[Cite as In re A.M.A., 2013-Ohio-3779.]




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




IN THE MATTER OF:

        A.M.A.,                                          CASE NO. 3-13-02

ADJUDGED DEPENDENT CHILD.

[HEATHER M. MARTIN –                                     OPINION
    APPELLANT].




               Appeal from Crawford County Common Pleas Court
                               Juvenile Division
                           Trial Court No. C2125114

                                     Judgment Affirmed

                          Date of Decision: September 3, 2013




APPEARANCES:

        Brian N. Gernert for Appellant

        Michael J. Wiener for Appellee, Crawford County Dept. of
                Job & Family Services

        Geoffrey L. Stoll , Guardian Ad Litem
Case No. 3-13-02


SHAW, J.

       {¶1} Mother-appellant, Heather M. Martin (“Heather”), appeals the

December 13, 2012 judgment of the Crawford County Juvenile Court granting the

“Motion to Award Legal Custody and Close Case” filed by the Guardian Ad-

Litem (“GAL”) assigned to the case.        As a result of the trial court’s ruling,

Heather’s parents (the “Martins”) were awarded legal custody of Heather’s child,

A.M.A., and the child welfare case with the Crawford County Department of Job

and Family Services (the “Agency”) was closed.

       {¶2} On June 18, 2012, Heather gave birth to A.M.A. On June 27, 2012,

the Agency filed a Motion for Ex Parte Orders and Shelter Care Hearing,

requesting the trial court grant the Agency emergency temporary custody of

A.M.A. In support of the motion, the Agency attached a letter, dated June 27,

2012, that it received from A.M.A.’s Pediatrician, Dr. Howard Eckstein. In this

letter, Dr. Eckstein explained that he had recently seen A.M.A. during an office

visit and felt that she was “at a high risk for neglect.” (Doc. No. 1). Dr. Eckstein

specifically stated that A.M.A. had lost weight since her discharge from the

hospital and when he asked Heather to bring the child back in two days to check

her weight, she refused. Dr. Eckstein described in the letter Heather’s erratic and

irrational behavior during the office visit and on the phone after the visit. He also

indicated in the letter that Heather had been diagnosed with Bipolar Disorder and


                                         -2-
Case No. 3-13-02


was not being treated. Dr. Eckstein closed the letter by expressing concern for

A.M.A.’s “well-being, safety, and nutritional status.” (Id.).

       {¶3} The Agency also attached the affidavit of one of its caseworkers,

Brandi Gandert, who stated that she had a telephone conversation with Dr.

Eckstein on June 27, 2012, in which he articulated his concerns for A.M.A.’s well-

being. In addition, the Agency filed a complaint alleging one-week-old A.M.A to

be a neglected child pursuant to R.C. 2151.03(A)(2).

       {¶4} The record also indicates that A.M.A.’s older sibling was removed

from Heather’s care and placed with the Martins due to concerns that Heather was

unable to provide for the child’s basic needs.

       {¶5} The trial court granted the Agency emergency temporary custody of

A.M.A. and appointed a GAL to the case.

       {¶6} On June 28, 2012, a shelter care hearing was held. In its July 3, 2012

Judgment Entry, the trial court stated that “the Court was informed that all the

parties present concurred and stipulated that probable cause does exist to believe

that the child was in a neglected condition, and that removal from the mother’s

home was necessary and appropriate to protect the child from immediate harm

from the condition of the surroundings, to provide adequate care for the child, and

to protect the best interest and welfare of the child.” (Doc. No. 14). The trial court




                                         -3-
Case No. 3-13-02


subsequently awarded the Agency temporary custody of A.M.A. and Heather was

afforded reasonable visitation.

       {¶7} On July 16, 2012, the trial court held an adjudication hearing where

Heather admitted to the allegations of neglect contained in the complaint,

stipulated that sufficient evidence existed for an adjudication of neglect, and

consented to the adjudication of A.M.A. as a neglected child.

       {¶8} On July 27, 2012, Heather, pro se, filed a “Motion for a More Definite

Statement (Bill of Particulars),” claiming that she did not understand the

allegations of neglect in the complaint and requesting “a more definite statement

(bill of particulars) than what was offered in the complaint.” (Doc. No. 19).

       {¶9} On the same day, Heather’s court-appointed counsel filed a motion to

withdraw from her representation, claiming that Heather has been filing her own

pleadings without consulting him and asserting that a “total breakdown in

communication and cooperation has occurred between undersigned counsel and

Heather M. Martin deteriorating the attorney-client relationship.” (Doc. No. 20).

The trial court subsequently appointed different counsel to represent Heather.

