[Cite as In re B.P., 2012-Ohio-1278.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN THE MATTER OF:
B.P., CASE NO. 5-11-33
ALLEGED NEGLECTED AND
DEPENDENT CHILD.
OPINION
[NICOLE PFISTER-APPELLANT]
[BRIAN PFISTER-APPELLANT]
IN THE MATTER OF:
C.P., CASE NO. 5-11-34
ALLEGED NEGLECTED AND
DEPENDENT CHILD.
OPINION
[NICOLE PFISTER-APPELLANT]
[BRIAN PFISTER-APPELLANT]
IN THE MATTER OF:
M.C., CASE NO. 5-11-35
ALLEGED NEGLECTED AND
DEPENDENT CHILD.
OPINION
[NICOLE PFISTER-APPELLANT]
[BRIAN PFISTER-APPELLANT]
Case Nos. 5-11-33, 5-11-34 and 5-11-35
Appeals from Hancock County Common Pleas Court
Juvenile Division
Trial Court Nos. 20930049, 20930050 and 20930048
Judgments Affirmed
Date of Decision: March 26, 2012
APPEARANCES:
Charles R. Hall, Jr. for Appellants
Mark C. Miller and Benjamin E. Hall for Appellee, Hancock Co.
Prosecutor’s Office
Carroll Creighton, GAL, CASA
PRESTON, J.
{¶1} Parents-appellants, Nicole and Brian Pfister (“Nicole” and “Brian”),
appeal the Hancock County Court of Common Pleas Juvenile Division’s decision
granting the Hancock County Job and Family Services-Children’s Protective
Services Unit (“CPSU”)’s motions for permanent custody of their three minor
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
children, B.P., C.P., and M.C.1 For the reasons that follow, we affirm.
{¶2} On November 17, 2009, B.P., who was three years old, was found in
the street in front of Nicole and Brian’s home. (Aug. 23, 2011 Tr. at 26-27). B.P.
was only wearing a urine soaked diaper. (Id.). Police officers took B.P. and
returned him to Nicole and Brian, who were asleep. (Id.).
{¶3} On November 20, 2009, B.P. was again found on the street wearing
only a diaper soaked in urine. (Id.). The police removed B.P, C.P., and M.C. from
Nicole and Brian’s home. (Doc. Nos. 1, 1, 1).2 At the time of the removal, Nicole
and Brian provided dirty clothes for the children. (Aug. 23, 2011 Tr. at 30). B.P.
and C.P’s shoes were too small, and M.C. only had sandals. Id. Both B.P. and
C.P. had bleeding diaper rashes. Id. B.P’s toes were also bruised and smashed
from canned goods he had dropped on them approximately one to two months
prior. Id. Nicole and Brian did not supply medication for any of the children. Id.
{¶4} On November 23, 2009, CPSU filed motions for predispositional
orders for B.P., C.P., and M.C. (Doc. Nos. 1, 1, 1). The juvenile court held a
1
At the permanent custody hearing, C.P.’s birth certificate was admitted into evidence showing his initials
are K.P. and the court’s caption of C.P. was incorrect. (Aug. 23, 2011 Tr. at 22). We will continue to refer
to K.P. as C.P. to remain consistent with the court documents in this case. Additionally, Nicole and Brian
refer to M.C. as M.P. in their fifth assignment of error. Testimony indicated that at the time of the hearing,
M.C.’s name had recently been changed to M.P. (Id. at 19). We will also refer to M.P. as M.C. to remain
consistent with the court documents.
2
Since there are three separate trial court case numbers involving each child, citations to the record will
have three docket numbers, one for each case, even though many of the docket numbers are identical. The
first number will refer to B.P. in appellate case number 5-11-33, the second will refer to C.P. in case
number 5-11-34, and the third will refer M.C. in case number 5-11-35.
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
hearing on November 25, 2009 and placed the children in CPSU’s emergency
temporary custody. (Doc. Nos. 6, 6, 6).
{¶5} On December 21, 2009, the juvenile court appointed Rhonda Braun
(“Braun”) to serve as the children’s guardian ad litem (“GAL”). (Doc Nos. 10, 10,
10).
{¶6} The juvenile court held an adjudication hearing on January 7, 2010
and found the children were neglected and dependent. (Doc. Nos. 13, 13, 13). On
February 11, 2010, the court held a dispositional hearing and placed the children
in the temporary custody of CPSU. (Doc. Nos. 15, 15, 15).
