In re M.H.

[Cite as In re M.H., 2022-Ohio-49.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN RE: :

M.H., et al. : CASE NOS. CA2021-08-050
CA2021-08-051
: CA2021-08-052

OPINION
1/10/2022

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 2017 JC 04951, 2017 JC 04952, and 2017 JC 05024

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellee, Clermont County Children Services

CASA for Clermont Kids, and Nathan Bell, for appellee.

Jonathan R. Sinclair, for appellant.

PIPER, P.J.

{¶1} Appellant, the biological father ("Father") of M.H., I.H., and D.H., appeals from

a decision of the Clermont County Court of Common Pleas, Juvenile Division, granting

permanent custody of his children to appellee, Clermont County Department of Job and

Family Services ("CCDJFS"). The children's biological mother ("Mother") filed a separate

appeal and is not a party to the instant action. For the reasons outlined below, we affirm
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the juvenile court's decision.

{¶2} On March 22, 2017, CCDJFS filed a neglected child complaint and requested

protective supervision of four-year-old M.H., born June 5, 2012, and three-year-old I.H.,

born July 2, 2013. The complaint alleged that CCDJFS had been working voluntarily with

the family since September 2016 due to the unsanitary and unsafe condition of their home.

CCDJFS reported that the family's trailer was infested with fleas, lice, and other bugs, and

that the children had fleas and lice in their hair along with visible bite marks on their arms

and legs. CCDJFS also stated that the family was removed from their home for a brief

period because it was soiled with dog, cat, and rabbit feces. CCDJFS further alleged that

the trailer had holes in the floor through which the ground was visible.

{¶3} CCDJFS indicated that Mother and Father were able to clean their home and

make it free from environmental hazards. However, as CCDJFS alleged, Mother and Father

soon regressed to the same issues of cleanliness. This included allegations that the trailer

was still infested with fleas. CCDJFS alleged that an agency employee who visited the

home found it cluttered and dirty, with feces on the ground. During the same visit, the

employee fell through a soft spot of the trailer's floor. During another visit, the agency

employee found smeared, dried dog feces in the children's bedroom.

{¶4} CCDJFS stated that it had obtained vouchers for the family to repair their

home and provided them with lot rent. Mother and Father, however, were slow to engage

with CCDJFS or to correct the safety problems with their home. Despite adequate income,

Mother and Father repeatedly struggled to pay bills due to their frivolous spending.

CCDJFS also alleged Mother had not engaged in mental health treatment. CCDJFS noted,

however, that the family had just recently started services with a parenting educator.

{¶5} On April 27, 2017, the magistrate adjudicated M.H. and I.H. as neglected

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children. Following this adjudication, M.H. and I.H. remained in the custody of Mother and

Father, but were subject to protective supervision by CCDJFS. The juvenile court

subsequently adopted the magistrate's recommendation on May 16, 2017.

{¶6} Throughout the pendency of this case, CCDJFS implemented multiple case

plans. These plans included requirements that Mother and Father maintain a clean and

safe living environment. In addition, Mother and Father were required to receive parenting

education, marriage counseling, mental health services for Mother, and budgeting and

household financial management. The record reveals that Mother and Father made efforts

to comply with the case plan requirements, but were ultimately unable to make the changes

necessary to keep the children in their home.

{¶7} On September 26, 2017, CCDJFS moved to change protective supervision to

emergency custody. To support its motion, CCDJFS alleged that Mother and Father had

not been able to maintain consistent compliance with the agency regarding the cleanliness

of their home, parent education, or Mother's mental health. CCDJFS stated that M.H. and

I.H. had been residing with their aunt and uncle, A.S. and M.S., since September 5, 2017,

due to safety concerns and to provide Mother and Father with time to clean the home.

CCDJFS reported that most of the floors in Mother and Father's trailer had been reinforced,

but that the trailer remained extremely cluttered and infested with bed bugs. CCDJFS also

stated that the current status of the trailer was unacceptable for an exterminator to complete

an effective extermination. Finally, CCDJFS stated that Mother was currently pregnant and

due to have her third child, D.H., in nine weeks. The juvenile court granted CCDJFS's

request for temporary custody and set the case for a dispositional hearing.

{¶8} Following the dispositional hearing, the magistrate continued the temporary

custody order. The juvenile court then adopted the magistrate's disposition decision of

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temporary custody on November 6, 2017. D.H. was adjudicated dependent on December

21, 2017, shortly after his birth. Following a dispositional hearing, D.H. was also placed in

the temporary custody of CCDJFS.

