In re Baby Boy W.

[Cite as In re Baby Boy W., 2011-Ohio-2337.]

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

IN THE MATTER OF:

BABY BOY W., CASE NO. 5-10-39

ALLEGED DEPENDENT CHILD,
OPINION
[AMBER W. - APPELLANT].

Appeal from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 21030018

Judgment Affirmed

Date of Decision: May 16, 2011

APPEARANCES:

Charles R. Hall, Jr. for Appellant

Mark C. Miller and Benjamin E. Hall for Appellee
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PRESTON, J.

{¶1} Mother-appellant, Amber W. (hereinafter “Amber”), appeals the

Hancock County Court of Common Pleas’ decision awarding permanent custody

of her child, Baby Boy W., to the Hancock County Department of Job and Family

Services: Children’s Protective Services Unit (hereinafter “CPSU”). For the

reasons that follow, we affirm.

{¶2} On June 29, 2010, the trial court issued an ex parte order awarding

CPSU emergency temporary custody of Amber’s son, Baby Boy W. (Doc. No. 1).

On June 30, 2010, CPSU filed a complaint alleging Baby Boy W. was a dependent

child as defined in R.C. 2151.04(b)-(d). (Doc. No. 2).

{¶3} At the July 8, 2010 shelter care hearing, the trial court concluded that

probable cause existed for the filing of the ex parte order, and that the continued

residence in the child’s own home would be contrary to the child’s best interest.

The trial court ordered that the child be placed in CPSU’s emergency temporary

custody. (Doc. No. 9). The trial court also concluded that reasonable efforts to

prevent the removal of the child were unnecessary since Amber had her parental

rights involuntarily and permanently terminated with respect to her other two

children. (Id.).

{¶4} On September 9, 2010, an adjudication hearing was held, and the trial

court found that the child was a dependent child as defined in R.C. 2151.04(b)-(d).

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(Doc. No. 19). The trial court scheduled a dispositional hearing for September

16, 2010. (Id.).

{¶5} On September 14, 2010, CPSU filed a motion for a determination that

reasonable efforts were unnecessary pursuant to R.C. 2151.419(A)(2). (Doc. No.

20). CPSU requested that a hearing on the motion be held on September 16, 2010

in lieu of the scheduled dispositional hearing. (Id.). On September 16, 2010, the

trial court held a hearing on the motion and, thereafter, granted the motion. (Doc.

No. 22). The trial court then scheduled a review of the permanency plan for

October 12, 2010. (Id.).

{¶6} On September 21, 2010, CPSU filed a motion for permanent custody

pursuant to R.C. 2151.353, 2151.413, and 2151.414. (Doc. No. 23).

{¶7} On October 28, 2010, a hearing was held to review the permanency

plan wherein the parties stipulated that CPSU had attempted to achieve

permanency for the child by filing a motion for permanent custody. (Doc. No. 33).

{¶8} On November 15-16, 2010, the trial court held a hearing on CPSU’s

motion for permanent custody and, thereafter, took the matter under advisement.

(Doc. No. 38). On November 22, 2010, the trial court granted CPSU’s motion for

permanent custody thereby terminating Amber’s parental rights to Baby Boy W.

(Doc. No. 39).

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{¶9} On December 17, 2010, Amber filed a notice of appeal. (Doc. No. 42).

Amber now appeals raising three assignments of error for our review. We elect to

address Amber’s third assignment of error out of the order presented in her brief.

ASSIGNMENT OF ERROR NO. I

THE COURT SHOULD FIND THAT THE JUDGMENT
ENTRY APPEALED FROM IN THE HANCOCK COUNTY
JUVENILE COURT ON NOVEMBER 22, 2010 IS NOT A
FINAL APPEALABLE ORDER.

{¶10} In her first assignment of error, Amber argues that this Court lacks

jurisdiction for lack of a final appealable order since the trial court failed to hold a

dispositional hearing.

{¶11} The record indicates that Amber filed a motion to dismiss the case

with this Court for lack of a final appealable order on February 7, 2011. On

February 24, 2011, however, we denied the motion finding that the judgment entry

terminating Amber’s parental rights and awarding CPSU permanent custody of

Baby Boy W. was a final appealable order under R.C. 2505.02(B)(2).

{¶12} Amber’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT’S DECISION TO TERMINATE THE
APPELLANT’S PARENTAL RIGHTS AND GRANT
PERMANENT CUSTODY TO THE DEPARTMENT
VIOLATED THE APPELLANT’S DUE PROCESS RIGHTS.

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{¶13} In her third assignment of error, Amber argues that the trial court

violated her procedural due process rights by failing to hold a separate

dispositional hearing.

