[Cite as In re B.P., 2012-Ohio-1278.]




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


IN THE MATTER OF:

        B.P.,                                  CASE NO. 5-11-33

ALLEGED NEGLECTED AND
DEPENDENT CHILD.
                                               OPINION
[NICOLE PFISTER-APPELLANT]
[BRIAN PFISTER-APPELLANT]


IN THE MATTER OF:

        C.P.,                                  CASE NO. 5-11-34

ALLEGED NEGLECTED AND
DEPENDENT CHILD.
                                               OPINION
[NICOLE PFISTER-APPELLANT]
[BRIAN PFISTER-APPELLANT]


IN THE MATTER OF:

        M.C.,                                  CASE NO. 5-11-35

ALLEGED NEGLECTED AND
DEPENDENT CHILD.
                                               OPINION
[NICOLE PFISTER-APPELLANT]
[BRIAN PFISTER-APPELLANT]
Case Nos. 5-11-33, 5-11-34 and 5-11-35




            Appeals from Hancock County Common Pleas Court
                              Juvenile Division
             Trial Court Nos. 20930049, 20930050 and 20930048

                             Judgments Affirmed

                      Date of Decision: March 26, 2012




APPEARANCES:

      Charles R. Hall, Jr. for Appellants

      Mark C. Miller and Benjamin E. Hall for Appellee, Hancock Co.
      Prosecutor’s Office

      Carroll Creighton, GAL, CASA



PRESTON, J.

      {¶1} Parents-appellants, Nicole and Brian Pfister (“Nicole” and “Brian”),

appeal the Hancock County Court of Common Pleas Juvenile Division’s decision

granting the Hancock County Job and Family Services-Children’s Protective

Services Unit (“CPSU”)’s motions for permanent custody of their three minor




                                      -2-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


children, B.P., C.P., and M.C.1 For the reasons that follow, we affirm.

         {¶2} On November 17, 2009, B.P., who was three years old, was found in

the street in front of Nicole and Brian’s home. (Aug. 23, 2011 Tr. at 26-27). B.P.

was only wearing a urine soaked diaper. (Id.). Police officers took B.P. and

returned him to Nicole and Brian, who were asleep. (Id.).

         {¶3} On November 20, 2009, B.P. was again found on the street wearing

only a diaper soaked in urine. (Id.). The police removed B.P, C.P., and M.C. from

Nicole and Brian’s home. (Doc. Nos. 1, 1, 1).2 At the time of the removal, Nicole

and Brian provided dirty clothes for the children. (Aug. 23, 2011 Tr. at 30). B.P.

and C.P’s shoes were too small, and M.C. only had sandals. Id. Both B.P. and

C.P. had bleeding diaper rashes. Id. B.P’s toes were also bruised and smashed

from canned goods he had dropped on them approximately one to two months

prior. Id. Nicole and Brian did not supply medication for any of the children. Id.

         {¶4} On November 23, 2009, CPSU filed motions for predispositional

orders for B.P., C.P., and M.C. (Doc. Nos. 1, 1, 1). The juvenile court held a




1
  At the permanent custody hearing, C.P.’s birth certificate was admitted into evidence showing his initials
are K.P. and the court’s caption of C.P. was incorrect. (Aug. 23, 2011 Tr. at 22). We will continue to refer
to K.P. as C.P. to remain consistent with the court documents in this case. Additionally, Nicole and Brian
refer to M.C. as M.P. in their fifth assignment of error. Testimony indicated that at the time of the hearing,
M.C.’s name had recently been changed to M.P. (Id. at 19). We will also refer to M.P. as M.C. to remain
consistent with the court documents.
2
  Since there are three separate trial court case numbers involving each child, citations to the record will
have three docket numbers, one for each case, even though many of the docket numbers are identical. The
first number will refer to B.P. in appellate case number 5-11-33, the second will refer to C.P. in case
number 5-11-34, and the third will refer M.C. in case number 5-11-35.

                                                     -3-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


hearing on November 25, 2009 and placed the children in CPSU’s emergency

temporary custody. (Doc. Nos. 6, 6, 6).

       {¶5} On December 21, 2009, the juvenile court appointed Rhonda Braun

(“Braun”) to serve as the children’s guardian ad litem (“GAL”). (Doc Nos. 10, 10,

10).

       {¶6} The juvenile court held an adjudication hearing on January 7, 2010

and found the children were neglected and dependent. (Doc. Nos. 13, 13, 13). On

February 11, 2010, the court held a dispositional hearing and placed the children

in the temporary custody of CPSU. (Doc. Nos. 15, 15, 15).

