In re M.W.

2013 Ohio 3400

Opinion

[Cite as In re M.W., 2013-Ohio-3400.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

IN THE MATTER OF: CASE NO. 1-12-51 M.W.,

ADJUDICATED DEPENDENT CHILD. OPINION [YANICA WRIGHT – APPELLANT].

Appeal from Allen County Common Pleas Court Juvenile Division Trial Court No. 2011 JG 28533

Judgment Affirmed

Date of Decision: August 5, 2013

APPEARANCES:

F. Stephen Chamberlain for Appellant/Mother

Mariah M. Cunningham for Appellee, Allen Co. CSB

James A. Roeder, Guardian Ad Litem Case No. 1-12-51

WILLAMOWSKI, J.

{¶1} Mother-appellant Yanica Wright (“Wright”) brings this appeal from

the judgments of the Court of Common Pleas of Allen County, Juvenile Division

terminating her parental rights. For the reasons set forth below, the judgment is

affirmed.

{¶2} This court initially notes that this case is a companion case to case

nos. 1-12-48, 1-12-49, and 1-12-50. On March 26, 2010, M.W. was born to

Wright and an unidentified father. On April 29, 2010, M.W. was placed under the

protective supervision of Allen County Children Services (“the Agency”), along

with his three siblings, K.C., G.W., and T.W. He was removed from the home

under an emergency shelter care order on December 17, 2010. Temporary custody

of M.W. was granted to the Agency at that time. On March 21, 2011, a new

emergency shelter care order was signed and temporary custody of M.W. was

continued with the Agency.1 The trial court granted the shelter care request due to

Wright’s failure to address the medical, dental and personal hygiene needs of her

children and for denying the Agency access to her home. On March 22, 2011, the

Agency filed a complaint alleging that M.W. was a dependent and neglected

1 The new order was done because the prior case was being terminated by the two year deadline set forth by statute.

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child.2 The Agency alleged in the complaint that Wright had failed to comply

with her mental health service plan, and that Wright failed to maintain a clean and

safe environment for M.W. A case plan was filed on March 24, 2011. The case

plan required Wright to complete the following goals: 1) obtain a psychological

assessment, 2) attend counseling consistently, 3) take random drug screens and

test negative for all illicit drugs, 4) maintain the home in a clean and safe

condition, 5) permit the Agency personnel to check on the home conditions at

random, unannounced times, and 6) communicate with her caseworker. On March

25, 2011, the Guardian Ad Litem (“the GAL”) filed a motion to suspend Wright’s

visitation with the children. This motion was based upon the fact that Wright

became irrational and aggressive during a visitation to the point that the police had

to be called to escort her from the building. The motion was granted by the trial

court on April 1, 2011.

{¶3} An adjudicatory hearing on the March 22, 2011, complaint was held

on May 12, 2011. The magistrate determined that the previous action had begun

due to the poor home conditions including finding human feces in the heat

registers. Wright had mental health needs that needed to be addressed. Wright did

not follow the case plan and obtain the necessary counseling for herself. Although

Wright had been found in contempt of court for her failure to follow the case plan,

2 Service was attempted on the unknown father via publication. No one ever contacted the court to claim paternity.

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she still chose not to comply and had to spend 30 days in jail for contempt of

court. In addition, Wright’s March 2011 drug screen was positive for marijuana.

Wright had been terminated from mental health services for noncompliance. Due

to Wright’s failure to allow the Agency to view the home and other failure to

comply with the case plan, the magistrate determined that M.W.’s environment

was unsafe and found him to be a dependent child. The dispositional hearing was

held on May 20, 2011. Temporary custody of M.W. was granted to the Agency.

The trial court adopted the decisions of the magistrate concerning adjudication and

disposition on July 5, 2011.

{¶4} Wright, on August 18, 2011, filed a motion for in-home visitation with

M.W. and his siblings. The Agency opposed the motion on the grounds that

Wright was not complying with the case plan. A hearing on the motion for

visitation and approval of a modified case plan was held on October 13, 2011.

The magistrate noted that Wright had a positive drug test in August of 2011, but a

negative one in September of 2011. Based upon Wright’s unwillingness to follow

the case plan and address the issues, the magistrate denied her motion for in-home

visitations. The magistrate also approved the modified case plan. The trial court

adopted the magistrate’s decision on November 9, 2011.

{¶5} On October 6, 2011, the Agency filed a motion requesting that Wright

be held in contempt for not following the case plan by 1) failing to work with the

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family aid, 2) failing to allow the Agency access to all rooms in her home for

inspection, 3) failing to have a source of income, 4) failing to take random drug

screens when requested and failing the one she did take, and 5) failing to follow

the recommendations of her psychologist or attend counseling. A show cause

hearing was scheduled for February 29, 2012, regarding Wright’s failure to

comply with the court ordered case plan. At the hearing, Wright admitted

violating the case plan by refusing a drug test and by testing positive. The

magistrate decided that Wright was in contempt of court. The trial court adopted

the magistrate’s decision on April 16, 2012.

{¶6} On December 9, 2011, the GAL filed a motion to suspend visitation.

The motion was based upon the negative reactions of M.W.’s siblings prior to and

following the visits with Wright on Tuesday. The GAL indicated in his affidavit

that although M.W. did not exhibit any of the negative behaviors of his siblings,

he was only nineteen months of age and had been out of the home since he was

seven months of age. The GAL stated that in his opinion, it would be best to cease

M.W.’s visits with Wright as well to protect him from the harm caused to his

siblings. The trial court granted a temporary order suspending visitation ex parte

on December 14, 2011, with a full hearing scheduled for February 29, 2012.

{¶7} At the hearing, M.W,’s foster mother, Ashley Mertz (“Mertz”)

testified that when M.W. came to live with her, he was sick. Tr. 3. She testified

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that M.W. needed medication for asthma and acid reflux. Tr. 7. M.W. also suffers

from sleep apnea and is being treated by Children’s Hospital in Dayton. Tr. 26.

