In re S.L.

2010 Ohio 6380

• Court: Ohio Court of Appeals
• Decided: December 27, 2010
• Docket: 4-10-09 4-10-10
• Status: Published

Opinion

[Cite as In re S.L., 2010-Ohio-6380.]

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

IN THE MATTER OF:

S. L., CASE NO. 4-10-09

NEGLECTED AND DEPENDENT CHILD, OPINION [CRYSTAL LUSK - APPELLANT].

H. L., CASE NO. 4-10-10

NEGLECTED AND DEPENDENT CHILD, OPINION [CRYSTAL LUSK - APPELLANT].

Appeals from Defiance County Common Pleas Court Juvenile Division Trial Court Nos. 29103 and 29102

Judgments Affirmed

Date of Decision: December 27, 2010 Case No. 4-10-09 and 4-10-10

APPEARANCES:

Jeffrey J. Horvath for Appellant

Russell R. Herman for Appellee

WILLAMOWSKI, P.J.

{¶1} Mother-appellant, Crystal Lusk (“Crystal”), brings these appeals

from the judgments of the Court of Common Pleas of Defiance County, Ohio,

Juvenile Division, granting permanent custody of two of her children, H.L. (age

four) and S.L. (age two), to the Defiance County Department of Jobs and Family

Services (“the Agency”). For the reasons set forth below, the judgments are

affirmed.

{¶2} In April of 2008, the Sherwood Fire Department and the Defiance

County Sheriff’s Office responded to a fire at the home of Margaret Roddy

(“Roddy”), Crystal’s mother. At the time, Crystal, H.L., S.L., Crystal’s two

sisters, Jamie and Stephanie Lusk, and Crystal’s uncle, who had recently been

released from prison, were living in the home with Roddy.1 The fire was started in

a detached garage but spread to the exterior of the home. However, the fire was

extinguished with only minimal damage to the exterior of the home and no

1 At this point, H.L. would have been two-years-old and S.L. would have been a few weeks old.

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damage to the home’s interior. Crystal and her sister, Jamie Lusk (“Jamie”),

initially told the officers that they did not know how the fire started. They also did

not tell the officers that Crystal’s boyfriend at the time, Joe Johnson, had been at

the home. However, other family members told the officers that Johnson had been

there, and the officers confronted Crystal about this new information. Crystal

eventually informed them that Johnson had been at the home, had started the fire

in the garage, and had told her not to tell anyone that he had been there. The

officers also learned that the home had no running water.

{¶3} The Agency was contacted and H.L. and S.L. were removed from

the home that night. A safety plan was put in place, which included that Crystal

was to have no contact with Johnson because his behavior in intentionally setting

the fire posed a high threat to the children. The children were returned to Crystal

the following day after the Agency learned that there was adequate bottled water

in the home to care for the children, but the safety plan remained in place.

{¶4} On May 9, 2008, deputies responded to a call at the Defiance Mall,

where they learned that Johnson had assaulted Crystal. They also learned that

Crystal had gone to the mall after arguing with Jamie and Roddy about how she

spent her money, in particular that she spent some of her money to pay for a motel

room for Johnson although the two were not to have any contact with one another

according to the safety plan. The Agency was informed of this incident, and on

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May 12, 2008, another safety plan was created whereby Crystal agreed to leave

her children with Roddy while she stayed with a friend in order to assure that the

children would not be exposed to any violence between the couple.

{¶5} On June 9, 2008, Johnson attacked Crystal with a knife when she

came to his home to retrieve some personal property. During this incident,

Johnson repeatedly hit Crystal and swung a knife at her several times, resulting in

multiple cuts to her arms. Crystal was taken to a nearby hospital while law

enforcement attempted to locate Johnson. While at the hospital, Crystal revealed

that Johnson had threatened to kill her and her entire family. Johnson was located

several hours later, arrested, and charged with felonious assault.2

{¶6} The Agency was contacted about this incident the following day but

was unaware at the time of Johnson’s arrest. The Agency obtained an ex parte

order from the trial court placing the children in its emergency temporary custody.

The children were removed from the home and placed in foster care. The

following day a shelter care hearing was held, and Crystal attended. Crystal

elected to proceed without counsel, and the Agency was granted emergency

temporary custody of the children.

{¶7} On June 25, 2008, the Agency filed a complaint for each of the

2 Johnson was later indicted on three counts. As a result of a plea agreement, he pled guilty to felonious assault and abduction. For these offenses, Johnson received an aggregate sentence of nine years in prison. (See Perm. Cust. Hrg. Trans., 4/28/10, pp. 29-30.)

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children. The complaints alleged that the children were neglected because they

were not receiving proper parental care due to the faults or habits of their mother

who was in an abusive relationship resulting in physical harm to her and she was

not budgeting properly to maintain a home and utilities for the children. The

complaints further alleged that the children were dependent because their

condition or environment was placing them at risk due to Crystal’s violent

relationship and her inability to maintain a home and meet the children’s needs

because she was irresponsible with her finances.

{¶8} On July 8, 2008, an initial hearing was held on the complaints. Both

Crystal and S.L.’s father, Matthew Reiman, were present and entered pleas of “not

true” to the allegations contained in the complaints.3 At this time, the trial court

appointed a guardian ad litem for the children and set a date for adjudication.

