[Cite as In re F.A.T., 2016-Ohio-350.]

                             STATE OF OHIO, MONROE COUNTY
                                  IN THE COURT OF APPEALS
                                         SEVENTH DISTRICT

IN THE MATTER OF:                                 )
                                                  )
        F.A.T.                                    )
                                                  )             CASE NO. 14 MO 16
                                                  )
                                                  )                   OPINION
                                                  )
                                                  )
                                                  )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from Court of Common
                                                  Pleas, Juvenile Division of Monroe
                                                  County, Ohio
                                                  Case No. 12 DNA 4884

JUDGMENT:                                         Affirmed.

APPEARANCES:
For Father-Appellant                              Attorney Travis Collins
                                                  P.O. Box 271
                                                  Cadiz, Ohio 43907


For MCDJFS-Appellee                               Attorney James Peters
                                                  101 North Main Street, Room 15
                                                  Woodsfield, Ohio 43793


JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                  Dated: February 1, 2016
[Cite as In re F.A.T., 2016-Ohio-350.]
DeGENARO, J.

        {¶1}     Matthew Thompson, Father-Appellant, challenges the Monroe County
Juvenile Court's decision terminating his parental rights to F.A.T., a minor child. On
appeal, Matthew argues that the Monroe County Department of Job and Family
Services failed to use reasonable efforts to reunite him with his child and that the
juvenile court's decision to terminate his parental rights is not in the child's best
interest. For the reasons discussed below, the judgment terminating Matthew's
parental rights is affirmed.
                          Relevant Facts and Procedural History
        {¶2}     On May 29, 2012, a complaint of abuse and neglect was filed by the
Monroe County Department of Job and Family Services (MCDJFS) related to F.A.T
(D.O.B 5/22/2012) in the Monroe County Juvenile Court. The complaint was based
upon the child lacking adequate parental care. At the time the complaint was filed the
father was unknown. MCDJFS was granted ex parte custody and thereafter, the child
was adjudicated abused and neglected; custody was continued with MCDJFS.
        {¶3}     In November 2012, Matthew, mother's first cousin with whom she had
resided in Mississippi, contacted MCDJFS and requested a paternity test, and on
January 2, 2013 MCDJFS issued an administrative order finding Matthew was the
biological father. On January 22, 2013, the agency requested that he contact the
caseworker to incorporate himself in the case plan. In February 2013 Matthew
suffered a prolonged psychiatric break which required two weeks of inpatient
treatment, and then for a second time in March 2013.         After the last discharge
Matthew left Mississippi to return to Ohio.
        {¶4}     On April 16, 2013, MCDJFS filed an amended case plan providing
visitation for Matthew. Matthew contacted the caseworker on May 17, 2013, and
reported that he was unable to visit the minor child and unable to care for her at that
time. He told the caseworker that he believed the child was taken care of in her
current placement.
        {¶5}     On May 24, 2013, MCDJFS filed a motion to extend temporary custody
and stated its intention to file for permanent custody once the child had been in the
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agency's custody for more than twelve of twenty-two months. On June 13, 2013, the
juvenile court granted the agency's motion and later amended the entry through a
nunc pro tunc judgment to include additional language that stated reasonable efforts
had been made by the agency through case plan services and routine visitation.
       {¶6}   On July 3, 2013, MCDJFS filed its first motion for permanent custody
pursuant to R.C. 2151.413 for the reason that the child had been in the custody of
the agency for twelve or more months of a consecutive twenty-two month period.
Both Matthew and Mother requested court appointed counsel, and the matter was
continued. Thereafter, the juvenile court judge recused himself and a new judge was
appointed effective January 22, 2014.
       {¶7}   The permanent custody hearing was set for March 21, 2014. On March
11, 2014, the juvenile court sua sponte ordered MCDJFS to immediately begin case
plan services for Matthew noting that the filing of a permanency action did not
terminate the agency's duty to provide services. A case planning meeting was held
and several services were identified for Matthew including: individual counseling;
alcohol treatment; drug treatment; and parenting education.
       {¶8}   Permanent custody was denied as to Matthew on April 14, 2014. The
juvenile court cited the lack of case plan services provided to Matthew as violating
the reasonable efforts standard. Consequently MCDJFS amended the case plan and
filed it with the juvenile court on April 17, 2014.
       {¶9}   Less than a month passed before MCDJFS filed its second motion for
permanent custody. This time the motion was made pursuant to R.C. 2151.353 and
Sections 2141.413 through 2151.415. In the May 9, 2014 motion MCDJFS stated:

       Although very little time has passed since this Court’s previous Order
       on April 14, 2014, the movant did begin utilizing reasonable efforts to
       reunify the parties prior to that date, and ultimately made several
       modifications to the underlying case plan in order to attempt such a
       reunification. However, despite those reasonable efforts, Father has
       been involuntarily committed to the Appalachian Behavior Healthcare
                                                                                 -3-


       Hospital pursuant to an Order of the Monroe County Court of Common
       Pleas.

