[Cite as In re R.G., 2020-Ohio-3032.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

IN RE R.G.                                    :

A Minor Child                                 :                No. 108537

[Appeal by S.A., Mother]                      :

                                              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: May 21, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                   Juvenile Division
                                Case No. AD-17907988


                                        Appearances:

                 Gregory T. Stralka, for appellant.

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, Cheryl Rice and Willie Mitchell, Assistant
                 Prosecuting Attorneys, for appellee.
ON RECONSIDERATION

PATRICIA ANN BLACKMON, P.J.:

               This court sua sponte reconsiders its decision in this case. After

reconsideration, the opinion as announced by this court on February 6, 2020, In re

R.G., 8th Dist. Cuyahoga No. 108537, 2020-Ohio-381, is hereby vacated and

substituted with this opinion. This opinion is the court’s journalized decision in this

appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.

               Appellant, S.A. (referred to herein as “Mother”), appeals from the

order of the juvenile court that awarded permanent custody of her son, R.G., to the

Cuyahoga County Department of Children and Family Services (“CCDCFS”).

Mother assigns the following error for our review:

      The [CCDCFS] failed to present sufficient evidence to establish that
      [Mother] failed to substantially remedy the condition that caused the
      removal of the child.

               Having reviewed the record and the controlling case law, we reverse

the decision of the trial court and remand for further proceedings.

               R.G. was born prematurely in 2016 and required a lengthy

hospitalization in the NICU after his birth. On May 18, 2017, prior to R.G.’s

discharge from the hospital, CCDCFS filed a complaint for emergency temporary

custody. CCDCFS alleged that R.G. is neglected and dependent because of his

premature birth, special medical needs, Mother’s lack of consistency in visiting with

him, and “inability to independently manage” his medical needs. CCDCFS further

alleged that R.G.’s sibling is in the legal custody of a relative, and R.G.’s father has
not established paternity and is not in contact with R.G. R.G. was subsequently

placed in the pre-adjudicatory temporary custody of CCDCFS on June 15, 2017.

               The adjudicatory hearing was held on August 23, 2017. Prior to the

hearing, CCDCFS amended its complaint to delete the allegation of neglect, and

Mother admitted the dependency allegations. R.G. was adjudicated a dependent

child on September 21, 2017. Following a dispositional hearing, R.G. was committed

to the temporary custody of CCDCFS on November 14, 2017.

               Mother’s case plan required her to: (1) participate in a mental health

assessment and follow recommendations; (2) consistently visit with R.G.; and (3)

complete the required training for providing care for R.G. Father was required to

establish paternity. The stated goal was reunification with Mother.

               On April 6, 2018, less than one year after the complaint was filed,

CCFCDS filed a motion to modify temporary custody to permanent custody.1

CCDCFS maintained that Mother failed to make significant progress on case plan

objectives, i.e., made minimal efforts to complete mental health-related case plan

services, failed to consistently visit with R.G., did not participate in training required

to care for R.G. since August 2017, and did not attend many of his medical

appointments. The trial court held a hearing on this motion on March 28, 2019. At

the start of the hearing, CCDCFS informed the court that at the time of the filing of



      1This date is also less than nine months after 60 days from removal from the
home, less than eight months after R.G. was adjudicated a dependent child, and
less than five months after R.G. was committed to the temporary custody of
CCDCFS.
the motion for permanent custody, R.G. “was not in the custody of [CCDCFS] for 12

out of a 22-month consecutive period” and the basis of the motion was that R.G.

“cannot be placed within a reasonable time or should not be placed” with the

parents. Tr. 7.

               With regard to R.G.’s condition, social worker Cynthia Hurry

(“Hurry”) testified that R.G. was placed in therapeutic foster care in Ashland, Ohio,

about an hour away from Mother. Hurry testified that this foster care was selected

based upon availability of an appropriate placement at the time of R.G.’s discharge

from the hospital. The placement required foster parents who were trained in CPR,

use of the Pulse Oximeter Machine, the oxygen machine, feeding tube, and other

care. They must also take him to a pulmonologist, a gastro specialist, a neurologist,

and a therapist from the Help Me Grow Program.

