[Cite as In re S.F., 2014-Ohio-1792.]




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




IN RE:

        S.F.,                                               CASE NO. 5-13-36

ALLEGED ABUSED, NEGLECTED
AND DEPENDENT CHILD.                                        OPINION

[APRIL CUTRIGHT - APPELLANT].




                 Appeal from Hancock County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 20123004

                                        Judgment Affirmed

                             Date of Decision: April 28, 2014




APPEARANCES:

        Charles R. Hall, Jr. for Appellant

        Rebecca S. Newman for Appellee
Case No. 5-13-36


WILLAMOWSKI, P.J.

           {¶1} Appellant April Cutright (“Cutright”) brings this appeal from the

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

granting the motion for permanent custody made by Appellee the Hancock County

Job and Family Services (“the Agency”) and terminating the parental rights of

Cutright. For the reasons set forth below, the judgment is affirmed.

           {¶2} S.F. was born in 2011 to Cutright and Allen Fraley (“Fraley”).1 On

January 12, 2012, the Agency filed a complaint seeking emergency temporary

custody of S.F. on the grounds that he was a neglected, abused, and dependent

child. Doc. 1. The trial court held a hearing on the complaint on January 13,

2012, and on January 18, 2013, placed S.F. in the temporary custody of the

Agency. Doc. 3. An adjudication hearing was held on February 16, 2012. Doc.

9. On February 21, 2012, the trial court entered judgment finding that the child

was an abused, neglected, and dependent child. Id. On March 13, 2012, the date

of the dispositional hearing, the Agency filed a case plan. Doc. 10. The case plan

required Cutright to complete the following goals: 1) Keep a safe and stable home

environment; 2) Obtain parental education; 3) Obtain a mental health and

substance abuse assessment; 4) Follow all recommendations of the Agency and

comply with all court orders; and 5) Use the HATS program for transportation. Id.



1
    Fraley did not appeal the trial court’s judgment.

                                                        -2-
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The GAL, Darlene Cox (“Cox”) filed her recommendation on March 13, 2012, as

well.2 Cox stated in her recommendation that she had not spoken with the foster

parents or seen S.F. personally, so her recommendation was limited to her

interactions with Cutright and Agency personnel.                       Cox made the following

statement in her report.

           I have had an opportunity to speak with [Cutright] regarding
           this case. She is 21 years old and is from a family of eight
           children that were taken from their mother and father in 2006
           and put up for adoption. Her situation with her adoptive
           parents, according to her, was less than ideal. She came back to
           Findlay after graduating high school and watched her biological
           father die in 2010. She does not get along well with her
           biological mother. By no means am I making excuses for this
           young lady for her neglect of this young infant, but I will tell you
           that the people she depended on for support and advice were
           very poor choices. [Cutright] appears to be poorly educated
           even though she graduated from high school. Her reading and
           understanding of what she is reading is minuscule. When
           talking with her it appears she is enthusiastic about learning
           about taking care of S.F. properly and what she can do to
           improve herself. Her role models have just been pathetic
           examples. [Cutright] wants to get out of poverty and do it
           without government handouts. I expressed to [Cutright] that
           she can be the one to break that cycle in her family if she truly
           wants to. She is looking for a job and eventually will get a place
           of her own. She is currently living at Hope House. I also
           explained to her how important it is for S.F. to be well taken
           care of and raised with opportunities for a better life than she
           had.

           [Cutright’s] caseworker at Help Me Grow indicates that April is
           doing an excellent job with her follow up assignments and
           learning ways to promote S.F.’s development. She is also

2
    The record contains no information as to when Cox was appointed as the GAL.

                                                   -3-
Case No. 5-13-36


      learning appropriate ways to interact with S.F. and reasons why
      he was taken away from her and how to correct those mistakes.
      She is very good with him and very open with him.

      Her case worker with Century Health indicates that she passed
      her mental health and substance abuse assessment with a clean
      bill of health. She is currently working on living skills where
      they teach her decision making and how to differentiate between
      good and bad people. Also important she is learning to function
      with the dysfunctional background she came from.

Id. at 4. At the dispositional hearing on that same date the trial court, upon the

consent of all parties, ordered that S.F. remain in the temporary custody of the

Agency. Id.

      {¶3} On May 21, 2012, the Agency notified the trial court that it wished to

grant Cutright unsupervised visits with S.F.    Doc. 16.    The notice stated as

follows.

      Ms. Cutright has been having supervised visits at Harmony
      House since January 2012. Ms. Cutright has been compliant
      with these visits and no concerns have been reported. Ms.
      Cutright is currently residing in the Hope House at 419 Western
      Ave Findlay OH 45840.

