[Cite as In re C.E., 2009-Ohio-6027.]




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



IN THE MATTER OF:

        C.E.                                             CASE NO. 5-09-02

ALLEGED NEGLECTED AND
DEPENDENT CHILD,
                                                         OPINION
        [AMBER WATSON, APPELLANT,
        ROBERT ESSEX, APPELLANT].


IN THE MATTER OF:

        L.W.                                             CASE NO. 5-09-03

ALLEGED NEGLECTED AND
DEPENDENT CHILD,
                                                         OPINION
        [AMBER WATSON, APPELLANT,
        ROBERT ESSEX, APPELLANT].



                Appeal from Hancock County Common Pleas Court
                       Trial Court No. 20630033, 20730033

                   Judgment Affirmed in Part and Reversed in Part

                          Date of Decision:   November 16, 2009
Case No. 5-09-02, 5-09-03




APPEARANCES:

       Drew J. Mihalik for Appellant Essex

       Charles R. Hall, Jr. for Appellant Watson

       Kristen K. Johnson for Appellee

       Barbara Dibble for CASA




WILLAMOWSKI, J.

       {¶1} This appeal is brought by parent-appellants Amber and Robert from

the judgment of the Court of Common Pleas of Hancock County, Juvenile

Division, terminating parental rights and awarding permanent custody to the

Hancock County Job and Family Services – Children’s Protective Services Unit

(“the Agency”). For the reasons set forth below, the judgment is affirmed in part

and reversed in part.

       {¶2} On August 30, 2006, the elder half-sister of the children at issue in

this case, C.H., was found wandering unattended in a parking lot. C.H. was three

years of age at the time and was dirty and hungry. C.H. was eventually identified

and taken home by officers from the Findlay Police Department. At the home, the

officers found C.E., who was born on June 13, 2006, being cared for by Amber’s


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uncle. The home was determined to be unfit for children. Soon after, Amber

arrived home and began to argue with the officers. While holding C.E., Amber

began a physical struggle with the officers. Both C.H. and C.E. were removed

from the home that day.

        {¶3} On August 31, 2006, the Agency filed a complaint alleging that C.H.

and C.E. were neglected and dependent children. An emergency hearing was held

on September 1, 2006. On September 6, 2006, the trial court entered judgment

finding probable cause for the removal of the children and placing them in the

emergency temporary custody of the Agency. On September 15, 2006, the trial

court appointed Don Schmidt (“Schmidt”) as the guardian ad litem in this case.

The adjudicatory hearing was held on October 5, 2006. Amber admitted to the

allegations in the complaint at the hearing. The trial court accepted her admissions

and found the children to be neglected and dependent. The dispositional hearing

was held on November 9, 2006. On November 14, 2006, the trial court awarded

temporary custody of both C.H. and C.E. to the Agency. On November 20, 2006,

the Agency filed the first case plan.1 The case plan required Amber to do the

following: 1) maintain a safe and stable living environment; 2) obtain a mental

health and substance abuse assessment and then follow the recommendations; 3)

participate in parental education and other recommended related services; and 4)


1
   The case plan also included recommendations for C.H.’s father. However, C.H. is not involved in this
appeal as custody was awarded to her father. Thus, these recommendations will not be discussed.


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Case No. 5-09-02, 5-09-03


complete a life skills class. The case plan required Robert, and his wife, to 1)

establish paternity of C.E.; 2) obtain a mental health and substance abuse

assessment and then follow the recommendations; and 3) complete a community

services assessment. The case plan was approved by the trial court on December

5, 2006.

      {¶4} On February 23, 2007, the semi-annual review of the case plan was

filed. During the review, the following progress or lack thereof was noted: 1)

Amber remained without stable and safe housing; 2) Amber completed her

evaluations, but mental health services were still needed; 3) Amber continues to

resist the education offered by the Agency; 4) Amber participated in the Life

Skills classes, but still needs additional services; 5) Robert is objecting to the

mental health and substance abuse evaluations as illegal and prejudicial; and 6) a

DNA test to establish Robert as C.E.’s father was scheduled for March 1, 2007.

Following the review, it was recommended that the children remain in the

Agency’s temporary custody.

      {¶5} On June 27, 2007, Robert filed a motion for unsupervised visitation

with C.E.. Robert based his motion on the fact that he was not involved in any of

the underlying reasons for the removal of C.E. from Amber’s home. On July 12,

2007, the Agency filed a motion for a six month extension of temporary custody.

