[Cite as In re M.J.C., 2019-Ohio-2353.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

                                                :
                                                :
 IN RE: M.J.C.                                  :   Appellate Case No. 28295
                                                :
                                                :   Trial Court Case No. 2016-6797
                                                :
                                                :   (Appeal from Common Pleas Court –
                                                :   Juvenile Division)
                                                :
                                                :

                                           ...........

                                          OPINION

                             Rendered on the 14th day of June, 2019.

                                           ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Appellee, M.C.C.S.

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
      Attorney for Appellant, Father

                                          .............
                                                                                       -2-


DONOVAN, J.

      {¶ 1} Petitioner-appellant Father appeals from a judgment of the Montgomery

County Court of Common Pleas, Juvenile Division, which terminated his parental rights

and granted permanent custody of Father’s child, M.J.C., to Montgomery County Children

Services (hereinafter referred to as “MCCS”). Father filed a timely notice of appeal with

this Court on February 14, 2019.1

      {¶ 2} Initially, we note that Father and Mother have had three other children

removed from their custody by MCCS. The record establishes that in April 2011, the

juvenile court terminated Mother’s parental rights to C.M.1. REB Tr. 8.2 In June 2012,

the juvenile court terminated Mother’s parental rights to C.M.2. REB Tr. 7. In June

2015, the juvenile court terminated Mother and Father’s parental rights to C.C. REB Tr.

8. MCCS caseworker Cathy Stokes testified that her concerns with Father when C.C.

was removed were a lack of stable and appropriate housing, inappropriate parenting

practices, and a pattern of domestic violence. REB Tr. 9.       Stokes testified that her

concerns for Mother when the other children were removed were her failure to properly

address the domestic violence perpetrated by Father, a lack of stable and appropriate

housing, inappropriate parenting practices, and income issues. REB Tr. 9-10.

      {¶ 3} On October 31, 2016, Mother gave birth to M.J.C. When MCCS became

aware of the child’s birth, it opened a case file on M.J.C. based upon Mother and Father’s



1 We note that, although Mother's parental rights regarding M.J.C. were also terminated
in this case, Mother did not appeal from the trial court's judgment. Therefore, on appeal,
we need only address the merits of the trial court's judgment as it relates to Father.
2 The transcript for the Reasonable Efforts Bypass hearing will be referred to as “REB
Tr.”
                                                                                      -3-


history with the agency. On November 3, 2016, MCCS filed a complaint alleging that

M.J.C. was a dependent child and requesting temporary custody. On November 4,

2016, the trial court granted MCCS interim protective supervision of M.J.C. In a decision

issued on December 13, 2016, the juvenile court adjudicated M.J.C. to be a dependent

child and granted protective supervision to MCCS. Father was placed on the case plan

with the following objectives: obtain a mental health assessment and follow the

recommendations; obtain a drug and alcohol assessment; obtain and maintain stable

housing; obtain and maintain sufficient income; complete parenting and domestic

violence   classes;   complete    anger    management      classes   and    follow   any

recommendations; submit to random drug screening; and sign releases of information.

      {¶ 4} In early January 2017, Mother reported to the police and MCCS that Father

had struck her in the face, giving her a black eye. As a result of the domestic violence,

Father was arrested and incarcerated, and on January 13, 2017, M.J.C. was placed in

the interim temporary custody of MCCS. Ultimately, Father was convicted of domestic

violence and sentenced to two years in prison. On January 24, 2017, MCCS filed a

motion to bypass reasonable efforts at reunification. On May 24, 2017, a hearing was

held before the magistrate with respect to MCCS’s motion for a reasonable efforts bypass.

On the same day, the magistrate issued a decision granting said motion. Father was

incarcerated at the time of the hearing, but he was represented by counsel who was

present.

      {¶ 5} Father filed objections and supplemental objections to the magistrate’s

decision on May 26, 2017, and June 6, 2017, respectively. The juvenile court overruled

Father’s objections and adopted the magistrate’s decision granting MCCS’s motion for a
                                                                                      -4-


reasonable efforts bypass in a judgment issued on September 22, 2017.             Father

appealed the juvenile court’s judgment, but we dismissed Father’s appeal for lack of a

final appealable order. (Decision and Entry, CA 27752, December 1, 2017.)

         {¶ 6} On November 30, 2017, MCCS filed a motion for permanent custody of

M.J.C.     A hearing was held before the magistrate regarding MCCS’s motion for

permanent custody on March 8, 2018.        At the time of the hearing, Father was still

incarcerated, but he was present at the hearing with his counsel.        At the hearing,

evidence was adduced that, due to Father’s ongoing incarceration, he was unable to

complete any of his case plan objectives. MCCS caseworker Jeffrey Johnson testified

that he met with Father in prison in order to discuss his case plan objectives and review

any programs the prison offered. Johnson testified that Father indicated that he had not

participated in any programs at the prison, but he had made some inquiries. Johnson

testified that at no point after their meeting did Father contact MCCS regarding any

progress he had made on his case plan. At the time of the permanent custody hearing,

MCCS was unable to verify whether Father had completed any of his case plan

objectives. Johnson also testified that MCCS was unable to locate any relatives of

Mother or Father with whom M.J.C. could be placed.