      This recommendation is being made due to Ms. Cutright’s
      progress on her case plan. Ms. Cutright has been actively
      participating in counseling.         Ms. Cutright has completed
      parenting classes, and has three more classes to complete the
      ‘Getting Ahead’ program. Ms. Cutright continues to actively
      look for a job and has been compliant and actively participating
      in home visits. Ms. Cutright continues to work with Help Me
      Grow during supervised visitation. Ms. Cutright has recently
      been referred to an Early Childhood Mental Health worker
      through Family Resource Center and will be scheduling and
      starting these visits at the earliest convenience to be held at Hope

                                       -4-
Case No. 5-13-36


      House. Unsupervised visits will take place for one hour after
      these appointments with the Early Childhood Mental Health
      worker, and continue to increase with positive reports after
      visits and from service providers.

Id. On July 2, 2012, the Agency filed the semi-annual review of the case plan.

Doc. 23. The review indicated that Cutright was making progress as to her case

plan requirements.

      The Help Me Grow service coordinator reported that [Cutright]
      is able to interact and respond to [S.F.’s] needs appropriately
      and demonstrates use of the information in the Parents.     As
      Teachers curriculum during appointments.

      ***
      Ms. Cutright continues to reside at Hope House, which she
      reported to the agency. Ms. Cutright is compliant with chores
      and there have been no cleanliness or safety hazard concerns
      reported. Ms. Cutright is currently looking for her own
      apartment and states that she understands anyone living with
      her will need a background check. This will continue to be
      monitored to ensure that Ms. Cutright is able to maintain her
      own home free of safety hazards and that [S.F.] is not placed
      around inappropriate or unsafe people.

      ***

      Ms. Cutright has utilized HATS, cab service, co-workers, and
      transportation through Hope House staff at times in order to
      attend appointments. Ms. Cutright has not reported need for
      HATS tickets as she has reported she is able to obtain
      transportation for herself. There have been no reports of Ms.
      Cutright missing appointments due to lack of transportation,
      and Ms. Cutright states that she is studying for her permit.

      ***



                                     -5-
Case No. 5-13-36


       Ms. Cutright has participated in all Early Childhood mental
       Health services and completed parenting classes. There have
       been positive reports that Ms. Cutright is able to meet [S.F.’s]
       needs and there have been no reports that [Cutright] has left
       [S.F.] unattended during these visits or during unsupervised
       time. * * *

       ***

       Ms. Cutright has completed a mental health/substance abuse
       assessment and is compliant with appointments at Century
       Health. She continues to see Robin Brown twice a month, and
       there have been no reports of positive drug screens. Ms.
       Cutright has been compliant with all recommendations made.

       ***

       Ms. Cutright has been compliant with all appointments with
       [case worker] and service providers.

Id. at 2-10.

       {¶4} On December 10, 2012, the Agency requested a six month extension

of temporary custody. Doc. 26. The Agency then filed, on December 27, 2012, a

second semi-annual review of the case plan. Doc. 29. The review indicated that

some issues were developing with Cutright’s progress.

       Ms. Cutright has maintained her residence at Hope House
       during this reporting period. There have been no safety hazards
       observed in the residence during home visits. Reports during
       visitation indicate that Ms. Cutright has been warned of
       supervision issues, as well as concerns of Steven’s nap and
       feeding routines. These issues have been discussed with Hope
       House staff, and CW will continue to receive reports to
       determine whether they continue to improve.

       ***

                                      -6-
Case No. 5-13-36



      Ms. Cutright has missed at least one medical appointment due to
      lack of transportation. Ms. Cutright has not requested any
      HATS tickets or indicated that she needs rides. Ms. Cutright
      continues to utilize Hope House staff or CW when these options
      are available. Reports from service providers indicate that Ms.
      Cutright has missed or called off work due to lack of
      transportation, though she has reported that she does not need
      rides.

      ***

      Ms. Cutright has completed parenting class. Ms. Cutright
      continues to have reports of feeding [S.F.] too much, and
      needing to be reminded to monitor [S.F.] closely. Reports
      indicated that Ms. Cutright is able to demonstrate skills that are
      modeled for her, but struggles to demonstrate them on her own.
      Further services with maternal mental health or other hands-on
      parenting resources offered through FRC are being considered
      to help alleviate these concerns as well.

      ***

      [Cutright] continues to attend counseling through Century
      Health.    The latest provider report indicated that the
      recommendation is for Ms. Cutright to continue counseling to
      learn how her personal and parenting choices and behaviors
      impact her own safety as well as [S.F.’s] safety.

