[Cite as In re R.H., 2013-Ohio-3763.]
RH COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : R.H. : Hon. William B. Hoffman, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 13-CA-29 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common Pleas Court, Juvenile Division, Case No. 2011-AB-150
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 22, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant, A.H.
GREGG MARX THOMAS R. ELWING Prosecuting Attorney 60 West Columbus Street Pickerington, OH 43147 By: JOCELYN S. KELLY Assistant Prosecuting Attorney For Andrew Aukerman Fairfield County, Ohio 239 W. Main Street, Ste. 101 SHERRIE L. HUSTEAD Lancaster, OH 43130 33 West Main Street, Suite 103 Newark, OH 43055 Fairfield County, Case No. 13-CA-29 2
Guardian Ad Litem and Attorney for Child
JENNIFER J. HITT 63 North Main Street, Suite B London, OH 43140 Fairfield County, Case No. 13-CA-29 3
Baldwin, J.
{¶1} Appellant A.H. appeals from the February 20, 2013 Entry of the Fairfield
County Court of Common Pleas, Juvenile Division, terminating her parental rights and
granting permanent custody of R.H. to Fairfield County Child Protective Services.
STATEMENT OF THE FACTS AND CASE
{¶2} R.H. (DOB 2/25/11) is the biological child of appellant A.H. His paternity
has not been established. R.H. was removed from appellant’s custody when he was
less than one month old.
{¶3} On July 21, 2011, a complaint was filed alleging that R.H. was a
dependent child. Pursuant to an Entry filed the same date, the child was placed in the
temporary shelter custody of Fairfield County Child Protective Services (FCCPS).
{¶4} On September 14, 2011, R.H. was found to be a dependent child and was
placed in the temporary custody of FCCPS. Thereafter, on November 17, 2011,
FCCPS filed a motion for permanent custody of R.H. A hearing on such motion
commenced on October 15, 2012.
{¶5} At the hearing, appellant, who was 19 years old at the time, testified on
cross-examination that she was not married to R.H.’s father, who she alleged was
Andrew Aukerman, and that paternity had not been established because he refused.
She testified that she lived with her mother, step-sister, her step-sister’s fiancé and her
uncle and that she paid rent. Appellant testified that her step-sister had a criminal
record for drug usage, but that she was not using drugs anymore. Appellant’s step-
sister and her fiancé both refused to submit to screens for drugs or alcohol and Fairfield County, Case No. 13-CA-29 4
appellant testified that she and her mother were working on finding a different place for
appellant to live with R.H.
{¶6} Appellant testified that in February of 2012, she was involved in a physical
altercation with her brother Michael. As a result, appellant obtained a protection order.
Appellant still saw her brother and testified that she had seen him several times since
the incident. Appellant also testified that since FCCPS had taken custody of R.H., she
had moved twice. She had never lived on her own, but indicated that she was planning
on moving into an apartment with her 37 year old fiancé, Shane. She met Shane when
she was 12 years old and Shane was married. When asked who provided for her basic
needs, appellant testified that sometimes she did and sometimes her mother did.
Appellant, who had never finished high school and was hoping to get her GED, gets
social security and her mother is the payee. Appellant testified that she quit high school
three weeks before the end of her senior year. Appellant testified that she did not have
a job, but that she intended to apply for jobs once she got R.H. back and got an
apartment. Appellant does not have a driver’s license and her reading ability is limited.
{¶7} At the hearing, appellant testified that her father was in prison and was
due to be released in January of 2013. She indicated that he was going to live with
appellant and her mother upon his release. According to appellant, her father beat her
and was abusive to her when she was younger. She also testified that he had sexually
abused her and denied it and that he had sold her body to other men for money. When
asked, she stated that the abuse started when she was 10 years old and stopped when
her father went to jail when she was 16 years old. Appellant believed that her father Fairfield County, Case No. 13-CA-29 5
had learned his lesson and that she could protect herself against him. She believed
that her father would not do anything to his grandchildren, only to his two daughters.
{¶8} Appellant agreed the she had problems with anger, but testified that she
no longer did because she was on medication that kept her calm. She testified that she
had not had any regular counseling since June of 2012. When asked why R.H. was
removed from her, she testified as follows:
{¶9} So (inaudible) because of my injury and people calling in saying that I was
beating him and I wasn’t and, uh, my best friend’s mom made a statement saying that I
said it, saying I wish I never had a baby. I was drugged up at the time; I was on
Percocets at the time to get me healed up, what, what the doctors fed me and Mama Jo
said when I said it I was half asleep and half awake when I said it, but she did not tell
Children Services that I was half awake and half asleep.
