[Cite as In re A.W., 2016-Ohio-750.]




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




IN RE:

        A.W.,                                              CASE NO. 17-15-15

ADJUDGED DEPENDENT CHILD.
                                                           OPINION
[TINA BAKER – APPELLANT]




                  Appeal from Shelby County Common Pleas Court
                                  Juvenile Division
                           Trial Court No. 2014-DEP-0014

                                       Judgment Affirmed

                          Date of Decision: February 29, 2016




APPEARANCES:

        Robert E. Long III for Appellant

        Melissa L. Wood for Appellee
Case No. 17-15-15



PRESTON, J.

      {¶1} Appellant, Tina Baker (“Baker”), appeals the October 16, 2015

judgment entry of the Shelby County Court of Common Pleas, Juvenile Division,

granting the motion for legal custody filed by the Shelby County Department of

Job and Family Services, Children Services Division (“Agency”) and ordering

Betty Nichols (“Nichols”) to be the legal custodian of A.W. For the reasons that

follow, we affirm.

      {¶2} On August 25, 2014, the Agency filed a complaint alleging A.W.,

Baker’s natural child, to be a dependent child. (Doc. Nos. 1, 2). On that same

day, the Agency filed a motion requesting that the trial court grant ex parte,

emergency, temporary custody of A.W. to Nichols, a “kinship placement.” (Doc.

No. 3).   The trial court granted the Agency’s motion that day and granted

emergency custody of A.W. to Nichols. (Doc. No. 5). Following an August 28,

2014 shelter-care hearing, the trial court ordered that A.W. remain in the

temporary custody of Nichols pending a dispositional hearing. (Doc. No. 19).

      {¶3} On September 16, 2014, the Agency filed a case plan. (Doc. No. 22).

The case plan provided behaviors that must “change to reduce risk and address

safety issues of” A.W.:

            Tina’s mental health concerns will be addressed. Tina will

      learn parenting skills and techniques that will assist her in being


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      involved with [A.W.].      Tina will not reside in a home that has

      physical hazards, and will be able to pay her bills and provide for the

      family’s basic needs. Tina will not allow any contact between Glen

      [Baker, Baker’s husband,] and [A.W.].

(Id.). The case plan also stated, “[A.W.] has disclosed sexual abuse against Tina’s

husband, Glen Baker [“Glen”].” (Id.). The case plan provided, in part, that to

make these behavioral changes:

      1.    Tina will have a mental health assessment completed by an

      approved provider.      Tina will follow all recommendations and

      suggestions upon completion of the assessment.

      ***

      2.    Tina will work with an in-home coach during weekly visits

      with [A.W.] to address parent education and knowledge of a child

      who is [A.W.]’s age, and at her developmental level.

      3.    Tina will provide a safe and stable residence.

(Id.). The case plan stated that the family’s progress would be measured, in part,

as follows: “1. Tina will attend the mental health assessment and all subsequent

appointments as required. * * * 3. The agency will not receive any reports of

contact between Glen and [A.W.].” (Id.).

      {¶4} On September 24, 2014, following a September 17, 2014 adjudicatory

hearing, the trial court adjudicated A.W. a dependent child under R.C. 2151.04(C)

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and (D). (Doc. No. 24). The trial court ordered that A.W. remain in the temporary

custody of Nichols pending a dispositional hearing. (Id.).

       {¶5} On November 10, 2014, following an October 30, 2014 dispositional

hearing, the trial court approved the September 16, 2014 case plan but ordered that

it be amended “to provide for one to two phone calls a week between Tina Baker

and A.W.” (Doc. No. 33). The trial court also ordered that A.W. remain in the

temporary custody of Nichols subject to court-ordered, protective supervision in

accordance with A.W.’s best interests. (Id.).

       {¶6} On January 21, 2015, the Agency filed a consolidated motion to grant

legal custody to Nichols, to terminate Agency services, and to close the case.

(Doc. No. 35).

       {¶7} On February 5, 2015, the trial court held a hearing on the Agency’s

motion for legal custody. (See Doc. No. 42). The trial court denied the Agency’s

motion, finding that the Agency did not make “reasonable efforts to return A.W. to

the home of a parent as required by law” and stating several reasons for its

decision. (Id.).

       {¶8} On July 13, 2015, the Agency filed a consolidated motion to grant

legal custody to Nichols, to terminate Agency services, and to close the case.

(Doc. No. 52).




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       {¶9} On July 16, 2015, the Agency filed an amended case plan containing

provisions unchanged from the original, September 16, 2014 case plan. (See Doc.

Nos. 53, 54).

