[Cite as In re T.T., 2010-Ohio-4175.]




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


IN THE MATTER OF:
                                                             CASE NO. 13-10-15
        T.T. (1),

ALLEGED DEPENDENT CHILD,                                     OPINION

        [DANYL D. - APPELLANT].


IN THE MATTER OF:
                                                             CASE NO. 13-10-16
        T.T. (2),

ALLEGED DEPENDENT CHILD,                                     OPINION

        [DANYL D. - APPELLANT].


IN THE MATTER OF:
                                                             CASE NO. 13-10-17
        T.T. (3),

ALLEGED DEPENDENT CHILD,                                     OPINION

        [DANYL D. - APPELLANT].



                 Appeal from Seneca County Common Pleas Court
                                  Juvenile Division
                 Trial Court Nos. 20850020, 20850021 and 20850022

                                        Judgments Affirmed

                            Date of Decision: Septemer 7, 2010
Case Nos. 13-10-15, 13-10-16 and 13-10-17


APPEARANCES:

      Shane M. Leuthold for Appellant

      Victor Perez for Appellee, Department of Job & Family Services

      James Melle, Guardian Ad Litem for Appellant

      Francis Marley, Jr. for T.T. (1)

      Mary Snyder for T.T. (2)

      Todd Workman for T.T. (3)

      Rebecca Herner for CASA




WILLAMOWSKI, P.J.

      {¶1} Mother-appellant Danyl D. (“Danyl”) brings this appeal from the

judgment of the Court of Common Pleas of Seneca County, Juvenile Division

granting permanent custody of the children to the Seneca County Department of

Jobs and Family Services (“the Agency”). For the reasons set forth below, the

judgment is affirmed.

      {¶2} On March 10, 2008, Danyl brought her son, Brian T. (“Brian”),

D.O.B. July 1990, to the Agency requesting protection for him from his father,

Kevin T. (“Kevin”). Assessment investigation worker Carolyn Dorn (“Dorn”) met

with them and removed him from the home for his own protection. Caseworker

Natalie Rhoades (“Rhoades”) then went to the home and met with Kevin and the


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Case Nos. 13-10-15, 13-10-16 and 13-10-17


other children, T.T.1, D.O.B. September 1994, T.T.2, D.O.B. April 1997, and

T.T.3, D.O.B. July 2000 (collectively referred to as “the children”). The Agency

filed complaints that same day alleging that all of the children were dependent.

The Agency sought temporary custody of Brian and protective supervision over

the children. On March 11, 2008, the trial court held a probable cause/shelter care

hearing. The parties agreed to maintain protective supervision over the children.

Brian remained in foster care.

        {¶3} On April 1, 2008, the Agency filed a motion for an emergency

removal order for the children because Danyl had been hospitalized for mental

health issues due to auditory and visual hallucinations and because Kevin had been

injecting growth hormones into the wrong child.                     The trial court granted the

motion and a shelter care hearing was scheduled for April 2, 2008. However, the

hearing was continued to allow Danyl to have her counsel present.

        {¶4} On April 9, 2008, the Agency filed a proposed case plan. The trial

court approved it without objection on April 10, 2008. The case plan required

Danyl to 1) complete a parenting class, 2) complete a class on budgeting, and 3)

have a psychological evaluation and follow all recommendations.1 On April 11,

2008, the shelter care hearing was held. Dorn testified that Kevin was giving the

injections of growth hormones prescribed for T.T.1 to T.T.2 and T.T.3. She


1
   The case plan also contained requirements for Kevin, but he is not appealing. Thus, those requirements
need not be addressed.


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Case Nos. 13-10-15, 13-10-16 and 13-10-17


testified that these injections could be harmful to the children. Dorn testified that

Kevin reported suffering mini-strokes that left him temporarily deaf, blind and

confused. Dorn also testified that she was concerned about Danyl’s mental health.

Danyl had told her that she saw ghosts in the home and had been hospitalized for

mental health reasons. The trial court determined that the concerns about Kevin

and Danyl’s mental and physical health were justified and that the emergency

removal was necessary.

       {¶5} On June 5, 2009, an adjudication hearing was held. The parties all

agreed to a finding that the children were dependent. The disposition hearing was

then held immediately after by consent of the parties. The trial court continued the

temporary custody granted to the Agency. The prior case plan was continued,

although Danyl was also required to contact the local MRDD agency to determine

her eligibility for services. On June 11, 2008, a revised case plan was filed, which

required Danyl to 1) complete a parenting class, 2) complete a budgeting class, 3)

obtain a psychological evaluation and follow all recommendations, and 4) be

assessed for determination of services needed. The case plan also required the

agency to provide referrals for services requested by the parents and to assist with

transportation to visits if requested by Danyl or Kevin. The trial court approved

this case plan without objection on June 20, 2008.




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Case Nos. 13-10-15, 13-10-16 and 13-10-17


        {¶6} On September 10, 2008, a review hearing was held. The GAL report

recommended that T.T.1 remain in her residential program for treatment and that

T.T.2 and T.T.3 remain in their foster placements. On September 29, 2008, an

administrative review was filed with the trial court. The review indicated that

Kevin and Danyl had not visited with the children since June and had not

contacted the caseworker for information on the children. The review indicated

that Kevin and Danyl were in counseling, but were not making much progress.

