[Cite as In re: M. H., 2018-Ohio-2973.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                   JUDGES:
                                                   Hon. John W. Wise, P. J.
IN RE:                                             Hon. William B. Hoffman, J.
                                                   Hon. Earle E. Wise, Jr., J.

         M.H.                                      Case No. 18 COA 013

         A MINOR CHILD                             OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No.
                                               20173002


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         July 27, 2018



APPEARANCES:

For Plaintiff-Appellant Mother                 For Defendant-Appellee

EMILY M. BATES                                 CHRISTOPHER R. TUNNELL
46 West Main Street                            PROSECUTING ATTORNEY
Ashland, Ohio 44805                            JOSHUA T. ASPIN
                                               ASSISTANT PROSECUTOR
                                               110 Cottage Street, Third Floor
                                               Ashland, Ohio 44805
Ashland County, Case No. 18 COA 013                                                       2

Wise, John, P. J.

       {¶ 1} Appellant-Mother, J.H., appeals the February 2, 2018, Judgment Entry of

the Court of Common Pleas of Ashland County, Ohio, Juvenile Division, granting

permanent custody of her minor child to Appellee Ashland County Child Protective

Services.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On November 13, 2014, M.H., (age one-year old) and his sibling C.H. (four-

years old) were removed from the home of their mother by Children Services pursuant to

an Ex Parte Order. A shelter care hearing was held in Ashland County Common Pleas

Court, Juvenile Division, and said children were placed in the temporary custody of

Appellee Ashland County Department of Job and Family Services, Children Services

Division ("Children Services"). (11/18/14 Judgment Entry).

       {¶ 3} Also, on November 13, 2014, Children Services filed a complaint alleging

that M.H. is a dependent child and sought temporary custody of him to Children Services.

       {¶ 4} The minor child, M.H. was born on July 2, 2013, to father, J.H., and mother

J.H. Mother is the Appellant in the case at bar. A seven year-old sibling of M.H., C.H.,

was also adjudicated dependent under the facts of this case, but is not a subject of this

appeal. The sibling C.H. suffers from autism, and Mother had indicated at the

commencement of the permanent custody hearing that she believed that permanent

custody was in C.H.'s best interest. The children's mother, J.H., suffers from mental health

and cognitive limitations resulting from a traumatic brain injury. (T.at 79).

       {¶ 5} On January 29, 2015, an Amended Complaint was filed alleging that M.H.

was a dependent child, including additional allegations. After an adjudicatory hearing on
Ashland County, Case No. 18 COA 013                                                     3


January 27, 2015, said child was found dependent pursuant to section 2151.04(C) of the

Ohio Revised Code. (1/29/15 Mag. Dec.).

      {¶ 6} On February 3, 2015, the court heard evidence on disposition. The court

found it in the best interest of M.H. to be placed in the temporary custody of Children

Services and decided accordingly. (2/13/15 Mag. Dec.; 2/27/15 J.E.). On November 25,

2015, following a hearing, the court issued an order extending temporary custody for six

months. On August 18, 2016, Children Services filed a motion seeking Permanent

Custody of the sibling C.H., due in part to C.H.'s special needs. On August 1, 2016

Children Services filed a Motion requesting that M.H. be reunited with his mother.

      {¶ 7} The children have resided in foster care home since their removal from the

home, except for two short time periods. The first instance was when the children were

attempted to be placed with grandparents, and the second when M.H. was placed with

Appellant-Mother in December, 2016.

      {¶ 8} The concerns in this case included the Mother's cognitive abilities and

mental health needs, including the stresses of caring for C.H., a severely autistic child.

The initial issues included home conditions and Mother's being overwhelmed with the

children's needs such that she resorted to restraining them in a stroller and Pack-n-Play

with shoelace material. (T at 249). Additional concerns included the mother's inability to

focus and remain on task while caring for herself and the physical, educational, and

medical needs of the children. (T. at 252-255, 257).

      {¶ 9} Appellant-Mother has cooperated and completed case plan objectives as

requested by Children Services. The case plan included parenting education classes and

mental health counseling for PTSD, depression, and anxiety. (T. at 259, 261).
Ashland County, Case No. 18 COA 013                                                      4


Reunification had been the agency's goal and was attempted when M.H. was placed in

Mother's home on December 2, 2016, on a trial basis. (T. at 277).

