In re Jo.S.

[Cite as In re Jo.S., 2011-Ohio-6017.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HANCOCK COUNTY

IN THE MATTER OF:

JO. S., CASE NO. 5-11-16

ALLEGED ABUSED, NEGLECTED

AND/OR DEPENDENT CHILD,

[JOSEPH SALDANA –

APPELLANT/FATHER], OPINION

[TRACY PARDO –

APPELLANT/MOTHER].

IN THE MATTER OF:

JA. S., CASE NO. 5-11-17

ALLEGED ABUSED, NEGLECTED

AND/OR DEPENDENT CHILD,

[JOSEPH SALDANA –

APPELLANT/FATHER], OPINION

[TRACY PARDO –

APPELLANT/MOTHER].

Appeals from Hancock County Common Pleas Court,

Juvenile Division

Trial Court Nos. 20930053 and 20930054

Judgments Affirmed

Date of Decision: November 21, 2011

APPEARANCES:

Charles R. Hall, Jr. for Appellant, Joseph Saldana

Nicole M. Winget for Appellant, Tracy Pardo

Benjamin E. Hall for Appellee, CPSU

Drew Mihalik for CASA

ROGERS, P.J.

{¶1} Father-Appellant, Joseph Saldana (hereinafter “Joseph”), and Mother-

Appellant, Tracy Pardo (hereinafter “Tracy”), separately appeal the judgments of

the Court of Common Pleas of Hancock County, Juvenile Division, terminating

their parental rights and granting permanent custody of their children, Jo.S. and

Ja.S. (collectively “children”), to the Hancock County Job and Family Services,

Children Protective Services Unit (hereinafter “CPSU”).

{¶2} On appeal, Joseph contends that CPSU failed to make reasonable

efforts to reunite the children with him; that the trial court’s judgments granting

CPSU permanent custody of the children were against the manifest weight of the

evidence; that granting permanent custody of the children to CPSU was not in the

children’s best interest; and, that CPSU did not make a good faith effort to reunite

him with his children. In her appeal, Tracy contends that the trial court’s

judgments granting CPSU permanent custody of the children were against the

manifest weight of the evidence; that granting permanent custody of the children

to CPSU was not in the children’s best interest; and, that CPSU failed to make

reasonable efforts to reunite her with her children. Based on the following, we

affirm the judgments of the trial court as to both Joseph and Tracy.

{¶3} On December 14, 2009, Jo.S. was admitted to Blanchard Valley

Hospital with a fever and a red, swollen left eye. CAT scans of Jo.S.’s eye

revealed that he had a broken left orbital bone. The examining physician

attributed the injury to child abuse. On December 18, 2009, CPSU filed two

complaints: one alleging that Jo.S. was a neglected, abused, and dependent child

as defined by R.C. 2151.03, R.C. 2151.031, and R.C. 2151.04, respectively; the

other alleging that Ja.S. was a neglected, dependent child as defined by R.C.

2151.03 and R.C. 2151.04, respectively. Additionally, CPSU moved the trial

court for an emergency ex parte order requesting that the children be placed in the

temporary custody of Rosalinda Garcia (hereinafter “Garcia”), the children’s

paternal grandmother, which the trial court granted.

{¶4} On December 22, 2009, the matter proceeded to a shelter care hearing.

The trial court concluded that probable cause existed for the filing of the ex parte

order, and that the children’s continued residence in either Joseph’s or Tracy’s

(collectively “parents”) custody would be contrary to the children’s best interest.

Based on CPSU’s recommendation, the trial court ordered that the children remain

in Garcia’s emergency temporary custody.

{¶5} On January 25, 2010, the trial court, upon its own motion, appointed

James Kelly (hereinafter “Kelly”), to serve as a guardian ad litem (hereinafter

“GAL”) for the children.

{¶6} On January 29, 2010, CPSU filed a motion for an ex parte order

requesting that the children be removed from Garcia’s emergency temporary

custody and placed in CPSU’s emergency temporary custody. The trial court

granted the motion. Thereafter, the trial court held a hearing on the matter and

concluded that probable cause existed for the ex parte order, and that the

children’s continued residence in Garcia’s home would be contrary to the their

best interest. Based on CPSU’s request, the trial court ordered that the children

remain in CPSU’s emergency temporary custody.

{¶7} In February 2010, the matter proceeded to an adjudication hearing.

Upon the consent of all the parties, the trial court found by clear and convincing

evidence that Jo.S. was a neglected, abused, and dependent child, and that Ja.S.

was a neglected and dependent child.

{¶8} In March 2010, the trial court held a dispositional hearing. Upon the

parties consent, the trial court ordered that the children be placed in CPSU’s

temporary custody. The trial court also adopted the case plan (hereinafter “plan”

or “case plan”) submitted by CPSU.1 The plan set forth five objectives, which

read, in pertinent part:

1

CPSU filed a case plan on January 20, 2010, but the trial court never filed a judgment entry adopting or

rejecting the plan.

[Joseph] and [Tracy] will be assessed for services through

Family Resource Center or another approved provider.

[Joseph] and [Tracy] will follow through with all recommended

services including (sic) but not limited to (sic) Play Therapy,

Maternal Mental Health, Promoting First Relationships and/or

Home Based Therapy (HBT). The parents will attend any and

all appointments required of them by the service provider,

complete all required paperwork, and sign any releases of the

service provider and this agency. The foster parents or foster

agency will ensure that the children attend all appointments for

their individual needs. [Joseph] and [Tracy] will follow through

with any and all recommendations made by [the Family

Resource Center] service staff or the agency. [Joseph] and

[Tracy] will put into practice the skills they learn during parent

education.