{¶10} Q. So you did say it?
{¶11} A. I don’t remember.
{¶12} Q. Oh, okay, But you think if you did say it, you were drugged up?
{¶13} A. Yeah.
{¶14} Transcript from October 16, 2012 at 51-52.
{¶15} Appellant was asked about her case plan. She testified that she was
required to undergo counseling and anger management and to complete parenting
classes. She testified that her caseworker, Nikki DeLeon, had helped her with
transportation and had given her a gas voucher for her visits with R.H.. Appellant
testified that she had a certificate for passing parenting classes. Appellant also testified
that in addition to Shane, she had had a boyfriend recently named David who was 36 Fairfield County, Case No. 13-CA-29 6
years old. She testified that she was with David, who she knew was married, for about a
month or two and then he went back to his wife who appellant claims threw her in jail.
Appellant miscarried David’s child.
{¶16} Appellant admitted that she went to Zanesville with an older man who she
met at the laundromat and got her lip pierced. She admitted that she did not know
anything about him including his last name or where he worked. When questioned,
appellant conceded that she should not have gotten into a car with someone who she
did not know well because it was unsafe, but stated that she did not realize that at the
time. Appellant also testified that her cousin took pictures of her in her bathing suit
posing on a motorcycle at a motorcycle shop. She indicated that she volunteered
because she was the only girl there. Appellant reported to FCCPS that this was a job.
Appellant also testified as to a physical incident the week before at the fair involving an
ex-boyfriend. She stated that another ex-boyfriend beat this ex-boyfriend up and that
she was afraid for her safety.
{¶17} Appellant testified that she visited with R.H. every Tuesday for an hour
and was consistent with her visits. Appellant’s mother was always with her. She
admitted that there had been times when she had been on her cell phone during the
visits. Appellant stated that she did not know R.H.’s sleep schedule and could not
identify what sorts of food were healthy for a toddler.
{¶18} On direct examination, appellant testified that while her bedroom was
cluttered in a photograph taken on October 1, 2012 by Nikki DeLeon, her bedroom did
not look the same at the time of the hearing and that R.H. was never in her room when
it was in that condition. She testified that if R.H. were to live with her, she would not Fairfield County, Case No. 13-CA-29 7
allow anyone on drugs around him and would not allow anyone who might hurt him near
him. She indicated that if she got her own place, she would support herself using social
security and food stamps. Appellant indicated that the first time she took parenting
classes, she did not pass but that she had passed the second time. She further testified
that if she was told that it was not safe for her son to be around her father, she would
not let her father come and visit.
{¶19} Appellant was questioned about why she stopped counseling with Mike
Selegue from Mid-Ohio Psychological Services. She indicated that she stopped
counseling with him because he made her upset when he told Children’s Services that
appellant was not capable of taking care of R.H. She wanted to find a different
counselor who was more helpful, but could not remember the counselor’s name that
she was seeing. Appellant indicated that she had only gone once and had accidently
missed an appointment, but intended to get back to counseling.
{¶20} Appellant also testified that Children’s Services had not seen Shane's
place and that Shane lived with his parents in the garage. The two had been back
together for approximately three weeks.
{¶21} Leah Miller, an early Head Start home visitor, testified that she had been
working with appellant for a little over a year and saw appellant every week during her
supervised visits, which lasted approximately an hour and a half to two hours. Miller
testified that appellant was bonded with her son and that she loved him. Appellant had
expressed to her early on that she sometimes had trouble with anger. Miller testified
that she worked with appellant on determining what foods were nutritious and
appropriate for R.H. and that she helped appellant with better ways of talking to her Fairfield County, Case No. 13-CA-29 8
mother other than snapping. According to Miller, appellant struggled with interacting
with R.H. the entire time of the visits and had trouble retaining information. Miller
testified that she had never seen appellant angry at R.H., only with her mother. When
asked if she would have any concerns for R.H.’s safety if he was returned to appellant’s
care, Miller testified that she would because appellant did not have the experience of
caring for him full-time. She further testified that she did not believe that appellant had a
real strong support system because there were issues with her brother and appellant
and her mother fought often. Miller stated that appellant told her that she had her ups
and downs with Shane and that the two recently split, that appellant then had another
boyfriend who she said she was engaged to, and then appellant was back with Shane.
