[Cite as In re M.C., 2013-Ohio-4679.]


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

IN RE: M.C.                                         C.A. Nos.     26927
                                                                  26936


                                                    APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
                                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
                                                    CASE No.   DN 11-01-68

                                 DECISION AND JOURNAL ENTRY

Dated: October 23, 2013



        BELFANCE, Presiding Judge.

        {¶1}    Appellants, Dominique W. (“Mother”) and Javan C. (“Father), appeal from a

judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated

their parental rights and placed their minor child in the permanent custody of Summit County

Children Services Board (“CSB”). For the reasons that follow, this Court affirms.

                                               I.

        {¶2}    Mother and Father are the natural parents of M.C., born July 7, 2008. M.C. has

been diagnosed with cerebral palsy and dysphagia, a swallowing condition that can cause her to

vomit and/or aspirate food into her lungs. She requires ongoing medical attention from a variety

of medical doctors and therapists and also requires special care in the home to meet her daily

needs. This case began because Mother had not been taking M.C. to necessary medical and

therapy appointments on a consistent basis, was not properly caring for her in the home, and

M.C. was seriously underweight.
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       {¶3}    On January 27, 2011, CSB filed a complaint, alleging that M.C. was a neglected

and dependent child. Although CSB initially sought and obtained protective supervision while

M.C. remained in the home, M.C. was removed from the home three months later because

Mother was not working on the goals of the voluntary case plan. Mother’s older child, who does

not have special medical needs, was also removed from the home but was later returned to

Mother’s custody and is not a party to this appeal.

       {¶4}    In addition to the medical treatment and therapy for her cerebral palsy, M.C.’s

dysphagia requires that her caretaker feed her primarily through a gastrostomy tube. M.C. also

takes some food orally, so her caretaker must be careful to feed her only thickened foods and to

do so while she is propped up in a sitting position, to help avoid regurgitation of her food.

Moreover, M.C. is a “silent aspirator,” which means that she lacks the typical violent cough

reflex that most people have to prevent them from aspirating food into their lungs.

Consequently, M.C.’s caretakers must know how to recognize her subtle queues that she might

be aspirating, such as turning her head, arching her eyebrows, or frowning, and know when to

stop feeding M.C. and when to seek the assistance of medical professionals.

       {¶5}    CSB believed that untreated mental illness was contributing to Mother’s inability

to get M.C. to her necessary appointments, so mental health treatment was a primary component

of the case plan. Mental health professionals later confirmed that Mother’s untreated depression

caused her to become “overwhelmed” and/or unmotivated and interfered with her ability to

manage all that she had to do to meet M.C.’s special needs. Mother began taking a prescribed

antidepressant medication and started counseling to work on developing time-management and

problem-solving skills. Although Mother made some progress in counseling, she attended less

than half of her scheduled appointments. Her counseling case was eventually closed due to her
                                                3


high rate of absences. Mother later conceded that she had also stopped taking medication or

seeing a psychiatrist because she did not believe that the medication helped her.

       {¶6}    Father has had minimal involvement with M.C. He had no relationship with M.C.

prior to her removal from the home because he was serving a four-year prison sentence for an

aggravated robbery conviction at the time she was born. He remained in prison throughout most

of this case and has met M.C. only two times, during supervised visits shortly before the

permanent custody hearing. Although he completed anger management classes in prison, he had

not addressed his history of substance abuse.

       {¶7}    CSB eventually moved for permanent custody of M.C. Following a hearing on

that motion and the alternative motions for legal custody to Mother or Father, the trial court

found that M.C. had been in the temporary custody of CSB for more than 12 of the prior 22

months and that permanent custody was in her best interest. Mother and Father separately

appealed, and their appeals were later consolidated. They each assign one error, which will be

addressed together because they are similar.

                                                II.

                           FATHER’S ASSIGNMENT OF ERROR

       THE TRIAL COURT’S DECISION TO GRANT THE STATE’S MOTION FOR
       PERMANENT CUSTODY IS NOT SUPPORTED BY CLEAR AND
       CONVINCING EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

                          MOTHER’S ASSIGNMENT OF ERROR

       THE TRIAL COURT’S DENIAL OF MOTHER’S MOTION FOR LEGAL
       CUSTODY OF M.C. WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE AND IS REVERSIBLE ERROR.