       {¶10} On August 7, 2012, the Agency filed a motion requesting the trial

court grant legal custody of A.M.A. to her maternal grandparents, Todd and

Cheryl Martin (the “Martins”) as a dispositional order. The record indicates that




                                        -4-
Case No. 3-13-02


the Agency filed this motion because Heather was unwilling to cooperate with the

Agency’s attempt to obtain a psychological evaluation of her.

       {¶11} In a judgment entry dated August 15, 2012, the trial court addressed

the concerns presented by Heather in her pro se motion. Specifically, the trial

court stated that Heather’s newly appointed “legal counsel had sufficient

knowledge of the particulars of the evidence supporting the allegations of the

Complaint so that he was able to successfully negotiate an amendment from

neglect to dependency. It is the determination of the court that a ‘more definite

statement’ after the conclusion of the adjudication would be redundant and

surplusage and serves no useful purpose.” (Doc. No. 25).

       {¶12} On August 15, 2012, the trial court held a dispositional hearing and

journalized its findings from the hearing in its August 17, 2012 Judgment Entry.

In this judgment entry, the court indicated that at the hearing the Agency orally

withdrew its motion for legal custody based upon Heather’s representations that

she intended to cooperate with the completion of a parenting evaluation and a

psychological evaluation, and sign all appropriate releases for information relating

to the evaluations. The trial court still determined that it would not be in A.M.A.’s

best interest to return her to Heather, and instead ordered the Martins to have

temporary custody of A.M.A. with the Agency having protective supervision. The

trial court specified that its orders were to be in effect until June 17, 2013 unless


                                         -5-
Case No. 3-13-02


extended or modified. Heather was given reasonable supervised visitation with

A.M.A. which could be increased or decreased by the Agency depending upon

Heather’s progress with the case plan. The trial court specifically ordered Heather

to complete a parenting evaluation and a psychological evaluation and to sign all

necessary releases.

      {¶13} The record indicates that Heather signed the case plan on September

5, 2012, which the trial court subsequently approved. The case plan identified the

primary concern with Heather was that she had been diagnosed with

Schizoaffective Disorder and Bi-Polar Disorder and was not receiving treatment.

      {¶14} The case plan listed several objectives for Heather to meet, which

also addressed the Agency’s concern with Heather’s mental health. In particular,

Heather was expected to cooperate with and complete a full psychological

evaluation which included a parental component. Heather was expected to follow

all the recommendations from the evaluation. Heather was also expected to take

medications as prescribed and to notify the Agency of any newly prescribed

medications or changes in her medication. Finally, Heather was expected to sign

all necessary releases pertaining to case plan goals. The case plan also specified

that Heather’s progress would be measured in the following ways: announced and

unannounced visits; her cooperation with the Agency; obtaining the completed




                                        -6-
Case No. 3-13-02


assessment and following all recommendations; and reports from the Agency

working with Heather.

      {¶15} On September 6, 2012, Heather, in compliance with the case plan,

submitted to a psychological and parental evaluation conducted by Dr. David

Tennenbaum.

      {¶16} On September 12, 2012, the GAL filed a “Motion to Award Legal

Custody and Close Case.” As the basis for his motion the GAL highlighted

several of Dr. Tennenbaum’s findings in his psychological assessment of Heather,

in which Dr. Tennenbaum ultimately concluded that due to her troubled

psychiatric history, including multiple psychotic episodes, and her unwillingness

to be accountable for her diagnosed psychiatric disorders, “Heather cannot be

viewed as capable of protecting any small child[.]” (Tennebaum Report at 8).

The GAL argued in his motion that, based on Dr. Tennenbaum’s assessment,

Heather “has virtually no chance of making any type of meaningful recovery

within the time parameters set forth by statute for the [Agency] to effectuate

reunification.” (Doc. No. 35). Accordingly, the GAL requested the trial court

award legal custody of A.M.A. to the Martins.

      {¶17} On October 22, 2012, the trial court held a hearing where the Agency

indicated that it was unable to find local service providers to meet the treatment

recommendations enumerated in Dr. Tennenbaum’s report. The trial court granted


                                       -7-
Case No. 3-13-02


a continuance to allow Heather’s counsel more time to attempt to find appropriate

local services to meet those treatment recommendations.

      {¶18} On November 26, 2012, the Agency received notice that Heather’s

releases for treatment information had been revoked.

      {¶19} On December 5, 2012, the trial court held a hearing on the GAL’s

motion to modify the disposition in the case. The GAL presented the testimony of

Brandy Gandert, the Agency’s caseworker assigned to the case.

      {¶20} Brandy testified to Heather’s lack of cooperation with the Agency

and other social service providers. Specifically, Brandy explained that Heather

had revoked releases for her medical information that she previously signed in

compliance with the case plan. Brandy explained that since Heather revoked the

releases the Agency cannot assess her progress with meeting the objectives in the

case plan. Brandy also testified that she attempted to conduct an unannounced

home visit of Heather’s residence, which is a component of the case plan.