{¶9} In August of 2008, the adjudicatory hearing was held. Crystal

withdrew her previously tendered pleas of “not true” and entered pleas of “true” to

the allegations of neglect and dependency as to both H.L. and S.L.4 Given the

allegations contained in the complaints and Crystal’s admissions, the court found

that H.L. and S.L. were neglected and dependent and proceeded to disposition.

3 Although S.L.’s father attended a few of the initial hearings and visited with S.L. on a few occasions in the early stages of the Agency’s temporary custody, by the time of the permanent custody hearing, the father no longer had contact with S.L. or the Agency and was no longer attending hearings despite being properly notified. In addition, the record indicates that the name and address of H.L.’s father were unknown and were never discovered throughout these proceedings. 4 Although the trial court’s entry reflects that Reiman was present, it is silent as to whether he also changed his plea to the allegations of dependency and neglect to “true.” In any event, this is not an issue before us.

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The court granted temporary custody of the children to the Agency and adopted

the case plans for the children that were filed by the Agency. The judgment entry

reflecting these proceedings was filed on September 29, 2008.

{¶10} Although the children were placed in foster care in June of 2008,

Crystal and her mother and sisters were allowed supervised visits with the

children. Initially, H.L. was very emotional and distraught when visitations with

her mother and grandmother would end. As a result, the Agency worked with the

foster parents to add additional visits outside of the Agency to lessen the trauma of

separation for H.L. This arrangement continued after the children were placed in

another foster home on September 9, 2008,5 and even after H.L. had adjusted to

the situation. Many of these visits occurred at the church of the second foster

family on Wednesdays and Sundays.

{¶11} According to Tosha Burkley, the family’s on-going caseworker,

Crystal did very well in complying with the case plan during the first few months

that the children were in foster care. She regularly visited with the children,

obtained her own apartment at the Degler Apartments, contacted the Social

Security Administration to learn whether she could be employed and continue to

receive her disability payments (she had some cognitive problems due to lead

5 The children were removed from their first foster family because the foster mother was injured and unable to continue to care for the children.

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poisoning as a child), and was cooperative with the Agency. As a result, the

Agency decided that extended, unsupervised visitations, including overnight

visitations, would be appropriate.

{¶12} Crystal’s first overnight visitation with the children occurred on

September 23, 2008. However, three days later, Burkley discovered that Crystal

was smoking marijuana. In addition, Burkley learned that during one of the

unsupervised visits, H.L. was at her grandmother’s apartment (Roddy moved into

the same apartment complex as Crystal) when she found a camera and placed it in

the microwave, causing it to explode. Burkley also learned that there were times

during these visits when the children would be with Roddy or other family

members rather than with Crystal. Due to these issues, particularly the marijuana

usage, the Agency suspended all overnight and unsupervised visits. The Agency

also filed a motion requesting that Crystal be subjected to drug testing.

{¶13} From October of 2008 until January of 2009, Crystal tested positive

for marijuana. During this time, Burkley noticed that Crystal repeatedly missed

her required therapy appointments and also missed appointments for drug testing.

On January 21, 2009, Burkley received a report that Crystal was discharged from

her counseling with Lori Price-Hull, who she was seeing to learn about the danger

of bringing unsafe men into her life and the negative impact that could have on the

children, to learn how to properly parent her children, to address budgeting issues,

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and to learn to live independently from her mother because of Roddy’s lengthy

history with various children services agencies during Crystal’s childhood.

Crystal was discharged from this service due to being late and missing several

appointments. Burkley also learned that Crystal was in a relationship with a man

named Lewis, who had a history of domestic violence, and that Crystal had called

the police when Lewis would not return a cell phone that she had purchased for

him. Nevertheless, Burkley believed Crystal was still cooperative, open to

changing her life, and that reunification between mother and children was quite

possible.

{¶14} At the semi-annual review at the Agency in February of 2009,

several concerns were discussed, Crystal was receptive to the amendment of the

case plans to address these concerns, and she expressed that she did not want to

discuss a contingency plan of relative placement because she wanted to complete

the objectives of the case plans and be reunified with her children. Shortly after

this review, the children were assigned a new caseworker, Julia Santiago. The

amended case plan was adopted by the trial court on February 19, 2009.

{¶15} The amendments to the case plans in February of 2009 required

Crystal to have a drug and alcohol assessment and follow any recommendations

from that assessment. However, Crystal did not complete this assessment until

several months later. Santiago testified that in addition to her marijuana usage,

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Crystal took some pills, Vicodin and Percocet, that a friend had given her. Crystal

had her first “clean” drug screen in April of 2009, and she did not test positive for

any drugs or report taking any other drugs after this time.

{¶16} When Julia Santiago became the caseworker in February of 2009,

Crystal returned to counseling with a new therapist, Frank Sanders, to address the

issues that Price-Hull had previously attempted to address with her. By May of

2009, Crystal appeared to be making progress on the case plan again, but she had

not completed its objectives. On May 18, 2009, the Agency filed motions with the

trial court to extend its temporary custody of the children in order to allow Crystal

more time to complete the objectives of the case plan. On June 17, 2009, the trial

court held an annual review hearing in these cases, and at that time, Crystal agreed

with the extension of temporary custody. The trial court granted the requests,

which resulted in temporary custody being extended until December 10, 2009.