       {¶7} On November 19, 2010, the juvenile court granted a six month

extension on the case. (Doc. Nos. 20, 20, 20).

       {¶8} CPSU filed for permanent custody of all three children on April 19,

2011. (Doc. Nos. 31, 31, 31). The parties participated in mediation on August 9,

2011 but failed to reach an agreement. (Doc. Nos. 42, 42, 44).

       {¶9} On August 16, 2011, the court appointed Carroll Creighton to serve as

independent counsel for the children. (Doc. Nos. 43, 43, 45).

       {¶10} The juvenile court held a permanent custody hearing on August 23

and 24, 2011. (Doc. Nos. 47, 47, 48). On August 26, 2011, the court granted

CPSU’s motion for permanent custody. (Id.).




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Case Nos. 5-11-33, 5-11-34 and 5-11-35


       {¶11} On September 23, 2011, Nicole and Brian filed their notices of

appeal and now raise five assignments of error for our review. For purposes of our

discussion, we will address their second assignment of error first.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN GRANTING PERMANENT
       CUSTODY FOR THE CHILDREN BECAUSE IT WAS NOT
       IN THEIR BEST INTEREST

       {¶12} In their second assignment of error, Nicole and Brian argue the

juvenile court erred in determining that granting permanent custody to CPSU was

in the children’s best interest. Nicole and Brian contend that they maintained

visitation with their children while they were in CPSU’s temporary custody, that

the children are bonded to them, and that the children did not express a desire for

the court to grant CPSU’s motions for permanent custody.

       {¶13} The right to raise one’s own child is a basic and essential right. In re

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

interest” in the care, custody, and management of their children that is protected

by law. Id.    However, parental rights and interests in their children are not

absolute. In the Matter of Thomas, 3d Dist. No. 5-03-08, 2003-Ohio-5885, ¶ 7.

These rights may be terminated under appropriate circumstances and when the

trial court has met all due process requirements. In re Leveck, 3d Dist. Nos. 5-02-

52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶ 6. “When considering a motion to


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


terminate parental rights, the trial court must comply with the statutory

requirements set forth in R.C. 2151.414.” In the Matter of C.E., 3d Dist. Nos. 5-

09-02, 5-09-03, 2009-Ohio-6027, ¶ 14.

       {¶14} According to R.C. 2151.414(B)(1), a court may grant permanent

custody of a child to the agency that filed the motion if the court determines by

clear and convincing evidence that it is in the child’s best interest and that 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 * * *.” When determining whether granting

permanent custody to the agency is in the best interest of the child, the court must

consider all of the relevant factors listed in R.C. 2151.414(D)(1), including:

       (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


                                         -6-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


      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.

Additionally, R.C. 2151.414(E) requires the court to consider all of the relevant

evidence when determining whether a child can be placed with either parent

within a reasonable time. In pertinent part, the court must find that the child

cannot or should not be placed with either parent if it determines by clear and

convincing evidence that:

      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,


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


       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. R.C. 2151.414(E)(1).

       {¶15} Clear and convincing evidence is “that measure or degree of proof

which will produce in the mind of the trier of facts a firm belief or conviction as to

the allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477

(1954), citing Merrick v. Ditzler, 91 Ohio St. 256 (1915). The Supreme Court of

Ohio has defined clear and convincing evidence as an intermediate standard,

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

is required beyond a reasonable doubt as in criminal cases.” Id. This Court must

“determine whether the evidence was sufficient for the trial court to make its

findings by a clear and convincing degree of proof.” In the Matter of Lane, 3d

Dist. Nos. 9-03-61, 9-03-62, 2004-Ohio-2798, ¶ 27.

       {¶16} In the present case, the parties stipulated that the children had been in

CPSU’s temporary custody for at least 12 of a consecutive 22 month period. (Aug.

23, 2011 Tr. at 10). Consequently, the sole issue before the juvenile court was

whether granting CPSU’s motion for permanent custody was in the children’s best

interest.




                                         -8-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


      {¶17} The juvenile court found by clear and convincing evidence that

granting permanent custody to CPSU was in the children’s best interest. (Doc.

Nos. 47, 47, 48). The court stated that it considered all of the relevant factors in

R.C. 2151.414, including “the relationship of the children with their parents,

relatives, foster parents, out-of-home providers and other people who may

significantly affect the children’s need for legally secure permanent placement and

the probability that this type of placement can be achieved only through the

granting of permanent custody.” (Id.).