       {¶ 10} On December 9, 2016, Caseworker Perkins visited the home for an

announced visit. Id. M.H. was observed acting like a dog. (T. at 278). During this visit,

the caseworker discussed the possibility of enrolling M.H. in preschool. Id. No concerns

were noted for that visit. Id.

       {¶ 11} On December 19, 2016, the Caseworker made an unannounced visit to the

home. Id. She observed that the home was dirty, very cluttered, and that Mother was

babysitting for a one-year old child. (T. at 279). The Caseworker explained to Mother that

the home needed to be better maintained. Id.

       {¶ 12} On January 12, 2017, the Caseworker again made contact following reports

concerning deplorable home conditions and medical issues with M.H. (T. at 280-282).

During the visit on January 12, 2017, the Caseworker observed that Mother appeared

unkempt and unbathed, the apartment extremely dirty and had an odor of “rancid vomit”.

(T. at 284, Jan. 30, 2018 J/E at 11 ¶35). She observed that there was trash everywhere

and curdled food in dishes. Id. Mother blamed the conditions on having recently had

dental work done, on caring for an unrelated one-year old child, on her live-in boyfriend,

on Children Services, and on four-year old M.H. (T. at 286). Also, while the Caseworker

was present at the home on January 12, 2017, she observed that M.H. continued to act

like a dog throughout the visit by crawling around on the floor, picking up things with his

mouth and barking. (T. at 297).

       {¶ 13} The Guardian Ad Litem confirmed the Caseworkers observation, finding the

home to have deteriorated substantially between visits. (Jan. 30, 2018 J/E at 11 ¶36)
Ashland County, Case No. 18 COA 013                                                    5


The GAL observed a strong odor, garbage, trash cans overflowing, dirty dishes, trash

strewn everywhere. Id. The GAL also stated that she was unable to speak with M.H.

because he was acting like a dog and would not talk. Id.

      {¶ 14} When the Caseworker inquired about reports of M.H. having headaches,

Mother claimed that she took him to a doctor, and that M.H. had an ear infection. (T. at

290). However, Mother could not recall which doctor he saw or when she took him. (T. at

289). The Caseworker was later unsuccessful in verifying whether M.H. had seen any

doctor. Id. Mother also admitted that she was caring for the one-year old daily and not

only a couple days per week as she had previously stated to the Caseworker in

December. (T. at 291-292).

      {¶ 15} On January 19, 2017, Children Services filed a motion seeking permanent

custody of M.H. This change in the requested disposition was due to continued issues

that arose during M.H.'s placement in Mother’s home, which only became known in mid-

January, 2017. The hearing on permanent custody was held on multiple days in 2017.

      {¶ 16} On February 2, 2018, the Court filed a Judgment Entry granting Children

Services permanent custody of M.H.

      {¶ 17} Appellant-Mother now appeals, assigning the following error for review:

                                 ASSIGNMENT OF ERROR

      {¶ 18} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST


INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF

PERMANENT       CUSTODY       WAS     AGAINST     THE      MANIFEST    WEIGHT      AND

SUFFICIENCY OF THE EVIDENCE.”
Ashland County, Case No. 18 COA 013                                                           6


                                                   I.

     {¶ 19} Appellant herein argues the trial court erred in awarding Appellee

permanent custody of the minor child. We disagree.

     {¶ 20} As stated by this Court in In the Matter of: S.W., 5th Dist. Stark No.

2016CA00221, 2017-Ohio-807, ¶12:

               [T]he right to raise a child is an 'essential' and 'basic' civil right." In

      re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley

      v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A parent's

      interest in the care, custody and management of his or her child is

      "fundamental." Id.; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388,

      71 L.Ed.2d 599 (1982). The permanent termination of a parent's rights has

      been described as, "* * * the family law equivalent to the death penalty in a

      criminal case." In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.

      1991).     Therefore, parents "must be afforded every procedural and

      substantive protection the law allows." Id.