They did not initiate contact with the caseworker and blamed the removal on the

children, the Agency, or the caseworker. Danyl had enrolled in counseling to

address her mental health issues, but was not taking her prescribed medication

because she did not think she needed it. Danyl and Kevin had not completed the

parenting class. On October 27, 2008, the magistrate filed an opinion which

recommended continuing temporary custody and supervised visitation. The trial

court adopted the magistrate’s opinion on that same day.

        {¶7} Another review hearing was held on December 15, 2008. The GAL

filed her report recommending that visitations be discontinued and that the Agency

should seek permanent custody of the children. The Agency informed the court at

the hearing that it intended to seek permanent custody.                    Danyl objected and

indicated that she would be seeking legal custody.2 On March 31, 2009, the


2
   The trial court did not enter a judgment from this review continuing the temporary custody of the
Agency until July 14, 2009.


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Case Nos. 13-10-15, 13-10-16 and 13-10-17


Agency filed the semiannual review completed on March 26, 2009. The review

indicated that Danyl and Kevin had not participated in any services since the last

review. Danyl had been discharged from counseling for non-compliance and had

not visited the children since June of 2008. In the two prior months, Danyl had

made no contact with the caseworker concerning her children. Danyl had quit

attending counseling appointments and had not contacted her caseworker since

December 2008. Based upon the lack of progress, the Agency again indicated that

it would be seeking permanent custody of the children.

       {¶8} On June 22, 2009, the Agency filed motions seeking permanent

custody of the children.     The Agency then filed amended motions seeking

permanent custody on August 13, 2009. The amended motions indicated that

Danyl had not visited with T.T.2 and T.T. 3 since June of 2008, had not visited

T.T.1 since October of 2008, and had not had any contact with any of the children

since she sent letters to the Agency for them in March 2009. On August 18, 2009,

Danyl filed a motion seeking legal custody of the children. On September 28,

October 9, and October 14, 2009, the permanent custody hearing was held. Prior

to the hearing, Kevin surrendered his rights and was no longer a party to the

hearing.   The GAL filed her recommendation that the Agency be granted

permanent custody because Danyl had not complied with the case plan and was

not capable of effective parenting.



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


         {¶9} Karen Baldy (“Baldy”), the foster mother for T.T.1, testified that

when T.T.1 came to her, she had severe issues with personal hygiene. Sept. 28,

2009, Tr. 22. T.T.1 did not know how to properly wash her hair, wash her body

with soap, brush her teeth, and properly use toilet paper. Id. At that time, T.T.1

was fourteen years of age. Id. Since being in the foster home, she has made

progress on personal hygiene and started taking pride in her appearance. Id. at 23.

T.T.1 also had improved in manners by using utensils and a napkin and not eating

with her fingers. Id.

         {¶10} T.T.1 unfortunately had gotten worse in her aggressive behavior and

would physically strike out at family pets, other children and Baldy. Id. at 23-24.

T.T.1 had informed Baldy that she had previously killed baby kittens while in her

parents’ home. Id. at 24. Baldy testified that T.T.1 could not be left unsupervised

with any living thing that is smaller than her. Id. T.T.1 had problems with lying

about others when they make her mad, just to get them in trouble. Id. at 25. T.T.1

is in weekly counseling, but the effect was limited. Id. at 27. T.T.1 also speaks

frequently about the voices she hears in her head and the things that she sees that

do not exist. Id. The voices apparently tell her to do “bad things.” Id. at 28.

T.T.1 will also pick at her fingers or bite herself until she has drawn blood. Id. at

27-29.




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Case Nos. 13-10-15, 13-10-16 and 13-10-17


       {¶11} Baldy is responsible for making sure that T.T.1 takes her medication

because T.T.1 would not do so unless told. Id. at 45. T.T.1 lacks all concept of

time. Id. T.T.1 has told her that when she turns 18, she is going to return home

and open a lemonade stand.        Id. at 47.    T.T.1 lacks understanding of the

proceedings and believes that she is going home merely because she wants to do

so. Id. at 49. T.T.1 frequently expresses the desire to go home. Id. at 43-44.

T.T.1 will likely never be able to completely care for herself. Id.

       {¶12} On cross-examination, Baldy testified that no visits had been

arranged between T.T.1 and Danyl while in Baldy’s care. Id. at 54. She also

testified that Danyl had never called or sent cards. Id. at 56-57. As far as she was

aware, there had been no contact between T.T.1 and Danyl. Id.

       {¶13} Shirley Smith (“Smith”), the GAL, testified that she had investigated

the situation. Id. at 63. She testified that T.T.1 told her she wanted to go home,

but T.T.2 and T.T.3 both wished to be adopted. Id. at 63-64. Although the

children are close emotionally, they cannot be placed together due to their

behaviors. Id. at 64. Smith also testified that Danyl had contacted her about a

birthday gift for T.T.3 in September of 2008. Id. at 67. Smith went to the home

and picked up the gift, but Danyl did not ask her about the children. Id. at 68. In

2008, Danyl did call one other time and ask how the girls were doing. Id. at 69.




