[Cite as In re G. Children, 2020-Ohio-3649.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: G. CHILDREN : APPEAL NO. C-200109
TRIAL NO. F17-676Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 8, 2020
Jeffrey J. Cutcher, for Apellant Father,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alyssa M. Miller,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Jeffrey A. McCormick, Guardian ad Litem for minor children.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Father has appealed from the Hamilton County Juvenile Court’s
judgment granting permanent custody of his minor children M.D.G. and M.K.G. to
the Hamilton County Department of Job and Family Services (“HCJFS”). He argues
in two assignments of error that the termination of his parental rights was against
the manifest weight of the evidence, and that the juvenile court erred in weighing his
failure to complete services against him when the services could not be provided by
HCJFS. He requests that he be given custody of both children, or, in the alternative,
custody of M.D.G.
{¶2} For the reasons discussed below, we overrule both assignments of
error and affirm the judgment of the juvenile court.
Factual Background
{¶3} HCJFS was granted interim custody of the children on May 26, 2017,
due to concerns over mother’s substance abuse. At the time, mother and the
children were living together at a drug treatment center in Hamilton County, and
father was living in Butler County. M.K.G. was approximately three years old, and
M.D.G. was only a few months old. HCJFS developed case-plan services for both
father and mother. Mother died in January 2018. On April 29, 2019, HCJFS filed a
motion for permanent custody, which was opposed by father. The permanent-
custody trial was conducted over two days, August 19, 2019, and September 20,
2019.
{¶4} Rachel Kennedy was the HCJFS caseworker at the time of trial. She
testified that as part of his case plan, father completed a FAIR Diagnostic Assessment
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(“DAF”) in July 2017 that recommended that he complete a YWCA domestic-violence
assessment, parenting classes, and toxicology screens. Kennedy testified that father
completed two toxicology screens. The first test in August 2017 came back positive
for marijuana, but the second and most recent test in October 2017 came back
negative.
{¶5} Kennedy testified that in February 2018, father completed the YWCA
domestic-violence assessment, which recommended individual counseling “due to
some manipulative behaviors that were displayed during the interview.” Father
completed a second DAF in July 2018 that recommended that he complete a
psychological evaluation. Kennedy testified that father did not complete the
psychological evaluation until February 2019, and did not start the individual
counseling recommended by the YWCA assessment until the end of July 2019, less
than one month before the permanent-custody trial began.
{¶6} Kennedy testified that father started parenting classes in March 2018,
but did not complete the parenting program. He completed the classes, but did not
complete the one-on-one coaching. Beech Acres, the provider for the parenting
program, reported to Kennedy that father refused to complete coaching because he
did not believe that the judge had ordered him to do so. Kennedy testified that father
contacted her at the end of July 2019 about scheduling the one-on-one coaching, but
she was unable to get it scheduled prior to trial.
{¶7} Kennedy testified that when she took over in January 2018, father was
not visiting the children on a consistent basis and his visitations had been canceled
by the Family Nurturing Center (“FNC”). Father started visiting the children
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consistently in February 2018. She testified that father’s visitations remained at the
strictest level of supervision, the facilitated level, for the duration of the case.
{¶8} Kennedy testified that the assessments father completed were in
Hamilton County. She testified that due to Medicaid standards, Hamilton County
was unable to refer father to the counseling it required. However, HCJFS
recommended multiple agencies near father’s residence in Butler County that could
provide counseling.
{¶9} Kennedy testified that in March 2018, HCJFS received an allegation
that father had sexually abused M.K.G. This does not appear to have been the first
allegation of sexual abuse, as M.K.G. was previously interviewed by the Mayerson
Center in October 2017 about sexual abuse, but no charges were filed and no changes
were made to the case plan as a result of that interview. Kennedy testified that after
the allegation in March 2018, M.K.G. was placed in a respite foster home while
HCJFS conducted an investigation. HCJFS also organized an interview at the
Mayerson Center with M.K.G. and placed M.K.G. in Trauma Focused Cognitive
Behavioral Therapy.
{¶10} On March 28, 2018, HCJFS filed a case plan suspending visitations
between father and M.K.G. The magistrate conducted a hearing on July 30, 2018.