               Foster parent Gary Gerwig (“Gerwig”) testified that he and his wife,

Celeste, have a therapeutic foster care license that permits them to care for medically

fragile children, and they take ongoing training.         For R.G. specifically, they

completed two days of training at Rainbow Babies and Children’s Hospital. They

learned how to use his feeding machine, oxygen machine, Pulse Oximeter Machine,

and generally care for him at their home. Gerwig also outlined for the court a typical

day of their care for R.G., including feeding him via the feeding machine, giving him

his medicine, and clearing his mucous using the pulmonary vest. According to this

testimony, the concerted effort of both foster parents is required to complete the

detailed care regimen, especially if R.G. is ill. R.G. is improving, but he is currently
at the developmental level of a one-year-old. Gerwig also testified that during her

visits, Mother holds R.G. but does not participate in his care.         However, he

acknowledged that no feeding or pulmonary treatments were required during the

course of her visits.

                Dr.     Amy   DiMarino     (“Dr.   DiMarino”),     R.G.’s   pediatric

pulmonologist, testified that R.G. has chronic lung disease due to his premature

birth. He is required to wear a pulmonary vest twice a day for 15 to 20 minutes in

order to clear mucus from his lungs. R.G. also takes various medications by inhaler

and nebulizer for coughing, wheezing, and asthma. Dr. DiMarino sees R.G. every

two or three months to review his symptoms and medication. She stated that

without proper care at home, R.G. would have to be hospitalized. However, Dr.

DiMarino testified that R.G. is improving. He now has a normal breathing pattern

and has been weaned off of some medication. Dr. DiMarino met Mother twice. To

Dr. DiMarino, Mother did not seem engaged.

                With regard to Mother’s compliance with the case plan requirement

that she learn to care for R.G., Hurry established that prior to R.G.’s discharge from

the hospital, Mother undertook some training to care for R.G. but did not learn all

that is needed to care for him or to manage his medical appointments that are

scheduled at various locations. Mother has attended only about ten of R.G.’s 60

appointments, but she did attend a feeding clinic to learn how to feed R.G. In

another instance, Mother arrived for an appointment involving a medical procedure,

but she was not permitted in because she had another child with her.
               As to the case plan requirement that Mother visit R.G., Hurry further

testified that Mother’s home is not appropriate for R.G.'s care. Mother visited R.G.

at the foster home in June 2017, but she did not visit him again until June 2018.

After obtaining a court order for Mother's transportation, Hurry arranged for a

driver to take Mother to Ashland each Friday. Mother did not attend each week, but

visited the child throughout June to September 2018, and several times in 2019.

Mother also informed Hurry that she started a new job and was still a probationary

employee, so she has difficulty attending visits and medical appointments.

               As to Mother’s compliance with the case plan requirement that she

undergo a mental health assessment, Hurry testified that in August 2017, Mother

completed the assessment, but she did not return for additional services until May

2018.

               Mother testified that she has another child who lives with maternal

grandmother, but she sees the child most days. Mother works as a nursing assistant

and is preparing to take her certification examination. As part of her employment,

she works with feeding machines and trachea equipment. She acknowledged that

she has difficulties in visiting with R.G., but she explained that she is a probationary

employee and does not have a driver’s license.

               R.G.’s guardian ad litem (“GAL”) testified that R.G.’s condition has

improved due to the care of the foster parents and the doctors. The GAL did not

believe that Mother would have been able to handle the required 24-hour care that

R.G. needs, and he opined that permanent custody should be awarded to CCDCFS.
               On April 11, 2019, the trial court awarded permanent custody of R.G.

to CCDCFS.2 The court concluded:

     The child is not orphaned, and has been in temporary custody of a
     public children services agency or private child placing agency under
     one or more separate orders of disposition for twelve or more months
     of a consecutive twenty-two month period. * * *

     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(s) has failed
     continuously and repeatedly to substantially remedy the conditions
     causing the child to be - placed outside the child’s home. Paternity has
     not been established. * * *

     The alleged father(s) has abandoned the child. The parent(s) is
     unwilling to provide food, clothing, shelter, and other basic necessities
     for the child or to prevent the child from suffering physical, emotional,
     or sexual abuse or physical, emotional, or mental neglect.

     The Court determines that the seriousness and nature of the child’s
     special needs makes the child’s placement with the child’s parent a
     threat to the child’s safety where the parent(s) have failed to remedy
     the conditions that caused the child to be placed outside the home.

     The Court finds that the child’s continued residence in or return to the
     home of mother, will be contrary to the child’s best interest.

     The Court further finds that reasonable efforts were made to prevent
     the removal of the child from her home, or to return the child to the
     home, and to finalize the permanency plan, to wit: reunification.
     Relevant services provided to the family and the reasons those services
     were not successful: case plan services included mental health
     services/counseling, transportation to and from visits due to out of
     county placement of the child, attendance at medical appointments and
     for medical training necessary for the care of the child, housing,
     supportive services and assistance for the child while in the parent’s
     care.



