THE MINOR CHILDREN

COULD NOT BE PLACED WITH EITHER PARENT WITHIN A

REASONABLE TIME OR SHOULD NOT BE SO PLACED WAS

UNSUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND

AGAINST THE WEIGHT OF THE EVIDENCE. Tuscarawas County, Case No. 2024 AP 08 0029 9

II. THE TRIAL COURT’S FINDING THAT PERMANENT CUSTODY

WAS IN THE BEST INTERESTS OF THE MINOR CHILDREN WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶21} These cases come to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).

I, II

{¶22} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent

and credible evidence upon which the fact finder could base its judgment. (Citation

omitted.) In re D.R., 2024-Ohio-1819, ¶28 (5th Dist.). Accordingly, judgments supported

by some competent, credible evidence going to all the essential elements of the case will

not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.

Foley Constr., 54 Ohio St.2d 279, syllabus (1978).

{¶23} 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 the 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.

{¶24} 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 Tuscarawas County, Case No. 2024 AP 08 0029 10

permanent custody to the agency, and that any of the following apply: (a) the child is not

abandoned or orphaned, 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; (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 placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

{¶25} 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.

{¶26} If the child is not abandoned or orphaned, the focus turns to whether the

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

be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

{¶27} We review a trial court's best interest determination under R.C. 2151.414(D)

for an abuse-of-discretion. In re D.A., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶

47. A trial court's failure to base its decision in consideration of the best interest of the Tuscarawas County, Case No. 2024 AP 08 0029 11

child constitutes an abuse-of-discretion. In re R.S., 2022-Ohio-4387, ¶ 45 (8th Dist.),

quoting In re N.B., 2015-Ohio-314, at ¶ 60 (8th Dist.). “The term ‘abuse-of-discretion’

connotes more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

{¶28} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D)(1) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (a) 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; (b) the wishes of the child as

expressed directly by the child or through the child's guardian ad litem, with due regard

for the maturity of the child; (c) the custodial history of the child; (d) 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; and (e) whether any of the factors in division (E)(7)

to (11) of R.C. 2151.414 apply in relation to the parents and child.

{¶29} Mother challenges the trial court’s finding the Child could not or should not

be placed with her within a reasonable time, which the trial court based upon concerns

regarding her mental health. Mother contends she was given a “mere four-to-five-month

period [between the finding of dependency and TCJFS’s filing of the motion for permanent

custody] to adequately address her mental health concerns.” Brief of Appellant at p. 9.

Mother asserts “her initial refusal to work case plan services should not eliminate the

obligation of the agency to continue attempt[s] to provide such services, especially in a

case where Mother initially exhibited significant mental health symptoms that could cloud Tuscarawas County, Case No. 2024 AP 08 0029 12

her judgment.” Id. Mother also challenges the trial court’s finding permanent custody was

in the best interest of the Child, arguing the trial court failed to give satisfactory weight to

R.C. 2151.414(D)(1) as TCJFS did not fully analyze all dispositional options prior to

moving for permanent custody.

{¶30} As set forth in our Statement of the Case and Facts, supra, Mother refused

to engage in case plan services because she did not want to jump through hoops again.

Although Mother claimed she saw a psychiatrist while living in Virginia and was mentally

stable, Mother downplayed the severity of her mental health issues when she stopped

her medication. C.H. described Mother’s mental health issues, explaining Mother is

schizophrenic and spirals when she stops taking her medication. C.H. noted these cycles

of stability and instability occur every couple of months. During the two visits between

Mother, the Child, and the Sibling, the Sibling parented the Child. During the one visit with

only the Child, Mother did not engage and the Child played alone. Mother no-showed for

three visits and her visitation was suspended as a result. She made no attempt to reinitiate

visitation.

{¶31} The Child was in the temporary custody of TCJFS between September 13,

2021, and December 13, 2022. The Child returned to Mother’s care with protective

supervision, which was terminated in June, 2023. However, the Child was removed again

on December 26, 2023, due to Mother’s mental health and inability to care for the Child.

The Child is doing well in the foster home. After the six-month period with Mother, the

Child returned to the foster family with behavioral issues which had been previously

addressed. The foster parents wish to adopt the Child. The GAL also recommended

permanent custody be granted to TCJFS due to Mother’s history of untreated mental Tuscarawas County, Case No. 2024 AP 08 0029 13

health issues, her lack of stability, and her failure to have any contact with the Child after

February 28, 2024.

{¶32} Based upon the foregoing, we find the trial court's finding the Child could

not and should not be placed with Mother in a reasonable time was supported by

competent, credible evidence and was not against the manifest weight of the evidence.

We further find the trial court's finding it was in the Child's best interests to grant

permanent custody to TCJFS was not against the manifest weight of the evidence.

{¶33} Mother's first and second assignments of error are overruled.

{¶34} The judgment of the Tuscarawas Court of Common Pleas, Juvenile

Division, is affirmed.

By: Hoffman, J. Delaney, P.J. and King, J. concur