Miller believed that appellant was unable to meet R.H.’s basic daily needs and often put
herself in unsafe situations. She stated that she believed that appellant did not make
good choices in terms of who to surround herself with.
{¶22} The next witness to testify was Mike Selegue, a community mental health
social worker with Mid-Ohio Psychological Services. He testified that he started working
with appellant in March of 2011 and that their interaction ended in September of 2011.
He testified that he was working with appellant to improve her parenting skills and that
he first saw appellant every week and then every other week.
{¶23} Nikki DeLeon, appellant’s caseworker with FCCPS, testified that the case
had been assigned to her in March of 2011. She testified that R.H. was 22 months old.
According to DeLeon, the agency initially filed a complaint for temporary custody on
March 22, 2011 and R.H. was placed in the agency’s temporary custody on the same
date. The complaint was then dismissed on May 17, 2011 and refiled on July 21, 2011. Fairfield County, Case No. 13-CA-29 9
R.H. was placed in the shelter care custody of the agency on such date. She further
testified that he had been in the temporary custody of the agency since September 14,
2011 and had been in same foster home the entire time.
{¶24} DeLeon testified that appellant’s case plan initially included her mother
until appellant turned 18 years old. According to DeLeon, the case plan had three
objectives: (1) to address mental health, behavioral health and cognitive ability, (2) to
address appropriate housing, independent living skills and economic stability and (3) to
address parenting abilities. When the agency first received concerns in February of
2011, cognitive ability was cited as a concern as well as appellant’s mental and
emotional health. The agency recommended that appellant participate in individual
mental health therapy and engage in only healthy and safe relationships. The agency
encouraged her to continue with Mike Selegue with Mid-Ohio. DeLeon testified that
when appellant stopped working with him in September of 2011, the agency was not
satisfied that appellant did not need additional counseling. Because appellant moved
from Lancaster to New Lexington, a new mental health agency was needed because
appellant was in a different area. DeLeon testified that appellant and her mother
retained Perry County Counseling on their own and that the counselor there saw
appellant through the beginning of 2012. Appellant then moved back into Fairfield
County in June of 2012 and was referred to New Horizons for counseling. Appellant
had an intake appointment at New Horizons in August of 2012 and had one
appointment on September 6, 2012. She had another appointment scheduled for
September 12, 2012 that she failed to attend. Appellant had not called to schedule any
other appointments. Fairfield County, Case No. 13-CA-29 10
{¶25} When asked what issues she wanted appellant to address through
counseling, DeLeon testified, in relevant part, as follows:
{¶26} A. Um, we are concerned with [appellant’s] ability, first and foremost,
to keep herself safe and the people that she, um, has around her and in her home, um,
she has suffered substantial abuse and trauma over the course of her life and we want
to insure that, um, maybe through mental health counseling she can develop some
skills to, to protect herself in the future. Um, in addition to just coping with daily
stressors, um, and her separation from her son, her relationship with her mother, the
anger issues that were referenced earlier, those have been ongoing, um, concerns
throughout the life of the case, um, but those are the main concerns.
{¶27} Transcript of October 16, 2012 hearing at 273.
{¶28} Although appellant had had at least four counselors throughout the case,
the agency still had concerns with her ability to keep herself safe due to appellant’s
volatile relationships, including with Shane Earhart, who appellant alleged was verbally
abusive. DeLeon noted that appellant had relationships with men who were much older
than her and that appellant brought a man to the agency to meet DeLeon, but did not
know his last name even though he was living with her. According to DeLeon, that
relationship lasted for about one month and ended after appellant broke up with the
man, who was married, because he punched her in the stomach, causing her to
miscarry.
{¶29} DeLeon also indicated that the agency was concerned about appellant’s
relationship with her older brother, Michael. The two had frequent physical altercations,
but Michael was allowed to be in appellant’s home and sometimes resided there. Fairfield County, Case No. 13-CA-29 11
DeLeon testified that although appellant acknowledged the physical and sexual abuse
that she endured as a minor while in the care of her father, appellant and her mother
stated that they were going to allow him to return home upon his release from prison.
