[Cite as In re H.S., 2018-Ohio-3360.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: H.S.                                            C.A. Nos.   28944
       Z.M.                                                        28948
       I.M.
       P.S.

                                                       APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
                                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
                                                       CASE Nos. DN 15-09-611
                                                                  DN 15-09-612
                                                                  DN 15-09-613
                                                                  DN 16-11-955

                                 DECISION AND JOURNAL ENTRY

Dated: August 22, 2018



        CARR, Presiding Judge.

        {¶1}     Appellants, D.S. (“Mother”) and J.M. (“Father”), appeal from a judgment of the

Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights

and placed their minor children in the permanent custody of Summit County Children Services

Board (“CSB”). This Court reverses and remands.

                                                I.

        {¶2}     Mother is the biological mother of H.S., born March 11, 2010; Z.M., born

October 22, 2013; I.M., born April 28, 2015; and P.S., who was born during the pendency of this

case on November 3, 2016. Father is the father of the three youngest children. The father of

H.S. did not appeal from the trial court’s judgment.
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       {¶3}    On September 10, 2015, CSB filed complaints to allege that the three older

children were dependent because their home was unsafe and unsanitary and their parents were

not appropriately supervising them or meeting their basic daily needs. Father had also threatened

to flee the state with the children.    On December 3, 2015, the children were adjudicated

dependent and were later placed in the temporary custody of CSB.

       {¶4}    The initial case plan in this case focused on the parents obtaining safe and stable

housing, demonstrating that they could meet the children’s needs, and obtaining mental health

assessments and following any treatment recommendations. During March 2016, CSB filed a

written brief in opposition to the parents’ request to expand visitation because it was concerned

that they exhibited signs of below average intelligence and had difficulty interacting with the

children. CSB informed the trial court about its “plans to file a proposed case plan” to add

parenting classes for the parents because they had been having difficulty visiting the children “in

a structured environment.” The agency did not amend the case plan to add parenting classes for

several more months, however.

       {¶5}    On June 8, 2016, a magistrate ordered that, at a minimum, the parents “shall have

five hours of supervised visitation each week” at the agency interaction center and that they

“shall have additional parenting time through the Incredible Years program or similar parenting

class which incorporates the children.” On August 12, 2016, CSB formally amended the case

plan to add a parenting component for both parents.

       {¶6}    On August 16, 2016, CSB filed its first motion for permanent custody of the three

older children, alleging that they could not be returned to the parents’ custody or should not be

returned to their care for several alternative reasons under R.C. 2151.414(E), including that the

parents had failed to remedy the conditions that had caused the children to remain placed outside
                                                 3


the home. See R.C. 2151.414(E)(1). Following a hearing, the trial court denied CSB’s first

motion for permanent custody and extended temporary custody for another six months. It

reasoned that “there has been some compliance with the case plan to justify an extension[]” and

that “[b]ecause of a clerical error,” the parents had not been referred to intensive parenting

classes until February 2017, after the commencement of the permanent custody hearing.

Consequently, on May 8, 2017, the trial court ordered that the parents “be given the opportunity

to follow through with parenting through Fast Track.” The trial court emphasized that, for the

parents to fully engage in Fast Track services, the sessions must be held with the children present

“as is typically done in this program.”

       {¶7}    As the case moved forward, the parents consistently visited their children, always

arrived on time, and the children were always excited to see them. Although the parents engaged

in services through the Fast Track program, they were not provided with parenting classes that

incorporated the children because their instructor was not available to come to their visits.

Despite the May 2017 order that CSB provide the parents with parenting education that

incorporated the children, the parents never received those reunification services.

       {¶8}    During November 2016, P.S. was removed from the custody of her parents

shortly after her birth. The juvenile court adjudicated the child dependent on December 20,

2016, and later placed the child in the temporary custody of CSB.

       {¶9}    On July 20, 2017, CSB moved for permanent custody of all four children. It

alleged numerous grounds for permanent custody under R.C. 2151.414(E) and that the older

children had been in its temporary custody for at least 12 months of a 22-month period. It did

not allege the “12 of 22” ground as to P.S., who had been in its temporary custody for only seven

months at that time. See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, syllabus, ¶ 28
                                                  4


(affirming this Court’s decision that the “12 of 22” ground must exist at the time the agency

moves for permanent custody).

       {¶10} A three-day hearing was held during December 2017 before a visiting judge, who

is not the judge who presided over the first permanent custody hearing. Following the hearing,

the visiting judge determined that all four children had been in the temporary custody of CSB for

at least 12 of 22 months and that permanent custody was in their best interest.

       {¶11} Mother and Father separately appealed and their appeals were later consolidated.

Mother raises three assignments of error. Father joins in two of Mother’s assigned errors and

raises two other assignments of error. After an initial review of the record, this Court asked the

parties to brief an additional issue. Specifically, this Court questioned whether the parents

received reasonable reunification efforts, as set forth in the case plan and orders of the trial court,

pertaining to their cognitive delays and their need for hands-on intensive parenting education.

