[Cite as In re R.S., 2016-Ohio-1492.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

IN RE: R.S.                                          C.A. No.      15AP0057



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
                                                     CASE No.   14-0074-AND

                                 DECISION AND JOURNAL ENTRY

Dated: April 11, 2016



        SCHAFER, Judge.

        {¶1}     Appellant, Rebecca M. (“Mother”), appeals from a judgment of the Wayne

County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her

minor child, R.S., and placed her in the permanent custody of Wayne County Children Services

Board (“CSB”). This Court affirms.

                                                I.

        {¶2}     Appellant is the mother of R.S., born November 2, 2002.        William B. was

determined to be R.S.’s biological father by genetic testing conducted early in the trial court

proceedings. Mother later claimed that she had been raped by William B., who was a friend of

her own father. William B. is serving a life sentence for aggravated murder and voluntarily

surrendered his parental rights to R.S. at the start of the permanent custody hearing. He is not a

party to the present appeal.
                                                2


       {¶3}    When this case began, Mother and Benjamin M. were married. R.S., Benjamin

M.’s six-year-old daughter, and John S., the maternal grandfather (“Grandfather”), lived with

them. CSB’s early investigation revealed concerns that R.S. inappropriately touched the six-

year-old child. A companion case was filed regarding the young child. At some point, Benjamin

M.’s daughter went to live with a relative, and Mother and Benjamin M. were divorced.

       {¶4}    Prior to Mother’s marriage to Benjamin M., Mother had been in a nearly ten-year

relationship with Jason B. Jason B. was previously considered to be the father of R.S. He

remains factually significant to this case because in 2009, R.S. reported to social workers that

Jason B. had sexually abused her1 and because Mother continued a relationship with him and to

accept financial support from him.

       {¶5}    The present case began on January 14, 2014, when CSB filed a complaint in

juvenile court, alleging that R.S. was a dependent child.       The complaint set forth several

concerns: sexual abuse of and by R.S.; Mother’s mental health; a family history with children

services involving educational neglect, inappropriate supervision, and inappropriate discipline;

and the cleanliness and safety of the home. The agency sought protective supervision and,

alternatively, temporary custody of R.S. The court permitted the child to remain in Mother’s

home under the protective supervision of CSB.

       {¶6}    In March 2014, R.S. was adjudicated dependent, and the same custodial

arrangement was continued. At disposition, in April 2014, the trial court was apparently told that

Mother had been sexually abused by Grandfather. Accordingly, the court issued an order barring

all contact between R.S. and Grandfather until further notice. The trial court did not find good


       1
        Mother said that she was not aware of Jason B.’s abuse of R.S. until R.S. told a social
worker about it following an incident of domestic violence between Mother and Jason B.
                                               3


cause for removal of R.S. from Mother’s home, but stressed to Mother that any violation of the

Court’s orders could be grounds for removal of the child. Thus, R.S. remained in the custody of

Mother and under the protective supervision of CSB.

       {¶7}   The trial court adopted CSB’s proposed case plan and also imposed additional

orders. The court required Mother to: (1) consistently attend individual counseling; (2) ensure

that R.S. consistently attended individual counseling to address trauma from sexual abuse; (3)

maintain a clean and safe home, ensuring appropriate supervision and interaction with the

children; (4) complete a substance abuse assessment, follow all recommendations, and submit to

random drug screens when requested by CSB; and (5) enroll in parenting classes. The entire

family was to complete a family/psychological assessment and follow any recommendations,

particularly in regard to the safety of the children. Housing was later added to Mother’s case

plan because she lost her housing in the process of divorcing Benjamin M. Finally, the trial

court specifically instructed Mother to not tell R.S. what to discuss during her counseling

sessions.

       {¶8}   Concerns soon developed that Mother was permitting R.S. to be around

Grandfather despite the no contact order. A CSB caseworker went to the home on August 12,

2014, to investigate these concerns. Mother admitted that Grandfather was living in the house

and that she permitted unsupervised contact between him and R.S. Mother also admitted her

knowledge of the no contact order. Accordingly, the social worker called the police. Mother

and Benjamin M. began screaming at each other, and he threatened to leave. Benjamin M. was

upset because he believed Mother had hit his child and also because Mother allowed R.S. to be

around Grandfather. The police calmed the couple down and waited while he packed a bag and

left. Because the police believed it was not safe for R.S. to remain in the home, they took R.S.
                                               4


into custody pursuant to Juv.R. 6 and CSB arranged for a placement. Mother apparently told

R.S. to lie about the fact that Grandfather was staying in the home. R.S. later reported that

sometimes Grandfather shared a bed with her while he was living in the home. The following

day, the trial court granted emergency temporary custody of R.S. to CSB. Mother was charged

with child endangerment and was eventually sentenced to 60 days in jail and 24 months of

probation.