      ***

      Ms. Cutright continues to increase her unsupervised visitation,
      however not all case plan services are completed at this time.
      While progress in [sic] continuing, visits have not progressed to
      overnights and [S.F.] is not able to return to Ms. Cutright’s
      custody safely.




                                     -7-
Case No. 5-13-36


Id. at 2-7. A hearing was held on January 4, 2013, concerning the Agency’s

motion to extend temporary custody. Doc. 30. The trial court granted the motion

on January 7, 2013. Id.

       {¶5} On March 5, 2013, the Agency filed a motion to amend the case plan.

Doc. 32. Under the amended case plan, Cutright was required to complete the

following goals: 1) Participate with service providers and sign releases for S.F. to

participate with services to help him achieve developmental milestones; 2) Keep a

safe, stable home; 3) Utilize HATS for transportation to appointments; 4) Receive

parent education; and 5) Obtain a mental health and substance abuse assessment

and follow through with recommendations. Doc. 33. The amended case plan

provided that Cutright was entitled to unsupervised visitation for six hours two

times a week.      Id.   The trial court ordered that the amended case plan be

implemented on March 15, 2013. Doc. 34.

       {¶6} On May 14, 2013, the Agency filed a motion for permanent custody of

S.F. Doc. 35. The motion alleged that placing S.F. in the permanent custody of

the Agency was in the best interest of S.F. because he could not be placed with

either parent within a reasonable time and had been in the temporary custody of

the Agency for twelve or more months out of a consecutive twenty-two month

period. Id. The Agency then filed the third semiannual review of the case plan on




                                        -8-
Case No. 5-13-36


June 10, 2013.     Doc. 43.   The review indicated the following concerning

Cutright’s progress.

      Ms. Cutright has attended one appointment with Help Me Grow
      worker on 3/7/13, and another on 4/5/13. Ms. Cutright had
      missed the appointment scheduled for 3/28/13. Per reports, Ms.
      Cutright has not contacted Help Me Grow or returned phone
      calls to schedule another appointment. [S.F.] currently has no
      identified cognitive or physical delays.

      ***

      Ms. Cutright has complied immediately with service provider
      recommendations regarding safety including baby-proofing her
      apartment and setting a TV on the floor when it was unstable on
      top of a rounded toy chest. The apartment has appeared clean
      and free from other safety hazards, and Ms. Cutright has
      followed through with these recommendations.

      According to service provider reports, Ms. Cutright may be at
      risk for being evicted due to not paying the portion of rent she is
      responsible for. CW has been unable to address this with Ms.
      Cutright as CW has made multiple attempts to contact her and
      has not had a HV since 4/4/13.

      Reports indicate that Ms. Cutright allowed unapproved visitors
      to be present with [S.F.]. At least one report indicated that his
      [sic] happened the same day after Ms. Cutright was reminded
      that unapproved visitors would be a violation of the visitation
      rules and pose a safety threat to [S.F.].

      ***

      Ms. Cutright has missed multiple appointments, claiming that
      she does not have transportation. Ms. Cutright requested HATS
      tickets once this reporting period, and stated that she has other
      transportation and will be able to attend appointments. Ms.
      Cutright has then called CW the same day of appointments
      requesting transportation. Ms. Cutright has called Century

                                      -9-
Case No. 5-13-36


      Health to reschedule after missing an appointment, and is now
      responsible for a late fee.

      Ms. Cutright states that she is able to walk to most
      appointments. Ms. Cutright has missed 5 out of 15 visitations
      that were scheduled at her apartment.

      ***

      [Cutright] completed the parenting class through FRC. Upon
      provider recommendation, Ms. Cutright was referred to the
      Early Childhood Mental Health program.            The worker
      providing Early Childhood Mental Health left FRC and Home
      Based Therapy was recommended to provide additional hands-
      on parenting skills training. Ms. Cutright has not followed
      through to schedule an intake with a home based therapist.

      ***

      [Cutright] discontinued mental health services since moving into
      her own apartment in February of 2013, despite
      recommendations that [Cutright] continue to see a therapist.
      Ms. Cutright has stated that she does not need transportation,
      but has no-call/no-showed at least one Century Health
      appointment and called afterward to try to schedule. Due to
      multiple missed appointments, Ms. Cutright now has a fee that
      she has not paid, and has not contacted Century Health to
      schedule another appointment.

      ***

      Visitation returned to supervised due to continued safety
      concerns during visitation, as well as Ms. Cutright’s lack of
      follow through with service providers. Reports indicate that Ms.
      Cutright is unable to implement skills learned in parenting
      including leaving [S.F.] unsupervised and having continued to
      [sic] contact with inappropriate people, and Ms. Cutright has
      not participated in any services in the month of May 2013. [S.F.]
      is unable to return to the home safely at this time, and the
      agency has filed for permanent custody.