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Case Nos. 13-10-15, 13-10-16 and 13-10-17


Danyl contacted Smith twice in 2008 to discuss visitation. Id. at 70. She did not

contact Smith at all in 2009. Id.

       {¶14} Smith testified that Baldy’s testimony concerning T.T.1 was not

surprising. Id. at 71. She believed that the girls need permanency in order to

progress further. Id. at 72. In her opinion, it would not be safe to return the

children to Danyl. Id. at 73. She had been to Danyl’s home, but had only seen the

first floor. Id. T.T.2 and T.T.3 no longer identify “home” as being with Danyl.

Id. at 76. The basis for her opinion as to the children’s safety was that the children

left the home with poor personal hygiene, lice, underweight, no clean clothes, and

a lack of food. Id. at 77.

       {¶15} When questioned about the case plan, Smith testified that Danyl had

not participated in any parenting class and has not indicated that things would be

different if the children were returned. Id. at 77-84. Danyl had the opportunity to

visit with the children, but did not complete the orientation at Patchworks, so

could not visit. Id. at 81. Smith testified that in her opinion, Danyl could not care

for T.T.1. Id. at 85. She also testified that the children could not be returned

home because Brian was back in the home. Id. at 86. T.T.2 and T.T.3 both

indicated to their foster parents that Brian had sexually abused them. Id. Both

girls reported having told their parents about the abuse, but nothing was done to

stop it. Id. at 88.



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


       {¶16} Daniel Cruikshanks (“Cruikshanks”) is the psychologist who

performed the psychological evaluation of Danyl.        Cruikshanks testified that

Kevin would not allow Danyl to be interviewed without him present. Id. at 117.

When Cruikshanks finally was able to speak with Danyl alone, Kevin was

unhappy and hostile. Id. at 118. The cognitive testing of Danyl showed that she

was in the borderline intellectual functioning range. Id. at 121. However, during

the testing, Cruikshanks received the impression that she was deliberately trying to

lower her score. Id. Her IQ ranged between 64 and 76. Id. at 122. In his opinion,

Danyl’s intelligence is below average and she is profoundly limited in her learned

skills, such as math and language. Id. at 123. Danyl’s ability to comprehend and

understand general information is extremely limited. Id. at 125. Pursuant to the

tests performed by Cuikshanks, Danyl is diagnosed with 1) schizophreniform with

likelihood that it would evolve into schizophrenia, 2) shared psychotic disorder,

and 3) mild mental retardation. Id. at 128-34. Cruikshanks also testified that she

had some issues with being sexually abused by Kevin, neglect of her children,

ignoring the sexual abuse of her children, and in dealing with the family problems.

Id. at 134. In his opinion, Danyl is a victim of Kevin’s domineering personality as

are the children with instances of physical, mental and sexual abuse occurring. Id.

at 136-37. Danyl is not capable of caring for herself without assistance. Id. at

138. Cruikshanks also testified that Danyl actually believed that Brian was the



                                       -10-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


antichrist, that he was possessed by Satan, and that he was trying to destroy the

home. Id. at 140. However, she did nothing to protect the children from Brian.

Id. at 141. The Global Assessment Functioning (“GAF”) score for Danyl was 35,

which indicates a person with serious problems that prevent them from

functioning well enough to care for themselves or anybody else. Id. at 142.

People with this score have difficulty meeting their basic needs, such as hygiene or

feeding. Id. at 143. If Danyl were not seeking treatment for her schizophreniform,

Cruikshanks did not believe that Danyl’s mental illness would improve. Id. at

144. He concluded that “in my judgment it would be – it would be very difficult,

if not impossible for her to provide adequate, an adequate environment for her

children.” Id. at 145.

       {¶17} Cruikshanks also testified as to the capabilities of the children.

T.T.1 was diagnosed with 1) shared psychotic disorder, 2) disruptive behavior

disorder, 3) overanxious disorder of childhood, and 4) a mood disorder. Id. at 146.

He noted that T.T.1 had been a victim of neglect and likely of sexual abuse. Id. at

147.   She tested as mentally retarded and had anti-social characteristics.      Id.

Finally, her GAF score was 30, which means she is as severely limited as her

mother in her ability to care for herself. Id. T.T.2 was diagnosed with post

traumatic stress disorder and shared psychotic disorder. Id. at 153. T.T.2 was also

indicated as being the victim of neglect and sexual abuse.         Id.   T.T.3 was



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


diagnosed with a shared psychotic disorder, post traumatic stress disorder and a

transient tic disorder. Id. at 156-57. In addition, T.T.3 was also indicated to have

suffered from neglect and sexual abuse. Id.

       {¶18} Based upon his interviews with the family members, the test results,

and his review of the file provided by the Agency, Cruikshanks testified that his

opinion has not changed from that given in his report. Id. at 159.

       To spend time with [this] family is to step into a surrealistic and
       bizarre world characterized by ghosts, demons, obsession,
       paranoia and confusion.