However, Heather would not allow Brandy into the home without her attorney

present. Brandy explained that this complicated the Agency’s typical protocol in

conducting home visits, because both announced and unannounced visits are

intended to give the Agency a more accurate assessment of the home conditions.

      {¶21} Brandy also testified that A.M.A. was doing very well in the

Martins’ home. Brandy acknowledged that Heather regularly and consistently


                                       -8-
Case No. 3-13-02


exercised her visitation with A.M.A. However, Brandy testified that she believed

that without Heather’s cooperation there was nothing more the Agency could do

for Heather in helping her progress with the case plan. Accordingly, Brandy

recommended closing the Agency’s case and stated that it is in A.M.A.’s best

interest to grant legal custody to the Martins. Brandy explained that Heather could

still have visitation with A.M.A. but she would need to arrange that with the

Martins and the Agency would no longer have any oversight.

      {¶22} In addition to Brandy’s testimony, the GAL admitted Dr.

Tennenbaum’s psychological evaluation of Heather as an exhibit.

      {¶23} At the conclusion of the hearing, the trial court determined that the

evidence supported a finding that Heather’s lack of cooperation had obstructed the

Agency’s ability to facilitate her reunification with A.M.A. The trial court further

stated that “until such time as there would be meaningful cooperation, the court

must find that there [are] no further useful or beneficial services [that can be

provided by the Agency], and, therefore, the Court does find that the motion is

well taken[.]” (Tr. at 27-28). The trial court subsequently ordered the disposition

to be modified from temporary custody to legal custody of A.M.A. to the Martins

“until such time as either parent can demonstrate to the Court that they are able to




                                        -9-
Case No. 3-13-02


resume the responsibilities and duties of parenting this child such that a

modification of the Order would be appropriate.”1 (JE, Dec. 5, 2011 at 2-3).

         {¶24} Heather now appeals, asserting the following assignment of error.

         THE TRIAL COURT ERRED IN DETERMINING
         CRAWFORD COUNTY JOB AND FAMILY SERVICES
         MADE REASONABLE EFFORTS TO ELIMINATE THE
         CONTINUED REMOVAL OF THE CHILD FROM THE
         CHILD’S HOME AND TO MAKE IT POSSIBLE FOR THE
         CHILD TO RETURN SAFELY HOME AS REQUIRED BY
         OHIO REVISED CODE SECTION 2151.419(A)(1)

         {¶25} In her sole assignment of error, Heather claims that the trial court

erred in determining that the Agency made reasonable efforts to prevent the

continued removal of A.M.A. from her home pursuant to R.C. 2151.419.

         {¶26} At the outset, we note that an award of legal custody does not

permanently deprive Heather of her parental rights, and parents whose children are

in the legal custody of an agency or other person may petition the court for

modification of the custody award. In re M.D. 10th Dist. Franklin No. 07AP–954,

2008–Ohio–4259, ¶ 16. See also R.C. 2151.353(E)(2). The juvenile court may

award legal custody of a child to a non-parent where a preponderance of the

evidence supports the conclusion that such an award is in the best interest of the

child. In re N.F., 10th Dist. Franklin No. 08AP–1038, 2009–Ohio–2986, ¶ 9.

This contrasts with an award of permanent custody, which must be supported by

1
  We note that, during the course of the proceedings, A.M.A.’s father was identified and legally determined
to be her biological father. However, he did not actively participate in the trial court proceedings, despite
being properly served with notice.

                                                   -10-
Case No. 3-13-02


clear and convincing evidence. Id. (stating that an award of “legal custody where

parental rights are not terminated is not as drastic a remedy as permanent

custody.”). Further, “preponderance of the evidence” means evidence that is more

probable, more persuasive, or of greater probative value. Id.

       {¶27} Determining an appropriate disposition is left to the sound discretion

of the court. In re M.D., 2008–Ohio–4259 at ¶ 21. The court “must also consider

which situation will best promote the care, protection, and mental and physical

development of the child with the understanding that the court should separate a

child from his family environment only when necessary for the child’s welfare or

in the interest of public safety.” In re T.P., 12th Dist. Clinton No. CA2012–02–

004, 2012–Ohio–4614, ¶ 7, citing R.C. 2151.01(A).

       {¶28} Accordingly, this Court may not reverse a juvenile court’s choice of

dispositional alternatives in the absence of a finding that the court abused its

discretion, i.e., acted unreasonably, arbitrarily or unconscionably. In re M.D. at ¶

22. We reverse its choice of disposition only where a juvenile court’s decision

regarding a child’s best interest is not supported by competent, credible evidence

and is unreasonable.