         {¶ 7} M.J.C.’s foster mother, Jeana, also testified at the permanent custody

hearing. Jeana testified that M.J.C. had been under her and her husband’s care and

supervision since January 10, 2017.3 Jeana also testified that, in addition to caring for

M.J.C., she had already adopted two of his biological brothers who had previously been


3 As previously stated, the permanent custody hearing was held before the magistrate on
March 8, 2018. Accordingly, at the time of the hearing, M.J.C. had been in Jeana’s care
for approximately 13 months.
                                                                                           -5-


removed from Mother’s custody.         Jeana testified that M.J.C. had bonded with his

brothers and the whole family, in general. Jeana testified that M.J.C. was meeting his

developmental milestones and was eating and sleeping well. Jeana testified that M.J.C.

was an overall happy child and that she and her husband were considering adopting him.

       {¶ 8} In a decision issued on April 20, 2018, the magistrate granted MCCS’s

motion for permanent custody of M.J.C. Father filed timely objections and supplemental

objections to the magistrate’s decision.       On February 5, 2019, the juvenile court

overruled Father’s objections and awarded permanent custody of M.J.C. to MCCS.

       {¶ 9} It is from this judgment that Father now appeals.

       {¶ 10} For clarity’s sake, we will address Father’s second assignment of error out

of sequence as follows:

       THE JUVENILE COURT ERRED WHEN IT ALLOWED A REASONABLE

       EFFORTS BYPASS.

       {¶ 11} In his second assignment, Father contends that the juvenile court erred by

granting MCCS’s motion for a reasonable efforts bypass. Specifically, Father argues

that, since his parental rights to C.C. were terminated prior to the birth of M.J.C., C.C. and

M.J.C. were not “siblings” pursuant to R.C. 2151.419(A)(2)(e), and therefore, the statute

did not apply in the instant case.

       {¶ 12} R.C. 2151.419(A)(1) states in pertinent part:

       Except as provided in division (A)(2) of this section, at any hearing held

       pursuant to section 2151.28, division (E) of section 2151.31, or section

       2151.314, 2151.33. or 2151.353 of the Revised Code at which the court

       removes a child from the child's home or continues the removal of a child
                                                                                       -6-


      from the child's home, the court shall determine whether the public children

      services agency or private child placing agency that filed the complaint in

      the case, removed the child from home, has custody of the child, or will be

      given custody of the child has made reasonable efforts to prevent the

      removal of the child from the child's home, to eliminate the continued

      removal of the child from the child's home, or to make it possible for the

      child to return safely home. The agency shall have the burden of proving

      that it has made those reasonable efforts. * * * In determining whether

      reasonable efforts were made, the child's health and safety shall be

      paramount.

      {¶ 13} Although the juvenile court is generally required to determine whether the

agency has made reasonable efforts to reunify the child and parent(s), and it is up to the

agency to prove that such reasonable efforts took place, R.C. 2151.419(A)(2) provides:

      If any of the following apply, the court shall make a determination that the

      agency is not required to make reasonable efforts to prevent the removal of

      the child from the child's home, eliminate the continued removal of the child

      from the child's home, and return the child to the child's home:

      ***

      (e) The parent from whom the child was removed has had parental rights

      involuntarily terminated pursuant to section 2151.353, 2151.414, or

      2151.415 of the Revised Code with respect to a sibling of the child.

      {¶ 14} In the instant case, the juvenile court found that MCCS did not have to show

reasonable reunification efforts on the grounds that Father had previously had his
                                                                                           -7-

parental rights involuntarily terminated with respect to C.C. Father cites In re Nicholas

P., 169 Ohio App.3d 570, 2006-Ohio-6213, 863 N.E.2d 1102 (6th Dist.), in support of his

argument that C.C. and M.J.C. were not “siblings” pursuant to R.C. 2151.419(A)(2)(e),

because his parental rights to C.C. were terminated prior to the birth of M.J.C.

       {¶ 15} In Nicholas, the trial court granted the agency's request to “bypass” the

mandatory showing of reasonable efforts to reunify the family on the grounds that the

parents had previously had their parental rights involuntarily terminated. Id. at ¶ 34, citing

R.C. 2151.419(A)(2)(e). The appellate court acknowledged that the statute set forth is

an exception to the reasonable efforts requirement; however, it also pointed out that R.C.

2151.419(A)(3) provides the trial court with the discretion to override the exceptions listed

in (A)(2). Id. at ¶ 34-36.