{¶7} On November 19, 2010, the juvenile court granted a six month
extension on the case. (Doc. Nos. 20, 20, 20).
{¶8} CPSU filed for permanent custody of all three children on April 19,
2011. (Doc. Nos. 31, 31, 31). The parties participated in mediation on August 9,
2011 but failed to reach an agreement. (Doc. Nos. 42, 42, 44).
{¶9} On August 16, 2011, the court appointed Carroll Creighton to serve as
independent counsel for the children. (Doc. Nos. 43, 43, 45).
{¶10} The juvenile court held a permanent custody hearing on August 23
and 24, 2011. (Doc. Nos. 47, 47, 48). On August 26, 2011, the court granted
CPSU’s motion for permanent custody. (Id.).
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{¶11} On September 23, 2011, Nicole and Brian filed their notices of
appeal and now raise five assignments of error for our review. For purposes of our
discussion, we will address their second assignment of error first.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY FOR THE CHILDREN BECAUSE IT WAS NOT
IN THEIR BEST INTEREST
{¶12} In their second assignment of error, Nicole and Brian argue the
juvenile court erred in determining that granting permanent custody to CPSU was
in the children’s best interest. Nicole and Brian contend that they maintained
visitation with their children while they were in CPSU’s temporary custody, that
the children are bonded to them, and that the children did not express a desire for
the court to grant CPSU’s motions for permanent custody.
{¶13} The right to raise one’s own child is a basic and essential right. In re
Murray, 52 Ohio St.3d 155, 157 (1990). Parents have a “fundamental liberty
interest” in the care, custody, and management of their children that is protected
by law. Id. However, parental rights and interests in their children are not
absolute. In the Matter of Thomas, 3d Dist. No. 5-03-08, 2003-Ohio-5885, ¶ 7.
These rights may be terminated under appropriate circumstances and when the
trial court has met all due process requirements. In re Leveck, 3d Dist. Nos. 5-02-
52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶ 6. “When considering a motion to
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
terminate parental rights, the trial court must comply with the statutory
requirements set forth in R.C. 2151.414.” In the Matter of C.E., 3d Dist. Nos. 5-
09-02, 5-09-03, 2009-Ohio-6027, ¶ 14.
{¶14} According to R.C. 2151.414(B)(1), a court may grant permanent
custody of a child to the agency that filed the motion if the court determines by
clear and convincing evidence that it is in the child’s best interest and that 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 * * *.” When determining whether granting
permanent custody to the agency is in the best interest of the child, the court must
consider all of the relevant factors listed in R.C. 2151.414(D)(1), including:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the
child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public children
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
services agencies * * * for twelve or more months of a consecutive
twenty-two month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
Additionally, R.C. 2151.414(E) requires the court to consider all of the relevant
evidence when determining whether a child can be placed with either parent
within a reasonable time. In pertinent part, the court must find that the child
cannot or should not be placed with either parent if it determines by clear and
convincing evidence that:
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 utilization of medical,
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psychiatric, psychological, and other social and rehabilitative
services and material resources that were made available to the
parents for the purpose of changing parental conduct to allow them
to resume and maintain parental duties. R.C. 2151.414(E)(1).
{¶15} Clear and convincing evidence is “that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as to
the allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477
(1954), citing Merrick v. Ditzler, 91 Ohio St. 256 (1915). The Supreme Court of
Ohio has defined clear and convincing evidence as an intermediate standard,
“being more than a mere preponderance, but not to the extent of such certainty as
is required beyond a reasonable doubt as in criminal cases.” Id. This Court must
“determine whether the evidence was sufficient for the trial court to make its
findings by a clear and convincing degree of proof.” In the Matter of Lane, 3d
Dist. Nos. 9-03-61, 9-03-62, 2004-Ohio-2798, ¶ 27.
{¶16} In the present case, the parties stipulated that the children had been in
CPSU’s temporary custody for at least 12 of a consecutive 22 month period. (Aug.
23, 2011 Tr. at 10). Consequently, the sole issue before the juvenile court was
whether granting CPSU’s motion for permanent custody was in the children’s best
interest.
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{¶17} The juvenile court found by clear and convincing evidence that
granting permanent custody to CPSU was in the children’s best interest. (Doc.