{¶14} When a trial court proceeds on an original neglect, dependency, or

abuse complaint under R.C. 2151.35(B)(1), it is required to bifurcate the

proceedings into an adjudication and a disposition. Baby Girl Baxter (1985), 17

Ohio St.3d 229, 233, 479 N.E.2d 257; In re J.H., 12th Dist. Nos. CA2005-11-019

and CA2005-11-020, 2006-Ohio-3237, ¶¶22-27. A trial court need not hold these

hearings on separate days or even at separate times; however, “there must be a

definitive bifurcation of the proceedings so that the parties are afforded an

opportunity to present evidence at both the adjudicatory and dispositional

hearings.” In re J.H., 2006-Ohio-3237, at ¶27. A trial court’s failure to bifurcate

proceedings, as required both by R.C. 2151.35(B)(1) and Juv.R. 34(A), constitutes

reversible error. Baby Girl Baxter, 17 Ohio St.3d at 233. See, also, In re Malone

178 Ohio App.3d 219, 2008-Ohio-4412, 897 N.E.2d 672, ¶20.

{¶15} The record in this case demonstrates that the trial court held a

dispositional hearing on November 15-16, 2010, though not specifically labeled as

such by the trial court or the parties herein. Since Amber had her parental rights

terminated with respect to two of Baby Boy W.’s siblings, the trial court

determined that the agency was not required to make reasonable efforts pursuant

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to R.C. 2151.419(A)(2)(e). Following that determination, R.C. 2151.413(D)(2)

required CPSU to file a motion requesting permanent custody. R.C.

2151.414(A)(2) provides, in pertinent part, “[i]f a motion is made under division

(D)(2) of section 2151.413 of the Revised Code and no dispositional hearing has

been held in the case, the court may hear the motion in the dispositional hearing

required by division (B) of section 2151.35 of the Revised Code.” Our review of

the record leads us to conclude that the trial court considered CPSU’s motion for

permanent custody as part of its November 15-16, 2010 dispositional hearing in

accordance with R.C. 2151.414(A)(2). As such, the trial court did not violate

Amber’s procedural due process rights.

{¶16} Amber’s third assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. II

THE JUVENILE COURT ERRED AND ABUSED ITS
DISCRETION AS THE FINDINGS MADE BY THE COURT
TO SUPPORT ITS GRANT OF PERMANENT CUSTODY TO
HCJFS ARE NOT CONSISTENT WITH THE STANDARD OF
CLEAR AND CONVINCING EVIDENCE, AND THE TRIAL
COURT’S GRANT OF PERMANENT CUSTODY IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶17} In her second assignment of error, Amber argues that CPSU failed to

clearly and convincingly demonstrate the required findings under R.C. 2151.414

for the trial court to grant it permanent custody. Amber similarly argues that the

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trial court’s grant of permanent custody was against the manifest weight of the

evidence.

{¶18} “It is well recognized that the right to raise a child is an ‘essential’

and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680,

citing In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, quoting

Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551.

Therefore, “a parent’s right to the custody of his or her child has been deemed

‘paramount.’” Hayes, 79 Ohio St.3d at 48, citing In re Perales (1977), 52 Ohio

St.2d 89, 97, 369 N.E.2d 1047. Because parents have a fundamental liberty

interest in the custody of their own children, this important legal right is “protected

by law and, thus, comes within the purview of a ‘substantial right[.]’” In re

Murray, 52 Ohio St.3d at 157. Therefore, parents “‘must be afforded every

procedural and substantive protection the law allows.’” Hayes, 79 Ohio St.3d at

48, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.

{¶19} R.C. 2151.414(B)(2) requires a court to grant permanent custody of

the child to the moving party “if the court determines in accordance with [R.C.

2151.414(E)] 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 that

permanent custody is in the best interest of the child by considering all relevant

factors, including but not limited to, the five factors listed in R.C. 2151.414(D). If

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the court determines by clear and convincing evidence that one or more of the

sixteen factors listed in R.C. 2151.414(E) exist, 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.” R.C. 2151.414(E) (emphasis added).

{¶20} The trial court’s findings must be supported by clear and convincing

evidence and will not be overturned as against the manifest weight of the evidence

if the record contains competent, credible evidence by which the court could have

formed a firm belief or conviction that the essential statutory elements for a

termination of parental rights have been established. R.C. 2151.414(B); In re

Forest S. (1995), 102 Ohio App.3d 338, 344-45, 657 N.E.2d 307; Cross v. Ledford

(1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus.

{¶21} At the beginning of the dispositional hearing, Amber stipulated, in

pertinent part, that she had her parental rights permanently and involuntarily

terminated as to two of Baby Boy W.’s siblings. (Nov. 15-16, 2010 Tr. at 10-12).

Judgment entries reflecting that fact were also admitted by stipulation. (CPSU

Exs. 5-6). Thereafter, Robin Brown, a mental health/substance abuse counselor at

Century Health, testified that Amber was a former Century Health client in 2003,

and, in 2007, she diagnosed Amber with major depression, recurrent and moderate

rule-out delusional disorder. (Nov. 15-16, 2010 Tr. at 15-18). Brown testified that

delusional disorder is “a form of mental illness where someone believes that

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something that they’re saying is true but there’s no basis in fact for it.” (Id. at 18).

“Rule out” means that they were still determining whether or not Amber, in fact,

had a delusional disorder. (Id.). Brown testified, however, that Amber had an

actual diagnosis of post-traumatic stress disorder and attention deficit disorder, as

well as major depression. (Id. at 19). Brown testified that doctors were concerned

that Amber might have a delusional disorder from statements she made from 2007

to 2009. (Id. at 20). Brown testified that Dr. Darlene Barnes noted in June 2008

that Amber was “forgetful, distracted, overwhelmed, easily agitated, irritable,

irrational in reasoning and thought * * * did not function well around others and

had difficultly working collaboratively.” (Id. at 20-21). Brown testified that

Amber was prescribed counseling and medication, but Amber stopped and started

the counseling sessions on several different occasions and failed to take her

medications. (Id. at 20-23). Amber’s case was closed in May 2009 for non-

compliance, according to Brown. (Id.). Brown testified that CPSU referred Amber

to Century Health in August 2010 for a substance abuse assessment. (Id. at 22-23).

