In re T.A.H.

2017 Ohio 7143

• Court: Ohio Court of Appeals
• Decided: August 4, 2017
• Docket: 17CA11, 17CA12
• Status: Published

Opinion

[Cite as In re T.A.H., 2017-Ohio-7143.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF : T.A.H. JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

Case No. 17CA11, 17CA12

OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 2012-DEP-00156

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 4, 2017

APPEARANCES:

For Appellant/Father For Appellee

DAVID WATSON SERENA M. COPPULA 3 North Main St., Suite 702 Richland County Children Services Board Mansfield, Ohio 44902 731 Scholl Road Mansfield, Ohio 44907

For Appellant/Mother

JOHN C. O’DONNELL, III 10 West Newlon Place Mansfield, Ohio 44902 Richland County, Case No. 17CA11, 17CA12 2

Hoffman, J.

{¶1} In Richland App. No. 2017 CA 011, Appellant Todd Hout (“Father”) appeals

the February 8, 2017 Opinion and Judgment Entry entered by the Richland County Court

of Common Pleas, Juvenile Division, which terminated his parental rights, privileges, and

responsibilities with respect to his minor child, and granted permanent custody of the child

to Appellee Richland County Children Services Board (“RCCS”). In Richland App. No.

2017 CA 0012, Appellant Trisha Hout (“Mother”) appeals the same with respect to the

trial court's termination of her parental rights, privileges, and responsibilities.

STATEMENT OF THE CASE AND FACTS

{¶2} Mother and Father are the biological parents of the child. Mother gave birth

prematurely to the child on November 2, 2012. The child, who was unresponsive at birth,

was in a medically fragile state and faced acute health and developmental issues. Seven

days after the child’s birth on November 9, 2012, the trial court issued an ex parte order,

placing the child into the emergency shelter care custody of RCCS.

{¶3} The trial court found the child to be a dependent child at an adjudicatory

hearing on January 29, 2013, and placed the child in the temporary custody of RCCS. On

October 15, 2014, RCCS filed a motion for permanent custody. The trial court conducted

a four day hearing. Via Memorandum Opinion and Judgment Entry filed March 11, 2015,

the trial court overruled the motion, finding Parents had not, at that point, been afforded

“every procedural and substantive protection the law allows.” The child remained in the

temporary custody of RCCS. Richland County, Case No. 17CA11, 17CA12 3

{¶4} RCCS filed its second motion for permanent custody on April 20, 2016. The

trial court conducted a four day hearing on the motion, commencing January 9, 2017.

The parties stipulated the child had been in the temporary custody of RCCS for twelve or

more months of a consecutive twenty-two month period, and had also been in the

temporary custody of RCCS for two years or longer.

{¶5} The child was medically fragile at birth and faced acute health and

developmental issues. Because of aspiration, a feeding tube was inserted into the child’s

stomach in the spring of 2013. Later that year, the child underwent a second surgery due

to reflux. The child had severe dysphagia and significant delays in oral feeding. She also

had significant fine motor, gross motor and developmental issues. She attended, and

continues to attend, weekly occupational, physical, and speech therapy sessions. Her

health had significantly improved over the course of the proceedings. Although the

feeding tube remained, the child’s swallowing ability had greatly improved and she did

not use the feeding tube. Despite the improvements to her health, the child continues to

need proactive, engaged, and competent caregiving.

{¶6} Since her birth, the child had had at least one hundred medical and/or

hospital appointments, including 20 or more visits to Akron Children’s Hospital. The foster

parents transported the child to/from and attended all of the appointments. Parents

regularly failed to attend the child’s appointments, including routine well-child visits which

occurred in Mansfield, Ohio, where they resided. Parents only attended approximately

six appointments at Akron Children’s Hospital notwithstanding regular notice and being

provided transportation. Richland County, Case No. 17CA11, 17CA12 4

{¶7} The child suffers from asthma, which requires close monitoring and often

requires an immediate medical response. Parents smoke, and neither have considered

quitting even with the knowledge of the child’s condition and the effect of smoking on her

asthma. Overall, Parents did not show an interest or concern regarding the child’s health

and well-being.

{¶8} The case plan required Parents to attend parenting classes; complete

psychological evaluations and follow all recommendations; maintain a clean and safe

home; obtain stable sources of income; and attend the child’s medical appointments.

{¶9} Parents attended cooking classes through Parent Aide. Parents also

engaged in 20 parent educations sessions through Parent Aide. Laurie Daugherty, the

parent educator, testified Parents needed more time to develop the nuances of parenting,

which she believed to be a critical component to successful parenting. Daugherty

observed Mother parenting without taking into consideration the child’s developmental

needs.

