In re J.M.

[Cite as In re J.M., 2012-Ohio-4705.]

COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
IN RE: J.M., K.M., M.M. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 2012-CA-23
:
:
: OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Juvenile Division, Case
Nos. 2010-AB-0081, 2010-AB-0082, 2010-
AB-0083

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 8, 2012

APPEARANCES:

TREVOR J. INNOCENTI JULIE BLAISDELL
117 W. Main Street, Ste. 206 239 West Main Street
Lancaster, OH 43130 Lancaster, OH 43130

DAVID SHAVER BRIAN HERZBERGER
647 Hill Road North, Ste. B 125 W. Waterloo Street
Pickerington, OH 43147 Canal Winchester, OH 43110
[Cite as In re J.M., 2012-Ohio-4705.]

Gwin, P.J.

{¶1} Appellants the minor children J.M., K.M. and M.M. [“Children”] appeal the

March 23, 2012, judgment entry of the Fairfield County Court of Common Pleas,

Juvenile Court Division, which placed J.M. in a planned permanent living arrangement

with the agency and which terminated adoptive-mother Paula Mayo’s1 parental rights

with respect to her minor children M.M. and K.M. and granted permanent custody of the

children to appellee, Fairfield County Child Protective Services (hereinafter “FCCPS”).

I. PROCEDURAL HISTORY

{¶2} J.M.’s date of birth is February 18, 1995. K. M.’s date of birth is January 7,

1998. M.M.'s date of birth is March 26, 2001.

{¶3} FCCPS removed the children from their biological mother and their

biological father’s and assumed custody of the girls. The girls were then placed in the

legal custody of their biological maternal grandmother. Tragically, the biological maternal

grandmother was killed in an automobile accident. No custody provisions had been

made concerning these children prior to the death of the biological maternal grandmother

and, therefore, the children were again placed back in the custody of FCCPS. J. M., K.

M. and M. M. were eventually placed in the permanent custody of FCCPS and their

biological maternal great-aunt, Paula Mayo, adopted them as a single parent after the

Agency assumed permanent custody. Paula Mayo is sixty-three years old.

{¶4} A voluntarily agreement for care was signed by Paula Mayo on April 15,

2010, giving FCCPS custody of the children. On June 29, 2010, FCCPS filed

dependency/neglect complains on behalf of the children. On July 1, 2010, the children

were placed in the temporary shelter custody of FCCPS and on August 17, 2010, the
1
Adoptive mother has appealed in 5th District No. 2012 CA 00018.
Fairfield County, Case No. 2012-CA-23 3

children were found to be dependent minors and were placed in the temporary custody

of FCCPS. On November 2, 2010, FCCPS filed a motion requesting that J. M. be placed

in a planned permanent living arrangement with the Agency and filed motions requesting

that K. M. and M. M. be placed in the permanent custody of FCCPS.

{¶5} The trial on the motions took place on September 13, 2011, December 8,

2011 and concluded on January 31, 2012. The Court heard testimony from Jolyn Pugh,

Paula Mayo, Lesley Greenwood, Jasmine Mayo, Deborah Hochbein, Ronda Brown, and

Brian Herzberger. The Court noted that on September 6, 2011, Brian Herzberger filed

the Guardian Ad Litem's report, which supported the Agency's motion for permanent

custody. At the conclusion of all of the testimony, the Court ordered the parties to provide

proposed findings of fact and conclusions of law to the Court.

{¶6} A. Permanent Custody Trial.

{¶7} When FCCPS removed the children in April 2010, they found the upstairs

toilet primarily used by the girls "overflowing" with human feces and a knee-high layer of

rotting food and garbage in the girls' bedroom. Soiled clothing and underpants belonging

to the children were strewn about the room. Gnats were found throughout the home,

attracted by the rotting food and garbage. Ms. Mayo also showed signs of hoarding

behavior. During her psychological evaluations, Ms. Mayo described her house

resembling something from the TV show "Hoarders."

{¶8} Although the conditions of her home had improved between 2010 and

January 2012, the improvement was intermittent. The home met minimal standards for

roughly thirty to sixty days, but then regressed. Those standards involved removal of
Fairfield County, Case No. 2012-CA-23 4

animal and human feces, disposal of garbage, having pathways in the home that made it

accessible for a person with mobility issues and a child with special needs.

{¶9} There had been significant periods where FCCPS was unable to observe

and assess Ms. Mayo's home because Ms. Mayo had cancelled the visits. During an

unannounced visit in December 2011, the Agency was only permitted to view Ms.

Mayo's living room. While the room met minimal standards, the Agency could not assess

the rest of the house during the unannounced visit. Ms. Mayo cancelled the appointment

scheduled for the month of January 2012.

