In re M.K.

[Cite as In re M.K., 2023-Ohio-97.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES:
: Hon. Earle E. Wise, P.J.
M.K. : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
A.K. :
:
E.K. : Case Nos. 22CA000034
: 22CA000035
: 22CA000036
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Court of Common Pleas, Juvenile
Division, Case No. 20JC00255

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 12, 2023

APPEARANCES:

For Plaintiff-Appellant W.K. For Defendant-Appellee GCCS

JEANETTE M. MOLL MELISSA WILSON
P.O. Box 461 1009 Steubenville Ave.
Zanesville, Ohio 43702 Cambridge, Ohio 43725

For Guardian Ad Litem For CASA/GAL

RICHARD D. HIXSON CHERYL GADD
3808 James Court, Suite 2 801 Wheeling Avenue
Zanesville, Ohio 43701 Cambridge, Ohio 43725
Guernsey County, Case Nos. 22CA000034,35,36 2

Baldwin, J.

{¶1} Father, W.K., appeals the decision of the Guernsey County Common Pleas

Court, Juvenile Division, granting appellee Guernsey County Children’s Service’s motion

for permanent custody of her three children, M.K., E.K., and A.K.

STATEMENT OF THE FACTS AND THE CASE

{¶2} Guernsey County Children’s Services, (GCCS) began providing services to

W.K. and his family in October 2018 after receiving allegations of child neglect and abuse.

The family received assistance from the children’s school, an organization called Creative

Options, the Board of Developmental Disabilities and GCCS.

{¶3} Jenny Antill of the Guernsey County Board of Developmental Disabilities

began working with the family in May 2019 assisting with their son, M.K.’s, behaviors and

developing a plan to identify his needs and strengths. She observed that M.K. repeatedly

attempted to run away, used extreme vulgar/sexualized language, was physically

aggressive, acted out and destroyed property. At school he would attack people and other

students, would attempt to bite them and acted out sexually. Though her focus was M.K.,

she was concerned about the behavior of W.K.’s daughter, E.K. E.K. stripped naked and

ran around the house. She ripped the couch cushions and tried to eat the padding from

inside the cushions. E.K. was so disruptive that Antill took a colleague to a visit to deflect

E.K.’s physical attempts to intervene in her meeting with M.K.

{¶4} W.K. and the mother of the children, A.P., disclosed to Antill that they were

not confident they could parent M.K. and deal with his behaviors. Antill arranged for

services to come to the home and assist with M.K. and while W.K. and A.P. would accept

recommendations, they did not consistently apply the information provided. Antill recalled
Guernsey County, Case Nos. 22CA000034,35,36 3

that “[w]e would make a suggestion and they would do it maybe for a week and then it

just kind of fell off the charts.” (Trial Transcript, p. 43, lines 4-6).

{¶5} During one visit, Mother mentioned to Antill that A.K. suffered seizures and

Antill explained that A.K. may qualify for services if Mother would obtain a written

diagnosis regarding the seizures, but Mother never provided the diagnosis.

{¶6} W.K. and A.P. executed a voluntary agreement of care with GCCS in July

2020, and the agreement was renewed twice. (Juv.R. 38(A)(1). Despite the services

provided, the parents were unsuccessful in caring for the children. GCCS sought

temporary custody and obtained an ex parte order on October 1, 2020 granting GCCS

temporary custody. The trial court found the children dependent (Journal Entry, Dec. 15,

2020) and at the dispositional hearing ordered that they remain in the temporary custody

of GCCS and approved the case plans for the parents. (Journal Entry, Jan. 11, 2021).

{¶7} The case plan included a requirement that W.K. complete a mental health

assessment at the provider of his choice, a parenting assessment and that he follow any

recommendations included in those assessments. He was asked to attend a parenting

class to assist him with parenting his three children and he was obligated to demonstrate

that he could provide a safe and stable home for the children. He was also asked to

demonstrate that he could provide for the children’s basic needs including nutrition,

shelter, clothing, bedding, supervision, medical and educational needs.

{¶8} GCCS moved for permanent custody on September 15, 2021, but

requested that motion be dismissed without prejudice in February 2022. A second motion

for permanent custody was filed on February 25, 2022 and amended March 1, 2022.

