[Cite as In re T.D., 2016-Ohio-7245.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
In re: : : T.D., M.H., M.H. and M.H., Jr. : Appellate Case No. 27136 : : Trial Court Case Nos. JC-2012-8809 : JC-2012-8810, JC-2012-8811 and : JC-2012-8813 : : (Juvenile Appeal from : Common Pleas Court)
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OPINION
Rendered on the 7th day of October, 2016.
MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Appellee, Montgomery County Children’s Services
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, Post Office Box 137, Germantown, Ohio 45327 Attorney for Appellant, D.D., mother
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HALL, J.
{¶ 1} D.D. (“Mother”) appeals from the trial court’s May 10, 2016 decision and -2-
judgment entry terminating her parental rights and awarding appellee Montgomery
County Children Services (“MCCS”) permanent custody of her four minor children.1
{¶ 2} In her sole assignment of error, Mother contends the trial court erred in
awarding permanent custody to MCCS because the agency failed to prove by clear and
convincing evidence that such a disposition was in the children’s best interest.
{¶ 3} The record reflects that MCCS filed complaints in December 2012 alleging
that Mother’s children, T.D., M.H.1, M.H.2, and M.H.3, were dependent and neglected. At
the time of the complaints, the children ranged from two to five years old. The complaints
included allegations of, among other things, homelessness and residing in shelters,
domestic violence, poor school attendance, and a failure to obtain necessary care and
services for the children who had various behavioral, emotional, and physical problems.
In connection with a subsequent motion for interim temporary custody, MCCS provided
an affidavit in which a caseworker averred that Mother had obtained housing but still
lacked adequate food, adequate bedding, and adequate income. The affidavit also stated
that Mother’s residence had bed bugs and cockroaches. In addition, the affidavit repeated
concerns about poor school attendance, failure to obtain necessary care and services for
the children, and domestic violence in the home.
{¶ 4} In January 2013, the trial court awarded MCCS interim temporary custody.
The children were placed in separate foster homes. In March 2013, the trial court
adjudicated the children dependent and awarded MCCS temporary custody. In May 2014,
the trial court granted a first extension of temporary custody. Also in May 2014, MCCS
1 The trial court also terminated the parental rights of the two fathers of those children. Neither father appeared at the custody hearing below. Neither father has appealed from the trial court’s permanent-custody ruling. -3-
moved for permanent custody. The trial court overruled that motion and ordered a second
extension of temporary custody in September 2014. Thereafter, in December 2014,
MCCS again moved for permanent custody. A magistrate held an April 2015 hearing on
the motion. In July 2015, the magistrate filed a decision awarding MCCS permanent
custody of all four children. Mother filed objections. The trial court overruled the
objections, adopted the magistrate’s decision, and entered judgment awarding MCCS
permanent custody of the children in May 2016. This expedited appeal by Mother
followed.
{¶ 5} A trial court’s decision to grant permanent custody and to terminate parental
rights must be supported by clear and convincing evidence. In re L.C., 2d Dist. Clark No.
2010 CA 90, 2011-Ohio-2066, ¶ 14. We apply an abuse-of-discretion standard, and we
will not disturb such a decision on evidentiary grounds “if the record contains competent,
credible evidence by which the court could have formed a firm belief or conviction that the
essential statutory elements for a termination of parental rights have been established.”
(Citation omitted.) Id.; see also In re S.S., 2d Dist. Miami No. 2011-CA-07, 2011-Ohio-
5697, ¶ 7. The phrase “abuse of discretion” implies a decision that is unreasonable,
arbitrary, or unconscionable. Id. Therefore, a trial court’s act of overruling a parent’s
objections and adopting a magistrate’s decision terminating parental rights cannot be
reversed based on a mere difference of opinion or substitution of our judgment for that of
the lower court. Id.
{¶ 6} Having identified our standard of review, we turn now to the substantive
issues before us. The standards governing permanent-custody motions are as follows:
R.C. 2151.414 establishes a two-part test for courts to apply when -4-
determining a motion for permanent custody to a public services agency.
