[Cite as In re A.F., 2012-Ohio-1137.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




IN THE MATTER OF:

        A. F.,                                              CASE NO. 9-11-27

ADJUDGED ABUSED CHILD,

        [TIFFANY FLOURNOY -                                 OPINION
        MOTHER/APPELANT].




                 Appeal from Marion County Common Pleas Court
                                  Family Division
                           Trial Court No. 2008 AB 0138

                                        Judgment Affirmed

                            Date of Decision: March 19, 2012




APPEARANCES:

        Raymond A. Grogan, Jr. for Appellant

        John A. Minter for Appellee, MCCSB
Case No. 9-11-27


ROGERS, J.

        {¶1} Mother-Appellant,            Tiffany        Flournoy     (“Tiffany”),       appeals      the

judgment of the Court of Common Pleas of Marion County, Family Division,

granting permanent custody of her daughter, A.F., to Marion County Children

Services (“MCCS”).1 On appeal, Tiffany contends that the trial court erred in

finding that MCCS made reasonable efforts to reunite her and A.F.; that the trial

court’s judgment granting MCCS permanent custody of A.F. was not in A.F.’s

best interest and was against the manifest weight of the evidence; and, that the trial

court erred when it found that A.F. could not be returned to her in a reasonable

time. Based on the following, we affirm the judgment of the trial court.

        {¶2} A.F. was born on October 24, 2008. On December 5, 2008, MCCS

filed a complaint alleging that A.F. was a neglected, abused, and dependent child

as defined by R.C. 2151.03, R.C. 2151.031, and R.C. 2151.04, respectively. The

complaint alleged that “[A.F.] * * * tested positive for cocaine at birth.”

Complaint, p. 3. The complaint further alleged that “[t]hroughout the pregnancy,

Tiffany consistently tested positive for marijuana and cocaine.” Id.

        {¶3} On December 10, 2008, the trial court, upon its own motion,

appointed Robert Cordrick (“Cordrick”), to serve as a guardian ad litem (“GAL”)

for A.F.


1
 A.F.’s biological father, Persey Shaw, has neither filed a separate notice of appeal with this Court, nor
was he included in Tiffany’s notice of appeal.

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        {¶4} On February 2, 2009, the matter proceeded to an adjudication hearing.

During the hearing, Tiffany stipulated that A.F. was an abused child. February 18,

2009 Judgment Entry. Based on Tiffany’s stipulation, the trial court dismissed all

other complaints without prejudice. Also on this day, the trial court approved and

adopted the case plan submitted by MCCS.

        {¶5} In June 2010, MCCS filed a motion for permanent custody pursuant to

R.C. 2151.353 and R.C. 2151.414.

        {¶6} The permanent custody hearing was divided into three separate

hearings. The first hearing occurred on November 3, 2010, the second occurred

on May 20, 2011, and the last hearing occurred on May 26, 2011.

        {¶7} Carrie Rashleigh (“Rashleigh”), an intake investigator with MCCS,

testified that in December 2008 she was employed as a caseworker with MCCS.

Rashleigh testified that she was assigned to A.F.’s case at its inception and served

as the caseworker until April 2010.      Randy Lee (“Lee”), a caseworker with

MCCS, testified that he was assigned to A.F.’s case in April 2010.

        {¶8} Rashleigh testified that on January 13, 2009, A.F. was removed from

Tiffany’s custody and placed in foster care with Richard and Melissa Harrison

(collectively “the Harrisons”). A.F. has resided with the Harrison’s throughout the

case.




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        {¶9} Rashleigh testified that she and Tiffany discussed possible alternative

placements for A.F. In particular, they discussed Tiffany’s brothers, Marcus and

William, Tiffany’s sister, Tara, and a family friend, Wanda.                           According to

Rashleigh, Tara was not interested in taking A.F. and Marcus was not an

appropriate placement due to his criminal history. As for William and Wanda,

Rashleigh testified that initially each was interested in being a placement for A.F.

However, Rashleigh explained that MCCS, through no fault of its own, lost

contact with William and Wanda before they completed the placement evaluation.

        {¶10} Rashleigh testified that on February 2, 2009, she and Tiffany

developed a case plan designed to remedy the concerns that caused A.F.’s

removal.2 The case plan outlined four concerns and the means by which those

concerns were to be remedied. Three of the concerns focused on Tiffany.3 The

case plan also outlined a visitation plan. Rashleigh testified that in order to assist

Tiffany in achieving the case plan’s requirements MCCS maintained contact with

Tiffany, conducted in-person meetings with Tiffany, provided Tiffany with bus

tickets, and made necessary referrals.

        {¶11} The first concern outlined in the case plan addressed Tiffany’s

inability to be self-sufficient and her lack of appropriate housing. In order to

2
  An amended case plan was filed on August 24, 2010. Lee testified that except for the requirement that
Tiffany obtain a psychological evaluation the amended case plan did not modify the concerns, the means by
which those concerns were to be remedied, or the visitation plan outlined in the original case plan.
3
  For purposes of this appeal, discussion of the second concern is unnecessary as it outlines steps the
Harrisons, not Tiffany, needed to take to ensure A.F.’s basic needs were met.