On August 6, 2018, she issued an order adopting the case plan and suspending
visitations between father and M.K.G. The magistrate noted that the Mayerson
Center assessor could not confirm the allegations of sexual abuse because MKG “did
not make disclosures and [her] developmental delay and age created an inability to
complete a forensic interview.” However, based on testimony from Dr. Pamela
Miller and her recommendation that it would be harmful for MKG to resume
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visitations, the magistrate found that it was in the best interest of M.K.G. for her
visitations to remain suspended.
{¶11} Dr. Pamela Miller testified at the July 30, 2018 hearing regarding the
suspension of father’s visitations with M.K.G. and at the permanent-custody trial.
She testified that she is a national expert in child abuse and neglect policy according
to the Center for Child Policy. She testified that children as young as three years old
can give truthful and accurate accounts of sexual abuse.
{¶12} Miller testified that she started working with M.K.G. in March 2018 as
part of her trauma therapy and HCJFS’s investigation into the sexual abuse
allegation. Miller engaged M.K.G. in “play therapy.” She testified that during their
first session, without prompting, M.K.G. said, “My daddy touched my private parts
and it made me mad,” and “it was my daddy with the ponytail.”
{¶13} After five to ten more sessions, Miller moved from play therapy to
trauma focused cognitive behavioral therapy. She met with M.K.G. once a week for
45 minutes to an hour. She testified that eventually M.K.G. started to disclose more
information regarding the abuse. Miller testified that M.K.G. told her that “it was the
daddy she had when she was a baby, the daddy she had when she was little, the
daddy she had that hurt her mommy before her mommy died, her daddy that she
had before she was here, referring to her foster home.” Miller testified that M.K.G.
told her that “daddy touching her private parts happened in a crib.” She said it made
her private parts turn red and that it made her mad and sad. Miller testified that one
time M.K.G. demonstrated for her—she picked up a doll and said “ ‘I’m not going to
touch their private parts, but when my daddy touched my private parts, he did it like
this,’ and she rubbed herself on her vaginal area over her clothes.” Miller testified
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OHIO FIRST DISTRICT COURT OF APPEALS
regarding guardian ad litem (“GAL”) exhibit one, M.K.G.’s “trauma narrative,” in
which M.K.G. described sexual abuse by her father. In her order suspending father’s
visitations, the magistrate noted that father has a ponytail and foster father does not.
He also noted that father and mother had a history of domestic violence.
{¶14} Miller testified that when she first started working with M.K.G., she
was displaying “a lot of sexually acting-out behaviors.” Miller conducted a Child
Sexual Behavior Inventory (“CSBI”) with M.K.G. Miller testified that the CSBI
identifies a child’s sexually acting-out behaviors, whether the behaviors are normal
for her age, and which behaviors are not normal for her age and are indicative of
sexual abuse. Miller testified that M.K.G. scored the highest score possible on the
CSBI, and that her scores reflected that M.K.G. had “clinically significant sexualized
behaviors and addictive sexual abuse” for a girl her age. Miller testified that she does
not have any concerns about M.K.G.’s placement in the foster home or about other
adults committing the abuse.
{¶15} Miller acknowledged that HCJFS was unable to substantiate the
sexual-abuse allegations. However, she testified that this is not uncommon, and that
HCJFS typically only substantiates a very small portion of cases of sexual abuse
against children.
{¶16} Father testified that he was the one who sounded the alarm on the
abuse. He testified that during one of his visitations with M.K.G., without
prompting, she told him “my daddy touched my privates last night.” He testified that
the FNC facilitator heard what M.K.G. said, and alerted his supervisor. Father
testified that he called 241-KIDS, but they told him that they could not do anything
about it at the moment. Father testified that the Middletown Police interviewed him
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OHIO FIRST DISTRICT COURT OF APPEALS
about the abuse, and he took a polygraph. He testified that the police have not
contacted him since.
{¶17} Regarding his case plan, father testified that he does not feel like he
needs counseling, but he is willing to do it to get his children back. He testified that
he had trouble completing the counseling because he does not have insurance and
agencies would not accept him without insurance. Father testified that he can get
insurance through his work, but he has not signed up for it. Father claimed that until
two to three months before trial he thought HCJFS could refer him for counseling,
and so he would not need insurance.
