[Cite as In re W.M., 2017-Ohio-1398.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: W.M., T.M., M.J., K.H.1, and : APPEAL NO. C-170003 K.H.2. TRIAL NO. F08-1347
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 14, 2017
Phyliss Schiff, for Appellant Y.M.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jack L. Besignano, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Megan E. Busam, Assistant Public Defender, Guardian ad Litem for W.M., T.M., M.J., K.H.1, and K.H.2,
J. Thomas Mellott, for T.M. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} This is an appeal by a mother, Y.M., challenging the Hamilton County
Juvenile Court’s judgment adopting the magistrate’s decision which granted
permanent custody of five of her children to the Hamilton County Department of Job
and Family Services (“HCJFS”).
Procedural Background
{¶2} On February 20, 2014, HCJFS filed a motion for an interim order of
temporary custody of six of Y.M.’s children, including I.M., Z.M., W.M., T.M., M.J.,
and K.H.1. The motion was accompanied by a complaint alleging that the children
were neglected, abused, and dependent. It was additionally accompanied by an
affidavit from a HCJFS social worker, alleging that W.M. and T.M. frequently arrived
at school late, appearing dirty and unkempt; that the family residence was cluttered,
had holes in the walls, and had broken windows; that Y.M. used the stove to heat the
home; and that Y.M. would not verify whether K.H.1 was receiving medical care
despite the child’s apparent lethargy and protruding belly. In addition, the social
worker alleged that neither Y.M. nor K.H., the father of K.H.1, had participated in
services recommended in a 2013 safety plan that had been put in place because of
domestic-violence concerns. The social worker alleged that K.H. had been convicted
of disorderly conduct and assault and had been ordered to stay away from Y.M. and
Z.M., the victims of his offenses, and that K.H. was reportedly residing in the family
home, where he had been seen by the affiant.
{¶3} A magistrate with the Hamilton County Juvenile Court granted
HCJFS’s motion for an interim order of temporary custody. The magistrate’s order
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additionally granted Y.M. weekly supervised visitation and appointed a guardian ad
litem for the children.
{¶4} HCJFS implemented a case plan for the family. On July 31, 2014, after
conducting an adjudication and disposition hearing, the magistrate issued a decision
adjudicating the children abused, dependent, and neglected, and committing them to
the temporary custody of HCJFS.
{¶5} On October 31, 2014, Y.M. gave birth to K.H.2. HCJFS filed a motion
for an interim order of temporary custody of K.H.2 on November 7, 2014. The
motion was accompanied by a complaint alleging that K.H.2 was dependent, and by
an affidavit from a HCJFS social worker stating that K.H. was the alleged father of
K.H.2; that the siblings of K.H.2 had been adjudicated abused, dependent, and
neglected and were currently in the temporary custody of HCJFS; that Y.M. and K.H.
were still in a relationship, and that K.H. continually violated orders to stay away
from Y.M.; and that K.H. had visited Y.M. at the hospital, engaged in a confrontation
with Y.M., and spat on her.
{¶6} After a hearing, the magistrate granted HCJFS’s motion for an interim
order of temporary custody of K.H.2. The magistrate’s order additionally provided
that Y.M. should receive weekly supervised visits with K.H.2 and appointed a
guardian ad litem for the child.
{¶7} On December 17, 2014, HCJFS filed a motion to extend temporary
custody for all of the children. On January 12, 2015, K.H.2 was adjudicated a
dependent child. And on February 18, 2015, the magistrate issued a decision
committing K.H.2 to the temporary custody of HCJFS. That decision also granted
HCJFS’s motion to extend temporary custody.
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{¶8} On September 18, 2015, HCJFS filed a motion to modify temporary
custody of W.M., T.M., M.J., K.H.1, and K.H.2 to permanent custody under R.C.
2151.413(A). I.M. and Z.M. turned 18 during the pendency of these proceedings. The
magistrate granted motions to terminate temporary custody for I.M. and Z.M., and
they are not parties to this appeal.
{¶9} On October 21, 2015, the trial court conducted an in camera hearing
with the children, and it issued an order appointing a separate attorney for T.M.
because his expressed wishes conflicted with those of his guardian ad litem.
{¶10} The magistrate conducted a two-day hearing on HCJFS’s motion for
permanent custody. During the hearing, the children’s guardian ad litem argued in
favor of HCJFS receiving a grant of permanent custody. T.M.’s attorney expressed
T.M.’s desire to be returned to Y.M.’s care. On August 2, 2016, the magistrate issued
a decision committing the children to the permanent custody of HCJFS. Y.M. filed
an objection to the magistrate’s decision, arguing that it was against the weight of the
evidence.