She admitted that the visits did not seem to have any effect on M.W.’s behavior.

Tr. 27. Based upon the negative affect on the older siblings, the magistrate’s

decision recommended suspending the visitation with all of the children, including

M.W. The trial court adopted the magistrate’s decision on April 16, 2012.

{¶8} On February 13, 2012, the Agency filed a Motion for Permanent

Custody of M.W. The motion alleged that Wright had failed to comply with the

case plan to substantially remedy the conditions of the home. The parties

stipulated to the report of Dr. Thomas L. Hustak (“Hustak”), a forensic

psychologist, regarding the psychological evaluation of Wright. The evaluation

was completed in April of 2011. It was filed with the court on June 26, 2012.

Hustak’s report indicated that Wright claimed that it was K.C.’s behavior that

caused the Agency to become involved with her family. She claims that the

landlord called the Agency because K.C. would hit his siblings, urinated on the

carpets, left bowel movements in the vents of the house, and refused to brush his

teeth. Report, 4. Wright minimized her responsibility for the Agency’s

involvement by claiming that her caseworkers “had an attitude against me.”

Report, 5. Wright’s idea for discipline involved physically striking G.W. Id. The

mental status examination indicated that Wright has some difficulties with

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concentration. Report, 6. Her composite IQ was determined to be 72, which was

below average. Report, 7. Her verbal score of 68 was “quite low, placing her in

the ‘lower extreme’ category suggesting that 98% of the population scores higher

than [Wright] and she has the verbal age of a 10 year old.” Id. Hustak noted the

following regarding Wright’s adaptive behavior.

The results of this assessment showed that [Wright’s] independent functioning in most areas was adequate. Exceptions included strong underarm odor and wearing clothes that were not properly cleaned. She apparently is appropriately mobile and has a telephone but she has no independent means of transportation. Other areas of independent functioning are adequate.

[Wright’s] physical development apparently shows no major difficulties. Her economic activity shows that she apparently does not use banking facilities but purchases her own clothing. Her speech sometimes exhibits halting and irregular interruptions but otherwise is reasonably developed. Social language development is lacking. She doesn’t talk sensibly when interacting with CSB workers and they find it difficult to reason with her. Her self-direction is also lacking in that she needs encouragement to complete tasks, has little ambition, and her movement when observed by [the Agency] workers seems to be sluggish and slow. She becomes easily discouraged, needs encouragement to complete things that are assigned to her, and unfortunately does not always maintain self-control over her behavior. She doesn’t respond to others in a socially acceptable manner and demonstrates significant impairment in the area of social behaviors. Specifically, when interacting with CSB she has used threatening gestures, has thrown objects, exaggerates stories of interaction with CSB workers, appears to manipulate others to get them in trouble, and has difficulties following instructions.

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When she does not get her way, she becomes upset, does not pay attention to instructions, hesitates for long periods before doing the tasks, and frequently does the opposite of what is requested. She resents those in authority, is disruptive, and tends to repeat things when asked questions.

Report 8-9.

{¶9} Hustak administered the Minnesota Multiphasic Personality Inventory

– 2 (“MMPI-2”) to Wright. The results of the MMPI-2 indicated that Wright has

problems with anyone who has power over her. Report, 10. Her response to

relationships is to become aloof and cold in an attempt to advance herself at the

expense of others. Report, 11. This profile on the MMPI-2 is indicative of one

with a severe personality disorder. Id. Wright’s disorder has led to paranoid

thinking. Id. People with profiles like Wright are likely to have angry outbursts

that will be blamed on others. Id. Wright also is suspicious of other’s motives and

believes that she would be fine if people were not plotting against her. Report, 12.

Wright’s profile also indicated a borderline score on the schizophrenia scale. Id.

Hustak determined that the prognosis for Wright is poor because from her

perspective, “everything is caused by someone else other than the things that she

herself does or fails to do.” Id. Although there was no indication of psychotic or

antisocial behavior, Wright’s unusual thinking does interfere with her social

interactions. Report, 13.

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{¶10} Due to the indications of personality disorder issues, Hustak

administered the Millon Clinical Multiaxial Inventory – III (“MCMI-III”) to assess

Wright’s functioning. Report, 14. The MCMI-III indicated that Wright has traits

of a compulsive personality disorder. Id. This is exhibited through perfectionism

in her decision making and completion of tasks. However, due to her limited

intellectual functioning, she is not capable of achieving perfectionism in her

choices. Report, 15. “[I]n some ways, one could conclude that she is not very

good at embracing her desire to be compulsive.” Id. Wright views the world as

rigid and becomes upset by her own indecisiveness. Id. To repress her thoughts

of inadequacy, Wright creates positive thoughts of herself even if they are

contradicted by the evidence. Id. The positive aspects of the MCMI-III were that

there was nothing to suggest that Wright suffered from anxiety, alcohol

dependence, post-traumatic stress, borderline thinking, schizophrenia, depression,

or a delusional disorder. Report, 16.

{¶11} In his conclusion, Hustak determined that a likely diagnosis for

Wright would be “Personality Disorder NOS which takes into account the fact that

she possesses traits and symptoms of the three personality types noted above in

various combinations to account for her problematic behavior.” Report, 17.

Unfortunately, this personality combination makes it very difficult to have [Wright] address problems when she is convinced that she does not have those problems and/or that the problems she sustains are caused by other people. When

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questioned about how these situations transpired with her children in regard to the concerns expressed by [the Agency], [Wright’s] explanations were quite poor and offered little substance for understanding why things have gotten so out of control. * * *

***

While it is true that no scientific predictions can be made with any degree of absolute certainty about the future, one does need to evaluate risks for problems as they arise. At the time of her evaluation, [Wright] had significant limitations that would appear to place her children at risk. If she could follow all of the guidelines listed above, it would still be difficult to conclude that all of those risks would be eliminated unless clear evidence could be presented to professionals that a systematic and safe treatment plan with supervision, cleanliness, and safety could be adequately provided by [Wright] in her home environment. Frankly, the probability of this happening would be considered fairly low because her cognitive limitations are static (not changeable) whereas the personality configurations may be more dynamic (subject to change depending upon her willingness to do so).