{¶10} During the four years the child was in the temporary custody of RCCS,

Parents were afforded regular visitation, generally several times per week. The visits

remained supervised throughout the case. RCCS workers used the visits to educate and

train Parents to improve their basic parenting skills and to teach them how to meet the

child’s medical needs, including the proper use the feeding tube. Although Mother

demonstrated a genuine emotional attachment to the child as well as limited nurturing

abilities, at times, she did not respond to the child appropriately, demonstrating an

incorrect or inadequate understanding of the child’s needs. Mother did not always

appropriately discipline the child. Father’s interactions with the child were mainly passive Richland County, Case No. 17CA11, 17CA12 5

in nature. There was relatively little proactive interpersonal engagement with the child by

Parents.

{¶11} The conditions of Parents’ home was a concern throughout the

proceedings. Parents struggled to consistently maintain a clean and safe home. RCCS

workers observed bug infestation, including cockroaches, fleas, and bed bugs. The

workers also noted strong odors of garbage, urine, and feces. The home was cluttered

and dirty. At one point, the health department had to address the insect infestation.

Episodes of bug infestation occurred periodically throughout the case.

{¶12} On September 15, 2013, Parents completed psychological evaluations at

Northeast Ohio Behavioral Health. The results of the testing revealed Parents have

cognitive deficits and mental health diagnoses which significantly impact their ability to

effectively parent or otherwise adequately care for the child, especially in light of the

child’s ongoing medical needs. Father’s IQ score placed him in the mild to moderate

range of mental retardation. The evaluator opined the level of Father’s intellectual ability

will affect his reasoning, judgment, and ability to interpret situations. Father is likely to

experience moderate difficulty with comprehending parenting instruction and integrating

information. Further, Father’s test results suggested he may have some degree of Bipolar

Disorder. Mother has a below average IQ. The intellectual testing suggested Mother “is

likely to encounter some difficulties understanding and retaining parenting instruction”,

and would require “a highly structured approach to parenting skill training, with active

modeling and re-checking to ensure comprehension and transfer of learning.” Like

Father, Mother’s intellectual ability will affect her reasoning, judgment, and ability to

interpret situations. Richland County, Case No. 17CA11, 17CA12 6

{¶13} On May 18, 2015, Parents each completed a second psychological

evaluation with Dr. Aaron Becker, a clinical psychologist. Dr. Becker, likewise, found

Parents each have significant cognitive deficits. He opined Mother and Father would

likely have difficulty parenting due to their cognitive deficits, and would need assistance

to care for the child on a daily basis. Dr. Becker Father’s IQ score was slightly higher on

the test performed by Dr. Becker, however, Father still fell “at the extreme low end of the

Borderline range of the population.” Mother’s IQ score was 60, which placed her in the

extremely low range of the population. The test results showed Mother’s adaptive

behavior functioning, or social, skills, was extremely low. Further, the test results for self-

care, leisure, functional academics, health and safety, and community use suggested

Mother does not have the cognitive ability to adequately provide for her own personal

hygiene and daily functioning, such as bathing and grooming; completing forms or

applications; making a schedule; following safety rules; planning meals; and exchanging

money accurately. Dr. Becker determined each parent to be “mildly mentally retarded.”

{¶14} During the best interest portion of the hearing, the testimony revealed the

child is very bonded with her foster parents, with whom she has lived for over four years.

The child is fully assimilated into their family. The foster parents are fully committed to

the child and attend to all of her needs – physical, emotional, and medical.

{¶15} The child has a relatively comfortable relationship with Parents. However,

she had, on several occasions, resisted visiting Parents. Parents overall interpersonal

relationship with the child was minimal and passive. The child resisted Mother’s attempts

to engage in a more active manner. The child’s play therapist provided Parents with Richland County, Case No. 17CA11, 17CA12 7

techniques to utilize in their interactions with the child. Parents were less than willing to

accept and apply those methods.

{¶16} Via Opinion and Judgment Entry filed February 8, 2017, the trial court

terminated Father and Mother's parental rights, privileges, and responsibilities with

respect to the child, and granted permanent custody of the child to RCCS. The trial court

issued Findings of Fact and Conclusions of Law on the same day, which the trial court

incorporated into its Judgment Entry.

{¶17} It is from this judgment entry Parents appeal.

{¶18} In Richland App. No. 17 CA 11, Father assigns the following as error:

I. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO RICHLAND COUNTY CHILDREN SERVICES (RCCS)

BECAUSE RCCS FAILED TO FILE A TIMELY ADOPTION CASE PLAN AS

REQUIRED BY ORC 2151.413(E).