GCCS contended that the parents had failed to remedy the issues that resulted in the
Guernsey County, Case Nos. 22CA000034,35,36 4

children being removed from the home despite receiving services from a number of

different agencies during the voluntary agreement of care and during the time the children

were in temporary custody of GCCS. The motion also described each child’s mental

health status and their placement in residential treatment.

{¶9} GCCS offered testimony regarding the diagnoses of each child as well at

their behavioral issues at the hearing on the motion for permanent custody.

The Children’s Status

{¶10} GCCS discovered that each child suffered serious mental health diagnoses

and their behaviors made placement with foster parents untenable. They were first placed

into a foster home as a group, but it soon became evident that M.K.’s behavior with his

sister’s required a separate placement. He was not only physically abusive to his foster

parents, he was also acting-out sexually with his sisters, and frequently engaged in

“humping” his sisters, an action imitating sexual intercourse. M.K.’s behaviors lead to an

institutional placement where he was closely monitored and where he has had more

success in controlling his inappropriate behavior.

{¶11} The two girls, E.K. and A.K. were initially kept together, but their behaviors

overwhelmed the ability of foster parents to provide care and supervision and they were

separately placed in residential facilities that had the resources to manage their behavior

and provide therapy.

M.K.

{¶12} Danielle Oddo, M.K.’s therapist, described his initial diagnosis as ADHD,

oppositional defiant disorder, and unspecified mood disorder. He committed repeated

sexually vulgar behaviors that led to his being restrained once or twice every day. He has
Guernsey County, Case Nos. 22CA000034,35,36 5

made improvement, but this eleven-year-old is still in a sexual aggressor’s therapy group,

aggressive replacement training group, and individual therapy and is taking three

medications to address his behaviors. When M.K. is prepared to leave his current

residential placement, Oddo recommended “a therapy to foster home, preferably one

that's foster to adopt. Somebody that -- ideally a two-parent home that has experience

with children transitioning out of residential services. If not, someone willing to work with

us in therapy to allow the transition to be smooth.” (Trial Transcript, p. 75, lines 1-6). She

expected M.K. to need therapy for a period of time and an environment with a consistent

schedule and regimen.

E.K.

{¶13} M.K.’s sister, E.K., had mental health issues as well and was treated by

Kristina Morgan beginning on June 13, 2022. E.K. came to Morgan with a diagnosis of

post-traumatic disorder, attention-deficit/hyperactivity disorder, adjustment disorder, and

disruptive mood dysregulation disorder. This seven-year-old girl receives two-and-a-half

hours of mental health, day-treatment group each day and individual therapy twice a

week. She meets with a psychiatric nurse practitioner at least once a month. She receives

daily nursing services, and community supportive psychiatric treatment and is taking two

medications.

{¶14} E.K. has made improvement, but it is limited. She too was transferred to a

residential facility after unsuccessful placements in foster homes. Initially she was striking

staff or peers every two hours, but now she can control her assaults for one-half of the

day before she lashes out. She is now taking her medication instead of refusing them or

spitting them out. Once she has sufficiently improved and can be released from residential
Guernsey County, Case Nos. 22CA000034,35,36 6

placement, she would need one-on-one care, structure and firm boundaries and further

individual, family and group counseling.

A.K.

{¶15} A.K., now ten years old, has also suffered significant problems. Her

therapist, Jacqueline Witzberger, noted that she had poor attention span, difficulty staying

on task, significant sleep issues and significant anxiety initially, then began exhibiting

significant sexual acting-out behaviors and sexualized behaviors prior to the hearing on

permanent custody. She had urinated on herself and in hallways. She defecated in the

hallways and had eaten her own feces. She is stripping clothing off and engaging in

sexual acts or mimicking sexual acts with other children.

{¶16} A.K. was diagnosed with ADHD, unspecified type; post-traumatic stress

disorder; simple febrile convulsions; and behavioral insomnia of childhood, sleep onset,

association type.

{¶17} A.K. has an Individualized Education Plan and receives speech therapy.