Nos. 47, 47, 48). The court stated that it considered all of the relevant factors in
R.C. 2151.414, including “the relationship of the children with their parents,
relatives, foster parents, out-of-home providers and other people who may
significantly affect the children’s need for legally secure permanent placement and
the probability that this type of placement can be achieved only through the
granting of permanent custody.” (Id.).
{¶18} In making its decision, the court relied on the lengthy period of time
the children had been in CPSU’s custody without any improvement in Nicole and
Brian’s parenting skills and the number of services CPSU made available,
including: case management; information and referral; transportation; life skills
group, home based therapy; domestic violence and substance abuse counseling;
developmental assessments; supervised visitation; unsupervised visitation; and
extended unsupervised visitation. (Id.). The juvenile court found that Nicole failed
to participate in the domestic violence counseling and failed to complete the life
skills group as required by the case plan. (Id.). The court also found that Brian
failed to complete the required substance abuse counseling. (Id.). The court noted
that CPSU had provided the parents with transportation to their appointments and
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
the local mental health and substance abuse agency was within walking distance of
their home. (Id.).
{¶19} The court also relied on incidents that occurred during Nicole and
Brian’s unsupervised visitation with the children. (Id.). The court found that the
parents failed to provide one of the children with a required breathing treatment
despite having been warned of its importance. (Id.). The court further found that
Nicole and Brian failed to meet an appointment with the foster mother because
they overslept and that Brian kicked a hole in the apartment wall “in a fit of
anger.” (Id.).
{¶20} Additionally, the court considered issues addressed in a letter the
caseworker sent to the Assistant Prosecuting Attorney as well as the GAL’s
recommendation that the court grant permanent custody of the children to CPSU.
(Id.). The juvenile court ultimately determined that Nicole and Brian had failed to
change and address the problems that had caused the children’s removal from their
home. (Id.). The court stated, “[t]he children need to get on with their lives and
the only way to permit that to happen is to grant permanent custody to the agency.
There is little hope that the situation will improve with the passage of time.” (Id.).
{¶21} The juvenile court’s decision is supported by the record. The parties
stipulated that CPSU had created a case plan that was “reasonably calculated to
correct the reasons the children were removed.” (Aug. 23, 2011 Tr. at 10). Mark
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Olthouse (“Olthouse”), Nicole and Brian’s caseworker, testified at length
regarding CPSU’s case plan. Olthouse stated that he had created the case plan in
conjunction with Nicole, Brian, and the GAL, and had reviewed the case plan with
the parents during his monthly home visits. (Id. at 49-51).
{¶22} The first objective of the case plan was that Nicole and Brian were to
provide a safe and stable home environment for the children. (Id. at 56). Olthouse
testified that the parents achieved this objective. (Id. at 57).
{¶23} The second objective required Nicole and Brian to obtain mental
health, intellectual functioning, and substance abuse assessments. (Id.). They were
also required to follow all recommendations made pursuant to the assessments.
(Id.). Olthouse testified that this objective was important because Brian admitted
he had previously abused prescription drugs and was receiving treatment in
Toledo. (Id. at 58). CPSU was concerned because Nicole was also diagnosed with
depression. (Id.). Olthouse testified that Nicole and Brian completed the
assessments but did not follow through on the recommendations. (Id.). Brian was
required to attend substance abuse and anger management counseling at Century
Health, located a few blocks from their home. (Id. at 60). Brian had thirty
scheduled appointments and missed ten of them. (Id. at 159). Century Health
terminated Brian’s case in June of 2011 due to missed appointments. (Id. at 59).
Nicole was prescribed medication to treat her depression but failed to renew the
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
prescriptions. (Id. at 61). As part of her mental health treatment, Nicole was
referred to Open Arms for domestic violence counseling. (Id. at 63-64). Kelly
Mendoza (“Mendoza”), a case manager with Open Arms, testified that Nicole was
required to participate in a victims’ support group that would meet once a week for
20 weeks. (Id. at 191). Mendoza stated that Nicole completed the intake and first
group session. (Id. at 192-194). Subsequently, Mendoza arranged to have
individual sessions with Nicole to accommodate her work schedule. (Id. at 195).
Nicole failed to attend any of the individual sessions. (Id. at 195-198). Olthouse
testified that Nicole and Brian did not successfully complete the second objective.
(Id. at 58-59).