{¶9} While in the temporary custody of CCDJFS, the children resided with their

aunt and uncle, A.S. and M.S., from September 26, 2017, until July 6, 2018, when the family

was required to move to Kansas due to M.S.'s military assignment.1 The children were then

placed in a foster home from July 6, 2018, through August 13, 2018. The children's paternal

grandmother ("Paternal Grandmother") then had her home study approved and the children

were placed in her care from August 13, 2018, until May 28, 2019.

{¶10} On May 28, 2019, Mother and Father regained custody of the children under

protective supervision. In August of 2019, Mother and Father were evicted from their trailer.

Mother and Father ended their relationship at that point. Father then took the children to

live with him and Paternal Grandmother while Mother lived with a friend. On February 25,

2020, Paternal Grandmother stated that Father and the children could no longer stay with

her. That same day, Mother and Father agreed to place the children in the temporary

custody of CCDJFS. Following their placement with CCDJFS, the children were then

placed with a foster family.

{¶11} After being asked to leave Paternal Grandmother's house, Father, now back

in a relationship with Mother, was able to pay off the back rent for the lot and moved back

into the trailer. Mother and Father continued to reside in the trailer for the remainder of the

proceedings. Then, in early 2021, the children's aunt and uncle, A.S. and M.S., returned to

Ohio following M.S.'s medical discharge from the military. The children were then placed

1. D.H. was placed with A.S. and M.S. on December 4, 2017, following his birth.

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back with A.S. and M.S. on January 8, 2021, where they have remained.

{¶12} On January 28, 2021, CCDJFS moved for permanent custody of the children

and the matter proceeded to a final hearing on March 5, 2021. At the permanent custody

hearing, the state presented evidence that, despite exhaustive efforts by CCDJFS, Mother

and Father were unable to provide the children with a clean and safe living environment.

{¶13} The state presented evidence from CCDJFS caseworker, Carla Perla

Severini, who documented the procedural history of the case and discussed Mother's and

Father's case plans. Severini testified that Mother and Father "checked the box" for many

of their case plan services, but failed to improve the conditions that led to the removal of

the children. This includes, as Severini testified, the fact that Mother and Father's trailer

continues to be unsuitable and unsafe for children; the floors and surfaces were covered in

clutter and the hallways were barely passable; dishes were piled up in the sink and on the

counter while food and feces littered the floor; and multiple animals lived in the trailer and

litter boxes were not routinely changed. Severini testified that fleas and bedbugs were also

found in the home on multiple occasions. Throughout the case, Severini stated that she

informed Mother and Father about the need to maintain a clean and safe home, but that

they would blame one another for the state of the residence. Severini testified that Mother

and Father also blamed their inaction as simply being lazy and not wanting to clean.

{¶14} Severini testified that Mother and Father had completed more than 145

parenting classes, but still made no progress in their ability to parent. By comparison,

Severini testified that parents are normally scheduled for 15 classes, but that parents could

be referred for another 15 classes. More than 30 classes requires a meeting with the

agency. Severini also explained that Mother and Father attended 25 sessions of marriage

counseling, but that she had observed no change in Mother's and Father's behavior.

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Severini further testified that Mother was assessed for mental health issues and attended

some therapy, but that Mother ultimately discontinued treatment believing she no longer

needed it.

{¶15} As to budgeting, Severini stated that Mother and Father appeared to have

enough money, but that they nevertheless always fell behind on bills. This led to the August

2019 eviction. Severini acknowledged that Mother and Father had been consistent with

their visitations and that there was a clear bond between them and the children. However,

she expressed concern that the ordeal has been confusing and traumatic for the children.

{¶16} As to the children's current placement, Severini testified that the children

initially regressed upon being moved back with their aunt and uncle, A.S. and M.S., but that

they were now beginning to settle into their routine. By the time of the permanent custody

hearing, Severini stated that the children were doing well in their placement and were

happy. Severini noted that the children's medical and dental needs were being met by A.S.

and M.S. Severini testified that this included M.H. receiving counseling and I.H. receiving

medication for her ADHD diagnosis. Severini testified that M.H. and I.H. were also doing

well in school and are making friends. Severini further stated that A.S. and M.S. have

expressed an interest in adopting the children and will soon complete their training in order

to be licensed to adopt.

{¶17} The state then called Sharon Gillespie, a parent educator with Child Focus.