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remedy Tiffany’s inability to be self-sufficient, the case plan directed Tiffany to

complete the following, in relevant part:

       1. Within 90 days of the court stamp on this case plan, Tiffany
       will obtain and maintain legal and stable employment to a level
       capable for self sufficiency (sic). February 2, 2009 Case Plan, p. 2.

       {¶12} Rashleigh testified that she mailed Tiffany a local job list and that

Tiffany actively sought employment. Rashleigh testified that in July 2009 Tiffany

obtained employment with Marion Business Solutions, but left the position

because her income was insufficient. Rashleigh testified that Tiffany obtained

employment with Marion Business Solutions again in September 2009, but left the

position shortly thereafter. Rashleigh testified that as of April 2010, Tiffany had

not maintained employment. During the May 20, 2011 hearing, Tiffany testified

that she began working for Healthcare Depot in April 2010. Tiffany testified that

she remained employed with Healthcare Depot, but was not working any hours.

       {¶13} In order to remedy the lack of appropriate housing, the case plan

directed Tiffany to complete the following, in relevant part:

       5. Within 90 days of the court stamp on this plan, Tiffany will
       obtain and maintain Agency approved housing * * *. February 2,
       2009 Case Plan, p. 2.

       {¶14} Initially, Tiffany lived at 216 Wallace (“Wallace residence”) in

Marion. Rashleigh testified that she conducted several home visits of the Wallace

residence and determined that the residence was not suitable for A.F. Tiffany


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subsequently moved to 399 ½ North Main Street (“North Main residence”) in

Marion. Rashleigh, however, testified that she was not able to conduct a home

visit of the North Main residence.

       {¶15} Lee testified that Tiffany initially was unable to provide him with a

permanent address.      Tiffany informed Lee that she applied to Fairview

Apartments. Lee testified that he sent a letter of recommendation to the manager

of Fairview Apartments on Tiffany’s behalf. Sometime after Lee sent the letter of

recommendation, Tiffany obtained housing at Fairview Apartments. Lee testified

that Tiffany’s residence at Fairview Apartments was appropriate.

       {¶16} During the May 20, 2011 hearing, Tiffany testified that she moved

back to the North Main residence in March 2011. Tiffany explained that she

shares the residence with her boyfriend. Tiffany testified that her boyfriend had

been incarcerated for trafficking controlled substances, but insisted that “he has a

different life.” May 20, 2011 Hearing Tr., p. 321. Tiffany testified that Lee

attempted to conduct a home visit of the North Main residence, but she requested

that he not come because her boyfriend was recovering from an accident.

       {¶17} The third concern outlined in the case plan addressed Tiffany’s

substance abuse. In order to remedy her substance abuse, the case plan directed

Tiffany to complete the following, in relevant part:

       1.   Tiffany will complete an AOD assessment * * *.


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        2. Tiffany will follow any and all recommendation (sic)
        stemming from the AOD assessment and complete alcohol and
        drug treatment prior to reunification.
        3. * * *
        4. Tiffany will abstain from using illegal substances * * *.
        5. Tiffany will submit to random drug and alcohol screens, as
        deemed necessary by the caseworker. Failure to screen on the
        date requested will be considered a “dirty” or “positive” test.
        February 2, 2009 Case Plan, p. 4.

        {¶18} Initially, Tiffany was scheduled to complete an alcohol and drug

assessment (“AOD assessment”) at the Marion Area Counseling Center

(“MACC”). Rashleigh testified that Tiffany missed the AOD assessment, as well

as several subsequent AOD assessments.        In June 2009, Tiffany contacted

Rashleigh and inquired about inpatient treatment. Rashleigh testified that she

informed Tiffany that she was aware of two programs that offered inpatient

treatment, Stepping Stones in Portsmouth, Ohio, and Foundations in Marion,

Ohio.    Rashleigh testified that Tiffany was interested in Foundations so she

referred Tiffany to Foundations. Rashleigh learned that Tiffany would have to

complete an AOD assessment to be admitted to Foundations. Rashleigh testified

that MACC would not conduct an AOD assessment of Tiffany due to her prior

missed appointments. Rashleigh testified that she considered referring Tiffany to

Journey Offender Services (“Journey”) to complete an AOD assessment. MACC,

however, informed Rashleigh that even if Journey referred Tiffany to Foundations,

Tiffany would still have to complete an AOD assessment with MACC. In light of


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this information, Rashleigh determined that referring Tiffany to Journey for an

AOD assessment was “pointless” because Tiffany was prohibited from completing

an AOD assessment at MACC, due to her prior missed appointments. November

3, 2010 Hearing Tr., p. 45.

       {¶19} Though MACC prohibited Tiffany from completing an AOD

assessment, Rashleigh testified that she attempted to convince MACC to conduct

an AOD assessment of Tiffany. Rashleigh testified that she contacted Elaine Ring

(“Ring”), an employee with MACC, on several occasions. As a result of her

conversations with Ring, Rashleigh testified that MACC permitted Tiffany to

return for an AOD assessment.