Brown testified that Denise Kring, the Century Health mental therapist who saw

Amber in August 2010, diagnosed Amber with anxiety disorder with a rule-out of

intermittent explosive disorder. (Id. at 23-24). Brown testified that Denise wanted

Amber to attend counseling, but Amber failed to attend. (Id. at 25-26). Brown

testified that Amber attended a total of three (3) counseling sessions from August

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9, 2010 until November 11, 2010. (Id. at 26-27). Brown testified that Amber

missed two (2) scheduled counseling sessions, and they had not heard from Amber

since September 21, 2010. (Id. at 28). Brown testified that she is concerned that

Amber still has an untreated mental illness. (Id. at 29).

{¶22} On cross-examination, Brown testified that Amber tested negative

for illegal substances on August 9, 2010 and at least two other times, and that

substance abuse has never been a concern in Amber’s case. (Id. at 30-31). Brown

testified that Kring’s August 12th diagnosis that Amber suffered from anxiety and

intermittent explosive disorder was changed on August 26th to a diagnosis of

anxiety. (Id. at 31-32). Brown testified that their records did not indicate whether

Amber was taking medication for her anxiety. (Id. at 32-33). Brown testified that

Amber had a history of attention deficit disorder but no current diagnosis of such.

(Id. at 37). On re-direct, Brown testified that the diagnosis of record was made by

the psychiatrist in 2008, who diagnosed Amber with major depression, recurrent,

moderate with attention deficit disorder, post-traumatic stress disorder, and

anxiety. (Id. at 39-40). Brown testified that Amber had been prescribed Lamictal,

a mood stabilizer, Straterra for attention deficit disorder, and later those

medications were changed to Depakote, a mood stabilizer, and Zoloft for

depression. (Id. at 41). Brown testified that Amber stopped taking these

medications in 2008. (Id. at 42). Brown testified that Amber was unable to

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establish goals during her counseling sessions because she did not attend enough

counseling sessions. (Id. at 42-43).

{¶23} Rebecca Schumaker, a former parent educator and current case

worker at CPSU, testified that she was involved with Amber regarding her care of

three of her children. (Id. at 44-45, 49). Schumaker testified that she began

working with Amber and her daughter in May 2002 when Amber was fourteen or

fifteen (14 or 15) years old. (Id. at 49-50). Schumaker testified that she worked

with Amber on parent/child interaction, feeding, holding, and interacting with the

baby, and they were monitoring the child’s development. (Id. at 50). Schumaker

testified that Amber contacted the agency again for services when she was

pregnant with her second child in June 2006. (Id. at 51). Schumaker testified that

there were concerns with Amber’s care for her daughter, who was four years old

and escaping from the home. (Id.). Schumaker testified that she was concerned

about Amber’s daughter escaping from the home because it was not an isolated

incident, and Amber had not taken any action to stop it from re-occurring. (Id. at

52-53). Schumaker testified that Amber’s home was “very cluttered,” “piled with

boxes of items,” and “very chaotic” with Amber’s mother, Kathy Welly, living

there and bringing her boyfriend in and out of the home. (Id. at 54). Schumaker

further testified that she had some concerns with Welly, because Amber had

reported that Welly was an alcoholic and that they would engage in fist fights.

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(Id.). Schumaker also was concerned with two other individuals living in the

home: Eric McNarry, who had recently been released from prison after serving a

term for domestic violence; and Robert Essex, Amber’s sixty-year old boyfriend

and father of two of Amber’s children while still married to another woman. (Id. at

55).

{¶24} Schumaker testified that “[t]here was always so much drama that it

was very difficult to look into the issue of parent education” with Amber. (Id. at

56). Schumaker testified that Amber was concerned with sex offenders possibly

living in her apartment complex; nevertheless, Amber allowed her daughter to

spend a month with Randy Hernandez, a family member she thought was a sex

offender, and Alex Hernandez, a family member she thought had abused her

children. (Id. at 56-57). Schumaker testified that Amber told her that someone

was getting into her apartment through her attic, but the apartment management

explained that that could not be possible because of fire walls in the attic between

each apartment. (Id. at 57-58). Schumaker testified that Amber made an allegation

that the apartment maintenance man was watching her because he wanted to have

sex with her, when he was actually involved in ministry. (Id. at 59). Schumaker

testified that Amber had several heated disagreements with the apartment

complex’s management about them allowing the maintenance man into her

apartment when he just wanted to have sex with her. (Id. at 59). Schumaker

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testified that Harold W., Amber’s Uncle and registered sex offender, was

babysitting the children the night the police removed Amber’s two children from

the home in August 2008. (Id. at 59-60). Schumaker testified that her visitations

with Amber were “distorted” because Amber would continually make allegations

against people. (Id. at 62). For example, Amber alleged that she had a video

showing Essex’s teenage daughter being sexually inappropriate with her daughter,

but the video was actually a Care Bears video. (Id.). In 2007, Amber alleged that

her son, who was one year old at the time, was able to walk out of the foster

parents’ home and walk to Amber’s grandmother’s house and put a magical spell

on her grandmother. (Id. at 63). Schumaker testified that Amber fired her from the

case in 2007, and that Amber had made very little progress throughout the case.