{¶17} While receiving counseling from Sanders, Crystal missed several

appointments and was ultimately discharged by Sanders because of these

absences. Crystal was transferred to a different therapist, Ann Clark, in July of

2009. That month, Crystal was also evaluated by Barbara Florke, a clinical nurse

specialist in psychiatry at the Maumee Valley Guidance Center, in order to

determine whether she was in need of any medications for mental health issues.

Florke evaluated Crystal to determine whether she had a psychiatric illness and

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whether she would require medication. Florke’s impressions were that Crystal

suffered from post-traumatic stress disorder. She also thought that Crystal might

possibly be suffering from bi-polar disorder and that there was a possibility of a

cognitive disorder secondary to lead poisoning as a child. However, she did not

prescribe any medications for Crystal because Crystal was now pregnant with her

third child. Florke recommended that Crystal undergo a psychiatric evaluation

and also recommended that she undergo psychological testing to determine what,

if any, cognitive disorders she may have.

{¶18} In August of 2009, Santiago was able to establish in-home

counseling for Crystal in an effort to alleviate Crystal’s attendance problems.

Thus, Crystal’s counseling with Clark ceased, and Diana Owens came to Crystal’s

home to counsel her on the issues that Price-Hull and Sanders had previously

attempted to address. Although the counseling occurred in Crystal’s home, she

cancelled a number of appointments with Owens. In addition, she did not actively

participate in this counseling. She would not discuss her choices in men, would

refuse to converse with Owens whenever Owens would question her judgment on

a particular matter such as budgeting, and had an overall flat affect when speaking

to Owens.

{¶19} By December of 2009, the Agency saw very little progress in

Crystal’s behavior and thinking. She did not successfully complete counseling or

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seem to make any progress in counseling. She was unable to maintain housing,

having moved four times during the pendency of these cases, including moving

back in with her mother and sisters. She had failed to obtain part-time

employment6 and continued to choose relationships with men who had histories of

domestic violence or other criminal conduct. In addition, Crystal had not

participated in any form of drug and/or alcohol counseling, and the children had

been in foster care for eighteen months. Consequently, on December 10, 2009, the

Agency filed for permanent custody of the children.

{¶20} On January 27, 2010, an attorney was appointed to represent Crystal.

On February 3, 2010, a hearing was held in this matter, and the parties stipulated

that it was in the children’s best interests that they remain in the Agency’s

temporary custody until the permanent custody motions were determined.

{¶21} In January and February of 2010, Crystal participated in a six week

early treatment group for drugs and alcohol, having completed her drug and

alcohol assessment the previous November. Crystal gave birth to her third child,

A.L., on March 1, 2010, and in order to receive her prescriptions, returned to

Florke later that month as Florke had advised her to do when she conducted a

psychiatric evaluation on Crystal the previous December. Florke prescribed

Crystal an anti-depressant medication and a mild anxiety medication. Crystal

6 According to Crystal, she was able to work twenty hours a week and still continue to receive her Social Security income.

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returned to the center where Florke worked the next month and reported to the

nurse who saw her that day that she was sleeping better, had more energy, and her

thoughts were more organized.

{¶22} Owens stopped her counseling sessions with Crystal in March of

2010, because she did not believe that there was anything more she could

accomplish with Crystal. On April 6, 2010, Jamie Lusk filed motions requesting

that she be given legal custody of H.L. and S.L. On April 23, 2010, the guardian

ad litem filed her reports and recommendations in which she recommended that

the Agency be granted permanent custody of the children.

{¶23} The permanent custody hearing was held on April 28-29, 2010. The

State presented a number of witnesses, including the caseworkers, Price-Hull,

Owens, and the current foster father. Crystal presented three witnesses, including

Jamie Lusk. Jamie did not present any witnesses. On July 2, 2010, the trial court

granted the Agency’s requests for permanent custody of H.L. and S.L.

{¶24} Crystal now appeals these decisions, raising six assignments of error.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT’S FINDING OF PERMANENT CUSTODY WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

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SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO EXTEND TEMPORARY CUSTODY IN LIEU OF GRANTING THE STATE’S MOTION FOR PERMANENT CUSTODY.

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY FINDING THAT DCDJFS HAD MADE SUFFICIENT EFFORTS REGARDING RELATIVE PLACEMENT.

FOURTH ASSIGNMENT OF ERROR

THE TRIAL COURT DENIED APPELLANT DUE PROCESS BY NOT APPOINTING COUNSEL UNTIL AFTER FILING OF THE STATE’S MOTION FOR PERMANENT CUSTODY.

FIFTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY FINDING THAT DCDJFS MADE REASONABLE EFFORTS TO ALLOW FOR THE RETURN OF THE CHILDREN TO APPELLANT.

SIXTH ASSIGNMENT OF ERROR

THE TRIAL COURT DID NOT SPECIFICALLY ADDRESS OR IN THE ALTERNATIVE CONSIDER THE SPECIFIC FACTORS LISTED IN R.C. 2151.414(D).

{¶25} For ease of discussion, we elect to address these assignments of error

out of the order in which they appear and to address some of them together as they

are interrelated.