The statute requires the court to find, by clear and convincing evidence,
that: (1) granting permanent custody of the child to the agency is in the best
interest of the child; and (2) either the child (a) cannot be placed with either
parent within a reasonable period of time or should not be placed with either
parent if any one of the factors in R.C. 2151.414(E) are present; (b) is
abandoned; (c) is orphaned and no relatives are able to take permanent
custody of the child; or (d) has been in the temporary custody of one or
more public or private children services agencies for twelve or more months
of a consecutive twenty-two month period. * * *
R.C. 2151.414(D) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to:
(1) the interaction and interrelationship of the child with the child’s parents,
relatives, foster parents and any other person who may significantly affect
the child; (2) the wishes of the child; (3) the custodial history of the child,
including whether the child has been in the temporary custody of one or
more public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period; (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 to
the agency; and (5) whether any of the factors in R.C. 2151.414(E)(7)
through (11) are applicable.
In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14-15. -5-
{¶ 7} Here the trial court made the findings required to award MCCS permanent
custody. Specifically, it found, among other things, that the children had been in MCCS’s
temporary custody for more than 12 months of a consecutive 22-month period and that
an award of permanent custody to the agency was in the children’s best interest. On
appeal, Mother does not dispute the trial court’s “12 in 22” finding, which is supported by
the record. Therefore, the only remaining issue is whether the trial court’s best-interest
finding is supported by clear and convincing evidence. In re M.R., 2d Dist. Greene No.
2010 CA 64, 2011-Ohio-3733, ¶ 25.
{¶ 8} In its decision, the trial court made comprehensive findings, with citations to
the record, on each of the statutory best-interest factors. Given the detailed nature of the
trial court’s findings and their significance to the outcome of the present appeal, we have
elected to quote those findings in full (except for the trial court’s discussion of the two
Fathers’ non-compliance with their case-plan objectives, which we have omitted).
{¶ 9} The trial court analyzed the best-interest factors as follows:
* * * Pursuant to R.C. 2151.414(D)(1), to determine if it is in the best
interest of the children to permanently terminate parental rights and grant
permanent custody to MCCS, the Court shall consider all relevant factors,
including, but not limited to, the following:
a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child.
[M.Z-K.] has been M.H.2’s foster parent since January of 2013, -6-
approximately twenty-seven months. (Tr. 8:18) There are three other
children in the [Z-K.] home and M.H.2 interacts with those children as if he
has been with them forever. (Tr. 23:25, 24:13) [M.Z-K.] would definitely like
to consider adopting M.H.2. (Tr. 24:7)
[C.K.] has been M.H.3’s foster mother since January of 2013. (Tr.
29:22) M.H.3 was two and a half years old when he first came to live with
her. (Tr. 30:17) M.H.3 goes to counselling because he is so attached to his
foster father that during a military deployment of Mr. [K.] M.H.3 was so
distressed that he began to revert to his old behaviors and counseling was
required. (Tr. 33:10) M.H.3 has a very strong attachment to Mr. [K.] (Tr.
33:12) Ms. [K.] also has a strong bond with M.H.3. (Tr. 34:14) M.H.3 gets
along well with the other children in the home, loves them, and is very
protective of them. (Tr. 35:5) Moreover, M.H.3 is bonded with the [Ks’]
extended family. (Tr. 35:20) Should the court grant the state permanent
custody, the [Ks] would be interested in adopting M.H.3. (Tr. 35:11)
[S.B.] is M.H.1’s foster parent, and has been for approximately seven
months. (Tr. 40:7) M.H.1 came into Ms. [B’s] care in the beginning of
September 2014. (Tr. 47:5) Ms. [B.] states that the family is very, very
bonded. (Tr. 45:21) There are four other children that live in Ms. [B’s] home;
her two sons aged twenty and thirteen, and two other foster children, a six-
year-old girl, and a nine-year-old boy. (Tr. 45:23) M.H.1 is very bonded with
the female foster child. (Tr. 46:7). If the Court grants the state permanent
custody, the foster family would like to adopt M.H.1. (Tr. 45:3) -7-
As for M.H.3, he has been with his foster family for half of his life and
there has been total integration into the family. (Tr. 274:22) M.H.3 is bonded
with his foster parents, the other children in the home, [and] the foster
family’s extended family. (Tr. 274:25)
Mother feels that she is in a better position now than she was when
the children were removed from her care. (Tr. 260: 21) Mother feels that
she is now in a position to meet all the needs of the children. (Tr. 261:14)
The Mother wants her children placed back with her. (Tr. 261:23) M.H.3
appeared to be very bonded to Mother during the visit, whereas the other
children played and talked between themselves and only interacted with
Mother when they had a question or wanted something. (Tr. 115:13)
When visitation was initially set up, Mother was to visit with T.D. and
M.H.1 on one day and then visit separately with M.H.2 and M.H.3. (Tr.