                                    -10-
Case No. 5-13-36



Id. at 4-8. On October 15, 2013, the trial court upon its own motion permitted Cox

to withdraw as the GAL and appointed Kimberly Freytag Shope (“Shope”) as the

new GAL.3

        {¶7} On October 15, 2013, the trial on the motion for permanent custody

was held.       The Agency presented the testimony of one witness, Katie Stahl

(“Stahl”). Stahl testified that she was a caseworker for the Agency and had been

since February of 2012. Tr. 11. Stahl testified that S.F. was born to Fraley and

Cutright in June of 2011. Tr. 15-16. S.F. entered the custody of the Agency in

January of 2012. Tr. 17. Stahl testified that the Agency filed for permanent

custody of S.F. on May 14, 2013. Tr. 17. Stahl testified that this meant that at the

time of the filing for permanent custody, S.F. had been in the temporary custody

of the Agency for approximately fourteen months. Tr. 18. The journal entry for

adjudication was filed on February 21, 2012. Tr. 24. Stahl testified that the

Agency moved for permanent custody rather than requesting an additional

extension

        because of the services previously offered to [Cutright], there
        were no other services found to alleviate the safety concerns in
        the home that we hadn’t already tried.



3
  This court finds it unusual that a new GAL would be appointed the day of trial and is curious as to how
effective the recommendation could be. Even more unusual is that on November 1, 2013, the trial court on
its own motion permitted Shope to withdraw as GAL and appointed Helen Ruhlen as the new GAL. Once
again, no explanation for the change was provided. Doc. 63.

                                                 -11-
Case No. 5-13-36


       And since she was on her own was when the safety concerns
       started to occur, when she wasn’t able to get any other services
       that she had had before.

       ***

       Because the concerns were ongoing, we knew that permanency
       needed to be established sooner rather than later.

Tr. 30-31.

       {¶8} Stahl testified that she had discussed the case plan objectives with

Cutright. Tr. 48-49. Throughout the case, the goals and objectives for Cutright

have been the same. Tr. 51. The first objective was to have S.F. evaluated by

Help Me Grow for delays and to follow through with any recommendations. Tr.

52. Stahl testified that Cutright was compliant with this objective until she moved

into her apartment and then she started missing appointments. Tr. 54. Services

were suspended in May 2013 for the Help Me Grow program because the health

department could not reach Cutright.          Tr. 55.   However, the services were

eventually restarted during visits. Tr. 57.

       {¶9} The second objective of the case plan was that she needed to maintain

a safe, stable living environment. Tr. 57. The concerns regarding Cutright is that

she allowed inappropriate people into the environment. Tr. 58. Stahl testified that

Cutright’s home was safe and clean. Tr. 59. Previously, Cutright resided at Hope

House, which was a transitional house that assists with case management. Tr. 60.

She resided at Hope House until February of 2013 when she moved into the

                                         -12-
Case No. 5-13-36


apartment where she resided at the time of the hearing. Tr. 60-61. The apartment

was safe and appropriate for a two year old and there was no known risk of

eviction. Tr. 61. However, the people that Cutright allowed in the home were not

safe. Tr. 62. Stahl testified that the Agency has received several reports of people

with “a history of either sexual offenses or child abuse, neglect” and “multiple

unknown people” that were permitted in the home. Tr. 62. This concerned the

Agency because Cutright did not see it as a safety concern. Tr. 62. The man that

Cutright listed on facebook as being in a relationship with her had previously been

convicted of a sexual offense against a juvenile. Tr. 62, 64. After learning about

the relationship, Stahl discussed it with Cutright. Tr. 67.

       I discussed that obviously that’s a big concern as part of the case
       plan. That he has a history of being on the sex offender registry
       – he’s currently on the registry for sexual offenses against a
       juvenile. And that’s when she said she didn’t feel like he would
       do anything to [S.F.], didn’t see it as a problem because he was
       never actually in the apartment with [S.F.].

       The Court: So she didn’t deny the relationship?

       A. She did agree that there was a relationship. That she has
       met him at the library is the explanation that she gave.

       Q. Okay. Did she say whether they were dating or that they
       had any extensive relationship or this was just someone that she
       knew?

       A. She said that they had been talking briefly, is how she put
       it. They were in a relationship briefly and they were no longer
       in a relationship since she had found that out.