       {¶9}   The trial court granted CSB’s motion for a six-month extension of temporary

custody and also granted Mother’s motion to appoint independent legal counsel for R.S. In time,

CSB moved for permanent custody and, alternatively, a second six-month extension of

temporary custody. Following a hearing, the trial court denied the motion for extension, granted

CSB’s motion for permanent custody, and terminated Mother’s parental rights. Mother has

appealed and assigned one error for review.

                                              II.

                                     Assignment of Error

       THE COURT ERRED IN GRANTING PERMANENT CUSTODY TO WAYNE
       COUNTY CHILDREN SERVICES AND SHOULD HAVE GRANTED A
       SECOND SIX MONTH EXTENSION, AS A GRANT OF PERMANENT
       CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶10} Mother asserts that the trial court’s judgment granting permanent custody is

against the weight of the evidence and that the trial court should have granted a six-month

extension instead. Before a juvenile court may terminate parental rights and award permanent

custody of a child to a proper moving agency it must find clear and convincing evidence of both

prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the

temporary custody of the agency for at least 12 months of a consecutive 22-month period, the

child or another child of the same parent has been adjudicated abused, neglected, or dependent
                                                 5


three times, or that the child cannot be placed with either parent within a reasonable time or

should not be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2)

that the grant of permanent custody to the agency is in the best interest of the child, based on an

analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re

William S., 75 Ohio St.3d 95, 99 (1996).

       {¶11} In determining whether the judgment below is manifestly against the weight of

the evidence, this Court “weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder

of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new trial ordered.” (Internal quotations and citations omitted.) Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. “In weighing the evidence, the court of

appeals must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.

       {¶12} The trial court found that the first prong of the permanent custody test was

satisfied because R.S. could not be placed with either parent within a reasonable time or should

not be placed with either parent. See R.C 2151.414(B)(1)(a). In support of that finding, the trial

court determined that the child’s father was incarcerated for life and had surrendered his parental

rights to R.S. See R.C. 2151.414(E)(12). The trial court also determined that, notwithstanding

reasonable case planning and diligent efforts by the agency, Mother failed to substantially

remedy the conditions causing the child to be placed outside the home. See R.C. 2151.414(E)(1).

In particular, the trial court found that Mother cannot provide a safe and stable living situation

where R.S. will not be at risk of sexual abuse. Mother challenges this finding as being against

the weight of the evidence.
                                                6


Substantially remedy the conditions causing the child to be placed outside the home

       {¶13} The trial court had substantial evidence before it to support the conclusion that,

following placement outside the home, Mother “failed continuously and repeatedly to

substantially remedy the conditions causing the child to be placed outside the child’s home.” Id.

       {¶14} R.S. was removed from her home on August 12, 2014 by police pursuant to

Juv.R. 6. The child was removed when Mother permitted Grandfather to reside in her home with

R.S. and to have unsupervised contact with R.S. in violation of a court order. Since the removal,

Mother has not remedied the conditions causing R.S. to be placed outside the home. At the time

of removal, Mother and R.S. resided with Benjamin M., his daughter, and Grandfather.

Grandfather was paying many of their bills. When Mother and Benjamin M. divorced, Mother

lost that housing and, since then, she has resided with either Jason B. or again with Grandfather

in her sister Jessica’s home.

       {¶15} While Jessica testified that she herself pays the rent for her home, Mother testified

that Grandfather pays the rent. Both agreed that Grandfather paid the bills for cable, electricity,

six cell phones, and “makes sure that everybody has what they need.” Grandfather also provides

Mother with an insured vehicle for her transportation. Gwen Geitgey, the first caseworker

assigned to the case, testified that Mother reported being appreciative of Grandfather and the

way he pays for her things, but Mother also stated that he has been controlling, hurtful, and

abusive to both her and R.S.

