In re T.S.

2012 Ohio 2401

Opinion

[Cite as In re T.S., 2012-Ohio-2401.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. T.S., K.S., M.S., AND B.S. : Hon. Sheila G. Farmer, J. : Hon. Julie A. Edwards, J. : : Case No. 11AP110046 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 10JN00227

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 30, 2012

APPEARANCES:

For Appellant For Appellee

STEVEN A. STICKLES DAVID W. HAVERFIELD 500 Market Street 389 16th Street, SW Suite #10 New Philadelphia, OH 44663 Steubenville, OH 43952 Tuscarawas County, Case No. 11AP110046 2

Farmer, J.

{¶1} On May 17, 2010, appellee, the Tuscarawas County Department of Job

and Family Services, filed a complaint for temporary custody of T.S. born April 4, 2003,

K.S. born March 23, 2004, M.S. born May 17, 2005, and B.S. born April 13, 2009,

alleging the children to be neglected and dependent. Mother is appellant, Stacey

Jones; father is Thomas Smith, Jr. On same date, the trial court placed the children in

appellee's temporary custody. By judgment entry filed July 14, 2010, the trial court

found the children to be neglected and dependent and ordered that the children shall

remain in appellee's temporary custody. Visitations between appellant and the children

were suspended on December 6, 2010.

{¶2} On April 6, 2011 appellee filed a motion to modify prior disposition,

requesting permanent custody of the children. On May 6, 2011, appellant filed a motion

to reinstate visitation with the children. A hearing on visitation was held on May 24,

2011. By judgment entry filed June 6, 2011, the trial court dismissed the motion.

Findings of fact and conclusions of law were filed on August 17, 2011.

{¶3} Hearings on the permanent custody request were held on September 29,

and October 6 and 7, 2011. By judgment entry filed October 31, 2011, the trial court

granted permanent custody of the children to appellee.

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶5} "THE TRIAL COURT ERRED IN NOT REINSTATING APPELLANT-

MOTHER'S VISITATION WITH HER MINOR CHILDREN." Tuscarawas County, Case No. 11AP110046 3

II

{¶6} "THE TUSCARAWAS COUNTY JOB & FAMILY SERVICES (TCJFS)

FAILED TO TAKE REASONABLE EFFORTS TO PREVENT THE REMOVAL OF THE

CHILDREN FROM THE CHILDREN'S HOME, TO ELIMINATE THE CONTINUED

REMOVAL OF THE CHILDREN FROM THEIR HOME, OR TO MAKE IT POSSIBLE

FOR THE CHILDREN TO RETURN SAFELY HOME AS MANDATED BY O.R.C.

§2151.419."

III

{¶7} "THE TRIAL COURT'S DECISION TERMINATING THE PARENTAL

RIGHTS OF THE APPELLANT-MOTHER WAS NOT SUPPORTED BY CLEAR AND

CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE."

IV

{¶8} "THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT RETURNING

THE MINOR CHILD B.S. TO THE APPELLANT-MOTHER AS THERE WAS NO

EVIDENCE INTRODUCED THAT IT WAS IN HIS BEST INTEREST TO REMAIN IN

THE CARE OF TCJFS."

V

{¶9} "THE MOTHER-APPELLANT WAS DENIED HER 6TH AMENDMENT

RIGHT OF CONFRONTATION OF WITNESSES BECAUSE OF THE REPEATED

VOLUMINOUS AMOUNTS OF HEARSAY TESTIMONY OFFERED THROUGHOUT

THIS MATTER." Tuscarawas County, Case No. 11AP110046 4

II, III

{¶10} Appellant claims the trial court erred in granting appellee permanent

custody of T.S., K.S., and M.S. Specifically, appellant claims appellee did not use

reasonable efforts to reunite appellant with her children and the trial court's decision

was not supported by clear and convincing evidence and was against the manifest

weight of the evidence. We disagree.

