[Cite as In re A.R., 2019-Ohio-389.]


                                           COURT OF APPEALS
                                          STARK COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


IN THE MATTERS OF:                              :       JUDGES:
                                                :       Hon. William B. Hoffman, P.J.
        A.R.                                    :       Hon. Craig R. Baldwin, J.
        B.R.                                    :       Hon. Patricia A. Delaney, J.
        W.R.                                    :
                                                :
                                                :       Case No. 2018CA00091
                                                :                2018CA00097
                                                :                2018CA00098
                                                :
                                                :       OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Stark County Court
                                                        of Common Pleas, Family Court
                                                        Division, Case Nos. 2016JCV1124,
                                                        2016JCV1125, 2016JCV1126



JUDGMENT:                                               Affirmed


DATE OF JUDGMENT:                                       February 6, 2019



APPEARANCES:

For Plaintiff-Appellant Judi Morris                     For Defendant-Appellee

BETH A. LIGGETT                                         JAMES B. PHILLIPS
Stark County Public Defender                            Stark County Department
201 Cleveland Ave. S.W., Suite 104                      of Job and Family Services
Canton, Ohio 44702                                      221 Third St. S.E.
                                                        Canton, Ohio 44702
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                           2

Baldwin, J.

       {¶1}   Appellant, Mother of the three juveniles who are the subject of this case,

appeals the decision of the Stark County Court of Common Pleas, Family Court Division,

granting the state’s motion for permanent custody of B.R. and his siblings, W.R. and A.R.

The appellee is the State of Ohio.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellant’s children, B.R., W.R., and A.R., were taken into the temporary

custody of Stark County Department of Jobs and Family Services (Agency) in December

2016 after an unsuccessful non-court intervention beginning in April 2016 failed to resolve

the issues brought to the attention of the Agency. A case plan was established and

approved but the Agency concluded that mother failed to make sufficient progress toward

completion of the plan and, in April 2018, filed for permanent custody. After a hearing in

June 2018 permanent custody of the children was granted to the Agency. Appellant

contends she was making progress on the plan and should be allotted an additional six

months to complete the goals and regain custody of her children.

       {¶3}   Appellant has a history with the Agency beginning before 2000, but despite

continued contact and services, the issues regarding parenting remained unresolved.

Appellant lost custody of three children in 2001 due to medical neglect and abuse and

was convicted of child endangering. The Agency received multiple complaints of neglect

and maltreatment of A.R. since her birth in 2003 and both A.R. and B.R were removed

from the appellant’s care in 2005 due to allegations of neglect. Appellant completed a

case plan in 2006 and the children were returned to her custody, but the Agency
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                          3


continued to receive calls reporting concerns about the emotional, medical and physical

mistreatment of the children.

      {¶4}   The Agency provided services in a non-court related case beginning in April

2016, but the attempt to resolve the problems brought to the Agency’s attention was

unsuccessful. The Agency received additional reports of neglect and dependency of the

children as well as allegations of abuse by their father who allegedly choked B.R. On

December 6, 2016, the Agency filed a complaint alleging the children were dependent

and neglected. An ex parte order was granted, putting the children in the temporary

custody of the Agency. The complaint came on for hearing and the Agency dismissed

the allegation of neglect and appellant admitted to the dependency of the children. The

father did not appear at the hearing and the state presented evidence regarding his

parental rights and responsibilities. The trial court found the children dependent.

      {¶5}   A case plan to reunify the children with appellant was submitted by the

Agency and approved by the Court. The plan required appellant to complete a parenting

evaluation at Northeast Ohio Behavioral Health. Appellant completed the evaluation and

was offered the following case plan services: complete a drug/alcohol assessment and

follow all recommendations; complete Goodwill Parenting; participate in anger

management at Free Space; and maintain stable housing and income. The case plan

was filed on January 4, 2017 and was incorporated into the order granting the agency

temporary custody on March 1, 2017. An amended case plan was filed on June 2, 2017

and, on November 1, 2017, the agency filed a motion to extend temporary custody.