Schmidt filed his review report on August 3, 2007. In the report, Schmidt noted



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that Amber was making some progress and that Robert was feeling frustrated with

the process. Schmidt also noted that he was still concerned with Amber’s lack of

income, the fact that Amber was expecting another child soon, that Robert was not

utilizing his full visitation with C.E., and that Amber still needs to participate in

more life skills educational classes. On August 7, 2007, Amber filed a motion to

allow her unsupervised visits with her children. In support of this motion, Amber

attached the certificates of completion for the following classes:       1) Keys to

Caregiving Parent Training; 2) Living Skills Program; 3) Getting It All Together –

“Stress and Time Management with Little Ones” Parenting Infants and Toddlers

Series; and 4) Good Beginnings – “Play and Toys” Parenting Infants and Toddlers

Series. A hearing was held on all these motions on August 9, 2007. Amber

withdrew her motion for unsupervised visits at the hearing. Robert’s motion was

taken under consideration. The trial court granted the Agency’s motion for a six

month extension of temporary custody. Robert’s motion was subsequently denied

on August 16, 2007

       {¶6} On August 16, 2007, the second semi-annual review of the case plan

was held. The review noted that Amber had obtained housing, and had completed

the life skills class. However, Amber was still receiving individual education on

life skills, needed psychological evaluation, and needed additional parent

education as her expectations of the children were unrealistic. The review further



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stated that Robert had completed his psychological evaluation and was

recommended for individual counseling, but declined.           No requirement for

individual counseling for Robert appeared in subsequent case plans. Robert’s wife

had her evaluation scheduled, but the results were not yet available. An amended

case plan was filed on September 4, 2007. The new plan required Amber to

receive a psychological evaluation and participate in play therapy with C.H.

Robert and his wife were required to complete a psychological evaluation as well

and to participate in parent education regarding toddler care. In addition, Amber

was required to continue her life skills and parental educational training. The trial

court approved the amended case plan on September 14, 2007.

          {¶7} On September 16, 2007, L.W. was born to Amber.2 The trial court

granted an ex parte order removing L.W. from Amber on September 17, 2007.

The decision was based upon the fact that C.H. and C.E. had been adjudicated as

neglected and dependent and they still were in the temporary custody of the

Agency. The emergency hearing was held on September 18, 2007. The trial court

found probable cause for the removal and placed L.W. in the emergency

temporary care of the Agency. On September 19, 2007, Schmidt was named the

GAL of L.W. as well as the other children. The adjudicatory hearing concerning

L.W. was held on October 11, 2007. The trial court found L.W. to be a dependent



2
    The father of L.W. was unknown at that time.


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Case No. 5-09-02, 5-09-03


child and L.W. was added to the case plan.3 Robert was subsequently determined

to be the father of L.W. as well as C.E.. A dispositional hearing was held on

November 28, 2007. Following the hearing, the trial court granted temporary

custody of L.W. to the Agency.

          {¶8} On January 8, 2008, the Agency filed motions for permanent

custody of all three children. The motion for L.W. alleged that it would be in his

best interest for parental rights to be terminated because the parents have

repeatedly failed to remedy the problems causing removal, have chronic mental

illness, and have failed to demonstrate a commitment to the child. The motions

for C.H. and C.E. indicated that the children had been in the temporary custody of

the Agency for more than fifteen months as well as all the reasons set forth in the

motion for permanent custody of L.W.. On February 19, 2008, Amber filed a

motion for a second psychological evaluation. This motion was granted on that

same day.

          {¶9} The third semi-annual review was conducted on February 7, 2008.

The Agency noted that Amber had maintained her housing since June 2007, and

was working on the classes and therapy requested. However, the Agency was

concerned by the fact that Amber was unemployed, had quit school, had been

receiving parent educator services since she was fourteen yet still was having



3
    The amended case plan also included services for C.H.’s father.


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Case No. 5-09-02, 5-09-03


issues with her parenting skills.4 The Agency also said that Robert chose not to

comply with the requested therapy5 due to his belief that it was unnecessary.

Robert attended visits regularly, but usually left half way through while his wife

only attended a few visitations. The reason for the early departure was claimed to

be Linda’s work schedule, so the visits were changed from one two hour visit a

week to two one hour visits per week.

        {¶10} On June 26, 2008, a pretrial was held on the motions for permanent

custody. Amber moved for a continuation on the motion and no objections were

made. Thus, the trial court granted the continuance until September 2008. A

fourth semi-annual review was then held on August 7, 2008. The review noted

that Amber still had issues with her parenting skills and that there was concern

about her mental health. The review also noted concerns that Robert was using

opiates outside doctor recommendations.                Due to these concerns, the Agency

determined that there were safety issues in returning the children to either Amber

or Robert at that time. The trial court then granted Robert’s request for a second

psychological evaluation. Due to the second examination, the hearing was again

continued and was rescheduled for January 7, 8, and 9, 2009.

        {¶11} On September 24, 2008, Robert moved for extended and



4
  At the time of the third review, Amber was twenty years of age.
5
   The mentioned therapy was a recommendation of Dr. Connell and was never required in any subsequent
case plan.


