[Cite as In re E.H., 2022-Ohio-1682.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: E.H. : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 2022CA00007
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
case no. 2020JCV00898
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 18, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
BRANDON WALTENBAUGH DEAN L. GRASE
STARK CO. DJFS 700 Courtyard Centre
402-2nd St. SE 116 Cleveland Ave. NW
Canton, OH 44702 Canton, OH 44702
[Cite as In re E.H., 2022-Ohio-1682.]
Delaney, J.
{¶1} Appellant Father appeals from the December 21, 2021 Judgment Entry of
the Stark County Court of Common Pleas, Family Court Division, overruling his motion to
extend temporary custody of the minor child, E.H., and granting permanent custody of
E.H. to appellee Stark County Department of Job and Family Services (“Agency”).
FACTS AND PROCEDURAL HISTORY
{¶2} E.H. was born on August 28, 2020, to Mother, who is not a party to this
case. The Agency became involved with E.H. upon his birth when the child and Mother
both tested positive for cocaine. Mother lost permanent custody of one child and has lost
legal custody of other children. Additional concerns for Mother include untreated mental
health problems, substance abuse, and homelessness. Mother has been diagnosed with
bipolar disorder and unspecified schizophrenia.
{¶3} Mother did not initially provide the name of the child’s biological father.
Procedural history
{¶4} The Agency assigned a Caseworker to the matter at the intake level on
August 29, 2020; E.H. was removed from Mother on August 31, 2020, and has remained
in the temporary custody of the Agency throughout the duration of this case.1 That day,
the Agency filed a complaint alleging the dependency and/or neglect of E.H. On
September 3, 2020, an emergency shelter care hearing was held and E.H. was placed in
the emergency temporary custody of the Agency.
1
Mother was provided with case plan services, mostly related to her mental health, which
she did not complete. Mother has not engaged in any case plan services and is difficult
to track due to her unhoused status. Mother has been arrested multiple times since the
initiation of the instant case and did not participate in the case at the trial level.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶5} Mother eventually revealed Father’s name to her attorney and Caseworker
located him. Father was established as the father of E.H. following DNA testing and the
case plan was amended to include services for him.
{¶6} At an adjudication hearing on November 30, 2020, Father stipulated to a
finding that E.H. was a dependent child. Temporary custody of E.H. was granted to the
Agency.
{¶7} On December 23, 2020, Father filed a motion for custody of E.H. A review
hearing was held on February 26, 2021; Father withdrew his motion and status quo was
continued.
{¶8} On July 19, 2021, Father filed a second motion for change of legal custody.
{¶9} On July 29, 2021, the Agency filed a motion for permanent custody of E.H.
A review hearing was held on July 30, 2021, and the trial court concluded there were no
compelling reasons to preclude the request for permanent custody.
{¶10} A hearing on the motion for permanent custody was scheduled for
September 28, 2021, and then continued to November 4, 2021.
{¶11} On November 3, 2021, Father filed a motion to extend temporary custody.
{¶12} The trial court rescheduled the permanent custody hearing for December
14, 2021.
{¶13} On that date, the trial court heard evidence on Father’s motions for legal
custody and extension of temporary custody, and on the Agency’s motion for permanent
custody.
[Cite as In re E.H., 2022-Ohio-1682.]
Evidence adduced from the permanent custody hearing
{¶14} Father was established as the father of E.H. following DNA testing and the
case plan was amended to include services for him.
{¶15} Father was to complete a parenting evaluation at Lighthouse with Dr.
Thomas. Father did complete the evaluation. Dr. Thomas’ further recommendations
were conveyed to Father by Caseworker and included the following: see a neurologist
and obtain medication for his seizure disorder; complete Goodwill Parenting; and go to
Melymbrosia.
{¶16} Caseworker testified that Father was not receptive to Dr. Thomas’
recommendations when she discussed them with him several times; Father “voiced * * *
resistance” to engaging in services and told Caseworker she “was making this up.” T.
17-18. Father also did not sign releases of information.
{¶17} Caseworker described difficulties in implementing the case plan with
Father. Father did not engage in services at Melymbrosia (anger management) until the
Agency filed a motion for permanent custody of E.H. Father told Caseworker he was
under the care of a neurologist, but she later learned he has not been seen by a
neurologist since 2011 or 2012. Father said he went to Coleman for services, but in
reality, he attended Coleman over 10 years ago and records were no longer accessible.
He also said he went to Melymbrosia when in fact he did not. T. 18. Father frequently
gave conflicting information within the space of a single visit.
{¶18} Caseworker’s concern was that these issues with Father originated with
neurological issues, not a general lack of truthfulness. On a visit, Father did not recognize
the longtime caseworker. Father repeated the same phrases throughout visits. Father
[Cite as In re E.H., 2022-Ohio-1682.]
did not remember the child’s diaper size from week to week. Caseworker noted that at
times, Father attended visitations smelling strongly of marijuana and admitted he smoked
marijuana; he said he had a medical card. He never provided any documentation that he
is prescribed medical marijuana. Caseworker asked Father to complete a Commquest
assessment due to the marijuana use, and Father complied; Father was also subjected
to random drug screens and tested positive for marijuana use. Father readily admits to
continued marijuana use and continues to claim it is prescribed without showing
documented proof of any such prescription.