II. THE TRIAL COURT ERRED IN FINDING THAT IT IS IN THE

CHILD’S BEST INTEREST THAT SHE BE PLACED IN THE PERMANENT

CUSTODY OF RCCS AS THE AGENCY FAILED TO MEET ITS BURDEN

OF PROF [SIC] AND THE TRIAL COURT’S DECISION WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY OF THE CHILD TO RCCS AS FATHER HAD SUBSTANTIALLY

REMEDIED THE CONDITIONS THAT CAUSED THE CHILD’S REMOVAL. Richland County, Case No. 17CA11, 17CA12 8

IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN

GRANTING PERMANENT CUSTODY OF THE CHILD TO RCCS WHEN

THE AGENCY DID NOT USE REASONABLE CASE PLANNING AND

DILIGENT EFFORTS FOR REUNIFICATION WITH FATHER.

V. THE TRIAL COURT VIOLATED FATHER’S FUNDAMENTAL

RIGHT TO RAISE HIS CHILD WHEN THE TRIAL COURT GRANTED

PERMANENT CUSTODY TO RCCS.

{¶19} In Richland App. No. 17 CA 12, Mother raises the following assignments of

error:

I. THE TRIAL COURT’S DECISION GRANTING PERMANENT

CUSTODY TO CHILDREN SERVICES WAS CONTRARY TO LAW.

II. THE TRIAL COURT’S FINDINGS WAS [SIC] NOT BASED UPON

CLEAR AND CONVINCING EVIDENCE.

{¶20} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C). Richland County, Case No. 17CA11, 17CA12 9

FATHER

17 CA 11

I

{¶21} In his first assignment of error, Father argues the trial court erred in granting

permanent custody of the child to RCCS as the Agency failed to file a timely adoption

case plan as required by R.C. 2151.413(E).

{¶22} Father acknowledges the Ohio Supreme Court in In re: T.R.,120 Ohio St.3d

136, 2008-Ohio-5219, held, although R.C. 2151.413(E) “requires a children-services

agency seeking permanent custody of a child to update the child's case plan to include

adoption plans,” the statute “does not require the agency to perform this action before the

juvenile court rules on the motion for permanent custody.” Id. at para. 8. However, Father

refers this Court to Justice Lundberg Stratton’s concurring opinion in In re: T.R., in support

of his position a public agency should include a plan for adoption in the child's case plan

prior to the permanent custody hearing. (Emphasis added). Justice Lundberg Stratton

noted her belief “the statutory scheme and the public policy underlying the 1997 federal

amendments, in response to which Ohio amended its laws, support an inference that the

General Assembly intended to require an agency to amend the child's case plan to include

a specific plan for seeking adoption prior to the hearing on a motion for permanent

custody.” Id. at para. 18.

{¶23} Based upon the clear holding in In re: T.R., we disagree with Father and

find the trial court did not err in granting permanent custody of the child to RCCS before

the Agency filed a case plan outlining the adoption plans.

{¶24} Father’s first assignment of error is overruled. Richland County, Case No. 17CA11, 17CA12 10

II, III, V

MOTHER

17 CA 12

I, II

{¶25} We elect to address Father’s second, third, and fifth assignments of error,

and Mother's assignments of error together.

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

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

and credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by

some competent, credible evidence going to all the essential elements of the case will not

be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.

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

{¶27} 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. Richland County, Case No. 17CA11, 17CA12 11

{¶28} 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 ending on or after March 18,

1999.

{¶29} 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 child's 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

for a legally secure permanent placement and whether that type of placement can be

achieved without a grant of permanent custody.

{¶30} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C. Richland County, Case No. 17CA11, 17CA12 12

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

{¶31} 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.

{¶32} Parents argue the trial court's decision to terminate their parental rights and

grant permanent custody of their child to RCCS was based solely on their limited cognitive

abilities, which the Ohio Supreme Court prohibited in In re D.A., 113 Ohio St.3d 88, 2007–

Ohio–1105.

{¶33} It is well established that a parent has a fundamental right to raise and care

for his or her child. In re C .F., 113 Ohio St.3d 73, 2007–Ohio–1104, ¶ 28; In re K.H., 119

Ohio St.3d 538, 2008–Ohio–4825, ¶ 40. However, that right is not absolute. In re K.H. at

¶ 40. Government children's services agencies have broad authority to intervene when

necessary for a child's welfare. In re C.F. at ¶ 28. “All children have the right, if possible,

to parenting from either natural or adoptive parents which provides support, care,

discipline, protection and motivation.” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013–

Ohio–1704, ¶ 66, quoting In re Hitchcock (1996), 120 Ohio App.3d 88, 102. When

parental rights are terminated, the goal is to create “a more stable life” for dependent

children and to “facilitate adoption to foster permanency for children.” In re N.B., 8th Dist. Richland County, Case No. 17CA11, 17CA12 13