{¶24} The third objective required Nicole and Brian to gain additional
parenting knowledge and skills. (Id. at 74). Olthouse testified that CPSU intended
the objective to address the supervision of the children, specifically B.P., who has
special needs. (Id.). CPSU provided both home based therapy for the entire family
and play therapy for the children. (Id. at 75). The parents were also required to
attend parenting sessions with a doctor at Safe Harbor to address B.P.’s specific
behavioral problems. (Id. at 76-77). Olthouse testified that there was no
improvement in Nicole and Brian’s parenting skills, and that they failed to attend
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all of the required sessions. (Id. at 74-77). Olthouse testified that they failed to
complete the third objective. (Id. at 75).3
{¶25} The fourth objective required Nicole and Brian to gain additional life
skills. (Id. at 83). Nicole and Brian were required to attend twelve life skills group
sessions at Century Health. (Id. at 83-85). CPSU modified this objective for Brian
to require him to focus on his substance abuse treatment rather than attending the
life skills group classes. (Id. at 85). Century Health also modified the life skills
classes for Nicole. (Id. at 85). Robin Brown (“Brown”), a therapist at Century
Health, testified that Nicole was unable to start the life skills group classes because
of her depression. (Id. at 153). Brown provided Nicole with individual therapy
instead. (Id.). Nicole disclosed to Brown that Brian was controlling and
emotionally abusive. (Id. at 154). Brown testified that Nicole stopped attending
appointments in March of 2011, missing nine appointments total. (Id. at 159).
Olthouse testified that neither parent successfully completed this objective. (Id. at
84-85).
{¶26} The fifth objective required the children to have developmental
assessments and receive ongoing treatment as recommended pursuant to the
assessments. (Id. at 87). Nicole and Brian were required to attend the
appointments with their children. (Id.). CPSU was concerned with the children’s
3
This Court will discuss Nicole and Brian’s participation in the sessions in greater detail when we address
the fifth objective, which required them to attend the same sessions.
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development because neither C.P. nor B.P., ages two and three, could speak. (Id.
at 88). Olthouse testified that CPSU observed other delays and problems with the
children, so they all needed to be evaluated. (Id.). B.P was originally diagnosed as
possibly having an autism spectrum disorder. (Id. at 89). Upon further evaluation,
the doctor determined B.P. did not have an autism spectrum disorder. (Id. at 94).
Rather, he had developmental delays and behavioral problems based on “his level
of development, innate temperament, family history, and environmental factors.”
(Id. at 94-95). As a result of these assessments, B.P. received speech and
occupational therapy. (Id. at 90). The occupational therapy was parent-child
interaction therapy intended to train the parents to address B.P.’s extreme
behavior. (Id.at 92-93). Nicole and Brian only attended ten out of B.P.’s eighteen
occupational therapy appointments. (Id. at 100). Olthouse testified that they were
provided with transportation to these appointments. (Id. at 102). Furthermore,
Nicole and Brian only attended one of B.P’s speech therapy appointments, which
took place once, and sometimes twice, each week. (Id. at 103-104). Medicaid
provided the parents with transportation to these appointments. (Id.). Olthouse
testified that Nicole and Brian failed to complete the fifth objective. (Id. at 87-88).
{¶27} The sixth objective required Nicole and Brian to provide the children
with appropriate medical and dental care. (Id. at 106). The parents were required
to “attend medical and dental appointments for the children as requested and
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appropriate.” (Id.). C.P. had some breathing issues and needed to use an inhaler
four times each day. (Id. at 107). Olthouse testified that the parents failed to give
C.P. his breathing treatment until after two in the afternoon during their
unsupervised visitation. (Id.). Olthouse also testified that the parents had problems
getting B.P. to a medical appointment. (Id. at 107-108.). Olthouse testified that
Nicole and Brian failed to meet this objective. (Id. at 106-107).
{¶28} Olthouse testified further regarding Nicole and Brian’s extended
unsupervised visitation with the children. The visitation was a ten day trial
reunification that took place from February 18 through February 27, 2011. (Id. at
40). Olthouse stated that CPSU still had concerns about Nicole and Brian
providing adequate care for the children and ensuring their safety at the time of the
trial reunification. (Id.). However, CPSU decided to give the parents a trial
reunification because CPSU did not have any additional services to offer to
resolve the remaining issues. (Id.). Olthouse testified that since CPSU still saw
similar problems during the trial reunification and did not have any other services
to offer, CPSU filed for permanent custody of the children. (Id.).