[Joseph] and [Tracy] will complete a mental health and

substance abuse assessment and take the Lifeskills group at

Century Health, or another agency approved service provider.

[Joseph] and [Tracy] will sign all releases with Century Health

and this agency. * * * [Joseph] and [Tracy] will attend all

scheduled appointments, and will follow any and all

recommendations made by the service provider. If any new

concerns arise as a result of mental health, substance abuse or

Lifeskills group, (sic) case plan will be amended to reflect these

issues and family members will comply with any further services

that may be needed.

Foster parents will ensure that [Jo.S. and Ja.S.] are assessed by

Wood County Help Me Grow and follow through will (sic) all

recommendations. * * *

Foster parents will ensure children’s medical care is adequate

with checkups as required and all immunizations are kept up to

date. * * *

[Joseph] will receive Anger Management Counseling through

Century Health, or another agency approved by provider and

[Joseph] will disclose any information to counselor regarding

violence in his past so that this may be addressed in counseling. *

* * [Joseph] will attend all appointments, and follow all service

provider recommendations.

CPSU Exhibit 16. The plan also outlined a visitation schedule. Initially, Joseph’s

and Tracy’s visitation with the children was limited to supervised visitation at a

designated agency. Based on Joseph’s and Tracy’s progress with their respective

objectives, visitation could progress to off-site and unsupervised visitation.

{¶9} In November 2010, CPSU filed a motion for permanent custody of the

children pursuant to R.C. 2151.353, R.C. 2151.413, and R.C. 2151.414 on the

basis that it was in the children’s best interest, and that the children could not be

placed with either parent within a reasonable time and should not be placed with

either parent. Specifically, CPSU stated that the children cannot and should not be

placed with either Joseph or Tracy based on the following:

Following the placement of the child[ren] outside the child[ren’s]

home and notwithstanding reasonable case planning and diligent

efforts by the agency to assist the parent to remedy the problems

that initially caused the child[ren] to be placed outside the

child[ren’s] home, the parents have failed continuously and

repeatedly to substantially remedy the conditions causing the

child[ren] to be placed outside the child[ren’s] home; or

Chronic mental illness, chronic emotional illness, mental

retardation, 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[ren] at the

present time and, as anticipated, within one year after the court

holds the hearing in this matter; or

The parents have demonstrated a lack of commitment toward

the child[ren] by failing to regularly support, visit or

communicate with the child[ren] when able to do so, or by other

actions showing unwillingness to provide an adequate

permanent home for the child[ren].

CPSU’s Motion for Permanent Custody, p. 2.

{¶10} In April 2011, the trial court held a dispositional hearing on CPSU’s

motion for permanent custody, during which the following testimony and evidence

was adduced.

{¶11} Karmen Lauth (hereinafter “Lauth”), a caseworker with CPSU,

testified that she had been assigned to the children’s case since its inception in

December 2009; that on December 14, 2009, Tracy brought Jo.S. to Blanchard

Valley Hospital with a fever and a red, swollen left eye; that a CAT scan of Jo.S.’s

eye revealed that his left orbital bone was fractured; that Tracy explained that

Ja.S., who was one-year old at the time, threw a “sippy cup” at Jo.S.’s eye, causing

the injury (Hearing Tr., p. 33); that the examining physician determined that a one-

year old could not generate the force necessary to fracture Jo.S.’s orbital bone, but

rather the injury was the result of blunt force trauma and consistent with child

abuse (CPSU Exhibit 5); and, that the incident formed the initial basis for

removing the children from Joseph’s and Tracy’s custody.

{¶12} Lauth testified that Jo.S. and Ja.S. were initially placed in Garcia’s

temporary custody; that, based on her observations, she determined that Tracy had

unsupervised custody of the children and that Garcia did not take Jo.S. to a

doctor’s appointment for his injured eye; that based on these incidents she felt that

the children’s safety was at risk in Garcia’s custody, causing CPSU to request and

receive temporary custody of the children. Lauth further testified that CPSU

considered placing the children with their paternal aunt, Emily Danner (hereinafter

“Danner”); that CPSU conducted a home study of Danner’s residence in October

2010; and, that CPSU determined that Danner would not be a suitable placement

for the children.

{¶13} Lauth testified that she met with Joseph and Tracy in January 2010 to

develop a case plan; that during the meeting she identified several areas of

concern, i.e. “reasons for removal,” and developed a plan to address those

concerns (Hearing Tr., p. 68); that those concerns included Joseph’s and Tracy’s

parenting skills, Joseph’s and Tracy’s mental health, substance abuse issues, and

life skills, and Joseph’s anger management (CPSU Exhibit 16, pp. 2, 3, 6); that

Joseph and Tracy were in complete agreement with all aspects of the plan; that she

met with Joseph and Tracy on a monthly basis to review their progress with the

plan’s objectives; that the meetings were initially held either at Tracy’s residence

or CPSU’s office; that during two meetings at Tracy’s residence it appeared as

though Joseph was residing at Tracy’s residence; that beginning in September

2010, she no longer met with Joseph and Tracy outside CPSU’s office as a result

of threats Joseph lodged against her during a counseling session held that month at

Pathways;2 and, that she continued to hold monthly meetings with Joseph and

Tracy at CPSU’s office until the permanent custody hearing.3

{¶14} Lauth testified that the case plan contained five objectives and a

visitation plan; that the plan’s first objective required Joseph and Tracy to attend

parent education classes and filial play therapy at the Family Resource Center; that

2

Pathways provides treatment for individuals suffering from mental health and substance abuse issues.

Hearing Tr., p. 179.