According to DeLeon, appellant did not recognize unsafe situations until it was too late
and failed to prevent the same from happening. She testified that the agency had the
same concerns at the time of the hearing as they did when the original complaint was
filed and that the concerns were greater. She indicated that there had been
improvement in appellant’s anger issues although she had recently observed appellant
snap at her mother. DeLeon believed that appellant still had anger issues to be
addressed through mental health counseling. She indicated that appellant had not
successfully complied with the aspect of her case plan that addressed mental health
issues and the ability to keep herself safe.
{¶30} When asked if she had concerns about appellant being able to meet her
own basic needs and those of R.H., DeLeon stated that she did because appellant
relied heavily on her mother for assistance with food, shelter, transportation and
clothing. According to her, appellant’s bedroom was often cluttered and contained
mattresses without sheets or covers. Appellant also had problems with personal
hygiene and was easily distracted and had a hard time focusing on her child. DeLeon
testified that appellant had not complied with the aspect of her case plan that required
her to provide for her own basic needs. She further testified that appellant had not
attended school on a regular basis and that appellant told her that she did not want
services through Fairfield County Board of Developmental Disabilities unless they could
help her pay for an apartment. Appellant had not been involved in any type of formal Fairfield County, Case No. 13-CA-29 12
schooling for six or seven months. DeLeon testified that appellant enrolled in school in
the fall of 2012 and that she did not continue attending. DeLeon stated that appellant
had a relatively stable source of income from her social security, but expressed concern
that appellant wanted to change her payee to “someone that she’s with in the moment.”
Transcript of October 16, 2012 hearing at 310. She stated that she believed that
appellant did not intend to live independently, but to move in with Shane and rely on him
for support.
{¶31} DeLeon also agreed that that she was concerned about the people who
resided in appellant’s house who refused to provide background information or to
submit to drug and alcohol screens. For such reason, the agency would not consider
placing R.H. in the house. She testified that she did not believe that appellant had
complied with that part of her case plan that addressed housing, independent living
skills and economic stability.
{¶32} The hearing resumed January 17, 2013. Appellant had gotten married to
Shane since the October 2012 hearing and was enrolled to return to high school. At the
January 2013 hearing, appellant testified that she was 19, married and that she and her
husband, Shane, were trying to get out of the house. Appellant testified that she was
living with her mother and husband and that no one else was living with them. She
testified that R.H. would have his own bedroom in the apartment and that the apartment
was clean. She further testified that she was working on getting the protection order
against her brother, Michael, dropped and that she sometimes saw him. Appellant
testified that Michael went with her to Taco Bell to help her fill out a job application
because she had problems with reading. Appellant further testified that Michael had Fairfield County, Case No. 13-CA-29 13
been in jail and that she and her husband gave his girlfriend $100.00 to bail him out.
Appellant indicated that they were thinking about moving to Mississippi once everything
had cooled down. While appellant does not have family there, Shane does.
{¶33} Appellant testified that she was kicked out of home schooling and that she
was enrolled to start Lancaster High School on the following Tuesday. She hoped to
graduate in June of 2013. Appellant testified that she did not have a job, but that Shane
did and had worked at his job awhile. According to appellant, her social security had
stopped because she got married and she was in the process of getting it back. Money
was tight and appellant and her husband did not have a refrigerator until two months
prior, only a cooler. Appellant agreed that recently, her mother had to pay for diapers
and wipes for R.H. to be used during visits. She further testified that the Board of
Developmental Disabilities told her that she was not eligible for services and that she
called and they did not return her calls. She also testified that her father was getting out
of prison soon and that if R.H. was not in the home, her father was moving back in with
her mother and she was going to move out.
{¶34} Appellant stated that she was on anger medication and a sleeping pill.
She testified that she had not heard any voices lately, but had heard voices about two
months earlier. The voices told her to “Get out of the house.” Transcript of January 17,
2013 hearing at 49. Appellant also had hallucinations and had in the past had blackouts.
She testified that she was trying to get pregnant, but agreed that it was not a good idea.
Appellant also testified that she had been sexually assaulted the first week of January of
2013 by her cousin, but did not make a police report even though her mother and
husband told her to. She agreed that she did not discuss the rape with her mental Fairfield County, Case No. 13-CA-29 14
health counselor even though Nikki DeLeon told her that she should. Appellant, who
had physical problems from the rape, had not gone to a doctor. Nor did appellant report
to anyone that she had concerns about the children that were living in her cousin’s
house. When asked why she did not leave her cousin's house immediately after the
incident, appellant testified that she did not because her mother did not have the gas to
make the trip.