       {¶16} Mother continued to maintain a relationship with Jason B. as well and stayed at

his home periodically. Mother claims that she despises Jason B. for what he did to her daughter,

yet she continues to see him and stay at his home because he provides her with money and

occasional transportation. Mother denies that their relationship is sexual, and states that “now it
                                                  7


is more just a friendship.” She specifically admitted that she stays with Jason B. because she

needs the money as a supplement to what Grandfather gives her.

       {¶17} Thus, since the time of R.S.’s removal, Mother has continued to have regular

contact with Grandfather and Jason B. She has relied on these two men, whom she has alleged

to have sexually abused either her or her daughter to secure housing, food, transportation, and

basic necessities. Then, at the permanent custody hearing, Mother reversed herself on 18 years

of accusations about Grandfather’s abuse. She testified that she had made up the stories because

she was mad at Grandfather and was rebelling against him. She denied that she changed her

story out of concern that he might otherwise stop his financial support. Mother claims there is no

longer a concern in allowing R.S. to have contact with Grandfather, and she would like R.S. to

be able to reside with her and Grandfather at Jessica’s home. She added, however, that “my dad

can be very controlling at times.” Mother stated that she would abide by the court’s order if it

determined that she could not permit contact between R.S. and Grandfather. Jessica also sees no

reason to prohibit contact between R.S. and Grandfather. In addition, Mother has not stated any

intention of ending her relationship with Jason B., but nevertheless guaranteed that R.S. would

not be around him.

       {¶18} The trial court found that Mother was not credible in recanting her past

accusations about Grandfather and in promising to protect R.S. in the future. The court found

instead that Mother is still not able to provide a safe and stable living situation for R.S. where she

will not be at risk of being sexually abused. The trial court’s findings are supported by the

weight of the evidence.

       {¶19} The record demonstrates that Mother had been making accusations about

Grandfather’s sexual abuse of her for the last 18 years. Three caseworkers and the guardian ad
                                                8


litem all presented testimony that Mother told them of inappropriate behavior by Grandfather

towards R.S., including grooming behavior.       Grooming was later described by one of the

caseworkers as “[b]ehaviors that someone does to [another] to form a relationship or an

attachment or get them comfortable with you” with the intention to eventually have a “sexually

inappropriate” relationship. Mother permitted R.S. to have contact with Grandfather in the past

despite the existence of a no contact order. Mother and her sister Jessica have long relied on

Grandfather for many of their basic living expenses, and Mother continues to rely on Jason B. for

financial support as well. Jessica claims she can provide housing without Grandfather’s support,

but she has not presented a realistic plan. Mother has no independent income. She is not

employed and her application for social security disability was recently denied.

       {¶20} The testimony of mental health professionals also supports the findings of the trial

court. The evaluating psychologist found that Mother and R.S. both have long histories of being

victimized and sexually abused. Psychological testing disclosed that Mother has a dependent

personality disorder with strong avoidant traits.      As explained by the psychologist, such

individuals have great difficulty acting autonomously and can often be victimized by others due

to a fear of abandonment. They also have difficulty dealing with stress or change and tend to

hope situations will just go away rather than actively confronting problems and dealing with

them. In addition, tests showed that Mother had major stressors in all areas of her life and was at

risk for the physical abuse or neglect of children. The psychologist recommended that Mother’s

contact with R.S. be closely supervised. She recommended therapy for Mother and advised that

she “is going to need to be involved in therapy consistently for several years for change to

occur.” Mother attended counseling fairly regularly, but had made no progress in addressing her

mental health issues. This was said to be because Mother did not fully participate or engage in
                                                    9


her counseling. The caseworker said Mother believed she did not need counseling and did not

want to discuss her personal matters at sessions.

       {¶21} The psychologist also evaluated R.S. and described her as very parentified, which

she said was concerning in an 11-year-old. According to the psychologist, R.S. acts more grown

up than she really is and appears to know much adult information. She testified that R.S. misses

Mother and wishes she was back with her, but R.S. also wishes Mother would get better and not

have as many physical or emotional difficulties. The psychologist said R.S. was experiencing

many symptoms of trauma, anxiety, and depression, but believed R.S. could overcome her

difficulties through counseling.