     2   At this point, R.G. had been in CCDCFS’s custody for less than two years.
      That one or more of the factors in division (E) of section 2151.414 of the
      Revised Code exist and the child cannot be placed with one of the
      child’s parents within a reasonable period of time or should not be
      placed with either parent; * * * the child has been in temporary custody
      of a public children services agency or private child placing agency
      under one or more separate orders of disposition for twelve or more
      months of a consecutive twenty-two month period; * * * the Court finds
      by clear and convincing evidence that a grant of permanent custody is
      in the best interests of the child and the child cannot be placed with one
      of the child’s parents within a reasonable time or should not be placed
      with either parent.

                              Sufficiency of the Evidence

               In the assigned error, Mother argues that there is insufficient

evidence to show that she failed to substantially remedy the conditions that caused

removal of R.G. She also argues that CCDCFS did not use reasonable case planning

and diligent efforts to assist her in remedying the problems that caused placement

outside her home.

               As an initial matter, we recognize that “[t]he purpose of the

termination of parental rights statutes is to make a more stable life for the dependent

children and to facilitate adoption to foster permanency for children.” In re N.B.,

8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67. However, a “parent’s right to

raise a child is an essential and basic civil right.” Id., quoting In re Hayes, 79 Ohio

St.3d 46, 48, 679 N.E.2d 680 (1997). The termination of parental rights is “the

family law equivalent of the death penalty in a criminal case.” In re Hoffman, 97

Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. It is “an alternative [of] last

resort.” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21.
               R.C. 2151.414 sets forth a two-part analysis to be applied by a

juvenile court in adjudicating a motion for permanent custody. R.C. 2151.414(B).

First, it authorizes the juvenile court to grant permanent custody of a child to the

public agency if, after a hearing, the court determines, by clear and convincing

evidence, that any of the following factors 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, 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 12 or more months of a consecutive 22-month period; or

(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. R.C. 2151.414(B)(1)(a)-(e). In re J.G., 8th Dist. Cuyahoga No. 100681, 2014-

Ohio-2652, ¶ 41. Only one of the factors must be present for the first prong of the

permanent-custody analysis to be satisfied. In re L.W., 8th Dist. Cuyahoga No.

104881, 2017-Ohio-657, ¶ 28.
               Second, when any one of the above factors exists, the trial court must

analyze whether, by clear and convincing evidence, it is in the best interest of the

children to grant permanent custody to the agency pursuant to R.C. 2151.414(D). Id.

               Clear and convincing evidence is that which will produce in the trier

of fact “‘a firm belief or conviction as to the facts sought to be established.’” In re

Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross

v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

      A. Trial Court’s Finding that Child Has Been In Temporary
         Custody for Twelve or More Months

               In this matter, the trial court found that:

      The child is not orphaned, and has been in temporary custody of a
      public children services agency or private child placing agency under
      one or more separate orders of disposition for twelve or more months
      of a consecutive twenty-two month period.

               Here, Mother and CCDCFS both agree that following a dispositional

hearing, R.G. was committed to the temporary custody of CCDCFS on November 14,

2017, and on April 6, 2018, i.e., less than five months later and less than 12 months

after the filing of the initial complaint, CCFCDS filed a motion to modify temporary

custody to permanent custody. Accordingly, insofar as the court’s determination

that R.G. “is not orphaned, and has been in temporary custody of a public children

services agency * * * for twelve or more months of a consecutive twenty-two month

period” was stated as a basis to establish the first prong for an award of permanent

custody under R.C. 2151.414(B)(1)(d), the court erred.
               As explained in In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818

N.E.2d 1176, “[b]efore a public children-services agency or private child-placing

agency can move for permanent custody of a child on R.C. 2151.414(B)(1)(d)

grounds, the child must have been in the temporary custody of an agency for at least

12 months of a consecutive 22-month period.” Id. at paragraph one of syllabus.

Moreover, as to the start of this period, “a child shall be considered to have entered

the temporary custody of an agency on the earlier of the date the child is adjudicated

pursuant to section 2151.28 of the Revised Code or the date that is sixty days after

the removal of the child from home.” R.C. 2151.414(B); In re Da.R., 3d Dist. Shelby

No. 17-18-13, 2019-Ohio-2270, ¶ 11; In re E.C., 4th Dist. Pickaway No. 19CA3, 2019-

Ohio-2803. Further, “the time that passes between the filing of a motion for

permanent custody and the permanent-custody hearing does not count toward the

12-month period set forth in R.C. 2151.414(B)(1)(d).” In re C.W. at ¶ 26. The

“motion for permanent custody ‘must allege grounds that currently exist.’” Id. at ¶

24, quoting In re K.G., 9th Dist. Wayne Nos. 03CA0066, 03CA0067, 03CA0068,

2004-Ohio-1421, ¶ 13.