                                         -13-
Case No. 5-13-36


Tr. 67-68. Additionally, Cutright was the victim of domestic violence in her

apartment in June of 2013. Tr. 69. Cutright and her boyfriend at the time had

been arguing when he came at her and put his hand in her mouth, stretching it to

the point that her tonsils needed to be removed. Tr. 70. As a result of her injuries,

Cutright required hospitalization. Tr. 70-71. Stahl testified that she learned of this

incident a few days later when Cutright informed her that she had moved to Open

Arms shelter after leaving the hospital. Tr. 71. Cutright told Stahl that she was

afraid to return to her apartment at that time. Tr. 72. Cutright has since obtained a

restraining order against her assailant and charges are pending. Tr. 73. Stahl

testified that she had concerns that Cutright was not telling her about adults who

were staying at her apartment as required by the case plan. Tr. 75. In Stahl’s

opinion, Cutright had not addressed the concerns about providing a safe and stable

living environment for S.F. Tr. 77.

       {¶10} The third objective of the case plan which related to Cutright was

that Cutright would either find transportation or utilize transportation services to

use the provided services. Tr. 79-80. Stahl testified that Cutright did utilize this

service, but was not consistent in doing so. Tr. 81. Cutright “missed quite a few

appointments with not being able to use that transportation.” Tr. 81.

       {¶11} Cutright’s fourth objective was to complete parent education. Tr. 83.

Cutright was to complete the class and to demonstrate the proper care of S.F. Tr.


                                        -14-
Case No. 5-13-36


84. Cutright did complete the classes. Tr. 85-86. Cutright was no longer working

with the parent educators, though there was continuing concern with her ability to

apply the skills she learned. Tr. 87-88. After the classes were complete, Stahl

received reports that Cutright was feeding S.F. too much and that Cutright did not

seem to know how to play with S.F. Tr. 88. On another instance, Cutright was

holding S.F. while cooking and S.F. burned his hand. Tr. 90.

      {¶12} The next objective for Cutright was for her to obtain substance abuse

and mental health assessments. Tr. 92. This was done due to Cutright’s history as

a maltreated child. Tr. 92. Cutright completed the assessment and counseling was

recommended. Tr. 94. Cutright had been diagnosed with an adjustment disorder

and a learning disorder. Tr. 94. In Cutright’s case, counseling was recommended

on a monthly basis. Tr. 95. Up until April of 2013, Cutright was compliant with

this requirement, but was then discharged administratively for failing to pay an

outstanding fee. Tr. 95. Cutright was consistently compliant with the case plan

while she lived at Hope House, but once she got her own apartment, she started

missing appointments and becoming noncompliant. Tr. 96.

      {¶13} Cutright was also required to cooperate with the Agency and the

service providers.   Tr. 101.   Generally, Cutright was cooperative.     Tr. 102.

However after the Agency filed for permanent custody, Cutright stopped

responding to Stahl’s calls. Tr. 102-103. Cutright has been attending group


                                      -15-
Case No. 5-13-36


counseling at the domestic violence shelter on a voluntary basis without a request

from the Agency. Tr. 107. According to the progress report from the women’s

support group, Cutright was compliant with the requirements of that program. Tr.

108. Although the Agency did not require it, Stahl testified that this was a good

thing that Cutright had voluntarily chosen to participate in this counseling. Tr.

109.

        {¶14} Stahl further testified that Cutright had been granted weekly

visitation of two hours with S.F. Tr. 110. The staff at Harmony House had no

major concerns during the visits.4 Tr. 111. There were minor concerns that

Cutright seemed uncomfortable interacting with S.F. and did not know what to do

when he cried. Tr. 111-12. In April of 2012, Cutright was granted unsupervised

visits with S.F. Tr. 112. Although the visits were unsupervised, there was a level

of supervision since she was at Hope House and service providers routinely

stopped in during the visits. Tr. 112-13. The unsupervised visits continued until

April of 2013. Tr. 113.

        Q. That’s kind of a long period of time to have unsupervised
        visits but not move into a reunification/protective supervision
        situation. Explain to the Court why that is.

        A. Again, along that time, that was when we received the
        reports of [S.F.] falling, that Ms. Cutright needed a lot of
        support. She was able to make most of her appointments and


4
 Although Cutright was staying at Hope House, Harmony House is the name of the entity that monitors the
visitation and works with the residents of Hope House.

                                                -16-
Case No. 5-13-36


      she was complying with everything, but she wasn’t able to hold a
      job or manage the schedule.

      And I had spoken with the case manager at Hope House several
      times. And she said she was concerned with Ms. Cutright being
      able to care for [S.F.] full time by herself.

Tr. 113-14. Once the visits moved to Cutright’s apartment, she started missing

visits. Tr. 117. Of the fifteen visits scheduled, Cutright was not home when the

foster parents brought S.F. to her apartment on five different occasions. Tr. 118.