       {¶20} Rachel McPherson (“McPherson”), a mental health and substance

abuse counselor with MACC, testified that she conducted an AOD assessment of

Tiffany on October 30, 2009. The AOD assessment revealed that Tiffany used

alcohol, marijuana, and cocaine. Based on the results of the AOD assessment,

McPherson testified that she and Tiffany developed an individual service plan

(“ISP”). The ISP consisted of individual counseling, group counseling, Phase One

Group (“POG”), Pre-Intensive Outpatient Group (“pre-IOG”), and Intensive

Outpatient Group (“IOG”). McPherson testified that Tiffany completed POG and

began, but did not complete, Pre-IOG. As a result, McPherson testified that

Tiffany could not begin IOG. During the November 3, 2010 hearing, McPherson


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testified that her last contact with Tiffany occurred on April 2, 2010. On June 4,

2010, MACC closed Tiffany’s case due to her lack of attendance.              Though

Tiffany’s case was closed, Lee testified that he sent a letter to Ring in an effort to

determine whether Tiffany could return to MACC to continue treatment. State’s

Exhibit D. In response to his letter, Lee testified that Ring informed him that

Tiffany could return to MACC for treatment.

       {¶21} During the May 20, 2011 hearing, McPherson testified that her first

contact with Tiffany after the November 2010 hearing occurred in March 2011.

McPherson explained that Tiffany came to MACC for an AOD assessment to

reactivate her case. McPherson testified that in April 2011 Tiffany was evaluated

to determine whether she could participate in inpatient treatment. The evaluation

stated that Tiffany would be appropriate for Foundations. McPherson explained

that the evaluation did not specify whether inpatient or outpatient treatment was

more appropriate, as Foundations offers both inpatient and outpatient services.

McPherson continued that to her knowledge Tiffany was interested in outpatient

treatment, not inpatient treatment.

       {¶22} Julie McGinnis (“McGinnis”), a specialized dockets coordinator with

the Family Dependency Treatment Court in Marion County, testified that

Tiffany’s attorney, Larry Heiser, contacted her to schedule an appointment for

Tiffany. The initial appointment was scheduled for March 17, 2010. McGinnis


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explained that during the initial appointment she would have informed Tiffany

about the Family Dependency Treatment Court program. McGinnis testified that

Tiffany did not attend the initial appointment.       McGinnis testified that she

attempted to contact Tiffany on several occasions to reschedule the appointment,

but Tiffany did not return her calls. Then, in May 2010, McGinnis testified that

Tiffany visited her at the Family Dependency Treatment Court. After Tiffany’s

visit, McGinnis testified that she renewed her attempts to schedule Tiffany for an

appointment, but explained that she never again heard from Tiffany.

       {¶23} Cynthia Wall (“Wall”), a probation officer with the Marion

Municipal Court, testified that she was Tiffany’s probation officer. Wall testified

that Tiffany was on five years’ probation. As of November 3, 2010, the terms of

Tiffany’s probation required her to complete, in relevant part, court approved drug

and alcohol counseling and prohibited her from consuming or possessing

controlled substances. Wall testified that on November 12, 2010, Tiffany tested

positive for cocaine and marijuana. As a result, Tiffany was sentenced to serve 73

days in jail. Wall testified that on April 4, 2011, Tiffany again tested positive for

cocaine. As a result, Tiffany was sentenced to serve 30 days in jail. Wall testified

that Tiffany was scheduled to begin treatment at Foundations on May 17, 2011.

When Tiffany arrived at Foundations she refused to submit to a drug screen.

Consequently, Foundations denied Tiffany admission. Wall visited Tiffany later


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that day, at which time Tiffany admitted that she recently used cocaine and

marijuana.

        {¶24} Throughout the case, Tiffany was administered several random drug

screens.     Rashleigh testified that between March 2009 and April 2010, she

attempted to administer twenty random drug screens to Tiffany. Tiffany, however,

only submitted to sixteen drug screens. Of those sixteen drug screens, Rashleigh

testified that Tiffany tested positive for controlled substances seven times. Lee

testified that between May 2010 and October 2010, he attempted to administer

eight random drug screens to Tiffany. Of those eight drug screens, Lee testified

that Tiffany tested positive for controlled substances six times.

        {¶25} The fourth concern outlined in the case plan addressed Tiffany’s

need to monitor A.F.’s physical, cognitive, and social development. In order to

remedy this concern, the case plan directed Tiffany to complete the following, in

relevant part:

        3. Tiffany will attend and complete parenting classes * * *.
        4. If deemed necessary, Tiffany will obtain a psychological
        evaluation by an Agency approved evaluator * * *, and follow
        through with any and all recommendations made by the
        psychological assessor.4 February 2, 2009 Case Plan, p. 5.




4
 The amended case plan simply omitted the phrase “[i]f deemed necessary.” See August 24, 2010 Case
Plan, p. 5.

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       {¶26} During the November 3, 2010 hearing, Rashleigh and Lee each

testified that Tiffany completed the parenting classes. During the same hearing,

however, Lee testified that Tiffany had not completed a psychological evaluation.

