[Cite as In re: H.M., 2018-Ohio-3214.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PIKE COUNTY
IN RE: H.M., : Case No. 18CA887
Adjudicated Neglected and :
Dependent Child. DECISION AND
: JUDGMENT ENTRY
: RELEASED: 07/30/2018
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for appellant.
Elizabeth M. Howard, Waverly, Ohio, for appellee.
Matthew P. Brady, Grove City, Ohio, guardian ad litem for H.M.
Harsha, J.
{¶1} Patricia Forbes, the maternal grandmother of H.M., an adjudicated
neglected and dependent child, appeals from the judgment awarding permanent
custody of H.M. to a county children’s services agency. Forbes asserts that the trial
court’s award of permanent custody was against the manifest weight of the evidence.
She argues several reasons support her claim that this is an exceptional case
warranting a finding that the permanent custody award was against the manifest weight
of the evidence.
{¶2} First she contends that the agency failed to adhere to the good-faith
requirements of the Revised Code when implementing a reunification plan for the child
and her. She emphasizes that she had legal custody of H.M. before H.M. was removed
from her care during this proceeding. But there is no evidence in the record supporting
her contention about the agency’s lack of good faith. Instead, the trial court found on
multiple occasions during the pendency of the case that the agency made reasonable
Pike App. No. 18CA887 2
efforts to prevent the removal of the child from the home, eliminate continued removal,
or make it possible for the child to return home; and neither Forbes nor the child’s
parents ever contested those findings.
{¶3} Next Forbes claims that the agency’s filing of its motion for permanent
custody was retaliatory in nature. She argues the agency filed it on the same day that
the trial court scheduled a hearing on Forbes’s motion for contempt against the agency
for allegedly withholding her unsupervised parenting time with the child. But again,
there is no evidence in the record to support her claim. Instead, the only evidence she
cites is a caseworker’s testimony refuting that claim.
{¶4} Forbes finally argues that the permanent custody award was against the
manifest weight of the evidence because the trial court granted custody of two of H.M.’s
siblings to her, which implicitly recognized that she had met the terms of her case plan.
But Forbes is not H.M.’s parent but merely her relative. Thus the trial court had no duty
to favor placement with Forbes if, after considering all the factors, it was in the child’s
best interest for the agency to receive permanent custody. And evidence that Forbes
substantially complied with the case plan could not, by itself, prove that the award of
permanent custody to the agency was erroneous.
{¶5} Instead, clear and convincing evidence supported the trial court’s
determination that because of H.M.’s developmental disabilities and special needs,
Forbes could not provide her a legally secure permanent placement even though she
could provide an appropriate one for two of her siblings. An agency caseworker
testified that during visitation, she observed very little interaction between the child and
the adults, who appeared more interested in the other children than H.M. When she
Pike App. No. 18CA887 3
was removed from Forbes’s care, H.M. was filthy and exhibited severe speech
problems and extreme behavior that prevented several placements with different foster
homes until successful placement at the current foster home. With one-on-one
intensive care at this foster home, H.M. has shown significant improvement; she is off
medication, functions well, and can speak in full sentences. When she visited with her
siblings, her bad behavior returned. The guardian ad litem (“GAL”) recommended that
the agency receive permanent custody of H.M. because H.M.’s needs were so extreme
and her behavioral issues were so extensive that permanent custody was in her best
interest. We overrule Forbes’s assignment of error and affirm the trial court’s judgment
awarding permanent custody of H.M. to the agency.
I. FACTS
{¶6} In late April 2016, the Pike County Children’s Services Board (PCCSB)
received a report from the Waverly Police Department documenting a domestic-violence
dispute at the home of Forbes and her husband, Richard. When PCCSB caseworkers
arrived, they discovered that Forbes, her husband, and the remaining two adults at the
home were severely intoxicated and five minor children, including H.M., one of her
brothers, and a half-brother, were running around unsupervised inside and outside the
house. Forbes is H.M.’s maternal grandmother and was her legal custodian at that
time. The children and the house were dirty, there was animal feces throughout the
house and on the children’s beds, and there was no food, other than a partially filled
container of juice. The trial court granted PCCSB emergency custody of the five
children, including H.M., on that date, and removed them from Forbes’s home. The
Pike App. No. 18CA887 4
next day after a shelter-care hearing, the court found probable cause to support the
agency’s emergency custody of the children.