At the same time, Stahl received reports that unapproved visitors were at the

apartment during the visits. Tr. 119. Additionally, Stahl received a report of

Cutright falling asleep during the visit, which allowed S.F. to get into the baby

wipes. Tr. 121. A second incident occurred when S.F. burned his hand because

Cutright was holding him while cooking macaroni and cheese. Tr. 121. The

injury to S.F. was minor, was treated with cold water by Cutright and needed no

medical follow up. Tr. 121-22. Based upon all of these issues, the decision was

made in April of 2013 to terminate unsupervised visits. Tr. 123. Since that time,

there were no major incidents or safety concerns during supervised visitations. Tr.

123. Stahl testified that in her opinion, Cutright could not provide an adequate,

permanent home for S.F. Tr. 127.

      Q.    Can you describe [S.F.’s] relationship with his mom?

      A.    His biological mother?

      Q.    Yeah. With [Cutright].

                                       -17-
Case No. 5-13-36



       A. They seem to interact appropriately. He is anxious and
       upset before he meets her and then kind of calms down.

       Again with the limited visits, it’s kind of a longer time in
       between when they can see each other, especially for a young
       child.

       When visits were the twice a week for six hours, he seemed more
       comfortable with the routine of going and spending more time
       with her and then kind of the routine changed again.

       So it kind of seems to be a source of anxiety, especially recently,
       that visits have been – gone back to supervised. It’s kind of a
       source of anxiety to see her and kind of not know what needs
       she’ll be able to meet.

Tr. 128-29.

       Q. Can you describe for the Court what [S.F.’s] relationship is
       with his foster parents?

       A. He is very bonded with his foster parents. He goes to them
       immediately for comfort or help and they’re able to meet his
       needs and calm him down and provide whatever emotional or
       material need he might have.

Tr. 130. Stahl testified that it would be in S.F.’s best interest for permanent

custody to the Agency for adoptive placement. Tr. 134. Stahl testified that the

foster parents had expressed an interest in adopting S.F. Tr. 138.

       {¶15} On cross-examination, Stahl testified that the Agency could have

extended temporary custody for an additional six months and continued to work

with Cutright. Tr. 145. Cutright had cooperated with the Agency by signing the

necessary releases and participating in the case plan services. Tr. 147. Stahl

                                        -18-
Case No. 5-13-36


testified that Cutright’s apartment had no safety concerns and was appropriate for

a child. Tr. 147. There was no threat of eviction from the apartment. Tr. 148.

Throughout the case plan, the only unapproved person in the home that Stahl had

personal knowledge of was a female friend of Cutright. Tr. 148. Stahl admitted

that the male sex offender who had been in a relationship with Cutright never met

S.F. Tr. 149 Stahl reiterated that once she told Cutright of the man’s status as a

sex offender, Cutright terminated the relationship. Tr. 149. After the domestic

violence incident, Cutright cooperated with the police to seek a protection order

and sought safety at a domestic violence shelter. Tr. 150. Cutright ended that

relationship as well. Tr. 151. Stahl admitted that the mental health treatment

center was probably not the right facility to address the learning disability. Tr.

152. Stahl also admitted that it is not uncommon for first time mothers to not

know what to do when parenting. Tr. 152.

         {¶16} After the testimony of Stahl, the Agency rested its case. The only

other person to testify was the GAL.5 The GAL testified that she had spent a total

of approximately fifteen hours on the case and had a chance to meet the child. Tr.

5
  This is the same GAL that was appointed the day of trial, though she did prepare the report that was
received by the trial court prior to trial. No explanation was provided as to why the change in GAL was
made. This court notes that the GAL did not meet the minimal guidelines of meeting with the parents. See
Sup.R. 48(D)(13). Other than speaking with Agency personnel and the foster parents, the GAL merely
read the record provided by the Agency. While this is understandable due to the short time frame, it does
not lend itself to allowing the GAL to maintain independence and objectivity as suggested by Sup.R.
48(D)(2). This court also notes that the last minute change of the GAL is not isolated to this case alone, but
has been seen in at least one other case from the same trial court. These changes do raise questions of the
constitutional right of confrontation since this GAL cannot speak to the basis of the opinions as she is
merely reporting what others have told her and not from her own knowledge. However, since this was not
raised as an assignment of error, we will not address it at this time.

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158-59. The GAL testified that she recommended that permanent custody of S.F.

be granted to the Agency. Tr. 160. No relevant questions were asked of the GAL.

A review of the report indicates that the GAL had contact with S.F., Stahl, the

prosecuting attorney, the attorneys for the parents, the foster parents, and the

Agency supervisor. Ex. A, 3. There was no contact with Cutright before making

the recommendation. The recommendation in the report stated as follows.