{¶11} 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 (February 10, 1982), Stark App. No. CA-5758. Accordingly,

judgments supported by some competent, credible evidence going to all the essential

elements of the case will not be reversed as being against the manifest weight of the

evidence. C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d 279. A

reviewing court must not substitute its judgment for that of the trial court where there

exists some competent and credible evidence supporting the judgment rendered by the

trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

{¶12} Pursuant to R.C. 2151.419(A)(1), "the public children services agency or

private child placing agency that filed the complaint in the case, removed the child from

home, has custody of the child, or will be given custody of the child" must have "made

reasonable efforts to prevent the removal of the child from the child's home, to eliminate

the continued removal of the child from the child's home, or to make it possible for the

child to return safely home. The agency shall have the burden of proving that it has

made those reasonable efforts." Tuscarawas County, Case No. 11AP110046 5

{¶13} R.C. 2151.414(E) sets out the factors relevant to determining permanent

custody. Said section states in pertinent part as follows:

{¶14} "(E) In determining at a hearing held pursuant to division (A) of this section

or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a

child cannot be placed with either parent within a reasonable period of time or should

not be placed with the parents, the court shall consider all relevant evidence. If the

court determines, by clear and convincing evidence, at a hearing held pursuant to

division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of

the Revised Code that one or more of the following exist as to each of the child's

parents, the court shall enter a finding that the child cannot be placed with either parent

within a reasonable time or should not be placed with either parent:

{¶15} "(1) Following the placement of the child outside the child's home and

notwithstanding reasonable case planning and diligent efforts by the agency to assist

the parents to remedy the problems that initially caused the child to be placed outside

the home, the parent has failed continuously and repeatedly to substantially remedy the

conditions causing the child to be placed outside the child's home. In determining

whether the parents have substantially remedied those conditions, the court shall

consider parental utilization of medical, psychiatric, psychological, and other social and

rehabilitative services and material resources that were made available to the parents

for the purpose of changing parental conduct to allow them to resume and maintain

parental duties.

{¶16} "(4) The parent has demonstrated a lack of commitment toward the child

by failing to regularly support, visit, or communicate with the child when able to do so, or Tuscarawas County, Case No. 11AP110046 6

by other actions showing an unwillingness to provide an adequate permanent home for

the child;

{¶17} "(14) The parent for any reason is unwilling to provide food, clothing,

shelter, and other basic necessities for the child or to prevent the child from suffering

physical, emotional, or sexual abuse or physical, emotional, or mental neglect.

{¶18} "(16) Any other factor the court considers relevant."

{¶19} R.C. 2151.414(B)(1) enables a trial court to grant permanent custody if the

court determines by clear and convincing evidence that it is in the best interest of the

child. "Clear and convincing evidence" is "that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought

to be established." Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118,

paragraph three of the syllabus.

{¶20} R.C. 2151.414(D)(1) sets out the factors relevant to determining the best

interests of the child. Said section states relevant factors include, but are not limited to,

the following:

{¶21} "(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;

{¶22} "(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; Tuscarawas County, Case No. 11AP110046 7

{¶23} "(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 or private

child placing agencies for twelve or more months of a consecutive twenty-two-month

period***;

{¶24} "(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;

{¶25} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child."

{¶26} In its judgment entry filed October 31, 2011, the trial court found the

following in part:

{¶27} "31. Defense Counsel has presented a very skilled defense for Ms. Jones

and he has been diligent in revealing deficits in the way TCJFS has managed this case.

He has alleged that the suspension of visits between these children and their mother

has sabotaged their reunification. He also alleges that a delay in providing the

appropriate therapists for these children has hindered their progress.

{¶28} "32. Therapists for the children have not expressed this concern and have

not indicated that any of these management decisions have affected the prognosis of

these children.

{¶29} "33. Had the circumstances of this case been less severe, defense

counsel's arguments would have more merit. As things are, the condition of these

children is so extreme that perfect management of this case by TCJFS would have not

altered the outcome." Tuscarawas County, Case No. 11AP110046 8

{¶30} Appellant argues reasonable efforts were not made because an amended

case plan was not filed to reflect the children's final diagnoses and personality

disorders, and appellee never meant for reunification.

{¶31} A motion for permanent custody was not made until after the final and

definitive diagnoses by psychology assistant Aimee Thomas, Ph.D., clinician Margaret

DeLillo-Storey, Ph.D., clinical counselor Debra Pittak, therapist Kurtis Letner, and

psychologist Anita Exley, Ph.d. Appellant argues the professionals were not told that

her case was a reunification plan and therefore their analyses were predicated on

permanent custody issues. This proposition was rejected by the professionals

specifically, Dr. DeLillo-Storey, who was highlighted in appellant's brief. T. at 98-99;

Appellant's Brief at 15-16. Pathway Counseling was the first mental health program to

assess the children. T. at 312. Pathway found there was a need for more intense

specialized evaluation. T. at 314. This decision was not appellee's, but the culmination

of understanding the seriousness of the mental health issues presented. T. at 314-315.