       {¶22} R.S.’s counselor also testified. She explained that R.S. did not begin to make

good progress until she was placed in foster care and her attendance at weekly counseling

sessions became more consistent. R.S. also began to engage more openly after the trial judge

admonished Mother not to tell her daughter what to say to the counselor. While R.S. was

comfortable remaining in foster care, being adopted, or returning home, she was excited about

the possibility of going home. The counselor testified that R.S. was excited about going home

“so that she can make sure mom is safe and cared for, takes her medications regularly and that

she can kind of monitor who’s in mom’s life.” R.S. said she would make sure Mother took her

medications on time and if she asked for more medication, R.S. would tell her “no.” R.S. also

expressed concern about Mother’s safety. She expressed fear or anxiety about some of the

people Mother placed in her own life, although she believes she would be able to control those

situations and who comes into the house. R.S. reported that Jason B. had threatened both her and

Mother. She believes she can keep herself safe. The counselor testified that it is not age-

appropriate for R.S. to be concerned about caring for a parent to this extent. She explained that
                                               10


she has worked on this in counseling sessions with R.S., and R.S. now knows that this does not

have to be her role. The therapist believes R.S. is capable of bonding with a new family who

intend to adopt her and also believes that adoption would not impede her progress in therapy.

        {¶23} A final concern in regard to Mother’s ability to safely parent is Mother’s

judgment. Mother testified that she sometimes drives a car when she knows she should not,

either because of recently taking her narcotic pain medication, fatigue, stress, or migraines. She

explained that when she has “Court stuff” to do and no one to drive her, “I have to take the risk

of doing it[.]” She acknowledged that this puts herself as well as other drivers on the road at

risk.

        {¶24} Therefore, the evidence fully supports the trial court finding that Mother has not

remedied the conditions that caused the removal of the child from the home. By the time of the

permanent custody hearing, Mother still had not demonstrated that she could provide a safe,

stable living situation for herself and her daughter. She has continued to rely on Grandfather and

Jason B., two men she accused of being sexually abusive of her and her daughter, for the

financial support of her basic needs. Mother has not removed either Grandfather or Jason from

her life, nor has she demonstrated that she could support herself and her daughter without their

financial assistance. Mother is not in a position to protect R.S. from further abuse. In addition,

Mother has not resolved her substance abuse issues and, despite fairly consistent attendance in

counseling sessions, she has not made any progress on her mental health concerns. The first

prong findings that Mother has not remedied the concerns that caused the removal of R.S. from

the home and that R.S. cannot or should not be returned to Mother in a reasonable time are not

against the manifest weight of the evidence.
                                                 11


Best interest of the child

       {¶25} We next consider the evidence regarding the second prong best interest factors as

set forth in R.C. 2151.414(D)(1). When determining whether a grant of permanent custody is in

a child’s best interest, the juvenile court must consider all the relevant factors, including those

enumerated in R.C. 2151.414(D): the interaction and interrelationships of the child, the wishes

of the child, the custodial history of the child, the child’s need for permanence in his life and

whether that can be achieved without a grant of permanent custody, and whether any of the

factors outlined in R.C. 2151.414(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e). “Although the

trial court is not precluded from considering other relevant factors, the statute explicitly requires

the court to consider all of the enumerated factors.” In re Smith, 9th Dist. Summit No. 20711,

2002 WL 5178, *3 (Jan. 2, 2002); see also In re Palladino, 11th Dist. Geauga No. 2002-G-2445,

2002-Ohio-5606, ¶ 24.

       {¶26} The first best interest factor requires consideration of the relevant personal

interactions and interrelationships of the child. Mother consistently attended visitation with R.S.

and usually brought food or snacks to the visits. Mother and R.S. were said to be bonded, to love

each other, and to enjoy the time spent together. For example, they enjoyed doing their hair and

make-up together. Nevertheless, Mother’s two hours of weekly supervised visits were never

increased in frequency, duration, nor did they become less restricted after a year of visits. As set

forth more fully above, R.S. is very concerned about Mother’s well-being and she wants to take

care of Mother, protect her, and control who is in her life. Overall, the evidence does not

demonstrate that their relationship is a healthy one.