       {¶ 16} R.C. 2151.419(A)(3) states: “[a]t any hearing in which the court determines

whether to return a child to the child's home, the court may issue an order that returns the

child in situations in which the conditions described in divisions (A)(2)(a) to (e) of this

section are present.” Id. at ¶ 35. Under the facts of Nicholas, the appellate court found

that the only reason that the “bypass” of the reasonable efforts showing was granted was

because the parents had previously had their parental rights involuntarily terminated in

the past. Id. at ¶ 37. In fact, there was evidence that the parents had continued in and

arguably benefited from the services that were provided to them in their previous child's

custody case. Id. at ¶ 7. Thus, the appellate court held that, under those particular

circumstances, the trial court should have exercised its discretionary powers and should

not have applied the “bypass” exception, because the agency had “failed to provide

current, affirmative evidence of the parent's unfitness and inability to care for the child.”
                                                                                           -8-

Id. at ¶ 39.

       {¶ 17} Initially, we note that the Nicholas court did not find that termination of

parental rights severs the sibling relationship for the purposes of applying R.C.

2151.419(A)(2)(e). Rather, we agree with the reasoning of the Ninth District Court of

Appeals in In re A.W., 195 Ohio App.3d 379, 2011-Ohio-4490, 960 N.E.2d 379. In that

case the court held that, although “the legislature did not qualify the word ‘sibling’ in any

manner[,]” a previous termination of parental rights does not negate the sibling

relationship established by virtue of the children having a common biological parent. Id.

at ¶ 12. Moreover, we have treated children as siblings in similar permanent custody

proceedings when applying other statutes requiring a sibling relationship. See A.L., 2d

Dist. Montgomery No. 26772, 2016-Ohio-423.                 Specifically, we applied R.C.

2151.414(E)(11), which requires a sibling relationship, in a permanent custody analysis

involving a child who had not yet been born prior to the termination of a mother’s parental

rights to her older children. Id. at ¶ 53-54. Therefore, we find that M.J.C. and C.C.’s

sibling relationship survived the termination of Father’s parental rights with respect to

C.C., and the trial court did not err when it applied R.C. 2151.419(A)(2)(e) in granting

MCCS’s motion for reasonable bypass.

       {¶ 18} Relying on Nicholas again, Father also argues that “[a] prior adjudication of

permanent custody, however, simply should not and does not constitute a de facto

termination of parental rights as to later born children.” Id. at ¶ 18. In Nicholas, the court

found that the parents had made reasonable efforts but had not completed their case plan

prior to the termination proceeding. The court also stated that the evidence further

showed that the parents voluntarily continued with services and had successfully
                                                                                           -9-


completed their previous case plan requirements prior to the grant of permanent custody

of the child.

       {¶ 19} Accordingly, Nicholas found that the trial court abused its discretion in

waiving the reasonable efforts requirement pursuant to R.C. 2151.419(A)(2)(e).

Specifically, the court found that the juvenile court could not make a de facto decision to

grant permanent custody based upon the prior termination of rights where (1) unsuitability

had not been the basis for the prior terminations and (2) the parents had voluntarily

completed required case plan objectives prior to the permanent custody hearing.

Essentially, the Nicholas court held that, based upon the record, the prior termination of

rights alone was insufficient to show by clear and convincing evidence that the children

could not be placed with a parent within a reasonable period of time or should not be

placed with a parent or that permanent custody was in the children's best interest.

       {¶ 20} In the instant case, however, prior to the grant of the reasonable efforts

bypass, the parties had already stipulated to an adjudication of dependency with respect

to M.J.C. Additionally, whereas evidence was adduced that the issues leading to the

removal of the child in Nicholas had been remedied, no evidence of Father’s compliance

with the case plan objectives existed in the instant case. At the time of the bypass

hearing, Father was incarcerated and had not made any progress regarding his case plan

objectives. At the bypass hearing, MCCS caseworker Stokes testified that, with respect

to C.C., the agency had previously been concerned with Father’s ability to find and

maintain stable housing, domestic violence issues, and parenting practices.           Stokes

testified that MCCS had the same concerns in the instant case regarding M.J.C. Thus,

we conclude that the trial court did not rely solely upon Father’s prior termination of rights
                                                                                        -10-


regarding C.C. when it granted MCCS’s motion for a reasonable efforts bypass. Rather,

additional evidence of Father’s unsuitability was adduced which supported the juvenile

court’s decision. Therefore, the juvenile court’s grant of the reasonable efforts bypass

was not a “de facto termination of parental rights.”

       {¶ 21} Father’s second assignment of error is overruled.

       {¶ 22} Father’s first assignment is as follows:

       THE JUVENILE COURT ERRED WHEN IT GRANTED PERMANENT CUSTODY

       OF THE CHILD TO [MCCS].