{¶26} Our review of all of these assignments of error begins by noting that

the right to raise one’s own child is a basic and essential civil right. In re Murray

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(1990), 52 Ohio St.3d 155. “Parents have a ‘fundamental liberty interest’ in the

care, custody, and management of their children.” In re Leveck, 3rd 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.

First and Sixth Assignments of Error

{¶27} In Crystal’s first assignment of error, she maintains that the trial

court’s determination that permanent custody of H.L. and S.L. should be granted

to the Agency was not supported by clear and convincing evidence and was

against the manifest weight of the evidence. In her sixth assignment of error, she

contends that the trial court erred in awarding permanent custody of the children to

the Agency because it did not specifically address or even consider the factors

enumerated in R.C. 2151.414(D), which it is required to consider when

determining whether permanent custody to the Agency is in a child’s best interest.

{¶28} 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.

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: * * * (d) The child has been in

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the temporary custody of one or more public children services agencies * * * for twelve or more months of a consecutive twenty-two month period[.]

R.C. 2151.414(B)(1).

{¶29} The Supreme Court of Ohio has held that “[c]lear and convincing

evidence is that measure or degree of proof which will produce in the mind of the

trier of facts a firm belief or conviction as to the allegations sought to be

established.” Cross v. Ledford (1954), 161 Ohio St. 469, 477. Further, “[i]t is

intermediate; being more than a mere preponderance, but not to the extent of such

certainty as is required beyond a reasonable doubt as in criminal cases. It does not

mean clear and unequivocal.” Id., citing Merrick v. Ditzler (1915), 91 Ohio St.

256. In addition, when “the degree of proof required to sustain an issue must be

clear and convincing, a reviewing court will examine the record to determine

whether the trier of facts had sufficient evidence before it to satisfy the requisite

degree of proof.” Cross, supra (citations omitted); see, also, In re Adoption of

Holcomb (1985), 18 Ohio St.3d 361, 368. Thus, we are required to determine

whether the evidence was sufficient for the trial court to make its findings by a

clear and convincing degree of proof.

{¶30} Here, the parties stipulated and the trial court found that the children

had been in the temporary custody of the Agency for twelve or more months of the

prior twenty-two consecutive months pursuant to R.C. 2151.414(B)(1)(d). As

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previously noted, the children were removed from Crystal’s home on June 10,

2008, and were adjudicated dependent on September 29, 2008. For the purposes

of R.C. 2151.414(B)(1)(d), “a child shall be considered to have entered the

temporary custody of an agency on the earlier of the date the child is adjudicated

pursuant to section 2151.28 of the Revised Code or the date that is sixty (60) days

after the removal of the child from the home.” R.C. 2151.414(B)(1)(d). As of

August 9, 2008, the children had been out of the home for sixty days. The

motions for permanent custody were filed on December 10, 2009. Thus, pursuant

to the statute, the children had been in the temporary custody of the Agency for

sixteen consecutive months, and the trial court’s determination in this regard was

clearly supported by the evidence.

{¶31} Once this finding was made, the trial court needed only to find that

permanent custody to the Agency was in the children’s best interests. See In re C.

W., 104 Ohio St.3d 163, 2004-Ohio-6411, at ¶ 21. In order to determine whether

granting permanent custody to an agency is in a child’s best interest, the trial court

must consider all relevant factors, including, but not limited to, five enumerated

factors. R.C. 2151.414(D). Further, “the trial court must either specifically

address each of the required considerations set forth in R.C. 2151.414(D) in its

judgment entry, or otherwise provide some affirmative indication in the record that

the court has considered the specific factors listed in R.C. 2151.414(D).” In re

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D.H., 3rd Dist. No. 9-06-57, 2007-Ohio-1762, at ¶ 21. “[It] is not sufficient for

the trial court to simply rely on the appellate court to review the factual record or

narrative and then make the necessary inferences to determine whether the trial

court must have considered each of the required statutory factors.” Id. at ¶ 20.

These enumerated factors are

(a) The interaction and interrelationship of the child with the child’s parent, siblings, relatives, foster caregivers and out-of- home providers, and any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child;

(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children 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.

R.C. 2151.414(D)(1)(a-e)

{¶32} Crystal contends that the trial court did not address or consider the

required factors in determining whether granting permanent custody to the Agency

was in the children’s best interest. We find this contention to be without merit.

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{¶33} The trial court found that granting permanent custody of H.L. and

S.L. was in their best interests. In so doing, the trial court specifically noted that

this finding was made pursuant to R.C. 2151.414(D). Further, as previously

discussed, the trial court considered the custodial history of the children, finding

that they had been in the temporary custody of the Agency twelve or more months

of a consecutive twenty-two month period. See R.C. 2151.414(D)(1)(c). The trial

court’s entry further reflects that it considered the interactions and

interrelationships between the children, their mother, the grandmother and aunts,

and foster care providers (R.C. 2151.414(D)(1)(a)); the wishes of the children as

expressed through their guardian ad litem, who recommended that the Agency be

granted permanent custody (R.C. 2151.414(D)(1)(b)); their need for legally secure

placement (R.C. 2151.414(D)(1)(d)); and made no findings that the factors in R.C.

2151.414(E)(7) to (11) applied (R.C. 2151.414(D)(1)(e)). Accordingly, contrary

to Crystal’s assertions, we find that the trial court not only stated in its judgment

entry that it considered R.C. 2151.414(D) in determining the children’s best

interests but that it specifically referred to each factor in that section. Therefore,

the sixth assignment of error is overruled.