{¶10} On January 31, 2012, Ms. Mayo presented current photographs of her

home, but the photographs did not include the upstairs area that had previously been

filled with garbage and rotting food. No photos were presented of the areas where the

children would be living. FCCPS stated that Ms. Mayo did not successfully comply with

that aspect of the case plan.

{¶11} FCCPS was also concerned about Ms. Mayo's financial ability to maintain

her home. Ms. Mayo had an income of $1,155 per month and a mortgage payment of

$1,121 per month. Ms. Mayo had not made a mortgage payment on her home since

August 2011. Ms. Mayo was confident that she would receive a mortgage loan

modification, but had not established that she would actually obtain the loan modification.

Ms. Maya's testified that if the mortgage modification was not granted she would return

to work.

{¶12} Ms. Mayo exhibited evidence of confusion, which would significantly affect

her ability to parent. Ms. Mayo denied being impaired by medications or having memory

problems caused by medications. Throughout the history of the case, however, Ms.
Fairfield County, Case No. 2012-CA-23 5

Mayo had difficulty forming sentences, speech delays, confusion about appointments,

and difficulty remembering conversations.

{¶13} Ms. Mayo missed an appointment with her psychologist, Evie Adlemen

whom she was to see every two weeks. When Ms. Adlemen called Ms. Mayo about the

missed appointment, Ms. Mayo sounded "foggy" and said that amount of medication she

had taken the night before for her pain caused her to oversleep. A child psychologist in

the community refused to see Ms. Mayo because of her numerous missed appointments

and cancellations. Ms. Mayo's arthritis physician, who must see her every three months

to refill her prescriptions, refused to refill her medications because of the number of times

she has cancelled or missed appointments.

{¶14} FCCPS presented evidence that the Agency become involved in April

2010 concerning a State Highway Patrol report where Ms. Mayo was found driving with

the children in her vehicle and appeared to be under the influence of a substance. At the

outset of the case, she was unable to identify what medications she was taking or why

she was taking them. Ms. Mayo "had little recollection of how she was actually acting at

[the] time" of the girls' removal, but did recall that her brother told her that she was acting

like a "space cadet.” During her psychological evaluation, she was unable to identify the

first president of the United States, though she was readily able to do so during her trial.

On several occasions, she was observed with dry mouth, her mouth hanging down to the

side, or having difficulties with comprehension. Occasions where she appeared to be

under the influence of a substance continued through 2011. (In May 2011, Ms. Mayo

was observed slurring her speech and appeared not to be her "normal self."
Fairfield County, Case No. 2012-CA-23 6

{¶15} Between December 2011 and the January 2012, Ms. Mayo became

confused and disoriented on her way to a Zanesville, Ohio appointment for J.M. at the

Agency. Ms. Mayo had been to the Zanesville facility at least ten times before. Despite

this, she had trouble driving to the facility, and trouble describing her current location

when she contacted the Agency for directions. Although Ms. Mayo's grasp on what

medications she took had improved by January 2012, she continued to miss

appointments, and at times seemed unsure of what physicians she was seeing and why

she was seeing them.

{¶16} Concerns were also introduced concerning Ms. Mayo’s mobility. The

bedrooms in Ms. Mayo's home were on the second floor and the third floor was an attic.

If the children were returned, their rooms would have been on the second floor of the

house, and that the third floor would have become a play area for them. Ms. Mayo stated

that she had no problems going up or down stairs. During her counseling sessions, Ms.

Mayo said that her physical limitations restricted her from going upstairs to the second

floor, which was why she "wasn't sure what it was like ... where the girls’ bedrooms...

were located."

{¶17} In an April 2011 home visit, she went upstairs on her hands and knees.

Even during visits to the FCCPS, Ms. Mayo had "extreme difficulty" walking between the

lobby and the visiting room, and used the Agency's wheelchair because of her pain. The

staircase leading to the proposed play area for the children was "like a ladder with steps

in between." Because they are steep, "tricky" and lack a railing the third floor stairs are

more difficult to use than normal stairs.
Fairfield County, Case No. 2012-CA-23 7

{¶18} The girls needed constant supervision because J.M., K.M. and M.M. were

special needs children. The girls needed constant supervisions, both inside and outside

the home. Supervision inside the home was important because they have a history of

abusive behavior amongst themselves. J.M. had been physically aggressive to her

sisters, who have expressed fear of her. Although Ms. Mayo recognized the importance

of being able to access the upstairs areas of her home, Ms. Mayo did not believe that

she has any physical limitations that would have made her unable to provide adequate

supervision for the children.

{¶19} Outside the home, Ms. Mayo's mobility was a concern because J.M. had a

history of running away. Ms. Mayo, who did not have a plan to prevent J.M. from running

away, testified that she would physically pursue in her car or scooter if J.M. ran away.