               Therefore, the court erred insofar as it determined that CCDCFS met

R.C. 2151.414(B)(1)(d) as a first prong of the requisite showing needed to establish

permanent custody. Because R.G. was not in the temporary custody of an agency

for at least 12 months of a consecutive 22-month period as of the date of the filing of

the motion for permanent custody, there is no clear and convincing evidence

supporting R.C. 2151.414(B)(1)(d) was established herein.           However, we do
recognize that the court was permitted to note the overall length of time during

which R.G. was in temporary custody, insofar as the court was simply outlining his

custodial history. See In re L.D., 2017-Ohio-1037, 86 N.E.3d 1012, ¶ 43 (8th Dist.).

              CCDCFS now insists that once there is a finding that the child has

been in temporary custody for 12 of 22 months, the court does not consider the

reunification factors under R.C. 2151.414(E) and instead only engages in the best

interests analysis. In support of this argument in which the court may proceed to

the best interests determination, CCDCFS cites to In re C.W. at ¶ 21; In re D.A., 8th

Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 44. However, because the complaint

for permanent custody was filed in this matter less than 12 months after the initial

complaint and considerably less than 12 months after the dependency adjudication

and commencement of CCDCFS’s temporary custody, these cases are

distinguishable from the instant matter.

      B. Trial Court’s Finding that CCDCFS Made Reasonable Efforts at
         Reunification and Child Cannot Be Placed With Mother Within
         a Reasonable Period of Time

              In this case, the record shows that R.G. was not in the temporary

custody of an agency for at least 12 months of a consecutive 22-month period.

Additionally, the trial court concluded that R.G. “cannot be placed with either of the

child’s parents within a reasonable time or should not be placed with the child’s

parents.”

              Under R.C. 2151.414(B)(1)(a), involving grounds that the child has

not been in the temporary custody of an agency for at least 12 months of a
consecutive 22-month period and cannot be placed with either of the child’s parents

within a reasonable time or should not be placed with the child’s parents, a trial

court must consider the factors outlined in R.C. 2151.414(E). In re A.V., 8th Dist.

Cuyahoga No. 101391, 2014-Ohio-5348, ¶ 58; In re R.M., 8th Dist. Cuyahoga Nos.

98065 and 98066, 2012-Ohio-4290, ¶ 14; In re B.P., 8th Dist. Cuyahoga Nos.

107732 and 107735, 2019-Ohio-2919, ¶ 13.

              Here, the trial court concluded that the following was met under R.C.

2151.414(E)(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.

              In this matter, we do not find that that clear and convincing evidence

supports this finding. Turning to the question of whether the CCDCFS used

reasonable planning and diligent efforts to assist Mother in remedying the problems

causing placement of the child outside of the home, the record clearly demonstrated

that Mother had difficulty in traveling to R.G. due to his placement in Ashland.

However, the court did not inquire as to whether a suitable foster care option ever

became available closer to Mother’s home. While R.G.’s placement in Ashland may
still be reasonable given all of the presently available alternatives, there is nothing

in the record to demonstrate that this is still the case.

               With regard to the next question of whether Mother failed

continuously and repeatedly to substantially remedy the conditions causing the

child to be placed outside the child’s home, the record plainly demonstrates that

Mother was making progress in her case plan objectives. Significantly, she obtained

employment as a nurse’s assistant and worked with feeding tubes and trachea

equipment in her employment.

               We recognize that R.G. has chronic lung disease related to his

premature birth. Twice a day, he must wear a special vest in order to clear mucous

from his lungs. He also requires inhalers and nebulized medications. Additionally,

he must see a gastrointestinal specialist to address feeding issues, an immunology

specialist, and an orthopedic specialist. He has a specialized feeder and a Pulse

Oximeter Machine. We also recognize and acknowledge the high degree of excellent

care that the Gerwigs are providing to R.G. in his therapeutic foster care. As his

condition improves and he gets stronger, Mother is also improving her ability to care

for him. Therefore, we conclude that Mother was simply not given enough of an

opportunity for reunification.