       {¶29} As previously discussed, the Revised Code imposes a duty on the

part of children services agencies to make reasonable efforts to reunite parents

with their children where the agency has removed the children from the home.


                                       -11-
Case No. 3-13-02


R.C. 2151.419; see, also, In re Brown, 98 Ohio App.3d 337, 344 (3d Dist. 1994).

Further, the agency bears the burden of showing that it made reasonable efforts.

R.C. 2151.419(A)(1).     “Case plans are the tools that child protective service

agencies use to facilitate the reunification of families who * * * have been

temporarily separated.” In re Evans, 3d Dist. Allen No. 1–01–75, 2001–Ohio–

2302. To that end, case plans establish individualized concerns and goals, along

with the steps that the parties and the agency can take to achieve reunification. Id.

Agencies have an affirmative duty to diligently pursue efforts to achieve the goals

in the case plan. 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.” In

re Leveck, 3d Dist. Hancock Nos. 5–02–52, 5–02–53, 5–02–54, 2003–Ohio–1269,

¶ 10.    We also note that the statute provides that in determining whether

reasonable efforts were made, the child’s health and safety is paramount. See R.C.

2151.419(A)(1)

        {¶30} In this case, the record demonstrates that Heather has a significant

history of ongoing and chronic mental illness, which has often been left untreated

due to her refusal to admit that she suffers from a mental illness. The record

suggests that Heather’s struggle with mental illness has in the past interfered with

her ability to parent, which resulted in A.M.A.’s older sibling being removed from


                                        -12-
Case No. 3-13-02


Heather’s care and placed with the Martins. The record also reflects that there is a

real concern that Heather is unable to provide for the basic needs of a small child.

Specifically, based on his assessment of Heather, Dr. Tennenbaum concluded the

following regarding her current ability to raise a young child.

       Further, diagnostically, as has been noted historically, Heather’s
       paranoid thinking will further compromise interpersonal
       relationships, particularly as this interfaces with the ability to
       safely and effectively raise any children. * * * While Heather
       works to present herself effectively, concerns are multi-layered
       as case planning considers reunification. She not only discounts,
       but seems to ignore her own history; she projects blame and
       takes no accountability, at least from what she shares with me,
       in having contributed to concerns that have been documented
       since mid-childhood. At times that she has been frankly
       psychotic, as has been documented repeatedly, Heather cannot
       be viewed as capable of protecting any small child, her history of
       behavioral acting-out, and lashing-out further compromising
       prognosis. Her condition appears chronically problematic. The
       effort must be toward providing parenting classes, and
       supportive but insight-seeking counseling, as this interfaces with
       psychiatric follow-up.

(GAL Ex. A at 7-8).

       {¶31} Thus, given Heather’s extensive and ongoing psychological history,

the Agency’s ability to monitor Heather’s progress with her psychiatric treatment

is critical. The record demonstrates that Heather has obstructed the Agency’s

ability to monitor her progress by revoking the releases to allow the Agency to

obtain information from her service providers and refusing to participate in

unannounced home visits. Both of these are case plan objectives that were put in


                                        -13-
Case No. 3-13-02


place by the Agency to allow Heather the opportunity to demonstrate that she is

capable of providing for A.M.A.’s basic needs and that her mental health issues no

longer pose a danger to A.M.A.’s well-being. It is apparent from the record that

the Agency is limited in what it can do to assist Heather in working towards

reunification with A.M.A. without her cooperation.          However, as previously

discussed, due to the impermanent nature of the legal custody disposition, Heather

is not foreclosed from petitioning the court for a modification of the custody

award. Moreover, if Heather chooses to take the appropriate steps to demonstrate

that she is capable of providing for A.M.A’s basic needs she will increase the

chances that her petition is successful.

       {¶32} We also note that the record supports the trial court’s finding that it is

in A.M.A.’s best interest to grant legal custody to the Martins until Heather

chooses to take steps to demonstrate that she is capable of parenting A.M.A.

Testimony at the motion hearing indicates that the Martins have provided a safe

and stable home in which A.M.A. is thriving.

       {¶33} Based on the foregoing, we find that the Agency’s case planning and

efforts were reasonable and diligent under the circumstances of this case. We also

find that there is competent, credible evidence in the record to support the trial

court’s determination that modification of the disposition from temporary custody




                                           -14-
Case No. 3-13-02


to legal custody of A.M.A. to the Martins is in A.M.A.’s best interest. Therefore,

we find no error with the trial court’s ruling.

       {¶34} The assignment of error is overruled and the judgment of the

Crawford County Juvenile Court is affirmed.

                                                              Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




                                         -15-