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Case No. 5-09-02, 5-09-03


unsupervised visitation with C.E. and L.W. The trial court granted the motion on

November 7, 2008. The visits were extended to two hours, twice a week. The

visits were allowed to be unsupervised as long as Robert stayed at the visits for the

full two hours for four consecutive weeks and fully cooperated with the Agency.

On December 11, 2008, the second psychological evaluations of Amber and

Robert were filed. Robert then filed a motion for custody of C.E. and L.W. on

December 12, 2008. The trial court then granted Robert unsupervised overnight

visits with the boys as of December 18, 2008. On December 29, 2008, Schmidt

filed his GAL report. Schmidt recommended that permanent custody of C.E. and

L.W. should be granted to the Agency.6

          {¶12} On December 29, 2008, the Agency filed an amended motion for

permanent custody of C.H., C.E., and L.W.. The basis for the amended motion

was 1) that the children had been in the custody of the Agency for more than

twelve months of a consecutive 22 month period, 2)Amber and Robert had failed

to remedy the problems causing the removal of the children from the home, 3)

chronic mental illness, physical disability, or chemical dependency of a parent so

severe that it makes the parent unable to provide an adequate home within one

year of the hearing, and 4) that Amber and Robert were unwilling to provide the

basic necessities for the children or prevent neglect. The hearing on Robert’s



6
    The recommendation for C.H. was that her father be granted custody of her.


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Case No. 5-09-02, 5-09-03


motion for custody and the Agency’s amended motion for permanent custody was

held on January 5, 7, and 8, 2009. At the conclusion the trial court took the

motions under advisement.                 On January 16, 2009, the trial court entered its

judgment granting the motion for permanent custody of C.E. and L.W. to the

Agency and denying Robert’s motion for custody.7                       Amber and Robert both

appeal from this judgment. Amber raises the following assignments of error.

                                      First Assignment of Error

           [The Agency] failed its duty to use reasonable case planning and
           diligent efforts at reunification with the parent.

                                    Second Assignment of Error

           The trial court’s decision to terminate [Amber’s] parental rights
           and grant permanent custody to the [Agency] is against the
           manifest weight of the evidence.

                                     Third Assignment of Error

           The trial court erred in granting permanent custody for the
           children because it was not in their best interest.

                                    Fourth Assignment of Error

           The trial court erred by not making a finding on the record as
           to the wishes of the children and not appointing them separate
           counsel.

                                      Fifth Assignment of Error

           The trial court erred in granting permanent custody for the
           children because [Amber] lack[s] affluency.

7
    The trial court granted the motion for custody of C.H.’s father.


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       {¶13} Robert raises the following assignments of error.

                              First Assignment of Error

       The lower court erred in granting permanent custody of C.E.
       and L.W. to [the Agency] because the case plan implemented by
       the Agency was not reasonably calculated to succeed in
       reunifying the two boys with their biological father, [Robert].

                             Second Assignment of Error

       The lower court’s decision to terminate [Robert’s] parental
       rights and grant permanent custody to [the Agency] and deny
       [Robert’s] motion for custody is not supported by sufficient
       evidence and/or is against the manifest weight of the evidence.

       {¶14} The right to raise one’s own child is a basic and essential civil right.

In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. “Parents have a

‘fundamental liberty interest’ in the care, custody, and management of their

children.” In re Leveck, 3d Dist. No. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269,

¶6. These rights may be terminated, however, under appropriate circumstances

and when all due process safeguards have been followed. Id. When considering

a motion to terminate parental rights, the trial court must comply with the

statutory requirements set forth in R.C. 2151.414. These requirements include in

pertinent part as follows.

       (B)(1) Except as provided in division (B)(2) of this section, the
       court may grant permanent custody of a child to a movant if the
       court determines at the hearing held pursuant to division (A) of
       this section, by clear and convincing evidence, that it is in the
       best interest of the child to grant permanent custody of the child


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Case No. 5-09-02, 5-09-03


      to the agency that filed the motion for permanent custody and
      that any of the following apply:

      ***

      (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 * * *.

      For the purpose of division (B)(1) of this section, 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
      [R.C. 2151.28] or the date that is sixty days after the removal of
      the child from home.

      (2) With respect to a motion made pursuant to [R.C.
      2151.413(D)(1)], the court shall grant permanent custody of the
      child to the movant if the court determines in accordance with
      division (E) of this section that the child cannot be placed with
      one of the child’s parents within a reasonable time or should not
      be placed with either parent and determines in accordance with
      division (D) of this section that permanent custody is in the
      child’s best interest.

      (C) In making the determination required by this section * *
      *, a court shall not consider the effect the granting of permanent
      custody to the agency would have upon any parent of the child.
      A written report of the guardian ad litem of the child shall be
      submitted to the court prior to or at the time of the hearing held
      pursuant to division (A) of this section * * * but shall not be
      submitted under oath.