      {¶6}   Appellant made minimal progress toward the completion of her case plan

over the period of time in which the children were in temporary custody. She successfully
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                              4


completed the drug and alcohol assessment and there were no further issues regarding

the abuse of drugs or alcohol. However, her compliance with the remaining and more

important elements of her case plan fell short of fulfilling any of the requirements. Aimee

Thomas, Ph.D., J.D., PCC-S, the psychologist and professional licensed clinical counsel

that evaluated appellant, concluded that appellant had not made successful progress

toward the resolution of the issues that led to the removal of the children. The case worker

assigned to appellant felt that additional time would not alter the status of the case and

the evidence that appellant has received some of the same services in the past provides

significant support to her conclusion.

       {¶7}   Appellant appeared at all appointments and visits with minor exceptions and

the witnesses for the state conceded that her attendance was appropriate. Despite her

regular attendance at the Good Will Parenting Program and Free Space Anger

Management, she failed to make any progress toward resolving the problems that caused

the children to be removed from the home. She failed to complete even a minimal number

of course requirements at the Good Will Parenting Program, was unable to articulate and

work toward goals and failed to internalize the information provided and use it to properly

parent and interact with her children.

       {¶8}   Appellant did appear at scheduled visits with her children, but did not

interact with them, even after staff intervened. She would not speak to the children unless

they first spoke with her.      Visitation with B.R. and W.R. was terminated at the

recommendation      of   the   children’s   therapist,   who   believed   the   visits   were

counterproductive to the children’s progress, the children had behavior problems after the

visit and they told their therapists they did not want to continue visits with appellant. The
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                            5


last visit with B.R. was March 7, 2017 and the last visit with W.R. was September 29,

2017. From that date until the hearing on the motion for permanent custody appellant did

not request a visit and there is nothing in the record to show that she had any contact with

either B.R. or W.R. in that time.

       {¶9}   Appellant attended anger management classes and completed the

program, but failed to make any progress. She had no insight into the impact of abuse

on the children and made no progress toward recognizing how abuse and neglect

affected them. She refused to accept any responsibility for the inappropriate physical

disciplining of the children, casting the blame on the children’s behavior problems.

       {¶10} Appellant was currently residing with two people who had been convicted

of child endangerment, in a home that was found to be unsafe for the children during a

planned visit. Appellant had received instruction regarding how to prepare the home for

the return of the children, the opportunity to make the changes and notice of the date of

the visit and still failed to prepare a suitable space for the children.

       {¶11} The children, B.R., W.R. and A.R. suffered from multiple problems that

would make parenting them difficult for any person. B.R. suffers from suicidal and

homicidal ideations, depressive disorder, ADHD, autism spectrum disorder and is

intellectually disabled. A.R. has major depressive disorder, destructive mood

dysregulation disorder, has expressed suicidal and homicidal ideations, and had been

hospitalized as a result. W.R. is intellectually disabled, has ADHD, seizures, unspecified

affective mood disorder and PTSD. These problems made it even more imperative for

appellant to work diligently to address the issues that led to the removal of the children
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                         6


from the home. Her failure to make any progress led the case worker to conclude that

appellant could not safely care for any of the children.

       {¶12} The Agency filed a motion seeking permanent custody of the children on

April 27, 2018 and the matter was heard on June 12, 2018. The trial court terminated

appellant’s parental rights and granted permanent custody to the Agency on June 14,

2018 and appellant filed a timely appeal and submitted three assignments of error:

       {¶13} “I. THE TRIAL COURT'S DECISION THAT SCDJFS MET THE

STATUTORY FINDINGS FOR PERMANENT CUSTODY IS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

       {¶14} “II. SCDJFS' WITHHOLDING OF VISITATION DOES NOT CONSTITUTE

ABANDONMENT BY APPELLANT.”