{¶18} Father testified that he completed the parenting classes, and that he
had been asking Kennedy to contact Beech Acres for over two years in order schedule
the parenting coaching, but she never did. Father testified that his visitations at FNC
were canceled because he missed two in a row due to work. He had to “go back
through the process again” to get visitations at FNC and was put on a waiting list. He
testified that as soon as he was off the waiting list, he attended visitations
consistently.
{¶19} Victoria Hitchens testified that she facilitated father’s visitations with
M.D.G. at FNC between January 12, 2019, and June 15, 2019. She testified that
M.D.G. was “very receptive to [father],” and would initiate play and affection with
father. Hitchens testified that father remained at the “facilitated” level of visitation,
the strictest level, throughout the duration of the case. She testified that often in a
facilitated setting the FNC facilitator does 50 percent or more of the interactions and
redirections with the child, and has to teach the parent how to interact and
communicate with the child. Hitchens testified that she did not have to do those
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OHIO FIRST DISTRICT COURT OF APPEALS
things with father, and so she felt that father’s visitations should be reduced to the
“monitored” level. Hitchens contacted HCJFS about reducing the level of
supervision to “monitored.” She testified that she found out that the previous
facilitator had made the same recommendation to HCJFS. She testified that HCJFS
denied her request because father had not been completing his case-plan services.
She testified that HCJFS’s explanation did not change her opinion because
monitored visitations are still supervised, just not on a one-on-one basis, and so she
would still recommend that father’s visitations be reduced to the monitored level.
{¶20} Kennedy testified that HCJFS declined to reduce the level of
supervision because father failed to display “behavioral changes by attending therapy
or working through case plan services.”
Second Assignment of Error
{¶21} For ease of discussion, we address father’s second assignment of error
first. Father claims that the trial court erred in weighing his failure to complete
services against him in its permanent-custody determination. He presents two
arguments. First, he argues that when HCJFS requires services of a parent that
HCJFS is unable to provide, completion of those services should not be held against
the parent. Second, he argues that when the county of residence is a barrier to
providing services, HCJFS should be required to transfer the case to the county that
is able to provide services.
{¶22} Father claims that he failed to complete individual counseling because
HCJFS could not refer him for counseling in Hamilton County, and he could not
obtain counseling in Butler County because he did not have insurance. But father
admitted that he had the ability to sign up for insurance through his work on an
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OHIO FIRST DISTRICT COURT OF APPEALS
annual basis, and yet never did so. Kennedy testified that although HCJFS could not
refer father for counseling services since he was not a resident of Hamilton County,
she discussed options with him in Butler County, including Butler Behavioral Health,
which is the agency that father eventually went to for counseling at the end of July
2019.
{¶23} Father admitted that insurance was not an impediment to completing
parenting coaching. He testified that he contacted Kennedy repeatedly to schedule
coaching, but she did not contact him back or follow through. Kennedy testified that
Beech Acres reported to her that father refused to complete coaching because he did
not believe that it was part of the court’s order. Kennedy testified that father did not
reach out to her about completing parenting coaching until July 2019.
{¶24} We find father’s arguments unpersuasive. Contrary to father’s
assertion, HCJFS does not “provide” the types of services he failed to complete, such
as counseling and parenting education. Rather, it refers a parent to outside agencies
for completion of such services.
{¶25} As this court stated in In re W.W.,
Case plans are tools to facilitate reunification; therefore, “the plan and the
agency’s efforts should account for the respective abilities of the parents
and children in pursuing individualized concerns, goals, and steps
necessary for reunification.” But the agency’s responsibility to facilitate
reunification is not unlimited. The issue is whether the agency’s case
planning and efforts were reasonable and diligent, and not “whether
there was anything more” that the agency could have done.
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In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 61,
quoting In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53 and 5-02-54, 2003-
Ohio-1269, ¶ 10.
{¶26} When children have been taken into temporary custody due to
concerns about their safety and well-being, it is the parent’s responsibility to comply
with the court-ordered case plan. HCJFS was not required to actually provide the
services for father or set up the case plan in a way most convenient for him. Rather,
HCJFS was merely required to provide “reasonable and diligent” case planning and
efforts. See In re W.W. at ¶ 61. We hold that HCJFS acted reasonably and with
diligence to effect reunification and that the court did not err in weighing father’s
failure to complete services against him.