Ms. Mayo had not been seen using the motorized scooter outside the home. Ms. Mayo

kept the scooter in her home. The scooter was extremely heavy. Even two people could

not carry the scooter out by hand, and a ramp was necessary to take the scooter out of

the home. Ms. Mayo testified that she had a temporary ramp, but the Agency had not

seen it. Ronda Brown, a good friend of Ms. Mayo's, had not seen the ramp either.

Additionally, the children needed constant supervision outside the home because they

could not have been left alone due to the risk of victimization. J.M. and K.M. were

extremely vulnerable to victimization, and M.M. was also vulnerable to victimization.

{¶20} Pursuant to the request of the children's attorney, the court conducted an

in-camera interview of the children on September 13, 2011. The children indicated that

they wanted to go home to live with their mother, Paula Mayo. Additionally, J.M. testified

that she has grown since being removed from Paula Mayo's home and would comply
Fairfield County, Case No. 2012-CA-23 8

with the rules of the house. J.M. further testified that she was nearing her seventeenth

birthday and would return to Paula Mayo's home upon turning 18.

{¶21} Jody Ash and Miranda Zircher, the children's counselors, stated that Paula

had made progress in recent months with her treatment goals. They also stated that

there is a strong bond between Paula Mayo and the Children and that severing this bond

would be detrimental to the children.

{¶22} Robin A. Rippeth, the psychologist who completed the Psychological

Evaluation for Paula Mayo, testified that she recommended that the agency begin home-

based therapy with the children and Ms. Mayo. FCCPS never followed the

recommendation that in home visitation begin.

{¶23} Based upon the testimony the trial court found that "it is undisputed that

there is a significant bond between Paula Mayo, J. M., K. M. and M. M."

{¶24} B. the Trial Court’s Decision.

{¶25} The trial court upon reviewing the evidence made the following findings,

Although currently, the exact cause of Paula Mayo's confusion is

unknown, Paula Mayo still exhibits evidence of confusion which would

significantly impact her ability to parent This aspect of the case plan has

not been successfully completed, and is relevant to the Court.

***

Paula Mayo's mobility issues have a significant impact on her ability

to supervise these children and are relevant to the Court the mobility

issues, as a portion of Paula Mayo's health issues, have not been
Fairfield County, Case No. 2012-CA-23 9

resolved and Paula Mayo has not successfully complied with this aspect

of the case plan.

***

In April 2010, upon the removal of the girls from Paula Mayo's

home, the hygiene of the girls was extremely poor. Jasmine Mayo could

not recall the last time she had bathed. Throughout the history of this

case, Paula Mayo has exhibited times when her clothes are dirty and she

has an odor of her body about her person. Given Paula Mayo's hygiene

and/or mobility issues, it is going to be extremely difficult for her to

maintain appropriate hygiene for the children. Paula Mayo has not

successfully completed this aspect of the case plan and this hygiene issue

is relevant to the Court.

***

Paula Mayo believes that she will qualify for a loan reduction

program, but it has not yet been established that she will definitely obtain

the loan reduction. Paula Mayo does have a stable source of income

through her retirement plan. However, she has been behind on many of

her bills, has not paid her mortgage since August 2011, has used check

cashing companies on at least two occasions, and throughout the history

of this case, has not paid any child support for the children. Paula Mayo

has no explanation as to how her bills got so far behind. There is still a

viable concern as to whether Paula Mayo can financially provide for
Fairfield County, Case No. 2012-CA-23 10

herself and the children, and therefore, this aspect of the Case plan has

not been successfully completed and is relevant to the Court.

***

Paula Mayo has minimized her health and financial issues and has

not consistently been forthcoming with information. In late 2011, Paula

Mayo had a staph infection and did not report it Fairfield County Child

Protective Services even though she visited her children at Fairfield

County Child Protective Services. This failure to disclose potentially

placed her children, Agency case workers and employees, and all other

families who frequent Fairfield County Child Protective Services to be at

risk to developing a staph infection. This failure to disclose her medical

condition could be potentially dangerous if the children were returned to

her care and is relevant to the Court.

***

Paula Mayo has not utilized this counseling service. Paula Mayo

focuses on her hoarding behavior more than working on parenting issues.

Paula Mayo has not been consistent in counseling, as there was a period

of approximately two (2) months where Paula Mayo did not attend any

counseling sessions. Paula Mayo has a simplistic view of this case that if

the house is clean, the children can return. Paula Mayo stated that the

focus of her counseling shifted to parenting issues during her most recent

appointment with Dr. Adelman, which occurred one (1) week prior to the

January 31, 2012 trial. It is a major concern that Paula Mayo has been
Fairfield County, Case No. 2012-CA-23 11

seeing Dr. Adelman for almost one (1) year, yet the main focus of the

counseling only recently became parenting issues. It is also concerning

that Paula Mayo does not recognize all of the limitations of the children

and represents in counseling that the girls are higher functioning than is

truly the case.