       ***

       [This] family is the most disturbed family I have seen in my many
       years as a clinician and forensic evaluator. While [Kevin] and
       [Danyl] attempted to present themselves as victims of their
       Satan worshiping, demonic son, it is clear that the four children
       evaluated here are the actual victims of years of neglect and
       abuse by their parents. Despite numerous contacts with [the
       Agency] and many opportunities to get help, it is clearly evident
       that the couple has repeatedly failed to meet even the most basic
       needs of their children.

       ***

       Recommendations:

       Beyond his financial interest in [T.T.1] (SSI Disability), [Kevin]
       does not appear to be interested in or motivated to have contact
       with or custody of his children.

       Contact between [Kevin] and his children should be considered
       potentially harmful to them. Contact in any form with his
       children is not recommended.



                                        -12-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


       [Danyl] is as much a victim as a perpetrator in this case. She
       needs help.

       Ideally, [Danyl] would benefit by separation from [Kevin].
       With assistance and assurance, she might accept the
       opportunity to go out on her own.

       [Danyl] is seriously mentally ill. She is in need of a psychiatric
       consult and routine (monthly) visits to find and manage effective
       medication treatments. In addition, [Danyl] would benefit from
       weekly counseling and case management with special emphasis
       on life skills. [Danyl] needs assistance developing a sense of
       “self” as an autonomous individual. Given the diagnostic
       profile and prognosis, [Danyl] likely will require psychiatric and
       psychological intervention for the rest of her life. * * *

       [Danyl] will benefit from continued follow-up with [the Agency]
       to monitor progress on treatment. There are no circumstances
       under which [Danyl] would be capable of caring for her children
       adequately; however, supervised visitation (without [Kevin])
       would be acceptable provided either her psychiatrist or counselor
       can attest that her psychosis is controlled and she is mentally and
       emotionally stable.

Parenting Capacity Evaluation, 10, 56-58.

       {¶19} In the summer of 2009, Cruikshanks did a follow-up evaluation on

the children. Sept. 28, 2009, Tr. 160. Cruikshanks testified that after a year and a

half with the foster families, the children are doing better, even if their behavior is

disturbing. Id. at 162. He further testified that it would not be safe to return the

children to a home in which Kevin or Brian resided. Id. at 165. He did not

believe that Danyl is capable of protecting the children given her own situation.




                                         -13-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


Id. at 166.   In his final summary from the re-evaluation of the children,

Cruikshanks reached the following conclusions.

       In my original report of September, 2008, I observed that [this]
       family represented the most severe and disturbing case I had
       ever seen clinically. In revisiting the [children] one year later,
       the stories presented for each of them sadly illustrate the
       terrible long-term impact of prolonged neglect and abuse of
       children. [The children] remain quite disturbed as a result of
       the traumas they have suffered. Their foster parents clearly are
       making every effort to help these children. They are providing
       good homes with appropriate structure, boundaries and rules.
       The girls are being nurtured and loved and provided everything
       they need. The girls are receiving appropriate treatments for
       their mental and emotional problems. Despite these efforts,
       they continue to present with significant problems, and their
       foster families are feeling frustrated and overwhelmed by the
       severity of these cases and demands being placed upon them. I
       do not believe that these children could be in better hands than
       those of their respective foster families. That said, I am
       concerned that each of the foster families might not be able to
       continue with these children for the duration of their
       childhoods.

       With regard to the question of reunification, there are several
       issues that must be considered. First, based on information
       from [the Agency], there appears to be little or no evidence that
       the biological parents have made any efforts to resolve their
       problems or make changes in their lives that would result in a
       safe, loving, nurturing environment for their daughters. Second
       [Brian], now [an] adult, reportedly has returned home to live
       with his parents. This seems ironic since it was the intense
       conflict between Brian and his father that initially brought this
       case to the attention of [the Agency] in the first place. Brian
       clearly was a victim of abuse and neglect by his parents
       throughout his childhood; however it is also clear that Brian
       was a perpetrator of abuse as well. Both [T.T.2 and T.T.3]
       independently have reported that they were sexually molested
       by Brian repeatedly over several years, and given the


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Case Nos. 13-10-15, 13-10-16 and 13-10-17


       consistency of their stories, and the patterns of behavior now, I
       have no reason to doubt that this is true. Indeed, I believe that
       the level of sexual abuse in the home likely was far more
       significant than the available information suggests. As is clear
       from my original report, the environment created by the
       parents is dangerous and deprived. To reunite the [children]
       with their parents would be to eliminate any chance they might
       have for a normal life.

Psychological/Behavioral Evaluation, 15-16.

      {¶20} On cross-examination, Cruikshanks testified that Danyl’s mental

issues, if untreated, would get worse. Sept. 28, 2009, Tr. 177. With treatment,

the condition would not go away, but would improve. Id. at 178. At the time of

his interview with Danyl, she was being treated for the schizophreniform with

several medications. Id. However, her symptoms were still pronounced. Id. at

179. By the third interview, Danyl reported that she was no longer taking her

medications because Kevin did not want her to take the medicine any more. Id.