       {¶27} Kimberly Stark (“Stark”), a clinical psychologist, testified that she

conducts psychological evaluations for MCCS.               Stark explained that a

psychological evaluation consists of two parts, a clinical interview and

psychological testing. Stark testified that Lee referred Tiffany to her in July 2010.

Stark conducted a clinical interview with Tiffany in August 2010. Stark and

Tiffany scheduled a follow-up appointment to conduct the psychological testing,

but Tiffany did not attend the appointment.         During the November 3, 2010

hearing, Stark testified that she attempted to reschedule several times, but Tiffany

did not return to complete the psychological testing. During the May 20, 2011

hearing, Stark testified that she has made repeated attempts to schedule Tiffany for

an appointment since the November 2010 hearing. Despite her efforts, Stark

testified that Tiffany has not returned to complete the psychological evaluation.

       {¶28} The case plan also outlined a visitation plan. The visitation plan

provided that Tiffany have supervised visitation with A.F. once a week. Initially,

the visitation period was scheduled to occur between 9:30 a.m. and 11:30 a.m.

Lee testified that he noticed Tiffany was having difficulty arriving for visitation on

time. Lee testified that, as a result, he moved the visitation period back.


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       {¶29} Between January 2009 and October 2010, there were 97 scheduled

visits with A.F. State’s Exhibit B. Tiffany, however, did not attend 39 of those

visits. Id. Though Rashleigh and Lee each testified that several of the missed

visits were outside of Tiffany’s control, they explained that a majority of the

missed visits were not accompanied by a reasonable explanation.

       {¶30} During the May 20, 2011 hearing, Carol Buxton, a case aid

employed with MCCS, testified that between November 2010 and May 2011,

there were 28 scheduled visits with A.F. State’s Exhibit E. Tiffany, however, did

not attend 25 of those visits. Id.

       {¶31} During the November 3, 2010 hearing, Rashleigh and Lee each

testified that Tiffany did not satisfy many of the requirements outlined in the case

plan. Specifically, Tiffany did not maintain adequate employment, secure an

appropriate residence, complete substance abuse treatment, abstain from drugs and

alcohol, or complete a psychological evaluation. Rashleigh testified that A.F.

bonded with Tiffany and the Harrisons. Rashleigh explained that A.F. appeared

comfortable with Tiffany and was excited to see Tiffany.         Rashleigh further

explained that the Harrisons were attentive to A.F.’s needs and A.F. expressed

affection towards them. Lee also testified that A.F. bonded with Tiffany and the

Harrisons. Lee explained that A.F. is doing “fantastic” with the Harrisons, that

their relationship is “great,” and that she would call the Harrisons “mommy and


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daddy.” November 3, 2010 Hearing Tr., p. 169. Rashleigh and Lee testified that

granting MCCS permanent custody of A.F. is in her best interest. Lee testified

that if MCCS were granted permanent custody of A.F., her current placement with

the Harrisons is a possible long-term placement, because the Harrisons are a

“foster-to-adopt home.” Id. at p. 170.

       {¶32} Cordrick testified that he served as A.F.’s GAL since the inception of

the case. Cordrick testified that A.F. appeared to be bonded to Tiffany and the

Harrisons. Though Cordrick personally observed A.F. and the Harrisons together,

he admitted that he learned of A.F.’s bond with Tiffany via conversations with the

Harrisons. Cordrick continued that MCCS made reasonable efforts to reunite

Tiffany and A.F. Though MCCS made reasonable efforts, Cordrick testified that

he did not believe MACC adequately explored the option of inpatient treatment

with Tiffany. Cordrick also testified that several of the visits Tiffany missed were

caused by transportation issues outside of Tiffany’s control.         Despite this

testimony, Cordrick recommended that A.F. be placed in MCCS’s permanent

custody. Cordrick explained that his recommendation primarily stemmed from

Tiffany’s substance abuse and missed visits. Cordrick testified that Tiffany was

given “every opportunity” to take part in some treatment program. May 26, 2011

Hearing Tr., p. 358. Additionally, Cordrick testified that Tiffany did not have a

reasonable explanation for many of the visits she did not attend.


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      {¶33} In June 2011, the trial court filed its judgment entry granting MCCS

permanent custody of A.F. In doing so, the trial court found that MCCS made

reasonable efforts to reunite A.F. and Tiffany, pursuant to R.C. 2151.419; that the

record contained clear and convincing evidence that A.F. could not be placed with

Tiffany within a reasonable time nor should A.F. be placed with Tiffany, pursuant

to R.C. 2151.414(B)(1)(a); and, that the record contained clear and convincing

evidence that placing A.F. in MCCS’s permanent custody is in her best interest,

pursuant to R.C. 2151.414(D)(1).

      {¶34} It is from this judgment Tiffany appeals, presenting the following

assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ERRED IN FINDING WITH CLEAR
      AND CONVINCING EVIDENCE THAT MARION COUNTY
      CHILDREN SERVICES MADE REASONABLE EFFORTS TO
      ASSIST MOTHER TO REMEDY THE PROBLEM THAT
      CAUSED THE CHILD TO BE REMOVED.