       {¶10} The trial court held a hearing on the Agency’s motion for legal

custody on October 1, 2015. (See Oct. 1, 2015 Tr. at 6). On October 16, 2015, the

trial court issued the judgment entry that is the subject of this appeal. (Doc. No.

62). In it, the trial court granted the Agency’s motion for legal custody and

ordered Nichols to be the legal custodian of A.W. (Id.). Among its other orders,

the trial court ordered that the Agency “remain involved * * * for a period of 180

days for support of the ongoing services for A.W.” (Id.). The trial court also

ordered that Baker be allowed Agency-supervised visitation with A.W. under the

visitation schedule in effect at the time.    (Id.).

       {¶11} Baker filed a notice of appeal on October 26, 2015. (Doc. No. 63).

She raises two assignments of error for our review, which we address together.

                             Assignment of Error No. I

       The trial court erred in finding that the Shelby County
       Department of Job and Family Services – Children Services
       Division (Children Services) made reasonable efforts to prevent
       the continued removal of the minor child, A.W., from the home
       of the appellant/mother.

                            Assignment of Error No. II

       The trial court abused its discretion in granting legal custody to
       a non-relative.


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      {¶12} In her first and second assignments of error, Baker argues that the

trial court abused its discretion in granting legal custody of A.W. to Nichols

because, according to Baker, the record does not support the trial court’s

conclusion that the Agency made reasonable efforts to prevent the continued

removal of A.W. from Baker’s home.

      {¶13} R.C. 2151.419 imposes a duty on the part of children services

agencies to make 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.’” In re B.P., 3d

Dist. Logan No. 8-15-07, 2015-Ohio-5445, ¶ 39, quoting R.C. 2151.419(A)(1).

“[T]he agency bears the burden of showing that it made reasonable efforts.” In re

T.S., 3d Dist. Mercer Nos. 10-14-13, 10-14-14, and 10-14-15, 2015-Ohio-1184, ¶

26, citing R.C. 2151.419(A)(1).      “We review under an abuse-of-discretion

standard a trial court’s finding that an agency made reasonable efforts toward

reunification.” In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 24,

citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 48 and In re Sherman, 3d

Dist. Hancock Nos. 5-06-21, 5-06-22, and 5-06-23, 2006-Ohio-6485, ¶ 11. An

abuse of discretion suggests that the trial court’s decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).



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       {¶14} “‘Case plans are the tools that child protective service agencies use to

facilitate the reunification of families who * * * have been temporarily

separated.’” In re T.S. at ¶ 26, quoting In re Evans, 3d Dist. Allen No. 1-01-75,

2001 WL 1333979, *3 (Oct. 30, 2001).           “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. at ¶ 27, citing In re Evans at *3.

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

goals in the case plan.” Id., citing In re Evans at *3. “‘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., quoting In re Leveck, 3d Dist.

Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 10.

“‘“Reasonable efforts” does not mean all available efforts.        Otherwise, there

would always be an argument that one more additional service, no matter how

remote, may have made reunification possible.’” In re H.M.K., 3d Dist. Wyandot

Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re M.A.P., 12th

Dist. Butler Nos. CA2012-08-164 and CA2012-08-165, 2013-Ohio-655, ¶ 47.

“We also note that the statute provides that in determining whether reasonable

efforts were made, the child’s health and safety is paramount.” In re T.S. at ¶ 27,

citing R.C. 2151.419(A)(1).



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       {¶15} In its October 16, 2015 judgment entry granting the Agency legal

custody of A.W., the trial court determined that the Agency made reasonable

efforts to prevent the continued removal of A.W. from Baker’s home:

            The Court further finds that reasonable efforts have been made

       by [the Agency] to prevent the continued removal of A.W. from the

       home of Tina Baker, but due to Tina Baker’s inability to keep A.W.

       safe from Glen Baker the continued removal of A.W. from the home

       of her parent is in her best interest.

            The Court further finds that reasonable efforts have been made

       by [the Agency] toward permanency by the grant of legal custody to

       Betty Nichols.

(Footnote omitted.) (Doc. No. 62 at 7). The trial court made several factual

findings in support of its conclusion that the Agency made reasonable efforts to

prevent the continued removal of A.W. from Baker’s home. (See id. at 3-5). As

we will explain below, the trial court’s findings are supported by the record.

       {¶16} Baker offers several arguments in support of her assignment of error.