Based upon Cruikshanks’ review of the records, Danyl was not able to fulfill her

role as a parent and would not ever be able to do so. Id. at 184, 189. This opinion

is strengthened by the fact that the children all have their own issues that were

challenging to trained foster parents and would be impossible for a parent dealing

with her own psychological, intellectual, and emotional issues. Id. at 190. Given

all of the difficulties that Danyl faces and the level of difficulties the children

have, it would be very problematic for Danyl to care for them. Id. at 197. The




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Case Nos. 13-10-15, 13-10-16 and 13-10-17


increased stress of dealing with the children would in fact be harmful to Danyl.

Id. at 198.

       {¶21} Dorn testified that she was the assessment investigation worker in

this case. Oct. 9, 2009, Tr. 7. Danyl brought Brian to the Agency because she

could not protect him from Kevin anymore. Id. at 10. On March 14, 2008, Danyl

called her telling her that she could not raise the girls anymore. Id. at 16. Dorn

called Danyl on March 17, 2008, and learned from Kevin that she was having a

“nervous breakdown.” Id. at 18. Dorn then told Kevin to take her to the hospital,

which he did. Id. On March 31, 2008, Dorn learned that Kevin had given

hormone growth treatments to the wrong child. Id. at 19. Dorn visited Danyl in

the hospital where Danyl informed her that the “ghosts” were bothering her, “they

were just messing with her and she was not comfortable at home.” Id. at 20.

During one of her home visits, Kevin took her to the basement and showed her

where the girl ghosts were having their tea parties. Id. at 22. To rid the home of

the ghosts, he played Christian music in the basement. Id. T.T.2 confirmed the

allegation that Kevin had given her the injection meant for T.T.1. Id. at 25. Then

the Agency filed to remove the children from the home. Id. When she removed

the children, T.T.1 and T.T.2 were upset and yelling, but T.T.3 merely whispered

“Thank you.” Id. at 27. Danyl has not expressed to Dorn a desire to see the

children. Id. at 39.



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


       {¶22} Erica Cleveland (“Cleveland”) was the caseworker assigned to the

children. Id. at 44. She met Kevin and Danyl for the first time at the case plan

development meeting in April 2008. Id. at 45. Kevin was mainly upset that since

the children were removed from the home, he would not have income or food

stamps. Id. at 46. How to get the children back was not the main concern. Id.

Danyl went along with everything Kevin said and reiterated his opinions. Id. at

49. The original case plan consisted of parenting classes, anger management for

Kevin, and psychological assessment and counseling for Danyl. Id. at 53. Kevin

claimed he was unable to work, but never provided any verification. Id. at 54.

Kevin treated Danyl like a child and she did everything she was told exactly as

she was told. Id. at 55. Danyl told Cleveland that Cleveland would have to speak

slowly or repeat herself so that Danyl could understand her because she is

retarded. Id. at 57. However, Danyl never indicated that she could not care for

her children. Id.

       {¶23} After the meeting Kevin and Danyl were assessed at Firelands and

were enrolled in services. Id. at 58-59. Danyl was prescribed medication for her

mental conditions, but quit taking it in May of 2008. Id. at 59. Kevin did not

want her to take the medication, but Cleveland was concerned because Danyl

reported seeing ghosts in the home which would tell her to do things and she

would do as they instructed. Id. at 60. Kevin played along with Danyl’s belief in



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


the ghosts. Id. Brian also had these delusions and believed that “The Guardian”

had followed him to the foster home. Id. at 62. Brian’s foster care placement

ended when he was placed in a psychiatric hospital because he was engaging in

self harming behavior.     Id. at 63-64.   Once Brian turned 18, he insisted on

returning to the home. Id. at 64. Cleveland did warn Danyl that having Brian in

the home would affect their ability to get the children returned since allegations of

sexual abuse by Brian had been made by the children. Id. at 65. T.T.2 and T.T.3

both reported that they had told Danyl and Kevin about what Brian did. Id. at 71.

Danyl and Kevin ignored them. Id. at 72. The family even encouraged T.T.1, 13

at the time, to become pregnant by her boyfriend and have a child. Id. at 74.

       {¶24} When the girls were placed into foster care, they were all in one

home. Id. at 76. They had to be split up when they were found plotting to run

away and threatening each other not to tell the family secrets. Id. T.T.1 and

T.T.2 were moved into a therapeutic home together and T.T.3 stayed in the

original placement.    Id. at 77.    T.T.1 was removed from the home into a

residential center when she threatened to kill herself and took steps to follow

through with the threat. Id. As of October 2009, T.T.2 had been moved to a

residential treatment facility to help her learn to manage her behaviors. Id. at 78.

T.T.1 had been moved back into the Marsh Foundation after repeatedly assaulting

her foster mother and threatening harm to others. Id. T.T.3 has done the best and



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


was moved to what could be a permanent home in October of 2009. Id. at 79.

Since June of 2008, the girls have had no contact with each other. Id. at 79-80.