       {¶8}    Father and Mother argue that the trial court’s permanent custody decision was not

supported by the evidence presented at the hearing. Before a juvenile court may terminate
                                                 4


parental rights and award to a proper moving agency permanent custody of a child, it must find

clear and convincing evidence of both prongs of the permanent custody test that: (1) the child is

abandoned, orphaned, has been in the temporary custody of the agency for at least 12 months of

the prior 22 months, or that the child cannot be placed with either parent within a reasonable time

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

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

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

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

       {¶9}    The trial court found that the first prong of the permanent custody test had been

satisfied because M.C. had been in the temporary custody of CSB for more than 12 of the prior

22 months. See R.C. 2151.414(B)(1)(d). Neither parent contests that finding. Instead, they

challenge the trial court’s best interest finding. Mother asserts that the trial court should have

returned M.C. to her custody.      In his assignment of error, Father challenges the evidence

supporting the trial court’s decision, yet he also argues on appeal that he had insufficient time to

work a case plan because he was released from prison only two weeks before the permanent

custody hearing. He did not raise such an argument in the trial court, however. At the hearing,

his counsel explicitly recognized that the trial court was without authority to extend temporary

custody because the two-year sunset date had already passed. See R.C. 2151.353(F); R.C.

2151.415(D)(4). Consequently, Father’s trial counsel did not request an extension of temporary

custody or make any other argument that he should be accorded more time to work toward

reunification under the circumstances. Instead, he requested that the court consider Father as a

custodian for M.C. Consequently, this Court limits its review to whether the trial court’s

conclusion that it was in the best interest of M.C. to be placed in the permanent custody of CSB,
                                                    5


rather than in the custody of either of her parents, was against the manifest weight of the

evidence.

          {¶10} When determining whether a grant of permanent custody is in the children’s best

interests, the juvenile court must consider the following factors:

          (a) The interaction and interrelationship of the child with the child’s parents,
          siblings, relatives, foster caregivers and out-of-home providers, and any other
          person who may significantly affect the child;

          (b) The wishes of the child, as expressed directly by the child or through the
          child’s guardian ad litem, with due regard for the maturity of the child;

          (c) The custodial history of the child, including whether the child has been in the
          temporary custody of one or more public children services agencies or private
          child placing agencies for twelve or more months of a consecutive twenty-two-
          month period * * *;

          (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 * * *.

R.C. 2151.414(D)(1)(a)-(d).1

          {¶11} Although most witnesses agreed that there was a bond between Mother and M.C.,

they further observed that Mother did not engage in much communication or loving interaction

with M.C. The primary evidence about Mother’s interaction with M.C. focused on her ability to

provide for the child’s special medical needs. Improving Mother’s ability to meet M.C.’s special

needs was the primary reunification goal of the case plan. CSB connected Mother with service

providers who could help her make and keep track of M.C.’s appointments, arrange

transportation to all of the appointments, and learn to provide proper care for her in the home.




1
    The factor set forth in R.C. 2151.414(D)(1)(e) does not apply to the facts of this case.
                                                6


       {¶12} One of M.C.’s treating professionals who testified was a licensed speech

pathologist who performed some of M.C’s swallow tests and was in charge of M.C.’s out-patient

oral feeding evaluations and follow-up therapies. She testified that M.C. requires a caretaker

who will “consistently pay attention to her,” get her to all necessary medical appointments, and

be able to put M.C.’s needs ahead of her own. She explained that Mother’s participation in

M.C.’s feeding therapy was inconsistent. Although Mother was encouraged to attend all of

M.C.’s medical and therapy appointments during this case, the evidence demonstrated that she

attended only about half of them, came late to several, and did not actively participate when she

did attend.

       {¶13} By the time of the permanent custody hearing, M.C. was attending regular

appointments with her primary care doctor as well as multiple medical specialists, nutritionists,

and therapists. M.C. required a caretaker who could get her to all of her appointments on a

consistent basis and also be able to administer regular physical therapy at home, correctly brace

her legs as needed, feed her correctly by mouth and through the g-tube, and provide any

additional special care that she may need. It was not disputed that the home procedures were not

difficult to learn, but it was essential that they be done correctly and consistently or M.C. could

suffer adverse health consequences. Several witnesses testified that Mother’s ability to care for

M.C. did not show significant improvement and that they had to continually correct Mother

because she was feeding and bracing M.C. incorrectly.

       {¶14} As noted above, M.C. received nutrition both through the g-tube and orally

through manual feeding. The speech pathologist continually reminded Mother that M.C. must sit

up straight when engaging in manual feeding to allow M.C. to swallow correctly.                She

encouraged Mother to get a special chair or feed M.C. in a highchair with rolled towels
                                               7


supporting her, but Mother continued to feed M.C. incorrectly, apparently not appreciating the

important safety concerns in proper positioning of M.C. while she ate.        Several witnesses

continued to observe Mother feeding M.C. while she was lying down or slumped in an umbrella

stroller.   Mother also failed to show improvement in her ability to keep track of M.C.’s

appointments. Rather than scheduling the appointments herself and noting them in a notebook or

calendar, she chose instead to rely on the foster mother to make the appointments and remind her

to attend each one. Mother testified that she had missed some of the medical appointments

because the foster mother did not remind her until an hour or two before the appointment.