     {¶ 21} An award of permanent custody must be based upon clear and convincing

evidence. R.C. §2151.414(B)(1). The Ohio Supreme Court has defined “clear and

convincing evidence” as “[t]he 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, 103-104, 495 N.E.2d

23 (1986).
Ashland County, Case No. 18 COA 013                                                        7


                                      Standard of Review

     {¶ 22} The Ohio Supreme Court has delineated our standard of review as follows:

             Where 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 facts had sufficient evidence before it to satisfy the

      requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526,

      Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v. Rimenik, 115

      Ohio St. 11, 152 N.E. 14. Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.

      2d 118 (1954).

     {¶ 23} A court of appeals will affirm the trial court's findings “if the record contains

competent, credible evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements for a termination of parental rights have

been established.” In re Adkins, 5th Dist. Nos. 2005AP06–0044 and 2005AP07–0049,

2006-Ohio-431, 2006 WL 242557, ¶17.

     {¶ 24} In Cross, the Supreme Court further cautioned:

             The mere number of witnesses, who may support a claim of one or

     the other of the parties to an action, is not to be taken as a basis for resolving

     disputed facts. The degree of proof required is determined by the impression

     which the testimony of the witnesses makes upon the trier of facts, and the

     character of the testimony itself. Credibility, intelligence, freedom from bias

     or prejudice, opportunity to be informed, the disposition to tell the truth or

     otherwise, and the probability or improbability of the statements made, are

     all tests of testimonial value. Where the evidence is in conflict, the trier of
Ashland County, Case No. 18 COA 013                                                   8

     facts may determine what should be accepted as the truth and what should

     be rejected as false. See Rice v. City of Cleveland, 114 Ohio St. 299, 58

     N.E.2d 768. Cross, 161 Ohio St. at 477-478. (Emphasis added).

                      Requirements for Permanent Custody Awards

     {¶ 25} R.C. §2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. §2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon filing of a motion for permanent custody of

a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

     {¶ 26} Following the hearing, R.C. §2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to

grant permanent custody to the agency, and 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
Ashland County, Case No. 18 COA 013                                                   9


      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; or

             (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.

             (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.

     {¶ 27} Therefore, R.C. §2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

§2151.414(B)(1)(a) through (d) is present before proceeding to a determination

regarding the best interest of the child.
Ashland County, Case No. 18 COA 013                                                      10


          Parental Placement within a Reasonable Time – R.C. §2151.414(E)(1).

     {¶ 28} The court must consider all relevant evidence before determining the child

cannot be placed with either parent within a reasonable time or should not be placed

with the parents. R.C. §2151.414(E). The statute also indicates that if the court makes

a finding under R.C. §2151.414(E)(1)-(15), the court shall determine the children cannot

or should not be placed with the parent. A trial court may base its decision that a child

cannot be placed with a parent within a reasonable time or should not be placed with a

parent upon the existence of any one of the R.C. §2151.414(E) factors. The existence

of one factor alone will support a finding that the child cannot be placed with the parent

within a reasonable time. See In re William S., 75 Ohio St.3d 95, 1996–Ohio–182, 661

N.E.2d 738; In re Hurlow, 4th Dist. Gallia No. 98 CA 6, 1997 WL 701328 (Sept. 21, 1998);

In re Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr. 10, 1991).

     {¶ 29} R.C. §2151.414(E) sets forth factors a trial court is to consider in

determining whether a child cannot be placed with either parent within a reasonable

period of time or should not be placed with the parents. Specifically, Section (E) provides,

in pertinent part, as follows:

             (E) In determining at a hearing held pursuant to division (A) of this

      section or for the purposes of division (A)(4) of section 2151.353 of the

      Revised Code 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 or for the purposes of division (A)(4) of section 2151.353 of the
Ashland County, Case No. 18 COA 013                                                   11


     Revised Code 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

     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 changing parental conduct to allow them to resume and

     maintain parental duties.

            (2) Chronic mental illness, chronic emotional illness, intellectual

     disability, 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 or for the purposes of division (A)(4) of section 2151.353 of the

     Revised Code;

            ***
Ashland County, Case No. 18 COA 013                                                    12


             (10) The parent has abandoned the child.

             ***

             (16) Any other factor the court considers relevant.