                           Assignment of Error No. II

      THE TRIAL COURT ERRED IN FINDING THAT IT WAS IN
      THE CHILD’S BEST INTEREST TO GRANT THE MOTION
      FILED BY MARION COUNTY CHILDREN SERVICES AND
      GRANTED MARION COUNTY CHILDREN SERVICES
      PERMANENT CUSTODY OF THE CHILD AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE.




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                           Assignment of Error No. III

      THE TRIAL COURT ERRED WHEN IT FOUND THAT THE
      CHILDREN (sic) COULD NOT BE RETURNED TO MOTHER
      IN A REASONABLE TIME PURSUANT TO OHIO REVISED
      CODE SECTION 2151.414(E).

      {¶35} Due to the nature of Tiffany’s assignments of error, we elect to

address her second and third assignments of error together.

                            Assignment of Error No. I

      {¶36} In Tiffany’s first assignment of error, she contends that the trial court

erred in finding that MCCS made reasonable efforts to reunite her and A.F.

Specifically, Tiffany contends that MCCS did not make reasonable efforts to assist

her in gaining admission to an inpatient treatment program; that McPherson did

not consider the possibility of inpatient treatment; that MCCS’s expectations of

her were unrealistic; and, that MCCS did not facilitate visitation between her and

A.F. We disagree.

                                       Law

      {¶37} “R.C. 2151.419 imposes a duty on the part of children services

agencies to make reasonable efforts to reunite parents with their children where

the agency has removed the children from the home.” In re Sorg, 3d Dist. No. 5-

02-03, 2002-Ohio-2725, ¶ 13, citing In re Brown, 98 Ohio App.3d 337, 344 (3d

Dist. 1994).   “The agency bears the burden of showing that it made such

reasonable efforts.” In re Sorg at ¶ 13, citing R.C. 2151.419(A)(1).

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       {¶38} “Case plans are the tool that child protective service agencies use to

facilitate the reunification of families who * * * have been temporarily separated.”

In re Evans, 3d Dist. No. 1-01-75 (Oct. 30, 2001). To that end, case plans

establish individualized concerns and goals, along with steps that the parties and

the agency can take to achieve reunification. Id., citing R.C. 2151.412. Agencies

have an affirmative duty to diligently pursue efforts to achieve the goals in the

case plan. Id. “Nevertheless, the issue is not whether there was anything more

that [the agency] could have done, but whether the agency’s case planning and

efforts were reasonable and diligent under the circumstances of [the] case.” In re

Leveck, 3d Dist. Nos. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶ 10.

                                      Analysis

       {¶39} First, Tiffany contends that MCCS did not make reasonable efforts to

assist her in gaining admission to an inpatient treatment program. Tiffany focuses

on Rashleigh’s statement that it was “pointless” to refer her to Journey for an

AOD assessment. Tiffany maintains that Rashleigh’s statement demonstrates that

MCCS did not make reasonable efforts to reunite her with A.F.

       {¶40} Rashleigh’s testimony that it would have been “pointless” to refer

Tiffany to Journey for an AOD assessment does not demonstrate a lack of

reasonable effort. First, referral to Journey was rendered “pointless” as a result of

Tiffany’s actions and/or inaction. To be accepted into Foundation’s inpatient


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treatment program, Tiffany needed to complete an AOD assessment with MACC.

MACC, however, prohibited Tiffany from completing an AOD assessment as a

result of her prior missed appointments. Consequently, referral to Journey was

“pointless” because of Tiffany’s prior missed appointments.        Second, despite

Rashleigh’s testimony that referral to Journey would have been “pointless,” the

record reveals that MCCS made efforts to convince MACC to conduct an AOD

assessment of Tiffany. As a result of the MCCS’s efforts, MACC agreed to

conduct an AOD assessment of Tiffany.            In light of the foregoing, we find

Tiffany’s first contention is without merit.

       {¶41} Next, Tiffany contends that McPherson did not consider the

possibility of inpatient treatment.            Tiffany contends that despite the

recommendation that she receive inpatient treatment, McPherson continued to

offer her outpatient treatment. As a result, Tiffany contends that MCCS’s efforts

concerning her treatment were unreasonable.

       {¶42} Though Tiffany contends that McPherson’s decision to continue with

outpatient treatment is indicative of MCCS’s unreasonable efforts, Tiffany

overlooks the fact that McPherson is not an agent of MCCS, but an employee of

MACC. Consequently, this contention does not demonstrate that MCCS’s efforts

were unreasonable. See In re Jo.S., 3d Dist. Nos. 5-11-16, 5-11-17, 2011-Ohio-

6017, ¶ 33; In re Van Atta, 3d Dist. No. 5-05-03, 2005-Ohio-4182, ¶ 12.


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Furthermore, the record reveals that there was no recommendation for inpatient

treatment. The recommendation Tiffany alludes to stems from an evaluation that

occurred in April 2011. The evaluation noted that Tiffany would be appropriate

for Foundations, which offers both inpatient and outpatient treatment. There was

no testimony or evidence that the evaluation recommended Tiffany receive

inpatient treatment. In fact, McPherson testified that Tiffany preferred outpatient

treatment. Accordingly, we find Tiffany’s second contention is without merit.