       {¶ 23} In his first assignment, Father argues that the juvenile court erred when it

awarded permanent custody of M.J.C. to MCCS, finding that it was in the child’s best

interest. Specifically, Father contends that he should have been allowed to work on his

case plan objectives after his release from prison and that the juvenile court should not

have granted permanent custody of M.J.C. to MCCS until he had the opportunity to do

so.

       {¶ 24} R.C. 2151.414(B)(1) establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The statute

requires the court to find, by clear and convincing evidence, that: (1) granting permanent

custody of the child to the agency is in the best interest of the child; and (2) either the

child (a) cannot be placed with either parent within a reasonable period of time or should

not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;

(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of

the child; or (d) has been in the temporary custody of one or more public or private

children services agencies for twelve or more months of a consecutive twenty-two month
                                                                                          -11-

period. In the Matter of H.M., E.M., B.M., Jr., L.M. and W.M., 2d Dist. Greene No. 2017-

CA-42, 2018-Ohio-989, citing R.C. 2151.414(B)(1).

       {¶ 25} R.C. 2151.414(D) directs the trial court to consider all relevant factors when

determining the best interest of the child, including but not limited to: (1) the interaction

and interrelationship of the child with the child's parents, relatives, foster parents and any

other person who may significantly affect the child; (2) the wishes of the child; (3) the

custodial history of the child, including whether the child has been in the temporary

custody of one or more public children services agencies or private child placing agencies

for twelve or more months of a consecutive twenty-two-month period; (4) 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; and (5) whether any of the

factors in R.C. 2151.414(E)(7) through (11) are applicable.

       {¶ 26} As previously stated, at the time of the permanent custody hearing, Father

was still incarcerated.   At the hearing, evidence was adduced that due to Father’s

ongoing incarceration, he was unable to complete any of his case plan objectives.

MCCS caseworker Johnson testified that he met with Father in prison in order to discuss

his case plan objectives and review any programs the prison offered. Johnson testified

that Father indicated that he had not participated in any programs at the prison, but he

had made some inquiries. Johnson testified that at no point after their meeting did Father

contact MCCS regarding any progress he had made on his case plan. Additionally, at

the time of the permanent custody hearing, MCCS was unable to verify whether Father

had completed any of his case plan objectives. Johnson also testified that MCCS was

unable to locate any relatives of Mother or Father with whom M.J.C. could be placed.
                                                                                         -12-


       {¶ 27} Furthermore, Jeana, M.J.C.’s foster mother, also testified at the permanent

custody hearing. Jeana testified that M.J.C. had been in her and her husband’s care

since January 10, 2017. Jeana also testified that in addition to caring for M.J.C., she

had already adopted two of his biological brothers who had previously been removed

from Mother’s custody. Jeana testified that M.J.C. had bonded with his brothers and the

whole family, in general. Jeana testified that M.J.C. was meeting his developmental

milestones and was eating and sleeping well. Jeana testified that M.J.C. was an overall

happy child and that she and her husband were considering adopting him.

       {¶ 28} Finally, we note that the guardian ad litem indicated that the M.J.C.'s best

interest would be served by granting permanent custody to MCCS. Father expressed

the desire to retain custody of M.J.C., but he failed to comply with the terms of his case

plan, which was designed to aid him in rectifying the problems that resulted in MCCS's

intervention. We note again that Father was incarcerated for almost the entirety of

M.J.C.’s custody proceedings because he was convicted of domestic violence against

Mother. Specifically, the record establishes that Father failed to maintain stable housing,

failed to find a stable and sufficient income source, and had a significant, ongoing

domestic violence problem that he failed to properly address by the time of the permanent

custody hearing.

       {¶ 29} A juvenile court's judgment on termination “will not be overturned as against

the manifest weight of the evidence if the record contains competent, credible evidence

by which the court could have formed a firm belief or conviction that the essential statutory

elements for a termination of parental rights have been established.” (Citations omitted).

In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. Furthermore, “issues
                                                                                           -13-


relating to the credibility of witnesses and the weight to be given the evidence are primarily

for the trier of fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 22.

The “rationale of giving deference to the findings of the trial court rests with the knowledge

that the trial judge is best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the credibility of

the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984); In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33.

       {¶ 30} Our review of the record, transcript, and exhibits establishes that there was

clear and convincing evidence which supported the juvenile court's determination that the

statutory elements for termination under R.C. 2151.414(B) had been satisfied. Thus, the

juvenile court did not err when it awarded permanent custody of M.J.C. to MCCS.

       {¶ 31} Father’s first assignment of error is overruled.

       {¶ 32} Father's assignments of error having been overruled, the judgment of the

juvenile court is affirmed.

                                      .............



WELBAUM, P.J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Robert Alan Brenner
Jeffrey Livingston
Byron Shaw, GAL
Hon. Helen Wallace