She participates in CSPT (Community Supportive Psychiatric Treatment) groups that

assist her with life skills and social development seven days a week. She participates in

recreational therapy groups seven days a week and attends a psychotherapy group

provided by a licensed professional counselor five days a week. She receives individual

therapy at least twice a week and she sees a psychologist twice every month. At the time

of the hearing she had been prescribed five medications to address mental health issues

and her inability to sleep.
Guernsey County, Case Nos. 22CA000034,35,36 7

{¶18} A.K.’s progress has stalled as she deals with stages of grief and she is

currently exhibiting anger at people in her family and “at where her life is now.” Her

therapist felt this was a typical occurrence in residential placement since “Residentials

are facilities for the children who have had the most traumatic, darkest early childhood

experiences. They can't function in the community safely. And so, they come in with a

host of difficulties and struggles and issues. And they go through periods of time where

you see them play out those behaviors, those situations, those events in their life.” (Trial

Transcript, p. 89, lines 17-24).

{¶19} Once A.K. is able to leave her residential placement, her therapist

recommended intensive home-based services so that she has people that are in the

home providing support to the family and to her, so she feels safe. A.K. will require

continued psychiatric care for medication management and specialized education

services.

{¶20} Each child has extensive needs that require the attention of several

professionals and each is under constant close supervision. Each is progressing as

expected in their separate residential placement, and the record shows that placement of

the children together would not be safe and would interrupt their progress toward

recovery.

FATHER’S PROGRESS

{¶21} Father completed a mental health assessment with Dr. Aimee Thomas on

July 8, 2020, prior to the children being taken into custody, and she diagnosed him as

suffering from major depressive disorder recurrent severe, and unspecified personality
Guernsey County, Case Nos. 22CA000034,35,36 8

disorder. Dr. Thomas was not confident that he would be able to apply any parenting

techniques he was taught as a result of the learning issues and functional illiteracy that

her testing and interview disclosed. W.K. did concede that managing his children’s

behaviors was difficult and, when asked about his methods to address their behavior, he

explained that he would “whip the children” and that he was advised by another county

agency to “whip [his son’s] butt in particular.” (Thomas Deposition, p. 14, lines 19-21).

{¶22} W.K. had not obtained housing for his children by the hearing date and

instead was saving money to put toward a new truck to replace his failing vehicle. At the

time of the hearing he was living in his truck and had been working toward finding housing

for his family, but altered his plan to focus on obtaining a camper.

{¶23} Father did complete a parenting program, but did not express a clear

understanding of the breadth of the problems experienced by the children. He was unable

to recall their birthdays and could not “verbalize” their diagnoses. He believed they were

in GCCS custody because they were homeless. The facilitator of the class would only

state that he “participated” and that he struggled with reading and writing.

{¶24} Father is still dealing with his diagnosis of depression and has only been

able to “talk a little more openly and process the ongoing issues that are happening with

the children being removed and how it's been affecting his functioning.” (Trial Transcript,

p. 233, lines 10-13).

{¶25} GCCS acknowledged that Father was cooperative and completed goals in

the case plan, but contended that he was not prepared to assume responsibility for the

children. The guardian ad litem and the Court Appointed Special Advocate for the children

agreed that the parents were not capable of parenting the children.
Guernsey County, Case Nos. 22CA000034,35,36 9

{¶26} The guardian ad litem recommended that the children be placed in the

permanent custody of the GCCS, focusing on the serious behavioral issues suffered by

the children and the parents’ apparent difficulty in applying rudimentary parenting

techniques as a result of their own mental health issues. He noted that the behaviors of

each child were challenging the skills of persons trained to counsel and treat troubled

children and that the children were in facilities that provided constant supervision. The

parents were struggling with their own mental health and could not provide the guidance

and support that one child needed and would be overwhelmed by the task of caring for

all three.

{¶27} The guardian ad litem also expressed concern that if the children were

returned to the parents, the children’s sexualized behaviors would not be controlled. He

reported that Mother overestimated her ability to care for the children and placing them

together would not be safe for the children and would exceed her ability to care for them.

{¶28} The Court Appointed Special Advocate (CASA) for the children came to the

same conclusion. She recommended that the court grant permanent custody to GCCS

because:

* * each child is in treatment, residential treatment, their case plans all three

outline trauma therapy due to posttraumatic stress. They have displayed

sexualized behaviors. And they even -- in the beginning of this case the

agency tried to put the girls together but had to split them up because of

their sexualized behaviors and acting out. So to protect the children, they

had to be split, the girls did. And they're each on medication that has to be

given accordingly as ordered, not missed. By testimony we heard
Guernsey County, Case Nos. 22CA000034,35,36 10

yesterday, that even the father had to be taken off his medication because

he would forget to take his meds. And these children must have their

medication on time. It is part of their treatment regime.