{¶11} The trial court conducted a hearing on Y.M.’s objection. During that
hearing, the guardian ad litem argued that T.M. now wished to be adopted and did
not want to return to his mother’s care. T.M.’s attorney concurred with the guardian
ad litem and argued that the magistrate’s decision should be upheld. On December
19, 2016, the trial court issued an entry overruling Y.M.’s objection and adopting the
decision of the magistrate committing the children to the permanent custody of
HCJFS.
{¶12} Y.M. has appealed from the trial court’s entry, raising two assignments
of error for our review.
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First Assignment of Error: Grant of Permanent Custody
{¶13} In her first assignment of error, Y.M. argues that the trial court erred
in granting HCJFS’s motion for permanent custody.
A. Standard of Review
{¶14} A trial court’s decision to award permanent custody must be supported
by clear and convincing evidence. In re W.W., 1st Dist. Hamilton Nos. C-110363 and
C-110402, 2011-Ohio-4912, ¶ 46. Clear and convincing evidence is evidence “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, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus. When reviewing a trial court’s decision to grant
permanent custody, we will not substitute our judgment for that of the trial court
when its determinations are supported by competent and credible evidence. In re
W.W. at ¶ 46.
B. Former R.C. 2151.414
{¶15} R.C. 2151.414 governs the procedures that apply when a motion for
permanent custody has been filed under R.C. 2151.413. Id. at ¶ 47. R.C. 2151.414 was
modified in October of 2016. We apply the version of the statute that was in effect on
September 18, 2015, the date that HCJFS filed the motion for permanent custody. In
re C.M., 1st Dist. Hamilton Nos. C-150365 and C-150396, 2015-Ohio-3971, ¶ 13.
{¶16} Former R.C. 2151.414(B)(1) provided that a juvenile court may grant a
motion for permanent custody if the court determines, by clear and convincing
evidence, that a grant of permanent custody is in the best interest of the child, and
that any of the following apply:
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(a) The child is not abandoned or orphaned, has not 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 * * *, 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.
(d) 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, * * * .
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated
an abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
{¶17} In its decision granting permanent custody to HCJFS, the magistrate
found that a grant of permanent custody was in the best interests of the children.
With the exception of contending that the trial court failed to take into account
T.M.’s expressed desire to be returned to his mother’s care (addressed below), Y.M.
does not address this finding in her brief. Rather, Y.M. focuses her arguments on the
second prong of former R.C. 2151.414(B).
{¶18} With respect to this second prong, the magistrate found that former
R.C. 2151.414(B)(1)(d) applied to W.M., T.M., M.J., and K.H.1, because they had been
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in the custody of HCJFS for 12 or more months of a consecutive 22-month period.
But the magistrate found that this provision was inapplicable to K.H.2 because the
child had only been in the custody of HCJFS for eight months at the time the motion
for permanent custody was filed. The magistrate further found that the condition of
former R.C. 2151.414(B)(1)(a) was met as to all the children—that they could not or
should not be placed with either parent within a reasonable period of time because,
pursuant to former R.C. 2151.414(E)(1), the services offered to the family had failed
to remedy the issues that brought the children into the care of HCJFS. It is this
finding that Y.M. attacks.
C. Children Could Not or Should Not be Placed With Parents
{¶19} Y.M. first argues that the trial court erred in finding that the children
could not or should not be placed with their parents within a reasonable time. She
specifically argues that she had remedied the conditions that led to the removal of
the children from her home. Her argument challenges the trial court’s findings
under former R.C. 2151.414(E)(1), which provided that:
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 home.
{¶20} Extensive testimony was presented at the permanent-custody hearing
regarding the services that had been offered to Y.M. Atarah Cottingham, the HCJFS
social worker assigned to Y.M.’s case, testified that HCJFS had concerns about the
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domestic violence that had taken place in Y.M.’s home. To address these concerns,
HCJFS asked Y.M. to participate in a domestic-violence assessment. Following the
assessment, it was recommended that Y.M. attend a Women Helping Women
support group for victims of domestic violence. Y.M. attended and completed the
program, but Cottingham testified that she felt Y.M. had failed to gain any insight
from the program regarding her relationship with K.H. Cottingham’s concerns were
based on the fact that Y.M. had a second child (K.H.2) with K.H. and had been
protective of K.H. during these proceedings. Cottingham was not able to receive any
reports from Women Helping Women regarding Y.M.’s participation in the group
because Y.M. did not sign a required release.