We do not find any evidence that reasonable efforts were not made. There were

additional evaluations and referrals of the children by various therapists at Northeast

Ohio Behavioral Health and T.S. was placed in a residential treatment facility. T. at 66,

145.

{¶32} Appellant also argues the trial court's decision was not supported by clear

and convincing evidence. In its judgment entry filed October 31, 2011, the trial court

detailed thirty findings and after a review of the record by this court, we find them to be

basically unchallenged and supported by the testimony and the specific mental health

evaluations. State's Exhibit 1; Defendant's Exhibit A. Tuscarawas County, Case No. 11AP110046 9

{¶33} In reviewing the testimony as a whole, there are some facts that are

relevant to the final decision. T.S., K.S., and M.S. have all been diagnosed with Post

Traumatic Stress Disorder and Reactive Attachment Disorder. T. at 9, 15, 17. The Post

Traumatic Stress Disorder was brought about by the children continuously witnessing

extreme acts of domestic violence between the parents as well as the parents'

alcoholism. T. at 10-11, 16, 18-19. Dr. Thomas explained Reactive Attachment

Disorder as follows:

{¶34} "A. Um, it's a disorder that stems from early childhood, um, abuse, trauma

and neglect that occurs typically within the first three years of life. Uh, when children

are grossly neglected, uh, they're not fed, they're not nurtured, they're not held, if they're

exposed to traumatic incidents such as domestic violence. Um, it doesn't have to be a

single event but more a pattern of events, um, that really impact a child's ability to feel

safe, uh, and nurtured within the first three years of life." T. at 12.

{¶35} The disorder can manifest itself via "anger management problems,

oppositional behaviors, uh, very superficial, charming. They can apologize but they

don't make any sincere changes. Um, no conscience, no remorse, um…" T. at 13.

There is "more of a lack of regard for the rights and feelings of others. This is kind of a

budding sociopath or antisocial personality disorder." Id. [T]here isn't a strong

connection with other people. When children don't form attachments to other people,

they don't care if they hurt other people, there's not that bond, there's not that

connection." Id.

{¶36} As a result of the various diagnoses, it was recommended that T.S. be

separated from the siblings and placed in a residential treatment facility. T. at 145, 151. Tuscarawas County, Case No. 11AP110046 10

At the present time, Mr. Letner, T.S.'s therapist at the residential treatment facility,

opined T.S. could not thrive outside the facility. T. at 152-153, 171. The children "need

a lot of close supervision, extreme close supervision." T. at 320.

{¶37} The portrait painted by the mental health professionals is of three very

troubled children. The cause of their problems is from a lack of parenting/bonding and

not of their own fault. T. at 369. T.S., K.S., and M.S., who are now nine, eight, and

seven, respectively, face troubled lives and cannot be kept together.

{¶38} Appellant now tacitly accepts that she is responsible for the present

situation, but argues further counseling of her and the reinstallation of visitation will cure

the problems. T at 309, 613, 616, 623-624, 630. Her lack of understanding is evident

when she told the children's foster mother "she was laying with [M.S.] in bed one night

and [M.S.] said, you know, I got to go to my own room before dad comes home drunk

and mad." T. at 222. Appellant was evidently surprised by this. In discussions with the

professionals, appellant consistently denied that the children ever witnessed the

domestic violence in the home. T. at 23, 310.

{¶39} Appellant's own portrait is of a dependent person with alcohol problems

who has steadfastly placed her interests over the interests of her children. Everything

that has happened is the fault of her estranged husband, appellee and its caseworkers,

and the lack of visitations.

{¶40} The prognoses of T.S., K.S., and M.S. are the dimmest this writer has

witnessed in permanent custody cases over the past nineteen years. The children must

be separated for their own welfare which completely mitigates against reunification. Tuscarawas County, Case No. 11AP110046 11

{¶41} Upon review, we find sufficient clear and convincing evidence was

presented to support the trial court's decision to grant appellee permanent custody of

T.S., K.S., and M.S.

{¶42} Assignments of Error II and III are denied.

{¶43} Appellant claims the trial court erred in awarding permanent custody of

B.S. to appellee. We disagree.

{¶44} Specifically, appellant argues the trial court should have "severed" the

hearing of B.S. from his siblings' hearings. Appellant also argues the trial court erred in

concluding her environment was the same on October 31, 2011 as it was on May 17,

2010 when the children were removed from her custody.