3

Joseph, for reasons unknown, did not attend several of the monthly meetings.

neither Joseph nor Tracy completed this objective because they were

administratively discharged due to a lack of attendance; that the plan’s second

objective required Joseph and Tracy to complete a mental health and substance

abuse assessment and take a life skills group at Century Health; that Tracy

completed all of the required counseling at Century Health; that, despite

completing the counseling associated with the plan’s second objective, Tracy did

not complete the objective because she failed to demonstrate any progress in her

treatment; that Joseph was transferred to Pathways in August 2010, after he

informed her (Lauth) that he would be more comfortable at Pathways; that on

September 7, 2010, during a group counseling session at Pathways, Joseph lodged

threats against her (Lauth) and a counselor; that Joseph was charged with

menacing as a result of the incident and entered a plea of guilty to the amended

charge of persistent disorderly conduct (CPSU Exhibit 14); that Joseph was

administratively discharged from Pathways as a result the incident; that Joseph

failed to complete the plan’s second objective; that the fifth objective required

Joseph to attend anger management counseling at Century Health; that Joseph did

not attend anger management counseling and did not complete the plan’s fifth

objective; that Joseph and Tracy regularly visited the children at Harmony House

for supervised visitation; and, that visitation did not progress from supervised to

unsupervised visitation due to Joseph’s and Tracy’s failure to demonstrate

progress in any of their assigned objectives.

{¶15} Lauth testified that the plan’s third objective required the children to

be assessed for developmental delays; that the plan’s third objective was

completed; that the plan’s fourth objective required the foster parents to ensure the

children attend all necessary medical appointments and receive their

immunizations; and, that the plan’s fourth objective was completed.

{¶16} Lauth testified that since January 2010, the extent of Joseph’s and

Tracy’s relationship with their children has been their two-hour supervised

visitation, which occurred twice every week; that the children had been removed

from the first foster care home due to safety concerns and placed in a second foster

care home, where the children currently reside; that the children recognize their

current foster parents as their primary caregivers, and that they go to them for

comfort, affection, and nurturing; and, that the children’s current foster parents

would not become an adoptive placement.

{¶17} Lauth testified that Joseph and Tracy are unable to provide the

children with an adequate, permanent home now or in the near future; that her

conclusion is based on Jo.S.’s injury, the parents respective mental health and

substance abuse issues, and the parents failure to demonstrate any progress in their

respective treatments; that an extension of the plan would not bring Joseph or

Tracy closer to reunification with their children; that CPSU would have

considered extending the case plan had the parents received some favorable

reports concerning their respective treatments; that, in her opinion, the trial court

should terminate Joseph’s and Tracy’s parental rights and grant CPSU permanent

custody of the children; that adoption would positively benefit the children; and,

that it is “almost certain” that both children would be adopted. Hearing Tr., p.

117.

{¶18} Jennifer Schmidt (hereinafter “Schmidt”), a counselor at Pathways,

testified that Joseph was referred to Pathways in August 2010; that Pathway’s

conducted a mental health and substance abuse assessment of Joseph; that Joseph

was diagnosed with cannabis dependence and antisocial personality disorder; that

Joseph admitted to using cannabis during counseling but would minimize its

effects; that on September 7, 2010, during a group counseling session, Joseph

explained the benefits of cannabis, in particular, that it “helped him from bashing

the face in of his caseworker and it helped him control his anger” (Hearing Tr., p.

189); that she asked Joseph to leave the counseling session due to his

unwillingness to speak negatively about cannabis; that Joseph began yelling at

those in attendance and lodging threats against her; that she feared for her safety

after the incident and filed a complaint with law enforcement; that Joseph was

administratively discharged from Pathways as a result of the incident; and, that she

has had no further contact with Joseph since the incident.

{¶19} Robin Brown (hereinafter “Brown”), a mental health and substance

abuse counselor at Century Health, testified that she worked with Joseph and

Tracy; that in February 2010, Century Health conducted a mental health and

substance abuse assessment of Joseph; that Joseph tested positive for cannabis,

and was diagnosed with cannabis dependence and intermittent explosive disorder

(hereinafter “IED”); that an individual with IED has difficulty controlling his or

her temper; that Joseph acknowledged that he had issues controlling his anger; that

Joseph was administratively discharged from Century Health in July 2010, after

Joseph repeatedly failed to attend required counseling; that in December 2010,

Century Health reopened Joseph’s case; that Joseph, again, tested positive for

cannabis; that since Joseph’s case was reopened he has repeatedly failed to attend

counseling; and, that Joseph’s case with Century Health remains open.

{¶20} Brown testified that in February 2010, Century Health conducted a

mental health and substance abuse assessment of Tracy; that Tracy was diagnosed

with a dependent personality and adjustment disorder with depressed moods; that

an individual with adjustment disorder with depressed moods has difficulty

adjusting to certain situations, causing the individual to be depressed; that an

individual with a dependent personality relies on someone else to make his or her

decisions to a point where he or she cannot separate from the individual on whom

he or she relies; that, in her opinion, it is troubling that Tracy, an individual with a

dependent personality, is in a relationship with Joseph, an individual with IED;

that based on her diagnosis Tracy was referred to the Family Addictions Program;4

that Tracy discussed setting boundaries between her and Joseph, but never

demonstrated any attempts to implement those boundaries; that Tracy made

excuses for Joseph’s cannabis use, explaining that Joseph needed cannabis to

4

Lauth testified that the Family Addictions Program “is designed to help family members who have

members in their family who have an addiction problem, understand the addiction, be able to set limits for

that person, and to help them recognize substance abuse, and how it affects the family and the children.”