{¶34} The next question is whether there was clear and convincing

evidence for the trial court to find that permanent custody to the Agency was in

the children’s best interests. For the following reasons, we find that there was.

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{¶35} The children were initially removed from Crystal’s care because she

was in an abusive relationship with a man who eventually assaulted her with a

knife and threatened to kill her and her children. In addition, Crystal was unable

to maintain a home independent of her mother and meet the children’s needs due

to her irresponsibility with finances and inability to properly budget.

{¶36} To address the safety concerns, the case plan required Crystal to

participate in counseling to learn to make better personal choices, to learn how her

choices affect her children, and to learn how to make choices that did not present

safety risks for the children. As previously noted, Crystal began counseling but

was only intermittently compliant and was discharged by two different counselors

when she repeatedly missed appointments. Crystal received additional counseling

in her home by Owens, who also terminated services after Crystal made no

progress and neglected to actively participate in counseling.

{¶37} Owens testified that she found Crystal to have a very flat affect and

that she would “shut down” whenever Owens questioned her judgment in

particular areas, such as how she could afford a certain apartment she wanted and

be able to manage obtaining other necessary items, such as diapers, utilities, etc.

Often times Crystal would cease talking to Owens and not respond when asked

direct questions. Additionally, Crystal would usually not interact with Owens and

informed Owens that she did not trust therapists, only trusted her family, and did

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not believe anyone had a right to tell her what to do, including how to parent her

children. She also did not want to discuss the men she had been involved with

despite Owens advising her that they needed to have this type of discussion in

order to prevent her from entering future violent relationships.

{¶38} Due to her unwillingness to engage with Owens, Owens was only

able to provide Crystal with information about domestic violence, the cycle of

violence, and characteristics of battering personalities but could not have

conversations with Crystal about these issues. During the time period in which

Owens counseled Crystal, Crystal cancelled her appointments with Owens on

several occasions. By March of 2010, Owens discontinued her counseling with

Crystal because she did not believe that she could provide any further assistance to

Crystal due to her lack of participation and mistrust. Owens also testified that she

could not identify any progress on Crystal’s part because of the fact that Crystal

never interacted with her.

{¶39} Despite what counseling Crystal did receive, she continued to make

poor decisions in regards to the men with whom she became romantically involved

even after Johnson was sentenced to prison. Among these men was a person who

she knew as “G” but did not know his real name or anything about his background

and another man who was homeless. There was also Lewis, a man with a history

of domestic violence who refused to return a cell phone to her that she purchased,

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prompting her to seek police assistance. Then, she became involved with the

father of her third child, a man she met on the internet, who was back living in

Dayton, Ohio, and no longer involved with Crystal by the time Owens began

counseling her in August of 2009. Most recently, she was dating a man by the

name of Travis, who Santiago testified was not allowed to see his own children

because of sex abuse issues arising out of another county, who had sexually

abused younger children when he was a teenager, and who had a history of

domestic violence.

{¶40} Crystal was also never able to maintain stable housing on her own,

having moved four times throughout the pendency of these proceedings. Even

when she lived with her mother and sisters, the whole family moved repeatedly,

often having been evicted for non-payment of rent despite having Crystal’s

income from social security, her mother’s income either from working or

receiving unemployment compensation, and her sister Jamie’s income from

working. Santiago also testified that the places Crystal lived were often messy,

including times when she was “pet sitting” and there would be pet excrement on

the floor.

{¶41} Her home at the time of the permanent custody hearing was a two

bedroom apartment, which she shared with her mother and two sisters. If the

children were allowed to return to her care, Crystal’s plan was to have each of the

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children share a bedroom with her sisters, and she and her mother would continue

to sleep in the living room. The Agency was particularly concerned about

Crystal’s reliance on her family to support her and the children because the

Roddy/Lusk family had a lengthy history with children services agencies,

including Lucas, Putnam, Paulding, Williams, and Defiance counties, as far back

as 1988, involving several substantiated neglect cases and physical and sexual

abuse cases. Thus, the Agency stressed the need for Crystal to stop relying on her

family as a housing source.

{¶42} In addition, Owens testified that the small apartment would not

adequately house four adults and potentially three children if all of Crystal’s

children were returned to her. Further, Owens noted that in her time working with

Crystal, the condition of the apartment worsened. Santiago also testified about

visiting the apartment on multiple occasions, when Crystal knew in advance that

she would be visiting, and there would be dirty dishes everywhere, food left on the

table, clutter throughout, and the apartment would smell heavily of cigarette

smoke.

{¶43} Crystal was also not capable of handling her finances and switched

payees for her social security income three different times. In fact, she did not

know how much money she had and neither did her most recent payee, Jamie.

Crystal was referred to the Ability Center by Price-Hull so that she could learn

-22- Case No. 4-10-09 and 4-10-10

how to handle her finances and properly budget. In addition, her caseworkers

discussed the importance of properly spending and saving her money in order to

meet the children’s basic need for a home with working utilities if Crystal wanted

to be reunited with them. Likewise, Owens counseled Crystal about her finances,

how to budget for a home, utilities, and other necessities for raising two small

children. Nevertheless, rather than saving her money in order to be able to live

independently from her mother and sisters and provide for her children, Crystal

often bought the children many presents and snacks to give them when she visited.