      {¶43} Next, Tiffany contends that MCCS’s expectations of her were

unrealistic. Tiffany contends that she was not given a reasonable opportunity to

complete the requirements in the amended case plan.         In particular, Tiffany

contends that she was afforded approximately sixty days (i.e. from the day the

amended case plan was filed to the first day of the permanent custody hearing) to

complete requirements which were to be completed within ninety days.

      {¶44} Though the amended case plan was filed approximately sixty days

prior to the November 3, 2010 permanent custody hearing, Tiffany was given a

reasonable opportunity to satisfy the amended case plan’s requirements. The

amended case plan was identical to the original case plan in every way except for

a slight alteration to the requirement that Tiffany obtain a psychological

evaluation. Due to the similarity between the original and amended case plans, we

look to the filing date of the original case plan in determining whether MCCS gave


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Tiffany a reasonable opportunity to complete the case plan’s requirements. The

original case plan was filed on February 2, 2009. Accordingly, Tiffany had one

year and nine months to complete the requirements. This period of time was more

than reasonable to complete the case plan’s requirements. See In re Nice, 141

Ohio App.3d 445, 456-57 (7th Dist. 2001). Accordingly, we find Tiffany’s third

contention is without merit.

       {¶45} Last, Tiffany contends that MCCS did not make reasonable efforts to

facilitate visitation between her and A.F. In particular, Tiffany contends that

MCCS did nothing to alleviate issues with transportation to the visitation site.

       {¶46} Review of the record reveals that MCCS made reasonable efforts to

facilitate visitation. Rashleigh testified that MCCS provided Tiffany with bus

tickets. Lee testified that when he noticed Tiffany having difficulty arriving for

visitation on time, he moved the visitation period back. Despite these efforts,

Tiffany still did not attend numerous scheduled visits. While Rashleigh and Lee

testified that several of the missed visits were outside of Tiffany’s control, they

explained that a majority of the missed visits were not accompanied by a

reasonable explanation. Given the foregoing, we find Tiffany’s final contention is

without merit.

       {¶47} Aside from Tiffany’s contentions, review of the record reveals that

MCCS made reasonable and diligent efforts to reunite Tiffany and A.F.              In


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addition to the efforts discussed above, the record reveals that MCCS maintained

contact with Tiffany, conducted in person meetings with Tiffany, and made

referrals. In addition to these services, there is evidence that MCCS tailored its

efforts to assist Tiffany in meeting specific requirements, i.e. Rashleigh sent

Tiffany a local job list, and Lee sent a letter of recommendation to Fairview

Apartments on Tiffany’s behalf.

       {¶48} In light of the foregoing, we find that MCCS made reasonable and

diligent efforts to reunite Tiffany and A.F. Accordingly, we overrule Tiffany’s

first assignment of error.

                         Assignments of Error Nos. II & III

       {¶49} In Tiffany’s second and third assignments of error, she contends that

the trial court’s decision to grant MCCS permanent custody of A.F. was not in

A.F.’s best interest, and the trial court erred in finding that A.F. could not be

returned to her in a reasonable time. We disagree.

                                Standard of Review

       {¶50} “It is well recognized that the right to raise a child is an ‘essential’

and ‘basic’ civil right.” In re Hayes, 79 Ohio St.3d 46, 48 (1997), citing In re

Murray, 52 Ohio St.3d 155, 157 (1990). Parents have a fundamental liberty

interest in the care, custody, and upbringing of their children. In re Murray;

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). However, a


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Case No. 9-11-27


natural parent’s rights are not absolute. In re Thomas, 3d Dist. No. 5-03-08, 2003-

Ohio-5885, ¶ 7. “It is plain that the natural rights of a parent are not absolute, but

are always subject to the ultimate welfare of the child, which is the polestar or

controlling principle to be observed.” In re Cunningham, 59 Ohio St.2d 100, 106

(1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974).

       {¶51} Permanent custody determinations made under R.C. 2151.414 must

be supported by clear and convincing evidence. In re Baby Girl Doe, 149 Ohio

App.3d 717, 2002-Ohio-4470, ¶ 89 (6th Dist.), citing In re Hiatt, 86 Ohio App.3d

716, 725 (4th Dist. 1993). “Clear and convincing evidence is the measure or

degree of proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the allegations sought to be established. It is intermediate, being

more than a mere preponderance, but not to the extent of such certainty as required

beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986).