        {¶15} Mother also attributed some of her absences to the fact that she needed to get to

Akron Children’s Hospital from her home in Twinsburg, but she did not have a vehicle and there

was infrequent bus service between Twinsburg and Akron. She also missed appointments

because they did not always coincide with her older child’s school schedule. Although the

caseworker attempted to connect Mother with church groups and other providers who could

assist her with transportation and/or provide child care, Mother did not take advantage of those

opportunities. At the hearing, she testified that she would try to move back to Akron if M.C.

were returned to her home, which would make her “whole life better, transportation and

everything.”

        {¶16} M.C. often had more than one appointment on the same day, to be more

convenient for Mother, M.C., and the foster Mother, but Mother still did not attend regularly. In

fact, she would sometimes attend one appointment on a given day but not attend the other

appointment or appointments that were scheduled almost immediately afterward. According to

her former counselor, Mother became overwhelmed when M.C. had several appointments on the

same day.
                                                8


       {¶17} Because Mother missed so many of the medical and therapy appointments, she

did not stay abreast of M.C.’s changing needs, nor did she develop the skills required to care for

M.C. in her home. Moreover, Mother’s inability to regularly attend the appointments by herself

strongly suggested that she lacked the ability to handle the additional challenge of transporting

her disabled child to and from all of the appointments.

       {¶18} Father’s relationship with M.C. and ability to care for her was even less

developed. Because he had been incarcerated throughout most of M.C.’s life, his interaction

with her had been confined to two supervised visits shortly before the permanent custody

hearing. He had not attended any of her medical or therapy appointments or otherwise learned

how to care for any of her special needs. Because his interaction with M.C. had been so limited,

he had not developed any bond with her, nor did he know how to provide for her basic or special

medical needs.

       {¶19} The guardian ad litem spoke on behalf of M.C., offering her opinion that

permanent custody was in her best interest. Based on the guardian’s interaction with Mother and

her observations of Mother attempting to provide care for M.C., she did not believe that Mother

had the ability to adequately address M.C.’s special medical needs. Because Father had been out

of prison for such a short time, the guardian had not had the opportunity to observe him with

M.C.

       {¶20} At the time of the hearing, M.C. had been living outside Mother’s home in

temporary placements for nearly two years.          During that same period, despite help from

numerous service providers, Mother had made little progress improving her ability to meet

M.C.’s special needs. Neither parent was prepared to provide for M.C.’s long-term needs at the

time of the permanent custody hearing and CSB had been unable to find any suitable relative
                                                 9


who was able to do so. Consequently, the court reasonably concluded that M.C. was in need of a

legally secure permanent placement, which could only be achieved by placing her in the

permanent custody of CSB.

       {¶21} There was ample evidence before the trial court to support its conclusion that

permanent custody was in the best interest of M.C., and, thus, we cannot conclude that its

decision was against the manifest weight of the evidence. Mother’s and Father’s assignments of

error are overruled.

                                                III.

       {¶22} The parents’ assignments of error are overruled. The judgment of the Summit

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

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

mailing in the docket, pursuant to App.R. 30.
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       Costs taxed to Appellant.




                                                      EVE V. BELFANCE
                                                      FOR THE COURT



HENSAL, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶23} I respectfully dissent. Although Father may not have properly raised an argument

that he should have been granted more time to work on a case plan, I would find merit in his

challenge to the weight of the evidence supporting the trial court’s decision. Specifically, the

trial court found that “[n]either parent has made significant progress on their case plan objectives

to allow them to assume custody of [M.C.]” This finding was not supported by the record

insofar as it pertained to Father. The original case plan included no goals for Father and he was

removed from the case plan the first time it was amended. CSB’s reason for removing him was

merely that “[Father] is in prison” and that it “can not provide services to [him], at this time.”

       {¶24} Father would have been unable to participate in certain reunification services such

as visiting M.C. or attending her medical and therapy appointments, and his incarceration may

have affected the reasonableness of efforts to be exerted by CSB, but it is unclear why his

incarceration in an Ohio prison justified excluding him from the case plan altogether. He had not

been convicted of any crime that would justify a lack of reasonable case planning efforts under

R.C. 2151.419(A)(2). Although I recognize that M.C. requires a caregiver who is able to provide
                                               11


for her special medical needs on a consistent basis, Father also has a fundamental right to raise

his child, which appears to have been overlooked in this case.


APPEARANCES:

LEONARD J. BRIEDING, Attorney at Law, for Appellant.

GREGORY PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

JOSEPH KERNAN, Attorney at Law, for Guardian ad litem.