Baker argues that the Agency did not allow unsupervised visitation between Baker

and A.W. She argues that no provision in the case plan requires that, before

unsupervised visitation can proceed, “A.W. must first express to her counselor that

she is comfortable and wanting unsupervised visitation.” (Appellant’s Brief at

20). Baker argues that the Agency did not make reasonable efforts because the

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Agency “stopped providing [Baker] with free bus tokens to ride the public

transportation” to attend her counseling sessions. (Id. at 21). Baker also argues

that Glen does not reside with her, that Glen was not convicted of sexually

assaulting A.W., that there is no requirement under the case plan that Baker have

no contact with Glen, and that the Agency held against her that she did not divorce

Glen. Finally, Baker argues that the case plan did not require Baker to have no

contact with her juvenile son, who, according to Baker’s testimony, has recent

criminal convictions for “attempted gross sexual imposition.” (Oct. 1, 2015 Tr. at

175-176).

       {¶17} Regarding Baker’s allegation that the Agency did not allow

unsupervised visitation, the Agency argues that, while participants in a case plan

for reunification will typically “progress from supervised visitation to

unsupervised visitation as progress occurs,” it was Baker’s lack of progress—not a

lack of reasonable efforts on the Agency’s part—that prevented unsupervised

visitation. (Appellee’s Brief at 8).

       {¶18} At the hearing on the Agency’s motion for legal custody, the

caseworker, Sharon Brulport (“Brulport”), testified that Baker “has some things

she’s done well in and some things she has struggled with for the caseplan.” (Oct.

1, 2015 Tr. at 52). According to Brulport, Baker went “to some but not all” of her

mental-health appointments, as required under the case plan.       (Id.).   Baker’s

psychotherapist, Steven White (“White”), also testified that he saw Baker in only

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Case No. 17-15-15


four sessions and that Baker missed “nine or ten” appointments over a roughly

three-month span. (Id. at 18-19). Baker testified that the Agency “took [her] Dial

a Ride tokens away” because the Agency believed Baker irresponsibly allowed her

electric service to be disconnected, causing her to miss the appointments with

White. (Id. at 140-147). However, Baker admitted that she did not ask Brulport

for transportation assistance after that and that additional transportation methods

are available to her. (Id. at 146-147, 176-178). In addition, Baker testified that

she pays for cable television and Internet, and others paid for Baker’s manicures

and for Baker to take a vacation to Florida. (Id. at 134, 162-163, 174). Brulport

testified that, despite monthly meetings with Baker, Baker never requested

additional public-transportation tokens from Brulport or informed Brulport that

she could not attend the appointments due to a lack of transportation. (Id. at 54-

55).

       {¶19} Concerning Baker’s ability to provide a safe and stable residence,

including not allowing any contact between Glen and A.W.—as required by the

case plan—White testified that “some of the choices that [Baker] makes would not

be consistent with her providing safety for [A.W.].” (Id. at 19). In support of this

testimony, White cited Baker’s “[c]ontinuing to have * * * a lot of contact with

Glen” and “continuing to put most of her focus” on her two sons. (Id. at 20).

Brulport testified that if A.W. was to live with Baker, the concern would be “[t]hat

Glen would come to the home and then [A.W.] would be at risk.” (Id. at 56).

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Brulport added that Glen “comes and goes” from Baker’s residence. (Id. at 59).

According to Brulport, Glen “reported * * * in August that he lived” at Baker’s

residence, but on the day of the hearing, Baker reported that Glen does not reside

at Baker’s residence. (Id.). Baker agreed on cross-examination that Glen “comes

and goes” from her residence and “shows up periodically.” (Id. at 156, 172-173).

Baker also testified on cross-examination:

       [Agency Counsel]: Okay, do you understand that [the Agency’s]

                           concern is that Glen Baker could come into

                           contact with [A.W.], that that’s what they are

                           worried about?

       [Baker]:            Yes, I understand that.

       [Agency Counsel]: So you also understand that the concern isn’t

                           whether you are divorced or currently married,

                           it’s the fear of contact. Do you understand that

                           that’s their concern?

       [Baker]:            Yes.

       [Agency Counsel]: Nonetheless, Glen has continued to have

                           contact with you and your home?

       [Baker]:            Yes.

(Id. at 175).



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       {¶20} Based on the testimony of Brulport, White, and Baker, it is clear that

Baker’s lack of unsupervised visitation was a result of her failure to progress in

her case plan. Concerning the case-plan requirement that Baker attend all of her

counseling appointments, the Agency’s not providing transportation to Baker to

attend appointments does not amount to a failure to make reasonable efforts to

prevent the continued removal of A.W. from Baker’s home. See In re G.G., 7th

Dist. Columbiana No. 12 CO 6, 2013-Ohio-3991, ¶ 13, 24, 26. This is particularly

true when, as the trial court found, Baker had alternate transportation methods

available and did not inform the Agency of any transportation issues. See id.