      **

      (D)(1) In determining the best interest of a child at a hearing
      held pursuant to division (A) of this section * * *, the court shall
      consider all relevant factors, including, but not limited to, the
      following:



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      (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
      services agencies * * * for twelve or more months of a
      consecutive twenty-two-month period * * *;

      (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.

      ***

      (E) In determining at a hearing held pursuant to division (A) of
      this section * * * whether a child cannot be placed with either
      parent within a reasonable period of time or should not be
      placed with the parents, the court shall consider all relevant
      evidence. If the court determines by clear and convincing
      evidence, at a hearing held pursuant to division (A) of this
      section * * * that one or more of the following exist as to each of
      the child’s parents, the court shall enter a finding that the child
      cannot be placed with either parent within a reasonable time or
      should not be placed with either parent:

      (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


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Case No. 5-09-02, 5-09-03


       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.

       (2) Chronic mental illness, chronic emotional illness, mental
       retardation, physical disability, or chemical dependency of the
       parent that is so severe that it makes the parent unable to
       provide an adequate permanent home for the child at the
       present time and, as anticipated within one year after the court
       holds the hearing pursuant to division (A) of this section * * *;

       ***

       (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;

       **

       (16) Any other factor the court considers relevant.

R.C. 2151.414.

       {¶15} Amber’s first assignment of error alleges that the Agency failed to

use reasonable case planning and make diligent efforts to reunite the children with

her. Case plans are tools that the Agency uses to set forth the goals of the parents

to allow for the return of the children to their parents. Leveck, supra at ¶10.

These plans must take into consideration the individual circumstances of each

case, including the abilities of the parents and the children. Id. “Nevertheless, the


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Case No. 5-09-02, 5-09-03


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 this case.” Id.

       {¶16} In this case, the children were removed from the home when CH

was found wandering the parking lot, dirty, hungry, and unattended. The Agency

investigated and the home was found to be filthy and unfit for the children to

remain. In response to these problems, the Agency’s case plan required Amber to

1) obtain additional parenting knowledge and skills; 2) obtain mental health and

substance abuse assessments; 3) obtain a more detailed psychological evaluation;

and 4) obtain safe and stable housing. The case plan included requirements that

Amber comply with the recommendations of the evaluations. The terms of the

case plan were reasonably calculated to remedy the reasons for the removal of the

children from the home. Thus, the trial court did not err in finding that the

Agency had made reasonable case planning and made diligent efforts to return the

children to Amber. Her first assignment of error is overruled.

       {¶17} Amber’s second assignment of error is that the judgment

terminating her parental rights was against the manifest weight of the evidence. If

a child has been in the temporary custody for twelve of twenty-two consecutive

months, the trial court may terminate parental rights if it finds that doing so is in

the best interest of the child. R.C. 2151.414(B)(1)(d). The time begins to run



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Case No. 5-09-02, 5-09-03


whenever the child is adjudicated pursuant to R.C. 2151.28 or 60 days after the

child is removed from the home, whichever is earlier. Id. However, only the time

between the start date and the date of the filing by the Agency of the motion for

permanent custody is to be considered by the trial court. In re C.W., 104 Ohio

St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176. “In other words, 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).” Id. at ¶26.

      {¶18} In this case, C.E. was adjudicated a neglected and dependent child

on October 5, 2006. L.W. was adjudicated a dependent child on October 11,

2007. A motion for permanent custody was filed for both boys on January 8,

2008. At that time, C.E. had been in the temporary custody for more than twelve

of twenty-two consecutive months. The trial court’s findings to this effect are

supported by the evidence.     Thus, the trial court did not need to determine

whether C.E. could be returned to Amber within a reasonable time, only if

termination of parental rights would be in his best interest. Id. at ¶21. However,

at the time the motion was filed and the time for determination of the twelve

month period was established, only three months had passed since L.W. had been

adjudicated a dependent child. The Agency filed an amended motion alleging

that the twelve month period had been met on December 29, 2008. Since this



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Case No. 5-09-02, 5-09-03


motion is an amendment and not a new motion, it relates back in time to the

original filing.8 Civ.R. 15(C). The time between the filing of the motion and the

hearing cannot be counted in the time calculation. In re Arnold, 3d Dist. No. 1-

04-71, 1-04-72, 1-04-73, 2005-Ohio-1418, ¶10. The trial court must thus make

additional findings before terminating parental rights to L.W.

        {¶19} In determining whether to terminate Amber’s parental rights, the

trial court made the following findings as to both C.E. and L.W.