      {¶18} In making its decision, the court relied on the lengthy period of time

the children had been in CPSU’s custody without any improvement in Nicole and

Brian’s parenting skills and the number of services CPSU made available,

including: case management; information and referral; transportation; life skills

group, home based therapy; domestic violence and substance abuse counseling;

developmental assessments; supervised visitation; unsupervised visitation; and

extended unsupervised visitation. (Id.). The juvenile court found that Nicole failed

to participate in the domestic violence counseling and failed to complete the life

skills group as required by the case plan. (Id.). The court also found that Brian

failed to complete the required substance abuse counseling. (Id.). The court noted

that CPSU had provided the parents with transportation to their appointments and




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Case Nos. 5-11-33, 5-11-34 and 5-11-35


the local mental health and substance abuse agency was within walking distance of

their home. (Id.).

       {¶19} The court also relied on incidents that occurred during Nicole and

Brian’s unsupervised visitation with the children. (Id.). The court found that the

parents failed to provide one of the children with a required breathing treatment

despite having been warned of its importance. (Id.). The court further found that

Nicole and Brian failed to meet an appointment with the foster mother because

they overslept and that Brian kicked a hole in the apartment wall “in a fit of

anger.” (Id.).

       {¶20} Additionally, the court considered issues addressed in a letter the

caseworker sent to the Assistant Prosecuting Attorney as well as the GAL’s

recommendation that the court grant permanent custody of the children to CPSU.

(Id.). The juvenile court ultimately determined that Nicole and Brian had failed to

change and address the problems that had caused the children’s removal from their

home. (Id.). The court stated, “[t]he children need to get on with their lives and

the only way to permit that to happen is to grant permanent custody to the agency.

There is little hope that the situation will improve with the passage of time.” (Id.).

       {¶21} The juvenile court’s decision is supported by the record. The parties

stipulated that CPSU had created a case plan that was “reasonably calculated to

correct the reasons the children were removed.” (Aug. 23, 2011 Tr. at 10). Mark


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


Olthouse (“Olthouse”), Nicole and Brian’s caseworker, testified at length

regarding CPSU’s case plan. Olthouse stated that he had created the case plan in

conjunction with Nicole, Brian, and the GAL, and had reviewed the case plan with

the parents during his monthly home visits. (Id. at 49-51).

       {¶22} The first objective of the case plan was that Nicole and Brian were to

provide a safe and stable home environment for the children. (Id. at 56). Olthouse

testified that the parents achieved this objective. (Id. at 57).

       {¶23} The second objective required Nicole and Brian to obtain mental

health, intellectual functioning, and substance abuse assessments. (Id.). They were

also required to follow all recommendations made pursuant to the assessments.

(Id.). Olthouse testified that this objective was important because Brian admitted

he had previously abused prescription drugs and was receiving treatment in

Toledo. (Id. at 58). CPSU was concerned because Nicole was also diagnosed with

depression. (Id.).    Olthouse testified that Nicole and Brian completed the

assessments but did not follow through on the recommendations. (Id.). Brian was

required to attend substance abuse and anger management counseling at Century

Health, located a few blocks from their home. (Id. at 60).         Brian had thirty

scheduled appointments and missed ten of them. (Id. at 159). Century Health

terminated Brian’s case in June of 2011 due to missed appointments. (Id. at 59).

Nicole was prescribed medication to treat her depression but failed to renew the


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


prescriptions. (Id. at 61). As part of her mental health treatment, Nicole was

referred to Open Arms for domestic violence counseling. (Id. at 63-64). Kelly

Mendoza (“Mendoza”), a case manager with Open Arms, testified that Nicole was

required to participate in a victims’ support group that would meet once a week for

20 weeks. (Id. at 191). Mendoza stated that Nicole completed the intake and first

group session. (Id. at 192-194).      Subsequently, Mendoza arranged to have

individual sessions with Nicole to accommodate her work schedule. (Id. at 195).

Nicole failed to attend any of the individual sessions. (Id. at 195-198). Olthouse

testified that Nicole and Brian did not successfully complete the second objective.

(Id. at 58-59).