(Doc. No. 62 at 5). What is more, despite her claim that she had no money to

spend on transportation, Baker pays for cable television and allowed others to pay

for her manicures and to vacation in Florida. Even beyond those admissions by

Baker, the trial court found Baker’s testimony “not credible,” and we defer to the

trial court’s credibility determination. (Doc. No. 62 at 5). See In re E.C., 3d Dist.

Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 37.

       {¶21} Concerning the case-plan requirements that Baker maintain a safe

and stable residence and prohibit contact between Glen and A.W., the evidence in

the record demonstrates, as the trial court found, that Baker fails to grasp that her

current relationship with Glen—in which he “comes and goes” from and “shows

up periodically” at her residence—poses the potential for contact between Glen

and A.W. See In re G.G. at ¶ 24. (Doc. No. 62 at 4). Baker makes irrelevant

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arguments concerning this issue. She quibbles over the specific nature of Glen’s

conviction and argues that he “was not convicted of assaulting A.W., let alone of

sexually touching her.” (Appellant’s Brief at 11). However, the case plan simply

required no contact between Glen and A.W. If Baker felt that the case plan

wrongfully required a separation of Glen and A.W.—for example, because Glen

did not actually harm A.W.—then her remedy was to move to modify the case

plan, not to attack the terms of the case plan in response to a motion for legal

custody.1 See In re Z.S., 2d Dist. Montgomery No. 25986, 2014-Ohio-3748, ¶ 77.

        {¶22} Baker also makes obvious, irrelevant statements in support of her

meritless argument that the Agency failed to use reasonable efforts: that the case

plan does not contain a requirement that Baker have no contact with A.W., a

requirement that Baker divorce Glen, a requirement that Baker have no contact

with her juvenile son who was recently convicted of attempted gross sexual

imposition, or a requirement that A.W. express a desire for unsupervised visitation

before it can proceed. As we stated above, Baker fails to grasp what is relevant:

that her inability to safeguard A.W. against harm and provide a safe and stable

home, along with her other deficiencies under the case plan, are the cause for her

not progressing to unsupervised visitation. As the Agency aptly stated in its brief:



1
  We nevertheless note that Baker does not dispute that A.W. was the victim of Glen’s attempted-assault
conviction, as the trial court found. (See Doc. No. 62 at 5, citing Exs. A, B, and C). The trial court also
found that Glen was “convicted of child endangering of A.W. in 2006”—something Baker confirmed on
cross-examination. (Id. at 5); (Oct. 1, 2015 Tr. at 171). In short, A.W. was twice the victim of crimes
committed by Glen.

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“[Baker] is unwilling or unable to recognize threats to A.W., and therefore unable

to adequately protect her from harm.” (Appellee’s Brief at 9).

      {¶23} Baker was not simply entitled to unsupervised visitation or

transportation to appointments, and the Agency’s decisions to not allow or provide

those things do not amount to a failure to make reasonable efforts to prevent the

continued removal of A.W. from Baker’s home. See In re Jo.S., 3d Dist. Hancock

Nos. 5-11-16 and 5-11-17, 2011-Ohio-6017, ¶ 49, 54 (affirming the trial court’s

judgments granting permanent custody to the agency-appellee and citing in

support the caseworker’s testimony that the parents-appellants “routinely visited

the children during scheduled supervised visitation” but “that visitation did not

progress to off-site and unsupervised visitation as a result of [the parents-

appellants’] failure to complete or demonstrate any progress in completing [their]

assigned objectives”); In re Cuichta, 7th Dist. Belmont No. 97 BA 5, 1999 WL

167852, *7 (Mar. 23, 1999) (“While appellant criticizes Children Services for not

expanding visitation beyond the ‘bare-bones’ sessions, it was appellants [sic] own

conduct which caused Children Services employees to discourage extended,

unsupervised visitation.”); In re G.G., 2013-Ohio-3991, at ¶ 13, 24, 26.

      {¶24} To summarize, many of Baker’s arguments in this appeal are aimed

at defending her actions in relation to the case plan rather than demonstrating how

the trial court abused its discretion in concluding that the Agency made reasonable

efforts to prevent the continued removal of A.W. from Baker’s home. To the

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contrary, after reviewing the record, we conclude that the trial court did not abuse

its discretion in granting the Agency’s motion for legal custody. The trial court’s

conclusion that the Agency made reasonable efforts to prevent the continued

removal of A.W. from Baker’s home is not unreasonable, arbitrary, or

unconscionable.

       {¶25} Baker’s assignments of error are overruled.

       {¶26} Having found no error prejudicial to the appellant herein in the

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

                                                               Judgment Affirmed

SHAW, P.J. and ROGERS, J., concur.

/jlr




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