Hearing Tr., p. 50.

control his anger (Hearing Tr., p. 226); that Tracy attended all of the required

counseling, and had attained “maximum benefit” (Hearing Tr., pp. 227-28); and,

that despite attending all of the required counseling Tracy made no progress in

remedying her dependent personality.

{¶21} Kari Kessler (hereinafter “Kessler”), an outreach case manager at

Open Arms Domestic Violence and Rape Crisis Services (hereinafter “Open

Arms”), testified that Tracy was referred to Open Arms in July 2010; that Tracy

was enrolled in a victim support group; that Tracy attended all of the support

group’s sessions; that Tracy acknowledged that she was a victim of domestic

violence, but would only concede that verbal abuse was the extent of Joseph’s

violence; that Tracy often minimized Joseph’s abuse; that it was her understanding

that Joseph and Tracy were still in a relationship; that she fears for Tracy’s safety

based on the information she learned during counseling; and, that despite Tracy’s

completion of the counseling, Tracy made no progress in her treatment.

{¶22} After Kessler’s testimony CPSU rested. Joseph and Tracy did not

testify or call any witnesses.

{¶23} Kelly testified that he served as the children’s GAL from January

2010 until the present; that he had prepared a report outlining his findings and

recommendations; that the report was based on his interaction with the children,

reports from the various providers associated with the case (i.e., Century Health,

Pathways, Family Resource Center, Open Arms), the foster care agency, and his

interaction with Joseph and Tracy; that based on these interactions, he

recommended that the trial court grant CPSU permanent custody of the children;

and, that he would be opposed to a six-month extension because it was not in the

children’s best interest. Additionally, Kelly’s report included a section entitled

“Wishes of the Children,” stating, in pertinent part, that “[b]oth children appear to

be bonded to the foster care family members.” CASA Exhibit A, Report and

Recommendations of CASA/GAL, p. 6.

{¶24} Thereafter, the trial court granted CPSU permanent custody of the

children. In doing so, the trial court found, by clear and convincing evidence, that

the children could not be placed with Joseph or Tracy within a reasonable time nor

should the children be placed with Joseph and Tracy; and, that placement in

CPSU’s permanent custody is in the children’s best interest, pursuant to the factors

enumerated in R.C. 2151.414(D)(1).

{¶25} It is from these judgments Joseph and Tracy file separate appeals,

presenting the following assignments of error for our review.

Joseph’s Assignments of Error

Assignment of Error No. I

THE HANCOCK COUNTY JOB AND FAMILY SERVICES

FAILED ITS DUTY TO USE REASONABLE CASE

PLANNING AND DILIGENT EFFORTS AT

REUNIFICATION WITH THE PARENT.

Assignment of Error No. II

THE TRIAL COURT’S DECISION TO TERMINATE THE

APPELLANT’S PARENTAL RIGHTS AND GRANT

PERMANENT CUSTODY TO THE DEPARTMENT IS

AGAINST THE MANIFEST WEIGHT OT THE EVIDENCE.

Assignment of Error No. III

THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY FOR THE CHILDREN BECAUSE IT WAS NOT

IN THEIR BEST INTEREST.

Assignment of Error No. IV

CPSU DID NOT HAVE (SIC) MAKE A GOOD FAITH

EFFORT TO REUNIFY THE APPELLANT WITH HIS

CHILDREN.

Tracy’s Assignments of Error

Assignment of Error No. I

THE JUDGMENT OF THE TRIAL COURT TO GRANT

HANCOCK COUNTY JOB AND FAMILY SERVICES

PERMANENT CUSTODY WAS CONTRARY TO THE

MANIFEST WEIGHT OF THE EVIDENCE.

Assignment of Error No. II

THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY FOR THE CHILDREN BY FINDING THAT THEY

COULD NOT BE PLACED WITH EITHER PARENT

WITHIN A REASONABLE TIME AND THAT IT WAS IN

THEIR BEST INTEREST.

Assignment of Error No. III

THE HANCOCK COUNTY JOB AND FAMILY SERVICES

FAILED ITS DUTY TO USE REASONABLE CASE

PLANNING AND DILIGENT EFFORTS TO ACHIEVE

REUNIFICATION WITH THE PARENT.

{¶26} Due to the nature of Joseph’s and Tracy’s assignments of error, we

elect to address whether CPSU made reasonable efforts to reunite the children

with Joseph and Tracy first. Next, we will address whether the trial court’s

decision was against the manifest weight of the evidence, and whether the trial

court’s decision was in the children’s best interest.

CPSU’s Efforts to Reunite the Children with their Parents

{¶27} In Joseph’s first and Tracy’s third assignments of error, they

similarly contend that CPSU did not make reasonable efforts to reunite them with

their children.5 Specifically, both parents contend that the plan’s objectives were

not designed to remedy the reasons for which the children were removed; and, that

CPSU did not give them a reasonable opportunity to complete the plan’s

objectives. In addition to the foregoing contentions, Joseph contends that CPSU

did not accommodate him or amend the plan when he failed to meet the plan’s

objectives, while Tracy contends that CPSU’s expectation concerning the level of

improvement she had to demonstrate before she completed the plan’s objectives

was unreasonable. Based on the following, we disagree with each of the foregoing

contentions.

Law

{¶28} “R.C. 2151.419 imposes a duty on the part of children services

agencies to make reasonable efforts to reunite parents with their children where

the agency has removed the children from the home.” In re Sorg, 3d Dist. No. 5-

02-03, 2002-Ohio-2725, ¶13, citing In re Brown (1994), 98 Ohio App.3d 337, 344.

5

Due to the similarity between Joseph’s first and fourth assignments of error, we elect to address them

together.