{¶19} Caseworker’s concern with Father’s short-term memory, “as an assessor of
risk,” is whether he is impaired by chronic marijuana use or by a seizure disorder.
Evaluation by a neurologist would help determine the answer to this question.
{¶20} In terms of Father’s seizure disorder, Caseworker has been given
conflicting information. Father does receive social security and told Caseworker he had
a traumatic brain injury. At other times, Father denied the traumatic brain injury and
seizure disorder. Father did sign a release permitting Caseworker to view a neurological
evaluation, but she did not recall the diagnosis. T. 28.
{¶21} Father does have adequate housing, although Caseworker indicated she
has problems with people coming in and out of the home, including Mother. Caseworker
testified Father has provided inconsistent information about his continued contact with
Mother and does not recognize the severity of Mother’s mental health concerns. At one
point, Father told Caseworker, “You know I will have [E.H.] until Mother gets better, right?”
T. 49.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶22} Caseworker has concerns with Father’s overall behavior; when he is
confronted with information he disagrees with, Father is resistant, sometimes to the point
of becoming combative. Father has hung up on Caseworker when she has attempted to
discuss case plan services on the telephone, and has “yell[ed] and scream[ed]” at
Caseworker and her supervisor that he doesn’t need to do services.
{¶23} Caseworker testified that Melymbrosia treatment for anger management is
absolutely vital in this case. The permanent custody motion was filed in July, and Father
began Melymbrosia in August. As of the permanent custody hearing, Melymbrosia was
still an active case plan objective; the doctor leading the program told Caseworker he has
met with resistance from Father, who was kicked out of the group at one point. Father
had minor attendance issues and has been “fairly resistant” to treatment services, course
correction and feedback. T. 24.
{¶24} Caseworker testified that completion of Goodwill Parenting is a requirement
of Father’s case plan, but she is unable to refer him to Goodwill Parenting until he
completes Melymbrosia.
{¶25} Father completed a parenting program at Pregnancy Choices on his own
initiative. Caseworker testified this is a program typically for pregnant mothers and that
she told Father it is not equivalent to Goodwill Parenting.
{¶26} Caseworker testified that she is concerned about Father’s criminal history
and familiarity with Belmont, a correctional facility.2
2
Caseworker was asked to relate Father’s criminal history and Father objected, arguing
the information was hearsay. The trial court sustained the objection because Caseworker
did not have a certified copy of Father’s criminal history. Instead, she testified Father told
her he is “very well-known at Belmont,” a correctional facility. T. 26-27. Father’s criminal
history is discussed in more detail infra regarding the GAL report.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶27} Father does have supervised weekly one-hour visits with E.H. at the Agency
which were initiated after paternity was established. Caseworker testified Father brings
items to visits for E.H. and engages with the child, getting him to smile and laugh; E.H.
appears very happy with Father and “is thrilled to interact with people in general.” T. 29.
Caseworker testified Father comes to visitation smelling very strongly of marijuana, which
is a concern, and sometimes has to be redirected; Father is not receptive to redirection.
{¶28} Upon cross-examination, Caseworker acknowledged she received Dr.
Thomas’ report and recommendations on June 28th and the Agency filed the motion for
permanent custody on July 29, 2021. Caseworker noted she did discuss elements of the
recommendations with Father on May 5, but under the broadest interpretation of the
timeline, Father had two months to attempt to complete case plan services before the
permanent custody motion was filed. Goodwill Parenting alone is ten to twelve weeks to
complete, but Caseworker pointed out that Father didn’t make enough progress for her
to make a referral to Goodwill Parenting.
{¶29} Upon redirect, Caseworker testified Father hung up on her during the May
5 call when she initially told him what services were recommended; she talked to him
again in June, and sent the amended case plan to him, but Father did not engage in
services at that time, nor would he sign releases of information, so she had no reason to
believe he would attempt the case plan. Caseworker was willing to seek an extension of
the case plan, but Father has not complied to the extent that he could complete the case
plan even if he were given a 6-month extension.
{¶30} Caseworker further acknowledged Father was referred to Commquest due
to her concerns with substance abuse, but he had no further recommendations. Father
[Cite as In re E.H., 2022-Ohio-1682.]
does have income and housing, but he has not yet completed Melymbrosia, although he
has started it. Father did obtain items for E.H. from the parenting classes he voluntarily
attended at Pregnancy Choices, including a car seat and pack-n-play.
{¶31} Caseworker acknowledged Father signed a release for her to review a
neurological assessment dated July 25, 2012. The form stated Father was diagnosed
with alcohol withdrawal seizures and a “complex partial seizure with secondary
generalized seizure which may be alcohol related,” but she did not have concerns for
Father’s current alcohol use.
{¶32} Father also provided Caseworker with names of several relatives for
placement, but she testified that the paternal relatives were not considered for placement
because E.H. is presently in a kinship placement with ties to his maternal family. Paternal
Grandmother participated in video visitation and indicated she would be willing to have
placement of E.H.