       {¶52} When “the degree of proof required to sustain an issue must be clear

and convincing, a reviewing court will examine the record to determine whether

the trier of fact had sufficient evidence before it to satisfy the requisite degree of

proof.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954), citing Ford v. Osborne,

45 Ohio St. 1 (1887). Thus, we are required to determine whether the trial court’s

determination was supported by sufficient credible evidence to satisfy the requisite


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degree of proof, In re McCann, 12th Dist. No. CA2003-02-017, 2004-Ohio-283, ¶

12, citing In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶ 16, and, absent

an abuse of discretion, the trial court’s decision must be upheld. In re Robison, 3d

Dist. No. 5-07-41, 2008-Ohio-516, ¶ 8, citing Masters v. Masters, 69 Ohio St.3d

83, 85 (1994). A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18,

citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of

discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

                                       Law

       {¶53} “Once a child has been adjudicated dependent, neglected, or abused

and temporary custody has been granted to a children services agency, the agency

may file a motion for permanent custody * * *.” In re Esparza, 3d Dist. Nos. 9-

06-25, 9-06-27, 2007-Ohio-113, ¶ 25. In determining whether to grant the agency

permanent custody, the trial court must conduct a two-pronged analysis. In re

D.M., 3d Dist. Nos. 5-09-12, 5-09-13, 5-09-14, 2009-Ohio-4112, ¶ 31. The trial

court must determine, by clear and convincing evidence, whether any provisions

enumerated in R.C. 2151.414(B)(1) are present. In re Goodwin, 3d Dist. No. 17-

08-12, 2008-Ohio-5399, ¶ 21. R.C. 2151.414(B)(1) states, in relevant part:


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      (B)(1) * * * the court may grant permanent custody of a child to
      a movant if the court determines * * * by clear and convincing
      evidence, * * * that any of the following apply:

      (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, or 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 if, as
      described in division (D)(1) of section 2151.413 of the Revised
      Code, the child was previously in the temporary custody of an
      equivalent agency in another state, 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.

      ***

      (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, or 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 and, as described in division (D)(1) of
      section 2151.413 of the Revised Code, the child was previously in
      the temporary custody of an equivalent agency in another state.
      (Emphasis added.)

      {¶54} In determining whether R.C. 2151.414(B)(1)(a) applies, the trial

court must consider the factors enumerated in R.C. 2151.414(E). In re Goodwin at

¶ 23. If one or more of the factors enumerated in R.C. 2151.414(E) is found to be

present by clear and convincing evidence, the trial court shall find that the child

cannot be placed with the parents within a reasonable period of time or should not


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be placed with the parents.    Id.; see also In re D.M. at ¶ 33.      The factors

enumerated in R.C. 2151.414(E) are, in relevant part:

      (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.

      ***

      (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 by other actions showing an
      unwillingness to provide an adequate permanent home for the
      child;

      ***

      (13) The parent is repeatedly incarcerated, and the repeated
      incarceration prevents the parent from providing care for the
      child.

      {¶55} If the trial court determines that any provision enumerated in R.C.

2151.414(B)(1) applies, the trial court must determine, by clear and convincing

evidence, whether granting the agency permanent custody of the child is in the

child’s best interest. In re D.M. at ¶ 33; In re K.H., 3d Dist. No. 5-10-06, 2010-


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Case No. 9-11-27


Ohio-3801, ¶ 30. In making this determination, R.C. 2151.414(D)(1) directs the

trial court to consider the following non-exclusive factors:

       (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;

       (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;

       (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, or 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 and, as described in division (D)(1) of section
       2151.413 of the Revised Code, the child was previously in the
       temporary custody of an equivalent agency in another state;

       (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;

       (e) Whether any of the factors in divisions (E)(7) to (11) of this
       section apply in relation to the parents and child.

                                      Analysis

       {¶56} Initially, we note that while the trial court applied R.C.

2151.414(B)(1)(a) in determining the first prong, it could have also applied R.C.

2151.414(B)(1)(d), as neither party disputed the fact that A.F. has been in MCCS’s

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

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Case No. 9-11-27


period. This fact alone would have satisfied the first prong. Since, however, the

trial court applied R.C. 2151.414(B)(1)(a) in determining the first prong of the

custody analysis, we will address the merits of Tiffany’s third assignment of error,

challenging the trial court’s finding that A.F. cannot be placed with her in a

reasonable period of time and should not be placed with her.

        {¶57} Citing R.C. 2151.414(B)(1)(a), the trial court determined that the

State established the existence of several factors enumerated in R.C. 2151.414(E)

by clear and convincing evidence. In particular, the trial court found that MCCS

presented evidence establishing the existence of R.C. 2151.414(E)(1), (4), and

(13).   Based on the following, we find that the trial court did not abuse its

discretion, as its finding was supported by clear and convincing evidence.

        {¶58} During the November 3, 2010 hearing, Rashleigh testified that as of

April 2010, Tiffany did not complete many of the case plan’s requirements.

Specifically, Rashleigh testified that Tiffany did not maintain employment

sufficient to support her and A.F., obtain suitable housing, complete treatment for

her substance abuse, or abstain from drugs. During the same hearing, Lee testified

that since April 2010 Tiffany obtained employment with Healthcare Depot and

obtained suitable housing at Fairview Apartments. Lee, however, also testified

that Tiffany did not complete a psychological evaluation, complete treatment for

her substance abuse, or abstain from drugs.


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      {¶59} During the May 20, 2011 hearing, testimony revealed that Tiffany

still did not complete substance abuse treatment or a psychological evaluation.

Testimony also revealed that Tiffany was not working any hours at Healthcare

Depot and recently moved out of Fairview Apartments.     Tiffany testified that Lee

attempted to visit her current residence, but she discouraged such visits because

her live-in boyfriend, who had a history of drug trafficking, was recovering from

an accident.

