In re R.M.

2021 Ohio 324

• Court: Ohio Court of Appeals
• Decided: February 5, 2021
• Docket: 2020-CA-8
• Status: Published

Opinion

[Cite as In re R.M., 2021-Ohio-324.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

: IN THE MATTER OF: : : Appellate Case No. 2020-CA-8 R.M. : : Trial Court Case No. 2018-JC-18 : : (Appeal from Common Pleas : Court – Juvenile Division) : :

...........

OPINION

Rendered on the 5th day of February, 2021.

MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West Second Street, Suite 2103, Dayton, Ohio 45402 Attorney for Defendant-Appellant, J.M.

SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, OH 43078 Attorney for Plaintiff-Appellee, C.C.D.J.F.S.

.............

HALL, J. -2-

{¶ 1} Father appeals from the trial court’s judgment entry terminating his parental

rights and awarding Champaign County Department of Job and Family Services

(“CCDJFS”) permanent custody of his child, R.M.

{¶ 2} Father advances two assignments of error. First, he contends CCDJFS

lacked standing to move for permanent custody absent a prior finding by the trial court

that the agency need not make “reasonable efforts” to return the child to him. Second, he

claims CCDJFS failed to present clear and convincing evidence to support an award of

permanent custody to the agency.

{¶ 3} The record reflects that CCDJFS filed a complaint in December 2018 alleging

that R.M. was abused and dependent based on sexual abuse committed by Father. At

some point, Father was arrested in connection with the sexual-abuse allegations.

CCDJFS moved to amend the complaint to include his incarceration as a basis for

dependency. On April 5, 2019, by agreement of the parties, the trial court adjudicated

R.M. dependent, dismissed the abuse allegation, and transferred temporary custody from

a third-party caregiver to CCDJFS. The trial court’s entry included a finding that the

agency had made “reasonable efforts” to prevent the removal and placement of the child.

On July 3, 2019, the trial court filed an entry following a review hearing and again made

a “reasonable efforts” finding. On July 26, 2019, a case plan was filed. It cited a

permanency goal of reunifying Father and R.M. On September 16, 2019, however,

CCDJFS filed a motion for permanent custody, seeking to terminate Father’s parental

rights. Among other things, the motion cited the fact that Father had been convicted of

sexually abusing R.M. and another juvenile and had been sentenced to 13 years in prison. -3-

In light of Father’s convictions, CCDJFS also argued that, when deciding the permanent-

custody issue, the trial court need not find that the agency had made “reasonable efforts”

to return the child home. In any event, CCDJFS’s motion did outline efforts the agency

had made to find someone to take custody of R.M. The trial court held a hearing on the

permanent-custody issue on January 16, 2020. On February 27, 2020, the trial court filed

a judgment entry sustaining CCDJFS’s motion for permanent custody. In relevant part,

the trial court found as follows:

- [Father] is the sole legal parent of [R.M.];

- On March 27, 2019, [Father] was convicted of two (2) counts of Gross

Sexual Imposition, O.R.C. 2907.05(A)(4)(c)(2) and the victim of both

offenses was [R.M.];

- On March 27, 2019, [Father] was sentenced to thirteen (13) years to the

Ohio Department of Rehabilitation and Correction;

- [R.M.] is adoptable and does not meet the requirements for a Planned

Permanent Living Arrangement;

- CCDJFS was not able to find any family members to take custody of

[R.M.];

- Although [R.M.] was somewhat vague when asked about his wishes both

[R.M.’s] attorney and the Guardian ad litem believe that he is not opposed

to a granting of permanent custody to CCDJFS;

- CCDJFS is not required to make reasonable efforts because of [Father’s]

conviction under R.C. 2907.05 with the victim being [R.M.];

- The Guardian ad litem believes it is in [R.M.’s] best interests for the Court -4-

to grant permanent custody to CCDJFS; and

- [R.M.] is happy and well adjusted in his foster home.

(Judgment Entry at 2.)

{¶ 4} The trial court determined by clear and convincing evidence that R.M. could

not be placed with Father, his sole legal parent, within a reasonable amount of time, that

the child should not be placed with Father, and that awarding permanent custody to

CCDJFS was in the child’s best interest. (Id.)

{¶ 5} In his first assignment of error, Father contends CCDJFS lacked standing to

move for permanent custody absent a prior determination by the trial court that the agency

was not required to make “reasonable efforts” to reunite Father and R.M. Stated

differently, Father suggests that a reasonable-efforts bypass finding by the trial court was

a prerequisite to CCDJFS seeking permanent custody. Because the trial court made a

reasonable-efforts bypass finding only in its final judgment entry awarding CCDJFS

permanent custody, rather than before the agency filed its motion, Father asserts that

CCDJFS lacked standing to seek permanent custody.

{¶ 6} Upon review, we find Father’s argument unpersuasive. The trial court’s

failure to make a “reasonable efforts” finding before CCDJFS moved for permanent

custody did not deprive the agency of standing to do so. To support his argument, Father

relies on R.C. 2151.413(D)(2). With some exceptions, R.C. 2151.413(D)(1) and (2)

compel a children-services agency to pursue permanent custody under certain

circumstances. Specifically, a children-services agency “shall” move for permanent

custody (1) if a child has been in the agency’s temporary custody for 12 or more months

of a consecutive 22-month period or (2) if the trial court makes a determination under -5-

R.C. 2151.419(A)(2) that the agency need not make reasonable efforts to prevent the

removal of the child from the child’s home, eliminate the continued removal of the child

from the child’s home, and return the child to the child’s home. Under either of these

circumstances, a children-services agency generally must move for permanent custody.