         [Amber] has been diagnosed as having “Developmental
         Disorder Not Otherwise Specified, Major Depression,
         Recurrent; Bipolar Disorder and Post-traumatic Stress
         Disorder”. Doctors have stressed the importance of [Amber]
         maintaining a medication regimen for the Bipolar Disorder but
         she has been noncompliant. [Amber] did complete the life skills
         group but only minimal progress was noted and she was unable
         to demonstrate any change in her parenting skills. Therapist
         Peg Wood recommended that [Amber] attend the “Personality
         Skills Group” but she refused. It was also recommended that
         she attend the “Mind over Mood Group” and she only attended
         once. Becky Shoemaker, the parent educator for [the Agency]
         worked with [Amber] for an extended period of time over
         several years. Following hours of intensive work with the
         mother, Shoemaker opined that [Amber] could not parent any
         of her children either together or individually.

         ***

         Dr. Connell describes the mother as having significant deficits in
         cognitive, interpersonal, and emotional functioning which
         impairs her ability to effectively parent her children. He
         further goes on to opine that it is unlikely that she will ever be

8
   This court notes that only seven days had elapsed between the amended motion and the hearing date.
Thus, if this would have been a new motion, the hearing would have been held before the response time
had expired. This potentially would have been a due process problem.


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Case No. 5-09-02, 5-09-03


       able to function independently as a parent to any of her three
       children. He continues that she has been involved in some form
       of parent education for the past six year (sic), but has failed to
       exhibit the judgment and decision making essential for effective
       parenting.

Jan. 16, 2009, J.E., 4-5. These findings are supported by the record. The findings

indicate that Amber suffers from chronic mental illness and lacks the ability to

provide a stable and safe home for the children.           Thus, pursuant to R.C.

2141.414(E)(2)(4), there is a reasonable basis for determining that the children

cannot be placed with Amber within a reasonable time.              Amber’s second

assignment of error is overruled.

       {¶20} In the third assignment of error, Amber claims that the trial court’s

judgment is not in the best interest of the children. The trial court must consider

the factors set forth in R.C. 2141.414(D) when determining what is in the best

interest of the children. The trial court’s determination must be supported by

clear and convincing evidence. In re M.E., 8th Dist. No. 86274, 2006-Ohio-1837,

¶9. The trial court in this case stated that it had considered the statutory factors.

J.E., 4. The trial court based its determination upon the report of Dr. Connell,

which was entered into evidence.         Thus, the findings were supported by

competent, credible evidence. The trial court did not err in determining that

termination of Amber’s parental rights was in the best interest of the children.

Therefore, the third assignment of error is overruled.



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        {¶21} Amber’s fourth assignment of error alleges that the trial court erred

by failing to make a finding concerning the wishes of the children or by failing to

appoint separate counsel for the children. Amber relies upon an Ohio Supreme

Court opinion holding that it may be necessary to appoint separate counsel for a

minor if his or her wishes contradict those of the guardian ad litem. In re

Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110. This court

agrees with the holding in Williams. However, that holding does not apply in this

case.    Here, the children in question are toddlers and are not capable of

understanding the proceedings or making their wishes known. The trial court

correctly considered the maturity level of the children and determined that they

could not make their wishes known. Since the children cannot express their

wishes, they did not conflict with the recommendation of the guardian ad litem.

Thus no appointment of separate counsel was necessary. The fourth assignment

of error is overruled.

        {¶22} In her final assignment of error, Amber claims that her parental

rights were terminated because she lacked finances. The law does not permit the

termination of parental rights simply because other parents would be better able to

provide for the child. In re Alexis K., 160 Ohio App.3d 32, 2005-Ohio-1380, ¶22,

825 N.E.2d 1148. “Only where there is a ‘demonstrated incapacity or something

akin to criminal neglect that the law is justified in interfering with the natural



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Case No. 5-09-02, 5-09-03


relations of parent and child.’” Id. citing In re Konneker (1929), 30 Ohio App.

502, 511, 165 N.E. 850. Although Amber’s lack of financial resources may have

hindered her ability to find suitable housing for her children, this was not the

reason the trial court terminated her parental rights.   The trial court instead

focused on her mental health and seeming inability to apply the parenting skills

she learned in her classes. The judgment entry does not indicate that the trial

court’s judgment is based upon her lack of finances in any way. Thus, Amber’s

fifth assignment of error is overruled.

       {¶23} Robert’s first assignment of error alleges that the Agency’s case

plan was not reasonably calculated to reunite the children with him. His second

assignment of error claims that the judgment terminating his parental rights was

against the manifest weight of the evidence. Since these two assignments are

interrelated, they will be addressed concurrently. The case plans set forth four

objectives for Robert and Linda: 1) complete a psychological evaluation; 2)

obtain additional parenting knowledge and skills; 3) possibly obtain community

services; and 4) obtain mental health and substance abuse assessments. This court

notes that the second and third objectives for Robert and Linda were eventually

dismissed by the Agency as not necessary. The first and fourth objectives were

eventually completed by the parties.