***

Through Fairfield County Child Protective Services' facilitation,

Paula Mayo has also had the opportunity to engage in counseling with the

mental health counselors for J.M., K.M. and M.M. With respect to J.M.’s

counselor, Paula Mayo has not utilized this resource. Paula Mayo has

attended four (4) counseling sessions and has missed four (4) counseling

sessions. It is therapeutically recommended for J.M. that J.M. be living in

an intensely supervised and structured environment with a caregiver who

has a clear understanding of the special needs of J.M. J.M. has

oppositional behaviors, has threatened suicide, has significant sexualized

behavior, has sexual identity issues, and is extremely vulnerable for

abuse. Paula Mayo does not have the appropriate insight to the severity of

jasmine Mayo's mental health and safety issues, and Paula Mayo

minimizes these issues. Paula Mayo minimizes her role in the removal of

J.M. from the home by stating that things would be different if J.M. came

home, as J.M. "has learned her lesson." Paula Mayo has not formulated a

realistic plan to deal with J.M.’s behavior. J.M. has been described as "a

ticking time bomb," yet Paula Mayo's plan to deal with J.M.’s behaviors is
Fairfield County, Case No. 2012-CA-23 12

simply to watch her or that J.M. just will not behave that way if returned to

Paula Mayo.

K.M. has multiple handicaps and will require lifetime care. K.M. has

physical issues which require her to wear adult diapers. These physical

issues create hygiene issues, as well, as K.M. often requires assistance to

keep herself clean. K.M. has major cognitive issues to the point where it is

difficult for K.M. to form words. K.M. is easily overwhelmed and is

extremely vulnerable to victimization. K.M. has limited social skills and

requires a structured environment with one-on-one attention and

guidance. Paula Mayo minimizes K.M.’s issues by stating that K.M. does

not present a challenge from a parenting perspective. Paula Mayo also

minimizes K.M.’s physical issues by saying that K.M. did not wear adult

diapers when she lived with Paula Mayo and Paula Mayo does not expect

K.M. to continue to wear adult diapers if returned to Paula Mayo.

M.M. does not yet have all the behavior or cognitive issues that her

older sisters' possess, however, M.M. is starting to exhibit basic cognitive

limitations and defiant behavior. Although it cannot yet be determined, all

indications are that M.M. is developing some of the issues of her older

sisters. M.M. has been described as loyal to her sisters and Paula Mayo,

and at times has assumed the parental role with her sisters and Paula

Mayo. It is a major concern that if Paula Mayo cannot acknowledge and

understand the existing conditions of J.M. and K.M., then she will not be

able to recognize the developing conditions of M.M. This minimizing
Fairfield County, Case No. 2012-CA-23 13

behavior of Paula Mayo concerning all of the children is relevant to the

Court.

***

The psychological evaluation of Paula Mayo indicates that she has

a simplistic plan for supervision of the children. The psychological

evaluation questions Paula Mayo's understanding of the need for

supervision of the children. The psychological evaluation indicates that

Paula Mayo does not fully grasp the vulnerability of the children and the

evaluation indicates that Paula Mayo is dependent on others to fulfill her

own needs. The information contained in the psychological evaluation is

relevant to the Court.

It is undisputed that there is a significant bond between Paula

Mayo, J.M., K.M. and/or M.M. These children have suffered much loss

throughout their life and Paula Mayo has been their only source of family

support. FCCPS will maintain the relationship between Paula Mayo and

the children as long as it is practical, healthy and available to do so.

{¶26} In the case sub judice, the trial court further found, pursuant to R.C. 2151.

414(B)(1)(d) that the children had been in the temporary custody of the agency for a

period of time in excess of twelve of the prior twenty-two consecutive months.

{¶27} On March 23, 2012, the trial court filed Findings of Fact and Judgment

Entries in each child’s case, which placed J.M. in a planned permanent living

arrangement with the agency and which terminated her parental rights with respect to his
Fairfield County, Case No. 2012-CA-23 14

minor children M.M. and K.M. and granted permanent custody of the children to

appellee, FCCPS.

{¶28} It is from these entries that the adoptive-mother Paula Mayo and the minor

children, J.M., K.M. and M.M. have appealed.

II. Assignments of Error

{¶29} On appeal, the Children assert the following assignments of error,

{¶30} “I. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING

EVIDENCE THAT IT WAS IN THE BEST INTEREST OF THE MINOR CHILDREN TO

GRANT PERMANENT CUSTODY TO THE FAIRFIELD COUNTY CHILD PROTECTIVE

SERVICES AGENCY AS REQUIRED BY OHIO REVISED CODE SECTION 2151.414.