       {¶12} The parties have also raised an obvious error in the trial court’s “12 of 22” finding

as to P.S. because the child had not been in CSB’s temporary custody for 12 months when CSB

moved for permanent custody and CSB did not allege that ground in its motion. Because the

supplemental issue raises a reversible error in the proceedings that pertains to all four children,

however, this Court will confine its review to the parents’ supplemental assignments of error,

which will be addressed jointly.

                                                  II.

                MOTHER’S SUPPLEMENTAL ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       GRANTING PERMANENT CUSTODY WHEN [CSB] FAILED TO PROVIDE
       REASONABLE         REUNIFICATION EFFORTS  UNDER     R.C.
       2151.413(D)(3)(B).
                                                   5


                 FATHER’S SUPPLEMENTAL ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT TERMINATED THE PARENTS’ RIGHTS AND PLACED THE
       CHILDREN IN THE PERMANENT CUSTODY OF CSB WHEN THE
       AGENCY DID NOT COMPLY WITH COURT ORDERS AND PROVIDE
       REASONABLE REUNIFICATION EFFORTS.

       {¶13} The supplemental assignments of error focus on whether CSB provided

reasonable reunification services as required by the case plan and other specific court orders;

and, if not, whether the trial court had statutory authority to terminate parental rights in this case.

                                 Reasonable Reunification Efforts

       {¶14} “‘[T]he authority of the juvenile court and the county children services agency in

abuse, dependency, and neglect cases is strictly governed by a comprehensive statutory scheme

set forth in R.C. Chapter 2151.” In re S.R., 9th Dist. Summit No. 27209, 2014-Ohio-2749, ¶ 35,

citing In re I.S., 9th Dist. Summit No. 24763, 2009-Ohio-6432, ¶ 10. Because termination of

parental rights has been described as “the family law equivalent of the death penalty[,]” the

parents “‘must be afforded every procedural and substantive protection the law allows.’” In re

Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991).

Among those procedural protections “is the obligation of the agency to make reasonable efforts

to reunify the child[ren] with one or both parents.” In re S.R., at ¶ 37, citing R.C. 2151.419.

       {¶15} R.C. 2151.413(D)(3)(b) explicitly provides that an agency shall not file for

permanent custody based on “12 of 22” if it was required to make reasonable reunification

efforts under R.C. 2151.419 and “has not provided the services required by the case plan to the

parents of the child or the child to ensure the safe return of the child to the child’s home.”

Regarding other grounds for permanent custody, the agency is usually required to make
                                                  6


reasonable reunification efforts prior to seeking permanent custody.       See generally In re C.F.,

113 Ohio St.3d 73, 2007-Ohio-1104; In re S.R., 2014-Ohio-2749.

       {¶16} In In re C.F., at ¶ 43, the Ohio Supreme Court held that R.C. 2151.419 does not

explicitly require a trial court to make a reasonable efforts finding at the permanent custody

hearing. Nevertheless, the Court emphasized that its holding “does not mean that the agency is

relieved of the duty to make reasonable efforts [prior to seeking permanent custody].” Id. at ¶

42. In fact, it emphasized that “except for some narrowly defined statutory exceptions, the state

must still make reasonable efforts to reunify the family during the child-custody proceedings

prior to the termination of parental rights.” Id. at ¶ 43. Furthermore, “[i]f the agency has not

established that reasonable efforts have been made prior to the hearing on a motion for

permanent custody, then it must demonstrate such efforts at that time.” Id.

       {¶17} A trial court is authorized to relieve an agency of its statutory obligation to make

reasonable reunification efforts only if it finds that one of five enumerated circumstances exist.

In re S.R., 2014-Ohio-2749, at ¶ 39. “Those limited circumstances are when ‘the parent from

whom the child was removed:’ has been convicted of certain violent or dangerous crimes against

the child, sibling, or another child living in the home; has repeatedly withheld food or medical

treatment from the child without a legitimate excuse; has repeatedly placed the child at risk of

harm due to alcohol or drug abuse and has rejected treatment; has abandoned the child; or has

had her parental rights to a sibling of the child involuntarily terminated.” Id. None of those

circumstances existed in this case, so the trial court did not relieve CSB of its statutory obligation

make reasonable reunification efforts before seeking a termination of parental rights.

       {¶18} The pivotal dispute in this appeal is whether CSB fulfilled its statutory obligation

to make reasonable efforts to reunify these parents with their children. R.C. Chapter 2151 does
                                                 7


not define the term reasonable efforts, but that term has been construed by the Ohio Supreme

Court to mean “[t]he state’s efforts to resolve the threat to the child before removing the child or

to permit the child to return home after the threat is removed[.]” In re C.F., 2007-Ohio-1104, at

¶ 28, quoting Will L. Crossley, Defining Reasonable Efforts: Demystifying the State’s Burden

Under Federal Child Protection Legislation, 12 B.U.Pub.Int.L.J. 259, 260 (2003). “Because case

plans are tools that child protective service agencies use to facilitate family reunification, the

plan and the agency’s efforts should account for the respective abilities of the parents and

children in pursuing individualized concerns, goals, and steps necessary for reunification.” In re

Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 10.