“The agency bears the burden of showing that it made such reasonable efforts.” In

re Sorg, 2002-Ohio-2725, at ¶13, citing R.C. 2151.419(A)(1).

{¶29} “Case plans are the tool that child protective service agencies use to

facilitate the reunification of families who * * * have been temporarily separated.”

In re Evans, 3d Dist. No. 1-01-75, 2001-Ohio-2302, *3. To that end, case plans

establish individualized concerns and goals, along with steps that the parties and

the agency can take to achieve reunification. Id., citing R.C. 2151.412. Agencies

have an affirmative duty to diligently pursue efforts to achieve the goals in the

case plan. Id. “Nevertheless, the issue is not whether there was anything more

that [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

Leveck, 3d Dist. Nos. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶10.

Analysis

{¶30} Both parents contend that the case plan’s objectives were not

designed to remedy the reasons for which the children were removed. However,

Lauth testified that Joseph and Tracy were in complete agreement with every

aspect of the plan, which identified the reasons for removing the children from the

parents’ custody, as well as the means by which the parents could remedy the

reasons for removal.

{¶31} Review of the plan demonstrates that the means prescribed by the

plan to remedy the reasons for removal were reasonably designed to resolve the

issues that precluded reunification.6 The plan’s first objective, which applied to

both parents, identified the need for additional parenting skills. To remedy this

issue Joseph and Tracy were required to attend the Family Resource Center and

follow through with all recommended services including, but not limited to, filial

play therapy, maternal mental health, and promoting first relationships therapy.

The plan’s second objective, which also applied to both parents, identified the

need for a mental health and substance abuse assessment, as well as participation

in a life skills group. To remedy this issue Joseph and Tracy were required to

attend Century Health, which provides treatment for individuals suffering from

mental health and substance abuse issues, and offers a life skills group. The plan’s

fifth objective, which only applied to Joseph, identified the need for anger

management counseling. To remedy this issue Joseph was required to attend

anger management counseling at Century Health.

{¶32} Given the foregoing objectives and the means by which they were to

be achieved, the fact that the parents agreed to every aspect of the plan, and the

counseling and programs to which Joseph and Tracy were referred, we find that

the means prescribed to remedy each of the reasons for removing the children

were reasonably designed to resolve the issues that precluded reunification.

{¶33} In addition to the foregoing contention, Tracy separately contends

that the plan was not developed to address her dependent personality.

6

After thorough review and consideration of the arguments advanced by Joseph and Tracy on appeal, it

appears as though neither parent challenges the reasons for removing the children.

Specifically, Tracy contends that her referral to Open Arms and the Family

Addictions Program bore no relation to treating her dependent personality. First,

this contention does not demonstrate that CPSU failed to diligently pursue the

goals of the case plan, as Century Health, not CPSU, referred Tracy to these

programs. See In re Van Atta, 3d Dist. No. 5-05-03, 2005-Ohio-4182, ¶12.

Furthermore, though it is clear that neither program was specifically developed

with the intention of treating individuals with a dependent personality, Tracy

failed to proffer evidence that participation in these programs confers no benefit to

individuals with a dependent personality. We must be cognizant that Tracy was

referred to the foregoing programs by a mental health professional, Brown, who

testified that the referrals were the direct result of Tracy’s diagnosis.

Consequently, absent evidence challenging the adequacy of Tracy’s course of

treatment, we cannot say that her course of treatment was unreasonable or

otherwise inadequate in treating her dependent personality.

{¶34} Next, both parents contend that CPSU did not give them a reasonable

opportunity to complete the case plan’s objectives. Joseph and Tracy began

working on the plan’s objectives in February 2010. The motion for permanent

custody was filed in November 2010. Accordingly, both parents had roughly ten

months to either complete or demonstrate some progress in completing their

respective objectives.

{¶35} Despite having ten months, Joseph failed to complete or demonstrate

any progress with any of his assigned objectives. This failure was the result of

Joseph’s inaction and behavior, not the lack of opportunity. Specifically, Joseph

failed to complete the plan’s first and fifth objectives due to his lack of attendance,

while he failed to complete the plan’s second objective due to his threatening

behavior. Accordingly, we find that CPSU afforded Joseph a reasonable

opportunity to complete or demonstrate some progress in completing his assigned

objectives.

{¶36} As for Tracy, she too failed to complete her assigned objectives.

Like Joseph, Tracy failed to complete the first objective due to her lack of

attendance. As for the plan’s second objective, Tracy attended all of the required

counseling but demonstrated no progress in remedying her dependent personality.

Had Tracy demonstrated some level of progress, perhaps an extension of time

would have been warranted. However, because Tracy could not demonstrate any

progress after months of counseling it was reasonable for CPSU to conclude that

an extension would have no effect on her ability to complete the second objective.

Accordingly, we find that CPSU afforded Tracy a reasonable opportunity to

complete or demonstrate some progress in completing her assigned objectives.

{¶37} Next, Joseph contends that CPSU made no effort to accommodate

him or amend the case plan. This Court has previously noted that “the Revised

Code only requires that the Agency’s case planning and efforts be reasonable and

diligent under the circumstances of [the case]. The Revised Code does not require

that an Agency walk a parent through every step of the plan; the parent bears some

of the responsibility for accomplishing the objectives of the case plan.” In re S.L.,

3d Dist. Nos. 4-10-09, 4-10-10, 2010-Ohio-6380, ¶56.

{¶38} Joseph’s failure to complete all of his assigned objectives was not the

result of CPSU’s failure to accommodate him or amend the case plan, but rather

was the result of his inaction and behavior. In fact, the record contradicts Joseph’s

contention. Lauth testified that she offered Joseph and Tracy tickets for

transportation to and from counseling. Hearing Tr., pp. 108-09. The record also

reveals that CPSU attempted to accommodate Joseph when it referred him to

Pathways after he informed CPSU that he would be more comfortable at Pathways

instead of Century Health. Despite this accommodation, Joseph was

administratively discharged from Pathways as a result of threatening behavior.