       {¶10} The second permanent custody hearing was held on June 25, 2014, at
which time the juvenile court terminated Matthew’s parental rights. The court found
pursuant to R.C. 2151.414(B)(1)(d) that the minor child had been in the temporary
custody of MCDJFS for twelve or more months of a consecutive twenty-two month
period. Further, the court stated:

       Therefore, based upon all of the foregoing, testimony, and evidence
       submitted, the Court FINDS by clear and convincing evidence that the
       Monroe County Department of Job and Family Services used
       reasonable efforts to reunify Mr. Thompson and his daughter, however,
       Mr. Thompson has been unable to do so. His long history of
       increasingly severe mental illness coupled with his history of drug and
       alcohol abuse prevents him from being able to parent this young child.
       The Court FURTHER FINDS by clear and convincing evidence that the
       Monroe County Department of Job and Family Services used
       reasonable efforts toward Permanency Planning for the child and that it
       is in the best interest of the child that she be placed into the permanent
       custody of the Monroe County Department of Job and Family Services.

                                 Permanent Custody
       {¶11} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972). However, this right is not absolute.
In re Sims, 7th Dist. No. 02-JE-2, 2002-Ohio-3458, ¶23. In order to protect a child's
welfare, the state may terminate parents' rights as a last resort. Id.
       {¶12} Before parental rights can be terminated, an agency must prove by
clear and convincing evidence that a permanent custody order is in the best interests
                                                                                    -4-


of the child and one of the following provisions also apply: "(a) the child cannot be
placed with either parent within a reasonable amount of time or should not be placed
with either parent, (b) the child is orphaned, (c) the child is abandoned, (d) the child
has been in the temporary custody of the agency for twelve or more months of a
consecutive twenty-two month period." In re J.Z., 7th Dist. No. 08 CO 31, 2009-Ohio-
1937, ¶18 citing R.C. 2151.414(B)(1)(a)-(d).
          {¶13} The evidentiary standard in permanent custody cases is clear and
convincing evidence. R.C. 2151.414(B)(1). "Slightly less stringent than 'proof beyond
a reasonable doubt,' the clear-and-convincing standard carries the highest burden of
proof that can be required in a civil proceeding--defined as more than a mere
preponderance of the evidence, clear and convincing evidence is that which is
sufficient to establish a firm belief or conviction as to the facts sought to be
established." In re J.W., 171 Ohio App.3d 248, 2007-Ohio-2007, 870 N.E.2d 245,
¶15 (10th Dist.) citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
          {¶14} As to the standard of review, "[a]n appellate court's review of a juvenile
court's decision granting permanent custody is limited to whether sufficient credible
evidence exists to support the juvenile court's determination." In re G.N., 170 Ohio
App.3d 76, 2007-Ohio-126, 866 N.E.2d 32, ¶27 (12th Dist.) citing In re Starkey, 150
Ohio App.3d 612, 2002-Ohio-6892, 782 N.E.2d ¶16 (7th Dist.).
                                          Reasonable Efforts
          {¶15} In his first of three assignments of error, Matthew asserts:

          The Trial Court’s decision must be overturned because there was not
          clear and convincing evidence to support the Trial Court’s finding that
          the Agency had used reasonable efforts to reunite the minor child1 with
          Mr. Thompson.