Report, 17, 20.

{¶12} The GAL filed his report on July 24, 2012. The GAL noted that he

had reviewed the Agency’s file on multiple occasions, reviewed the court records,

reviewed Wright’s Facebook page, reviewed Wright’s psychological evaluation,

spoken with the care providers and had multiple visits with M.W.. GAL Report,

1-2. The GAL noted that M.W. has “flourished” in his foster placement. Id. at 2.

The GAL indicated that M.W. was too young to express his opinion as to whether

he wanted to return to Wright. Id. The GAL then recommended that Wright’s

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parental rights be terminated and permanent custody be granted to the Agency. Id.

at 4.

{¶13} On July 31, 2012, the parties stipulated to the admission of the

testimony of Mertz from the February 29, 2012 hearing at the hearing for the

motion for permanent custody. The hearing on the Motion for Permanent Custody

was held from August 1-3, 2012. At the beginning of the hearing, the parties

stipulated to the admission of Exhibit 2, the deposition of Erica Croft (“Croft”)

which was completed on June 28, 2012. Croft was K.C.’s kindergarten teacher.

Croft testified that when they had meetings with Wright and her social worker, she

was polite to her social worker, but hostile to the school faculty. Id. at 24.

{¶14} The first live witness was Judith Lester (“Lester”), who is a licensed

social worker. Lester started working with K.C., G.W. and Wright in January of

2007. Tr. 14, 17. One of the reasons for her participation was to help Wright

learn more positive parenting practices. Tr. 16. Despite numerous meetings with

Wright, she was frequently angry and out of control, so no real progress was

made. Tr. 23. Lester only worked with Wright for two months because Wright

was not cooperative. Tr. 25. Out of the ten home visits scheduled, Wright only

was home and willing to work with Lester for five of the visits. Tr. 25. Lester

provided Wright with instruction on how to use anger management techniques, but

Wright just insisted they did not work. Tr. 28-29. Rather than continuing to work

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on the anger issues, Wright just quit trying. Tr. 30. Lester had never met M.W. as

her services were terminated before M.W. was born.

{¶15} Lester also testified as to the condition of the home. On January 24,

2007, Lester visited the home and smelled the odor of something rotting

throughout the home. Tr. 30. On February 8, 2007, there was a new puppy in the

home and no one had cleaned up the dog feces from the living room floor. Tr. 31.

Wright did then try to pick up some of the feces while Lester was at the home. Tr.

31. The smell was so strong that it was noticeable outside of the home. Tr. 42.

{¶16} Kelly Huffman (“Huffman”) testified from her work with the family

as a therapist. Huffman worked with Wright while doing family counseling for

K.C. Tr. 47. Huffman tried to teach Wright how to model anger management

techniques. Tr. 61. Wright did learn some skills and demonstrated that she could

use them. Tr. 62. However, the higher Wright’s frustration level, the less likely

she was to use the techniques. Tr. 62. Her ability to use the anger management

techniques was inconsistent over time and she eventually reverted back to her old

methods of handling stress and frustration. Tr. 63.

{¶17} The next witness presented by the Agency was Kelly Smith

(“Smith”), who was the family aide assigned to Wright by the Agency. Smith’s

job is to help the parents accomplish their case plan goals. Tr. 115. Smith worked

with Wright from December 2006 until June 2007. Tr. 117. Smith attempted to

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help Wright secure employment, learn parenting skills, and follow through with

counseling. Tr. 119. Wright did complete the Parent Project Junior Class. Tr.

122. Although Wright would apply the parenting techniques she was taught in the

short-term, she did not use them over the long-term. Tr. 126. Smith would meet

with Wright sometimes in the home, but usually Wright was short tempered and

uncooperative at those times. Tr. 126. Wright did not think she needed assistance

with her parenting. Tr. 127.

{¶18} Smith testified that Wright had court ordered counseling sessions for

K.C. and Wright. Tr. 130. Smith helped Wright to calendar her appointments.

Tr. 130. In addition, Smith offered to provide transportation to and from the

counseling appointments. Tr. 130. Wright still continued to be inconsistent in her

attendance. Tr. 130. When questioned about counseling, Wright frequently lied

about scheduling appointments, having rides, and even claiming to have attended

sessions that she did not attend. Tr. 131.

{¶19} Smith also attempted to help Wright seek employment. Tr. 131.

Smith gave Wright tips on job searching, provided transportation to potential

employment places, helped Wright complete applications and even provided a

voucher for Wright to purchase clothes for an interview. Tr. 132. After a month,

Wright declined the services claiming that she could get a job, but it was not her

priority at that time. Tr. 132. The family was allegedly being supported by

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Wright’s Met check of less than $100 a month and the money Wright made by

selling candy bars. Tr. 133.

{¶20} Smith testified that she frequently was in the home. Tr. 136. She

was concerned about the conditions in the home. Tr. 136.

The odor in the home was very overwhelming. It was a strong urine and feces smell. The carpet, you couldn’t even tell like what, the carpet was so matted down with stains and different things on the carpet. There was a bad problem with cockroaches. There was a little bit of clutter, the few times that I saw the kitchen, dirty dishes, clutter, garbage overflowing.

Tr. 136-37. When Smith addressed the issue of the home with Wright, she was

told it was none of her business. Tr. 137. Eventually, Wright moved from the

home on Hope Street to a different one on Catalpa. Tr. 139. When Wright first

moved into the new home, it was nice. Tr. 141. The Agency provided Wright

with new mattresses for K.C. and G.W. to replace the soiled one. Tr. 141. They

also provided her with a refrigerator, stove, table, pots, and pans. Tr. 141. The

house on Catalpa remained in good condition for less than a month. Tr. 141.