{¶35} Nikki DeLeon resumed her testimony on January 17, 2013. She testified
that appellant had continued her sessions with Wendy Shackelford, her mental health
counselor, at New Horizons since the last hearing, but had missed three sessions for
lack of transportation. DeLeon testified that she referred appellant to the agency’s
transportation department and gave her information on resources. DeLeon was
concerned that appellant had not discussed the recent rape allegation with her mental
health counselor and questioned the benefits that appellant received from the
counseling. She noted that appellant had been informed that her cousin was a
registered sex offender, and that she decided to go to his house anyway. According to
DeLeon, appellant alleged that she was present with a 12 year old child and stated that
she believed that the child was raped as well, but had not reported the rape. The
agency was still concerned about the choices that appellant made regarding her brother
who had a history with the agency as well as criminal and substance abuse histories.
DeLeon was concerned that appellant could not protect R.H. if she could not protect
herself and that she would not get him medical treatment.
{¶36} DeLeon also noted that just a month to six weeks prior to her marriage,
appellant was seeing another man. She voiced concerns over appellant’s attempts to Fairfield County, Case No. 13-CA-29 15
get pregnant and plan to move to Mississippi as well as the fact that appellant reported
hearing voices and having hallucinations during a case review in November. DeLeon
remained of the opinion that appellant had not successfully complied with her case plan.
The agency was still concerned about the choices that appellant made, with appellant
maintaining her safety and about appellant‘s anger. Appellant, according to DeLeon,
had not successfully completed her mental health counseling.
{¶37} DeLeon also noted that appellant lacked sufficient food on numerous
occasions and that she drove appellant to the food pantry to get food. She questioned
whether appellant and her husband would be able to manage their funds and maintain
an apartment.
{¶38} DeLeon testified that she had investigated other family members for
placement and that none had been appropriate. She testified that R.H. had been in the
same foster home since March of 2011 and that while appellant had bonded with R.H.,
he had not bonded with her. There was no bond between R.H. and Shane, appellant’s
husband. R.H., according to her, had bonded with his foster parents and was doing well.
She stated that he needed a legally secure placement and could not get the same with
appellant. The following testimony was adduced when she was asked why:
{¶39} “A. Though [appellant] has made some efforts to engage in services,
um, insufficient progress has been made overall. Um, she does not possess the
cognitive abilities or emotional stability to ensure [R.H’s] safety and well-being
independently. She, herself, has been the victim of neglect and sexual abuse as a
minor, um, as well as sexual abuse as an adult. She’s engaged in several relationships
since the Agency’s involvement which could have put the child in her care at significant Fairfield County, Case No. 13-CA-29 16
risk for similar trauma. Um, maternal grandmother, who is [appellant’s] primary support,
also has cognitive delays and history of instability, as well as involvement with this
Agency. Throughout this Agency’s involvement, both [appellant and her mother] have
continued to engage in relationships with individuals who put their health and safety at
risk. Neither [appellant or her mother] have shown evidence of an ability to identify safe
individuals and/or situations. Though [appellant] is now married to Mr. Arehart, over the
course of the Agency’s involvement, this relationship has been inconsistent with many
reports up until recently for both [appellant] and maternal grandmother that Mr. Arehart
is verbally abusive. It is not known if Mr. Arehart has the ability to provide the guidance
necessary to insure [appellant] remains safe herself and impossible to predict, um, his
ability in the future to insure the safety and well-being of a child if in her care.”
{¶40} Transcript of January 17, 2013 hearing at 110-111.
{¶41} She stated that the only way that R.H. could achieve a legally secure
permanent placement was through the granting of permanent custody to the agency
and that it was in R.H.’s best interest for permanent custody to be granted to the
agency. Appellant had moved four times since the duration of the case.
{¶42} The Guardian ad Litem recommended that permanent custody be granted
to the agency.