Gillespie testified that she worked with Mother and Father for three years, from March 2017

through March 2020. Gillespie confirmed that she completed 145 parenting sessions with

Mother and Father, but stated that they made little to no progress. Gillespie testified that

despite efforts to educate and assist Mother and Father, their trailer remained filthy and

unsuitable. Gillespie testified that she helped Mother and Father create daily checklists of

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chores and tried to help the family set up a budget. Gillespie also testified that she was

able to locate a local church to help with the trailer's electrical issues. Gillespie testified that

she even attempted to help the family relocate since the trailer had so many problems.

However, according to Gillespie, Mother and Father never followed through with anything.

Gillespie testified that she routinely talked to Mother and Father about the trauma they were

inflicting on their children by refusing to clean. Gillespie testified Mother and Father still

refused to clean and provide the children with a safe and sanitary residence.

{¶18} Next, the children's aunt, A.S., testified that she intended to adopt the children

should that opportunity become available. A.S. testified that she loves the children as her

own and that the children refer to her biological children as their brother and sister. A.S.

also acknowledged that the children still love Mother and Father, but stated that the children

need stability in their lives. A.S. testified that she and her husband, M.S., have sufficient

resources to support the children. A.S. further testified that they are currently residing with

family, but this arrangement was only temporary, as the family had just returned from

Kansas and were in the process of looking to purchase a suitable home.

{¶19} The children's Guardian ad Litem ("GAL") testified and recommended that

CCDJFS be granted permanent custody of the children. The GAL testified that Mother and

Father never made any improvements on the state of their home. The GAL also noted that

Mother and Father's trailer was always filled with clutter and garbage. The GAL testified

that the condition of Mother and Father's trailer was so bad that a path needed to be cleared

for her to enter, a condition that also prevented an exterminator from dealing with

infestations.

{¶20} After taking the matter under advisement, the magistrate granted CCDJFS's

motion for permanent custody in an entry dated June 16, 2021. Neither Mother nor Father

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filed timely objections to the magistrate's decision. Then, on July 7, 2021, Mother filed a

motion for leave to file untimely objections to the magistrate's decision. On July 13, 2021,

Father also filed a motion for leave to file untimely objections. Following a hearing, the

juvenile court denied both motions. On August 6, 2021, the juvenile court entered its final

judgment entry awarding permanent custody of the children to CCDJFS. Father now

appeals from the juvenile court's decision granting permanent custody of the children to

CCDJFS, raising two assignments of error for review.

{¶21} Assignment of Error No. 1:

{¶22} THE TRIAL COURT ERRED BY FAILING TO GRANT COUNSEL LEAVE TO

FILE OBJECTIONS OUT OF TIME, TO THE PREJUDICE OF FATHER.

{¶23} Assignment of Error No. 2:

{¶24} THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR

PERMANENT CUSTODY.

{¶25} Because we find these issues are related, we will address both of Father's

assignments of error together. In his first assignment of error, Father argues the juvenile

court erred by denying his motion for leave to file untimely objections to the magistrate's

decision. In his second assignment of error, Father alleges the juvenile court erred by

granting CCDJFS's motion for permanent custody. We find no merit to Father's

assignments of error.

{¶26} Pursuant to Juv. R. 40(D)(3)(b)(i), "[a] party may file written objections to a

magistrate's decision within fourteen days of the filing of the decision, whether or not the

court has adopted the decision during that fourteen-day period as permitted by Juv.R.

40(D)(4)(e)(i)." If no timely objections are filed, the court may adopt a magistrate's decision,

unless it determines that there is an error of law or other defect evident on the face of the

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magistrate's decision. Juv.R. 40(D)(4)(c); In re K.P.R., 12th Dist. Warren No. CA2011-03-

023, 2011-Ohio-6114, ¶ 7. However, Juv.R. 40(D)(5) permits a reasonable extension of

time "[f]or good cause shown." "'Good cause' includes, but is not limited to, a failure by the

clerk to timely serve the party seeking the extension with the magistrate's order or decision."

Id. This court reviews the juvenile court's decision denying a motion for leave to file untimely

objections to a magistrate's decision under the abuse of discretion standard. In re E.B.,

11th Dist. Lake No. 2013-L-077, 2014-Ohio-5764, ¶ 27.

{¶27} On appeal, Father alleges that a miscommunication issue prevented him from

filing objections to the magistrate's decision. In short, Father maintains that he believed

Mother's counsel was going to file timely objections to the magistrate's decision and

therefore believed that he did not need to file timely objections. Father does not explain his

rationale behind this belief. Notwithstanding, the record reflects that Mother did not file

timely objections. Both Mother and Father later filed motions for leave to file untimely

objections. After taking the matter under advisement, the juvenile court denied their motions

and adopted the magistrate's decision awarding CCDJFS permanent custody.