(Id.). Schumaker testified that she attempted to work with Amber on the first case

for almost two and a half (2.5) years, and the second case for a little over one (1)

year with little progress due to Amber’s inability to focus and her argumentative

disposition. (Id. at 64). Schumaker testified that Amber received an “excessive”

amount of parent education compared to that normally provided for dealing with

the sorts of issues Amber manifested. (Id. at 67). Schumaker testified that Amber

smacked her one-year-old child on the hands during a supervised visitation and

remarked “[s]ometimes you gotta do what you gotta do.” (Id. at 67-68).

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Schumaker testified that Amber could not appropriately parent her children. (Id. at

69-70).

{¶25} On cross-examination, Schumaker testified that CPSU became

involved in the case shortly after she began, and that her relationship with Amber

began to deteriorate shortly after CPSU became involved. (Id. at 72). Schumaker

testified that she would not be aware of any progress that Amber has made since

October 2007. (Id. at 73). Schumaker testified that she was not certain whether

Harold W. was watching the children when the police picked up the children at the

home, but that she had concerns with all of Amber’s uncles, who were either sex

offenders or had prior criminal convictions. (Id. at 73-75). On re-direct,

Schumaker testified that Harold W. was in the home after Amber was made aware

of the fact that he was a registered sex offender, though he was not there with the

children. (Id. at 78).

{¶26} Megan Lauck, a caseworker with HCJFS, testified that she was Baby

Boy W.’s case worker since July 2010. (Id. at 81-83). Lauck testified that Amber

thought the father of the child was “Dallas,” a guy she previously attended high

school with and had sex with during a party in Findlay, though she did not know

Dallas’s last name or his whereabouts. (Id. at 84-85). Lauck testified that Amber

wanted her half-brother, Eric Welly, to be listed as the child’s father, which Lauck

thought would be confusing to the child. (Id. at 85-86). Lauck testified that Baby

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Boy W. was in CPSU’s temporary custody as of July 1, 2010 after his removal due

to Amber’s prior involuntary termination of her parental rights for two of Baby

Boy W.’s siblings. (Id. at 87-88). Lauck testified that adoption was Baby Boy

W.’s permanency goal. (Id. at 95). Lauck testified that Amber was involved in the

case plan, and that the case plan’s first objective was to establish paternity, but

Amber was unable to provide any meaningful information to identify the father.

(Id. at 97). Lauck testified that the case plan’s second objective was to have Baby

Boy W. assessed for developmental delays, which required a release form signed

by Amber; however, Amber would not release the child’s medical records to

CPSU. (Id. at 99-105). Lauck testified that they had to obtain a court order to

obtain the child’s medical records so that he could be assessed for delays. (Id. at

105). Lauck testified that Baby Boy W. was delayed in every area but one. (Id. at

106). Lauck testified that the case plan’s third objective was for the child to

receive appropriate medical care, and Amber frustrated that objective by not

cooperating in having the child assessed, even though Amber believed the child

may have had Down syndrome and asked that he be assessed. (Id. at 107-08).

{¶27} Lauck testified that the case plan’s fourth objective was visitation

with the child. (Id. at 109). Lauck testified that she was concerned with Amber

placing the child’s pacifier in her mouth before placing it in the child’s mouth,

because she could transfer cold and flu germs to the child. (Id. at 111). Lauck

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further testified that Amber would report suspected injuries to the child that were

not, in fact, injuries. (Id. at 111). Amber also fed the child prior to his scheduled

feeding time, which caused the child to spit up. (Id. at 112-14). Lauck testified

that she witnessed Amber being hostile toward staff during visitation. (Id. at 114).

Lauck testified that her July 19, 2010 home visit with Amber was confrontational,

and Amber wanted to talk about how CPSU’s case was unfounded. (Id. at 116-17).

Amber told Lauck that Baby Boy W. was taken away because CPSU thought she

was on drugs even though substance abuse was never CPSU’s reason for the

removal of the child. (Id. at 117). Lauck testified that she was concerned that Eric

Welly and his girlfriend were living with Amber even though Amber stated they

were not living in the home. (Id. at 118-19). Lauck testified that she attempted to

visit Amber’s home on August 11, 2010, but no one answered the door even

though she could hear people inside the home. (Id. at 120). Lauck testified that

her August 31, 2010 home visit was, again, confrontational and Eric Welly was in

the home again with his girlfriend. (Id. at 121-22). During this visit, Amber again

conveyed that she thought CPSU was taking her child because they thought she

was on drugs. (Id. at 123). Amber also conveyed to Lauck that she thought CPSU

became involved with her daughter because her daughter trashed her house. (Id. at

123-24). During another visitation, Amber expressed concern over a scratch on

Baby Boy W.’s leg, but Lauck did not see any visible scratch on the child. (Id. at

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125). During a home visit, Amber expressed concern that one of her friends,

James Bush, was texting her and threatening to beat up Baby Boy W. (Id. at 129).