       {¶15} “III. THE TRIAL COURT'S DECESION THAT TERMINATION OF

PARENTAL RIGHTS WAS IN THE BEST INTEREST OF THE CHILDREN IS AGAINST

THE MAINIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

                                        ANALYSIS

       {¶16} We will address appellant’s first and third assignments of error together as

they both claim the decision of the trial court was against the manifest weight of the

evidence and was based upon insufficient evidence. As an appellate court, we neither

weigh the evidence nor judge the credibility of the witnesses. Our role is to determine

whether there is relevant, competent and credible evidence upon which the fact finder

could base its judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL

2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed as being
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                                  7

against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54

Ohio St.2d 279, 376 N.E.2d 578 (1978). On review for manifest weight, the standard in a

civil case is identical to the standard in a criminal case: a reviewing court is to examine

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine “whether in resolving conflicts in the evidence, the

jury [or finder of fact] clearly lost its way and created such a manifest miscarriage of justice

that the conviction [decision] must be reversed and a new trial ordered.” State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins,

78 Ohio St.3d 380, 678 N.E.2d 541, 1997-Ohio-52; Eastley v. Volkman, 132 Ohio St.3d

328, 972 N.E.2d 517, 2012-Ohio-2179. In weighing the evidence, however, we are always

mindful of the presumption in favor of the trial court's factual findings. Eastley at ¶ 21.

       {¶17} While not clearly stated in her assignments of error, the remedy appellant

requests is an extension of time to complete the tasks described in the case plan,

indirectly admitting that she has not completed the requirements of the case plan despite

her assertions regarding the progress she has made over the sixteen months that the

children have been in the temporary custody of the state. The decision to grant or deny

an extension of temporary custody lies in the discretion of the juvenile court. In re P.B.,

9th Dist. Summit No. 23276, 2006–Ohio–5419, ¶ 36, citing R.C. 2151.415(D)(1) and (2).

The juvenile court is authorized to exercise its discretion to extend temporary custody

only if it finds, by clear and convincing evidence, the following three things: “ ‘(1) that such

an extension is in the best interests of the child, (2) that there has been significant

progress on the case plan, and (3) that there is reasonable cause to believe that the child

will be reunified with a parent or otherwise permanently placed within the period of
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                               8

extension.’ ” In re J.P.–M., 9th Dist. Summit Nos. 23694 and 23714, 2007–Ohio–5412, ¶

12, quoting In re P.B. at ¶ 36. Before the juvenile court may grant either permanent

custody or a six-month extension of temporary custody, it must conduct a best interest

analysis. In re S.D., 9th Dist. Lorain Nos. 15CA010864 and 15CA010867, 2016–Ohio–

1493, ¶ 30. Accordingly, “[i]f permanent custody was in the children's best interests, the

alternative disposition of extending temporary custody was not.” Id., citing In re I.A., 9th

Dist. Summit No. 26642, 2013–Ohio–360, ¶ 10; see also In re N.M., 9th Dist. Summit No.

28118, 2016–Ohio–5212, ¶ 18.

       {¶18} We note that appellant presented no evidence to support her contention that

it would be in the best interest of the children to extend her case plan for an additional six

months. We find that the record does not contain clear and convincing evidence that

appellant has made significant progress on the case plan, or that there is reasonable

cause to believe that the children will be reunified with appellant within the period of

extension. The appellant relies upon her prior experience completing a court imposed

case plan in 2006 as some evidence that she is capable of complying with the state’s

requirements, given time. Appellant provided little detail regarding that contact with the

state in the 2005-2006 time period, and the lone fact that she has completed a case plan

over ten years ago can just as easily be interpreted as evidence that she failed to retain

any of the information provided by that experience. That interpretation, combined with

the evidence that the Agency attempted to resolve this matter with an out of court case

plan for six months leads inexorably to the conclusion that an additional six months is

unlikely to result in a reunification of the children with appellant. We cannot find that there
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                              9


is clear and convincing evidence that an extension is in the best interest of the children,

so we consider whether the trial court’s award of permanent custody serves that interest.