CPSU’s duty to diligently pursue efforts to achieve the case plan’s goals does not

extend to compelling a parent to attend counseling or monitoring the parent’s

behavior. Rather, those responsibilities lie with the parent. Accordingly, a

parent’s failure to attend treatment and control his or her behavior does not render

CPSU’s case planning efforts unreasonable or less than diligent.

{¶39} Finally, Tracy contends that CPSU’s expectation concerning the

level of improvement she had to demonstrate before she completed her assigned

objectives was unreasonable. Whether or not CPSU’s expectation of Tracy was

unreasonable is immaterial, as Tracy, despite having attended all of the counseling

associated with the plan’s second objective, failed to demonstrate any progress.

Absent progress in her treatment, we cannot say that CPSU’s expectation

concerning Tracy’s level of improvement was unreasonable.

{¶40} In light of the foregoing, we find that CPSU made reasonable and

diligent efforts to reunite Joseph and Tracy with their children. Accordingly, we

overrule Joseph’s first and Tracy’s third assignments of error.

Trial Court’s Decision to Grant Permanent Custody to CPSU

{¶41} In Joseph’s and Tracy’s remaining assignments of error, they

contend that the trial court’s decision to grant CPSU permanent custody of the

children was against the manifest weight of the evidence, and that it was not in the

children’s best interest. For the reasons that follow, we disagree.

Standard of Review

{¶42} “It is well recognized that the right to raise a child is an ‘essential’

and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re

Murray (1990), 52 Ohio St.3d 155, 157. Parents have a fundamental liberty

interest in the care, custody, and upbringing of their children. In re Murray, 52

Ohio St.3d at 157; Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388.

However, a natural parent’s rights are not absolute. In re Thomas, 3d Dist. No. 5-

03-08, 2003-Ohio-5885, ¶7. “It is plain that the natural rights of a parent are not

absolute, but are always subject to the ultimate welfare of the child, which is the

polestar or controlling principle to be observed.” In re Cunningham (1979), 59

Ohio St.2d 100, 106, quoting In re R.J.C. (Fla.App. 1974), 300 So.2d 54, 58.

{¶43} Permanent custody determinations made under R.C. 2151.414 must

be supported by clear and convincing evidence. In re Baby Girl Doe, 149 Ohio

App.3d 717, 2002-Ohio-4470, ¶89, citing In re Hiatt (1993), 86 Ohio App.3d 716,

725. “Clear and convincing evidence is the 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 (1986), 25 Ohio St.3d 101, 104. In addition, when “the

degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of fact had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross v.

Ledford (1954), 161 Ohio St. 469, 477, citing Ford v. Osborne (1887), 45 Ohio St.

1. Thus, we are required to determine whether the trial court’s determination was

supported by sufficient credible evidence to satisfy the requisite degree of proof,

In re McCann, 12th Dist. No. CA2003-02-017, 2004-Ohio-283, ¶12, citing In re

Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶16, and, absent an abuse of

discretion, the trial court’s decision must be upheld. In re Robison, 3d Dist. No. 5-

07-41, 2008-Ohio-516, ¶8, citing Masters v. Masters (1994), 69 Ohio St.3d 83, 85;

see, also, In re Rinaldi, 3d Dist. No. 1-02-74, 2003-Ohio-2562, ¶17. A trial court

will be found to have abused its discretion when its decision is contrary to law,

unreasonable, not supported by the evidence, or grossly unsound. See State v.

Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18, citing Black’s Law

Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of discretion standard, a

reviewing court may not simply substitute its judgment for that of the trial court.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

Law

{¶44} “Once a child has been adjudicated dependent, neglected, or abused

and temporary custody has been granted to a children services agency, the agency

may file a motion for permanent custody * * * .” In re Esparza, 3d Dist. Nos. 9-

06-25, 9-06-27, 2007-Ohio-113, ¶25. In determining whether to grant the agency

permanent custody, the trial court must conduct a two-pronged analysis. In re

D.M., 3d Dist. Nos. 5-09-12, 5-09-13, 5-09-14, 2009-Ohio-4112, ¶31. First, the

trial court must determine, by clear and convincing evidence, whether any

conditions enumerated in R.C. 2151.414(B)(1) are present. In re Goodwin, 3d

Dist. No. 17-08-12, 2008-Ohio-5399, ¶21. R.C. 2151.414(B)(1) states, in

pertinent part:

(B)(1) * * * the court may grant permanent custody of a child to

a movant if the court determines * * * by clear and convincing

evidence, * * * 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.

{¶45} In analyzing the condition found in R.C. 2151.414(B)(1)(a), R.C.

2151.414(E) provides several factors for the trial court to consider. In re

Goodwin, 2008-Ohio-5399, at ¶23. If one or more of the factors enumerated in

R.C. 2151.414(E) is found to be present by clear and convincing evidence, the trial

court shall find that the child cannot be placed with the parents within a reasonable

period of time or should not be placed with the parents. Id.; see, also, In re D.M.,

2009-Ohio-4112, at ¶33. The factors enumerated in R.C. 2151.414(E) are, in

pertinent part:

(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 utilization of medical, 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.

(2) Chronic mental illness, chronic emotional illness, mental

retardation, 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;

***

(4) The parent has demonstrated a lack of commitment toward

the child by failing to regularly support, visit, or communicate

with the child when able to do so, or by other actions showing an

unwillingness to provide an adequate permanent home for the

child;

***

(16) Any other factor the court considers relevant.