       {¶25} When the children entered foster care, they all had significant issues

with hygiene and nutrition. T.T.3, at the age of seven, had to be taught how to use

soap and a washcloth, how to wash her hair, and how to use toilet paper. Id. at

82. All of the children were very frail when they entered foster care and would

eat three or four helpings of food at a sitting. Id. at 83. In Danyl’s home, the girls

would share one can of food for a meal. Id. at 84. However, Danyl and Kevin did

not appear to go hungry. Id. at 86.

       {¶26} In July of 2008, Cleveland spent time alone with Danyl. Danyl told

Cleveland that Kevin was abusive and that she wanted to leave him. Id. at 93.

Cleveland then told Danyl that she could give her resources to help her get out of

an abusive situation if that is what she wanted. Id. Danyl told her she would let

her know. Id. As of the hearing date, Danyl has not sought any help to leave

Kevin and has not done so on her own. Id. at 94.

       {¶27} The case plan required both Danyl and Kevin to seek counseling.

Kevin quit attending counseling in November of 2008 after telling the counselor

that he was moving out of state and wished to be discharged. Id. at 97. Kevin

repeatedly threatened to move to Arizona, but never did. Id. at 98. Danyl

attended counseling sporadically for a while. Id. at 97. After missing too many



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


appointments without cause, she was unsuccessfully discharged. Id. Cleveland

discussed the effect on the case of Danyl’s failure to attend counseling and to take

her medication with Danyl. Id. at 98. Danyl insisted that she was fine without the

medicine. Id.

       {¶28} In September of 2009, Cleveland made a home visit to Danyl and

Kevin. Id. at 99. Brian was still residing in the home as was Kevin. Id. at 100.

Danyl did not ask about the children, but did indicate that she had bought some

birds for T.T.1 when she comes home. Id. at 101. Danyl did bring out a birthday

cake for Cleveland to take to T.T.1. Id. at 102. Kevin did not acknowledge

Cleveland’s presence in the home. Id. at 103. When Cleveland finally was able

to get a response from Kevin, he informed her that he was too busy working on

his model train to talk to her about the children. Id. at 106. Due to threats made

by Kevin to the safety of Cleveland, she did not make monthly home visits. Id. at

107. Instead, she sent them a letter every month to contact her regarding the case

plan. Id. at 108. Cleveland did not receive any responses. Id. From the time the

children were removed from the home, Danyl contacted Cleveland three or four

times to ask about the children. Id. However, over time, Danyl stopped making

contact. Id. at 109.

       {¶29} Although Danyl had visits with the children, Cleveland in

September of 2008, had requested that visits be stopped. Id. at 111. Cleveland



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Case Nos. 13-10-15, 13-10-16 and 13-10-17


testified that in her opinion, the visits were harmful in that during and after the

visits, the children had significant behavior issues. Id. The trial court did not

terminate visits, but did modify them. Id. However, this was moot as Danyl and

Kevin did not visit with T.T.2 and T.T.3 after June 2008, and last saw T.T.1 in

October of 2008. To visit with T.T.2 and T.T.3, Danyl would have had to

complete the orientation required by PatchWorks House. Id. at 113. Danyl never

called to schedule the orientation or to set up visits. Id. The only time Danyl has

even mentioned visiting with the children is when they are at court hearings. Id.

at 114. Danyl had brought gifts for T.T.2 and T.T.3 at the June 2008 visits, but

nothing since. Id. at 116. She provided a birthday cake for T.T.1 in September of

2009. Id.    Danyl also had written letters for the children in the beginning, but

stopped approximately four months after the children came into care. Id. at 118.

Danyl has not provided any explanations as to why she has not visited. Id. at 118-

19.

      {¶30} Based upon the state of affairs between Danyl and Kevin as of the

hearing date, returning the children would be returning them to Kevin. Id. at 120.

In Cleveland’s opinion, this would not be safe for the children. Id. Cleveland

also indicated that she did not believe that Danyl was capable of protecting the

children from Kevin or Brian. Id. Additionally, the children have been in the




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Case Nos. 13-10-15, 13-10-16 and 13-10-17


care of the Agency for more than twelve out of the last 22 consecutive months.

Id. at 122.

         {¶31} Overall, Cleveland did not believe that the parents had diligently

worked to complete the case plan. Id. at 125. They were offered free parenting

classes, but did not complete them. Id. at 124. The Agency offered assistance

with transportation to classes and visitation. Id. At 126. The parents rarely asked

for any assistance.      Id.   Cleveland explained to Danyl what quitting her

counseling before being satisfactorily discharged would mean to her chances of

having her children returned. Id. at 128. Danyl insisted that she did not need

counseling anymore. Id. Kevin has refused to facilitate Danyl’s cooperation with

the case plan and instead chooses to dismiss them. Id. at 129. Thus, Cleveland

testified that it would be in the best interests of the children to have parental rights

terminated. Id.