{¶31} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY

TO THE AGENCY WHERE THE EVIDENCE CLEARLY INDICATED THAT THERE HAD

BEEN INSUFFICIENT EFFORTS TOWARDS REUNIFICATION. AS REQUIRED BY

OHIO REVISED CODE SECTION 2151.414.

{¶32} “III. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO THE AGENCY WHERE IT WAS MANIFEST THAT THE PARENT WAS

MAKING SUBSTANTIAL PROGRESS TOWARDS REUNIFICATION AS REQUIRED BY

OHIO REVISED CODE SECTION 2151.414.

{¶33} “IV. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE

PSYCHOLOGICAL EFFECTS OF PERMANENT CUSTODY ON THE MINOR

CHILDREN.”
Fairfield County, Case No. 2012-CA-23 15

A. Burden Of Proof

{¶34} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody

and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a

parent's rights has been described as, “* * * the family law equivalent to the death

penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th

Dist.1991). Therefore, parents “must be afforded every procedural and substantive

protection the law allows.” Id.

{¶35} An award of permanent custody must be based upon clear and convincing

evidence, R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and

convincing evidence” as “[t]he measure or degree of proof that will produce in the mind

of the trier of fact a firm belief or conviction as to the allegations sought to be

established. It is intermediate, being more than a mere preponderance, but not to the

extent of such certainty as required beyond a reasonable doubt as in criminal cases. It

does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-

104, 495 N.E.2d 23(1986).

B. Standard of Review

{¶36} The Ohio Supreme Court has delineated our standard of review as

follows,

Where the degree of proof required to sustain an issue must be

clear and convincing, a reviewing court will examine the record to
Fairfield County, Case No. 2012-CA-23 16

determine whether the trier of facts had sufficient evidence before it to

satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1,

12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v.

Rimenik, 115 Ohio St. 11, 152 N.E. 14.

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will

affirm the trial court's findings “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.” In re Adkins, 5th

Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557,

¶17.

{¶37} In Cross, the Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for

resolving disputed facts. The degree of proof required is determined by

the impression which the testimony of the witnesses makes upon the trier

of facts, and the character of the testimony itself. Credibility, intelligence,

freedom from bias or prejudice, opportunity to be informed, the disposition

to tell the truth or otherwise, and the probability or improbability of the

statements made, are all tests of testimonial value. Where the evidence is

in conflict, the trier of facts may determine what should be accepted as the

truth and what should be rejected as false. See Rice v. City of Cleveland,

114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).
Fairfield County, Case No. 2012-CA-23 17

{¶38} III. Requirements for Permanent Custody Awards

{¶39} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon filing of a motion for permanent custody of a

child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶40} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to

grant permanent custody to the agency, and that any of the following apply:

(a) The child is not abandoned or orphaned, has not 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 has not 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 if, 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, and the child cannot be placed with either of the child's

parents within a reasonable time or should not be placed with the child's

parents.;

(b) The child is abandoned;
Fairfield County, Case No. 2012-CA-23 18

(c) The child is orphaned and there are no relatives of the child who

are able to take permanent custody; or

(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, 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.

{¶41} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

{¶42} A. Reasonable Efforts to Prevent the Removal of the Child from the

Child's Home.

{¶43} In the case judice, FCCPS filed its Motion for Permanent Custody

pursuant to R.C. 2151.414. Pursuant to R.C. 2151.419, the agency that removed the

child from the home must have made reasonable efforts to prevent the removal of the

child from the child's home, eliminate the continued removal of the child from the home,
Fairfield County, Case No. 2012-CA-23 19

or make it possible for the child to return home safely. The statute assigns the burden of

proof to the agency to demonstrate it has made reasonable efforts.

{¶44} However, R.C. 2151.419 does not apply in a hearing on a motion for

permanent custody filed pursuant to R.C. 2151.413 and 2151.414. In re C.F., 113 Ohio

St.3d 73, 81, 2007–Ohio–1104, 862 N.E.2d 816, (Citation omitted). Therefore, the trial

court was not required to make a specific finding that FCCPS had made reasonable

efforts to reunify the family. In In re C.F., supra, the court also stated that this does not

mean that the agency is relieved of the duty to make reasonable efforts,

At various stages of the child-custody proceeding, the agency may

be required under other statutes to prove that it has made reasonable

efforts toward family reunification. To the extent that the trial court relies

on 2151.414(E)(1) at a permanent custody hearing, the court must

examine the reasonable case planning and diligent efforts by the agency

to assist the parents' when considering whether the child cannot and

should not be placed with the parent within a reasonable time.

Id. at paragraph 42.

{¶45} R.C. 2151.414.(E)(1) requires proof that the FCCPS engaged in

reasonable case planning and made “diligent” efforts to assist the parents in remedying

the problems that caused the removal of the children.