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Case No. 5-09-02, 5-09-03


        {¶24} The first objective was to complete a psychological evaluation.

Robert and Linda were both evaluated by Dr. David Connell.                              Robert then

received a second evaluation by Dr. Patrick. April Allison, the second case

worker in this matter, testified that Robert had completed this objective, even

though he had objected to being subjected to the evaluation. Tr. 500. She

believed that Robert was angry with the process and did not understand why he

was not given his sons when they were removed from Amber’s home.9

        {¶25} Robert did attend all of the psychological evaluation appointments

and no diagnosis of mental health issues were found.10 At trial, Dr. Connell

testified that given what he had previously seen, he would not grant Robert

custody of the children. Tr. 103. However, he also testified that this opinion

could change as he had not observed Robert with the children or read records

concerning the interaction of Robert with the children. Tr. 126, 136. Dr. Connell

testified that if Robert had a history of healthy visits, counseling, and drug testing

for a possible drug problem, Robert could effectively parent the children. Tr. 137.

Noticeably, although the social workers and Dr. Connell testified that the children

should not be placed with Robert, they did not testify that the children would be in

danger of abuse or neglect if placed with Robert. Instead, they focused on his


9
    The children have never resided in Robert’s home. They were removed from Amber’s home and no
allegation has ever been made that Robert’s home is inappropriate.
10
     Dr. Connell testified that he believed that Robert was deceitful, self-centered, and may have a drug
problem. However, Dr. Connell did not state that he found any mental illness.


                                                 -21-
Case No. 5-09-02, 5-09-03


inappropriate relationship with the much younger Amber, while being married to

Linda, and possible drug problem.

        {¶26} Dr. Carol Patrick conducted the second psychological evaluation on

Robert. Contrary to Dr. Connell, Dr. Patrick found Robert to be very cooperative

and saw no indication of drug abuse. Tr. 154-56. She found that the successful

unsupervised overnight visits were indicative of Robert’s ability to effectively

parent the children and had no concerns of abuse or neglect. Tr. 158, 197-98.

        {¶27} The fourth objective was to obtain a mental health and substance

abuse evaluation. April Allison, the caseworker from June 2007 until August

2008, testified that Robert was referred to Firelands for these assessments and that

the assessments had been completed. Tr. 513. No follow up treatment was

recommended by Firelands. Tr. 514. Her personal opinion was that Linda and

Robert both needed additional mental health counseling, such as marital

counseling. Tr. 514-15. She also believed that Robert has a drug problem due to

his having been convicted of a drug offense in the 1980’s in Pennsylvania and a

positive drug screen.11 Tr. 516. However, Dr. Connell’s independent testing of

hair     follicle     came        back      negative       for      marijuana,        amphetamines,

methamphetamines, opiates, ecstasy, cocaine, and PCP. CPSU Exhibit 3. Robert

denied all use of illegal drugs or drug abuse.


11
    Robert tested positive for Dilaudid and barbituates in 2008. He tested negative for Percocet for which
he had a prescription. He had no prescription for Dilaudid, which is a pain killer stronger than Percocet.


                                                  -22-
Case No. 5-09-02, 5-09-03


        {¶28} At the trial, the testimony was focused less on Robert’s parenting

abilities and more on his attitude toward the Agency. The relationship between

Robert and the Agency was clearly a combative one. The case workers were

primarily concerned with the inappropriateness of the affair between Robert, a

sixty-something married man, and Amber an 18 year old woman. The testimony

indicated that the case workers suggested that Linda and Robert should seek

marital counseling, they were concerned that Linda was going to leave Robert,

that Robert was too old or sick to care for the children, and that Robert was

denying a drug problem. Because of his drug related conviction more than two

decades ago, the case workers contended that Robert must have a drug abuse

problem despite his denials and two drug tests which were both negative for

illegal and unauthorized prescription drugs.12                  The case plan had required a

mental health and substance abuse assessment and further required that Robert

and Linda follow the recommendations. Robert and Linda had the assessments

and no further services were recommended by the assessors. Although, the case

workers claimed to continue to have concerns, they did nothing to address them

after the assessment. April Allison believed that Robert and Linda needed marital

counseling, but never made it part of any case plan. April testified that she had




12
    Dr. Connell administered a hair follicle test. Firelands also did a drug screen that came back positive
for opiates, which they credited to authorized use of Percocet.


                                                  -23-
Case No. 5-09-02, 5-09-03


concerns and told Robert they should consider counseling, but that was the extent

of her involvement.