{¶33} Upon further inquiry, Caseworker testified E.H. is in a placement with his
maternal half-sibling and has visitation regularly with other maternal half-siblings.
{¶34} Dr. Aimee Thomas of Lighthouse Family Center, a psychologist, testified
about her parenting evaluation of Father at the permanent custody hearing. She described
Father as defense in his approach to the structured clinical interview; he denied problems
with anger management “despite a criminal history that suggested otherwise.”
T. 63. Thomas was concerned about a reported seizure disorder combined with
marijuana usage, on top of meeting the needs of an infant child who would need proactive
supervision. Father has six biological children and was incarcerated while most of them
were young so he did not have experience as a primary caretaker for young child.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶35} Father’s responses to Thomas’ questions were inconsistent regarding his
substance abuse and its role in his criminal history. Overall Thomas opined Father
needed to consult a neurologist about his apparent memory issues and whether they
arose from substance abuse (marijuana) or an alleged seizure disorder for which he was
not presently being treated. He would also have to stop using marijuana if he did have a
seizure disorder. Father also reported problematic use of alcohol in the past and was
inconsistent in his responses about his current use of alcohol.
{¶36} Father had a significant history of criminal offenses including aggravated
robbery and domestic violence; he also had repeated incarcerations.
{¶37} Thomas’ ultimate diagnoses of Father were cannabis use disorder; other
specified personality disorder with anti-social traits; seizure disorder; and an identified
memory impairment. She recommended that Father participate in Goodwill Parenting
and Melymbrosia; obtain a neurological evaluation to address the seizure disorder with
appropriate medication; monitor the memory impairment; and abstain from marijuana
unless it is prescribed and not affecting his memory.
{¶38} Upon cross-examination, Thomas acknowledged Father’s criminal history
was from 1998 to 2003, and she didn’t personally observe significant memory issues.
However, Thomas noted that a neurological evaluation from 2012 would not have
alleviated her concerns, although the evaluation was not provided to her.
{¶39} Dr. Steve Dean, the clinical director of Melymbrosia, testified about Father’s
participation in his agency’s domestic violence treatment group. The goal of the program
is to instill members with strategies for dealing with conflict more effectively and to develop
self-awareness in terms of risk factors for violent behavior. The ultimate goal is to turn
[Cite as In re E.H., 2022-Ohio-1682.]
members away from impulsive reactions that are physically and verbally aggressive.
Father’s attendance rate is around 75 percent and he has completed 7 or 8 sessions out
of 18 total. Dean was concerned about Father’s participation in the group, however;
Father was insistent that he has never been physically aggressive with a woman, but
when Dean sought to validate that statement with voice stress analysis, Father made
excuses not to participate. Father also has more than one domestic violence conviction
so Dean doubts his story that none of those incidents are with a partner. He described
Father as argumentative and difficult to redirect; at one point, Father was asked to leave
the group. Father is compliant but does not have insight into why he needs group therapy;
he is quick to become defensive and has not made significant progress.
{¶40} Father testified on his own behalf. He stated he was “shocked” when he
was notified that he might be E.H.’s father and was required to take a DNA test. He is a
50 year-old single male. Father acknowledged he has six biological children and was in
prison for a total of five years; he was released from prison in 2003. He has not been the
primary caretaker of any of his children, although he has provided for them; he believes
strongly that children should be raised by their family members. He admits he was
defensive with caseworkers and the Agency but he has trust issues with the system; he
realizes, overall, that the Agency is working to ensure his child is raised in a safe
environment and he supports that goal. He wants to see E.H. more often. He denied
that he has ever used corporal punishment with any of his children. His prior domestic
violence conviction involved his brother.
{¶41} Father acknowledged arguing with the caseworker about his child’s foster
parent; he asked whether the foster parent is vaccinated and testified he has heightened
[Cite as In re E.H., 2022-Ohio-1682.]
anxiety because of the pandemic. He wants to be able to see his child, and thus has tried
to isolate himself to stay healthy to do so. He described the Melymbrosia session he was
asked to leave; he became highly anxious after another group participant described Covid
symptoms and Father was the only person in the room wearing a mask.
{¶42} Father admitted use of marijuana.
{¶43} Father testified that he contacted Goodwill Parenting and learned he
needed a referral, which he couldn’t obtain because the caseworker would not provide
one. He thought Parenting Choices might serve as an alternative and he completed their
program.3
{¶44} Upon cross-examination, Father was asked to explain his delay in starting
services, and he responded that he didn’t trust the caseworker and wanted to wait to see
what the Court would say.
{¶45} Father was questioned about his criminal history. A domestic violence
conviction from 1998 was against his brother, but from 2014 was against a woman; a
1992 felonious assault charge was no-billed but was against his romantic partner at the
time; and 2008 charges of aggravated menacing and telecommunications harassment
was against his “baby’s mom.”