Lauck testified that Amber had several reasons that the child should be removed

from the foster home, including the alleged scratched leg, an alleged broken blood

vessel in the child’s eye, as well as Bush’s alleged threats to the child. (Id. at 131).

{¶28} Lauck further testified that Amber requested that her father, her

sister, her brother, and Sarah Miller be allowed to have visitation with Baby Boy

W., but that they informed Amber that the visits were for her to bond with the

child. (Id. at 132). Lauck testified that Harmony House eventually allowed Amber

to bring one person, and she chose her brother, Eric Welly. (Id. at 133). Lauck

testified that, on October 4th, Amber reported that the child had a large broken

blood vessel in his eye; however, Lauck checked the child and observed no such

injury. (Id. at 136-37). Lauck testified that Amber was not able to provide an

adequate permanent home for the child. (Id. at 138). Lauck testified that Amber

has not accepted responsibility for the removal of her two other children; rather,

Amber blamed her daughter and everyone involved. (Id. at 139). Lauck testified

that Baby Boy W. “seems to be content” with Amber, but that Baby Boy W. is

“very bonded” to his foster parents. (Id. at 140). Lauck further testified that Baby

Boy W. is “always a very happy baby when [he] goes [to the foster care home],

smiling. He seems very happy and content. Healthy.” (Id. at 140-41). Lauck

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testified that she did not believe that Amber could provide a safe home

environment because the house was not clean and the possibility of sex offenders

being in the home. (Id. at 142). Lauck further testified that Amber still has rooms

set up for her two other children who have been taken away permanently, because

Amber believes she will be allowed visitation with the children. (Id. at 143).

Lauck testified that Baby Boy W. would benefit from adoption, because he needs

parents who would sacrifice their needs for his needs, and, specifically, parents

that would follow-up with his medical needs. (Id. at 146). Lauck testified that

Amber could not provide the care Baby Boy W. needs. (Id. at 146-47). Lauck

testified that she did not believe the child could be returned to Amber even if the

case plan was continued for another six to twelve (6-12) months. (Id. at 149).

{¶29} On cross-examination, Lauck testified that she repeatedly asked

Amber to sign the paperwork so Baby Boy W. would get medical treatment, but

Amber refused because “she didn’t want him to receive services.” (Id. at 166).

Lauck testified that she would have talked with her supervisor or the prosecutor to

change the case plan from seeking permanent custody had she witnessed changes

in Amber’s ability to parent since the previous termination of parental rights, but

she did not witness Amber improve. (Id. at 173).

{¶30} Matt Stombaugh testified that he is a case manager at Open Arms

Domestic Violence and Rape Crisis Services, which operates/manages the

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Harmony House, a supervised visitation center. (Id. at 190-91). Stombaugh

testified that he oversees all the cases at the Harmony House, and that he had

facilitated visits between Amber and Baby Boy W. from July 28, 2010 to

November 12, 2010. (Id. at 191-93). Stombaugh testified that, during the July

28th visitation, Amber told Baby Boy W. about his other siblings, who were

permanently removed from Amber’s custody, and Amber placed Baby Boy W.’s

pacifier into her mouth and gave the pacifier back to Baby Boy W. after Baby Boy

W. spit it out on the floor. (Id. at 195). Amber also voiced concern over bumps on

the child’s head, which Stombaugh examined and determined to be “[s]mall,

reddish raised hair follicles. Nothing that [he] was overly concerned about.” (Id. at

196). During the July 30th visitation, Amber claimed that Baby Boy W. had

scratches on his face; she kissed Baby Boy W’s hands and said, “don’t scratch

yourself”; Baby Boy W. started crying, and Amber said, “see, you made yourself

cry”; Amber then said she needed to find mittens for the child. (Id. at 197).

During the August 4th visitation, Amber, again, asked about the bumps on Baby

Boy W.’s head, and those bumps were again determined to be “just raised hair

follicles, just maybe just a section of goose bumps that didn’t go down.” (Id. at

198-99). Stombaugh testified that Amber was late for her August 13th and 18th

visitations. (Id. at 199-200). During the August 18th visitation, Amber: told Baby

Boy W. that his brother and sister said they loved him; expressed concern over

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Baby Boy W.’s red eye, which was inspected and determined to be only a slight

irritation; and fell asleep. (Id. at 200-02). Stombaugh testified that Amber’s

recorded voicemail message states that “you’ve reached [Amber] and all of her

children’s names.” (Id. at 201). Stombaugh testified that Amber also fed Baby

Boy W. early and rapidly without burping him, contrary to staff’s advice, and the

child threw-up. (Id. at 202-04). Amber was late for the September 10th visitation

and refused to feed the child formula that was prepared by the foster parents. (Id.

at 205). Stombaugh testified that Amber was very argumentative and refused to

feed the child even though the child was hungry. (Id. at 206-07). Amber was also

late for the September 17th visitation and violated Harmony House policy by

bringing an unapproved guest, being hostile toward staff, and being inappropriate

in the child’s presence. (Id. at 208). During that visitation, Amber: argued with

Stombaugh about her placing the child’s pacifier into her mouth and giving it back

to the child; removed Baby Boy W.’s clothing for most of the visit, even though

the child was appropriately dressed for the temperature; and, again, reported

redness with the child’s eyelid, which was a minor irritation. (Id. at 209-12).