       {¶29} Then Kimberly Freetag-Shope, the CASA case manager, testified

that within the two weeks prior to the trial, she had observed Robert and Linda in

their home caring for the boys. She testified that she saw an appropriate family

and that Linda had a positive attitude about her marriage and raising the boys. Tr.

308.   Linda herself testified that although she had many misgivings at the

beginning and was very angry with Robert for his affair, they had worked through

those issues. She testified that she intended to remain in her marriage and that she

desired to have the boys join their family. Tr. 329. She also testified that she

would treat the boys as her own and that her daughter has accepted her brothers

and enjoys having them in the home. Tr. 329, 352. As for the drug abuse

question, no additional tests were ever requested and no additional services were

required. The Agency’s claim of concern about potential drug abuse is belied by

the fact that it was not further addressed by the case plan.

       {¶30} The Agency also never requested medical records to determine the

status of Robert’s health.     In fact, the only direct testimony about whether

Robert’s health limited his ability to parent was that of Kimberly Freetag-Shope.

She observed Robert in his home playing with the boys. She testified that the

home was appropriate, Robert and Linda’s interactions with the boys were



                                         -24-
Case No. 5-09-02, 5-09-03


appropriate, and that she saw no physical limitations on Robert’s ability to care

for the children.    Tr. 305-314.     Linda testified that any of Robert’s health

problems did not impact his ability to parent the boys. Tr. 323. She also testified

that although she and Robert smoke, they have limited the smoking to the garage

so as to not trigger the boys’ asthma. Tr. 346. This claim was confirmed by

Kimberly Freetag-Shope’s testimony that there was no smell of smoke in the

home when she visited. Tr. 311. Linda also testified that she and Robert would

quit smoking if instructed to do so by the court. Tr. 356.

       {¶31} Neal Schroeder, the Harmony House Case Manager testified that

although Robert’s visits were initially sporadic and short, Robert has improved.

During his visits, there were no problems with how Robert parented the children.

Tr. 397. Any issues had to do with rule violations, such as forgetting to turn off a

cell phone. Tr. 400. Prior to the hearing, Robert had progressed from supervised

visits of two hours per week to four hours per week to unsupervised visits, to

overnight unsupervised visits. Robert had even had a face to face visit with the

foster parents at a transfer to discuss the boys medical conditions. This visit was

uneventful and Robert was attentive to what the foster parents told him. Tr. 410.

The GAL recommended granting the Agency permanent custody of the children,

but also testified that if the trial court were to find Robert capable of parenting, he

should be granted custody. Tr. 784, 791.



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Case No. 5-09-02, 5-09-03


       {¶32} In reaching its decision, the trial court based its decision primarily

on the mere speculation of the case workers and Dr. Connell.

       In particular this court is concerned regarding the relationship
       between the child’s natural parents. The father is [Robert], age
       62. The mother is [Amber], age 21, who has a third child in the
       custody of the child’s biological father. The two children who
       are the subject of this case were conceived and born while
       [Robert] was living with his wife of 17 years. * * * [Robert’s]
       current narcotic drug usage is unclear as is his entire life
       history. It is known that [Robert] served several years in prison
       in 1987 after pleading guilty to four counts of Intent to Deliver
       Heroin.

J.E. 3. Although these facts may be offensive to many people, they do not affect

one’s current ability to parent a child. The fact that Robert had an affair which

resulted in the birth of these children may mean he was a lousy husband, but does

not have any bearing on his ability to parent. Likewise, a conviction more than 20

years ago for which the sentence is complete and no other instances of legal

trouble is also irrelevant to whether Robert can effectively parent the children.

Also irrelevant is Robert’s health since no one ever testified that it would interfere

with his ability to parent the children. There was merely speculation that it might

someday. Most noteworthy is that not one of the Agency’s witnesses testified that

the children would be in any danger of neglect, abuse, or dependency if returned

to Robert. All of the case workers and the GAL testified that Robert’s home was

physically appropriate for the children. The sole issue was whether Robert could

parent the children. However, the Agency made no effort to insure that all of the


                                         -26-
Case No. 5-09-02, 5-09-03


speculative concerns about Robert, which formed the basis of the Agency’s case

against Robert, were addressed in any case plan. Robert did everything he was

required to do and complied with the requirements set by the trial court in order to

obtain more visitation. He successfully met the goals set by the trial court and at

the time of the hearing had progressed to unsupervised overnight visits.

       {¶33} Based upon the evidence in the record, the Agency did not make a

good faith effort to provide a case plan which would result in the reunification of

Robert with his sons. Robert’s first assignment of error is sustained. Before a

trial court can terminate parental rights, the Agency must first prove that it has

made a case plan to try and correct the problems and return the children to their

parents.   Since the Agency failed to do so in this case, Robert’s second

assignment of error claiming that the judgment was against the manifest weight of

the evidence, is also sustained.