               In this connection, this matter is distinguishable from this court’s

prior decision in In re Awkal, 95 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist.), a

case affirming the termination of parental rights and focused upon the child’s need

for a secure placement and the best interests of the child. However, unlike the
instant case, the parent in In re Awkal was imprisoned and did not dispute that the

child could not or should not be placed with him; the case procedure and appeal

focused upon the best interest analysis.

                As to the trial court’s consideration of other factors under R.C.

2151.414(E), i.e., lack of commitment toward the child, and unwillingness to provide

basic necessities, we conclude that the additional R.C. 2151.414(E) findings are

likewise unsupported by sufficient evidence.

                Finally, we recognize that the placement of R.G. outside of the home

occurred due to the tragic intersection of the peculiarities of the Ohio law and the

child’s unfortunate illness. That is, the child was not adjudicated to be neglected; he

was deemed dependent due to his extremely challenging and life-threatening

medical situation, a circumstance not of Mothers own creation. Ohio law defines a

dependent child as any child:

      (C) Whose condition or environment is such as to warrant the State, in
      the interests of the child, in assuming the child’s guardianship;

      (D) To whom both of the following apply:

      (1) The child is residing in a household in which a parent, guardian, or
      custodian or other member of the household committed an act that was
      the basis for an adjudication that a sibling of the child or any other child
      who resides in the household is an abused, neglected, or dependent
      child;

      (2) Because of the circumstances surrounding the abuse, neglect, or
      dependency of the sibling or other child and the other conditions in the
      household of the child, the child is in danger of being abused or
      neglected by that parent, guardian, or custodian or member of the
      household.

R.C. 2151.04.
                This definition appears to be unique. That is, the majority of states in

this country tend to define dependency in terms of a parent’s abuse, neglect, illness,

addiction, or other condition that make the parent unable to discharge their parental

responsibilities. See, e.g., Cal.Welf. & Inst.Code Section 300; Florida Stat.Ann.

39.01(15). Generally, dependency must be shown in relation to “evidence of

conduct” that “places the health, safety or welfare of the child at risk.” See, e.g., 23

Pa.C.S. 6302.

                Ohio’s less stringent dependency definition places it within the small

group of states that define dependency beyond the risks of harm from a parent’s

abuse, neglect, illness, addiction, or other conditions that make the parent unable to

discharge their parental responsibilities. In this group, dependency can result

absent parental fault. Accord Maine 22 R.S.A. 4055(1)(B)(2)(b)(i)-(ii) (the parent is

unwilling or unable to protect the child from jeopardy, and parent has been

unwilling or unable to take responsibility for the child); Wis. Stat. 48.424(4) (no

intent to harm or neglect is needed, or parent fails to assume significant

responsibility for the daily care of the child); N.C. Gen. Stat. 7B-101(9) (the parent is

unable to provide for the care or supervision and lacks an appropriate alternative

child care arrangement).

                Ohio dependency determinations for medically fragile children

present especially difficult questions. Often the medical problems are unexpected,

at which point the parent is neither emotionally nor medically prepared to address

these challenges and to understand and comply with case plan requirements.
Typically, as in this matter, the parent has job obligations and other family needing

his or her care. Once under county control, the parent has limited time to both learn

to cope with the situation and become able to provide the requisite medical care and

support. Time is of the essence to avoid the loss of parental rights, yet extreme

stressors remain.

              In conclusion, following our review of the record and the controlling

caselaw, we find that there is insufficient evidence to support the first prong of the

required showing for termination of parental rights.

              The assigned error is well-taken.

               The judgment of the trial court is reversed and the matter is

remanded for further proceedings consistent with this opinion.

      It is ordered that appellant recover from appellee the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the court

of common pleas, juvenile division, to carry this judgment into execution.

      A certified copy of this journal entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


                  _____     _____
PATRICIA ANN BLACKMON, PRESIDING JUDGE

RAYMOND C. HEADEN, J., CONCURS;
KATHLEEN ANN KEOUGH, J., DISSENTS
WITH ATTACHED OPINION
KATHLEEN ANN KEOUGH, J., DISSENTING:

               Respectfully, I dissent. The majority concludes there was not clear

and convincing evidence to support the trial court’s finding that R.G. could not or

should not be placed with Mother in a reasonable time because CCDCFS did not

make reasonable efforts toward reunification, and Mother was not given a sufficient

opportunity to remedy the conditions that led to R.G.’s removal from her home. I

disagree.