Trial Transcript, p. 348, line 13 to p. 349, line 3

{¶29} She concluded that Mother lacked the ability to parent these high needs

children due to her cognitive ability, her lack of insight into each child's medical diagnosis,

mental health issues, and the children’s need for medication, structure and consistency.

She noted that the children need a structured environment that the parents cannot

provide:

In part, Mother, her heart's in the right place, but I don't believe she

has the insight into what these needs are for her children. In her own words,

she said, they just need love, I need to be kind, I need to pick my battles.

Every day would be a battle. She forgets. And these children had issues

when they came into care. [M.K.’s] doing better, but he's a long way to go.

[E.K.] is just starting residential treatment and starting to cooperate a little

bit. She still has good days, bad days. And [A.K.] is a child in crisis.

Trial Transcript, p. 349, lines 13-24

{¶30} She confirmed that neither parent appreciated the severity of the children’s

behaviors, and that, even with additional time, the children could not be reunited with their

parents because once they complete residential treatment, they will need a therapeutic

foster home to continue to address their needs. And she discounted the complaint that

visitation had been stopped by observing that the children improved when visitation

ended. M.K. still had phone contact, but it was brief and was usually ended by him.
Guernsey County, Case Nos. 22CA000034,35,36 11

{¶31} The CASA was also concerned by Mother’s use of medical marijuana to

self-medicate and feared it would impact her ability to parent. Mother was legally using

medical marijuana under the supervision of a physician, but neither the physician nor any

other expert testified as to its purpose. Mother asserted that the medical marijuana helped

relieve the “blackouts” she claimed to have experienced, where her vision was interrupted

for a period of time. She explained that they were not true blackouts, but acknowledged

that her vision was affected and mentioned that an unidentified hospital recommended

that she “get to neurology for it” but she had not seen a neurologist prior to the hearing.

Aimee Thomas, a licensed psychologist who evaluated A.P. on June 22, 2022, affirmed

the need for a neurological consult to resolve this issue.

{¶32} The trial court took the matter under advisement and issued a journal entry

on August 24, 2022 granting the motion for permanent custody. After a thorough analysis

of the testimony and evidence, the trial court concluded that:

The Court finds that these children have been subjected to much

trauma, neglect and abuse in their young lives. Father denies all wrong

doing and mother has remained silent about this issue from the start. On

the one hand, the parents admit they have problems addressing their

children’s behaviors. On the other hand, they don’t accept responsibility for

much of the trauma. Mother and Father have limited insight into their own

mental health concerns. The Court does not believe, based on the

testimony and evidence presented, that they truly understand the

magnitude of the challenges their children face. The Court does not find the

testimony of either parent to be credible as to how they got to this place or
Guernsey County, Case Nos. 22CA000034,35,36 12

how they plan to remedy the problems that resulted in the children being

removed.

Journal Entry, August 24, 2022, p. 17

{¶33} The trial court also found that GCCS made reasonable efforts to finalize a

permanency plan and to eliminate the continued removal of the children from the home

and have attempted to make it possible for the children to return home, but the parents

were unable to remedy the reasons leading to the removal of the children. The court found

that it was in the best interest of the children that the parental rights of the Father and

Mother were terminated and that permanent custody be granted to GCCS.

{¶34} The Father filed a timely appeal and submitted two assignments of error:

{¶35} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILDREN BE SERVED BY THE GRANTING OF

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE AS GCCS FAILED TO USE REASONABLE

EFFORTS.”

{¶36} “II. THE TRIAL COURT ERRED WHEN, DESPITE A CONFLICT

BETWEEN THE CHILDREN’S WISHES AND THEIR ALLEGED BEST INTEREST, THE

COURT FAILED TO APPOINT COUNSEL FOR THEM FOR THE PERMANENT

CUSTODY HEARING THEREBY DEPRIVING THEM OF THEIR CONSITUTIONAL

(SIC) RIGHTS.”