{¶27} Father’s second assignment of error is overruled.
First Assignment of Error
{¶28} In his first assignment of error, father argues that the termination of
his parental rights was against the manifest weight of the evidence. “Reviewing a
juvenile court’s grant of permanent custody requires that we independently find that
clear and convincing evidence supports the decision.” In re L.M.B. & M.A.B., 1st
Dist. Hamilton Nos. C -200033 and C-200044, 2020-Ohio-2925, ¶ 8. Clear-and-
convincing evidence produces “in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” In re K.H., 119 Ohio St.3d 538,
2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶29} In reviewing a claim that the juvenile court’s decision was against the
manifest weight of the evidence, we “weigh the evidence and all reasonable
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OHIO FIRST DISTRICT COURT OF APPEALS
inferences, consider the credibility of the witnesses, and determine whether in
resolving conflicts in the evidence, the [juvenile] court clearly lost its way and created
such a manifest miscarriage of justice that the judgment must be reversed.” In re
A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 16.
{¶30} When children have been previously adjudicated abused, neglected, or
dependent and temporary custody has been granted to HCJFS pursuant to R.C.
2151.353(A)(2), HCJFS may then move for permanent custody of the children
pursuant to R.C. 2151.413(A) and 2151.414. The court will grant permanent custody
to HCJFS if a two-prong test is satisfied. The court must find, by clear-and-
convincing evidence, that: (1) one of the enumerated conditions in R.C.
2151.414(B)(1)(a)-(e) is met, and (2) permanent custody is in the best interest of the
children under R.C. 2151.414(D)(1)(a)-(e). See R.C. 2151.414(B)(1).
The First Prong—R.C. 2151.414(B)
{¶31} The first prong can be satisfied by any one of five conditions. R.C.
2151.414(B). One condition is if a child has been in the temporary custody of the
agency for 12 months of a consecutive 22-month period. R.C. 2151.414(B)(1)(d). The
starting point for determining when the 12-in-22 clock starts is either the date the
child was adjudicated dependent or 60 days after the removal of the child from the
home, whichever is earlier. R.C. 2151.414(B)(1)(e). The end-point for the 12-in-22
clock is the date the agency filed the motion for permanent custody. In re C.W., 104
Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 26.
{¶32} M.K.G. and M.D.G. are considered to have been in the temporary
custody of HCJFS since July 25, 2017, 60 days after they were removed from the
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home. The motion for permanent custody was filed April 29, 2019. Therefore, the
12-in-22 provision is satisfied as to both children.
The Second Prong—R.C. 2151.414(D)(1) Best-Interest Analysis
{¶33} Under the second prong, the juvenile court must determine whether
granting permanent custody to HCJFS is in the best interest of the children. R.C.
2151.414(B)(1). Pursuant to R.C. 2151.414(D)(1), the court may find that permanent
custody is in the best interest of the children upon consideration of all relevant
factors, including:
(a) the children’s relationships with the parents, siblings, foster caregivers,
and any other person who may significantly affect the children,
(b) the wishes of the children, with consideration granted for their maturity,
(c) the custodial history of the children, including whether the children have
been in the custody of a public child services agency for 12 or more months in
a consecutive 22 month period,
(d) the children’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent custody
to HCJFS, and
(e) whether any of the factors in divisions (E)(7) to (11) apply in relation to the
parents and children.
{¶34} No single factor is given greater weight or heightened significance. In
re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 35.
{¶35} The magistrate and juvenile court both found that R.C.
2151.414(D)(1)(a) weighed in favor of permanent custody. The magistrate and court
acknowledged that father is bonded with M.D.G., but noted that father has not
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visited with M.K.G. since March 2018 due to Miller’s recommendation. The court
found that the children are bonded to each other and should not be separated.
Father argues that this finding of a bond between the children is unsupported by the
evidence at trial and is simply an assumption by the court.
{¶36} At trial, Hitchens testified that M.D.G. was “very receptive to [father],”
and would initiate play and affection with father. Father testified that when he had
been permitted to visit M.K.G., she was happy to see him and they were affectionate.
{¶37} However, Miller testified that reunification with father would be
“devastating” to M.K.G.’s mental health. Miller testified that M.K.G. told her that she
was scared of “daddy,” and that when Miller asked M.K.G. how she felt once her
visitations with father were suspended, M.K.G. answered, “Better.”