During the September 24th visitation, Amber was reminded not to talk with the

monitors, since the visitation was for her to bond with her child. (Id. at 213-14).

With respect to feeding Baby Boy W., Stombaugh testified that Harmony House

actually removed the child’s bottle from Amber, so that they could control the

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correct feeding times, which was the first time Stombaugh had ever had to do that

with a parent. (Id. at 216-17).

{¶31} On cross-examination, Stombaugh testified that Amber arrived to

visitation several times before the foster parents had arrived with the child. (Id. at

222-23). Stombaugh testified that Amber was four minutes late at most. (Id. at

224). Stombaugh testified that Amber correctly noticed that the child’s bottle was

dirty on two occasions, when a small piece of food or lettuce was stuck inside the

bottle. (Id. at 235-36). Stombaugh testified that Amber did not want to feed the

formula to the child because she expressed concern about a recall on the formula;

however, Stombaugh testified that he informed Amber that the recall was not for

the formula the foster parents were using. (Id. at 237). Stombaugh testified that

Amber attended twenty-nine (29) of thirty-two (32) possible visitations, and that

Amber cancelled two visitations, while the foster parents cancelled one. (Id. at

238). Stombaugh testified that they do not teach the parents how to interact with

their children, though they may suggest different ideas. (Id. at 240-41). On re-

direct, Stombaugh testified that Amber placed the child’s pacifier into her mouth

and then into the child’s mouth approximately twenty-two (22) times prior to the

September 17th visitation, and she was reminded once thereafter not to do so. (Id.

at 244-45).

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{¶32} Following Stombaugh’s testimony, the State rested, and the defense

called Sarah Miller to the stand. (Id. at 249-50). Miller testified that she had been

employed as a social worker at the Caughman Health Center in Findlay for the

past year and a half. (Id. at 250-51). Miller testified that Amber contacted her in

February 2010 to set up transportation to Maternal Fetal Medicine in Toledo

because she was pregnant. (Id. at 251-53). Soon thereafter, Amber began

attending a monthly half-hour support and education group for pregnancy and

parenting issues that Miller facilitated. (Id. at 253-55). Amber attended six (6) or

seven (7) of these meetings, and Amber participated very heavily and

appropriately in the group’s discussions. (Id. at 254-55). Miller testified that she

had some concern about why Amber did not have her children and had concern

about the circumstances surrounding CPSU’s removal of Amber’s children. (Id. at

255-56). Miller testified that she contacted Amber’s caseworker, Megan, to better

understand CPSU’s prior involvement, and Megan informed her that Baby Boy W.

was removed from Amber because of CPSU’s prior involvement with Amber. (Id.

at 256-57). Miller testified that she was aware that Amber was not required to

have services under a case plan, but she offered services to Amber nonetheless.

(Id. at 257-58). Amber declined mental health services from Miller, because

Amber said she was already receiving services from Century Health, but Amber

did participate in parenting support services. (Id. at 258-59). Miller testified that,

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as part of the parenting support services, Amber met with her one half hour

weekly. (Id. at 259). Miller testified that they discussed attachment to the child,

perceptions of being a mother, discipline, and strategies of self-care. (Id. at 260).

Miller further testified that Amber would complete homework worksheets and was

doing very well. (Id. at 260). Miller testified that she did not discover any

concerns with Amber during the five (5) weeks she spent with her, and that Amber

was “very compliant” with her prenatal care. (Id. at 260-61). Miller testified that

Amber was benefiting from the services at Help Me Grow, and that Amber

understood that CPSU was seeking permanent custody, though Amber believed

there might be a chance at reunification. (Id. at 262-63). Amber also told Miller

that she would sign the release so that Baby Boy W. could participate in services.

(Id. at 263-64). Amber indicated that, initially, she did not want to sign the release

form because the form had Baby Boy W.’s social security number on it. (Id. at

267). Miller testified that she could not determine whether or not Amber could

parent since she did not see Amber interact with her child, but Miller testified that

Amber did express how to appropriately parent during the time she worked with

her. (Id. at 268).

{¶33} On cross-examination, Miller testified that she started the parenting

support group, called Mothers Offering Mothers Support (MOMS), in January

2010 as a new group. (Id. at 271). Miller testified that Amber attended a total of

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eleven (11) hours of group parenting counseling and seven and one half (7.5)

hours of individualized parenting services. (Id. at 273-74). Miller testified that she

did not attend a visitation at the Harmony House, because Amber informed her

that she could not attend. (Id. at 276). Miller was unaware that Harmony House

allowed Amber to bring in one of five approved people to visitation, and that she

was one of those approved. (Id. at 276-77). Miller testified that she has never seen

Amber actually implement anything she learned through the parenting classes. (Id.

at 279). Miller testified that she was not aware that CPSU provided Amber with

over two and a half (2.5) years of parenting education, or that Amber alleged that

her older son was casting magical spells. (Id. at 280). Miller testified that she was

not aware of Amber’s anger issues and did not witness any anger issues with

Amber. (Id. at 282). Miller testified that she thought it odd that Amber wanted her

brother listed as the father of the child on the birth certificate, though she thought