{¶46} Caseworker testified about her knowledge of E.H., an African-American
child who was less than two years old at the time of the hearing. E.H. is developmentally
on target and will be walking soon. He does not have special needs and presently resides
in an Agency-licensed foster home with his foster mother and his biological brother
(“Brother”). Brother has been adopted by Foster Mother, and she is interested in adopting
3
“Parenting Choices” is in fact “Pregnancy Choices.”
[Cite as In re E.H., 2022-Ohio-1682.]
E.H. as well. E.H. is described as a pleasant, happy child who is very attached to Brother.
Brother also visits with his maternal half-siblings who are in the custody of Maternal
Grandmother. E.H. has resided in this foster home since his removal from Mother on
August 31, 2020.
{¶47} Caseworker visits E.H. in the foster home monthly and describes him as
“very loved.” He and Brother play with toys, smile, and giggle. He has his own room and
his needs are being met.
{¶48} Caseworker asked Father about family placements for E.H. several times
and encouraged Father to collect information on potential placements and to email the
information to her. They also discussed allowing time during visitation for family members
to be included. Father did not come forth with any information, though, until the motion
for permanent custody was filed; then he filed a motion for change of legal custody to his
mother, brother, and sister.
{¶49} The Agency reached out to these paternal relatives with letters asking
whether they would like to maintain connections with E.H. through visitation, but not
through placement, because E.H. is already in a kinship placement. Additional kinship
studies are not generally performed when a child is already in a kinship placement.
Paternal Grandmother did respond to the Agency’s letter and did become involved in
video visits with E.H. Caseworker testified that E.H. is placed with a relative and has
made efforts to encourage ongoing communication with extended family members. T.
122-123.
{¶50} Father visits E.H. for one hour every week. Caseworker testified the visits
go well generally, but Father has issues with redirection and sometimes focuses on minor
[Cite as In re E.H., 2022-Ohio-1682.]
issues as E.H.’s needs change as he grows older. Father also comes to visits smelling
of marijuana.
{¶51} Caseworker testified that Father clearly loves E.H. and there is a bond
between father and son.
{¶52} Caseworker further testified that E.H. would benefit from adoption; the
benefit of permanency outweighs severing any bond that he has with Father. E.H.
deserves to have his needs met on a routine basis and to have ongoing relationships with
all of his siblings.
{¶53} Caseworker further opined that an extension of time would not be in E.H.’s
best interest because she has not seen case plan services which would allow her to
advocate for an extension. The overall risk of harm, in her opinion as an assessor of risk,
has not been reduced. Father has been provided a case plan with case plan services to
demonstrate his commitment to working toward reunification with the child, including
demonstrating an ability to meet this child’s needs while also meeting his own. Father
has not made enough progress on the case plan, in Caseworker’s estimation, for the case
plan to move forward. T 130-131.
{¶54} The overall risk of harm which has not been reduced is lack of engagement
with case plan services leading to the inability to complete the Goodwill Parenting
program and subsequent recommendations. Caseworker testified she reviewed the
Lighthouse recommendations with Father in May but he didn’t engage with services until
August; she addressed the recommendations with him verbally, sent him a letter
containing the recommendations, and the numbers he needed to call to engage in
services. She sent him the amended case plan and pertinent information to engage in
[Cite as In re E.H., 2022-Ohio-1682.]
services. She reviewed the information again with Father and her supervisor to clarify to
him that for the Agency to advocate for reunification, she needed to see engagement.
The failure to engage, much less complete the case plan in a timely manner,
demonstrated a lack of commitment to E.H., in her opinion. T. 133. Father is reactive
and struggles to accept feedback; Goodwill Parenting is essential to overcoming these
issues because raising a child as young as E.H. is stressful. Based upon her own
interactions with Father, Caseworker is not convinced that Father’s responses to E.H. in
a stressful situation would be appropriate. T. 133.
{¶55} If permanent custody was granted, paternal family members would still be
able to have contact with E.H. T. 126.
{¶56} Paternal Uncle testified on Father’s behalf and said he is a good father who
wants to be involved in the lives of his children. Father has provided for his children and
uses the support of his extended family when he needs to. Paternal Uncle has been
married for 20 years and has three daughters; in his estimation, Father is capable of being
a good parent to E.H. and his other children. Father has extended family in Ohio and
also in South Carolina, all of whom are willing and able to assist him in caring for E.H.
Paternal Uncle has not personally had contact with E.H. due to his job status but he will
be retiring in 18 months. E.H.’s extended family including aunts, uncles, and cousins
want to have contact with him.
{¶57} In the best-interest portion of the hearing, Father testified that he has had
about 50 visitations with E.H. and the visits go well but are too short. He feels very bonded
to E.H. He admitted he has had issues with income instability and alcohol abuse in the
past, but has learned from his mistakes and is stable now. He has not been charged with
[Cite as In re E.H., 2022-Ohio-1682.]
a crime since he stopped drinking. Father is willing to maintain E.H.’s relationship with
Brother who currently resides with him in the foster home.
{¶58} Paternal Grandmother also testified on Father’s behalf and said he is a
good father to his six children. Paternal Grandmother is not seeking custody of E.H. but
hopes to maintain a relationship with him regardless of the outcome of the hearing.