145:21) The visitations were separated because Mother was having a
difficult time controlling and maintaining all four children at one time. (Tr.
146:20) In January or February of 2014, MCCS slowly began getting the
Mother and the four children together for visitation. (Tr. 147:15)
[Caseworker] Ms. Seal observed a visitation between Mother and all four
children the day before the hearing, and noted that the kids were jumping
around, running wild, and screaming. (Tr. 147:18) When Ms. Seal
addressed these concerns with Mother, Mother says that the children are
just excited to see her. (Tr. 148:4). Mother does attempt to calm the children -8-
down, but typically the poor behavior continues. (Tr. 148:10)
[A.H.] is Mother’s paramour and is currently residing with Mother. (Tr.
229:14) Mr. [A.H.] has been visiting with the children, and feels bonded to
the children. (Tr. 232:4)
Based on the foregoing, the Court finds that this factor weighs in
favor of granting permanent custody to MCCS.
b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with regard for the maturity of the
child.
M.H.1 has told [S.B.] that she wishes to return home to her Mother.
(Tr. 47:21) Lilah Findley has been a therapist with Samaritan Behavioral
Health for five years, and has worked with M.H.1 since June of 2014. (Tr.
60:22) M.H.1 has indicated to Ms. Findley that she would like to return to
her Mother’s care. (Tr. 73:18)
[J.B.] has been T.D.’s foster parent for the last two years. (Tr. 49:17)
T.D. has told [J.B.] that she wants to go home to her Mother. (Tr. 58:2).
The Guardian ad Litem reports that both T.D. and M.H.1 have made
substantial progress and their behaviors have moderated. (Tr. 273:20) Both
T.D. and M.H.1 have made clear to the GAL that they want to return home
to Mother. (Tr. 273:21)
The wishes of M.H.2, and M.H.3 are unknown.
Based on the foregoing, the Court finds that this factor weighs neither
for nor against granting permanent custody to MCCS as to M.H.2 and -9-
M.H.3, but against granting permanent custody to MCCS as to T.D. and
M.H.1.
c) The custodial history of the child.
MCCS became involved with this family upon being notified by the
staff at a homeless shelter of some concerns regarding the family. (Tr.
130:8) MCCS filed for protective supervision in October 2012, and interim
protective supervision was granted. (Tr. 130:14) The children entered the
care of MCCS on January 15, 2013, due to some truancy issues involving
the school aged child, as well as some concerns about M.H.2’s
communication capabilities, the behavior problems of the children, and the
condition of the family’s home. (Tr. 130:20) Upon entering the home on the
day of the ex parte, January 15, 2013, Ms. Seal found that there was limited
furniture, limited food, and cockroaches which led to a concern that mother
was unable to provide for the children. (Tr. 131:4) Pursuant to the
Dependency Complaint, there were also allegations of domestic violence
and possible abuse occurring in the home. In January 2013, all four children
were placed in foster homes. (Tr. 130:20, 182:9)
Ms. [Z-K.] has been the foster parent to M.H.2 since he was removed
from his home, approximately twenty-seven months. (Tr. 8:18) Ms. [K.] has
been the foster mother for M.H.3 since his removal from the home. (Tr.
29:22) Ms. [S.B.] has been a foster parent to M.H.1 since September 2014,
approximately seven months. (Tr. 40:7, 47:5) Ms. [J.B.] has been a foster
parent to T.D. for the past two years. (Tr. 49:17) -10-
Based on the foregoing, the Court finds that this factor weighs in
d) The child’s need for a legally secure placement and whether that
type of placement can be achieved without granting permanent custody to
the Agency.
A Dependency Complaint was filed as to all four children on
December 12, 2012, and amended January 15, 2013. Ex Parte interim
temporary custody was granted to MCCS on January 15, 2013, and
temporary custody was granted to MCCS on March 1, 2013. The first
extension of temporary custody was granted to MCCS on May 16, 2014.
On July 15, 2014, Mother filed a Motion for Extension of Temporary
Custody. MCCS filed for permanent custody of the four children on May 21,
2014. On September 11, 2014, a second extension of temporary custody to
MCCS was granted. MCCS again filed for permanent custody on December
8, 2014. A hearing on the Motion and Affidavit for Commitment to the
Permanent Custody of MCCS was held on April 22, 2015. On July 31, 2015,
the Magistrate’s Decision and Judge’s Order Granting the Motion for
Permanent Custody was filed by Magistrate Durden.