      {¶60} Furthermore, the record contains evidence that Tiffany did not attend

numerous visits with A.F. There were a total of 125 scheduled visits between

Tiffany and A.F. Of the 125 scheduled visits, Tiffany did not attend 64 of those

visits. While several of the visits Tiffany missed were outside of her control, a

majority of the visits Tiffany missed were not accompanied by a reasonable

explanation.

      {¶61} Last, the record reveals that Tiffany was incarcerated on two separate

occasions during the pendency of the case.

      {¶62} Based on the evidence presented, we find that there was clear and

convincing evidence that A.F. could not be placed with Tiffany in a reasonable

time and should not be placed with Tiffany.

      {¶63} In considering the child’s best interests, the trial court found that

granting MCCS permanent custody of A.F. was in her best interest. Based on the


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Case No. 9-11-27


following, we find that the trial court did not abuse its discretion, as its finding

was supported by clear and convincing evidence.

       {¶64} Several months after A.F.’s birth, in January 2009, A.F. was

removed from Tiffany’s custody and placed in foster care with the Harrisons. A.F.

has remained in the Harrisons’ care throughout the pendency of the case. Since

A.F.’s removal, Tiffany’s interaction with A.F. has been limited to supervised

visitation, which was scheduled to occur once a week. Throughout the case,

Tiffany did not attend numerous visits without a reasonable explanation. Despite

Tiffany’s spotty visitation history, Rashleigh and Lee each testified that A.F.

bonded with Tiffany. Rashleigh explained that A.F. appeared comfortable with

Tiffany and was excited to see her.

       {¶65} As for A.F.’s relationship with the Harrisons, Rashleigh and Lee

each testified that A.F. bonded with the Harrisons. Rashleigh explained that the

Harrisons are attentive to A.F.’s needs, and A.F. expressed affection towards the

Harrisons. Lee explained that A.F. is doing “fantastic” with the Harrison’s, that

their relationship is “great,” and that A.F. calls the Harrisons “mommy and

daddy.” November 3, 2010 Hearing Tr., p. 169. Similarly, Cordrick testified that,

based on personal observations, A.F. has a strong bond with the Harrisons.

       {¶66} Next, the record demonstrates that A.F. is too young to express her

own wishes concerning permanent custody. Consequently, Cordrick expressed


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Case No. 9-11-27


A.F.’s wishes. Cordrick was reluctant in making his recommendation. Cordrick’s

reluctance was primarily based on his belief that MACC did not adequately

explore inpatient treatment with Tiffany, and his observation that several of the

visits Tiffany missed were outside of her control. Despite Cordrick’s reluctance,

he recommended that MCCS be granted permanent custody of A.F. Cordrick’s

recommendation was grounded in belief that MCCS made reasonable efforts to

reunite Tiffany and A.F.; that Tiffany was given every opportunity to take part in a

treatment program; and, that Tiffany missed numerous scheduled visits with A.F.

without reasonable explanation.

      {¶67} Next, as discussed above, the record demonstrates that A.F. has been

in MCCS’s temporary custody for twelve or more months of a consecutive twenty-

two-month period.

      {¶68} Last, the record demonstrates that due to A.F.’s young age she is in

need of a secure placement. Based on the record, Tiffany cannot serve as a secure

placement. To her credit, Tiffany completed parenting classes and demonstrated

some initiative in seeking employment, appropriate housing, and beginning

treatment. After more than two years, however, Tiffany failed to complete many

of the case plan’s key requirements. Though Tiffany is currently employed, she

testified that she is not working any hours. Consequently, her employment is not

sufficient to support her and A.F. At one point, Tiffany resided at Fairview


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Case No. 9-11-27


Apartments, which Lee deemed appropriate. However, Tiffany has since moved

to another residence and has not allowed Lee to conduct a home visit to determine

whether the residence is appropriate. Tiffany began, but did not complete, a

psychological evaluation. Similarly, Tiffany began, but did not complete, the

treatment program at MACC, nor did she take part in the Family Dependency

Treatment Court program. Instead, Tiffany abused drugs throughout the case,

which resulted in her repeated incarceration. Taken together, Tiffany’s failure to

remedy the concerns outlined in the case plan demonstrate that she is not a secure

placement for A.F.

       {¶69} MCCS also determined that none of the alternative placements

provided by Tiffany were secure placements. Marcus had an extensive criminal

history. Tara was not interested in taking A.F. William and Wanda began the

process of being considered as a placement for A.F., but MCCS, through no fault

of its own, lost contact with them before they completed the placement evaluation.

       {¶70} Given the foregoing, we find that there was clear and convincing

evidence supporting the trial court’s finding that granting MCCS permanent

custody of A.F. is in her best interest.

       {¶71} Accordingly, we find that the trial court did not abuse its discretion

by granting MCCS permanent custody of A.F., as there was clear and convincing

evidence to support its decision.


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         {¶72} Therefore, we overrule Tiffany’s second and third assignments of

error.

         {¶73} Having found no error prejudicial to Appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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