Report of the Guardian Ad Litem (GAL)
{¶59} The record contains a GAL report dated October 26, 2021, in which the GAL
recommends that the trial court grants the Agency’s motion for permanent custody. The
report offers additional information regarding Father’s other children and his criminal
history. Father has two minor children including E.H. and the others are adults; Father
has not raised the other children. His past criminal history includes possession of
marijuana (2016), domestic violence/intimidation of attorney/victim/witness (2015)
resulting in a 12-month jail sentence; drug abuse-marijuana (2014); domestic violence
(2014); domestic violence (2005); and additional criminal offenses including domestic
violence in the period from 1990 to 1998. The GAL report does not specify whether this
offenses are merely charges or convictions, other than the 2015 domestic
violence/intimidation for which he served jail time.
{¶60} The GAL report also contains further insight into Father’s visitation with E.H.
Father attends the weekly visits and brings needed items such as diapers, wipes, and
snacks. Father “has arrived at most visits with a very strong odor of marijuana on his
person or clothing.” Father asks the same questions weekly, such as how much the child
weighs and when is his next doctor’s visit. “Father appears not to remember the
information from week to week.” GAL Report, 4. Foster Mother began sending a journal
[Cite as In re E.H., 2022-Ohio-1682.]
each week documenting E.H.’s milestones information about the week; Father was asked
to bring the journal home, read it, and return it with any questions he might have for Foster
Mother. Father said he is not taking time out of his visits to write questions, but was told
he could take the journal home with him to do so. Father has failed to engage with this
process. Father has suggested many times that his older children and extended family
members visit with E.H.; the Agency has attempted to set up family visitation times but
Father has not cooperated. Father’s urine screens have been positive for marijuana and
Father acknowledges daily marijuana use. Father claims to have a medical marijuana
card but has not produced it for the GAL.
{¶61} Father reported seizures to the GAL and said he was medicated by
Coleman Professional Services, but that organization was unable to verify. Father states
Coleman approved his use of marijuana for seizures.
{¶62} Father reported visits to a neurologist in Tallmadge for treatment for
seizures, but the GAL was unable to locate or verify any such provider. Father was
recommended to receive an updated neurological evaluation but has not done so.
{¶63} Father disputed what Caseworker and the GAL told him about Dr. Thomas’
recommendations for further case services. Father became verbal and aggressive with
the GAL when making his disagreement with the recommendations known. Caseworker
contacted Dr. Thomas in the GAL’s presence to inquire whether Thomas told Father
anything different than the contents of the report; Thomas replied that she has not had
any contact with Father, personally, by telephone, or otherwise, since he left her office on
the day of the evaluation.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶64} The GAL concludes in pertinent part, “Father cannot safely protect and raise
[E.H.]. Father has failed to comply with case plan services by failing to get [a] proper
medical evaluation to assure [E.H.’s] safety while in Father’s care.” Further,
It is in [E.H’s] best interest for the court to grant the agency’s motion
for permanent custody which will assure that [E.H.] is raised in a safe loving
home with his brother, with the continued opportunity to continue bonding with
his maternal family. Foster mother is willing to engage with Father and his
family as she does with maternal family if the court grants the agency’s
permanent custody motion and she has the privilege of adopting [E.H.].
Trial court grants permanent custody to the Agency
{¶65} On December 21, 2021, the trial court journalized an entry granting the
Agency’s motion for permanent custody.
{¶66} Father now appeals from the December 21, 2021 Finding of Fact and
Conclusions of Law of the Stark County Court of Common Pleas, Family Court Division.
{¶67} Father raises one assignment of error:
ASSIGNMENT OF ERROR
{¶68} “THE TRIAL COURT’S DECISION DENYING PLAINTIFF-APPELLANT’S
MOTION TO EXTEND TEMPORARY CUSTODY PURSUANT TO O.R.C. 2151.415(D)
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶69} In his sole assignment of error, Father argues the trial court should have
granted his motion to extend temporary custody for the purpose of allowing him to
complete case plan services. We disagree.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶70} Father argues that once he became aware he is conclusively E.H.’s father,
he began working on case plan services: he obtained the Lighthouse parenting evaluation
with Dr. Thomas and the CommQuest substance abuse evaluation. Father completed
the Daybreak Treatment Program recommended by CommQuest, and did not have
further substance abuse treatment recommendations.
{¶71} Regarding Thomas’ Lighthouse evaluation, though, Father argues he
received it on June 28, 2021, and the Agency filed for permanent custody twenty-nine
days later. Although Father enrolled in Melymbrosia per the recommendation, he could
not have successfully completed the program in time. Father concedes he did not enroll
in and complete Goodwill Parenting, but he could not do so until Caseworker made a
referral, and she could not make a referral until he completed Melymbrosia. Instead,
Father argues, he completed Pregnancy Choices on his own initiative.
{¶72} Father contends the evidence admitted at the hearing demonstrates he met
the conditions set forth in R.C. 215.415(D) to be granted a six-month extension of
temporary custody to complete the case plan. For the following reasons, we disagree.