{¶37} “III. THE TRIAL COURT ERRED WHEN, DESPITE A CONFLICT

BETWEEN THE CHILDREN’S WISHES AND THEIR ALLEGED BEST INTEREST, THE

COURT FAILED TO APPOINT COUNSEL FOR THEM FOR THE PERMANENT
Guernsey County, Case Nos. 22CA000034,35,36 13

CUSTODY HEARING THEREBY DEPRIVING THEM OF THEIR CONSITUTIONAL

(SIC) RIGHTS.”

STANDARD OF REVIEW

{¶38} As to our standard of review, generally we review the trial court’s decision

in this context for abuse of discretion. We would examine the entire record and determine

whether there is sufficient competent and credible evidence to support the judgment

rendered by the trial court. Seasons Coal Company v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1978). Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).

The trial court must resolve disputed issues of fact and weigh the testimony and credibility

of the witnesses. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990). We

would defer to the trial court's discretion because the trial court had the opportunity to

observe the witnesses and parties in weighing the credibility of the proffered testimony in

a way a reviewing court cannot.

BURDEN OF PROOF

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

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

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

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

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

rights has been described as, “* * * the family law equivalent to the death penalty in a

criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).

Therefore, parents “must be afforded every procedural and substantive protection the law

allows.” Id.
Guernsey County, Case Nos. 22CA000034,35,36 14

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

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

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

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

It is intermediate, being more than a mere preponderance, but not to the extent of such

certainty as required beyond a reasonable doubt as in criminal cases. It does not mean

clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d

23 (1986).

{¶41} 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.

{¶42} Following the hearing, R.C. 2151.414(B)(1) 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
Guernsey County, Case Nos. 22CA000034,35,36 15

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;

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

able to take permanent custody; or

(d) the child has been in the temporary custody of one or more public

children services agencies or private child placing agencies for twelve or

more months of a consecutive twenty-two-month period, or the child has

been in the temporary custody of one or more public children services

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period and, as described in division (D)(1) of

section 2151.413 of the Revised Code, the child was previously in the

temporary custody of an equivalent agency in another state.

{¶43} 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.

I.
Guernsey County, Case Nos. 22CA000034,35,36 16

{¶44} In his first assignment of error, the Father contends In his first assignment

of error, the Father contends that the judgment of the trial court that the best interests of

the minor children would be served by the granting of permanent custody was against the

manifest weight and sufficiency of the evidence as GCCS failed to use reasonable efforts.

He contends that “reasonable efforts requires more than handing a parent a list of

services and then putting the entire responsibility on the parent to find and complete the

service yet that is what happened here.” (Appellant’s Brief, p. 1). He concludes that

termination of his visitation within the year prior to the permanent custody hearing

interfered with his ability to reunify and that GCCS’s referral to Goodwill Parenting in

Canton to address the special needs of the children was not reasonable due to the

prohibitive cost and the lack of transportation.

{¶45} Overall, Ohio's child welfare laws are designed 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, including the

requirement that the agency prepare and maintain a case plan with the goal to eliminate

the need for the out-of-home placement so that the child can safely return home (R.C.

2151.412) and the burden on the agency to prove it made reasonable efforts to prevent

the child's removal (R.C. 2151.419).

{¶46} The agency's duty to use reasonable efforts applies only to efforts to avoid

removal of a child from their home or to reunify the child with the family following removal.

In re Warren, 5th Dist. Stark No.2007CA00054, 2007-Ohio-5703. While the agency did
Guernsey County, Case Nos. 22CA000034,35,36 17

not have to show reasonable efforts at the permanent custody hearing, to the extent that

the trial court relied on R.C. 2151.414(E)(1) at the permanent custody hearing, the court

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

the parents when considering whether the child cannot and should not be placed with the

parent within a reasonable time. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862

N.E.2d 816, ¶ 42. 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 No. 5-10-34,

2011-Ohio-1458, ¶ 14. The child's health and safety is paramount in determining whether

reasonable efforts were made. In re R.P., 5th Dist. Tuscarawas No. 2011AP050024,

2011-Ohio-5378, ¶ 47.