         {¶32} Once the Agency had finished presenting its case, Danyl testified on

her own behalf. She testified that she had done her best to take care of them and

that the trial court should give her legal custody of the children. Oct. 14, 2009,

Tr. 7.     She testified that she had not visited with the children because of “the

actual awkwardness of all this that I feel that we would get too emotional and

wouldn’t be able to sustain a required visit enough to show that we are at least,

you know, wanting to visit each other, but we get too emotional and distressed



                                          -22-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


that I think it wouldn’t be best.” Id. at 8. She stated that she and Kevin had

attended the PatchWorks orientation. Id. at 9. She would also like to visit T.T.1

at the Marsh Foundation. Id. Although Danyl testified that Kevin and Brian

might have abused the children, she indicated that she still did not believe that the

abuse had occurred. Id. at 9-10, 13. She did testify that she believed she could

protect the girls from Brian if anything did happen. Id. at 12. She also testified

that the ghosts had not followed her to the new home. Id. at 11. On cross-

examination, Danyl admitted that she is not taking her medications or involved in

counseling. Id. at 13. She believed that if the children were returned to the home,

that Kevin would leave. Id. at 16. She would then require him to stay out of the

house because of the things he says to the children. Id. at 17. She also testified

that she did not believe there was anything more that the Agency could have done

to help her. Id. at 20. She blamed her lack of progress on Kevin’s interference.

Id. at 21. Finally, Danyl testified that she quit going to counseling because her

place was at home taking care of the household. Id. at 26.

       {¶33} James Melle (“Melle”), Danyl’s GAL in this case, also testified. Id.

at 38. Melle testified that he does not believe that Danyl understood everything

that was discussed. Id. at 39. He believes she understands that she has a mental

health issue, but does not understand the depth of it. Id. In his opinion, Danyl is

not capable of identifying what assistance she needs. Id. at 40. Melle testified



                                        -23-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


that in his opinion, it would be in Danyl’s best interest to grant permanent custody

of the children to the Agency. Id. Based upon Danyl’s mental health disorder,

her lack of medication, her intellectual limitations, and the depth of the problems

the children have, the additional stress of raising the children would not be in her

best interest. Id. at 40-41.

        {¶34} At the conclusion of the hearing on October 14, 2009, the

magistrate made the following statements.

         Taking into consideration the evidence that’s been presented
         over the last three days, the exhibits, testimony, I will deny
         mother’s motion for legal custody; I will grant the Agency’s
         motion for permanent custody of all three children and so direct
         them to complete the Case Plan for the permanent custody.

         I’ll issue my decision with the appropriate findings, law,
         etcetera, further. Thank you.

Id. at 78. No other findings were made in open court. On November 19, 2009,

the magistrate filed her extensive and thorough decision recommending that the

Agency’s motion for permanent custody of the children be granted.3 Danyl filed

her objections to the magistrate’s decision on December 3, 2009, and filed a

supplemental objection on January 7, 2010. The Agency filed its response to the

objections on January 29, 2010. On April 5, 2010, the trial court overruled the

objections, adopted the magistrate’s findings, and granted permanent custody of



3
  The magistrate’s decision was 44 pages, discussed all of the testimony, made extensive findings of fact,
and addressed all relevant factors in R.C. 2151.414(D), (E), when setting forth the conclusions of law.


                                                  -24-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


the children to the Agency. Danyl filed her notice of appeal on April 30, 2010,

and raises one assignment of error.

       [The Agency] failed to use reasonable efforts to reunite the
       children with [Danyl].

       {¶35} The right to raise one’s own child is a basic and essential civil right.

In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. “Parents have a

‘fundamental liberty interest’ in the care, custody, and management of their

children.” In re Leveck, 3d Dist. No. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269,

¶6. These rights may be terminated, however, under appropriate circumstances

and when all due process safeguards have been followed. Id. When considering

a motion to terminate parental rights, the trial court must comply with the

statutory requirements set forth in R.C. 2151.414. These requirements include in

pertinent part as follows.

       (B)(1) Except as provided in division (B)(2) of this section, the
       court may grant permanent custody of a child to a movant if the
       court determines at the hearing held pursuant to division (A) of
       this section, by clear and convincing evidence, that it is in the
       best interest of the child to grant permanent custody of the child
       to the agency that filed the motion for permanent custody and
       that any of the following apply:

       ***

       (d) 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 * * *.



                                        -25-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


      For the purpose of division (B)(1) of this section, a child shall be
      considered to have entered the temporary custody of an agency
      on the earlier of the date the child is adjudicated pursuant to
      [R.C. 2151.28] or the date that is sixty days after the removal of
      the child from home.

      (2) With respect to a motion made pursuant to [R.C.
      2151.413(D)(1)], the court shall grant permanent custody of the
      child to the movant if the court determines in accordance with
      division (E) of this section that the child cannot be placed with
      one of the child’s parents within a reasonable time or should not
      be placed with either parent and determines in accordance with
      division (D) of this section that permanent custody is in the
      child’s best interest.

      (C) In making the determination required by this section * * *,
      a court shall not consider the effect the granting of permanent
      custody to the agency would have upon any parent of the child.
      A written report of the guardian ad litem of the child shall be
      submitted to the court prior to or at the time of the hearing held
      pursuant to division (A) of this section * * * but shall not be
      submitted under oath.