{¶29} The first problem Olthouse noted was that Nicole and Brian failed to
get B.P. ready for an appointment with the foster mother to take him to the doctor.
(Id. at 42). Neither B.P. nor the parents were awake when the foster mother
arrived. (Id.). Olthouse testified that the parents were unable to take B.P. to the
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doctor without the foster mother’s assistance because they did not have any
transportation. (Id. at 46). Secondly, Nicole and Brian failed to provide C.P. with
his breathing treatment until after two in the afternoon, as previously discussed.
(Id. at 43). Finally, Olthouse stated that Brian “kicked a large hole in the
apartment wall in response to the upstairs neighbors complaining about the noise
level in the parents’ apartment.” (Id.). Olthouse testified that he personally
observed the hole, Brian admitted he had kicked the hole in the wall, the children
told Olthouse about the hole in the wall, and the children were present at the time
of the incident. (Id. at 43-44). All of these problems occurred while the parents
were involved in home based therapy provided by CPSU. (Id. at 48).
{¶30} Olthouse recommended that the juvenile court grant permanent
custody of the children to CPSU because the parents had failed to remedy the
problems that caused the children’s removal, the parents had been unable to
address their own issues, and the children needed permanency. (Id. at 119-121).
Olthouse stated, “[t]hey need to not be in limbo, thinking they’re going home,
spending time in the home and then being taken back to supervised visitation.” (Id.
at 121).
{¶31} Braun, the GAL assigned to represent the children’s interests,
submitted a report regarding the issue of permanent custody. (Id. at 307); (Ex. A).
Braun testified at the hearing and stated in her report that she recommended the
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court grant CPSU permanent custody of the children. (Id.); (Id.). In her report,
Braun outlined each child’s special needs. (Ex. A). Braun stated that Nicole and
Brian were still struggling to implement improved parenting skills, and that the
parents had not learned the skills required to maintain a safe and stable
environment for their children. (Id.). Braun noted that B.P. and C.P. were too
young to express their wishes, but that M.C. asked when he would be able to go
home. (Id.). Braun based her recommendation that the court grant CPSU
permanent custody on the parents’ lack of responsibility in caring for the children
without the assistance of the foster mother, their inability or unwillingness to
attend appointments and make improvements, and the diagnosis that the children’s
developmental delays were a result of their environment. (Id.). Braun stated that
the diagnosis “displays the lack of parenting skills to provide the basic needs for
the kids then and now.” (Id.).
{¶32} Considering the factors listed in R.C. 2151.414(D)(1), this Court
cannot conclude that the juvenile court erred in determining there was clear and
convincing evidence that granting permanent custody to CPSU was in the
children’s best interest. The record shows that Nicole and Brian have been unable
to improve their parenting skills and take responsibility for their children. R.C.
2151.414(D)(1)(a). They have failed to attend numerous appointments and take
advantage of the many services CPSU provided to help them and their children,
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including failing to complete substance abuse counseling, anger management
counseling, domestic violence counseling, and life skills classes. (Aug. 23, 2011
Tr. at 56-128). They have also failed to attend appointments for their children,
such as B.P.’s speech therapy and occupational therapy appointments, the purpose
of which was to provide the parents with the skills to address his behavioral
problems. (Id.). Nicole and Brian have not improved the conditions that led to
their children’s removal, indicated by their failure to provide C.P. with his
required breathing treatment, their inability to wake up on time and get B.P. to the
doctor without the assistance of the foster mother, and Brian kicking a hole in the
wall as a result of his anger during a trial reunification. (Id.). These facts support
the juvenile court’s determination that Nicole and Brian have failed to create a
positive parental relationship with the children that will provide them with a safe,
stable environment.
{¶33} Additionally, R.C. 2151.4141(E)(1) requires the juvenile court to
find that the children should not or cannot be placed with either parent if:
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 failed
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home.
The record demonstrates that Nicole and Brian have continuously and repeatedly
failed to take the steps necessary to substantially remedy the conditions that
caused the removal of their children by failing to attend required appointments and
take responsibility for their children. (Aug. 23, 2011 Tr. at 56-128). Thus, we
cannot find that the juvenile court erred in determining that the children should not
or cannot be placed with either parent. Furthermore, R.C. 2151.414(D)(1)(d)
requires the juvenile court to consider the children’s need for permanent and
secure placement. The determination that the children cannot or should not be
placed with Nicole and Brian prevents them from having a legally secure
permanent placement with their parents.