       {¶24} The third objective required Nicole and Brian to gain additional

parenting knowledge and skills. (Id. at 74). Olthouse testified that CPSU intended

the objective to address the supervision of the children, specifically B.P., who has

special needs. (Id.). CPSU provided both home based therapy for the entire family

and play therapy for the children. (Id. at 75). The parents were also required to

attend parenting sessions with a doctor at Safe Harbor to address B.P.’s specific

behavioral problems. (Id. at 76-77).       Olthouse testified that there was no

improvement in Nicole and Brian’s parenting skills, and that they failed to attend




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Case Nos. 5-11-33, 5-11-34 and 5-11-35


all of the required sessions. (Id. at 74-77). Olthouse testified that they failed to

complete the third objective. (Id. at 75).3

         {¶25} The fourth objective required Nicole and Brian to gain additional life

skills. (Id. at 83). Nicole and Brian were required to attend twelve life skills group

sessions at Century Health. (Id. at 83-85). CPSU modified this objective for Brian

to require him to focus on his substance abuse treatment rather than attending the

life skills group classes. (Id. at 85). Century Health also modified the life skills

classes for Nicole. (Id. at 85). Robin Brown (“Brown”), a therapist at Century

Health, testified that Nicole was unable to start the life skills group classes because

of her depression. (Id. at 153). Brown provided Nicole with individual therapy

instead. (Id.).       Nicole disclosed to Brown that Brian was controlling and

emotionally abusive. (Id. at 154). Brown testified that Nicole stopped attending

appointments in March of 2011, missing nine appointments total. (Id. at 159).

Olthouse testified that neither parent successfully completed this objective. (Id. at

84-85).

         {¶26} The fifth objective required the children to have developmental

assessments and receive ongoing treatment as recommended pursuant to the

assessments. (Id. at 87).              Nicole and Brian were required to attend the

appointments with their children. (Id.). CPSU was concerned with the children’s


3
  This Court will discuss Nicole and Brian’s participation in the sessions in greater detail when we address
the fifth objective, which required them to attend the same sessions.

                                                   -13-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


development because neither C.P. nor B.P., ages two and three, could speak. (Id.

at 88). Olthouse testified that CPSU observed other delays and problems with the

children, so they all needed to be evaluated. (Id.). B.P was originally diagnosed as

possibly having an autism spectrum disorder. (Id. at 89). Upon further evaluation,

the doctor determined B.P. did not have an autism spectrum disorder. (Id. at 94).

Rather, he had developmental delays and behavioral problems based on “his level

of development, innate temperament, family history, and environmental factors.”

(Id. at 94-95).    As a result of these assessments, B.P. received speech and

occupational therapy. (Id. at 90).     The occupational therapy was parent-child

interaction therapy intended to train the parents to address B.P.’s extreme

behavior. (Id.at 92-93). Nicole and Brian only attended ten out of B.P.’s eighteen

occupational therapy appointments. (Id. at 100). Olthouse testified that they were

provided with transportation to these appointments. (Id. at 102). Furthermore,

Nicole and Brian only attended one of B.P’s speech therapy appointments, which

took place once, and sometimes twice, each week. (Id. at 103-104). Medicaid

provided the parents with transportation to these appointments. (Id.). Olthouse

testified that Nicole and Brian failed to complete the fifth objective. (Id. at 87-88).

       {¶27} The sixth objective required Nicole and Brian to provide the children

with appropriate medical and dental care. (Id. at 106). The parents were required

to “attend medical and dental appointments for the children as requested and


                                         -14-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


appropriate.” (Id.). C.P. had some breathing issues and needed to use an inhaler

four times each day. (Id. at 107). Olthouse testified that the parents failed to give

C.P. his breathing treatment until after two in the afternoon during their

unsupervised visitation. (Id.). Olthouse also testified that the parents had problems

getting B.P. to a medical appointment. (Id. at 107-108.). Olthouse testified that

Nicole and Brian failed to meet this objective. (Id. at 106-107).

       {¶28} Olthouse testified further regarding Nicole and Brian’s extended

unsupervised visitation with the children.     The visitation was a ten day trial

reunification that took place from February 18 through February 27, 2011. (Id. at

40).   Olthouse stated that CPSU still had concerns about Nicole and Brian

providing adequate care for the children and ensuring their safety at the time of the

trial reunification. (Id.).   However, CPSU decided to give the parents a trial

reunification because CPSU did not have any additional services to offer to

resolve the remaining issues. (Id.). Olthouse testified that since CPSU still saw

similar problems during the trial reunification and did not have any other services

to offer, CPSU filed for permanent custody of the children. (Id.).

       {¶29} The first problem Olthouse noted was that Nicole and Brian failed to

get B.P. ready for an appointment with the foster mother to take him to the doctor.