Amber’s intentions were good. (Id. at 285). Miller testified that she thought

Amber’s parenting education was “very easy because she’s extremely open to

feedback, she’s very cooperative, very compliant.” (Id. at 286). Miller testified

that Amber’s individualized parenting goals were collaboratively developed

between Amber and her. (Id. at 290). Miller testified that Amber acknowledged

that she made a poor decision to leave her older children with her uncle, who

allowed the children to escape the home. (Id. at 294). Amber also told Miller that

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she thought CPSU was involved in the case because of the children’s father,

Robert Essex. (Id. at 295). On re-direct examination, Miller testified that Amber

was not confrontational during their counseling sessions, and that Amber was a

very appropriate participant. (Id. at 296-97). Miller found Amber “very enjoyable

to work with” and “not challenging to work with.” (Id. at 297).

{¶34} Amber testified that she resides alone in a three-bedroom, bath and a

half, in Findlay, Ohio. (Id. at 299-300). Amber testified that her daughter’s room

is still set up, because she still has rights to her. (Id. at 300). Amber testified that

she learned she was pregnant October 31st, and that in January or February they

discovered Baby Boy W.’s weight was low. (Id. at 302-03). Amber testified that

he also tested positive for Down syndrome at that time, so she met with Miller to

arrange transportation to the Maternal Fetal Hospital in Toledo, where she had

weekly appointments. (Id. at 303). Amber testified that she began attending the

MOMS class in February once a month, and that she did twelve (12) parenting

class sessions during 2008 to 2009 through FRC. (Id. at 304). Amber testified that

she learned about nutrition and massage at the MOMS classes, and that she

attended six or seven (6 or 7) of these classes. (Id. at 305). Amber testified that

Baby Boy W. was diagnosed with Down syndrome, had a low weight, and was

born “5-6, 18 inches.” (Id. at 306-07). Amber testified that CPSU took the baby

shortly after delivery; that the nurse told her that CPSU believed she was on drugs;

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and that CPSU did not tell her why they were taking the child. (Id. at 308-09).

Amber testified that she had her brother and his girlfriend present when case

workers visited her house, because she wanted witnesses to hear what was being

said since case workers had told her and Robert Essex different things in the

previous case. (Id. at 310-11). Amber testified that she worked with Lauck on a

case plan, but that Lauck never informed her what she could do to have Baby Boy

W. returned, so she sought parenting services on her own. (Id. at 311). Amber

testified that she completed a mental health assessment and a substance abuse

assessment, and there were no recommendations as a result of either assessment.

(Id. at 312-13). Amber testified that she visited Baby Boy W. at the Harmony

House, and that the appointments went well, except that the staff did not let her

feed Baby Boy W. when he was hungry. (Id. at 315-16). She testified that she

missed three (3) visits, and she put the pacifier in her mouth after it fell on the

floor because “[she]’d rather [herself] get sick than [her] four 4-month old get

sick.” (Id. at 316-17). Amber testified that she did not sign the release form

because it had Baby Boy W.’s social security number on it, and she did not feel

comfortable releasing that information. (Id. at 320). Amber further testified that

she did not want to share therapy records, evaluation goals, or IFSP reports with

CPSU, because she thought they would use the information against her. (Id. at

322). Amber did not believe that this would affect her child’s ability to receive

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care. (Id. at 323). Amber testified that she would follow CPSU’s requests, and

that she was “doing what [she could] to get [her] son.” (Id. at 326).

{¶35} On cross-examination, Amber testified that, before she delivered the

child, she did not think that CPSU would be involved. (Id. at 327-28). Amber

testified that she did not know the father’s whereabouts, but that she “seen him in

passing” from Findlay High School where she graduated from in 2005. (Id. at 328-

29). Amber testified that she wanted her brother to be on the child’s birth

certificate because he had been there for the child, and that she was going to tell

Baby Boy W. that her brother was his uncle. (Id. at 329). Amber testified that she

did not see any relationship between her wanting her brother on the birth

certificate and her parenting skills. (Id. at 330). Amber testified that her brother,

Eric, would be a good role model for the child even though Eric was recently

released from prison. (Id. at 332). Amber testified that she has had three prior

cases with CPSU, and that she worked with CPSU on the case plans, though she

did not finish parenting classes. (Id. at 333, 336). Amber testified that she “had no

clue” why Schumaker would testify that she told her that her son was casting

spells. (Id. at 340). Amber testified that it was not her fault her other children

were taken away but because “JFS likes to lie a lot and they thought they were

running the Court.” (Id. at 344). Amber testified that she collects SSI payments

for a developmental handicap. (Id. at 345). Amber acknowledged that she testified

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at the July 8, 2010 shelter care hearing that she was not willing to work with

CPSU, but testified here that she was willing to work with CPSU “as long as we

don’t have no chaos like the last time.” (Id. at 346-47). Amber testified that she

wanted Baby Boy W. removed from the foster home after discovering the dirty

bottle and his irritated eye. (Id. at 353). Amber also testified that she disagrees

with the Harmony House concerning when to feed the child, because the child was

hungry when she wanted to feed him. (Id. at 354). Amber testified that she sought

anger management on her own, and that Brown lied when she testified that she

was not in the anger management group. (Id. at 359-60).