{¶34} Finally, the juvenile court was required to consider the children’s
wishes as expressed by the child or through the GAL. R.C. 2151.414(D)(1)(b).
The GAL, as the children’s representative, recommended that the juvenile court
grant CPSU permanent custody of the children. B.P. and C.P. were too young to
make their wishes known, but the court appointed an independent attorney,
separate from the GAL, to represent the children as a result of M.C.’s statements
that he wanted to go home. (Ex. A); (Aug. 24, 2011 Tr. at 324). The attorney did
not present any new evidence that returning the children to their parents was in
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their best interest. The attorney also did not present any additional statements by
the children expressing their wishes to be reunited with Nicole and Brian. The
juvenile court thus considered the children’s wishes as presented by the GAL as
well as the evidence presented by the independent attorney during the hearing.
Based on the foregoing, we conclude that the juvenile court’s judgment is
supported by clear and convincing evidence.
{¶35} Nicole and Brian’s second assignment of error is, therefore,
overruled.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT’S DECISION TO TERMINATE THE
APPELLANTS’ PARENTAL RIGHTS AND GRANT
PERMANENT CUSTODY TO THE AGENCY IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE
{¶36} In their first assignment of error, Nicole and Brian argue the juvenile
court’s decision is against the manifest weight of the evidence because they were
not given ample opportunity to regain custody of the children. Nicole and Brian
contend that CPSU failed to present evidence for why they moved from
unsupervised visitation to supervised visitation, and that CPSU also failed to
provide reasons for filing motions for permanent custody rather than attempting
reunification.
{¶37} This Court will not overturn the juvenile court’s judgment as being
against the manifest weight of the evidence “if the record contains competent,
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credible evidence by which the court could have formed a belief or conviction that
the essential statutory elements for a termination of parental rights have been
established.” In re Baby Boy W., 3d Dist. No. 5-10-39, 2011-Ohio-2337, ¶ 20,
citing In re Forest S., 102 Ohio App.3d 338, 344-345 (1995).
{¶38} The parties stipulated that the children had been in CPSU’s custody
for at least 12 months out of a consecutive 22 month period. (Aug. 23, 2011 Tr. at
10). Consequently, the only issue before the juvenile court was whether granting
CPSU permanent custody was in the children’s best interest. We have already
found clear and convincing evidence supporting this judgment. As a result, there
is competent, credible evidence supporting the juvenile court’s determination and
we cannot conclude that the juvenile court’s decision is against the manifest
weight of the evidence.
{¶39} Nicole and Brian’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE AGENCY DID NOT MAKE A GOOD FAITH EFFORT
TO REUNIFY THE APPELLANTS WITH THEIR CHILDREN
{¶40} In their third assignment of error, Nicole and Brian argue CPSU did
not make a good faith effort to reunify them with the children because CPSU did
not prove the case plan was designed to correct the problems and return the
children to their parents. Nicole and Brian contend that CPSU “allowed itself to
lose its way” in managing their case plan.
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
{¶41} R.C. 2151.419 requires children services agencies to make
reasonable efforts to return the child to the parents. Thomas, 2003-Ohio-5885, at ¶
9. The agency has the burden of showing that it made reasonable efforts towards
reunification. Id. Consequently, the case plan must establish goals designed to
address specific concerns the agency has about the parent, as well as the steps the
parent can take to achieve reunification. Id. “[T]he issue is not whether there was
anything more that CPSU could have done, but whether the agency’s case
planning and efforts were reasonable and diligent under the circumstances.” Id.
{¶42} In the present case, CPSU made reasonable efforts towards
reunification. The parties stipulated that CPSU had created a case plan that was
“reasonably calculated to correct the reasons the children were removed.” (Aug.
23, 2011 Tr. at 10). This case plan included six objectives tailored to address the
reasons why the children were removed from their parents’ home. These
objectives included: (1) providing a safe and stable home environment for the
children; (2) obtaining mental health, intellectual functioning, and substance abuse
assessments; (3) gaining additional parenting knowledge and skills; (4) gaining
additional life skills; (5) obtaining developmental assessments and ongoing
treatment for the children; and (6) providing the children with appropriate medical
and dental care. (Case plan, Ex. 18). The case plan also specified steps Nicole and
Brian were required to take including attending counseling sessions, life skills
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
classes, and their children’s therapy appointments. (Id.). Nicole and Brian did not
fulfill these requirements and did not present any evidence that CPSU would have
failed to reunify them with their children if they had.