{¶46} If the condition in R.C. 2151.414(B)(1)(a) is found to be present, the

trial court must address the second prong and determine, by clear and convincing

evidence, whether granting the agency permanent custody is in the child’s best

interest. In re D.M., 2009-Ohio-4112, at ¶33; In re K.H., 3d Dist. No. 5-10-06,

2010-Ohio-3801, ¶30. In making this determination, R.C. 2151.414(D)(1) directs

the trial court to consider the following non-exclusive factors:

(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 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;

(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.

First-Prong of Permanent Custody Analysis

{¶47} In considering the first prong, the trial court found, pursuant to R.C.

2151.414(B)(1)(a), that the children could not be placed with Joseph or Tracy in a

reasonable time and should not be placed with Joseph or Tracy. The trial court

found that many of the factors enumerated in R.C. 2151.414(E)(1-16) had been

proven to exist by clear and convincing evidence.7 In particular, the trial court

found that CPSU had proven the existence of R.C. 2151.414(E)(1) by clear and

convincing evidence. Based on the following, we find that the trial court did not

abuse its discretion, as its finding was supported by clear and convincing evidence.

{¶48} With regard to Joseph, uncontroverted testimony reveals that he

failed to complete his assigned objectives.

{¶49} Lauth testified that Joseph agreed with all aspects of the case plan.

Lauth met, or attempted to meet, with Joseph on a monthly basis to discuss his

progress with his assigned objectives and address any concerns he had in terms of

7

Though the trial court’s judgment entry states that many of the factors in R.C. 2151.414(E)(1-16) were

proven to exist by clear and convincing evidence, it only discussed R.C. 2151.414(E)(1). Because a trial

court need only find that one of the factors in R.C. 2151.414(E) applies, In re D.M., 2009-Ohio-4112, at

¶33, we will focus our discussion on this factor.

completing his assigned objectives. Joseph, however, failed to complete all of his

assigned objectives. Specifically, Joseph failed to complete or attend counseling

associated with the each of his assigned objectives. Lauth further testified that

Joseph routinely visited the children during scheduled supervised visitation, but

explained that visitation did not progress to off-site and unsupervised visitation as

a result of Joseph’s failure to complete or demonstrate any progress in completing

his assigned objectives. Lauth also testified that Joseph was convicted of

persistent disorderly conduct as a result of threatening behavior towards a

counselor at Pathways.

{¶50} Brown testified that Joseph was referred to Century Health in

February 2010. Joseph tested positive for cannabis, and was diagnosed with

cannabis dependence and IED. In response to his diagnosis, Joseph was referred

to individual and group counseling. Eventually, Joseph was administratively

discharged from Century Health due to his repeated failure to attend counseling.

Joseph’s case was, however, reopened at Century Health in December 2010, but

Joseph continued his practice of not attending counseling.

{¶51} Schmidt testified that Joseph was referred to Pathways in August

2010. Joseph was diagnosed with cannabis dependence and antisocial personality

disorder. In response to his diagnosis, Joseph was referred to individual and group

counseling. Joseph’s attendance was intermittent. Schmidt further testified that

during a group counseling session Joseph was asked to discuss the negative

aspects of cannabis. Instead of discussing the negative aspects of cannabis, Joseph

extolled the effects of cannabis, explaining that it “helped him from bashing the

face in of his caseworker and it helped him control his anger.” Hearing Tr., p.

189. As a result of his comments, Schmidt asked Joseph to leave the group, at

which point Joseph hurled expletives at those in attendance and threatened

Schmidt. As a result of Joseph’s violent and threatening behavior he was

administratively discharged from Pathways.

{¶52} Based on the evidence presented, we find that there was clear and

convincing evidence that the children could not be placed with Joseph in a

reasonable time and should not be placed with Joseph. Although Joseph routinely

visited the children during scheduled visitation, the record reveals that he

repeatedly failed to complete his assigned objectives. See In re W.A., 10th Dist.

Nos. 06AP-485, 06AP-486, 2006-Ohio-5750, ¶17 (“Failure to complete significant

aspects of a case plan, despite opportunities to do so, is grounds for terminating

parental rights.”); In re Brofford (1992), 83 Ohio App.3d 869, 878. Given

Joseph’s failure to complete or demonstrate any progress in completing his

assigned objectives, we find that the trial court did not err when it found that the

children could not be placed with Joseph in a reasonable time and should not be

placed with Joseph.

{¶53} As for Tracy, the uncontroverted testimony reveals that she too failed

to complete her assigned objectives.

{¶54} Lauth testified that Tracy agreed with all aspects of the case plan.

Lauth met with Tracy on a monthly basis to discuss her progress with her assigned

objectives and address any concerns she had in terms of completing her assigned

objectives. Tracy, however, failed to complete all of her assigned objectives.

Like Joseph, Tracy failed to complete the first objective due to her lack of

attendance. As for the second objective, Tracy routinely attended required

counseling but demonstrated no progress in her treatment, and consequently did

not complete the second objective. Lauth further testified that Tracy routinely

visited the children during scheduled supervised visitation, but explained that

visitation did not progress to off-site and unsupervised visitation as a result of

Tracy’s failure to complete or demonstrate any progress in completing her

assigned objectives.

{¶55} Brown testified that Tracy was referred to Century Health in

February 2010. Tracy was diagnosed with a dependent personality and adjustment

disorder with depressed moods. In response to her diagnosis, Tracy was referred

to individual and group counseling. Brown was concerned about Tracy’s

relationship with Joseph in light of her dependent personality and his anger

management issues. Tracy discussed setting boundaries between her and Joseph,

but never demonstrated any attempts to implement those boundaries. Instead,

Tracy made excuses for Joseph’s cannabis use, explaining that Joseph needed

cannabis to control his anger. Although Tracy attended all of the required

counseling, Brown testified that Tracy made no progress in remedying her

dependent personality.