{¶36} Don Schmidt, a CASA representative, testified that he had been

involved with Amber’s first case in 2005 to 2006. (Id. at 380-81). Schmidt

testified that he recommended that CPSU be granted permanent custody of Baby

Boy W., so that the child could be adopted. (Id. at 382). Schmidt testified, on

cross-examination, that he did not have any contact with Amber regarding Baby

Boy W. since Amber “fired him.” (Id. at 383). Schmidt testified that he was

confident in his recommendation despite not having done an independent

evaluation. (Id. at 384).

{¶37} After reviewing the evidence presented, the trial court concluded that

the State had clearly and convincingly demonstrated that the child cannot be

placed with Amber. (Nov. 22, 2010 JE, Doc. No. 39). We agree. Amber

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stipulated that she had her parental rights involuntarily terminated with respect to

two of Baby Boy W.’s siblings, and the trial court found that Amber had failed to

demonstrate any improvement since the previous termination of her parental

rights. (Id.). Under these circumstances, R.C. 2151.414(E)(11) applied, and as

such, the trial court was required, pursuant to R.C. 2151.414(E), to find that the

child should not be placed with Amber.

{¶38} Next, the trial court determined that it was in the child’s best interest

to award CPSU permanent custody. (Id.). The trial court stated that it had

considered the factors set forth in R.C. 2151.414(D)(1) for purposes of

determining the best interest of the child, which factors are:

(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 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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;

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(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.

(Id.). Pursuant to R.C. 2151.414(D)(1)(e), the trial court noted that R.C.

2151.414(E)(11) was, again, applicable, since Amber’s parental rights had been

previously involuntarily terminated, and Amber had failed to demonstrate any

improvement since the previous termination of her parental rights, despite Miller’s

favorable report. (Id.). The trial court further noted that Amber was “resistant to

any help by the agency or in receiving much needed parent education or mental

health counseling,” and that, after spending more than two and a half (2.5) years

working with Amber, Shumaker concluded that Amber “simply cannot parent.”

(Id.).

{¶39} The trial court’s findings herein were supported by competent,

credible evidence by which it could have formed a firm belief or conviction that

the essential statutory elements for a termination of parental rights had been

established. R.C. 2151.414(B); In re Forest S., 102 Ohio App.3d at 344-45; Cross,

161 Ohio St. 469, at paragraph three of the syllabus. As an initial matter, we have

already noted that Amber stipulated that her parental rights had previously been

involuntarily terminated and failed to demonstrate that she could provide a legally

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secure permanent placement and adequate care for the health, welfare, and safety

of the child, and therefore, R.C. 2151.414(E)(11) was applicable. (Nov. 15-16,

2010 Tr. at 10-12); (CPSU Exs. 5-6). The only evidence that Amber remedied the

circumstances leading to her prior termination of parental rights was Miller’s

favorable testimony; however, the trial court found Miller’s testimony less than

persuasive. (Nov. 22, 2010 JE, Doc. No. 39). Although the trial court failed to

state why it found Miller’s testimony lacking, it is probably because Miller’s

testimony was based upon only eighteen and a half (18.5) hours she worked with

Amber; whereas Schumaker’s testimony, for example, was based upon over two

and a half (2.5) years of working with Amber. Furthermore, although not

specifically relied upon by the trial court, Brown’s testimony indicated that Amber

had chronic mental or emotional illnesses for which she refused to follow

recommended treatment and which hindered her ability to properly care for her

children. See R.C. 2151.414(E)(2). Additionally, although not relied upon by the

trial court, Lauck testified that Amber in effect withheld medical diagnosis and

treatment of Baby Boy W. by failing to timely provide CPSU with a signed release

form. Amber’s reason for withholding her consent stemmed from her general

distrust of CPSU, but Amber’s action demonstrates her failure to put Baby Boy

W.’s interests above her own. See R.C. 2151.414(E)(8).

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{¶40} With respect to R.C. 2151.414(D)(1)(b), the child’s representative

recommended that CPSU be granted permanent custody of the child. The

testimony also indicated that granting CPSU permanent custody so that the child

could be adopted was necessary for the child to have a legally secure permanent

placement. R.C. 2151.414(D)(1)(d). For example, Lauck testified that she did not

believe the child could be returned to Amber even if the case plan was continued

for another six to twelve (6-12) months. (Nov. 15-16, 2010 Tr. at 149). With

respect to R.C. 2151.414(D)(1)(a), Lauck testified that the child’s interactions with

his foster caregivers was very favorable, while the child was “content” with

Amber. (Id. at 140-41). Finally, with respect to R.C. 2151.414(D)(1)(c), the

record indicates that the child was in CPSU’s temporary care since birth and was

never with Amber except for supervised visitation at the Harmony House. In light

of this record, we cannot conclude that the trial court’s decision to award CPSU

permanent custody was based upon insufficient evidence or against the manifest

weight of the evidence as Amber argues.

{¶41} Amber’s second assignment of error is, therefore, overruled.

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

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

Judgment Affirmed

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

/jlr

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