Within that time, the cockroaches and the odor returned. Tr. 142. After that,

Wright was uncooperative at the home visits and would not allow Smith to look at

the other rooms, including the children’s bedrooms. Tr. 142. Eventually, Wright

would deny Smith access to the home and would not even let her see the children.

Tr. 143. This behavior continued despite Smith’s reminder to Wright that she was

there due to a court order. Tr. 143.

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{¶21} Smith testified that Wright could be cooperative and open. Tr. 143.

However, any time Smith tried to approach her about a concern, Wright would

shut down because she did not want to hear about it. Tr. 144. The Agency

attempted to help with the housing issue by providing cleaning supplies. Tr. 145.

Smith personally volunteered to help her clean the home. Tr. 145. Smith made

chore lists to help Wright learn what needed to be done and gave Wright tips on

how to keep the house clean. Tr. 145. Wright was not receptive and declined the

offer of help with the cleaning. Tr. 146. At times, the house would be cleaner, but

the condition would not be maintained. Tr. 146.

{¶22} Eventually, Smith’s services as a family aide to Wright were

terminated for noncompliance by Wright. Tr. 154. Smith testified that although

she tried on numerous occasions to speak with Wright concerning the issues,

Wright did not recognize there were problems. Tr. 154. Smith further testified

that in her opinion, there was nothing more the Agency could have done to help

Wright due to Wright’s lack of compliance. Tr. 155.

{¶23} Christin Winter (“Winter”) testified that she is a family aide for the

Agency who had been working with Wright from May 2009 until July 2012. Tr.

168. At the beginning, Wright was living in a home on Woodward Avenue. Tr.

197. Winter was originally assigned to work with Wright on maintaining a safe

and appropriate home. Tr. 168. Over time, her goals expanded to include helping

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Wright to find employment and teaching her about child developmental levels so

that Wright’s expectations would be reasonable. Tr. 170. At the beginning,

Wright was cooperative with her, but she became less so as time passed. Tr. 170-

71. Winter testified that if she gave Wright a task, such as cleaning out the

refrigerator before the next visit, Wright would agree to do it, but never did. Tr.

171. Eventually, Winter had to bring another party with her on home visits for

safety reasons. Tr. 171. When the caseworker would go with Winter, Wright was

not receptive to anything the caseworker said. Tr. 174. Winter testified that

Wright would tell the caseworker she was not allowed to speak, would ask her to

leave, or would insist that the caseworker only speak to Winter and that Winter

relay the information. Tr. 174. Wright would frequently ask Winter questions that

only the caseworker could answer, but would refuse to speak to the caseworker

when told that Wright would have to call her. Tr. 175. Wright even refused to

give them a contact phone number. Tr. 177. The few times Winter would be

given a number, Wright would tell her not to give it to the caseworker. Tr. 177.

{¶24} Winter was assigned to work with Wright on parenting techniques

because of the Agency’s concerns regarding appropriate discipline techniques. Tr.

178. Concerns were raised because on one occasion, Winter arrived at a visit to

see a child in timeout and the children would remain there for the entire 45 minute

visit. Tr. 178. When Winter mentioned to Wright that it was excessive, Wright

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responded that the child had been bad and would sit there until she told them they

could get up. Tr. 179. Although Wright had taken several parenting classes, there

has been no improvement in her parenting skills. Tr. 180. Wright could repeat

what she was taught, but did not implement it in the home. Tr. 181. For many

visits, Winter did not even get to see the children, even if the visits lasted for an

hour and a half. Tr. 181-82. When questioned, Wright would say the children had

been bad and were in their rooms. Tr. 182.

{¶25} Winter had concerns regarding the conditions in the home. Tr. 182.

There was spoiled, moldy food in the refrigerator, cockroaches throughout the

home, and cords lying all around the floor presenting safety hazards. Tr. 182, 200.

When Winter raised these issues with Wright, she would either roll her eyes and

ignore Winter, or would say she would fix it, but never did. Tr. 183, 200. On

several occasions, Winter found human feces in the K.C. and G.W.’s bedroom.

Tr. 197. In 2010, Wright started becoming less cooperative. Tr. 183. She

eventually refused to let Winter or the caseworker into the house for an

unannounced visit. Tr. 184, 200. If they went for an announced visit, they were

asked to leave when they tried to address an issue that Wright did not want to

discuss. Tr. 184. Eventually, Wright moved to a different home on Kenilworth.

Tr. 201. Wright had refused to give them the new address, but Wright’s mother

gave it to the caseworker. Tr. 201. As before, the initial visits showed the new

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home to be in good order, but conditions deteriorated. Tr. 202. On the day M.W.

was removed from the home, the conditions were deplorable. Tr. 205.

There were – there was food laying around, there were food wrappers, papers, there were several cockroaches that were crawling over my shoes and my supervisor’s shoes while we were standing in there. There was an odor about the home, garbage, urine.

Tr. 205.

{¶26} Winter continued to work with Wright after M.W. was removed from

her custody. Tr. 184. Winter testified that she had concerns about Wright’s

conduct when she visited with M.W. Tr. 187.

[M.W.] was fairly young, under the age of one; and we had requested that she put him in a highchair if she brings snacks or meals so that he’s not walking around carrying food with him, which can be a choking hazard. She would not put him in the highchair. If she would, she would let him out and she would give him food once she let him out of the highchair. There were several times that she gave him inappropriate things to eat for his age and development which caused him to choke.

Q. What types of things?

A. Suckers, chewy candies. Before he had any teeth or had very few teeth, she was trying to give him potato chips, things that were crunchy and required more teeth to chew.

Q. Did you discuss with her when she would try to give [M.W.] those things that that was not appropriate for his developmental level?

A. I tried to.

Q. And what was Ms. Wright’s response?

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A. Sometimes she would roll her eyes and ignore me and sometimes she would tell me that she gives that to him all the time.