{¶7} A little more than a month later, PCCSB filed an amended complaint
alleging that H.M. was an abused, neglected, and dependent child, and requesting the
permanent custody of H.M. as an initial disposition. The sworn amended complaint
stated that H.M.’s parents, Elizabeth Kovach and Justin Mathers, had children (two of
H.M.’s brothers) permanently removed from their custody in a 2013 proceeding in Clark
County, Ohio. Following a hearing where H.M.’s father did not appear, the trial court
adjudicated H.M. to be a neglected and dependent child and granted temporary custody
of H.M. to PCCSB. The court found that PCCSB “has made reasonable efforts to
prevent the removal of the child from the home, eliminate continued removal, or make it
possible for the child to return home.”
{¶8} After a dispositional hearing the court ordered the child to remain in the
temporary custody of the agency, PCCSB to prepare a case plan for H.M.’s mother,
Kovach, with reunification as the goal, and granted Forbes (Kovach’s mother and H.M.’s
grandmother) and Kovach supervised parenting time with the child at the agency. The
parties stipulated and the court found that PCCSB “made reasonable efforts to eliminate
the continued removal of the child from the child’s home, or to make it possible for the
child to return safely home.”
{¶9} Following an initial review hearing the court continued the temporary
custody order and granted Forbes and Kovach holiday parenting time in addition to the
previously ordered supervised parenting time. The court again found that PCCSB had
made the required reasonable efforts to make it possible for H.M. to return safely home.
Pike App. No. 18CA887 5
Subsequent review entries expanded Forbes’s and Kovach’s parenting time with H.M.
to include limited, unsupervised parenting time at Forbes’s home. Each time the court
found that the agency had made the requisite reasonable efforts to reunify the child.
{¶10} In July 2017, Forbes filed a motion to find PCCSB in contempt for
allegedly refusing to allow her the ordered unsupervised parenting time with H.M. The
court scheduled the matter for a hearing, and on that date, PCCSB filed a motion
requesting the modification of temporary custody of H.M. to permanent custody. In
opposition Forbes filed a motion for the court to return custody of H.M. to her.
{¶11} Attorney Matthew P. Brady, the GAL for H.M., filed a report that
recommended the court award permanent custody of H.M. to the agency. Brady
concluded that while H.M. was in Forbes’s care, she fell severely behind in her
development, speaking very little, and exhibiting bad behavior. Because Forbes would
likely have H.M.’s brother and half-brother in her care as well, Forbes would not be able
to provide H.M. with the round-the-clock attention that she received from her foster
home and needed to continue to develop. Although the GAL recommended that the
other children could still potentially be placed with Forbes, he could not make the same
recommendation for H.M. because of her more extensive developmental delay and
behavioral problems. This resulted in “compelling reasons to grant PCCSB permanent
custody of H.M. so that she can hopefully be adopted in a home where she can receive
fairly intensive attention and care for her developmental, medical, and educational
issues even if permanent custody is not granted to H.M.’s siblings.”
{¶12} The trial court held a hearing on PCCSB’s motion for permanent custody
and Forbes’s motion to return custody. PCCSB caseworker Ashley Leasure testified
Pike App. No. 18CA887 6
that at the time H.M. and the four other children were removed from Forbes’s home in
late April 2016, H.M. was filthy, was wearing pressure garments from a burn she
received in 2014, and had fingerprint bruises on her forearm. H.M. had also been off
her prescribed medications because of missed pediatrician appointments. According to
Leasure, H.M. exhibited poor behavior—she smeared feces everywhere, urinated and
defecated on the floor, hit, spit, kicked, punched, and swore—which led to multiple
placements with different foster families until her current foster home where she was
placed in July 2017. H.M. also initially had severe speech delays, which made it difficult
for others to understand any words she spoke.
{¶13} Leasure testified that in her current foster placement, H.M. had improved
dramatically because as the only foster child in the home, she received the intensive
one-on-one care that she needed. Because of this new environment H.M. functions
very well, is off all of her prior medications, and speaks in full, fluent sentences. She is
in occupational and speech therapy.
{¶14} Leasure further testified that during visitation with Forbes, Kovach, and the
other children, H.M. tried to interact with Forbes and Kovach, but she was usually not
successful because they paid more attention to the other children. During the agency
visits when she interacted with her siblings, some of her old bad behaviors returned,
including hitting them. Leasure was concerned about Forbes’s failure to maintain
employment and housing—she had several different jobs and homes during the
pendency of the case, losing several residences because of a failure to pay rent.
{¶15} Leasure concluded that Kovach could not be a primary caretaker for her
daughter, H.M., or any of the other children because she never actually provided the
Pike App. No. 18CA887 7
sole care for the children and never took the main parental role during visitation. And
Mathers, H.M.’s father, had abandoned her, not communicating with her and not
contesting the permanent-custody proceeding. Both of H.M.’s parents had two of
H.M.’s brothers permanently removed from their custody by a Clark County, Ohio court
in 2013.