{¶43} Nicole and Brian rely on In the Matter of C.E., in support of their
argument. 3d Dist. Nos. 5-09-02, 5-09-03, 2009-Ohio-6027. In that case, this
Court reversed a juvenile court’s decision to grant permanent custody to the
agency as to the father, but not the mother. Id. at ¶¶ 22, 33. This Court affirmed
terminating the mother’s permanent custody of the children because the agency
had made a case plan reasonably calculated to remedy the problems that had
caused the children’s removal, but the mother had failed to comply. Id. at ¶ 16.
This Court reversed the grant of permanent custody to the agency in regard to the
father because we found that the agency had not made a good faith effort to
provide a case plan that would reasonably result in the reunification of the father
with his children. Id. at ¶ 33.
{¶44} The present case is clearly distinguishable from In the Matter of C.E.
In that case, the father completed the two required objectives, which were to
obtain a psychological evaluation as well as a mental health and substance abuse
evaluation. Id. at ¶ 23. No psychological, mental health, or substance abuse
problems were discovered and no additional treatment was recommended. Id. at ¶
25-27. During the hearing, the agency testified that it still had concerns about
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
reuniting the children with the father because he was married to another woman,
was older and had some health problems, and had a drug conviction over 20 years
prior. Id. at ¶ 28. This Court held the agency did not make a good faith effort to
provide a case plan that would reunite the father with his children because the
agency did not make any further recommendations to address its concerns. Id. at ¶
33. Consequently, the father had fulfilled his obligations under the case plan. Id.
{¶45} In the present case, Nicole and Brian have failed to complete five out
of the six objectives. (Aug. 23, 2011 Tr. at 56-128). CPSU established specific
steps Nicole and Brian could take to address the issues that led to the children’s
removal and reunify them with the children. (Ex. 18). There is no evidence that
CPSU did not act in good faith and would have failed to reunify Nicole and Brian
with the children had they completed the case plan.
{¶46} Nicole and Brian’s third assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED BY NOT MAKING A FINDING
ON THE RECORD AS TO THE WISHES OF THE
CHILDREN FOR THE PERMANENT CUSTODY
{¶47} In their fourth assignment of error, Nicole and Brian argue the
juvenile court erred by not making a finding on the record regarding the children’s
wishes. Nicole and Brian contend that the GAL’s testimony did not indicate
whether she tried to determine the children’s wishes prior to making her
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
recommendation. Nicole and Brian argue that, without this information, the
juvenile court could not make a decision regarding the children’s wishes as
required by statute.
{¶48} R.C. 2151.414(D)(1)(b) requires the court to consider “[t]he wishes
of the child, as expressed directly by the child or through the child’s guardian ad
litem, with due regard for the maturity of the child.” The Supreme Court of Ohio
has noted that in some cases, the guardian ad litem can act as the juvenile’s
attorney as well. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, ¶ 18.
However, in certain situations, such as when a guardian ad litem’s
recommendation conflicts with the juvenile’s wishes, the juvenile is entitled to
independent counsel to represent those wishes. Id. at ¶¶ 18, 29.
{¶49} The juvenile court addressed this issue in the present case, stating:
[W]e appointed an attorney for the children, it came to us by
representation from CASA that at least the oldest child indicated a
desire to return to the parents and that was a recommendation- that
was a desire that was contrary to the recommendation of the CASA.
So we felt even though the child was of very tender years, that it
would be probably in his best interest to be represented by counsel.
(Aug. 24, 2011 Tr. at 324).
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
Furthermore, in her report, the GAL stated, “KP and BP are too young to express
their wishes, whereas, MC the oldest asks when he will get to go home.”4 (Ex. A).
Thus, the record contains evidence that the juvenile court did consider the
children’s wishes in light of their maturity. B.P. and C.P. were too young to make
their wishes known, so it was not possible for the juvenile court to obtain this
information. The court had to consider the GAL’s recommendation based on the
children’s maturity. However, the juvenile court appointed counsel for M.C.
because he had asked when he would be able to go home. Throughout the
hearing, M.C.’s counsel opposed CPSU by cross examining each of their
witnesses. M.C.’s counsel thus represented M.C.’s desire to return to his parents
during the judicial process. As a result, the juvenile court met all of the procedural
requirements for representing the children’s interests during the permanent
custody hearing.