The children have spent a significant portion of their lives in the
custody of MCCS and at the time of the hearing had spent over twenty-four
months in foster care. (Tr. 130:20, 182:9) Considering the length of time the
children have been removed from the home, the Court finds that the children -11-
are in desperate need of a legally secure, permanent placement. Randall
Stump, Guardian ad Litem for all four children, recommended in both his
April 16, 2015, Report of Guardian ad Litem and at the hearing 1) that T.D.
and M.H.1 be returned to Mother with one year of protective supervision
and 2) that MCCS be granted permanent custody of M.H.2 and M.H.3. (Tr.
273:13, 274:18, 275:2)
As required by O.R.C. 2151.412, MCCS developed a case plan for
the family. The most recent case plan was adopted by the Court on
September 11, 2014. Mother, both Fathers, and all four children were
included on the case plan. (Tr. 134:16)
Mother’s case plan objectives are as follows: complete a
psychological evaluation and parenting assessment and follow any
recommendations; complete a parenting education class; take domestic
violence education classes; participate in a visitation assessment with her
children; at the request of any service providers, participate with any service
providers and the children; maintain income and housing and sign release
of information. (Tr. 135:25) Mother is aware that MCCS developed a case
plan for her. (Tr. 245:20) Ms. Seal reviewed the case plan with Mother at
every monthly home visit, at any semi-annual reviews, and at any court
hearings. (Tr. 135:7) Mother never indicated that she did not understand
her case plan objectives. (Tr. 135:21)
The psychological evaluation was a part of Mother’s case plan so
that MCCS could make sure that there were not any mental health concerns -12-
that would affect Mother’s ability to parent the children. (Tr. 140:14) Ms.
Seal referred Mother through Clinical Services at MCCS where a
psychological evaluation was completed. (Tr. 140:19) Based upon the
psychological evaluation, Ms. Seal made referrals for parenting classes and
for individual mental health therapy for Mother. (Tr. 142:23) Mother was
referred to Day-Mont Behavioral Health and Eastway for individual
counseling. (Tr. 143:14) Mother followed up with counseling at Eastway and
feels she benefitted from the counseling. (Tr. 143:19, 253:9) Mother was
asked to do a second psychological assessment, which she did. (Tr.
192:20) Mother had a psychological evaluation and went to Samaritan
Behavioral health for an assessment. (Tr. 252:14) Mother completed the
psychological evaluations requested of her. (Tr. 191:10).
Parenting classes were a part of Mother’s case plan to help her get
a better understanding of discipline, her parenting ability, help her to provide
structure for the children, and learn about developmental milestones and
how to incorporate those into her parenting. (Tr. 138:25) Ms. Seal referred
Mother to KYTES, a parenting class at MCCS, in the fall of 2013. (Tr.
139:14) Mother also was referred to Allene Anderson of Celebrating
Families in the fall of 2013. (Tr. 139:19) Mother attended some of the
KYTES classes, but was eventually withdrawn from the classes because
she failed to attend regularly. (Tr. 139:14) Mother did not reengage with
KYTES, but found a class through the Miami Valley Child Development
Centers that she completed. (Tr. 139:24) Ms. Seal was able to verify -13-
Mother’s completion of parenting classes at Miami Valley Child
Development Centers, which was acceptable to MCCS. (Tr. 140:6) Mother
has completed her parenting classes. (Tr. 192:25, 245:3) This case plan
objective is complete.
Because Mother reported a long history involving domestic violence
between herself and [one of the Fathers, M.H. Sr.,] domestic violence
classes were a part of the case plan. (Tr. 136:21, 138:6) In November 2012,
Ms. Seal made a referral for Mother to the Artemis Center, where Mother
completed domestic violence education classes in March of 2013. (Tr.
138:12, 192:11, 246:2) This case plan objective is complete.
A visitation assessment was a part of the case plan because the
Visitation Center supervisor had many concerns after the children’s first visit
with Mother. (Tr. 144:23) Mother completed a visitation assessment. (Tr.
145:9) This case plan objective is complete.
Mother’s participation with the children’s service providers was a part
of the case plan because it is important for Mother to be involved with the
children’s therapy. (Tr. 154:7) Mother had been asked to participate with the
children’s treatment providers. (Tr. 193:7) Mother was given the information
for all of the service providers for the children by Ms. Seal, and was
expected to attend as needed by these providers. (Tr. 154:23, 155:1) This
information was provided to Mother on the face-to-face contact sheet. (Tr.