     {¶ 30} R.C. §2151.414(D) requires the trial court to consider all relevant factors in

determining whether the child’s best interests would be served by granting the

permanent custody motion.        These factors include but are not limited to: (1) the

interrelationship of the child with others; (2) the wishes of the child; (3) the custodial

history of the child; (4) the child’s need for a legally secure placement and whether such

a placement can be achieved without permanent custody; and (5) whether any of the

factors in divisions (E)(7) to (11) apply.

     {¶ 31} In this case, the trial court made its permanent custody findings pursuant to

R.C. §2151.414(E)(1) and/or (16), since Mother had not remedied the conditions which

led to M.H.’s removal and Mother was also unable to meet the special needs of the child.

     {¶ 32} As set forth above, the trial court’s findings are based upon competent

credible evidence. The record includes the recommendation of the guardian ad litem for

the child, and the testimony of the witnesses at trial. The trial court was in the best

position to determine the credibility of the witnesses.

     {¶ 33} In the case sub judice, the trial court found by clear and convincing evidence

that M.H. had been in the temporary custody of a public children services agency for

twelve or more months of a consecutive twenty-two month period pursuant to R.C.

§2151.414(B)(1)(d).
Ashland County, Case No. 18 COA 013                                                          13


        {¶ 34} This finding alone, in conjunction with a best interest finding, is sufficient to

support the grant of permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118,

2008–Ohio–5458, ¶ 45.

        {¶ 35} However, even if we consider Mother’s arguments, we find the trial court

did not err in determining the child cannot be placed with Mother at this time or within a

reasonable period.

        {¶ 36} Based upon the foregoing, as well as the entire record in this case, the court

properly found M.H. could not or should not be returned to Mother within a reasonable

time.

                          Best Interests – R.C. §2151.414(D)(2)(a) – (d)

        {¶ 37} Here, the trial court found, pursuant to R.C. §2151.414(E) that granting

permanent custody to the Agency was in the best interest of the minor child.

        {¶ 38} The trial court found that while the evidence demonstrated the Mother has

been compliant with her case plan, the conditions which led to M.H being removed from

the home have not been remedied. Despite offering numerous services, Mother is unable

to mitigate the concerns that led to the child's removal. Mother has a traumatic brain

injury, which through no fault of her own, has caused the problems evident in this case.

During the short trial period when the child was placed back in Mother’s home, M.H.

regressed in almost every way. (JE at 19-20). Reasonable efforts were made by the

Agency, but attempts at reunification failed. (JE at 21).

        {¶ 39} The court found that M.H., while bonded with Mother, is also bonded with

his foster mother with whom he has resided for most of his life. (J/E at 19). The court

found that father has abandoned the minor child, as defined in R.C. 2151.414(E)(10).
Ashland County, Case No. 18 COA 013                                                    14


     {¶ 40} The court found that M.H. has a great and immediate need for a legally

secure placement. (JE at 20).

     {¶ 41} In the case of In re: Summerfield, 5th Dist. Stark No. 2005CA00139, 2005-

Ohio-5523, this Court found where, despite marginal compliance with some aspects of

the case plan, the exact problems that led to the initial removal remained in existence, a

court does not err in finding the child cannot be placed with the parent within a

reasonable time.

                                         Conclusion

     {¶ 42} For these reasons, we find that the trial court’s determination that Mother

had failed to remedy the issues that caused the initial removal and therefore the child

could not be placed with her within a reasonable time or should not be placed with her

was based upon competent credible evidence and is not against the manifest weight or

sufficiency of the evidence.

     {¶ 43} We further find that the trial court’s decision that permanent custody to

Children’s Services was in the child's best interest was based upon competent, credible

evidence and is not against the manifest weight or sufficiency of the evidence.

     {¶ 44} Additionally, based on the foregoing, this Court finds that the trial court’s

application of R.C. §2151.414 was not in error.
Ashland County, Case No. 18 COA 013                                                 15


      {¶ 45} Because the evidence in the record supports the trial court’s judgment, we

overrule Mother’s assignment of error, and affirm the decision of the Court of Common

Pleas, Juvenile Division, Ashland County, Ohio.


By: Wise, John, P. J.

Hoffman, J., and

Wise, Earle, J., concur.




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