       {¶19} In this case, the primary problem undermining both parents’ ability to provide a

suitable home for their children was their limited cognitive abilities. As early as March 2016,

CSB had expressed concern on the record about those limitations and their effect on the parents’

ability to care for their children. Given that the primary obstacle to their parenting ability

appeared to be their limited cognitive abilities, “reasonable” reunification efforts should have

focused on those limitations.      Reasonable efforts to address the parenting problems of

cognitively-delayed parents will typically involve some sort of hands-on parenting education

program that enables the parents to role-model appropriate parenting behavior. See, e.g., In re

Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio- 5885, ¶ 11.

       {¶20} The agency and the trial court had expressed concern for many months that the

parents needed intensive parenting instruction, but the record fails to reveal that the agency made

reasonable efforts to provide the parents with those reunification services. It was not until

August 2016, nearly one year after the older children were removed from the home, that the case
                                                 8


plan was amended to include a parenting education component that would target the

developmental disabilities of these parents.

       {¶21} Despite that August 2016 case plan amendment, the trial court implicitly found in

its May 2017 order denying the first motion for permanent custody that CSB had not made

reasonable reunification efforts in that regard because the parents had not yet received hands-on

parenting instruction. Consequently, the trial court explicitly ordered that the parents “must be

given the opportunity” to engage in a program of intensive one-on-one parenting education with

their children “as is typically done in [the Fast Track] program.”

       {¶22} At the second permanent custody hearing held seven months later, the evidence

was undisputed that the parents were never provided with parenting classes that incorporated the

children. A CSB caseworker testified that she connected these parents with the Fast Track

program because it typically provides parenting instruction to parents and their children either in

the family home or at the interaction center. She specifically requested a parenting instructor

who would come to the interaction center and provide the parents with hands-on training during

their visits with the children. The caseworker requested a particular instructor with whom she

had worked in the past, but that person was not available.

       {¶23} Instead, the instructor assigned by Fast Track did not work with the parents and

children because she had a scheduling conflict and was not available at the time the parents

visited with the children. The instructor interned at Fast Track for one year while she continued

working to obtain her license as a family and marriage therapist. Although she came to one visit

between the parents and the children, her participation at the visit was merely to observe the

parents’ interaction with the children. She then met with the parents alone in their home and

tended to focus more on their marital problems than on parenting education. In fact, she referred
                                                 9


to their sessions as “therapy” rather than parenting education.          She conceded on cross-

examination that, ideally, she would have worked with the parents and their children together but

she had not done so.

       {¶24} The evidence in the record is not disputed that the only reason offered for the

agency’s failure to provide hands-on intensive parenting classes was that Fast Track assigned an

instructor who was not able to attend the parents’ visits. She testified that she had no concerns

about working with the parents and their children at the interaction center, but her schedule

prevented her from being available at that time. CSB made no effort to resolve the scheduling

conflict by adjusting the parents’ visitation schedule or requesting a different instructor from Fast

Track. This Court can only conclude that CSB failed to provide reasonable, court-ordered

reunification services in this case. Given the lack of reasonable reunification efforts in this case,

the trial court lacked authority to terminate parental rights. The supplemental assignments of

error are sustained.

                          REMAINING ASSIGNMENTS OF ERROR

       {¶25} Given this Court’s disposition of the parents’ supplemental assignments of error,

their remaining assignments of error have been rendered moot and will not be addressed. See

App.R. 12(A)(1)(c).

                                                III.

       {¶26} The parents’ supplemental assignments of error are sustained. Their remaining

assignments of error are not addressed because they have been rendered moot. The judgment of

the Summit County Court of Common Pleas, Juvenile Division, is reversed and remanded for

proceedings consistent with this opinion.

                                                                                 Judgment reversed
                                                                               and cause remanded.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT




CALLAHAN, J.
CONCURS.

CANNON, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶27} I respectfully concur with the opinion of the majority except in one respect. In

Mother’s second assignment of error, in which Father joins, she alleges CSB did not have

custody of any of the children for a period of at least 12 months of a 22-month period at the time

the motion for permanent custody was filed.
                                                11


       {¶28} The three older children had actually been in the temporary custody of CSB,

pursuant to Ohio law, for only eleven months when the motion for permanent custody was filed:

nine months from November 2015 (60 days after they were removed from the home) until

August 2016 (when the first motion for permanent custody was filed), and two months from May

2017 (when the trial court denied the first motion) and July 2017 (when the second motion for

permanent custody was filed). See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, ¶ 26 (“the

time that passes between the filing of a motion for permanent custody and the permanent-custody

hearing does not count toward the 12-month period set forth in R.C. 2151.414(B)(1)(d)”); see

also In re E.T., 9th Dist. Summit No. 22720, 2005-Ohio-6087, ¶ 10 (“permanent custody is

measured to the time when the motion for permanent custody is filed”).

       {¶29} This assignment of error has merit, and, because it is outcome determinative, I

would not find it moot.

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)


APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

NEIL AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