(Id. at 42). Neither B.P. nor the parents were awake when the foster mother

arrived. (Id.). Olthouse testified that the parents were unable to take B.P. to the


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


doctor without the foster mother’s assistance because they did not have any

transportation. (Id. at 46). Secondly, Nicole and Brian failed to provide C.P. with

his breathing treatment until after two in the afternoon, as previously discussed.

(Id. at 43).   Finally, Olthouse stated that Brian “kicked a large hole in the

apartment wall in response to the upstairs neighbors complaining about the noise

level in the parents’ apartment.” (Id.).      Olthouse testified that he personally

observed the hole, Brian admitted he had kicked the hole in the wall, the children

told Olthouse about the hole in the wall, and the children were present at the time

of the incident. (Id. at 43-44). All of these problems occurred while the parents

were involved in home based therapy provided by CPSU. (Id. at 48).

       {¶30} Olthouse recommended that the juvenile court grant permanent

custody of the children to CPSU because the parents had failed to remedy the

problems that caused the children’s removal, the parents had been unable to

address their own issues, and the children needed permanency. (Id. at 119-121).

Olthouse stated, “[t]hey need to not be in limbo, thinking they’re going home,

spending time in the home and then being taken back to supervised visitation.” (Id.

at 121).

       {¶31} Braun, the GAL assigned to represent the children’s interests,

submitted a report regarding the issue of permanent custody. (Id. at 307); (Ex. A).

Braun testified at the hearing and stated in her report that she recommended the


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


court grant CPSU permanent custody of the children. (Id.); (Id.). In her report,

Braun outlined each child’s special needs. (Ex. A). Braun stated that Nicole and

Brian were still struggling to implement improved parenting skills, and that the

parents had not learned the skills required to maintain a safe and stable

environment for their children. (Id.). Braun noted that B.P. and C.P. were too

young to express their wishes, but that M.C. asked when he would be able to go

home. (Id.).    Braun based her recommendation that the court grant CPSU

permanent custody on the parents’ lack of responsibility in caring for the children

without the assistance of the foster mother, their inability or unwillingness to

attend appointments and make improvements, and the diagnosis that the children’s

developmental delays were a result of their environment. (Id.). Braun stated that

the diagnosis “displays the lack of parenting skills to provide the basic needs for

the kids then and now.” (Id.).

       {¶32} Considering the factors listed in R.C. 2151.414(D)(1), this Court

cannot conclude that the juvenile court erred in determining there was clear and

convincing evidence that granting permanent custody to CPSU was in the

children’s best interest. The record shows that Nicole and Brian have been unable

to improve their parenting skills and take responsibility for their children. R.C.

2151.414(D)(1)(a). They have failed to attend numerous appointments and take

advantage of the many services CPSU provided to help them and their children,


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


including failing to complete substance abuse counseling, anger management

counseling, domestic violence counseling, and life skills classes. (Aug. 23, 2011

Tr. at 56-128). They have also failed to attend appointments for their children,

such as B.P.’s speech therapy and occupational therapy appointments, the purpose

of which was to provide the parents with the skills to address his behavioral

problems. (Id.). Nicole and Brian have not improved the conditions that led to

their children’s removal, indicated by their failure to provide C.P. with his

required breathing treatment, their inability to wake up on time and get B.P. to the

doctor without the assistance of the foster mother, and Brian kicking a hole in the

wall as a result of his anger during a trial reunification. (Id.). These facts support

the juvenile court’s determination that Nicole and Brian have failed to create a

positive parental relationship with the children that will provide them with a safe,

stable environment.

       {¶33} Additionally, R.C. 2151.4141(E)(1) requires the juvenile court to

find that the children should not or cannot be placed with either parent if:

       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 failed




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Case Nos. 5-11-33, 5-11-34 and 5-11-35


       continuously and repeatedly to substantially remedy the conditions

       causing the child to be placed outside the child’s home.

The record demonstrates that Nicole and Brian have continuously and repeatedly

failed to take the steps necessary to substantially remedy the conditions that

caused the removal of their children by failing to attend required appointments and

take responsibility for their children. (Aug. 23, 2011 Tr. at 56-128). Thus, we

cannot find that the juvenile court erred in determining that the children should not

or cannot be placed with either parent. Furthermore, R.C. 2151.414(D)(1)(d)

requires the juvenile court to consider the children’s need for permanent and

secure placement. The determination that the children cannot or should not be

placed with Nicole and Brian prevents them from having a legally secure

permanent placement with their parents.