Standard of review
{¶73} R.C. 2151.415(D)(1) authorizes the trial court to extend temporary custody
for six months only if it finds, by clear and convincing evidence, that such an extension is
in the best interest of the child and that “there has been significant progress on the case
plan of the child, and there is reasonable cause to believe that the child will be reunified
with one of the parents or otherwise permanently placed within the period of extension.”
[Cite as In re E.H., 2022-Ohio-1682.]
{¶74} We review a trial court's decision of a motion to extend temporary custody
for abuse of discretion. Matter of C.K., 5th Dist. Muskingum No. CT2020-0027, 2020-
Ohio-5437, ¶ 21, citing In re E.T., 9th Dist. Summit No. 22720, 2005-Ohio-6087, ¶ 9.
{¶75} An abuse of discretion connotes more than a mere error in law or judgment;
it implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial
court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An
abuse of discretion may be found where the reasons given by the court for its action are
clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment
reaches an end or purpose not justified by reason and the evidence. In Re: M.M., 5th
Dist. Stark No. 2021CA00159, 2022-Ohio-1569, ¶ 32, citing Tennant v. Gallick, 9th Dist.
Summit No. 26827, 2014-Ohio-477, ¶ 35, additional citations omitted.
{¶76} The Agency responds that, because of the delay in scheduling the
permanent custody hearing, a six-month extension of temporary custody would only have
lasted until March 2022, because the original complaint was filed on August 31, 2020,
and, under R.C. 2151.353(G), the Agency’s temporary custody of the child would have
ended on March 26, 2021, and the six-month extension would have ended on August 31,
2021. This date was only approximately ten weeks after the permanent custody hearing.
{¶77} Our inquiry, therefore, is whether Father demonstrated, by clear and
convincing evidence, that an extension was in the best interest of E.H.; there was
significant progress on the case plan; and there was reasonable cause to believe E.H.
would be reunified with Father within approximately ten weeks. See, In Re: M.M., 5th
Dist. Stark No. 2021CA00159, 2022-Ohio-1569, ¶ 34.
[Cite as In re E.H., 2022-Ohio-1682.]
Requirements for award of permanent custody
{¶78} 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.
{¶79} 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;
[Cite as In re E.H., 2022-Ohio-1682.]
(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 * * *.
{¶80} 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.
Parental placement within a reasonable time: R.C. 2151.414(B)(1)(a)
{¶81} 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 N.E.2d 738;
In re Hurlow, 4th Dist. Gallia No. 98 CA 6, 1997 WL 701328 (Sept. 21, 1998); In re
Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr. 10, 1991).
[Cite as In re E.H., 2022-Ohio-1682.]
{¶82} 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 be placed outside the
child's home. In determining whether the parents have substantially
remedied those conditions, the court shall consider parental
[Cite as In re E.H., 2022-Ohio-1682.]
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,
intellectual disability, 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;
***
(16) Any other factor the court considers relevant.
{¶83} 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 child, and the testimony of the witnesses at trial. The trial court was in the best position
to determine the credibility of the witnesses.
{¶84} In the instant case, the detailed findings in the December 21, 2021
Judgment Entry and the entire record in this matter make it apparent the trial court relied
on several of the factors in R.C. 2151.414(E), including R.C. 2151.414(E)(1), failure to
remedy conditions and R.C. 2151.414(E)(2), chronic mental illness or chemical
dependency. See, In re B.W., 5th Dist. Tuscarawas No. 2016 AP 09 0045, 2017-Ohio-
605, ¶ 39, appeal not allowed, 149 Ohio St.3d 1409.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶85} The trial court noted Father was not receptive to Caseworker’s
recommendations, at one point stating he wasn’t sure if completing the case plan was
“worth it” and disbelieving what Caseworker told him about Dr. Thomas’
recommendations. Father refused to sign releases and didn’t start case plan services
until the Agency filed for permanent custody. Despite offering numerous services, Father
was unable or unwilling to mitigate the concerns that led to the child's removal and
delayed the onset of case plan services necessary for him to reunite with E.H.
{¶86} A parent's successful completion of the terms of a case plan is not
dispositive on the issue of reunification. See, In Re: M.M., 5th Dist. Stark No.
2021CA00159, 2022-Ohio-1569, ¶ 42. The ultimate question under R.C. 2151.414(A)(1)
is whether the parent has substantially remedied the conditions that caused the child's
removal. Id., citing In re Schigelski, 11th Dist. Geauga No. 99–G–2241, 2000 WL
1568388(Oct. 20, 2000). A parent can successfully complete the terms of a case plan
yet not substantially remedy the conditions that caused the children to be removed—the
case plan is simply a means to a goal, but not the goal itself. Hence, the courts have held
that the successful completion of case plan requirements does not preclude a grant of
permanent custody to a social services agency. In re J.L., 8th Dist. No. 84368, 2004–
Ohio–6024, ¶ 20; In re Mraz, 12th Dist. Nos. CA2002–05–011, CA2002–07–014, 2002–
Ohio–7278. In the case of In re: Summerfield, 5th Dist. Stark 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. In Re: M.M., supra, 2022-Ohio-1569, ¶ 42.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶87} The evidence demonstrated Father said one thing but did another; for
example, he said he was seeing a neurologist but wasn’t; he came to visitation smelling
of marijuana and freely admitted using it daily, but failed to produce a medical card; he
reported attendance at Coleman which was in fact over 10 years ago. The concerns with
Father’s criminal history have not been alleviated. His statements to Caseworker indicate
he lacks insight about the extent of Mother’s untreated mental health issues.