       {¶34} The judgment of the Court of Common Pleas of Hancock County,

Juvenile Division, is affirmed in part and reversed in part.

                                                   Judgment Affirmed in Part and
                                                                 Reversed in Part

ROGERS, J., concurs.

/jlr




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Case No. 5-09-02, 5-09-03


SHAW, J., concurs in part and dissents in part:

       {¶35} I concur with the majority opinion overruling Amber’s five

assignments of error and affirming the trial court’s judgment as to Amber.

Because I believe the decision of the trial court with regard to Robert was

supported by clear and convincing evidence, which was within the prerogative of

the trial judge and not the appellate court to weigh, I respectfully dissent from the

majority decision to sustain Robert's assignments of error and reverse the trial

court's judgment as to Robert.

       {¶36} The majority decision as to Robert is based primarily upon 1)

criticism by the majority of agency conduct with regard to Robert, 2) an apparent

personal preference by the majority for the testimony of Dr. Patrick over the

testimony of Dr. Connell with regard to Robert’s fitness to parent and 3) an

independent weighing by the majority of the significance of Robert’s criminal

history and drug abuse issues, together with a unique review of the GAL report -

all of which leads the majority of the appellate court to conclusions which are

simply different from the conclusions of the agency, different from the

conclusions of Dr. Connell, different from the conclusions of the GAL, and

different from the conclusions reached by the trial judge upon his evaluation of all

the evidence as trier of fact.




                                        -28-
Case No. 5-09-02, 5-09-03


       {¶37} The testimony and recommendations of the agency, the GAL and

Dr. Connell all clearly supported the trial court’s judgment. However, the trial

judge did not base his decision merely upon those recommendations. On the

contrary, the trial judge considered all of the testimony, including that of Robert’s

wife--which I would note, was particularly insightful both as to Robert’s fitness to

parent and as to the home environment which would be offered to the child if

Robert gained custody. Based upon all of the evidence, the trial judge then made a

number of relevant and thoughtful findings with regard to Robert in paragraphs 5

and 6 of the final judgment entry. The following are particularly instructive:

       “In particular this court is concerned regarding the relationship
       between the child’s natural parents. The father is Robert Essex,
       age 62. The mother is Amber Watson, age 21, who has a third
       child in the custody of the child’s biological father. The two
       children who are the subject of this case were conceived and
       born while Mr. Essex was living with his wife of 17 years. From
       the report of Dr. David Connell (CPSU Exhibit 3) Mr. Essex’s
       marital history, educational background, number of previously
       born children, family background, are unclear and have been
       the subject of contradictory reports offered by him. Mr. Essex
       has been prescribed Percocet for back pain but when tested in
       April 2008 he tested positive for barbiturates and Dilaudid but
       negative for Percocet. Mr. Essex had no prescription for
       Dilaudid, which is a much more powerful drug than Percocet.
       Mr. Essex’s current drug usage is unclear as is his entire life
       history. It is known that Mr. Essex served several years in
       prison in 1987 after pleading guilty to four counts of Intent to
       Deliver Heroin.”

       ***




                                        -29-
Case No. 5-09-02, 5-09-03


       “While the child has been in custody, the parents have had three
       case workers in addition to a parent educator. Despite Mr.
       Essex having several successful unsupervised visitations with the
       child, none of them have recommended a return of the child to
       his home nor have they offered an opinion that the child can be
       returned home anytime within the foreseeable future.”

       ***

       “* * * The father appears to be an inappropriate parent for the
       reasons expressed by Dr. David Connell. Dr. Connell stated
       that while Mr. Essex is an intelligent person, his personality
       traits are indicative of manipulativeness, deceitfulness, lack of
       self-awareness, callous disregard for the feelings of others, and
       serious criminal behavior in his past.”

       ***

       “The court is further aware that it has before it two psychological
       evaluations that arrive at contradictory conclusions. It is this
       court’s responsibility to weigh the evaluations and decide which
       one is the most credible. This court has read both evaluations and
       viewed the testimony of the respective doctors and has concluded
       that the testimony of Dr. Connell is more thorough and
       persuasive.” (Emphasis added.)


      {¶38} In my opinion, the trial court carefully set forth the evidence and

then accurately identified and performed its responsibility to evaluate the

credibility and persuasiveness of that evidence, exactly as it is supposed to do

under the law. Unfortunately, in my view, the majority has simply re-evaluated the

credibility and persuasiveness of this same evidence--as represented in a written

transcript only--and has substituted the personal assessment of the appellate court




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Case No. 5-09-02, 5-09-03


for that of the trier of fact--which is exactly what we are not supposed to do as a

reviewing court under the law.

       {¶39} For all of these reasons, I would overrule Robert’s assignments of

error and affirm the judgment of the trial court in its entirety.

/jlr




                                          -31-