155:11) Ms. Seal spoke with Mother about the children’s appointments
every time there was a home visit or a meeting with Mother, and at the Semi -14-
Annual Review at MCCS. (Tr. 155:19) Ms. Seal notified Mother once in
writing of when the children’s appointments took place. (Tr. 254:6)
Mother called Ms. Seal requesting the names of the service
providers. (Tr. 155:25) Ms. Seal provided Mother with the names and phone
numbers of the children’s service providers. (Tr. 156:8) Per Ms. Seal there
were signed releases of information provided so that Mother could obtain
the needed information from the service providers. (Tr. 156:16) MCCS
believes that there was sufficient information provided to Mother to obtain
information in order for her to participate with the children’s providers. (Tr.
158:8) During home visits, Ms. Seal spoke with Mother about the service
providers, provided their names and contact information to Mother, and told
Mother how to contact the service providers to set up appointments. (Tr.
204:9) Ms. Seal believed that Mother understood what was going on with
her children and how to contact the service providers. (Tr. 161:8) Mother
testified that she tried to contact the doctor’s offices directly to learn of the
children’s appointments, but had trouble getting the information. (Tr. 254:9)
The doctor’s offices said that they needed a signed release from Ms. Seal
to release the information or that she could contact the foster mothers for
the information. (Tr. 254:19) When Mother asked Ms. Seal about getting a
signed release, Ms. Seal stated to her that she already had provided the
releases but would look into it. (Tr. 255:1) Mother states that she never
heard back from Ms. Seal regarding the signed releases. (Tr. 255:7)
Ms. Seal has contact with the service providers who provide her -15-
with information as to how the children are doing and whether Mother
participates. (Tr. 159:8) Ms. Seal spoke with Mother about contacting the
service providers and Mother stated that she had contacted some of them
and was in the process of getting appointments with them. (Tr. 159:16)
Mother spoke with South Community and Children’s regarding M.H.2, and
with Samaritan Behavioral Health regarding M.H.1. (Tr. 160:5) Mother
attempted to attend M.H.1’s counseling appointments, but was told that she
would have to attend individual appointments instead. (Tr. 256:1) Mother
did meet individually with M.H.1’s counselor. (Tr. 256:7) M.H.3 receives
therapy in the foster home and Mother asked to attend the therapy sessions
but was denied. (Tr. 257:20).
Mother was notified of M.H.3’s surgeries at Dayton Children’s and
she attended those surgeries. (Tr. 257:15) Mother was also present also for
M.H.2’s cochlear implant surgery, as was Mr. [A.H.]. (Tr. 258:6) Mother
states that she was unaware of all the appointments for M.H.2. (Tr. 266:11)
However, Mother was aware of when M.H.2’s audiology appointments were
and attended some but not all of the appointments. (Tr. 161:20) Mother
missing those appointments is a concern to MCCS because if she were to
regain custody Mother would be expected to follow through with all of the
children’s appointments and Mother has not been able to consistently show
that she can do that. (Tr. 162:12).
M.H.2 alone has had over thirty appointments in the last two months.
(Tr. 193:10) The other children have a number of appointments as well. (Tr. -16-
193:14) Between all the children, there are about forty appointments a
month. (Tr. 212:1) The children’s appointments are in Middletown,
Springboro, Shelby County, Darke County, and Miami County. (Tr. 194:17)
Many of the appointments are located outside of Dayton based on where
the children were placed. (Tr. 194:12) The appointments could be moved to
Dayton. (Tr. 194:9) Ms. Seal is aware that Mother is on public
transportation. (Tr. 194:1) There were no steps taken by MCCS to secure
appointments in Dayton so that Mother could attend. (Tr. 194:12) Mother
stated that she would have to become a stay at home mom to get all of the
children to their appointments. (Tr. 162:23) Mother stated that if she had to
be a stay at home mom that she would support herself using M.H.2’s social
security money and would utilize public transportation to get around. (Tr.
163:1) Ms. Seal concedes that with the current service providers there is no
reason to expect that Mother, while working a full-time job, could make all
the appointments. (Tr. 217:7)
While she made an effort to complete the case plan objective of
participating with the service providers, Mother has not successfully
completed said objective as she has not been consistent in following
through or going to appointments for the service providers, specifically
those in Montgomery County. (Tr. 161:12, 164:3)
Housing was a case plan objective because MCCS wants all parents
to have safe, stable housing for their children to live in. (Tr. 164:7) To Ms.
Seal’s knowledge, Mother is presently current on her rent and utilities. (Tr. -17-
189:19) Mother obtained independent housing in December 2014. (Tr.