       {¶34} Finally, the juvenile court was required to consider the children’s

wishes as expressed by the child or through the GAL. R.C. 2151.414(D)(1)(b).

The GAL, as the children’s representative, recommended that the juvenile court

grant CPSU permanent custody of the children. B.P. and C.P. were too young to

make their wishes known, but the court appointed an independent attorney,

separate from the GAL, to represent the children as a result of M.C.’s statements

that he wanted to go home. (Ex. A); (Aug. 24, 2011 Tr. at 324). The attorney did

not present any new evidence that returning the children to their parents was in


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Case Nos. 5-11-33, 5-11-34 and 5-11-35


their best interest. The attorney also did not present any additional statements by

the children expressing their wishes to be reunited with Nicole and Brian. The

juvenile court thus considered the children’s wishes as presented by the GAL as

well as the evidence presented by the independent attorney during the hearing.

Based on the foregoing, we conclude that the juvenile court’s judgment is

supported by clear and convincing evidence.

       {¶35} Nicole and Brian’s second assignment of error is, therefore,

overruled.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT’S DECISION TO TERMINATE THE
       APPELLANTS’ PARENTAL RIGHTS AND GRANT
       PERMANENT CUSTODY TO THE AGENCY IS AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE

       {¶36} In their first assignment of error, Nicole and Brian argue the juvenile

court’s decision is against the manifest weight of the evidence because they were

not given ample opportunity to regain custody of the children. Nicole and Brian

contend that CPSU failed to present evidence for why they moved from

unsupervised visitation to supervised visitation, and that CPSU also failed to

provide reasons for filing motions for permanent custody rather than attempting

reunification.

       {¶37} This Court will not overturn the juvenile court’s judgment as being

against the manifest weight of the evidence “if the record contains competent,

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Case Nos. 5-11-33, 5-11-34 and 5-11-35


credible evidence by which the court could have formed a belief or conviction that

the essential statutory elements for a termination of parental rights have been

established.” In re Baby Boy W., 3d Dist. No. 5-10-39, 2011-Ohio-2337, ¶ 20,

citing In re Forest S., 102 Ohio App.3d 338, 344-345 (1995).

      {¶38} The parties stipulated that the children had been in CPSU’s custody

for at least 12 months out of a consecutive 22 month period. (Aug. 23, 2011 Tr. at

10). Consequently, the only issue before the juvenile court was whether granting

CPSU permanent custody was in the children’s best interest. We have already

found clear and convincing evidence supporting this judgment. As a result, there

is competent, credible evidence supporting the juvenile court’s determination and

we cannot conclude that the juvenile court’s decision is against the manifest

weight of the evidence.

      {¶39} Nicole and Brian’s first assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. III

      THE AGENCY DID NOT MAKE A GOOD FAITH EFFORT
      TO REUNIFY THE APPELLANTS WITH THEIR CHILDREN

      {¶40} In their third assignment of error, Nicole and Brian argue CPSU did

not make a good faith effort to reunify them with the children because CPSU did

not prove the case plan was designed to correct the problems and return the

children to their parents. Nicole and Brian contend that CPSU “allowed itself to

lose its way” in managing their case plan.

                                       -21-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


      {¶41} R.C. 2151.419 requires children services agencies to make

reasonable efforts to return the child to the parents. Thomas, 2003-Ohio-5885, at ¶

9. The agency has the burden of showing that it made reasonable efforts towards

reunification. Id. Consequently, the case plan must establish goals designed to

address specific concerns the agency has about the parent, as well as the steps the

parent can take to achieve reunification. Id. “[T]he issue is not whether there was

anything more that CPSU could have done, but whether the agency’s case

planning and efforts were reasonable and diligent under the circumstances.” Id.

      {¶42} In the present case, CPSU made reasonable efforts towards

reunification. The parties stipulated that CPSU had created a case plan that was

“reasonably calculated to correct the reasons the children were removed.” (Aug.

23, 2011 Tr. at 10). This case plan included six objectives tailored to address the

reasons why the children were removed from their parents’ home.              These

objectives included: (1) providing a safe and stable home environment for the

children; (2) obtaining mental health, intellectual functioning, and substance abuse

assessments; (3) gaining additional parenting knowledge and skills; (4) gaining

additional life skills; (5) obtaining developmental assessments and ongoing

treatment for the children; and (6) providing the children with appropriate medical

and dental care. (Case plan, Ex. 18). The case plan also specified steps Nicole and

Brian were required to take including attending counseling sessions, life skills


                                       -22-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


classes, and their children’s therapy appointments. (Id.). Nicole and Brian did not

fulfill these requirements and did not present any evidence that CPSU would have

failed to reunify them with their children if they had.