      ***

      (D)(1) In determining the best interest of a child at a hearing
      held pursuant to division (A) of this section * * *, the court shall
      consider all relevant factors, including, but not limited to, the
      following:

      The interaction and interrelationship of the child with the
      child’s parents, siblings, relatives, foster caregivers and out-of-
      home providers, and any other person who may significantly
      affect the child;

      The wishes of the child, as expressed directly by the child or
      through the child’s guardian ad litem, with due regard for the
      maturity of the child;




                                     -26-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


      The custodial history of the child, including whether the child
      has been in the temporary custody of one or more public
      services agencies * * * for twelve or more months of a
      consecutive twenty-two-month period * * *;

      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;

      Whether any of the factors in divisions (E)(7) to (11) of this
      section apply in relation to the parents and child.

      ***

      In determining at a hearing held pursuant to division (A) of this
      section * * * whether a child cannot be placed with either parent
      within a reasonable period of time or should not be placed with
      the parents, the court shall consider all relevant evidence. If the
      court determines by clear and convincing evidence, at a hearing
      held pursuant to division (A) of this section * * * that one or
      more of the following exist as to each of the child’s parents, the
      court shall enter a finding that the child cannot be placed with
      either parent within a reasonable time or should not be placed
      with either parent:

      (e) Following the placement of the child outside the child’s
      home and notwithstanding reasonable case planning and
      diligent efforts by the agency to assist the parents to remedy the
      problems that initially caused the child to be placed outside the
      home, the parent has failed continuously and repeatedly to
      substantially remedy the conditions causing the child to be
      placed outside the child’s home. In determining whether the
      parents have substantially remedied those conditions, the court
      shall consider parental utilization of medical, psychiatric,
      psychological, and other social and rehabilitative services and
      material resources that were made available to the parents for
      the purpose of changing parental conduct to allow them to
      resume and maintain parental duties.

      ***


                                     -27-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


       (2) Chronic mental illness, chronic emotional illness, mental
       retardation, physical disability, or chemical dependency of the
       parent that is so severe that it makes the parent unable to
       provide an adequate permanent home for the child at the
       present time and, as anticipated within one year after the court
       holds the hearing pursuant to division (A) of this section * * *;

       ***

       (4) The parent has demonstrated a lack of commitment
       toward the child by failing to regularly support, visit, or
       communicate with the child when able to do so, or by other
       actions showing an unwillingness to provide an adequate
       permanent home for the child;

       ***

       (16) Any other factor the court considers relevant.

R.C. 2151.414.

      {¶36} In her assignment of error, Danyl claims that the Agency failed to

create a case plan designed to allow her to reunify with her children. She argues

that due to her limited cognitive abilities, the Agency should have provided her

with extra assistance. The extra assistance she argues should have been provided

was for the Agency to separate her from Kevin.

      {¶37} The Agency is required to make reasonable efforts to allow for the

return of children to the home. R.C. 2151.419. The requirements of the case

plan, as it applies to Danyl, in this case were that Danyl attend parenting class,

visit with the children, attend a class on budgeting, receive a psychological

evaluation and follow the recommendations from that evaluation. Additionally,


                                       -28-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


Danyl was required to be evaluated by MRDD to determine if she was eligible for

any further assistance. The record indicates that the only requirement Danyl

completed was to have a psychological evaluation. The result was that she was

diagnosed as having the beginning stages of schizophrenia.         Medication was

prescribed for her to treat the illness, but Danyl, at Kevin’s urging, decided not to

take the medication anymore. As a result the “ghosts” continued to talk to her and

she continued to do what they told her. After they moved, the ghosts did not

come with her, but no other changes occurred. Danyl also did not continue with

the counseling for her mental health issues. Her last visits with T.T.2 and T.T.3

were in June of 2008, more than a year before the hearing. Her last visit with

T.T.1 was in October or November of 2008, again almost a year before the

hearing. Danyl did not complete any parenting or budgeting classes and was

terminated from the program at Firelands for failure to progress. Additionally,

Danyl did not even maintain contact with the caseworker or request information

on her children. She refused to acknowledge that Brian was sexually abusing her

children or that Kevin was abusive as well. Thus, she was not able to move

forward to learn to protect the children. At the hearing, Danyl admitted that the

Agency had done everything they could to help her. Danyl also admitted that she

knew what the Agency wanted her to do. Although Danyl argues the Agency

could have separated her from Kevin, no authority for doing so is provided.



                                        -29-
Case Nos. 13-10-15, 13-10-16 and 13-10-17


Danyl is not legally incompetent and thus cannot be forced to leave the man she

calls her common law husband. When Danyl brought it to the Agency’s attention

that she might want to leave, they offered to help her. Her response was that she

would let them know. However, she never told the caseworker that she wanted to

leave. Instead, when contacted, she continued in her same role as before. Given

all of the evidence before it, the trial court did not err in determining that the

Agency had made reasonable efforts to reunite Danyl with her children. The

assignment of error is overruled.

       {¶38} Having found no error prejudicial to Danyl, the judgments of the

Court of Common Pleas of Seneca County are affirmed.

                                                            Judgments Affirmed

ROGERS and SHAW, J.J., concur.

/jlr




                                       -30-