164:19) Ms. Seal has asked for a copy of the lease, which has not yet been
provided to her. (Tr. 165:10) Mother is currently residing at [a residence] in
Dayton. (Tr. 165:22) Ms. Seal has been to this residence five times. (Tr.
165:23) The utilities have been on at the home and are in Mother’s name.
(Tr. 166:8) Mother lives in the home with her paramour of approximately
one year, [A.H.]. (Tr. 166:16) The home has sufficient space for all four
children, and is furnished for all four children. (Tr. 166:21) In the kitchen
there was a table with four chairs, the utilities were working, there was food
in the house, there were two couches in the living room, and there are
dressers and beds in each bedroom. (Tr. 214:20) Additionally, Ms. Seal
observed food in the home. (Tr. 190:4)
MCCS still has concerns about the stability of Mother’s independent
housing. (Tr. 167:3) Because of Mother’s history of housing instability
MCCS would like to see Mother maintain independent housing for six to
twelve months; currently Mother has maintained independent housing for
five months. (Tr. 167:7, 212:21) While MCCS concedes that Mother’s
Housing objective is essentially complete, it stresses that the housing has
not been stable per MCCS’s expectations. (Tr. 168:6) Furthermore, while
not concerned with the condition of the home, MCCS has concerns about
the sparse furnishings of the home. (Tr. 189:25).
Income was a part of the case plan so that Mother could provide for
the needs of the children. (Tr. 168:11) When MCCS first became involved -18-
with the family, Mother was unemployed and supporting the family with the
social security benefits received by one of the children. (Tr. 168:15) MCCS
made referrals to the Job Center for Mother every month at home visits, at
any case plan meetings, and at the Semi Annual Review Hearing. (Tr.
168:22) However, Mother denies that she was ever referred to the Job
Center to aid her in finding employment. (Tr. 264:8)
In July 2014, Mother secured employment at Belton that lasted two
to three months. (Tr. 169:18) Mother provided Ms. Seal with pay stubs to
verify her employment at Belton. (Tr. 170:3) Mother was earning minimum
wage at Belton, which was insufficient to care for the needs of all the
children. (Tr. 170:6) Shortly after she started working at Belton, Mother
found another form of employment with MS Properties. (Tr. 170:13)
However, her employment with MS properties was not verified. (Tr. 171:1)
Mother’s employment at MS Properties ended in December of 2014. (Tr.
171:6)
In February 2015, Mother worked for two weeks at Delphi before she
had to quit because her employment schedule conflicted with her visitation
schedule. (Tr. 171:8, 247:6) Mother is currently employed with a staffing
agency, iForce, and is working full-time at Creative Extruding Products. (Tr.
172:2, 172:17, 214:3, 248:25) Ms. Seal has seen paystubs to verify this
employment. (Tr. 172:8, 248:25, 264:6)
MCCS requires that Mother maintain income for six to twelve months
to demonstrate stability in keeping a steady income to provide for the family. -19-
(Tr. 172:19) Mother was asked to secure employment and has had a series
of jobs, sometimes two jobs at a time, in the last two years. (Tr. 246:6)
Mother started her current job just a month ago which is insufficient to
satisfy the case plan objective for stable income. (Tr. 218:15) MCCS does
not consider Mother’s income objective to be met as she has failed to be
consistently employed for a stable, significant period of time. (Tr. 173:5).
Mother completed the case plan objective of signing releases of
information and Ms. Seal had no troubles obtaining the signed releases of
information. (Tr. 136:16) This case plan objective is complete.
MCCS remains concerned that Mother does not have the ability to
maintain housing, maintain income, and attend all of the appointments for
the four children. (Tr. 173:12) MCCS believes that it is in the best interests
of the children for permanent custody to be granted to MCCS because there
are concerns about Mother’s ability to independently care for the children
based on the concerns regarding the service providers and being able to
maintain stable income and housing. (Tr. 183:10) The permanency plan for
all four children would be to create an adoption case plan, transfer the
children to adoption, have a matching conference, and recruiting efforts to
place the children. (Tr. 183:19).
***
The children have spent a good deal of time in the custody of MCCS
and the care of their foster families. Considering the length of time the
children have been removed from the home, the Court finds that the children -20-
are in desperate need of a legally secure, permanent placement.
Based on the above, the Court finds that the children cannot and
should not be placed with Mother within a reasonable period of time. In light
of the foregoing, the Court finds that a legally secure, permanent placement
cannot be achieved without granting permanent custody to MCCS.