       {¶43} Nicole and Brian rely on In the Matter of C.E., in support of their

argument. 3d Dist. Nos. 5-09-02, 5-09-03, 2009-Ohio-6027. In that case, this

Court reversed a juvenile court’s decision to grant permanent custody to the

agency as to the father, but not the mother. Id. at ¶¶ 22, 33. This Court affirmed

terminating the mother’s permanent custody of the children because the agency

had made a case plan reasonably calculated to remedy the problems that had

caused the children’s removal, but the mother had failed to comply. Id. at ¶ 16.

This Court reversed the grant of permanent custody to the agency in regard to the

father because we found that the agency had not made a good faith effort to

provide a case plan that would reasonably result in the reunification of the father

with his children. Id. at ¶ 33.

       {¶44} The present case is clearly distinguishable from In the Matter of C.E.

In that case, the father completed the two required objectives, which were to

obtain a psychological evaluation as well as a mental health and substance abuse

evaluation. Id. at ¶ 23. No psychological, mental health, or substance abuse

problems were discovered and no additional treatment was recommended. Id. at ¶

25-27. During the hearing, the agency testified that it still had concerns about


                                         -23-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


reuniting the children with the father because he was married to another woman,

was older and had some health problems, and had a drug conviction over 20 years

prior. Id. at ¶ 28. This Court held the agency did not make a good faith effort to

provide a case plan that would reunite the father with his children because the

agency did not make any further recommendations to address its concerns. Id. at ¶

33. Consequently, the father had fulfilled his obligations under the case plan. Id.

       {¶45} In the present case, Nicole and Brian have failed to complete five out

of the six objectives. (Aug. 23, 2011 Tr. at 56-128). CPSU established specific

steps Nicole and Brian could take to address the issues that led to the children’s

removal and reunify them with the children. (Ex. 18). There is no evidence that

CPSU did not act in good faith and would have failed to reunify Nicole and Brian

with the children had they completed the case plan.

       {¶46} Nicole and Brian’s third assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT ERRED BY NOT MAKING A FINDING
       ON THE RECORD AS TO THE WISHES OF THE
       CHILDREN FOR THE PERMANENT CUSTODY

       {¶47} In their fourth assignment of error, Nicole and Brian argue the

juvenile court erred by not making a finding on the record regarding the children’s

wishes. Nicole and Brian contend that the GAL’s testimony did not indicate

whether she tried to determine the children’s wishes prior to making her


                                        -24-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


recommendation.        Nicole and Brian argue that, without this information, the

juvenile court could not make a decision regarding the children’s wishes as

required by statute.

       {¶48} R.C. 2151.414(D)(1)(b) requires the court to consider “[t]he 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.” The Supreme Court of Ohio

has noted that in some cases, the guardian ad litem can act as the juvenile’s

attorney as well. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, ¶ 18.

However, in certain situations, such as when a guardian ad litem’s

recommendation conflicts with the juvenile’s wishes, the juvenile is entitled to

independent counsel to represent those wishes. Id. at ¶¶ 18, 29.

       {¶49} The juvenile court addressed this issue in the present case, stating:

       [W]e appointed an attorney for the children, it came to us by

       representation from CASA that at least the oldest child indicated a

       desire to return to the parents and that was a recommendation- that

       was a desire that was contrary to the recommendation of the CASA.

       So we felt even though the child was of very tender years, that it

       would be probably in his best interest to be represented by counsel.

       (Aug. 24, 2011 Tr. at 324).




                                        -25-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


Furthermore, in her report, the GAL stated, “KP and BP are too young to express

their wishes, whereas, MC the oldest asks when he will get to go home.”4 (Ex. A).

Thus, the record contains evidence that the juvenile court did consider the

children’s wishes in light of their maturity. B.P. and C.P. were too young to make

their wishes known, so it was not possible for the juvenile court to obtain this

information. The court had to consider the GAL’s recommendation based on the

children’s maturity.    However, the juvenile court appointed counsel for M.C.

because he had asked when he would be able to go home.               Throughout the

hearing, M.C.’s counsel opposed CPSU by cross examining each of their

witnesses. M.C.’s counsel thus represented M.C.’s desire to return to his parents

during the judicial process. As a result, the juvenile court met all of the procedural

requirements for representing the children’s interests during the permanent

custody hearing.

           {¶50} Nicole and Brian’s fourth assignment of error is, therefore,

overruled.