{¶21} HCJFS had also asked Y.M. to attend therapy, which she did at the
Central Clinic with staff therapist Evelyn Heflin. Heflin testified that Y.M. had
completed a diagnostic assessment, which indicated that she suffered from a
dysthymic disorder, or a low-grade persistent mood disorder. Heflin attempted to
work on treatment for that disorder during therapy sessions and set goals of
improving Y.M.’s mood and helping Y.M. handle life stressors. Heflin described
Y.M.’s therapy attendance as consistent, with some cancellations and a period where
Y.M. had disengaged. Cottingham, however, testified that Y.M. was not compliant
with therapy, and that her attendance had been sporadic. Y.M. completely stopped
attending for two periods of time, and she had to complete a second diagnostic
assessment in order to resume therapy. Following that second assessment, it was
recommended that Y.M. undergo a complete psychological assessment. Both
Cottingham and Jeremy Page, an outreach coordinator who scheduled the
psychological assessments, testified that Y.M. failed to complete the recommended
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assessment despite multiple attempts to engage her in the service. Cottingham
testified that the second diagnostic assessment also led to the recommendation that
Y.M. attend Community Psychiatric Support Treatment (“CPST”), but that she failed
to do so.
{¶22} The evidence presented established that HCJFS had many concerns
about the state of Y.M.’s home because it was dirty, disorganized, and had an
infestation problem. Because of these issues, HCJFS recommended that Y.M.
participate in homemaker services through Lighthouse Youth Services. Cathy
Vinegar was the homemaker assigned to work with Y.M. Vinegar testified that her
goals included teaching Y.M. how to organize her home, eliminate clutter, and keep
the kitchen clean. Vinegar began working with Y.M. in September of 2014. She
testified that while her goal was to meet with Y.M. twice a week, Y.M. would
occasionally miss appointments. However, testimony further established that
Vinegar met with Y.M. only 21 times before Y.M.’s case was closed in June of 2015,
when Vinegar felt that Y.M. was capable of completing the tasks that they had
worked on.
{¶23} But Cottingham testified that, on her last visit to Y.M.’s home in late
2015, she still had concerns regarding clutter, infestation, and the organization of the
home. Y.M. had refused to allow Cottingham back into her home after that last visit,
so Cottingham was unable to verify whether the condition of Y.M.’s home had
improved since completing the homemaker services.
{¶24} HCJFS had set up visitation at the Family Nurturing Center for Y.M.
with her children. The visitation began in early 2014, shortly after HCJFS received
custody of the children. Y.M. was initially granted facilitated visitation with the
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children. During this type of visitation, a facilitator was present during the visit to
offer directives. Cottingham testified that although Y.M. was consistent with her
visitation, she never progressed past facilitated visitation. Y.M. would attempt to
engage the children and would provide them with food, but the visits were chaotic
and Y.M. did not demonstrate control over the children.
{¶25} Cottingham also offered testimony regarding the children’s fathers.
Other than K.H., none of the fathers had participated in the custody proceedings,
and K.H. failed to participate in any services that had been offered to him.
{¶26} Y.M. provided testimony addressing her participation in these offered
services. She testified that the problems with her home had been fixed. She denied
that her home had ever had an infestation problem, stating that there had never been
more than a few bugs and that she had put down boric acid to address the problem.
Y.M. initially testified that she had denied Cottingham access to her home on a few
occasions, but then later in her testimony denied having done so. With respect to her
therapy with Heflin, Y.M. stated that she still tried to attend the therapy sessions, but
that it was difficult because she had enrolled in school. She testified that she was no
longer in a relationship with K.H., was not interested in maintaining contact with
him, and that a relationship with him was not worth losing her children. Y.M. stated
that the Women Helping Women group could have been a little stronger, but that she
had learned a few things from the classes, including tips about how to get out of a
violent situation. Y.M. testified that her caseworker had never asked her to complete
a psychological assessment.
{¶27} The magistrate made extensive findings in support of her
determination that the services offered to the family had failed to remedy the issues
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that had brought the children into the care of HCJFS. With respect to HCJFS’s
domestic-violence concerns, the magistrate found that Y.M. had a history of
engaging in domestically-violent relationships, and that Y.M. had failed to internalize
what she had learned in the Women Helping Women group. The magistrate further
found that Y.M. had not participated in the recommended CPST or the
recommended psychological assessment, despite numerous attempts to have that
assessment scheduled. The magistrate noted the number of therapy appointments
with Heflin that Y.M. had missed, and questioned how Heflin could have described
Y.M.’s attendance record as consistent in light of those missed appointments.