{¶47} The Father’s argument that GCCS failed to make reasonable efforts is

undermined by his listing of the portions of the case plan he completed. The Father

completed his mental health assessment, attended Mid-Ohio then Cedar Ridge for

counseling, completed a parenting assessment and parenting class, was employed at

Salt Fork Lodge and Conference Center, tested negative for illegal substances and

signed all releases. The Father also completed an assessment with Mike Humphrey at

Cedar Ridge regarding sexual assault and there were no recommendations for treatment.

W.K. concluded that he “made substantial, consistent progress on his case plan

objectives” but maintains that “the agency failed to utilize reasonable efforts, reasonable

case planning, and diligent efforts” without a clear explanation of the argument supporting

that conclusion or what actions he contends would be required to establish reasonable

efforts.
Guernsey County, Case Nos. 22CA000034,35,36 18

{¶48} While he did complete requirements contained within the case plan, the

Father did not obtain housing for himself or his children and was living in his vehicle. He

was aware that his case plan required him to obtain housing, but he abandoned that goal

and had planned to buy a newer vehicle, then sought help obtaining a camper. At the

hearing on the motion for permanent custody the Father stated he was willing to obtain

housing for the children if they were placed with him, but he was not interested in obtaining

that housing without some guarantee that they would be returned to his custody. Some

unidentified individuals told him that he would never be allows to have them again, and

he concluded “To me, if I can't have a place -- I mean, my kids back, no sense making

somebody else rich. I could get a camper and live in that.” (Trial Transcript. p. 261, In 12-

14). GCCS made reasonable efforts to assist W.K. in his effort to obtain housing, but he

chose to place his own needs over the needs of his children.

{¶49} Father’s suggestion that the reference to a prohibitively expensive parenting

class prevents a finding that GCCS used reasonable efforts is not supported by the facts

in the record. The program that was discussed at the hearing was described as a sixteen

week program for multiple evenings each week. The testimony of Dr. Aimee Thomas

regarding the parents’ cognitive abilities and mental health issues in conjunction with the

described behaviors of the children individually and as a group provided a reasonable

basis for the trial court to conclude that parents would not be able to successfully apply

what they learned and that they would once again be overwhelmed by the challenge of

raising these children in one home. Dr. Thomas, speaking in the context of basic parenting

class, stated that “[g]iven concerns with both [M.K.’s] learning issues, as well as [A.P.]

issues, I had concerns that they would be able to recite information but not necessarily
Guernsey County, Case Nos. 22CA000034,35,36 19

apply it.” (Thomas Deposition, p. 13, line 25 to p. 14, line 3). The trial court could

reasonably conclude that the same concern would apply to a more intensive parenting

program.

{¶50} Further, the representative from GCCS clarified that the motion for

permanent custody was not filed because the parents did not complete the parenting

class. (Trial Transcript, p. 182, lines 13-16).

{¶51} Consequently, the trial court’s finding that reasonable efforts were made is

not undermined by the failure to finance the parent’s participation in a program that Dr.

Thomas contended the parents may not be able to apply.

{¶52} We also find that the termination of visitation does not have any impact on

the finding of reasonable efforts. First, the Father provides only a conclusion that it

interfered with reunification, but no argument to support his conclusion. GCCS halted

visitation and noted that the behavior of the children improved. On February 28, 2022

Father filed a motion requesting the trial court order visitation, noting that he last visited

M.K. and E.K. in August 2021. The trial court found “[n]either the Agency, the CASA nor

the GAL would recommend any visitation with the parents and the children based upon

the current situation. Clearly, these children have many problems as the result of the

parenting, or the lack of parenting of the Mother and Father. The best interests of the

children dictate that there be no visitation with the children until further order of this court.”

(Journal Entry, July 1, 2022, p. 3). The children’s health and safety are the paramount

concern when evaluating reasonable efforts and the trial court’s ruling is consistent with

that requirement. In re R.P., supra.
Guernsey County, Case Nos. 22CA000034,35,36 20

{¶53} We have reviewed the entire record and find that the trial court did not abuse

its discretion in finding that agency's case planning and efforts were reasonable and

diligent under the circumstances of the case and the best interests of the children would

be served by granting permanent custody. The parents took advantage of the services

and recommendations of GCCS, but the underlying problems that led to the removal of

the children from the home nevertheless were not resolved.