{¶46} FCCPS filed its request for permanent custody pursuant to R.C. 2151.414.

A review of the record indicates at multiple review hearings, the Court found FCCPS

utilized reasonable efforts to reunify the family. Therefore, the showing of reasonable

efforts was not required to be proven by the state or found by the Court during the
 Fairfield County, Case No. 2012-CA-23 20

permanent custody hearing. In re J.J.F., 5th Dist. No. 2009-CA-00133, 2009-Ohio-4736,

¶26.

{¶47} One particular section, R.C. 2151.414(E)(1), does require the court to

examine the “reasonable case planning and diligent efforts by the agency to assist the

parents” when determining whether a child should not or could not be returned to a

parent within a reasonable time. This requirement and examination should not be

confused with the reasonable efforts requirement as set forth by R.C. 2151.419 as

requiring the trial court to determine reasonable efforts at every permanent custody

motion brought under R .C. 2151.413 or 2151.414.

{¶48} We find that the evidence established that FCCPS did provide services

designed to alleviate the problem that led to the children’s removal and did make diligent

efforts to assist Mayo in remedying the problem.

{¶49} B. Parental Placement within a Reasonable Time- R.C. 2151.414(B)

(1) (a).

{¶50} The court must consider all relevant evidence before determining the child

cannot be placed with either parent within a reasonable time or should not be placed with

the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a

finding under R.C. 2151.414(E) (1) – (15), the court shall determine the children cannot

or should not be placed with the parent. A trial court may base its decision that a child

cannot be placed with a parent within a reasonable time or should not be placed with a

parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of

one factor alone will support a finding that the child cannot be placed with the parent

within a reasonable time. See In re: William S., 75 Ohio St.3d 95, 1996-Ohio-182, 661
Fairfield County, Case No. 2012-CA-23 21

N.E.2d 738; In re: Hurlow, 4th Dist. No. 98 CA 6, 1998 WL 655414(Sept. 21, 1998); In re:

Butcher, 4th Dist. No. 1470, 1991 WL 62145(Apr 10, 1991); In re: B.B., 5th Dist. No.

2010CA00151, 2010-Ohio-4618, ¶24.

{¶51} R.C. 2151.414(E) sets forth factors a trial court is to consider in

determining whether a child cannot be placed with either parent within a reasonable

period of time or should not be placed with the parents. Specifically, Section (E)

provides, in pertinent part, as follows:

(E) In determining at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code 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 or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code 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:

(1) 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
Fairfield County, Case No. 2012-CA-23 22

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 changing parental conduct to allow them to

resume and maintain parental duties.

(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 or for the purposes of division (A)(4) of section 2151.353 of

the Revised Code;

(3) The parent committed any abuse as described in section

2151.031 of the Revised Code against the child, caused the child to suffer

any neglect as described in section 2151.03 of the Revised Code, or

allowed the child to suffer any neglect as described in section 2151.03 of

the Revised Code between the date that the original complaint alleging

abuse or neglect was filed and the date of the filing of the motion for

permanent custody;

(4) The parent has demonstrated a lack of commitment toward the

child by failing to regularly support, visit, or communicate with the child
Fairfield County, Case No. 2012-CA-23 23

when able to do so, or by other actions showing an unwillingness to

provide an adequate permanent home for the child;

(5) The parent is incarcerated for an offense committed against the

child or a sibling of the child;

(6) The parent has been convicted of or pleaded guilty to an

offense under division (A) or (C) of section 2919.22 or under section

2903.16, 2903.21, 2903.34, 2905.01, 2905.02, 2905.03, 2905.04,

2905.052907.07, 2907.08, 2907.09, 2907.12, 2907.21,2907.22, 2907.23,

2907.252907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01,

2911.02, 2911.11, 2911.12,2919.12, 2919.24, 2919.25, 2923.12, 2923.13,

2923.161, 2925.02, or 3716.11 of the Revised Code and the child or a

sibling of the child was a victim of the offense or the parent has been

convicted of or pleaded guilty to an offense under section 2903.04 of the

Revised Code, a sibling of the child was the victim of the offense, and the

parent who committed the offense poses an ongoing danger to the child or

a sibling of the child.

(7) The parent has been convicted of or pleaded guilty to one of the

following:

***

(8) The parent has repeatedly withheld medical treatment or food

from the child when the parent has the means to provide the treatment or

food, and, in the case of withheld medical treatment, the parent withheld it

for a purpose other than to treat the physical or mental illness or defect of
Fairfield County, Case No. 2012-CA-23 24

the child by spiritual means through prayer alone in accordance with the

tenets of a recognized religious body.