{¶28} Following review, we find the juvenile court did not abuse its discretion in

denying Father's motion for leave to file untimely objections. In the present case, the

magistrate's decision plainly states that objections must be filed within 14 days of the filing

of the magistrate's decision. In bold letters, the decision states the consequences of not

filing timely objections:

A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE
COURT'S ADOPTION OF ANY FACTUAL FINDING OR
LEGAL CONCLUSION, WHETHER OR NOT SPECIFICALLY
DESIGNATED AS A FINDING OF FACT OR CONCLUSION OF
LAW UNDER JUV. R. 40(D)(3)(A)(ii), UNLESS THE PARTY
TIMELY AND SPECIFICALLY OBJECTS TO THAT FACTUAL
FINDING OR LEGAL CONCLUSION AS REQUIRED BY JUV.

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R. 40(D)(3)(b).

{¶29} Despite the clear language, Father chose not to file timely objections. His

argument on appeal – that there was an alleged miscommunication as to who should file

objections – does not rise to the level of "good cause" as required by Juv. R. 40. See In re

D.F., 10th Dist. Franklin Nos. 18AP-811 and 18AP-813, 2019-Ohio-3710, ¶ 12. There is

nothing in the record to support a finding that Father was unfairly prevented from timely

filing objections. Moreover, it is unclear why Father chose to rely on Mother's

representations that she intended to object instead of preserving his rights by filing timely

objections. As a result, we find the juvenile court did not err by denying Father's motion to

file untimely objections. However, even if we had found otherwise, we would still conclude

that any error was harmless due to the lack of prejudice. This is because, we find the

juvenile court's decision granting permanent custody is supported by clear and convincing

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

{¶30} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental

rights and award permanent custody of a child to a children services agency if the court

makes findings pursuant to a two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-

248, 2014-Ohio-2580, ¶ 9. First, the juvenile court must find that the grant of permanent

custody to the agency is in the best interest of the child, utilizing, in part, the factors of R.C.

2151.414(D). In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21.

Second, pursuant to R.C. 2151.414(B)(1)(a) to (e), the juvenile court must find that any of

the following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has

been in the temporary custody of the agency for at least 12 months of a consecutive 22-

month period; (4) where the preceding three factors do not apply, the child cannot be placed

with either parent within a reasonable time or should not be placed with either parent; or (5)

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the child or another child in the custody of the parent from whose custody the child has

been removed, has been adjudicated an abused, neglected, or dependent child on three

separate occasions. In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709,

¶ 10.

{¶31} In this case, M.H., I.H., and D.H. have been in the temporary custody of

CCDJFS for more than 12 months of a consecutive 22-month period at the time CCDJFS

filed its motion for permanent custody. Therefore, we move to consideration of the best

interest factors. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 12

("Only one of [the R.C.2151.414(B)] findings must be met to satisfy the second prong of the

two-part permanent custody test").

{¶32} When considering the best interest of a child in a permanent custody hearing,

the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant factors.

This includes, but is not limited to, (1) the interaction and interrelationship of the child with

the child's parents, siblings, relatives, foster caregivers and out-of-town 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; (3) the custodial history of the

child; (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 to the agency; and (5)

whether any of the factors listed in R.C. 2151.414(E)(7) to (11) apply in relation to the

parents and child.

{¶33} Initially, with respect to the children's relevant interactions and relationships

with those who may significantly impact their young lives, the record reflects that the

children have regularly visited their parents and are bonded with them. The children are

also bonded with Paternal Grandmother. However, the children are also well bonded with

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their foster family, their aunt and uncle, A.S. and M.S. The children resided with A.S. and

M.S. from September 2017 until July 2018 when the couple had to relocate due to M.S.'s

military assignment. When M.S. was medically discharged, the family returned to Ohio and

regained temporary custody of the children in January 2021. The children have remained

in A.S. and M.S.'s care ever since.

{¶34} During the hearing, A.S. testified that she has had a relationship with the

children since they were very young and loves them as her own. A.S. stated that she and

M.S. picked D.H. up from the hospital following his birth. The children also get along well

with A.S. and M.S.'s two biological children and refer to each other as brothers and sisters.

Throughout the pendency of these proceedings, A.S. and M.S. have committed to raising

the children as their own via adoption and are in the process of becoming a licensed to

adopt foster home.

{¶35} In considering R.C. 2152.414(D)(1)(c), D.H. is only four years old and was

unable to express his wishes in any meaningful way. The GAL reported that the nine-year-

old M.H. and the seven-year-old I.H. want to return home with their parents, Mother and

Father. The magistrate gave some weight to the wishes of M.H. and I.H. but stated that

their wishes may not be an accurate reflection of their best interest in the long term

considering the home, which the magistrate described as "barely habitable, and at best,

cluttered, bug ridden and unsanitary."