1   The child’s name was omitted by this court in all three assignments of error.
                                                                                  -5-


          {¶16} R.C. 2151.419(A)(1)2 provides:

          Except as provided in division (A)(2) of this section, at any hearing held
          pursuant to section 2151.28, division (E) of section 2151.31, or section
          2151.314, 2151.33, or 2151.353 of the Revised Code at which the court
          removes a child from the child's home or continues the removal of a
          child from the child's home, the court shall determine whether the public
          children services agency or private child placing agency that filed the
          complaint in the case, removed the child from home, has custody of the
          child, or will be given custody of the child has made reasonable efforts
          to prevent the removal of the child from the child's home, to eliminate
          the continued removal of the child from the child's home, or to make it
          possible for the child to return safely home. The agency shall have the
          burden of proving that it has made those reasonable efforts * * *

          {¶17} R.C. 2151.419 does not apply to a motion for permanent custody filed
pursuant R.C. 2151.413 or to a hearing held on a permanent custody motion
pursuant to R.C. 2151.414. In re C.F., 113 Ohio St.3d 73, 2007–Ohio–1104, 862
N.E.2d 816, paragraph one of syllabus. The trial court is only obligated to make a
determination that the agency has made reasonable efforts to reunify the family at
"adjudicatory, emergency, detention, and temporary-disposition hearings, and
dispositional hearings for abused, neglected, or dependent children, all of which
occur prior to a decision transferring permanent custody to the state." Id. ¶41.
However, "[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. ¶43.
          {¶18} In the present case, MCDJFS filed both permanent custody motions
pursuant to R.C. 2151.413. Throughout the proceedings the juvenile court made
findings that MCDJFS used reasonable efforts to prevent the child's removal from the

2   Effective June 20, 2014
                                                                               -6-


home, to eliminate the continued removal of the child and to make it possible for the
child to return home, specifically in the following: May 29, 2012 shelter care entry;
June 12, 2012 adjudication judgment entry; and the July 3, 2013 temporary custody
nunc pro tunc entry. Therefore, there was no need to make an additional reasonable
efforts finding at the time of the filing for permanent custody or at the hearing on the
motion contrary to what the juvenile court, through a newly assigned visiting judge,
stated in its judgment entry when denying the agency’s first permanent custody
motion.
      {¶19} Matthew contends that the agency failed to use reasonable efforts to
reunite him with the minor child. Specifically he argues that the case plan provided by
MCDJFS only provided him with supervised visitation. He argues that he should have
been provided additional services. However, courts have recognized an implied
exception to the reasonable efforts requirement where case planning efforts would be
futile. In re T.F., 4th Dist. No. 07CA34, 2008–Ohio–1238, ¶34; In re L.J., 12th Dist.
No. CA2007–07–080, 2007–Ohio–5498, ¶36.
      {¶20} The juvenile court found that Matthew had a long history of severe
mental health issues including: bipolar, depressive, and schizoaffective disorder. Two
weeks after the first permanency custody hearing his doctor deemed him a "mentally
ill individual" that was subject to involuntary hospitalization…and that "[h]e has
paranoid beliefs, confusion, hallucinations and cycling into a manic mood." Matthew
was admitted to Appalachian Behavioral Healthcare on April 28, 2014 and was
restored to competency and released from that facility the morning of the second
permanent custody hearing on June 25, 2014. He had been admitted for
hospitalization twice in 2013 while in Mississippi and twice in Ohio in 2009 for similar
behaviors.
      {¶21} Further, during the pendency of this case Matthew was indicted for two
felony counts of aggravated menacing and charged with two counts of misdemeanor
menacing stemming from threats allegedly made by Matthew against two MCDJFS
caseworkers assigned to this matter. Although those charges remained unresolved
                                                                                 -7-


as of the date of the permanent custody hearing, this was the behavior which
resulted in his involuntary committal on April 28, 2014.
       {¶22} Matthew testified that he did not comply with the case plan as written
regarding ongoing attendance at parenting classes and visitation with the minor child.
Further, Matthew conceded he was unable to visit the minor child due to his
hospitalization. Mathew acknowledged his ongoing issues with drugs and alcohol,
and agreed with the diagnosis of bipolar and schizoaffective disorders which he has
dealt with for over fifteen years. Matthew acknowledged that he has had audio
hallucinations and would hear things that are not necessarily present. Matthew
testified that he has had issues remaining compliant with his medications and has
self-medicated with alcohol and marijuana.
       {¶23} Based on Matthew's chronic mental illness, ongoing issues with drugs
and alcohol, and unsuccessful completion of the case plan regarding visitation, it is
evident that further case planning efforts would be futile. Accordingly, as the juvenile
court had made a reasonable efforts finding and further case planning services would
be futile, Matthew's first assignment of error is meritless.
                                     Best Interests
       {¶24} In his second of three assignments of error, Matthew asserts:

       The Trial Court’s finding that the granting of permanent custody was in
       the minor child’s best interests was not supported by clear and
       convincing evidence.