Q. Would she then give him the food you told her not to?

A. Yes.

Q. And what was the result?

A. [M.W.] would choke.

Tr. 185-86. Visits were stopped by court order after safety concerns for the staff

due to Wright’s behavior were raised. Tr. 195. Winter testified that she has seen

some of the sibling visits. Tr. 195. Without Wright present, the children all

interact more and the atmosphere was more positive. Tr. 195-96.

{¶27} When questioned about the home environment of M.W., Winter was

not able to be in the home often. Tr. 183. After M.W.’s birth in 2010, Wright

became uncooperative and would not let them in the home. Tr. 183. When she

was allowed in the home, Winter was concerned with M.W.’s hygiene. Tr. 207.

She testified that the clothes the children wore were dirty and the children had an

odor of urine about them. Tr. 207.

{¶28} When questioned about her work with Wright, Winter testified that

she usually only works with a family for up to a year rather than the three years

she had worked with Wright. Tr. 213. Winter testified that for the majority of the

three years, Wright had not been cooperative. Tr. 213.

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A. [Wright] would not allow me to do unannounced visits, and that was part of the agreement that we had from the very beginning; she would not take the suggestions that I had given her; she wouldn’t take things seriously when I would tell her that she needed to do something or needed to take care of something.

Q. Do you believe that prior to the children being removed from Ms. Wright’s custody, there’s anything further the agency could have done to maintain them in her home?

A. No.

Q. And why not?

A. She had been offered everything that we could possibly offer her: Transportation, help parenting, connecting with different resources in the community. There was nothing else that we could have offered her at that time.

Q. Did you, as a family aide, have concern about the children remaining in her care?

Q. And why is that?

A. The ongoing concerns with home conditions, the way that she addressed the school when they would have concerns, her interaction with agency workers.

Tr. 214. Counsel for the Agency also asked Winter if there was anything more the

Agency could do to assist in reunification.

A. No, she was given all the same opportunities that she had before the children were removed. We tried some of the same services again.

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Q. When you say you tried some of the same services again, what –

A. Counseling, offered her transportation wherever she needed to go for case plan services. I stayed on as the family aide, even though everything that I was going to address had already been addressed at some point.

Q. And did you again address those issues?

A. I did.

Q. Did you see an improvement?

Tr. 215-16.

{¶29} The next witness for the Agency was the GAL. He testified that he

had been working with the family from 2006. Tr. 240. During his tenure, Wright

had lived in multiple homes and they all eventually became deplorable. Tr. 242.

For the first month or so after the family moved, the new home would be

appropriate, but the conditions rapidly deteriorated and began to smell strongly of

urine. Tr. 241-42. If the GAL came in the back door, the kitchen conditions were

cluttered with the trash can overflowing, piles of dirty dishes in the sink, and

empty liquor bottles laying around. Tr. 243. Throughout the Agency’s

involvement with the family, the conditions of the homes were an ongoing

concern that was repeatedly addressed with Wright. Tr. 244. The homes were

infested with cockroaches. Tr. 245. Wright was frequently uncooperative in

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allowing the GAL access to the home. Tr. 247. The last time Wright allowed the

GAL into her home was May 19, 2011. Tr. 248. Other visits were attempted, but

Wright would not permit them. Tr. 249. When Wright would allow the GAL into

the home, she would limit his access to certain rooms, specifically her bedroom

which she kept padlocked shut. Tr. 253.

{¶30} The GAL was an active participant in the meetings with the school

regarding K.C. Tr. 254. During the meetings, Wright was adversarial and would

not admit that there was a problem. Tr. 254. This adversarial nature concerned

the GAL and made him insist on her receiving a psychological evaluation. Tr.

259-60. Although Wright was cooperative in the beginning, she has become

uncooperative with the GAL and the Agency over the last few years. Tr. 262-63.

{¶31} Karen Martin (“Martin”) was the caseworker supervisor for the

Agency. Tr. 328. Martin testified that generally family aide services are usually

given to families for six to twelve months. Tr. 329. Martin was the one who

agreed to give Wright extended services for three years. Tr. 329-30. The reason

Martin gave for the extended services was that Wright was not cooperative and

had failed to make progress. Tr. 330. According to Martin, the home conditions

and the hygiene of the children remained poor and Wright failed to obtain

employment, making it necessary for the family aide to continue her involvement.

Tr. 330.

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{¶32} Although Martin does not usually do home visits as part of her job,

she did in this case to help facilitate communication with Wright on three separate

occasions. Tr. 331. In November of 2010, Martin visited the home to discuss the

contempt citation concerning the home conditions, the medical conditions of

M.W., and the hygiene of M.W. Tr. 332-33. Martin was concerned that M.W.

had not had the medical tests and vaccinations ordered by the doctor. Tr. 332.

Martin testified that although the Agency was sending a cab to pick Wright up and

take her to her counseling sessions, Wright still was not attending. Tr. 334.

Martin’s second home visit was on December 17, 2010, which was the day they

removed the children from the home. Tr. 337. On that day, the home conditions

were of significant concern. Tr. 337.

The toilet in the bathroom was, appeared to be clogged and was overflowing with urine, feces, used toilet tissue. There were a large number of cockroaches present in the home. There was clutter, dirty dishes, dirty bottles, dirty silverware all in the living room, a number of papers strewn about, overwhelming smell of urine. Carpet powder had been sprinkled in the boys’ room to, I believe, try and alleviate some of the odor. There were no sheets on the bed. Large number of cockroaches, including some crawling on myself and other people that were in the room.

Tr. 337-38. Martin testified that at that time, she was concerned about M.W. Tr.

340.

[M.W.] appeared dirty, [he] needed bathed, hair was matted, particles stuck in [his] hair, clothes were dirty.

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Tr. 340-41.

{¶33} The third and final home visit by Martin occurred on June 4, 2012.

Tr. 342. The home conditions were better. Tr. 342. Wright indicated that it was

easier to keep the home better without the kids living there. Tr. 342. However,

there were still dirty dishes in the kitchen, spilled food in the refrigerator, live

roaches on the refrigerator, dead roaches in the dog’s food dish. Tr. 342.