{¶36} With respect to R.C. 2151.414(D)(1)(c), the children have been in the

temporary custody of the agency for 12 or more months of a consecutive 22-month period.

More troubling, however, is the repeated uncertainty that the children have faced since

September 2016.

{¶37} The children were originally placed in protective supervision while Mother and

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Father were given time to clean their trailer and provide a safe and sanitary home for their

children. After that failed, the agency obtained temporary custody of the children and placed

them with their aunt and uncle, A.S. and M.S., until the family was forced to relocate due to

M.S.'s military assignment. The children were then placed with their Paternal Grandmother

following a brief period with another foster family until they were returned to Mother and

Father's care in May 2019. In August 2019, the family was evicted from their trailer and

Father and the children went to live with Paternal Grandmother. The children were later

returned to CCDJFS' custody on February 25, 2020, and sent to a foster home. A.S. and

M.S. then returned to Ohio and have been able to provide a suitable and safe environment

for the children ever since.

{¶38} In considering R.C. 2151.414(D)(1)(d), the record reflects that the children

need a legally secure placement, that the agency can provide the necessary legally secure

placement, and that such placement is the only way the children's needs can be achieved.

Despite assistance from the agency and having been given ample opportunities, Mother

and Father have demonstrated that they are unable to maintain a safe and appropriate

residence for their children. The agency has been involved since September 2016, yet

Mother and Father have been unable to provide the children with a safe, stable, consistent

environment. Mother and Father have a history of eviction and not being able to pay their

bills even with agency assistance. Their trailer was consistently unsanitary and unsafe with

multiple infestations of fleas, lice, and bed bugs. The home was so thoroughly cluttered

and covered in debris that an exterminator could not treat the residence. Mother and Father

were given more than four years to remedy the very serious conditions of their home.

Instead of rectifying the problems, Mother and Father blamed each other and relied on

excuses that they were just lazy. Despite being repeatedly told that they needed to get their

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home in order to get their children back, they simply did not take the necessary corrective

actions.

{¶39} Based upon its consideration of the R.C. 2151.414(D)(1) factors, the

magistrate found by clear and convincing evidence that an award of permanent custody to

CCDJFS was in the children's best interest. The juvenile court adopted the magistrate's

decision finding no error on the face of the decision. Now, on appeal, Father argues that

the decision awarding permanent custody was not supported by clear and convincing

evidence. Father maintains that there is no evidence that the children were harmed by the

condition of the home. Father also argues that he and the children are well bonded, and

that the children's placement with their aunt and uncle, A.S. and M.S., is not in their best

interest.

{¶40} However, after carefully and thoroughly reviewing the record in this case, we

find the state presented clear and convincing evidence that the best interest of the children

is served by granting permanent custody to CCDJFS. Though Father completed some

case plan requirements, it is well established that the completion of certain case plan

requirements does not preclude a grant of permanent custody. In re Mraz, 12th Dist. Brown

Nos. CA2002-05-011 and CA2002-07-014, 2002-Ohio-7278, ¶ 13; In re S.U., 12th Dist.

Clermont No. CA2014-07-047, 2014-Ohio-5166, ¶ 35 ("case plan is merely a means to a

goal and not a goal in itself").

{¶41} In the present case, Father cannot provide the children with a clean and safe

environment or provide for their basic needs. As this court has previously stated, parents

are "afforded a reasonable, not an indefinite, period of time to remedy the conditions

causing the children's removal." In re C.M., 12th Dist. Clermont No. CA2016-07-051, 2017-

Ohio-57, ¶ 26. Father has been given ample opportunities to rectify the situation but has

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been unable or unwilling to correct the deplorable, unsanitary, and dangerous condition of

their home. See, e.g., In re B.S., 12th Dist. Fayette Nos. CA2018-06-011 and CA2018-06-

012, 2018-Ohio-4385, ¶ 23 (permanent custody awarded because of failure to provide a

clean and safe environment). The record reflects that the children need a legally secure

placement and Father has demonstrated that he cannot maintain a safe and appropriate

residence for them. To the contrary, the children have received appropriate care and are

bonded with their aunt and uncle, A.S. and M.S.

{¶42} In light of the foregoing, we find the juvenile court's decision was supported

by the evidence and find no error in the juvenile court's decision to grant permanent custody

to CCDJFS. Father's two assignments of error are without merit and are overruled.

{¶43} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

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