Cuyahoga No. 101390, 2015–Ohio–314, ¶ 67, citing In re Howard (Aug. 1, 1986), 5th

Dist. Tuscarawas No. 85 A10–077, (Aug. 1, 1986). We recognize, however, that

termination of parental rights is “the family law equivalent of the death penalty in a criminal

case.” In re Hoffman, 97 Ohio St.3d 92, 2002–Ohio–5368, ¶ 14

{¶34} In addressing this issue, the Ohio Supreme Court in In re D.A., supra, held,

“when determining the best interest of a child under R.C. 2151.414(D) at a permanent-

custody hearing, a trial court may not base its decision solely on the limited cognitive

abilities of the parents.” Id. at para 36. The High Court reasoned:

The trial court stated that D.A.'s future could be ‘seriously

jeopardized’ if he remained with his parents. But there was no evidence that

they have harmed D.A. either physically, emotionally, or mentally. D.A. has

done well in school, and his behavior is appropriate. At this point, it is

speculation to say that he may not reach his full potential if he remains with

his parents. * * *

We do not mean to minimize the trial court's concern about

appellants' ability to parent their son. R.C. 2151.414, however, does not

permit a parent's fundamental right to raise his or her child to be terminated

based on mental retardation alone. In other cases in which the parental

rights of mentally retarded persons have been terminated pursuant to R.C.

2151.414(E)(1) or (2), objective evidence existed to show that the statute

was satisfied. See, e.g., In re C.E., Butler App. Nos. CA2006–01–015 and

CA2006–02–024, 2006–Ohio–4827, 2006 WL 2663464 (the mother needed Richland County, Case No. 17CA11, 17CA12 14

constant supervision and prompting to meet child's basic needs and had

inadequate housing); In re King, Fairfield App. No. 05 CA 77, 2006–Ohio–

781, 2006 WL 401598 (the mother consistently relied on others to meet

many of her basic needs and lost her housing). Id. at ¶ 36–37.

{¶35} In the present case, the trial court did not rely solely on Parents' cognitive

abilities in granting permanent custody to RCCS. Rather, the evidence in this case

illustrates a link between Parents’ limited cognitive abilities and their abilities to remedy

the problems identified by RCCS and to provide an adequate permanent home for the

child. The evidence established Parents failed to regularly attend medical appointments

for a child with extensive medical issues and failed to maintain a clean and appropriate

home. They either did not comprehend the importance of their involvement in the child’s

medical care, or simply lacked motivation to be involved. Father did not have his own

source of income either through employment or through social security disability income.

In addition, the evidence revealed the child is bonded with the foster family with whom

she has lived since her birth.

{¶36} Assuming, arguendo, the trial court based its decision solely on Parents’

limited cognitive abilities, we find such error does not require reversal of the permanent

custody determination under the two-issue rule. The trial court found an alternate,

independent ground for terminating parental rights, i.e., the child had been in the

temporary custody of RCCS for twelve or more months of a consecutive twenty-two

month period.

{¶37} Father’s second, third, and fifth assignment of error are overruled. Richland County, Case No. 17CA11, 17CA12 15

{¶38} Mother’s first and second assignments of error are overruled.

IV

{¶39} In his fourth assignment of error, Father contends the trial court erred in

granting permanent custody to RCCS as the Agency failed to use reasonable efforts to

reunite the child with him.

{¶40} Pursuant to R.C. 2151.419, the agency which removed the child from the

home must have made reasonable efforts to prevent the removal of the child from the

child's home, eliminate the continued removal of the child from the home, or make it

possible for the child to return home safely. The statute assigns the burden of proof to the

agency to demonstrate it has made reasonable efforts.

{¶41} RCCS implemented a comprehensive reunification plan to assist Father in

remedying the problems which caused the child to be removed.

{¶42} When a trial court is considering whether the agency made reasonable

efforts to prevent the removal, the issue is not whether the agency could have done more,

but whether it did enough to satisfy the reasonableness standard under the statute. In re

Brewer (Feb. 12, 1996), Belmont App. No. 94–B–28, 1996 WL 65939, at 3; In re

Davidson–Rush, 5th Dist. No.2006 CA 00121, 2006–Ohio–4873 at ¶ 50. “In determining

whether reasonable efforts were made, the child's health and safety shall be paramount.”

R.C. 2151.419(A)(1). Richland County, Case No. 17CA11, 17CA12 16

{¶43} We have reviewed the record, and find substantial evidence to establish

Father did not make significant progress toward alleviating RCCS's core concerns for the

child despite the Agency’s reasonable efforts to reunify the family.

{¶44} Father’s fourth assignment of error is overruled.

{¶45} The judgment of the Richland County Court of Common Pleas, Juvenile

Division, is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur Richland County, Case No. 17CA11, 17CA12 17