Accordingly, the Court finds that this factor weighs in favor of granting
permanent custody to MCCS.
e) Whether any of the factors in O.R.C. 2151.414(E)(7)-(11) apply in
relation to the parents and child.
No O.R.C. 2151.414(E)(7)-(11) factors are applicable in the present
case.
After considering all relevant factors, the Court finds that permanent
custody to MCCS is in the best interest of the children. Neither Mother nor
either Father have completed their case plan and none are a suitable option
for custody of the children. All available extensions of temporary custody
have been utilized and the Court finds that the children are in desperate
need of a legally secure, permanent placement.
The Court finds by clear and convincing evidence that a legally
secure, permanent placement for the children cannot be achieved without
granting permanent custody to MCCS. In light of the foregoing, the Court
finds that clear and convincing evidence was presented showing that
permanent custody to MCCS is in the best interest of the children.
IN CONCLUSION, the Court finds by clear and convincing evidence -21-
that (1) the children have been in the temporary custody of MCCS for over
twelve months of a consecutive twenty-two month period, and (2) that
permanent custody to MCCS is in the best interest of the children.
Accordingly, the Motion and Affidavit for Commitment to the Permanent
Custody of MCCS filed by MCCS is GRANTED.
(Doc. #5 in Trial Ct. Case No. 2012-8811, at 5-16).
{¶ 10} On appeal, Mother challenges the trial court’s best-interest determination.
Her entire substantive argument is as follows:
In this case, the trial court granted permanent custody to
Montgomery County Children’s Services despite testimony indicating that
Mother had completed most of the requirements of her case plan. The
Agency’s position was that although she had housing and income, she had
not either for a long enough period of time. However, the testimony at the
hearing was that Mother completed the psychological and parenting
assessment, followed through with recommendations, did the visit
assessment and visited with the children. She also obtained and maintained
housing and income. The Guardian ad Litem indicated that the children
wanted to return home to their Mother. The girls in particular made
substantial progress with their behavior and stated to the Guardian ad Litem
on numerous occasions that they wanted to live with their Mother. This is
not a case where the parent has made no progress on their case plan and
has shown no initiative to cooperate with the Agency. On the contrary,
Mother worked with the Agency and made substantial progress on her case -22-
plan. The Agency’s biggest complaint seemed to be that Mother failed to
attend all of the appointments that the children had. However, the Agency
placed all 4 children in separate foster homes. There were not all placed
within Montgomery County and Mother used the bus for transportation. She
also had a job. On one hand, the Agency required her to obtain and maintain
income but on the other hand they expected her to attend the numerous
appointments the children had. The statute requires that the trial court find
by clear and convincing evidence that it is in the best interest of the child to
be placed in the permanent custody of the Agency and that the child cannot
be placed with either parent within a reasonable time. In this instance two
of the children, the girls, wanted to return home to Mother and even the
Guardian ad Litem recommended that. If the Agency’s position was that 6
months of housing and income was what they were looking for, Mother was
within a short period of time of doing just that. Mother complied with the
Agency, she completed the vast majority of her case plan and she wants
legal custody of her children. Based upon the relevant factors of the statute,
the trial court erred when it granted permanent custody to the Agency.
(Appellant’s brief at 6-7).
{¶ 11} Upon review, we find Mother’s argument to be unpersuasive. We recognize
that Mother had satisfied most of her case-plan objectives. Nevertheless, the trial court
reasonably expressed concern over the fact that Mother, who had a long history of
inadequate income and housing, had been in her current job only one month and had
established independent housing for only five months at the time of the permanent- -23-
custody hearing. By that time, the children had been in foster care for more than two
years, where they were doing well, the second (and final) extension of temporary custody
had expired, and the trial court reasonably found a need for permanency that Mother had
not yet demonstrated she could provide. The trial court also reasonably expressed
concerns about Mother’s ability to attend the children’s numerous behavioral,
psychological, and medical appointments with various care providers. It was reasonable
to infer that if Mother was unable to attend the appointments herself, she likewise would
have trouble getting her children to the appointments if she regained custody. Indeed,
Mother essentially admitted as much in her own testimony. She testified that she would
need to keep her job to maintain her housing and to provide for her children. (Tr. 267: 4-
10) She also testified, however, that if she had custody of the children she would not be
able to work and would need to be a stay-at-home mother. (Tr. 271: 8-15; Tr. 162: 23-25)
This testimony supports a conclusion that Mother cannot both work and parent the
children effectively, which supports an award of permanent custody to MCCS. On appeal,
Mother criticizes MCCS for expecting her to maintain income while also attending
appointments, but that is what would be required if she obtained custody.