{¶34} As part of her job, Martin was involved with the case reviews. Tr.

344. Martin testified that Wright would come to the meetings, but was

uncooperative. Tr. 345. At the meetings, Wright would not answer direct

questions and would not make eye contact with any Agency personnel. Tr. 345.

When reviewing the case, Wright would frequently shake her head and roll her

eyes. Tr. 345. During the last year, Wright would insist that her attorney repeat

the Agency questions before she would answer them. Tr. 345. Wright would

sometimes cooperate, but on other occasions would state that she does not want to

be told what to do because she knows how to parent her children. Tr. 347.

{¶35} Martin testified that the Agency had made numerous attempts to

assist Wright. Tr. 348.

[The Agency] provided food vouchers, vouchers to buy cleaning products, transportation to appointments, we’ve assisted her with the purchase of appliances for the home, payment of utilities, rent, et cetera. Quite a bit of assistance, I believe.

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Tr. 348-49. Martin also testified that she agreed with the decision to remove

M.W. from the home in December of 2010. Tr. 349. The decision was made

because Wright was still in contempt of court concerning the home conditions. Tr.

349. The home conditions were still unacceptable and M.W. was still showing

poor hygiene. Tr. 349. Martin testified that the Agency had done everything it

could to prevent the removal of M.W. from the home. Tr. 350.

In this particular case, I feel that the [Agency] had gone above and beyond standard level of reasonable efforts to attempt to maintain the children in the home with their mother.

Tr. 350. Although the Agency took numerous steps and provided multiple

services, they were unsuccessful. Tr. 351. After M.W. was removed from the

home, Wright’s level of compliance with the case plan did not improve. Tr. 352-

53. Martin concluded after reviewing everything that in the three and a half years

that the agency had been involved with Wright in this case, Wright has not

substantially complied with the case plan and has not demonstrated the ability to

safely parent T.W. in her home. Tr. 356.

{¶36} The next witness provided by the Agency was Michelle Miller

(“Miller”), who was the caseworker for the children’s case since April of 2009.

Tr. 382. That case was terminated by operation of law at the end of the two year

period and the Agency immediately filed a new case to continue its involvement.

Tr. 383. All of the children were removed from Wright’s home on December 17,

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2010, and have not been returned to Wright’s custody since then. Tr. 384. Since

she began her involvement in 2009, the case plans have been similar in goals. Tr.

392. Whenever Miller would attempt to address her concerns with Wright, Wright

would respond that she would try, but she was doing her best. Tr. 399. Although

Wright would make improvements at various times, she did not maintain the

improvements. Tr. 399. On multiple occasions, Wright would not allow her

access to the house or the children. Tr. 401-02.

{¶37} As for parenting skills, Miller testified that Wright had completed a

parenting class. Tr. 406. Miller testified that Wright’s parenting improved for a

while, but it was not sustained. Tr. 407. Miller had concerns about how Wright

disciplined the children. Tr. 407. When Miller attempted to address the issue

with Wright, Wright just would say that she did not parent in the same style as

Miller. Tr. 408.

{¶38} Wright was also required to have a source of income to provide for

the basic needs of the family. Tr. 421. Miller testified that Wright had not

obtained employment, but received some income from “doing hair”, babysitting,

and selling candy and cakes. Tr. 422. Most of Wright’s bills are paid by her

mother. Tr. 422.

{¶39} The case plan also required Wright to attend counseling. Tr. 423.

For a period of time, Wright was attending. Tr. 424. The counseling stopped

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when Wright lost her medical coverage. Tr. 424. Miller testified that Wright lost

her coverage because she refused to cooperate with Child Support Enforcement by

providing information about the possible fathers of the children, so they suspended

her medical privileges. Tr. 424-25. Once Wright returned to counseling, she was

limited to ten sessions. Tr. 426. However, Miller testified that the Agency

notified Wright that if she completed the ten sessions, the Agency would pay for

additional sessions that were needed. Tr. 426. Wright did not complete the

required ten sessions. Tr. 426. Wright, at the time of the final hearing, was in

counseling and was attending her sessions regularly. Tr. 439. Wright was

working on her anger management. Tr. 440. However, she was not consistently

applying what she had learned. Tr. 440.

{¶40} Miller testified that the relationship between Wright and herself

became adversarial. At one point, Wright refused to allow Miller in the home

unless Wright’s attorney was present. Tr. 430. The meetings were unproductive

because Wright would only speak to her attorney and would have no direct

communication with Miller. Tr. 431. Wright became completely uncooperative

and refused to discuss the case plan with Miller or anyone else. Tr. 432.

{¶41} Due to issues with drug usage, Wright was ordered to comply with

drug screens. Tr. 433. Miller requested that Wright have 19 drug screens. Tr.

434. Wright only took 16 drug screens. Tr. 434. Of those, three tests were

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positive for marijuana. Tr. 435. The case plan was then amended to require a

drug and alcohol assessment, which Wright completed. Tr. 437. Wright then

completed the Drug and Alcohol Awareness Class. Tr. 437. However, the third

positive test was after Wright completed the class. Tr. 438.

{¶42} Once M.W. was removed from the home, Wright was granted one

visitation a week for two hours each time. Tr. 448. Miller testified that Wright

missed her visits while in jail for contempt of court for failing to comply with the

court ordered case plan. Tr. 448. Upon her release, Wright did not contact the

Agency to arrange for visits for two or three weeks. Tr. 448. Afterwards, Wright

rarely missed a visit. Tr. 448.

{¶43} Miller testified as to the services offered by the Agency as follows.

The [Agency] has offered [Wright] more services than I have ever offered any other client. We have tried multiple things. We’ve tried Respite, she refused to do Respite, trying to give her a break. I’ve tried to work with her for support systems to set up to try to give her a break. I’ve tried multiple things, multiple service providers, switched service providers for her. You know, nothing worked.