               As the majority points out, Mother had difficulty visiting R.G. due to

his placement in Ashland. But the record reflects that this placement was necessary

because R.G. needed to be placed with medically qualified foster parents who were

able to care for his extensive medical needs. Social worker Hurry testified that in

June 2018, the agency made arrangements with a cab service to provide door-to-

door transportation for Mother to and from the foster home every Friday afternoon,

but although Mother visited a few times in June and July, the visits “immediately

started tapering off.” Hurry testified that since Mother’s last visit in September

2018, she had visited R.G. only once in January 2019 and once in February 2019.

Mother acknowledged on cross-examination that even after the agency began

providing transportation for her to and from the foster home, she missed more than

half of her scheduled visits with R.G. It is difficult to conclude on this evidence that

CCDCFS did not make reasonable efforts to assist Mother with reunification.

Instead, the evidence demonstrates that Mother did not avail herself of the

opportunities provided to her.
               The majority also concludes that “Mother was making progress in her

case plan objectives” and “improving her ability to care for [R.G.]” such that the trial

court’s finding that Mother failed to substantially remedy the conditions that led to

R.G. being placed outside her home was not supported by clear and convincing

evidence. Again, I disagree.

               The record demonstrates that as of April 3, 2019, the date of the

permanent custody hearing, Mother was not making any progress with her mental

health treatment recommendations, one of her case plan objectives. Hurry testified

that Mother had a mental health evaluation in August 2017, and was referred for

additional services, but did not return to the mental health agency until May 2018.

She was again seen there in September 2018, and November 2018, but never

returned after that for any mental health services.

               With respect to completing the required training regarding the

various medical devices used by R.G., another case plan objective, Mother testified

that she learned how to use a feeding tube in her job as a nurse assistant. She

acknowledged, however, that she had no experience with the vest that R.G. wears

every day, and admitted that she had not met many of R.G.’s doctors. Indeed, the

record reflects that although the foster parents took R.G. to at least 60 doctor’s visits

after June 2017, and Mother was advised by CCDCFS of all the appointments,

Mother went to only six appointments in 2017, two in 2018, and one in 2019. The

evidence further reflects that Mother did not ask any questions of the doctors during

the visits, nor did she ever give Hurry any reasons regarding why she missed the
medical appointments. In light of this evidence, I fail to see how Mother was making

any progress on her case plan objectives.

              The majority notes that R.G.’s condition has improved during his

nearly two-year stay with the foster parents, and concludes that given more time,

Mother could adequately care for him. But R.G.’s medical condition improved

precisely because he received the medically prescribed care from his foster parents,

who went to all his doctor’s appointments and obtained training on all of the medical

devices used to treat him.

              And Mother’s minimal progress in learning to use a feeding tube is

not sufficient to demonstrate that given more time, she could adequately care for

R.G.’s extensive medical needs when he is healthy, much less when he is sick. As

described by Gerwig, R.G.’s foster father, a typical day with R.G. requires constant

attention to R.G.’s needs. Gerwig said that R.G. wakes up around 8:00 a.m. and if

he is healthy, “he has two puffs of Ventolin with a spacer, then ten minutes in the

vest, then two puffs of the Dulera, and we count to make sure it’s a least ten breaths

on each side.” Gerwig said that after that is completed, he and his wife mix the

formula for R.G. and feed him through his feeding tube, which takes approximately

30 minutes. They then give him two more medications and water through a bolus

syringe. At 10 a.m., they given him more water. At noon, they feed him again, and

then put him down for a nap. At around 4:30 p.m., they again treat him with the

vest, and then feed him and give him more medicine, a process that takes at least an

hour. Gerwig said that after the evening feeding, they give R.G. more medications
and then water. At around 7:30 p.m., they get R.G. ready for bed, which includes

placing him in a hip-abductor brace to correct his hip placement. Gerwig said that

when R.G. is sick, he and his wife do breathing treatments every two to three hours

during the day and a few times at night. Gerwig said that it would be hard to keep

up with him” if he had to take care of R.G. by himself because even when R.G. is

healthy, “it’s a full-time job with R.G.” In light of this testimony, it is difficult to

conclude that Mother’s minimal training and familiarity with R.G.’s extensive

medical needs would allow her to adequately care for R.G. in a manner that would

sustain his improved medical condition or foster continued improvement in his

condition.

               On this record, I would affirm the trial court’s judgment finding that

CCDCFS made reasonable efforts for reunification, but Mother failed to remedy the

conditions that led to R.G.’s removal from her home, R.G. could not or should not

be placed with Mother within a reasonable time, and permanent custody was in

R.G.’s best interest.