(9) The parent has placed the child at substantial risk of harm two

or more times due to alcohol or drug abuse and has rejected treatment

two or more times or refused to participate in further treatment two or

more times after a case plan issued pursuant to section 2151.412 of the

Revised Code requiring treatment of the parent was journalized as part of

a dispositional order issued with respect to the child or an order was

issued by any other court requiring treatment of the parent.

(10) The parent has abandoned the child.

(11) The parent has had parental rights involuntarily terminated with

respect to a sibling of the child pursuant to this section or section or

2151.415 of the Revised Code, or under an existing or former law of this

state, any other state, or the United States that is substantially equivalent

to those sections, and the parent has failed to provide clear and

convincing evidence to prove that, notwithstanding the prior termination,

the parent can provide a legally secure permanent placement and

adequate care for the health, welfare, and safety of the child.

(12) The parent is incarcerated at the time of the filing of the motion

for permanent custody or the dispositional hearing of the child and will not

be available to care for the child for at least eighteen months after the

filing of the motion for permanent custody or the dispositional hearing.
Fairfield County, Case No. 2012-CA-23 25

(13) The parent is repeatedly incarcerated, and the repeated

incarceration prevents the parent from providing care for the child.

(14) The parent for any reason is unwilling to provide food, clothing,

shelter, and other basic necessities for the child or to prevent the child

from suffering physical, emotional, or sexual abuse or physical, emotional,

or mental neglect.

(15) The parent has committed abuse as described in section

2151.031 of the Revised Code against the child or caused or allowed the

child to suffer neglect as described in section 2151.03 of the Revised

Code, and the court determines that the seriousness, nature, or likelihood

of recurrence of the abuse or neglect makes the child's placement with the

child's parent a threat to the child's safety.

(16) Any other factor the court considers relevant.

{¶52} In this case, the trial court made its permanent custody findings pursuant

to R.C. 2151.414(E)(1), (4) and/or (16). The trial court further found that J.M. could not

be placed with adoptive-mother within a reasonable time or should not be placed with

her and that, due to J.M.’s age and J.M.’s desire not to be adopted, placement in a

planned permanent living arrangement would be in her best interest. J.M. was seventeen

years old.

{¶53} As set forth above, the trial court’s findings are based upon competent

credible evidence. The record includes the recommendation of the Guardian ad Litem for

the children, and the testimony of several witnesses at trial. The trial court was in the

best position to determine the credibility of the witnesses.
Fairfield County, Case No. 2012-CA-23 26

{¶54} The children love Ms. Mayo and Ms. Mayo loves her children and has

developed a bond. The evidence demonstrated the successful efforts the adoptive

mother had made in the case to regain custody of her children. On that point, the

evidence demonstrates that any improvement that Ms. Mayo has made in her life is

tentative and, perhaps, temporary, and that she is at risk of relapse. The trial court found

that, regardless of Ms. Mayo’s compliance with aspects of his case plan, she was still not

able to be a successful parent to her special needs children.

{¶55} In the case of In re: Summerfield, 5th Dist. No. 2005CA00139, 2005-Ohio-

5523, this court found where, despite marginal compliance with some aspects of the

case plan, the exact problems that led to the initial removal remained in existence, a

court does not err in finding the child cannot be placed with the parent within a

reasonable time.

{¶56} Based upon the foregoing, as well as the entire record in this case, the

Court properly found the children could not or should not be returned to the adoptive

mother within a reasonable time. Despite offering numerous services, the adoptive

mother was unable to mitigate the concerns that led to the children's removal.

B. The Best Interest of the Children.

{¶57} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child 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 wishes of

the child as expressed directly by the child or through the child's guardian ad litem, with
Fairfield County, Case No. 2012-CA-23 27

due regard for the maturity of the child; (3) the custodial history of the child; and (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.

{¶58} The focus of the “best interest” determination is upon the child, not the

parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a

grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d

309, 315, 642 N.E.2d 424(8th Dist. 1994). A finding that it is in the best interest of a child

to terminate the parental rights of one parent is not dependent upon the court making a

similar finding with respect to the other parent. The trial court would necessarily make a

separate determination concerning the best interest of the child with respect to the rights

of the mother and the rights of the father.

{¶59} The trial court made findings of fact regarding the children’s best interest.

It is well-established that “[t]he discretion which the juvenile court enjoys in determining

whether an order of permanent custody is in the best interest of a child should be

accorded the utmost respect, given the nature of the proceeding and the impact the

court's determination will have on the lives of the parties concerned.” In re: Mauzy

Children, 5th Dist. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000), quoting In re

Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).

{¶60} As an appellate court, we neither weigh the evidence nor judge the

credibility of witnesses. Our role is to determine whether there is relevant, competent and

credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, 5th Dist. No. CA-5758, 1981 WL 6321(Feb. 10, 1982). Reviewing courts should

accord deference to the trial court’s decision because the trial court has had the
Fairfield County, Case No. 2012-CA-23 28

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that

cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St.