{¶16} Dr. Robin Rippeth, a professional clinical counselor and psychologist with
Mid-Ohio Psychological Services, testified that she conducted a psychological
evaluation of Kovach that revealed she had an intellectual developmental disorder with
an IQ of 57, which is in the extremely low range of intellectual functioning. Based on
her evaluation of Kovach Dr. Rippeth concluded that she would have a very difficult time
parenting on her own without frequent intervention from agencies.
{¶17} Forbes admitted that when PCCSB removed H.M. and the other children
from her residence in April 2016, it was in deplorable condition. At that time she was
arrested for disorderly conduct and obstructing police business, ultimately pleading
guilty to the latter charge. Forbes also agreed that when H.M. was in her care, she was
behind where most children her age would be for speech, education, and behavior. And
she additionally admitted that when H.M. was in her care, she had her attend an
elementary school that later removed her because of her many behavior issues,
including being mean with teachers and students, not listening or cooperating, and
having gross motor-skill problems and developmental issues.
{¶18} The GAL, Matthew Brady, testified that H.M. had experienced tremendous
strides in foster care and that he was concerned that these improvements would not
continue if she was returned to her maternal grandmother Forbes’s custody. Based on
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his investigation, interviews, and observations of the children, Brady believed that
H.M.’s needs were so extreme that they could not be met in any other way than by
awarding permanent custody of her to PCCSB. Brady concluded that because of
H.M.’s extreme needs and extensive behavioral issues, which required her to be
homeschooled in foster care, placing H.M. with her siblings would pose an extreme
burden that might disrupt the ability of anyone having custody to care for the other
children.
{¶19} The trial court awarded permanent custody of H.M. to the agency. The
court issued detailed findings of fact and conclusions of law determining by clear and
convincing evidence that: (1) the child cannot be placed with either of her parents,
Kovach or Mathers, or maternal grandmother, Forbes, within a reasonable time and
should not be returned to them; (2) Kovach and Mathers had previously had their
parental rights terminated; and (3) permanent custody in favor of PCCSB was in the
child’s best interests. The trial court additionally found that because it was ruling that
two of H.M.’s brothers, W.S. and C.M., should be eventually returned to Forbes’s care,
H.M. should not be maintained in that environment, and that due to H.M.’s special
needs and behavior issues, it was impossible to return her to Forbes’s care.
II. ASSIGNMENT OF ERROR
{¶20} Forbes assigns the following error for our review:
THE TRIAL COURT’S DECISION TO AWARD PERMANENT CUSTODY
OF H.M. TO THE PCCSB WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
II. STANDARD OF REVIEW
Pike App. No. 18CA887 9
{¶21} “Generally, a reviewing court will not disturb a trial court’s permanent
custody decision unless the decision is against the manifest weight of the evidence.” In
the Matter of A.M., 4th Dist. Athens No. 17CA43, 2018-Ohio-2072, ¶ 38. “To determine
whether a permanent custody order is against the manifest weight of the evidence, an
appellate court must weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving evidentiary conflicts, the
trial court clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed and a new trial ordered.” In re J.M.D., 4th Dist. Washington
No. 14CA2, 2014-Ohio-1609, ¶ 17. “In reviewing the evidence under this standard, we
must defer to the trial court’s credibility determinations because of the presumption in
favor of the finder of fact.” Id.
{¶22} In a permanent custody case, the dispositive issue on appeal is “whether
the juvenile court’s findings * * * were supported by clear and convincing evidence.” In
re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43; see also R.C.
2151.414(B)(1). “Clear and convincing evidence” is “that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not to the extent of
such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.” Cross v. Ledford, 161 Ohio St. 69, 120 N.E.2d 118 (1954),
paragraph three of the syllabus; State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio
St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 14. “[I]f the children services agency
presented competent and credible evidence upon which the trier of fact reasonably
could have formed a firm belief that permanent custody is warranted, then the court’s
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decision is not against the manifest weight of the evidence.” In re R.M., 2013-Ohio-
3588, 997 N.E.2d 169, ¶ 55 (4th Dist.).
{¶23} In sum, a reviewing court should find a trial court’s permanent custody
decision against the manifest weight of the evidence only in the exceptional case in
which the evidence weighs heavily against the decision. In the Matter of K.W., 2018-
Ohio-1933, __ N.E.3d __, ¶ 27 (4th Dist.).
