[Cite as In re S.C., 2013-Ohio-623.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN RE: S.C. :
: C.A. CASE NO. 24890
: T.C. NO. JC 2009-6312
: (Civil appeal from Common
Pleas Court, Juvenile Division)
:
:
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OPINION
Rendered on the 22nd day of February , 2013.
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CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, 703 Liberty Tower, 120 W. Second
Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
JAY CARTER, Atty. Reg. No. 0041295, 111 W. First Street, Suite 519, Dayton, Ohio 45402
Attorney for Minor Child
PHILLIP A. REID, Atty. Reg. No. 0016537, 10 W. Monument Avenue, Dayton, Ohio 45402
Guardian Ad Litem
[Cite as In re S.C., 2013-Ohio-623.]
A.P., Dayton, Ohio
Mother of S.C.
M.C., Dayton, Ohio
Father of S.C.
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FROELICH, J.
{¶ 1} S.C.’s father (“Father”) appeals from a judgment of the Montgomery
County Court of Common Pleas, Juvenile Division, which ordered his daughter, S.C. (age
14), to be placed in a planned permanent living arrangement and overruled Father’s motions
for legal custody and to restore visitation. For the following reasons, the trial court’s
judgment will be affirmed.
I.
{¶ 2} In July 2009, Montgomery County Department of Job and Family Services,
Children Services Division (“MCCS”) filed a dependency complaint regarding S.C. in the
juvenile court. After a dispositional hearing in October 2009, MCCS was given temporary
custody of S.C. Both parents were permitted to have weekly visitation. Temporary
custody to MCCS was extended in July and November 2010.
{¶ 3} On November 24, 2010, Father filed a motion for legal custody, arguing that
S.C. was not thriving in her group home, that her mother was incapable of caring for her,
that she had expressed a desire to live with her father, and that he was capable of providing
proper care. The court did not immediately rule on this motion. In February 2011, MCCS
moved to have Father’s visitation suspended due to allegations by S.C. that her father had
sexually abused her before MCCS’s involvement, repeated inappropriate remarks by Father
to S.C. during visitation, and the negative impact that father’s visits were having on S.C.’s
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behavior. S.C. had also had suicidal ideations. The trial court granted MCCS’s motion to
suspend visitation.
{¶ 4} In April 2011, MCCS filed a motion for a planned permanent living
arrangement. The following month, Father moved to restore his visitation.
{¶ 5} A hearing on MCCS’s motion for a planned permanent living arrangement
and on Father’s motions for legal custody and to restore visitation was held on September
20, 2011. The hearing was attended by S.C.’s caseworkers at MCCS and counsel for
MCCS, S.C.’s mother (with counsel), Father (with counsel), counsel for S.C., and S.C.’s
guardian ad litem. At the beginning of the hearing, Father’s counsel told the court that
Father “did make considerable effort to get [the parenting/psychological evaluation] done,
because he could not get it done through the Agency paying for it. He had to try to get it
done under his own insurance. And we were unable to find a place to provide that service
with his coverage.” Father acknowledged, however, that the evaluation had not been
conducted, as required by his case plan with MCCS. Though recognizing that Father made
“some attempt” to complete the parenting/psychological evaluation requirement, the trial
court denied Father’s motions for legal custody and to restore visitation due to his failure to
meet that case plan objective.
{¶ 6} S.C.’s caseworker, Mallory Mitchell, testified regarding the motion for a
planned permanent living arrangement. Mitchell stated that Father’s sole objective under
his case plan was to receive a parenting/psychological evaluation. That requirement had not
been accomplished. Mitchell testified that S.C. had been living at Beachbrook Residential
Facility in Cleveland for three months. She was sent to that facility due to numerous
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suicidal attempts or ideations, which resulted in about eight hospitalizations in a three- to
four-month period of time; S.C. was not getting better at her prior location. S.C. has been
on suicide watch “considerably” during her time at Beachbrook. S.C. did not appear to
understand the seriousness of her behavior. S.C. had previous issues with hygiene, which
had improved at the group home in Dayton, but her hygiene deteriorated again at
Beachbrook. Mitchell stated that MCCS originally believed that S.C. could be reunified
with her mother, but “that has since turned based on [S.C.’s] severe mental health issues.”
S.C. was also displaying some onset signs of “some kind of psychosis maybe that there may
be some schizophrenia setting in.” Mitchell did not believe that S.C. could function in a
family-like setting; he stated that a person trying to handle S.C.’s behavior would need
extensive training and experience in dealing with children with such mental health
behaviors. He knew of no suitable family placement. S.C. “had always voiced the opinion
that she do not want to stay with her dad for various reasons.” Mitchell recommended that
S.C. be placed in a planned permanent living arrangement, which he believed was in S.C.’s
best interest.
{¶ 7} S.C.’s mother and the guardian ad litem were in favor of MCCS’s motion
for a planned permanent living arrangement. The trial court orally granted MCCS’s motion,
over father’s objection. On September 22, 2011, the trial court issued a written judgment,
terminating temporary custody, ordering a planned permanent living arrangement, and
denying Father’s motions for legal custody and to restore visitation. The trial court
specifically found that S.C. could not return home because she “continues to have substantial
mental health issues for which she requires residential treatment” and that “it is in the best
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interest of the child to be placed in a planned permanent living arrangement.”