{¶88} Father’s defensiveness and combativeness at various stages indicate his
lack of progress with case plan services. He became loud and combative with
Caseworker and the GAL at times. He has been resistant to feedback and course
correction at Melymbrosia, where he has not completed treatment for anger management.
Father did not begin services at Goodwill Parenting but instead completed Pregnancy
Choices, which the trial court reasonably found was not an equivalent substitute.
{¶89} The trial court found that, regardless of Father's compliance with aspects of
his case plan, he was still not able to be a successful parent to this child or protect the
child.
{¶90} We find there is competent and credible evidence to support the trial court's
determination that the child cannot be placed with Father within a reasonable time or
should not be placed with Father.
Reasonable efforts
{¶91} The Supreme Court of Ohio noted the following in In re C.F., 113 Ohio St.3d
73, 78, 862 N.E. 2d 816 (2007):
[N]o one section of the Revised Code addresses the concept
of reasonable efforts. Overall, Ohio's child-welfare laws are designed
[Cite as In re E.H., 2022-Ohio-1682.]
to care for and protect children, ‘whenever possible, in a family
environment, separating the child from the child's parents only when
necessary for the child's welfare or in the interests of public safety.’
R.C. 2151.01(A). To that end, various sections of the Revised Code
refer to the agency's duty to make reasonable efforts to preserve or
reunify the family unit. For example, R.C. 2151. 412 requires the
agency to prepare and maintain a case plan for children in temporary
custody with the goal ‘to eliminate with all due speed the need for the
out-of-home placement so that the child can safely return home.’
Under R.C. 2151.413(D)(3)(b), an agency may not file for permanent
custody under R.C. 2151. 413(D) - the ‘12 months out of 22 rule’‘[i]f
reasonable efforts to return the child to the child's home are required
under section 2151. 419’ and the agency has not provided the
services required by the case plan.
{¶92} A “reasonable effort” is “* * * an honest, purposeful effort, free of malice and
the design to defraud or to seek an unconscionable advantage.” In re Weaver, 79 Ohio
App.3d 59, 63, 606 N.E.2d 1011(12th Dist. 1992). The issue is not whether there was
anything more the agency could have done, but whether the agency's case planning and
efforts were reasonable and diligent under the circumstances of the case. In re J.D., 3rd
Dist. Hancock Nos. 5-10-34, 2011-Ohio-1458. The child's health and safety are
paramount in determining whether reasonable efforts were made. In re R.P., 5th Dist.
Tuscarawas No. 2011-Ohio-5378.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶93} R.C. 2151.419 requires the trial court to determine whether the agency filing
the complaint for custody “has made reasonable efforts * * * to eliminate the continued
removal of the child from his home, or to make it possible for the child to return home.”
Subsection (B)(1) mandates the trial court to issue written findings of fact setting forth the
reasonable efforts made by the agency, including a brief description of “the relevant
services provided by the agency to the family of the child and why those services did not
prevent the removal of the child from his home or enable the child to return home.”
{¶94} However, even where a trial court has failed to include in its judgment entry,
the findings contemplated by R.C. 2151.419(B)(1) we have found that the ultimate issue
is the reasonableness of the Department's efforts, and have concluded those efforts may
be determined from the record. In the matter of Kell/Bess Children, 5th Dist. No.
97CA0278, 1998 WL 401767 (Mar. 23, 1998); Hunt v. Ickes, 5th Dist. Tuscarawas No.
2014 AP 08 0032, 2015-Ohio-309, ¶ 19; In Re: M.M., supra, 5th Dist. Stark No.
2021CA00159, 2022-Ohio-1569, ¶ 49.
{¶95} In the instant case, we find there is competent and credible evidence to
support the trial court's determination the Agency’s efforts were reasonable and diligent
under the circumstances of the case. The trial court found that neither parent has made
significant progress on the case plan. As applicable to Father, the trial court noted the
risks of Father’s memory problems, his inability to regulate his emotions, his lack of insight
into how his actions affect others, his lack of insight into Mother’s mental health issues,
and his inability to parent a young child such as E.H. have not been alleviated at all.
Father was presented with the case plan and ongoing recommendations but has not
followed those recommendations. The trial court noted there is an ongoing concern with
[Cite as In re E.H., 2022-Ohio-1682.]
Father’s behavior; Caseworker and others legitimately believe Father’s behavior poses a
risk to E.H.; and the trial court agrees with that belief. Father has made minimal progress
to reduce risk to E.H. because there has been no true change in his ability to regulate his
emotions.