{¶50} Nicole and Brian’s fourth assignment of error is, therefore,
overruled.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED BY ALLOWING THE
ALLEGED MP STATEMENT TO BE PLACED INTO
EVIDENCE AGAINST THE PARENTS5
4
KP refers to C.P.
5
MP refers to M.C.
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
{¶51} In their fifth assignment of error, Nicole and Brian argue the juvenile
court committed plain error by admitting M.C.’s statements. Nicole and Brian
contend that M.C.’s statements were hearsay that do not meet an exception.
Consequently, Nicole and Brian argue M.C.’s statements were inadmissible. The
State responds that M.C.’s statements were admissible as admissions by a party-
opponent.
{¶52} The statements at issue were admitted during testimony by Judith
Hutton (“Hutton”), a case worker with the foster care agency. (Aug. 24, 2011 Tr.
at 208-222). Hutton testified that M.C. told her Brian got angry and broke a
controller to M.C.’s video game. (Id. at 221). M.C. also told her that the three
children were fighting and his parents did not do anything. (Id. at 222). Finally,
M.C. made statements to Hutton regarding his parents’ relationship. Hutton
testified, “[h]e had stated that mom was crying because mom and dad had gotten
in a fight and they were cursing and yelling and dad got his shoes, hat and coat on
and was going to leave.” (Id. at 219). According to Hutton, M.C. also stated, “[h]e
told us we drive him nuts,” while referring to Brian. (Id. at 220).
{¶53} Hearsay is inadmissible unless an exception to the rule applies. Evid.
R. 802. However, an admission by a party-opponent is not considered hearsay.
Evid. R. 801. An admission by a party-opponent is a statement that “is offered
against a party and is (a) his own statement, in either his individual or
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
representative capacity * * *.” Evid. R. 801 (D)(2). The Supreme Court of Ohio
has held that “a child who is the subject of a juvenile court proceeding to terminate
parental rights is a party to that proceeding.” Williams, 2004-Ohio-1500 at ¶ 29.
{¶54} Nicole and Brian failed to object to the admission of M.C.’s
statements during the hearing. As a result, the plain error standard applies.
Ordean v. Ordean, 3d Dist. No. 17-06-15, 2007-Ohio-3979, ¶¶ 12-13. We
recognize plain error “‘with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.’” State v. Landrum, 53 Ohio
St.3d 107, 110 (1990), quoting State v. Long, 53 Ohio St.2d 91(1978), paragraph
three of the syllabus. For plain error to apply, the trial court must have deviated
from a legal rule, the error must have been an obvious defect in the proceeding,
and the error must have affected a substantial right. State v. Barnes, 94 Ohio St.3d
21, 27 (2002). Under the plain error standard, the appellant must demonstrate that
the outcome of his trial would clearly have been different but for the trial court’s
errors. State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v. Moreland,
50 Ohio St.3d 58 (1990).
{¶55} M.C., as a juvenile subject to a court proceeding to terminate
parental rights, is a party to the case. Williams, 2004-Ohio-1500, at ¶ 29. The
court appointed counsel to represent M.C. because he had stated that he wanted to
go home. (Aug. 24, 2011 Tr. at 324). Consequently, M.C.’s statements were
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Case Nos. 5-11-33, 5-11-34 and 5-11-35
admissible against him and could be used to show that although his wishes were to
remain with his parents, granting Nicole and Brian permanent custody was not in
his best interest. Notwithstanding the foregoing, an argument could be made that
M.C.’s statement that Brian had said the kids “were driving him nuts” constituted
double hearsay. (Aug. 24, 2011 Tr. at 208-222). However, even if the statement is
double hearsay, it is harmless error in light of the remaining evidence in addition
to M.C.’s statements.
{¶56} Thus, even assuming that all of M.C.’s statements were inadmissible,
we still cannot find plain error. The juvenile court did not state that it relied on
M.C.’s statement in rendering its judgment in this case. (Doc. Nos. 47, 47, 48).
Furthermore, given the evidence regarding Nicole and Brian’s failure to complete
the case plan and take responsibility for their children, Nicole and Brian have not
demonstrated that the outcome of the case would have been different absent
M.C.’s statements.
{¶57} Nicole and Brian’s fifth assignment of error is, therefore, overruled.
{¶58} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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In re B.P.
Combined Opinion