3d 71, 523 N.E.2d 846.

{¶61} In the present case, the trial court's decision indicates it considered the

best interest factors. Upon review of the record, it is clear that the record supports the

trial court's finding that granting the motion for permanent custody is in the children's

best interest. The trial court concluded the children's need for legally secure placement

could not be achieved without awarding permanent custody to FCCPS.

{¶62} The record makes clear that appellant failed to complete the majority of

the case plan provided by FCCPS. The psychological evaluation indicates that Paula

Mayo does not fully grasp the vulnerability of the children and the evaluation indicates

that Paula Mayo is dependent on others to fulfill her own needs. Paula Mayo was

provided an opportunity to attend counseling to improve her parenting skills. However,

she has not utilized this resource. Paula Mayo has attended four (4) counseling sessions

and has missed four (4) counseling sessions.

{¶63} It is therapeutically recommended for J.M. that J.M. be living in an

intensely supervised and structured environment with a caregiver who has a clear

understanding of the special needs of J.M. Paula Mayo minimizes K.M.'s issues by

stating that K.M. does not present a challenge from a parenting perspective. Paula Mayo

also minimizes K.M.’s physical issues. If Paula Mayo cannot acknowledge and

understand the existing conditions of J.M. and K. M. then she will not be able to

recognize the developing conditions of M. M.
Fairfield County, Case No. 2012-CA-23 29

{¶64} The record contains competent, credible evidence that J.M. was initially

placed in foster care with her sisters, but has been moved ten times. She was removed

from the same care as K.M. and M.M. because she has been physically aggressive

towards them and to smaller children. K.M. and M.M. expressed fear of J.M. (T. Jan. 31,

2012 at 188). Presently, J.M. is with a therapeutic foster family who has done a “really

good job of...keeping her safe.” (Id. at 190). K.M. and M.M. appear very close and get

along well with their foster family. (Id. at 193). No other family members are available to

care for any of the children. (Id. at 196-197). In spite of the deep bond between the

children and Ms. Mayo, it is in the best interest of the children to be placed with FCCPS.

(Id. at 198-199; 201-202).

{¶65} “A trial court is not required to specifically enumerate each factor under

R.C. 2151.414(D) in its decision. However, there must be some indication on the record

that all of the necessary factors were considered.” (Citations omitted.) In re C.C., 10th

Dist. No. 04AP–883, 2005–Ohio–5163, ¶ 53.

{¶66} Upon a careful review of the trial court's journal entry and the record of

this case we find that the trial court took into account the interaction and interrelationship

of J.M., K.M. and M.M. Further the trial court addressed the interaction and

interrelationship between the adoptive mother and the children.

{¶67} Clear and convincing evidence supported the trial court’s decision finding

that it was in children's best interests to FCCPS’ motion for permanent custody.

III. Conclusion

{¶68} For these reasons, we find that the trial court’s determination that the

adoptive mother had failed to remedy the issues that caused the initial removal and
Fairfield County, Case No. 2012-CA-23 30

therefore the child could not be placed with her within a reasonable time or should not be

placed with her was based upon competent, credible evidence and is not against the

manifest weight or sufficiency of the evidence. We further find that FCCPS engaged in

reasonable case planning and made “diligent” efforts to assist the adoptive mother in

remedying the problems that caused the removal of the children.

{¶69} The trial court took into account the interaction and interrelationship

of J.M., K.M. and M.M. Further the trial court addressed the interaction and

interrelationship between adoptive mother and the children. Despite some compliance

with some aspects of the case plan, the exact problems that led to the initial removal

remained in existence.

{¶70} We further find that the trial court’s decision that permanent custody to

FCCPS was in the child’s best interest was based upon competent, credible evidence

and is not against the manifest weight or sufficiency of the evidence.

{¶71} Because clear and convincing evidence in the record supports the trial

court’s judgment, we overrule the children’s four assignments of error.
Fairfield County, Case No. 2012-CA-23 31

{¶72} J.M., K.M. and M.M.’s four assignments of error are overruled in their

entirety, and the judgment of the Fairfield County Court of Common Pleas, Juvenile

Court Division is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. WILLIAM B. HOFFMAN

_________________________________
HON. JOHN W. WISE

WSG:clw 0925
[Cite as In re J.M., 2012-Ohio-4705.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN RE: J.M., K.M., M.M. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2012-CA-23

For the reasons stated in our accompanying Memorandum-Opinion, we overrule the

Children four assignments of error, and affirm the judgment of the Fairfield County Court

of Common Pleas, Juvenile Court Division. Costs to appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. WILLIAM B. HOFFMAN

_________________________________
HON. JOHN W. WISE