{¶54} The first assignment of error is denied.

II.

{¶55} The Father combines the second assignment of error with the first and the

delineation between the argument is not as clear as it might be. The stated assignment

of error is “ There was not clear and convincing evidence for the trial court to find that the

minor children should not be placed with appellant and that it was in the minor children’s

best interest to be placed in the permanent custody of Guernsey County Children’s

Services” but we interpret his brief as arguing that he made substantial consistent

progress on his case plan and, therefore, the court could not conclude that the children

could not be placed with their parents within a reasonable time. As to the best interest,

the Father argues that that trial court failed to adequately consider the wishes of the

children and failed to appoint legal counsel for the children.

{¶56} The record shows that the children were taken into the custody of GCCS on

October 1, 2020, adjudicated dependent December 15, 2020 and remained in the

custody of GCCS until February 25, 2022, the day the motion for permanent custody was

filed, so the children have “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
Guernsey County, Case Nos. 22CA000034,35,36 21

consecutive twenty-two-month period * * *.” R.C. 2151.414(B)(1)(d). The trial court also

found that the children could not be placed with the either of the child’s parents within a

reasonable time, and that finding is supported by the record. The CASA offered

unrebutted testimony that the children could not be reunified with the parents if they were

given additional time, and the evidence of the mental health issues that afflict each family

member supports that conclusion. Consequently, we find that the trial court did not err

when it found that the children cannot be placed with either of the child's parents within a

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

{¶57} The trial court moved to an analysis of the best interest of the children,

referring to the elements described in 2151.414(D)(1)(a)-(e). The trial court completed a

thorough analysis of the facts supporting its conclusion for each of the elements listed in

2151.414(D)(1) and concluded that the children needed a legally secure placement that

could not be achieved without a grant of permanent custody to the agency. The trial court

provided a succinct analysis of its findings in a concluding paragraph:

The Court finds that GCCS has made diligent and reasonable efforts

to finalize a permanency plan for M.K., A.K. and E.K. by providing referrals

for service, exploring kinship, case management, and exploring

permanency planning. GCCS has made reasonable efforts to eliminate the

continued removal of the minor children and have attempted to make it

possible for the children to return home to the mother and/or father. The

parents have been unable to remedy the reasons for the children being

removed in the first place. GCCS has established a safe, stable and secure

environment for M.K., A.K., and E.K.
Guernsey County, Case Nos. 22CA000034,35,36 22

Journal Entry, Aug. 24, 2022, p. 16

{¶58} The trial court did not err in finding that the record contains clear and

convincing evidence that the best interest of the children will be served by granting

permanent custody to GCCS and that permanent custody was supported by the facts in

the record.

{¶59} The Father’s second assignment of error is denied.

III.

{¶60} In his third assignment of error, the Father contends that the trial court erred

by not appointing counsel for the children because there was a conflict between the

children’s wishes and their best interest as promoted by the guardian ad litem.

{¶61} Father combed through the reports of the guardian ad litem and the Court

Appointed Special Advocate and isolated statements that he concludes show a need for

the appointment of counsel for the children. First, we note that the Father did not press

this issue before the trial court so that the matter could have been fully developed at that

juncture, raising the question of whether his argument has been waived. Under the

circumstances, we have determined that we should consider the merits in the interest of

justice. Further, the trial court did review that issue in considering the children’s best

interest and concluded that “[t]he wishes of the children were set forth in the GAL report.

M.K. does not wish to return to his mother or father and A.K., and E.K. could not form a

reliable statement regarding their wishes.” (Journal Entry, Aug. 24, 2022, p. 14).

{¶62} The Father selects portions of the GAL and CASA report to support his

contention that a conflict of interest existed, but any conflict vanishes when the quote is

viewed in its entirety. The GAL’s analysis of the wishes of the children makes reference
Guernsey County, Case Nos. 22CA000034,35,36 23

to A.K.’s comment regarding returning home to her parents, but that quote is qualified by

the accompanying text:

Neither A.K. nor E.K. were able to form a reliable statement

regarding their wishes. A.K., although stating at one point that she would

like to return with her parents, was not consistent nor firm in her statement

of wanting to return to live with either parent. A.K. also stated at various

points that she would like to live with CW Tacy Bates, CASA Cheryl Gadd,

or myself, despite having just met her at the time.