{¶ 8} Father appeals from the trial court’s judgment.
II.
{¶ 9} Father’s appellate counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining
the record, he found no potentially meritorious issues for appeal. Counsel identified two
possible assignments of error, namely that the trial court erred in ordering a planned
permanent living arrangement for S.C. and that the trial court abused its discretion when it
overruled father’s motions for legal custody and to restore visitation.
{¶ 10} By entry, we informed Father that his appellate attorney had filed an Anders
brief on his behalf and granted him sixty days from that date in order to file a pro se brief.
To date, no pro se brief has been filed. Counsel for MCCS also has not provided a
substantive response to Father’s counsel’s Anders brief. The case is now before us for our
independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d
300 (1988).
{¶ 11} “A planned permanent living arrangement, formerly called long-term foster
care, ‘is an alternative form of custody in which the child is placed in a foster home or
institution, with the intention that the child will remain in that home or institution until he is
no longer in the county child services system.’” Miller v. Greene Cty. Children’s Serv. Bd.,
162 Ohio App.3d 416, 2005-Ohio-4035, 833 N.E.2d 805, ¶ 20 (2d Dist.), quoting In re D.B.,
8th Dist. Cuyahoga No. 81421, 2003-Ohio-3521, ¶ 6. Unlike an order granting permanent
custody of a child to the children services agency, a planned permanent living arrangement
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does not terminate parental rights. Id.; R.C. 2151.011(B)(39). However, a PPLA does give
legal custody of the child to the agency and allows the agency to make an appropriate
placement of the child. R.C. 2151.011(B)(39).
{¶ 12} R.C. 2151.353(A)(5) provides that the juvenile court may place an abused,
dependent, or neglected child in a planned permanent living arrangement if (1) a public
children services agency or private child placing agency requests the court to place the child
in a planned permanent living arrangement, (2) the trial court finds, by clear and convincing
evidence, that a planned permanent living arrangement is in the best interest of the child, and
(3) one of three circumstances exist, including:
(a) The child, because of physical, mental, or psychological problems or
needs, is unable to function in a family-like setting and must remain in
residential or institutional care now and for the foreseeable future beyond the
date of the dispositional hearing held pursuant to section 2151.35 of the
Revised Code[.] * * *
{¶ 13} In determining the best interest of a child for purposes of R.C.
2151.353(A)(5), the juvenile court must consider all relevant factors, including, but not
limited to, the following:
(a) 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;
(b) 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
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child;
(c) The custodial history of the child, including whether 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, * * *;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1).
{¶ 14} If an agency requests that the juvenile court place the child in a planned
permanent living arrangement, the agency “shall present evidence to indicate why a planned
permanent living arrangement is appropriate for the child, including, but not limited to,
evidence that the agency has tried or considered all other possible dispositions for the child.”
R.C. 2151.415(C)(1).
{¶ 15} In this case, MCCS specifically requested that S.C. be placed in a planned
permanent living arrangement. Mitchell’s testimony established that S.C. had attempted
suicide on numerous occasions and continued to have suicidal thoughts, and she had
displayed some onset signs of some kind of psychosis, possibly schizophrenia. S.C.
continued to be on suicide watch at Beachbrook. S.C. was again having serious issues with
her hygiene – a matter that was an original concern and had improved at the group home, but
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deteriorated again in recent months. S.C. did not appear to understand the seriousness of
her behavior.
{¶ 16} MCCS’s evidence provided strong support for the conclusion that S.C. was
unable to function in a family-like setting due to her severe mental health issues, and that she
needed supervision by someone with extensive experience in her mental health problems.
MCCS knew of no suitable placements with family members. S.C. repeatedly expressed
the opinion that she did not want to live with her father, and Father had not met his case plan
objective. S.C.’s mother and guardian ad litem agreed with the planned permanent living
arrangement, and MCCS’s evidence strongly supported the trial court’s conclusion that a
planned permanent living arrangement was in S.C.’s best interest. We find no reasonable
argument that the trial court erred in granting MCCS’s motion for a planned permanent
living arrangement for S.C.
{¶ 17} We also agree with appellate counsel that there is no arguable merit to a
claim that the trial court erred in denying Father’s motions for legal custody and to restore
visitation. Father’s right to visitation was previously suspended due to allegations of sexual
misconduct with S.C. and her brother, and he did not complete his case plan requirement
that he have a parenting evaluation conducted. Moreover, given the evidence in support of
MCCS’s motion for a planned permanent living arrangement, the trial court did not err in
denying Father’s motion for legal custody.
{¶ 18} We note that Father was represented by an attorney throughout these
proceedings. A parent is entitled to representation by legal counsel at all stages of the
proceedings under Chapter 2151, including the right to have counsel appointed if the parent
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is indigent. R.C. 2151.352; Juv.R. 4(A). Father had ample opportunity to present his
arguments to the trial court and to cross-examine Mitchell at the hearing.
{¶ 19} In summary, having conducted our independent review of the record, we
find no arguably meritorious issues for review.
III.
{¶ 20} The trial court’s judgment will be affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Carley J. Ingram
Scott A. Ashelman
Jay Carter
Phillip A. Reid
A.P.
M.C.
Hon. Nick Kuntz