Notably, H.L. had numerous dental problems of which Crystal was aware, yet she

often brought candy or cookies to the children and allowed H.L. to eat significant

amounts of these snacks. It was not until the case worker would point out to

Crystal that these types of treats were not appropriate given H.L.’s dental health

that Crystal would stop H.L.’s consumption of these sugary treats.

{¶44} The evidence also revealed that Crystal regularly visited with the

children and rarely missed a visitation, including the additional visits at the foster

family’s church. When visiting with both children, particularly as S.L. grew and

became more physically active, Crystal had difficulty in handling both of them

and was overwhelmed when her third child was born and was added to the

visitation. In fact, the Agency adjusted the visits with the children to have the first

half hour involve only Crystal, H.L. and S.L., the second half hour would be with

-23- Case No. 4-10-09 and 4-10-10

all three children, and the third half hour would only be between Crystal and the

new baby to make it easier for Crystal to manage.

{¶45} Owens testified that she observed various visits between Crystal,

H.L., and S.L. She testified that Crystal was unable to watch both children

adequately and did not think to change her location in the room so that she could

observe the whole room and where her children were located at all times to ensure

that they did not play with toys that were dangerous for each child’s respective

stage of development until Owens showed her where to sit. Crystal also brought

toys that were too advanced for her children’s ages, resulting in frustration and

acting out by H.L. Owens further testified that she did not believe that Crystal

could handle raising small children, who demand a lot of attention, manage to stay

calm, “keep a roof over their head, [and] pay her bills,” and that additional time

would not change this. (Hrg., 4/29/10, p. 172.) Owens also was concerned

because in speaking with Crystal she realized that when Crystal is involved with a

man, the man is very important to her and whatever that man may ask of her she

will give. The guardian ad litem also reported that Crystal did not appropriately

discipline the children, often failing to follow through with her chosen form of

discipline, not explaining the discipline to the children, or simply ignoring the

misbehavior of the children.

-24- Case No. 4-10-09 and 4-10-10

{¶46} Although H.L. and S.L. were happy to visit with their mother and

their relatives, the guardian ad litem reported that they were more strongly bonded

to the foster parents. Notably, by the time of the permanent custody hearing, the

children, who had turned four and two, respectively, the proceeding month, had

been together in foster care for twenty-two consecutive months and with the same

foster family for over nineteen consecutive months. During their time in the foster

family’s care, H.L. and S.L. were cared for, their needs were met, including H.L.’s

dental problems, and they were thriving.

{¶47} In short, although Crystal accomplished some of the case plan

objectives, such as regular visitation, no longer using marijuana, and completing

substance abuse counseling, she did not successfully complete the remainder of

the case plan objectives and she did not implement the counseling she received.

Crystal’s compliance with the case plan was intermittent. She would have periods

of seeming compliance, but then she would revert to her previous ways. Despite

having nearly two years to complete the objectives of the case plan, she did not

complete the objectives of the case plan that were of the most importance in

having her children returned to her, i.e. demonstrating that she could make choices

that would not jeopardize her children’s safety and that would ensure their basic

needs were met. Further, there was no evidence before the trial court that Crystal

was ever going to accomplish these objectives. To the contrary, Crystal

-25- Case No. 4-10-09 and 4-10-10

demonstrated a pattern of behavior throughout the pendency of these cases that

indicated she would not change her way of thinking or acting, which would

continue to place the children at risk if they were returned to her care.

{¶48} As for the children, while in the Agency’s care, they were safe, their

needs were met, they were well adjusted, and the evidence revealed that they

would continue to be in this condition if the Agency was given permanent custody

of them. Further, the current foster parents were quite bonded with the children

and were willing to adopt both children. In addition, the guardian ad litem, who

spoke with many people involved with the children, observed the children with

their mother and with the foster family, reviewed records from Crystal’s

counseling sessions, and was involved in these proceedings throughout,

recommended that the Agency be granted permanent custody. In light of all of the

evidence, the trial court’s determination that permanent custody to the Agency was

in the children’s best interest was amply supported, and the first assignment of

error is overruled.

{¶49} In her fifth assignment of error, Crystal asserts that the trial court

erred in finding that the Agency made reasonable efforts to return the children to

her. The Revised Code imposes a duty on the part of children services agencies to

make reasonable efforts to reunite parents with their children where the agency has

-26- Case No. 4-10-09 and 4-10-10

removed the children from the home. R.C. 2151.419; see, also, In re Brown

(1994), 98 Ohio App.3d 337, 344, 648 N.E.2d 576. Further, the agency bears the

burden of showing that it made reasonable efforts. R.C. 2151.419(A)(1). “Case

plans are the tools that child protective service agencies use to facilitate the

reunification of families who * * * have been temporarily separated.” In re Evans,

3rd Dist. No. 1-01-75, 2001-Ohio-2302. To that end, case plans establish

individualized concerns and goals, along with the steps that the parties and the

agency can take to achieve reunification. Id. Agencies have an affirmative duty to

diligently pursue efforts to achieve the goals in the case plan. Id. “Nevertheless,

the issue is not whether there was anything more that [the agency] could have

done, but whether the [agency’s] case planning and efforts were reasonable and

diligent under the circumstances of this case.” In re Leveck, 3rd Dist. Nos. 5-02-

52, 5-02-53, 5-02-54, 2003-Ohio-1269, at ¶ 10.