       {¶27} At the time of the permanent custody hearing, R.S. had been in a foster home for

a year and was said to be doing well there. Once she entered foster care, her attendance at
                                               12


counseling sessions improved and she made great progress. Her hygiene and behavior also

improved. She is no longer on a behavioral Independent Educational Plan at school. She has

made friends and is getting good grades. She now tries to make better choices and is not shy

about expressing herself. She has developed age appropriate social skills and behaviors.

       {¶28} There is little evidence of a continuing and positive relationship between R.S. and

extended family members.

Wishes of the child

       {¶29} The wishes of the child were expressed by the child’s attorney at the beginning of

the permanent custody hearing. She stated that R.S. “would like to return home to her mother, if

she can be the child and mother act as an adult and mother is not living with Jason.” Upon being

asked by the trial judge to elaborate on what that means, the attorney responded that R.S. feels

that she was often forced to be the reasonable person in the home when she was living with

Mother. The attorney believes R.S. would like to see Mother succeed on her case plan so she

could be reunited with her, but R.S. also realizes that Mother has not made the necessary

progress. Nonetheless, she loves Mother and would like to live with her.

       {¶30} The guardian ad litem recommended permanent custody as being in the best

interest of the child. The guardian ad litem said it was clear to her that Mother could not take

care of herself, and she did not see how Mother could take care of a child. Caseworker Rebecca

Mollohan, the last case worker to serve on the case, agreed that permanent custody is in the best

interest of R.S.
                                                13


Custodial history of the child

       {¶31} R.S. lived with Mother and Jason B. for most of her early years. When this case

began, R.S. resided with Mother and under the protective supervision of CSB for eight months.

She then resided in foster care for approximately one year.

Whether the child is in need of a legally secure permanent placement

       {¶32} R.S.’s counselor testified that she believes permanency is important for any child

including R.S. R.S.’s foster home is not a potential adoptive home, but the foster mother is

willing to provide a home for R.S. until a permanent placement is found. R.S.’s counselor

testified that R.S. is capable of bonding with an adoptive family and adoption would not impede

her progress in therapy

       {¶33} CSB investigated possible relative placements, including the maternal

grandmother as well as Mother’s brother and two sisters, Jennifer and Jessica. None produced

placement options that were in the best interest of R.S.

       {¶34} The maternal grandmother had a history with child welfare and of criminal

behavior. Mother’s brother failed to provide needed information to proceed and also had a

disqualifying criminal record. R.S. indicated that she did not want to live with her maternal aunt

Jennifer, stating that she had observed violence in that home. Mother opposed placement with

Jennifer for similar reasons. The guardian ad item did not think R.S. should be put into a

situation where she could be potentially traumatized. Finally, there is evidence that her maternal

aunt Jessica lacked stability. She had moved several times recently, was still married to one

man, was living with another, and had been with a third within the last year. At the time of the

permanent custody hearing, Grandfather was living in Jessica’s home, along with five others.

Grandfather was providing significant financial support to this household. Jessica said that she
                                                14


did not believe the accusations Mother made about Grandfather. The guardian ad litem believed

that R.S. needs stability regarding who will be in her home and her relationships with them. The

guardian ad litem also expressed concern about Jessica’s ability to protect R.S. Moreover, none

of the relatives filed a motion for legal custody in the trial court. See R.C. 2151.353(A)(3).

       {¶35} Caseworker Rebecca Molhollan specifically testified that Mother could not

remedy these concerns within the time of a six-month extension. There is no evidence in the

record that suggests that Mother could do so.

       {¶36} Upon consideration, the record does not demonstrate that the trial court clearly

lost its way and created a manifest miscarriage of justice when it found that permanent custody is

in the best interest of R.S. See Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, at ¶ 20. Father

surrendered his parental rights to R.S., and Mother has not demonstrated her ability to provide a

safe, secure, and stable environment for her daughter.

       {¶37} The weight of the evidence supports the trial court decision to terminate Mother’s

parental rights to the child and grant permanent custody to CSB. Id. Mother’s assignment of

error is overruled.

                                                III.

       {¶38} Mother’s sole assignment of error is overruled. The judgment of the Wayne

County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                15


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

JEREMY M. SZUCS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and MELODY L. BRIAND, Assistant Prosecuting
Attorney, for Appellee.

MARIE MOORE, Guardian ad Litem.