{¶28} The magistrate also noted the number of appointments that Y.M. had
missed with her homemaker, and found that Y.M.’s refusal to let Cottingham inspect
her home was of concern because of the home’s unimproved condition on
Cottingham’s last visit. Addressing Y.M.’s testimony that she had improved the
condition of the home, the magistrate noted that Y.M.’s testimony on the topic had
been confusing and disjointed. With respect to visitation, the magistrate found that
Y.M. had consistently visited the children, but that the visits were still at the highest
level of supervision.
{¶29} The magistrate described Y.M.’s testimony on several different topics
as confusing and incredible. She also found that service providers had consistently
had difficulty in attempting to contact Y.M. or to schedule services.
{¶30} Following our review of the record, we conclude that competent and
credible evidence supported the magistrate’s finding that the services offered to the
family had failed to remedy the issues that brought the children into the care of
HCJFS, and that the children could not and should not be placed with a parent
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within a reasonable time. See In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-
110402, 2011-Ohio-4912, at ¶ 46.
D. T.M.’s Wishes
{¶31} Y.M. additionally argues in her first assignment of error that the trial
court failed to take into account T.M.’s desire to be returned to his mother’s care.
{¶32} The magistrate had appointed an attorney for T.M. during these
proceedings because his expressed wishes had differed from those of his guardian ad
litem. During the custody hearing, T.M.’s attorney expressed his desire to be
returned to his mother’s care. But during the hearing before the trial court on Y.M.’s
objection, the guardian ad litem expressed T.M.’s desire to be adopted, rather than
be returned to his mother’s care. T.M.’s attorney concurred with the guardian ad
litem and argued that the trial court should uphold the magistrate’s decision granting
permanent custody of the children to HCJFS. The trial court’s decision committing
T.M. into the permanent custody of HCJFS was in accordance with T.M.’s expressed
desire to be adopted. Y.M.’s argument is without merit.
{¶33} The trial court did not err in granting custody of Y.M.’s children to
HCJFS. The first assignment of error is overruled.
Second Assignment of Error: Filing for Permanent Custody was not Premature
{¶34} In her second assignment of error, Y.M. argues that HCJFS’s motion
for permanent custody was filed prematurely. In support of her argument, Y.M.
relies on R.C. 2151.413(D)(3)(b), which provides that:
An agency shall not file a motion for permanent custody under
division (D)(1) or (2) of this section if any of the following apply
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***
(b) if reasonable efforts to return the child to the child’s home are
required under section 2151.419 of the Revised Code, the agency has
not provided the services required by the case plan to the parents of
the child or the child to ensure the safe return of the child to the child’s
home.
{¶35} Y.M. argues that HCJFS filed the motion for permanent custody
prematurely because it filed the motion before she had scheduled a complete
psychological assessment that was recommended following her diagnostic
assessment.
{¶36} We find that R.C. 2151.413(D)(3)(b) is inapplicable to the case before
us. R.C. 2151.413(D)(3)(b) applies only if reasonable efforts to return the child are
required under R.C. 2151.419. The Supreme Court of Ohio has held that the
requirement to make reasonable efforts set forth in R.C. 2151.419 does not apply to
an R.C. 2151.413 motion for permanent custody. In re C.F., 113 Ohio St.3d 73, 2007-
Ohio-1104, 862 N.E.2d 816, ¶ 41. The court noted that, despite the inapplicability of
R.C. 2151.419 to motions for permanent custody filed under R.C. 2151.413, in the
absence of a narrowly defined statutory exception, the state must still make
reasonable efforts to reunite the family during the custody proceedings prior to the
termination of parental rights. Id. at ¶ 43. It stated that “[i]f the agency has not
established that reasonable efforts have been made prior to the hearing on a motion
for permanent custody, then it must demonstrate such efforts at that time.” Id.
{¶37} In this case, prior to the hearing on the motion for permanent custody,
the magistrate made several findings under R.C. 2151.419 that the state had made
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reasonable efforts to return the children to the home. And although it was not
necessary, the magistrate also made a reasonable-efforts finding in its entry granting
permanent custody of the children to HCJFS.
{¶38} Thus, despite our determination that R.C. 2151.413(D)(3)(b) is
inapplicable to this case, because the trial court adopted the magistrate’s reasonable-
efforts finding, and because all counsel addressed Y.M.’s argument, we briefly
address the argument and find that it has no merit. The psychological assessment
was just one of many services that HCJFS offered to Y.M. during these proceedings.
And the record reflects that Y.M. failed to schedule the assessment despite multiple
attempts to have it scheduled. Thus, HCJFS did not fail to provide services required
by the case plan.
{¶39} Y.M.’s second assignment of error is overruled, and the judgment of
the trial court granting permanent custody of the children to HCJFS is affirmed.
Judgment affirmed.
CUNNINGHAM, P.J., and DETERS, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.