      A last visit should be scheduled of [Cutright]. * * *

      Permanent custody should be granted to [the Agency] giving
      them the ability to place [S.F.] for adoption.

Id. at 6. The parties then made closing arguments and the trial was concluded.

      {¶17} On October 21, 2013, the trial court granted the Agency’s motion for

permanent custody.      Doc. 59.   Cutright filed her notice of appeal from this

judgment on November 12, 2013.         Doc. 65.   On appeal, Cutright raises six

assignments of error.

                            First Assignment of Error

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

                           Second Assignment of Error

      The trial court erred in granting permanent custody for [S.F.]
      because it was not in his best interest.




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                          Third Assignment of Error

      The trial court erred in granting permanent custody to [the
      Agency] because [the Agency] failed to develop and implement a
      case plan reasonably calculated to achieve the goal of
      reunification of the minor children.

                          Fourth Assignment of Error

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

                           Fifth Assignment of Error

      [The Agency] did not have make [sic] a good faith effort to
      reunify [Cutright] with S.F.

                           Sixth Assignment of Error

      The trial court erred in granting permanent custody of [S.F.] to
      [the Agency] because clear and convincing evidence was not
      presented to establish that S.F. could not be returned to
      [Cutright] within a reasonable time.

      {¶18} The first, second, and sixth assignments of error are closely related

and will thus be addressed together. The right to raise one’s own child is a basic

and essential civil right. In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169

(1990) . “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


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Case No. 5-13-36


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
       to the agency that filed the motion for permanent custody 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 [2151.413(D)(1)], the child cannot be placed with
       either of the child’s parents within a reasonable time or should
       not be placed with the child’s parents.

       ***

       (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 purposes 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.

       ***



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Case No. 5-13-36


       (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.

R.C. 2151.414. Pursuant to this statute, an Agency is not required to prove that

the child could not or should not be returned to the parents within a reasonable

time if the child has been in the temporary custody of the Agency for twelve out of

a consecutive twenty-two month period of time. R.C. 2151.414(B)(1)(d), In re

C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶21.                 If this

situation is proven, the Agency need only prove that it is in the best interests of the

child, as set forth in R.C. 2151.414(D), to grant the motion of the Agency for

permanent custody. In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶

26.

       {¶19} A review of the record in this case shows that S.F. was adjudicated as

dependent, neglected, and abused on February 21, 2012. This is less than 60 days

after the removal from the home, so is the date to be used when calculating the

twelve out of twenty-two months.        R.C. 2151.414(B)(1)(d).      The motion for

permanent custody was filed on May 14, 2013. Thus, S.F. was in the temporary

custody of the Agency for almost fifteen months out of a consecutive twenty-two

month period of time. Since the Agency has shown by clear and convincing


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Case No. 5-13-36


evidence that the requirements of R.C. 2151.414(B)(1)(d) have been met, the trial

court need only determine whether the granting of permanent custody to the

Agency was in the best interest of S.F. The sixth assignment of error is overruled.

       {¶20} When making a determination of the best interest of a child in a

motion for permanent custody, the trial court must consider the factors set forth in

R.C. 2151.414(D).

       (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:

       (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.

R.C. 2151.414.


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Case No. 5-13-36


       {¶21} Here, the trial court stated that it had considered the statutory factors

and found that it was in S.F.’s best interest to grant the Agency’s motion for

permanent custody. Doc. 59, 2. Specifically the court stated as follows.

       [T]he court has considered the lack of relationship of the child
       with his parents, relatives, foster parents, out-of-home providers
       and other people who may significantly affect the child’s need
       for legally secure permanent placement and the probability that
       this type of placement cannot be achieved without granting
       Permanent Custody to [the Agency]. The court further has
       considered the custodial history of the child along with the
       wishes of the child (child is age 2) as expressed to the court by
       way of recommendation from his CASA.

       In determining the best interest of the child this court has
       considered that mother failed to participate in the Help Me
       Grow Program as required by her case plan. She did fairly well
       while living at the Hope House but her situation deteriorated
       when she moved to her own apartment. According to her
       Facebook page she formed a relationship with one Elliot
       Emmons who has a conviction for a sexual offense against a
       juvenile and is a sexual offender registrant. In addition, while
       living in her apartment there was a domestic violence incident
       where the assailant pulled open her mouth so violently it
       required the surgical removal of her tonsils. The caseworker has
       had difficulty monitoring the activities of mother since she is
       rarely at home. * * * The CASA states that she believes it would
       be in the child’s best interest to grant his permanent custody to
       the agency. This court agrees. (CASA Exhibit A).