       {¶19} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

       {¶20} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that any of the following apply: (a) the child is not

abandoned or orphaned, and 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; (b) the child is

abandoned; (c) the child is orphaned and there are no relatives of the child who are able

to take permanent custody; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period.

       {¶21} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (1) the interaction and interrelationship of the child with

the child's parents, siblings, relatives, foster parents and out-of-home providers, and any

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

expressed directly by the child or through the child's guardian ad litem, with due regard
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                               10


for the maturity of the child; (3) the custodial history of the child; and (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.

       {¶22} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

       {¶23} If the child is not abandoned or orphaned, the focus turns to whether the

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

be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

       {¶24} As set forth in our statement of the facts and case above, we find there was

sufficient and substantial competent evidence appellant failed to remedy the problems

which initially caused the removal of the children from their home. Appellant failed to

complete her case plan services. We also find that appellant has abandoned B.R. and W.

R. as she has had no visit, contact or communication with B.R. since March 7, 2017 and

none with W. R. since September 29, 2017. Appellant excuses her failure by blaming the

Agency’s decision to terminate visitation due to the Mother’s behavior and the children’s

wishes. Appellant was represented by competent counsel and a guardian ad litem was
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                               11


appointed to protect her interests. We find no reason to believe that she was not aware

of other avenues to maintain contact with the children and the opportunity to reconnect

by devoting time and effort to completing the case plan. She failed to comply with the

Agency’s requirements and made no attempt to contact B. R. or W.R. Her failure to take

responsibility for the consequences of her own actions is consistent with the court’s

finding that she will likely never complete the requirement of the case plan.

       {¶25} Based upon the foregoing, we find the trial court's finding B.R. and W.R.

have been abandoned by appellant, that B.R., W.R. and A.R have been in the continuous

temporary custody of the Agency for twelve out of the last twenty-two consecutive months

and that the children could not be placed with either parent within a reasonable period of

time or should not be placed with the parents was not against the manifest weight of the

evidence. We further find the trial court's finding it was in the best interest of the children

to grant permanent custody to the Agency was not against the manifest weight of the

evidence. The children have mental health and emotional issues. A.R. has only an

unhealthy bond with appellant and the benefits of permanency outweigh any harm that

might be caused by the severing of the bond. B.R. and W. R. have no bond with appellant

so the benefits of permanency are in the child's best interests and the child will not be

harmed by the severing of a bond. All of the children have expressed a desire to not have

any further contact with appellant and the record contains unrebutted evidence that they

have little or no bond with each other. The children were improving in foster care, all of

the children are adoptable and they will benefit from a permanent resolution which cannot

be achieved without granting permanent custody.

       {¶26} Appellant’s first and third assignments of error are overruled.
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                               12


       {¶27} In her second assignment of error, appellant attempts to shift the blame for

her failure to visit B.R. and W.R. to the Agency because visitation was terminated by the

Agency upon the recommendation of the children’s therapists. Appellant contends she

cannot be held responsible for failure to visit when visits were prohibited by the Agency.

Her attempt to absolve herself only further exposes her focus on herself over her children.

       {¶28} The relevant Code section describes abandonment as a failure to visit or

maintain contact for more than ninety days. R.C. 2151.011(C). We find no error in the

trial court's determination that B.R. and W.R. were abandoned. Although the appellant

was unable to visit them because visitation was suspended, the record contains nothing

to suggest she was in any way prevented from maintaining contact with the children by

other means, such as telephone calls, letters or cards. It was the mother’s voluntary action

in failing to interact with the children in any way during visits, along with her failure to

begin making any progress on the case plan, which led to the suspension of visitation.

Under these facts, the trial court did not err in determining that B.R. and W.R. were

abandoned. In re C.C., 12th Dist. Warren No. CA2011-11-113, 2012-Ohio-1291, ¶¶ 18-

19.