       {¶25} "R.C. 2151.414(D) requires a trial court to consider specific factors to
determine whether a child's best interest will be served by granting a children
services agency permanent custody. The factors include: (1) the child's interaction
and interrelationship with the child's parents, siblings, relatives, foster parents and
out-of-home providers, and any other person who may significantly affect the child;
(2) the child's wishes, as expressed directly by the child or through the child's
guardian ad litem, with due regard for the child's maturity; (3) the child's custodial
                                                                            -8-


history; (4) the child's need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent custody to the
agency; and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply."
In re T.G., 4th Dist. No. 15CA24, 2015-Ohio-5330, ¶26.
      {¶26} In determining it was in the minor child’s best interest for permanent
custody to be granted to the agency, the juvenile court found that there was very
limited contact between Matthew and the child. Matthew exercised sporadic time with
the child who recognized him as a playmate and there was no evidence of bonding
between the child and Matthew. Matthew’s mother visited the child when Matthew
was hospitalized, however, she was not willing to assume any legal relationship with
the child. The juvenile court found that the child had a very strong bond with the
foster family and that this was the only family that the child has known as she has
been living with them since she was six days old. The child is thriving in the foster
home and the foster family wished to adopt her should that be possible.
      {¶27} The juvenile court found that the child was approximately two years old
and too young to express her wishes. The guardian ad litem recommended that
permanent custody be granted and the child remain with the foster family. The
juvenile court further found that the child needed a legally secure placement which
could only be accomplished through permanent custody.
      {¶28} Regarding the factors contained in R.C. 2151.414(E), the court found
that (7) and (9) applied. Matthew had been charged, though not convicted, of
domestic violence several times and at the time of the hearing was under indictment
for two felony counts of aggravated menacing and two misdemeanor counts of
menacing. Further, Matthew has a history with drugs and alcohol.
      {¶29} The juvenile court properly considered the statutory factors and the
record when determining that permanent custody was in the best interests of F.A.T.
Accordingly, Matthew’s second assignment of error is meritless.
                                 24 Month Period
      {¶30} In his final of three assignments of error, Matthew asserts:
                                                                                   -9-


        “The Trial Court erred by finding that Mr. Thompson could not be
        reunited with the minor child due to the fact that “the twenty-four month
        period” for reunification had expired.”

        {¶31} Matthew does not contest the trial court's R.C. 2151.414(B)(1)(d)
finding that the child had been in the custody of the agency for twelve of twenty-two
months. Matthew does challenge the juvenile court's finding that the minor child could
not be reunited with Matthew in a reasonable period of time under R.C.
2151.414(B)(1)(a). However, that finding was unnecessary in light of the court's
determination that R.C. 2151.414(B)(1)(d) applied. "[O]nce it is clear that the child
has been in the care of the agency for at least 12 of the previous 22 months, the only
matter to be determined by the trial court is the best interest of the child." In re G.G.,
7th Dist. No. 12 CO 6, 2013–Ohio–3991, ¶ 17 citing In re C.R., 7th Dist. No. 06 BE
53, 2007–Ohio–3179, ¶ 34.
        {¶32} Other districts have also declined to consider an argument relating to
R.C. 2151.414(B)(1)(a) when R.C. 2151.414(B)(1)(d) clearly applied. See In re J.V–
M.P. 4th Dist. No. 13CA37, 2014–Ohio–486, ¶22; In re H.D., 10th Dist. No. 13AP–
707, 2014–Ohio–228, ¶15; In re A.B., 8th Dist. No. 99836, 2013–Ohio–3818, ¶8-9; In
re Keckler, 3rd Dist. No. 8–08–08, 2008–Ohio–4642, ¶ 8 (stating that once a trial
court    finds   that   R.C.     2151.414(B)(1)(d)    applies,   "any    finding    under
R.C.2151.414(B)(1)(a) is unnecessary and, if against the manifest weight of the
evidence, is harmless error").
        {¶33} Therefore, because the minor child has been in the care of the agency
for at least 12 of the previous 22 months pursuant to R.C. 2151.414(B)(1)(d), we
need not consider Matthew's arguments with respect to R.C. 2151.414(B)(1)(a).
Accordingly Matthew's third assignment of error is meritless.
                                       Conclusion
        {¶34} Because the decision to grant permanent custody of F.A.T. to the
Monroe County Department of Job and Family Services is supported by the record
and in the best interests of the minor child, Matthew’s assignments of error are
                                                                - 10 -


meritless and the decision of the juvenile court is affirmed.


Waite, J., concurs in judgment only.

Robb, J., concurs.