{¶50} As previously noted, the two major concerns of the Agency were

that Crystal not continue to make choices that placed her children’s safety at risk

and that she provide for their basic needs without relying on Roddy, who had a

lengthy history with children services agencies. To those ends, the case plan

required that Crystal participate in counseling, that she participate in parenting

classes, and that she obtain and maintain suitable housing of her own rather than

with her mother. In order to accomplish the goal of maintaining her own housing,

-27- Case No. 4-10-09 and 4-10-10

Crystal was to obtain gainful employment in order to be able to have an adequate

income to afford housing. When the Agency discovered that Crystal was smoking

marijuana, the case plan was amended to require her to submit to a drug and

alcohol assessment and comply with any services recommended as a result.

{¶51} In order to accomplish the objectives of the case plan, the Agency

was to provide Crystal with referrals to counseling agencies for a mental health

evaluation, drug and alcohol assessment, and counseling, a referral to Help Me

Grow (a parental education resource), a referral to the Ability Center for help with

budgeting, transportation if needed, and with case management, including routine

home visits and case reviews every ninety days to review her progress and

intervene if necessary. Crystal was also to contact the OSU Extension for classes

on budgeting/household maintenance and to utilize the Northwest Ohio Job Center

for help in applying and securing employment. The case plan also required

visitation between Crystal and the children, and the Agency was required to

facilitate this visitation.

{¶52} Crystal reviewed the case plan with the Agency on multiple

occasions, including at the semi-annual reviews. Her caseworkers explained the

plan to her and emphasized the importance of completing the plan’s objectives in

order to be reunified with her children. The Agency made all the required

referrals and took additional steps to ensure that Crystal received the necessary

-28- Case No. 4-10-09 and 4-10-10

counseling by having a counselor come directly to Crystal’s home in an effort to

alleviate her attendance problems. The Agency also made a request and a referral

to the furniture bank when Crystal asked for the Agency’s assistance in obtaining

furniture. The caseworkers made regular visits to her home and discussed various

issues with her that needed to be addressed. The Agency scheduled visitation with

Crystal and her children and even established additional visitation through the

foster family to ease the trauma H.L. initially experienced.

{¶53} When Burkley thought that Crystal was making good progress on

the case plan, the Agency extended her visitation to unsupervised visits, including

overnight visitation. However, H.L. managed to cause a camera to explode in the

microwave during one of these visits, and the Agency learned that Crystal was

smoking marijuana. Only then did these visits cease. Nevertheless, the Agency,

through the foster family, continued to provide additional visits for Crystal on

Wednesdays and Sundays at the foster family’s church, including permitting

Crystal to have a birthday party for one of the children. In addition, the Agency

requested and received a six-month extension to allow Crystal more time to

complete the objectives of the case plan.

{¶54} Despite these efforts by the Agency, Crystal now asserts that the

Agency did nothing to assist her in obtaining employment, to register for on-line

classes, to find a new home, or to obtain necessary medication. Although the

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evidence does not indicate that the Agency provided a list of available housing

when Crystal moved from the Degler apartment, the employment classifieds, or a

how-to-manual for on-line class registration, the case plan, itself, included the

names of resources where she could find this information. Further, the record is

devoid of any evidence that Crystal could not manage to obtain this information

utilizing these resources or that she ever requested additional assistance from the

Agency.

{¶55} As for the issue of medication, Crystal was evaluated on multiple

occasions for mental health concerns because she repeatedly was discharged from

counseling because of poor attendance. Consequently, it was not until July of

2009 that she was able to be examined by Florke for the purpose of determining

whether she needed medication. At that time, Florke could not medicate Crystal

because Crystal was pregnant. Thus, the delay in being provided with the

necessary medications was due to Crystal’s actions not those of the Agency.

{¶56} As noted, the Revised Code only requires that the Agency’s case

planning and efforts be reasonable and diligent under the circumstances of these

cases. The Revised Code does not require that an Agency walk a parent through

every step of the plan; the parent bears some of the responsibility for

accomplishing the objectives of the case plan. In light of the issues involved in

these cases and the efforts made by the Agency to reunify Crystal with her

-30- Case No. 4-10-09 and 4-10-10

children, we cannot conclude that the trial court erred in finding that the case

planning and efforts of the Agency were reasonable and diligent. Therefore, the

fifth assignment of error is overruled.

{¶57} In her second assignment of error, Crystal asserts that the trial court

abused its discretion in denying her request for an extension of temporary custody

rather than granting permanent custody to the Agency. In support of this

assertion, Crystal contends that Florke testified that she prescribed medications for

Crystal in March of 2010, that by April of 2010, Crystal was responding to these

medications, and that the trial court should have allowed Crystal more time to “see

if Crystal could continue the progress she was making.” However, Crystal has

cited to no authority, and this Court is not aware of any requirement, that the trial

court allow a parent more time before granting permanent custody to the Agency.