E.K., as the youngest of the three, had the most trouble

communicating her wishes. She was seemingly unable to focus on the

conversation at hand for more than a few seconds at a time (a problem that

seemed to affect all three children), We played “Pirates” during our

conversation, a game that involved hiding “treasure” around the room and

finding it. During our game, she indicated that she loved her siblings, but if

she could choose anywhere, would prefer to return to “Debbie”, a prior

foster caregiver’s home.

Guardian ad litem, Report, July 29, 2022, p. 5.

{¶63} The complete quote from the CASA report reflects A.K. did not have a clear

desire to live with her parents:

In asking C-A.K.’s wishes after she completes the program at Fox

Run C-A.K. told the group she wants to live with GCCS T. Bates for 10 days

with her mommy and daddy there too. Then move to CASA Ms. Cheryl’s

house and finally stay with Atty. GAL Danny for one day then move back
Guernsey County, Case Nos. 22CA000034,35,36 24

with mommy and daddy at the apartment. Clearly C-A.K.’s answer to the

wishes for placement after completion of Fox Run proves her lack of

understanding of her circumstance.

CASA Report, July 25, 2022, p. 8.

{¶64} E.K. expressed a desire to “go back to mom and dad” but the complete

quote makes it clear she was not referring to her biological parents:

CASA did ask C-E.K. what her wishes are once she completes the

program at Heritage Hannah Neil. C-E.K. told CASA she wants to go back

to mom and dad. CASA knows she also calls Brent and Taysha mom and

dad. CASA asked which mom and dad she stated Taysha.

CASA Report, July 25, 2022, p. 9.

{¶65} This case differs from In re H.R., 2nd Dist. Montgomery No. 21274, 2006-

Ohio-1595, ¶ 8, a case cited by Father, where a ten year old clearly expressed her desire

to be adopted and her wish to continue to visit her biological father. That case did not

indicate that the ten year old suffered severe mental health issues or that she had any

problem expressing her desires. The guardian ad litem in that case reported the desires

of the child and the Father filed a motion requesting appointment of separate counsel,

another distinguishing feature of the case. As noted above, W.K. did not bring this matter

to the attention of the trial court and did not move for the appointment of separate counsel.

{¶66} And this is not a case where the juvenile has consistently and repeatedly

expressed a desire to be with a parent. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-

1500, 805 N.E.2d 1110, ¶¶ 5-6. Instead, the children in this case who have established

mental health diagnoses and behavioral problems have responded to questions in such
Guernsey County, Case Nos. 22CA000034,35,36 25

a way that it is clear that they have not yet sufficient maturity and intellect to understand

their circumstances. The trial court has noted the severe trauma suffered by the children

and found that they “could not form a reliable statement regarding their wishes” and the

record supports that finding.

{¶67} Finally, any attorney appointed to represent the children would not be any

more successful in determining whether these children could express a consistent and

coherent desire to live with their parent or another person. A.K. told her therapist “I think

I need a new mom and dad. My mommy and daddy taught me how to do this. Do you

think that me and Sissy can go live with Grandma or my aunt? Do you think somebody

here can adopt me? Do you think me and Sissy can be in a home together?” (Trial

Transcript, p. 107, lines 10-15). E.K. “wants to know when she can go back to Taysha’s.

C-E.K. Refers to the last foster parents as ‘my mom and dad’ ” so an appointed attorney

would face an insurmountable challenge interpreting the wishes of these children. (CASA

Report, July 25, 2022, p. 9)

{¶68} We find that the comments made by the children do not present a conflict

of interest for the guardian ad litem. Instead we find that these comments are the

consequence of the immaturity, mental health issues and trauma suffered by the children

and cannot be interpreted as a consistent or repeated desire for a result that conflicts with

the guardian ad litem’s recommendation regarding the children’s best interest.

{¶69} The third assignment of error is denied.
Guernsey County, Case Nos. 22CA000034,35,36 26

{¶70} The August 24, 2022 decision of the Guernsey County Court of Common

Pleas, Juvenile Division is affirmed.

By: Baldwin, J.

Wise, Earle, P.J. and

Gwin, J. concur.