Doc. 59, 2-3. A review of the record shows that there was testimony by the case

worker that although Cutright and S.F. had a relationship, it caused anxiety to S.F.

due to the constant changes. Stahl also testified that S.F. was very bonded with

the foster family who had expressed an interest in adopting him. There were no


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Case No. 5-13-36


other relationships, except S.F.’s relationship with Fraley, discussed during the

testimony. R.C. 2151.414(D)(1)(a). The child was too young to express an

opinion, but the GAL recommended granting the Agency’s motion for permanent

custody. R.C. 2151.414(D)(1)(b). There was testimony given that the child, who

was two years old at the time of the hearing, had been in the temporary custody for

the majority of his life and for more than twelve consecutive months.          R.C.

2151.414(D)(1)(c).    Stahl testified that the constant switching between foster

parents and Cutright was causing the child to be anxious and that he needed

stability. Stahl also testified that the only way for that to occur was for the

Agency to be granted permanent custody and to place S.F. in an adoptive home.

R.C. 2151.414(D)(1)(d). The factors as set forth in divisions (E)(7) to (11) of R.C.

2151.414 were not applicable and did not need to be addressed. None of the

above evidence was contradicted at trial. Based upon the evidence before it, this

court cannot find that the trial court abused its discretion in determining that the

granting of the Agency’s motion for permanent custody, thus terminating

Cutright’s parental rights, was in the best interest of S.F. There was competent

and credible evidence presented by the Agency, which if believed, would show by

clear and convincing evidence that parental rights should be terminated. The first

and second assignments of error are overruled.




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      {¶22} In the third, fourth, and fifth assignments of error, Cutright argues

that the Agency did not make a good faith effort to reunify the children with her

and failed to make a case plan which could sufficiently do so.

      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 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.

In re. C.E., 3d Dist. Hancock Nos. 5-09-02, 5-09-03, 2009-Ohio-6027, ¶15. In

C.E., this court held that the Agency had not made a case plan in good faith when

the father had completed all of the case plan objectives, only to be told that he

needed to do more, although the additional requests were not made a part of the

case plan, but were merely suggestions. The father in C.E. had progressed to the

point of having unsupervised weekend visits at the time the hearing for permanent

custody was held showing that significant progress had been made. Additionally,

the Agency in that case moved for permanent custody on the grounds that the

father had not complied with the case plan and admitted that he had successfully

complied with all of the requirements of the case plan. This is different than the

case before us now.




                                       -27-
Case No. 5-13-36


         {¶23} Here, Cutright was required to apply the knowledge she had learned

in parenting classes and to provide a safe and stable home environment. The

testimony was that although Cutright had completed the parenting classes and was

cooperating with the service providers, she was not applying the knowledge

appropriately.       Stahl testified that she was still receiving reports of Cutright

allowing S.F. to be out of her sight and unsupervised at times.6. Additionally,

Stahl testified that Cutright did not think about preventing incidents, but instead

merely handled them when the harm was done. Her example of this was that

when S.F.’s hand was burned, Cutright focused on how she correctly handled the

situation by treating the burn rather than on how she could avoid it in the future.

Stahl also testified that Cutright did not see the potential harm that could befall

S.F. by her bad choices in men, such as the sex offender and the boyfriend who

physically assaulted her to the point of landing her in the hospital. The reports

from the supervised visits indicated that Cutright was not comfortable in her role

as a mother.

         {¶24} Stahl also testified that Cutright was not complying with the portion

of the case plan requiring her to provide a safe and stable home. Stahl personally

knew of one instance when a stranger was staying at Cutright’s apartment, but

Cutright failed to notify the Agency so that a background check could be

6
  These reports were not that S.F. was left home alone for long periods of time, just that she did not always
keep a close eye on him. One of the reports is that during one of the visits, Cutright fell asleep and awoke
to find that S.F. had gotten the baby wipes out and was playing with them.

                                                   -28-
Case No. 5-13-36


completed. Stahl was informed by third parties that this had happened on other

occasions as well. Although Cutright’s apartment had no physical safety issues

and was appropriate for a small child, Stahl was concerned with the people who

were allowed in the home.

       {¶25} Cutright was also required to participate in counseling as

recommended by the service provider. Stahl testified that Cutright had missed

counseling appointments and was terminated when she failed to pay the

outstanding missed appointment fees. Although Cutright had indicated that she

would return to counseling, she did not do so. Given the undisputed evidence, this

court cannot find that the Agency did not implement a case plan reasonably

calculated to reunify Cutright with S.F. This court also cannot find that the

Agency did not make a good faith effort to try and reunify mother and child. The

third, fourth, and fifth assignments of error are overruled.

       {¶26} Having found no error prejudicial to the Appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas, Juvenile

Division, is affirmed.

                                                               Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




                                         -29-