IV. LAW AND ANALYSIS
A. Permanent Custody Requirements
{¶24} In her assignment of error Forbes asserts that the trial court’s permanent
custody decision is against the manifest weight of the evidence.1
{¶25} R.C. 2151.414 governs the procedure for awarding permanent custody of
a child to a public children services agency or a private child placing agency. See R.C.
2151.413. Before a trial court may award a children services agency permanent
custody, it must find by clear and convincing evidence that: (1) one of the
circumstances in R.C. 2151.414(B)(1) applies; and (2) awarding the children services
agency permanent custody would be in the child’s best interest.
{¶26} Forbes does not contest the trial court’s finding that R.C.
2151.414(B)(1)(d) applied because H.M. had been in the temporary custody of PCCSB
for 12 or more months of a consecutive 22-month period. Therefore the dispositive
issue is whether the trial court correctly determined that awarding H.M. to the
permanent custody of PCCSB was in the child’s best interest.
1Although the text of Forbes’s assignment of error appears to also contest the sufficiency of the
evidence, it is in essence a manifest-weight argument. Our analysis is likewise. See In re B.E., 4th Dist.
Highland No. 13CA26, 2014-Ohio-3178, ¶ 26.
Pike App. No. 18CA887 11
{¶27} R.C. 2151.414(D)(1) provides that:
In determining the best interest of a child at a hearing held pursuant to
division (A) of this section * * *, the court shall consider all relevant factors,
including, but not limited to, the following:
(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 * * *;
(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.
{¶28} Determining whether granting permanent custody to a children’s services
agency will promote a child’s best interest involves a delicate balancing of “all relevant
factors” as well as the “five enumerated statutory factors.” In re C.F., 113 Ohio St.3d
73, 2007-Ohio-73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57. None of the best-interest
factors requires a court to give it “greater weight or heightened significance.” Id.
Instead, the trial court considers the totality of the circumstances when making its best-
interest determination. A.M., 2018-Ohio-2072, at ¶ 55.
B. Reasonable Efforts for Reunification
{¶29} Forbes does not separately address each of the best-interest factors in
her appeal. Instead, she acknowledges that only an exceptional case in which the
Pike App. No. 18CA887 12
evidence weighs heavily against the permanent custody decision will warrant reversal,
see K.W., 2018-Ohio-1933, __ N.E.3d __, at ¶ 27, and she raises several arguments to
claim that this is an exceptional case.
{¶30} First she contends that PCCSB failed to adhere to the good-faith
requirements of the Revised Code seeking reunification of the child with her in light of
the fact she had legal custody of H.M. before H.M. was removed from her care. Forbes
cites no evidence or authority to support her contention.
{¶31} Although R.C. 2151.419(A) requires a trial court to determine whether a
children services agency “made reasonable efforts to prevent the removal of the child
from the child’s home, to eliminate the continued removal of the child from the child’s
home, or to make it possible for the child to safely return home,” this provision does not
apply to motions for permanent custody. In re C.B.C., 4th Dist. Lawrence Nos. 15CA18
and 15CA19, 2016-Ohio-916, ¶ 72. But PCCSB had to establish that at prior stages of
the child-custody proceeding that it had made reasonable efforts toward family
reunification. Id. The trial court found during each of these prior stages, including
adjudication, disposition, and review that PCCSB had made the requisite reasonable
efforts to reunify H.M. with her family. Neither Forbes nor Kovach contested these
findings.
{¶32} Moreover, although the trial court was not required to do so, it concluded
in its permanent custody decision that “[r]easonable efforts were made with Maternal
Grandmother, through case planning and facilitation of supervised visitation with H.M.
and Maternal Grandmother,” but that “due to H.M.’s special needs and behavior issues
it is impossible to return the minor child to her care.” The court’s finding was supported
Pike App. No. 18CA887 13
by clear and convincing evidence provided by caseworker Leasure, the GAL, and even
Forbes herself, who acknowledged that when H.M. was in her care, she was
developmentally delayed in speech, education, and behavior, and that her behavioral
issues were so pronounced that she had to be removed from school. We reject
Forbes’s unsupported contention that PCCSB failed to adhere to any good-faith
reunification requirements.
C. Retaliatory Conduct
{¶33} Next Forbes claims that PCCSB’s motion for permanent custody was
retaliatory in nature. She argues the agency filed the motion on the same day that the
trial court scheduled a hearing on her motion for contempt against the agency for
allegedly withholding her unsupervised parenting time with H.M. Again, she cites no
authority for this claim. And the evidence she cites to support her claim actually refutes
it—Leasure testified that the agency’s motion for permanent custody was not filed
because of Forbes’s motion to hold the agency in contempt. We find this claim to be
meritless.