Tr. 450. When Miller questioned Wright about possible permanent placements for

the children, Wright refused to discuss the issue with Miller. Tr. 451. M.W. had

been placed in his foster home with two of his siblings since the removal from

Wright’s home two years prior to the hearing. Tr. 453. In that time, M.W. had

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integrated into the home and had bonded with the family. Tr. 454. That home has

been identified as a potential adoptive home for M.W. Tr. 454.

{¶44} In opposition to the case presented by the Agency, Wright presented

the testimony of four witnesses, including herself. The first witness to testify was

Barbara Walton (“Walton”), a community health worker who helped Wright after

her pregnancy in 2010. Walton testified that she attempted to meet with Wright at

least twice a month. Tr. 516. She testified that before coming to the home, she

did not call and give advance notice. Tr. 516. Walton testified that during the

visits, she did see some roaches, but did not see clutter. Tr. 519. She did not

notice the smell of urine or feces in the home. Tr. 520. Wright was very

cooperative with Walton and did not hesitate to show her the home. Tr. 521.

{¶45} Wright’s second witness was Darlena Stewart (“Stewart”), a friend

of the family. Stewart testified that Wright fed the children. Tr. 557. Stewart

admitted that at times, she could smell urine in Wright’s home, but denied ever

smelling feces. Tr. 558. Stewart also admitted to seeing roaches in the home. Tr.

565. Stewart testified that Wright sought medical attention for the children when

it was needed. Tr. 564. In addition, Stewart testified that she went with Wright to

a couple of visits. Tr. 568. Wright acted appropriately with the children. Tr.

569. The discipline Stewart observed Wright use was mainly yelling at the

children. Tr. 570.

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{¶46} Sandy Wright (“Sandy”) is Wright’s mother and testified on

Wright’s behalf. Sandy testified that Wright always kept her home clean. Tr. 608.

She also testified that she never saw any cockroaches or noticed any smell of urine

in the home. Tr. 608-09. Sandy indicated that her daughter disciplines the

children by putting them in time out for approximately five minutes. Tr. 620-21.

{¶47} Wright herself testified on her behalf. Wright testified that the

family aide bought her cleaning supplies but did not actually do anything. Tr. 654.

Wright claimed that she tried to follow the suggestions of the family aide. Tr. 654.

The relationship between Wright and the Agency soured when Miller became her

caseworker. Tr. 655. Wright felt like Miller wanted her to do everything Miller’s

way and would not let her make any parenting decisions for herself. Tr. 655.

Wright was concerned because she believed that some of Miller’s instructions

contradicted what she had been taught in parenting class. Tr. 656. Miller also was

not helping her with dealing with K.C.’s behavioral issues at the school and at

home, specifically his hitting people and stealing. Tr. 657-58.

{¶48} When questioned about the home, Wright testified that the family

aide did give her suggestions for cleaning, which she took. Tr. 664. Wright

claimed that most of the time, her house was clean. Tr. 664. She admitted that

when Miller became her caseworker, she developed “an attitude” when Miller

would try to instruct her on what to do. Tr. 666. Rather than getting too angry,

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Wright would instead ask Miller to leave. Tr. 666. Wright testified that when she

met her current counselor, things improved and she learned how to control her

temper. Tr. 667-68. Throughout her testimony, Wright indicated that all of the

issues were the result of her poor relationship with the Agency personnel and that

she had worked on that issue and could now work with them better. Tr. 767.

{¶49} At the conclusion of the hearing, the trial court was unable to

conclude the case due to some transcripts which had been stipulated to by the

parties that had yet to be filed.3 As a result, the trial court delayed the closing

arguments until a later date. Closing arguments were scheduled for October 11,

2012. However, on October 12, 2012, the parties all waived closing arguments

and the case was submitted to the trial court. The trial court entered its judgment

entry terminating Wright’s parental rights to M.W. on October 19, 2012. Wright

appeals from this judgment and raises the following assignments of error.

First Assignment of Error

The awarding of permanent custody by the trial court below was not based upon clear and convincing evidence and therefore improper.

Second Assignment of Error

The reliance of the trial court upon corporal punishment of a child by a parent that took place prior to the filing of a complaint and was, in fact, the basis of a prior complaint for abuse that was terminated and the children returned to the

3 The transcripts were subsequently filed and considered by the trial court in reaching its judgment.

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mother is misplaced and violates the rights of a parent to reasonable physical discipline of a child.

Third Assignment of Error

The State of Ohio through [the Agency] failed to make reasonable efforts to provide services to the family here and to avoid the permanent removal of the children from the home.

{¶50} In the first assignment of error, Wright alleges that the findings of

the trial court were not supported by clear and convincing evidence. The right to

raise one’s own child is a basic and essential civil right. In re Murray, 52 Ohio

St.3d 155, (1990). “Parents have a ‘fundamental liberty interest’ in the care,

custody, and management of their children.” In re Leveck, 3d Dist. No. 5-02-52,

5-02-53, 5-02-54, 2003-Ohio-1269, ¶6. These rights may be terminated,

however, under appropriate circumstances and when all due process safeguards

have been followed. Id. When considering a motion to terminate parental rights,

the trial court must comply with the statutory requirements set forth in R.C.

2151.414. These requirements include in pertinent part as follows.

(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:

(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more

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months of a consecutive twenty-two-month period, or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents.

(2) With respect to a motion made pursuant to [R.C. 2151.413(D)(1)], the court shall grant permanent custody of the child to the movant if the court determines in accordance with division (E) of this section that the child cannot be placed with one of the child’s parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D) of this section that permanent custody is in the child’s best interest.

(C) In making the determination required by this section * * *, a court shall not consider the effect the granting of permanent custody to the agency would have upon any parent of the child. A written report of the guardian ad litem of the child shall be submitted to the court prior to or at the time of the hearing held pursuant to division (A) of this section * * * but shall not be submitted under oath.