The second circumstance often occurs when an agency moves for a reasonable-efforts

bypass finding by the trial court during the pendency of a dependency, abuse, or neglect

case while the agency has temporary custody and prior to its moving for permanent

custody. See, e.g., In re M.J.C., 2019-Ohio-2353, 138 N.E.3d 626, ¶ 4-5 (2d Dist.) (noting

that the trial court granted the agency’s reasonable-efforts bypass motion based on

father’s incarceration while the agency had temporary custody and before the agency

moved for permanent custody). If the trial court sustains such a motion, R.C.

2151.413(D)(2) obligates the children-services agency to respond by moving for

permanent custody.

{¶ 7} It does not follow, however, that a children-services agency cannot move for

permanent custody unless and until a trial court makes a reasonable-efforts bypass

determination under R.C. 2151.419(A)(2). In the present case, CCDJFS’s permanent-

custody motion cited R.C. 2151.415(A) as one of the statutes pursuant to which the

motion was filed. Notably, R.C. 2151.415(A)(4) authorizes a children-services agency to

move for permanent custody prior to expiration of a temporary custody order without

regard to whether the trial court has made a reasonable-efforts bypass determination. In

re A.J., 3d Dist. Crawford No. 3-15-12, 2016-Ohio-248, ¶ 30 (“After a child has been

adjudicated neglected and temporary custody has been granted to a children services

agency, the agency may file a motion for permanent custody under R.C. -6-

2151.415(A)(4).”). Therefore, under R.C. 2151.415(A)(4), CCDJFS had standing to seek

{¶ 8} Based on the record before us, we also see no error in the trial court’s

substantive determination in its judgment entry that CCDJFS was not required to make

reasonable efforts to reunite Father and R.M. As set forth above, Father was R.M.’s only

legal parent. Father was serving a 13-year prison sentence for criminal conduct that

included sexually abusing R.M. The record reflects that CCDJFS unsuccessfully

attempted to locate a family member or friend to take custody of R.M. Under these

circumstances, Father unquestionably could not (and should not) be reunited with R.M.

Indeed, R.C. 2151.419(A)(2)(a)(iv) states that a trial court “shall” find reasonable efforts

at reunification not required when a parent is convicted of gross sexual imposition

involving the child at issue. Following Father’s criminal conviction, there was no longer

any reasonable effort at reunification to be made. Even if we assume, purely arguendo,

that the trial court should have made its reasonable-efforts determination sooner, any

error in that regard would be harmless, as it was impossible for R.M. to return home with

Father, the child’s sole legal parent. Accordingly, we overrule Father’s first assignment of

error.

{¶ 9} In his second assignment of error, Father contends the trial court’s

permanent-custody decision was not supported by clear and convincing evidence. More

specifically, Father asserts that CCDJFS made “broad, unsupported statements” about

his sexual activity with R.M. as well as his criminal conviction. Despite the fact that the

guardian ad litem interviewed Father, R.M., and both foster parents, Father also

characterizes the guardian ad litem’s involvement as “minimal.” Father additionally -7-

questions the guardian ad litem’s recommendation of permanent custody to CCDJFS,

noting that it was based primarily on Father’s conviction for sexually abusing R.M. Father

suggests that an appeal of his criminal convictions or post-conviction relief might result in

reversal and justify reunification. For these reasons, Father contends the record lacks

clear and convincing evidence to support the trial court’s findings that R.M. could not and

should not be placed with him within a reasonable time and that awarding permanent

custody to CCDJFS was in the child’s best interest.

{¶ 10} Upon review, we find Father’s second assignment of error to be

unpersuasive. The evidence before the trial court established that Father had been

convicted of sexual abuse involving R.M. and had been sentenced to 13 years in prison.

The child was not eligible for a planned permanent living arrangement, and CCDJFS was

unable to find any family or friends willing to accept custody. The guardian ad litem

believed that awarding the agency permanent custody was in the child’s best interest.

R.M.’s attorney also reported that that the child, who was 13 years old, was not opposed

to the court’s awarding CCDJFS permanent custody. The record further reflects that R.M.

had a good relationship with his foster parents. At the time of the hearing, R.M. had been

in CCDJFS’s temporary custody for more than a year. Father was the child’s only legal

parent, and Father’s lengthy prison sentence precluded him from providing a secure and

stable home, which the child needed. Although Father suggests that his conviction could

be reversed on appeal or through post-conviction relief, this court affirmed the conviction

in March 2020 and the Ohio Supreme Court later denied review. We note too that Father

has not identified any post-conviction filing or even any possible grounds for post-

conviction relief. -8-

{¶ 11} On the record before us, we find clear and convincing evidence supporting

the trial court’s determination that R.M. could not and should not be returned to Father

within a reasonable time and that awarding permanent custody to CCDJFS was in the

child’s best interest. In fact, we fail to see how any other disposition would have been

possible under the circumstances. The second assignment of error is overruled.

{¶ 12} The trial court’s judgment is affirmed.

TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

Michael T. Columbus Samantha B. Whetherholt Vincent Foulk, GAL Hon. Lori L. Reisinger