{¶ 12} Although Mother had completed most of her case-plan requirements, that
fact is not dispositive with regard to the trial court’s best-interest determination. Because
the children had been in MCCS’s custody for more than 12 months of a 22-month period,
the focus, at that point, was on what was best for the children. “[A] parent’s case plan
compliance, while it may be relevant to a best interest analysis, does not automatically
override a trial court’s decision regarding what is in a child's best interests.” In re M.B.,
4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 59, citing In re N.L., 9th Dist. Summit -24-
No. 27784, 2015-Ohio-4165, ¶ 35. When the focus is on the child’s best interest, a trial
court conceivably could terminate parental rights even if a parent completed all of her
case-plan objectives. Id. The case plan is simply “a means to a goal, but not the goal
itself,” and other considerations still may justify an award of permanent custody to a
children-services agency. In re J.H., 12th Dist. Clinton Nos. CA2015-07-014, CA2015-07-
015, 2016-Ohio-640, ¶ 47 (citations omitted); see also In re R.P., 2d Dist. Montgomery
Nos. 26744, 26754, 2015-Ohio-4295, ¶ 17 (“While Father and Mother admittedly made
progress on their case plans, that fact is not dispositive of their child’s best interest. The
trial court is best positioned to weigh the various best-interest factors, and an award of
permanent custody to the State can be appropriate even when just one of those factors
supports such a disposition.”).
{¶ 13} Mother also argues that her two daughters wanted to return to her and that
the guardian ad litem supported such a disposition. While that is true, we note that the
girls were only five and seven years old at the time of the permanent-custody hearing.
While their wishes were relevant, the trial court was not bound to follow them in making
its best-interest determination. Nor was the trial court obligated to follow the advice of the
guardian ad litem. In re N.M., 2d Dist. Montgomery Nos. 26693, 26719, 2016-Ohio-318,
¶ 41.
{¶ 14} Finally, Mother asserts that the trial court was required to find that it was in
the best interest of her children for them to be placed in the permanent custody of MCCS
and to find that the children could not be placed with her “within a reasonable time.”
(Appellant’s brief at 7). But this is not true. As set forth above, the only remaining
consideration at the time of the permanent custody hearing was the best interest of the -25-
children. Because they had been in MCCS’s custody for more than 12 months of a 22-
month period, there was no longer a need to consider whether the children could be
placed with her “within a reasonable time.” In re K.L., 2d Dist. Greene No. 2014-CA-31,
2014-Ohio-5576, ¶ 14.
{¶ 15} Mother undoubtedly made sincere and significant efforts in this case, which
we find to involve a close and difficult decision regarding the proper disposition.
Nevertheless, we cannot say, based on the record before us, that the trial court abused
its discretion in finding by clear and convincing evidence that an award of permanent
custody to MCCS was in the children’s best interest. We are not permitted to reverse the
trial court’s judgment based on a mere difference of opinion, or a substitution of our
opinion for that of the lower court, where the record supports the trial court’s chosen
disposition. In re S.S., 2d Dist. Miami No. 2011-CA-07, 2011-Ohio-5697, ¶ 7.
{¶ 16} Based on the reasoning set forth above, we overrule Mother’s assignment
of error and affirm the judgment of the Montgomery County Common Pleas Court,
Juvenile Division.
FAIN, J., concurs.
FROELICH, J., concurring: {¶ 17} I agree that the trial court was faced with a close and difficult decision.
Our standard of review is whether the trial court abused its discretion in finding by clear
and convincing evidence that permanent custody was in the children’s best interest.
Fortunately or unfortunately, the law provides that at some point there can be no more
extensions or attempts to establish the biological parent-child relationship; and, -26-
fortunately or unfortunately, the 12/22 standard, two extensions of temporary custody,
and a lengthy court process sometime almost predetermine that the best interests of the
children is a forward-looking legally secure placement.2 The court thoroughly reviewed
the evidence regarding each child and did not abuse its discretion.
..........
Copies mailed to:
Mathias H. Heck Meagan D. Woodall Kirsten Knight Hon. Anthony Capizzi
2 See, e.g., albeit in a different context, Father Knows Best: The unwed father’s right to raise his infant surrendered for adoption. 60 Fordam Law Review 971 (April 1992).