{¶58} Here, the children had been in the physical custody of the Agency

for twenty-two months. As we have previously held, the best interests of children

include not having to linger in foster care awaiting their mother to become a

responsible parent. See In re Gomer, 3rd Dist. Nos. 16-03-19, 16-03-20, 16-03-21,

2004-Ohio-1723, at ¶ 27. In addition, there was no evidence before the trial court

that Crystal would continue to take her prescriptions or that these medications

would result in Crystal achieving the objectives of the case plan. However, there

-31- Case No. 4-10-09 and 4-10-10

was evidence that Crystal vacillated in her compliance with the case plan,

engaging in cycles of compliance and non-compliance. Thus, concluding that this

medication would have some curative effect for Crystal’s poor decision-making

and lack of compliance is pure speculation. More importantly, given our

discussion in regards to the first and sixth assignments of error that the trial court

properly followed the mandates of R.C. 2151.414 before granting permanent

custody to the Agency, we conclude that the trial court did not err in denying

Crystal’s request for an extension of permanent custody. The second assignment

of error is overruled.

{¶59} Crystal maintains in her third assignment of error that the trial court

erred in finding that the Agency made sufficient efforts to place the children with a

relative. More specifically, Crystal asserts that R.C. 2151.28 requires that a trial

court determine whether there are any relatives of the child who are willing to be

temporary custodians of the child and that the children could have been placed

with her sister Jamie.

{¶60} Although Crystal correctly notes that R.C. 2151.28 requires a trial

court to determine whether there are any relatives who are willing to be temporary

custodians of the child, her reliance on this portion of the Revised Code is

misplaced. This determination is to be made at the time the trial court makes its

-32- Case No. 4-10-09 and 4-10-10

shelter care determination during the adjudicatory hearing and is only in effect

until the dispositional hearing. See R.C. 2151.28(B)(1); 2151.353(A).7 There is

no similar requirement when a trial court is deciding whether to grant an agency’s

request for permanent custody. See In re Schaefer, 111 Ohio St.3d 498, 2006-

Ohio-5513, 857 N.E.2d 532, at ¶ 64; R.C. 2151.414.

{¶61} Further, Jamie made no representations that she wanted to take

custody of the children until four months after the Agency filed for permanent

custody despite the fact that the children had been in foster care for nearly twenty-

two months. The evidence also revealed that she currently lived with Crystal,

their mother, and another sister in the two bedroom apartment at Castle Court; she

had always lived with her mother and was evicted for non-payment of rent along

with her family although she was employed, her mother received unemployment

compensation and/or was employed, and Crystal received social security income;

and she worked third shift, did not have a driver’s license, and did not know how

she would arrange transportation to have someone care for the children while she

was working. Thus, the trial court did not err by denying Jamie’s motion for legal

custody, and the third assignment of error is overruled.

7 A similar provision also appears in R.C. 2151.314(B)(2).

-33- Case No. 4-10-09 and 4-10-10

{¶62} Crystal contends in her fourth assignment of error that the trial court

denied her due process by not appointing her counsel until the Agency filed its

motions for permanent custody. The Revised Code provides that a parent “is

entitled to representation by legal counsel at all stages of the proceedings” under

Chapter 2151., including the right to have counsel appointed if the parent is

indigent. R.C. 2151.352; see, also, Juv.R. 4. However, a parent can also waive

this right. See In re Ramsey Children (1995), 102 Ohio App.3d 168, 169-170, 656

N.E.2d 1311.

{¶63} Crystal contends that she requested counsel at the shelter care

hearing. In support of this, she relies upon the trial court’s entry of June 25, 2008,

which noted that the court had informed Crystal of her right to an attorney but that

she waived her right to counsel for purposes of that hearing, requested that the

matter proceed, and requested “counsel be appointed for future proceedings.”

(Judg. Ent., 6/25/08.) However, there is nothing in the record to indicate that

Crystal filed an affidavit of indigency in order to have the court appoint an

attorney for her, and there is no transcript before this Court of the shelter care

hearing to further explain the “request for counsel for future proceedings” or to

demonstrate that Crystal qualified for court appointed counsel.

-34- Case No. 4-10-09 and 4-10-10

{¶64} Moreover, the trial court’s entries for the July 8, 2008 hearing,

wherein Crystal denied the allegations contained in the complaints, and the August

21, 2008 adjudicatory and dispositional hearings, wherein Crystal admitted the

allegations of neglect and dependency were true, note that the trial court advised

Crystal of her right to an attorney but that she waived this right and elected to

proceed on both occasions. (See Judg. Ent., 7/14/08; Judg. Ent., 9/29/08.) Crystal

provided no transcript of these hearings either. Accordingly, we presume the

regularity of the proceedings and that the trial court accurately reflected in its

judgment entries what occurred at these hearings. See In re Predmore, 187 Ohio

App.3d 100, 2010-Ohio-1626, 931 N.E.2d 181, at ¶ 35, citing State v. West, 3rd

Dist. No. 2-06-04, 2006-Ohio-5834, ¶¶ 51, 53; App.R. 9(B). Therefore, the record

does not demonstrate that Crystal was denied her right to counsel prior to the

motions for permanent custody but that she did not pursue it. The fourth

assignment of error is overruled.

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

particulars assigned and argued, we affirm the judgments of the trial court.

ROGERS and PRESTON, J.J., concur.

/jlr

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