D. Compliance with Case Plan
{¶34} Finally Forbes argues that the trial court’s permanent custody decision
was against the manifest weight of the evidence because the court granted her custody
of two of H.M.’s siblings, which implicitly recognized her compliance with all of the
requirements of her case plan.
{¶35} We reject Forbes’s argument; although a parent’s compliance with a case
plan may be relevant in the best-interest determination, it is not necessarily dispositive.
A.M., 2018-Ohio-2072, at ¶ 56. And Forbes is not H.M.’s parent; she is the maternal
Pike App. No. 18CA887 14
grandmother. Courts are not required to favor relative or non-relative placement if, after
considering all the factors, it is in the child’s best interest for the agency to be granted
permanent custody. In re E.F., 4th Dist. Athens No. 16CA22, 2017-Ohio-133, ¶ 23.
Finally, the GAL’s and Leasure’s testimony about H.M.’s special needs and reversion to
bad behavior around her siblings justified the trial court’s different treatment of her from
her siblings.
E. Best Interest Determination
1. Child’s Interactions and Interrelationships
{¶36} The trial court determined that H.M. did not display a significant bond with
either her mother or her grandmother and had been abandoned by her father. H.M.’s
behavior worsened when she visited her brothers. Conversely, H.M. had developed a
very strong bond with her foster mother and had made dramatic improvements in foster
care. The evidence, including caseworker Leasure’s testimony, supported the court’s
findings.
2. Child’s Wishes
{¶37} The trial court found that H.M. was too young and developmentally
delayed to express her wishes, but that the GAL recommended that permanent custody
be awarded to PCCSB because it was in the child’s best interest. The court’s finding
was supported by the GAL’s testimony and report.
3. Custodial History
{¶38} The trial court found that PCCSB first obtained custody of H.M. in late
April 2016 and had maintained custody since that date, with the child’s current foster-
Pike App. No. 18CA887 15
care placement benefitting her greatly. Leasure’s testimony supported the court’s
finding.
4. Legally Secure Permanent Placement
{¶39} A legally secure permanent placement is a safe, stable, consistent
environment where a child’s needs will be met. A.M. at ¶ 63. The court noted that
neither parent could provide H.M. with a legally secure permanent placement because
the mother was not able to care for the child, and the father had abandoned her. This
finding was supported by Dr. Rippeth’s testimony, as well as the testimony of the GAL,
and caseworker.
{¶40} The trial court found that Forbes was unable to provide a legally secure
permanent placement for H.M. because of the child’s special needs. Forbes’s own
testimony conceded that H.M. did not develop normally and did not behave properly
when she was in Forbes’s custody. Leasure testified that during visitation, Forbes
ignored H.M.’s attempts to interact with her and instead paid more attention to the other
children. The GAL testified that he was concerned that the tremendous advances in
development and behavior that H.M. had experienced in foster care would not continue
if she was returned to Forbes’s custody.
{¶41} The trial court further concluded that because two of H.M.’s brothers
would gradually be returned to Forbes’s care, it felt that H.M. “would not be able to be
maintained in that environment.” Leasure’s testimony that H.M.’s bad behavior returned
when she was around her siblings supported the court’s finding. The GAL’s report and
testimony also supported it—the GAL concluded that if Forbes had custody of H.M.’s
Pike App. No. 18CA887 16
brother and half-brother, she would not be able to provide H.M. with the round-the-clock
attention that she needed to continue to develop.
5. R.C. 2151.414(E)(11)
{¶42} The trial court found and the evidence was uncontroverted at trial that
H.M.’s parents had their parental rights terminated in a 2013 permanent custody case in
Clark County, Ohio involving two of the H.M.’s siblings.
6. Balancing the Best-Interest Factors
{¶43} After considering these factors, we are not persuaded that the trial court’s
best-interest determination is against the manifest weight of the evidence. Instead, the
clear and convincing evidence establishes that placing H.M. in the agency’s permanent
custody is in her best interest. She suffers from severe developmental delays and
behavioral issues that have been alleviated only when she has been under the
intensive, one-on-one care of her most recent foster-care placement. Neither her
parents nor Forbes can provide a legally secure permanent placement for her given her
special needs and behavioral issues.
V. CONCLUSION
{¶44} Having overruled Forbes’s assignment of error, we affirm the judgment of
the trial court awarding permanent custody of H.M. to PCCSB.
JUDGMENT AFFIRMED.
Pike App. No. 18CA887 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike
County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Hoover, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.