       {¶29} Appellant’s contention that she was not made aware of the fact that she had

the option of contacting her children through other means is no defense to her failure to

make the attempt. The record contains no evidence that she made any attempt to contact

the children from the date that she last saw them in 2017, well over six months prior to

the filing of the motion for permanent custody.          We find that appellant bears the

responsibility for the lack of contact and that the trial court did not abuse its discretion in

finding the children abandoned.
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                  13


       {¶30} Appellant’s second assignment of error is overruled.

       {¶31} The decision of the Stark County Court of Common Pleas, Family Court

Division is affirmed.

By: Baldwin, J.

and Delaney, J. concur

Hoffman, P.J. concurs in part,
Dissents in part separately.
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                                           14

Hoffman, J., concurring in part, and dissenting in part

        {¶32} I concur in the majority’s analysis and disposition of Appellant’s first and

third assignments of error with respect to the trial court’s determination all three children

were in the continuous temporary custody of the Agency for 12 out of the last 22

consecutive months, and further that the three children cannot be placed with either

parent within a reasonable time or should be placed with them. I disagree with the

majority’s conclusion in its discussion of Appellant’s first assignment of error the evidence

supported Appellant abandoned B.R. and W.R.1 Accordingly, I dissent from the majority’s

decision to overrule Appellant’s second assignment of error.

        {¶33} I begin by noting under the two issue rule, if any one of the three grounds

found by the trial court to exist, i.e., R.C. 2151.414(B)(1)(a), (b), or (d), was supported by

the evidence, the decision would be affirmed. Appellant did not challenge the trial court’s

finding under R.C. 2151.414(B)(1)(d) the children were in the temporary custody of the

Agency for twelve or more months of a consecutive twenty-two month period. Having

failed to do so, Appellant’s arguments as to the trial court’s findings regarding R.C.

2151.414(B)(1)(a) and (b) are moot.

        {¶34} I also note it is internally inconsistent for a trial court to find both R.C.

2151.414(B)(1)(a) and (b) apply with regard to the same child. Subsection (a) applies

when the child is not abandoned [or orphaned] while subsection (b) applies when the child

is abandoned.2




1 The trial court’s Findings of Fact and Conclusions of Law with respect to B.R. does not find Appellant
abandoned B.R., although such finding is made in the Judgment Entry. The trial court’s determination
W.R. was abandoned is found in both its Findings of Fact and Conclusion of Law, and Judgment Entry.
2 If the trial court had indicated these were alternative findings, such internal inconsistency would be

eliminated.
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                                             15


        {¶35} I find the trial court’s decision Appellant abandoned B.R. and W.R. is not

supported by the evidence. The trial court based its decision on the fact Appellant had

failed to visit them for a period in excess of ninety days.3

        {¶36} I find the Agency’s decision to terminate Appellant’s visits, although justified

due to her inability to bond with the children during those visits, and because the visits

adversely affected the children, does not constitute abandonment. Appellant did not

voluntarily fail to appear at those visits. She appeared until ordered not to. Her failure to

visit thereafter was involuntary. During the pendency of the case, Appellant successfully

completed the drug and alcohol assessment, and there were no further issues regarding

her abuse of drugs and alcohol. Appellant appeared at all appointments and visits, with

minor exceptions. She had regular attendance at the Goodwill Parenting Program and

Free Space Anger Management. Conceding the fact Appellant demonstrated minimal

benefits from the programs, her compliance with the appearance and attendance

requirements belies a finding of abandonment when her ability to visit was take away

involuntarily. Such circumstances do not justify the family law equivalent of the death

penalty in a criminal case. In re Smith, 77 Ohio App.3d 1, 16 (1991).




3The trial court did not base its finding of abandonment on Appellant’s failure to maintain contact with the
children for more than ninety days.
Stark County, Case No. 2018CA00091, 2018CA00097, 2018CA00098                            16


       {¶37} I would affirm the trial court’s finding R.C. 2151.414(B)(1)(a) and (d) apply,

but would reverse its finding R.C. 2151.414(B)(1)(b) applies. However, because of the

two issue rule, I affirm the trial court’s decision to terminate Appellant’s parental rights

with respect to all three children.