{¶45} Appellant correctly points out that she has completed her case plan and

has done all that was required of her. See, October 31, 2011 Findings Nos. 8. It is her

position that evidence was not presented to establish that B.S. was harmed to the

extent of his siblings, and he does not demonstrate any of the personality disorders that

they demonstrate.

{¶46} In its judgment entry filed October 31, 2011, the trial court addressed the

permanent custody of B.S. as follows:

{¶47} "30. B.S. is the youngest child in this family and was removed at a very

early age. He does not demonstrate any of the horrendous trauma or behavior of the

other children. This is no reason to return him to the same environment that created the

psychiatric pathology in his siblings. Tuscarawas County, Case No. 11AP110046 12

{¶48} "34. Although Ms. Jones has made some personal progress, she still

shows many signs of the same personality issues that will likely never resolve

themselves. Her own personal progress is a far cry from being able to meet the needs

of these children. As this is the case with Ms. Jones, returning B.S. to her care would

put this child at substantial risk."

{¶49} The professionals opined that B.S. needs a safe environment. T. at 32-

33, 55-56. The caseworker is concerned that appellant is still involved with her

estranged husband. T. at 307-308. As discussed supra, the Reactive Attachment

Disorder is the result of a lack of parenting/bonding. B.S. has been apart from appellant

since he was fifteen months old. Over a year and a quarter of nurturing by the foster

parents has placed him in a positive position. Ms. Pittak, who works with children with

Reactive Attachment Disorder, explained it would not make any sense to send B.S.

back to the same environment because "if you want to right (sic) the script for producing

reactive attachment in a child, that's what you would do. The child is showing a bond

and attachment to the, a care giver at this point, uh, breaking that can, can spur on

attachment disorders, or issues." T. at 117.

{¶50} The trial court reviewed appellant's entire lifestyle and resistance to

suggestions to remain unattached as she has a new boyfriend who she wishes to mold

into a father figure or help mate. The trial court concluded appellant has done nothing

substantive to change her lifestyle. The three older children have severely suffered

from appellant's lack of parenting skills. We concur that to experiment with a three year

old regarding appellant's claim that she has changed would not be appropriate. Tuscarawas County, Case No. 11AP110046 13

{¶51} Upon review, we find the trial court did not err in granting permanent

custody of B.S. to appellee.

{¶52} Assignment of Error IV is denied.

{¶53} Appellant claims her rights of due process were violated by the

"voluminous" amounts of hearsay. We disagree.

{¶54} The assignment of error is silent as to any specific instances of

complained of hearsay in violation of App.R. 16(A)(3) which states the following:

{¶55} "The appellant shall include in its brief, under the headings and in the

order indicated, all of the following:

{¶56} "(3) A statement of the assignments of error presented for review, with

reference to the place in the record where each error is reflected."

{¶57} Assignment of Error V is denied.

{¶58} Appellant claims the trial court erred in failing to reinstall visitation. We

disagree.

{¶59} Decisions on visitation are within the trial court's sound discretion. In re

Whaley (1993), 86 Ohio App.3d 304. In order to find an abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d

217.

{¶60} Visitation was terminated at the request of Northeast Ohio Behavioral

Health because of the extreme reaction by the children after contact with appellant. T. Tuscarawas County, Case No. 11AP110046 14

at 11, 15-16. The children exhibited extreme reactions to visitations by acting out,

gorging, vomiting, and defecating. T. at 11, 15, 204, 213-215. M.S. reported that

appellant "told her not to talk about her or anything." T. at 35. Essentially appellant was

teaching the children to keep secrets which would negatively impact their therapy

sessions. Id.

{¶61} The trial court terminated visitation on December 6, 2010 and the motion

for permanent custody was filed on April 6, 2011. Appellant filed her motion to re-

instate visitation on May 6, 2011.

{¶62} We find an extra month of visitation would have had no substantial effect

on the outcome of the case based on our decisions in Assignments of Error II, III, and

IV.

{¶63} Assignment of Error I is denied.

{¶64} The judgment of the Court of Common Pleas of Tuscarawas County,

Ohio, Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.

s/ Sheila G. Farmer_______________

s/ W. Scott Gwin_________________

s/ Julie A. Edwards_______________ JUDGES

SGF/sg 404 [Cite as In re T.S., 2012-Ohio-2401.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : T.S., K.S., M.S., AND B.S. : JUDGMENT ENTRY : : : : : CASE NO. 11AP110046

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division

is affirmed. Costs to appellant.