(D)(1) In determining the best interest of a child at a hearing held pursuant to division (A) of this section * * *, the court shall 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 caregivers and out-of- home providers, and any other person who may significantly affect the child;

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(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, including whether the child has been in the temporary custody of one or more public services agencies * * * for twelve or more months of a consecutive twenty-two-month period * * *;

(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 to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

(E) In determining at a hearing held pursuant to division (A) of this section * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines by clear and convincing evidence, at a hearing held pursuant to division (A) of this section * * * that one or more of the following exist as to each of the child’s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:

(1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and

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material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.

(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;

R.C. 2151.414.

{¶51} At the time the Agency filed the motion for permanent custody,

M.W. had not been in the temporary custody of the Agency for more than one

year. Thus, the trial court was required to determine whether there were sufficient

factors under R.C. 2151.414(E) to support the conclusion by clear and convincing

evidence that M.W. could not and should not be placed with Wright within a

reasonable period of time. The trial court determined that Wright had not shown

that she could keep the house clean for a sustained period of time. This occurred

despite the fact that the agency had been working with her for many years and had

made many attempts to help her. There was a great deal of testimony by multiple

witnesses that although Wright would start out with a clean house, within a

month, it would be back to substandard conditions with roaches, clutter, and an

overwhelming stench of urine coming from it. While Wright had custody of

M.W., he frequently was dirty and smelled of urine and feces. The Agency

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worked with Wright for several years before removing M.W. and his siblings.

The Agency continued to work with her afterward. Thus, there was clear and

convincing evidence as to the first factor under R.C. 2151.414(E)(1).

{¶52} In addition, there was substantial evidence that Wright lacked

commitment to provide an adequate home for M.W. Wright frequently would not

work with the Agency workers to try and help M.W. When the workers would

offer assistance, she would decline it. When the caseworkers wanted to view the

home, she refused. Even when Wright allowed the workers into the home, she

refused to give them access to all the rooms. At times, she even refused the

workers access to the children. When it came to counseling, Wright would decide

to discontinue her therapy if she believed the therapist was reporting to the

Agency. Over the multiple years she worked on her case plan, she did not make

much progress and most of the progress she did make disappeared over time.

Given this evidence, the trial court could conclude by clear and convincing

evidence that Wright lacked the commitment to providing an adequate home as

set forth in R.C. 2151.414(E)(4).

{¶53} Having found factors under R.C. 2151.414(E) present, the trial court

was required to enter a finding that M.W. cannot be placed with Wright within a

reasonable time. The trial court then had to consider the factors under R.C.

2151.414(D) to determine if the termination of parental rights was in the best

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interest of M.W. The trial court specifically stated that it had considered the

factors. A review of the record shows that two of M.W.’s siblings were residing

in the same foster home as M.W. and the foster parents were continuing to allow

M.W. to have a relationship K.C., who was in a different foster home. The record

indicates that M.W. had adjusted well to being a part of the foster family. R.C.

2151.414(D)(1)(a). The trial court also considered the length of time M.W. was

in the temporary custody of the Agency and his need for a permanent placement.

R.C. 2151.414(D)(1)(c, d). In addition, the foster parents had expressed interest

in adopting M.W., which would help to grant a permanency that M.W. needed.

{¶54} Upon a review of the lengthy record, there was more than sufficient

evidence to support the trial court’s conclusions by clear and convincing evidence

that M.W. could not be returned to Wright within a reasonable period of time.

There was also more than sufficient evidence to support the trial court’s

conclusions by clear and convincing evidence that the termination of Wright’s

parental rights was in the best interest of M.W. Thus, the trial court did not err in

terminating the parental rights of Wright and the first assignment of error is

overruled.

{¶55} Wright claims in the second assignment of error that the trial court

erred by relying upon the prior claim for excessive physical discipline. A review

of the record shows that there is no basis for this assignment of error. Although

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the trial court mentioned the prior claim while discussing the history of the case, it

was not one of the reasons cited by the trial court for the termination of parental

rights. The trial court cited to the deplorable home conditions as well as the

children’s personal hygiene, Wright’s resistance to working with the school, her

resistance to counseling, her refusal to cooperate with the Agency workers, and

her refusal to work with the GAL. Oct. 19, 2012, J.E., 5-7. The trial court

pointed to the long history this family has with the Agency and how Wright has

made little sustained progress over the many years the Agency has worked with

her. Id. at 7-8. Specifically, the trial court noted that the psychological evaluation

showed that Wright had a low IQ and a poor prognosis for changing her behavior

due to her paranoid thinking. Id. at 8-9. At no point did the trial court rely upon

Wright’s conviction for physically abusing K.C. during the earlier case. Thus, the

trial court did not err. The second assignment of error is overruled.

{¶56} Finally, Wright argues that the trial court erred by finding that the

Agency had made reasonable efforts to provide services to the family to avoid the

removal of the children. The evidence does not support Wright’s claim. The

record indicates that the Agency did everything it could to assist Wright. The

Agency allowed Wright to continue to try and reach the same goals set forth in

the case plan since 2009. During that time, Wright was provided with a family

aid to try and help her learn to be a better parent, to learn to clean the house, and

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to assist with finding employment. The family aid went above and beyond the

expectations by volunteering to help Wright clean her house. The Agency helped

Wright by providing cleaning supplies, furniture, and appliances so that Wright

could provide an adequate home for M.W. The Agency also provided

transportation so that Wright could attend counseling sessions. The problem was

not with what the Agency offered, it was Wright’s refusal to make use of what

was offered. Based upon the testimony before it, the trial court could very

reasonably conclude by clear and convincing evidence that the Agency did

everything it could to prevent the removal of M.W. from the home and to attempt

to return M.W. to the home. The third assignment of error is overruled.

{¶57} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, the judgment of the Court of Common Pleas of

Allen County, Juvenile Division is affirmed.

PRESTON, P.J. and ROGERS, J., concur.

/jlr

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