{¶38} The children have been together in the same foster home since May
2017, and Kennedy testified that they are doing well in the home and the foster
family wishes to adopt. Although there was no direct testimony regarding their
bond, it was reasonable for the court to assume that it would not be in their best
interest to separate them.
{¶39} The magistrate found that R.C. 2151.414(D)(1)(b) weighed in favor of
granting permanent custody. In support of her finding, the magistrate cited the
GAL’s recommendation of permanent custody. However, although the wishes of a
child may be expressed through the GAL, the GAL’s recommendation is separate and
distinct from a child’s wishes. In re P., 1st Dist. Hamilton Nos. C-190309 and C-
190310, 2019-Ohio-3637, at ¶ 37. The juvenile court found that the children are too
young to express their wishes. At the time of trial on August 19, 2019, M.K.G. was
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approximately five years old and M.D.G. was approximately two years old. The
juvenile court correctly found that R.C. 2151.414(D)(1)(b) was inapplicable.
{¶40} Under R.C. 2151.414(D)(1)(c), the 12-in-22 condition is met for both
children, and the children have been in the same foster home since the start of the
case. Thus, R.C. 2151.414(D)(1)(c) weighs in favor of permanent custody.
{¶41} Under R.C. 2151.414(D)(1)(d), the magistrate and juvenile court both
found that father was unable to provide a legally secure permanent placement. The
juvenile court found that “father has not demonstrated he is prepared or able to take
both children or will be in the near future.”
{¶42} It is undisputed that father has stable income and housing. Also,
although there appears to have been some concerns regarding substance abuse early
in the case, father tested negative in October 2017, and HCJFS has not referred
father for any screenings since. However, a legally secure permanent placement “is
more than a house with four walls. Rather, it generally encompasses a stable
environment where a child will live in safety with one or more dependable adults
who will provide for the child’s needs.” In re P. at ¶ 42, quoting Matter of K.W.,
2018-Ohio-1933, 111 N.E.3d 368, ¶ 87 (4th Dist.).
{¶43} Father did not complete the YWCA assessment until seven months
after he was referred. He did not complete the psychological evaluation until a year
after he was referred. He completed the parenting classes in March 2018, but never
completed the one-on-one parenting coaching. He did not start the individual
counseling until the end of July 2019, 16 months after he was recommended for
counseling by the YWCA assessment, three months after the motion for permanent
custody was filed, and less than one month before trial.
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{¶44} We also cannot ignore the compelling testimony of Miller, during
which she stated that she believed reunification of M.K.G. with father would be
devastating to her mental health. Father does not dispute Miller’s testimony. In fact,
father acknowledges in his brief that “the testimony of Ms. Pamela Miller regarding
the current state of M.K.G.’s mental health, coupled with the suspension of Father’s
visits with M.K.G. is a mountain of evidence to overcome.” We agree. While the
sexual-abuse allegations were unsubstantiated, there was clear-and-convincing
evidence that M.K.G. would be traumatized if father were given custody of her. Thus,
the juvenile court’s finding that father could not provide a legally secure placement
for M.K.G. was supported by clear-and-convincing evidence.
{¶45} Father contends that because there was no direct evidence of a bond
between the children, they should be split up and he should be given custody of
M.D.G. However, as stated above, it was reasonable for the juvenile court to
presume a bond between the children, and to find that it was not in their best
interest to separate them. Also, father did not complete his case plan and began
individual counseling less than a month before trial. For these reasons, the juvenile
court’s finding that father could not provide a legally secure placement for M.D.G.
was supported by clear-and-convincing evidence.
{¶46} The magistrate and juvenile court both found that none of the factors
in R.C. 2151.414(E)(7) to (E)(11) applied, and so R.C. 21515.414(D)(1)(e) was
inapplicable.
{¶47} The juvenile court’s holding that granting permanent custody to
HCJFS was in the best interest of the children was supported by clear-and-
convincing evidence and was not against the manifest weight of the evidence.
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Conclusion
{¶48} For the reasons discussed above, father’s assignments of error are
overruled and the judgment of the juvenile court is affirmed.
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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In re G. Children
Combined Opinion