{¶96} We find that the record supports that the Agency was working toward the
goal of reunification and find no evidence of dishonest purpose, conscious wrongdoing,
or breach of duty on the part of the Agency, which made a good faith effort to reunify
Father and his child. Furthermore, the record contains clear and convincing evidence to
support the court's determination that the child could not be placed with Father.
Best interest of the child
{¶97} An agency that seeks permanent custody of a child bears the burden of
proving by clear and convincing evidence that the grant of permanent custody is in the
child's best interest. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 26.
R.C. 2151.414(D)(1) sets out a non-exhaustive list of factors the court must consider:
{¶98} R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child's best interests would be served by granting the permanent
custody motion. These factors include but are not limited to: (1) the interrelationship of
the child with others; (2) the wishes of the child; (3) the custodial history of the child; (4)
the child's need for a legally secure placement and whether such a placement can be
achieved without permanent custody; and (5) whether any of the factors in divisions (E)(7)
to (11) apply.
{¶99} The factors in R.C. 2151.414(E)(7) through (11), which are referred to in
R.C. 2151.414(D)(1)(e), involve a parent's having been convicted of or pleaded guilty to
[Cite as In re E.H., 2022-Ohio-1682.]
specific criminal offenses against the child, the child's sibling or another child who lived
in the parent's household; a parent's withholding medical treatment or food from the child;
a parent's repeatedly placing the child at substantial risk of harm because of alcohol or
drug abuse; a parent's abandoning the child; and a parent's having had parental rights as
to the child's sibling involuntarily terminated.
{¶100} No one element is given greater weight or heightened significance.
In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816. R.C. 2151.414(D)(1)
does not require a juvenile court to make specific findings regarding each best-interest
factor listed in R.C. 2151.414(D)(1) or to include in its decision or judgment entry a written
discussion of each of those factors. In re: A.M., Slip Opinion No. 2020-Ohio-5102,
2020WL6439610 (Nov. 3, 2020), ¶33.
{¶101} A child's best interests are served by the child being placed in a
permanent situation that fosters growth, stability, and security. We have frequently noted,
“[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. No. 2000CA00244,
2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642
N.E.2d 424 (8th Dist. 1994).
{¶102} Caseworker testified it would be in the child's best interests to be placed
in the permanent custody of the Agency, and this testimony is consistent with the report
of the GAL. The trial court noted E.H. has been in the same placement since his removal
from Mother only days after his birth; he is placed with a biological brother whom
[Cite as In re E.H., 2022-Ohio-1682.]
he adores. Foster Mother maintains a connection with Mother’s extended family. E.H. is
easygoing, happy, and loved.
{¶103} The Agency investigated relative placement for E.H. Caseworker asked
Father for pertinent information three times, but Father did not substantively respond
until the Agency filed for permanent custody. We do note the relatives were not
considered for placement because the Agency deemed E.H. to already be in a kinship
placement, but Father’s extended family was considered for visitation. Paternal
Grandmother has had video visitation with E.H.
{¶104} Regarding Father’s interaction with E.H., there is a bond between father
and son. Father started weekly supervised visits in January 2021 at the Agency. Father’s
love for E.H. is evident, although he sometimes requires redirection and will sometimes
argue with staff. Rather than spend time with E.H., Father will focus upon the argument.
Father comes to visitation smelling strongly of marijuana.
{¶105} Considering the many obstacles in Father's life the trial court found
the child's need for a legally secure placement cannot be achieved without permanent
custody.
{¶106} Nothing in the record before us demonstrates that more time or a return
of custody to the Father will in any way benefit the child.
{¶107} In the present case, the trial court concluded the child's need for legally
secure placement could not be achieved without awarding permanent custody to the
Agency. Upon review of the record, the record supports the trial court's finding that
granting the motion for permanent custody is in the child's best interest.
[Cite as In re E.H., 2022-Ohio-1682.]
{¶108} In short, the juvenile court's judgment entry demonstrates that the court
satisfied its statutory duty to consider the best interest factors set out in R.C.
2151.414(D)(1)(a) through (e).
{¶109} For these reasons, we find that the trial court's determination that Father
had failed to remedy the issues that caused the initial removal and therefore the child
could not be placed with him within a reasonable time or should not be placed with him
was based upon competent credible evidence and is not against the manifest weight or
sufficiency of the evidence. We further find that the trial court's decision that permanent
custody to the Agency 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.
{¶110} We further find that the record does not establish that there was clear and
convincing evidence that a six-week extension would have been in the child's best
interest, that there had been significant case plan progress, or that reunification was likely.
{¶111} Because the evidence in the record supports the trial court's judgment,
we overrule Father’s sole assignment of error. The decision of the Stark County Court of
Common Pleas, Family Court Division is affirmed.
[Cite as In re E.H., 2022-Ohio-1682.]
CONCLUSION
{¶112} Father’s sole assignment of error is overruled and the judgment of
the Stark County Court of Common Pleas, Family Court Division is affirmed.
By: Delaney, J.,
Wise, Earle, P.J. and
Baldwin, J., concur.