                        ASSIGNMENT OF ERROR NO. V

           THE TRIAL COURT ERRED BY ALLOWING THE
           ALLEGED MP STATEMENT TO BE PLACED INTO
           EVIDENCE AGAINST THE PARENTS5




4
    KP refers to C.P.
5
    MP refers to M.C.

                                        -26-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


       {¶51} In their fifth assignment of error, Nicole and Brian argue the juvenile

court committed plain error by admitting M.C.’s statements. Nicole and Brian

contend that M.C.’s statements were hearsay that do not meet an exception.

Consequently, Nicole and Brian argue M.C.’s statements were inadmissible. The

State responds that M.C.’s statements were admissible as admissions by a party-

opponent.

       {¶52} The statements at issue were admitted during testimony by Judith

Hutton (“Hutton”), a case worker with the foster care agency. (Aug. 24, 2011 Tr.

at 208-222). Hutton testified that M.C. told her Brian got angry and broke a

controller to M.C.’s video game. (Id. at 221). M.C. also told her that the three

children were fighting and his parents did not do anything. (Id. at 222). Finally,

M.C. made statements to Hutton regarding his parents’ relationship.          Hutton

testified, “[h]e had stated that mom was crying because mom and dad had gotten

in a fight and they were cursing and yelling and dad got his shoes, hat and coat on

and was going to leave.” (Id. at 219). According to Hutton, M.C. also stated, “[h]e

told us we drive him nuts,” while referring to Brian. (Id. at 220).

       {¶53} Hearsay is inadmissible unless an exception to the rule applies. Evid.

R. 802. However, an admission by a party-opponent is not considered hearsay.

Evid. R. 801. An admission by a party-opponent is a statement that “is offered

against a party and is (a) his own statement, in either his individual or


                                         -27-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


representative capacity * * *.” Evid. R. 801 (D)(2). The Supreme Court of Ohio

has held that “a child who is the subject of a juvenile court proceeding to terminate

parental rights is a party to that proceeding.” Williams, 2004-Ohio-1500 at ¶ 29.

       {¶54} Nicole and Brian failed to object to the admission of M.C.’s

statements during the hearing.     As a result, the plain error standard applies.

Ordean v. Ordean, 3d Dist. No. 17-06-15, 2007-Ohio-3979, ¶¶ 12-13.               We

recognize plain error “‘with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.’” State v. Landrum, 53 Ohio

St.3d 107, 110 (1990), quoting State v. Long, 53 Ohio St.2d 91(1978), paragraph

three of the syllabus. For plain error to apply, the trial court must have deviated

from a legal rule, the error must have been an obvious defect in the proceeding,

and the error must have affected a substantial right. State v. Barnes, 94 Ohio St.3d

21, 27 (2002). Under the plain error standard, the appellant must demonstrate that

the outcome of his trial would clearly have been different but for the trial court’s

errors. State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v. Moreland,

50 Ohio St.3d 58 (1990).

       {¶55} M.C., as a juvenile subject to a court proceeding to terminate

parental rights, is a party to the case. Williams, 2004-Ohio-1500, at ¶ 29. The

court appointed counsel to represent M.C. because he had stated that he wanted to

go home. (Aug. 24, 2011 Tr. at 324). Consequently, M.C.’s statements were


                                        -28-
Case Nos. 5-11-33, 5-11-34 and 5-11-35


admissible against him and could be used to show that although his wishes were to

remain with his parents, granting Nicole and Brian permanent custody was not in

his best interest. Notwithstanding the foregoing, an argument could be made that

M.C.’s statement that Brian had said the kids “were driving him nuts” constituted

double hearsay. (Aug. 24, 2011 Tr. at 208-222). However, even if the statement is

double hearsay, it is harmless error in light of the remaining evidence in addition

to M.C.’s statements.

       {¶56} Thus, even assuming that all of M.C.’s statements were inadmissible,

we still cannot find plain error. The juvenile court did not state that it relied on

M.C.’s statement in rendering its judgment in this case. (Doc. Nos. 47, 47, 48).

Furthermore, given the evidence regarding Nicole and Brian’s failure to complete

the case plan and take responsibility for their children, Nicole and Brian have not

demonstrated that the outcome of the case would have been different absent

M.C.’s statements.

       {¶57} Nicole and Brian’s fifth assignment of error is, therefore, overruled.

       {¶58} Having found no error prejudicial to the appellants herein in the

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

                                                               Judgments Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr


                                        -29-