{¶43} Pursuant to a February 20, 2013 Entry, the trial court terminated
appellant’s parental rights and granted permanent custody of R.H. to FCCPS. The trial
court, in its Findings of Fact and Conclusions of Law, found, in part, that R.H. could not
and should not be placed with appellant within a reasonable time and that it would be in
R.H.’s best interest if permanent custody was granted to the agency. Fairfield County, Case No. 13-CA-29 17
{¶44} Appellant now raises the following assignments of error on appeal:
{¶45} THE TRIAL COURT’S FINDING THAT PERMANENT CUSTODY
SHOULD BE AWARDED TO FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES
PURSUANT TO R.C. 2151.414 (D) & (E) WAS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE.
I
{¶46} Appellant, in her sole assignment of error, argues that the trial court’s
award of permanent custody to FCCPS was not supported by clear and convincing
evidence. We disagree.
{¶47} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent, and credible evidence upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911
(Feb. 10, 1982). 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 Construction, 54
Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶48} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 1997–Ohio–260, 674 N.E.2d 1159. Fairfield County, Case No. 13-CA-29 18
{¶49} 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.
{¶50} 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 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.
{¶51} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the parents, siblings, relatives, foster parents and out-of-home providers, and
any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) the child's need Fairfield County, Case No. 13-CA-29 19
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody.
{¶52} 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, a 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.
{¶53} 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.
{¶54} The trial court determined, in part, that the child could not be placed with
appellant within a reasonable time pursuant to R.C. 2151.414(E)(1), which requires the
following findings:
{¶55} “(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 Fairfield County, Case No. 13-CA-29 20
consider parental utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and 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.”
{¶56} A review of the record, as well as the trial court’s lengthy and detailed
findings of fact, supports the trial court's decision that R.H. could not and should not be
placed with appellant within a reasonable time. As is stated above, testimony was
adduced that appellant has a history of unsafe choices and repeatedly placed herself in
dangerous situations. She quit high school three weeks before she would have
graduated and had not obtained employment. As noted by the trial court, she had not
made any progress on her education from the Spring of 2012 to January of 2013.
{¶57} In addition, appellant has failed to maintain suitable and stable housing.
Since March of 2011, she has resided in four different residences. Testimony was
adduced that the room where R.H. would live was extremely cluttered and would be
unsafe for R.H. Appellant relied on her mother for food, clothing, transportation and
housing and had been unable to meet her own basic needs as required by her case
plan. Appellant often was unable to buy diapers or wipes for use during visits with her
son, and sometimes lacked food in the house. Appellant herself testified that at times
she did not have a refrigerator.
{¶58} In addition, testimony was adduced that the agency still was concerned
about appellant’s parenting skills. As is stated above, Leah Miller testified that appellant
had trouble focusing on R.H. during their visits. Appellant also testified that she did not
know her son’s sleep schedule and she had trouble stating what types of food were Fairfield County, Case No. 13-CA-29 21
healthy for him. Moreover, testimony was adduced that appellant had issues with anger
and has not complied with mental health counseling. As noted by appellee, between
August of 2012 and mid-October of 2012, appellant had an intake appointment at New
Horizons and one counseling appointment there. Appellant, at the January 17, 2013
hearing, did not know the last name of her counselor at New Horizons and testified that
while she was to see her counselor every two weeks, she had seen her counselor four
(4) times and had missed three (3) appointments between October of 2012 and January
of 2013. Appellant testified that she did not report the alleged rape by her cousin to her
counselor.
{¶59} In short, we find that the trial court did not err in finding that R.H. could not
and should not be placed with appellant within a reasonable time.
{¶60} We further find that the trial court did not err in finding that it was in R.H.'s
best interest for permanent custody to be granted to the agency. Testimony was
adduced that R.H. is not bonded with appellant or with her husband, but was bonded to
his foster parents. No other family members were appropriate for placement. In
addition, testimony was adduced that R.H. had been in the agency’s custody since
September of 2011 and needed a legally secure placement that he could not achieve
with appellant. We note that the Guardian ad Litem recommended that permanent
custody be granted to the agency.
{¶61} Based on the foregoing, appellant’s sole assignment of error is overruled. Fairfield County, Case No. 13-CA-29 22
{¶62} Accordingly, the judgment of the Fairfield County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
CRB/dr [Cite as In re R.H., 2013-Ohio-3763.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : R.H. : : : JUDGMENT ENTRY : : : : CASE NO. 13-CA-29
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Juvenile Division is
affirmed. Costs assessed to appellant.