{¶56} Kessler testified that Tracy was referred to Open Arms in July 2010.

Tracy acknowledged that she was a victim of domestic violence, but would only

concede that verbal abuse was the extent of Joseph’s violence. In addition, Tracy

routinely minimized Joseph’s abuse. Although Tracy attended all of the support

group’s sessions, Kessler testified that Tracy made no progress in her treatment.

{¶57} Based on the evidence presented, we find that there was clear and

convincing evidence that the children could not be placed with Tracy in a

reasonable time and should not be placed with Tracy. Although Tracy routinely

attended counseling associated with the second objective, the successful

completion of counseling or any other aspect of a case plan is not enough. A

parent can successfully complete the requirements of a case plan, but not

substantially remedy the conditions that caused the children to be removed, as the

case plan is “simply a means to a goal, but not the goal itself.” In re E.S., 8th

Dist. Nos. 95915, 95916, 2011-Ohio-2408, ¶13, quoting In re C. C., 187 Ohio

App.3d 365, 2010-Ohio-780, ¶25. Consequently, the fact that Tracy attended all

of the counseling associated with the second objective is immaterial where the

record demonstrates that Tracy made no progress in remedying the reasons for the

children’s removal. Furthermore, Tracy failed to complete the first objective due

to her lack of attendance. See In re W.A., supra. Given Tracy’s failure to

complete or demonstrate any progress in completing her assigned objectives, we

find that the trial court did not err when it found that the children could not be

placed with Tracy in a reasonable time and should not be placed with Tracy.

Second-Prong of Permanent Custody Analysis

{¶58} In considering the second prong, the trial court found, pursuant to the

factors enumerated in R.C. 2151.414(D)(1), that granting permanent custody to

CPSU was in the children’s best interest. Based on the following, we find that the

trial court did not abuse its discretion, as its finding was supported by clear and

convincing evidence.

{¶59} Initially, Tracy contends that the trial court did not explicitly find

that terminating her parental rights was in the children’s best interest. This Court

has held that the trial court must either specifically address each of the best interest

factors in its judgment entry, or otherwise provide some affirmative indication in

the record that it has considered the same. In re D.H., 3d Dist. No. 9-06-57, 2007-

Ohio-1762, ¶21. Here the judgment entry states, in pertinent part:

* * * [T]he court has considered the lack of 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 cannot be achieved

without granting Permanent Custody to the Hancock County

Job and Family Services-Children’s Protective Services Unit.

The court further has considered the custodial history of the

children along with the wishes of the children, ages 2 and 3, as

expressed to the court by way of recommendation from their

CASA. * * *

Permanent Custody Judgment Entry, p. 3. Having considered the foregoing

language in light of the entire judgment entry, we find that the judgment entry

demonstrates that the trial court considered the factors enumerated in R.C.

2151.414(D)(1) as to Joseph and Tracy.

{¶60} Turning to the best interest factors, the record demonstrates that Jo.S.

and Ja.S. were removed from their parents’ custody in December 2009.8 Jo.S. and

Ja.S. were two months and one-year old, respectively, when they were removed

from their parents’ custody. The children were removed from their parents’

custody as a result of a severe injury to Jo.S.’s eye. Though the cause of the of the

injury was never definitively established, Tracy’s inability to offer a reasonable

explanation as to how the injury occurred combined with the treating physician’s

conclusion that the injury was consistent with child abuse is sufficient for a fact

finder to conclude that the injury was either the result of child abuse or parental

neglect.

{¶61} Since December 2009, the extent of Joseph’s and Tracy’s

relationship and interaction with Jo.S. and Ja.S. has been two-hour supervised

visitation, which occurs twice every week. Joseph and Tracy have routinely

visited the children during scheduled visitation, but have made no progress in

remedying the reasons for which the children were removed, despite having ample

time and opportunity to demonstrate some progress. Meanwhile, the children,

with the assistance of their foster parents, have completed the plan’s third and

fourth objectives. Lauth testified that the children recognize their current foster

parents as their primary caregivers, and that the children go to them for comfort,

affection, and nurturing. Similarly, the GAL’s permanent custody report noted

8

The record contains no evidence of the parents’ relationship or interaction with their children prior to

December 2009.

that the children “appear to be bonded to the foster care family members.” CASA

Exhibit A, Report and Recommendations of CASA/GAL, p. 6. Lauth further

testified that adoption would positively benefit the children, and that it is “almost

certain” that both children would be adopted. Hearing Tr., p. 117.

{¶62} The record further demonstrates that the children are too young to

express their own wishes concerning permanent custody. Consequently, Kelly,

the children’s court appointed GAL, expressed the children’s wishes. In doing so,

Kelly considered his interaction with the children, the foster care agency, the

children’s parents, as well as his review of the reports from the service providers

associated with the case (i.e., Century Health, Pathways, Family Resource Center,

Open Arms). Based on the foregoing, Kelly testified, and his permanent custody

report concluded, that granting CPSU permanent custody would be in the

children’s best interest.

{¶63} Lastly, the record demonstrates that CPSU attempted to place the

children outside the agency. Initially, CPSU attempted to place the children with

their paternal grandmother, Garcia. During the course of Garcia’s temporary

custody, however, there was evidence that Tracy had unsupervised custody of the

children and that Garcia had not taken Jo.S. to a doctor’s appointment for his

injured eye. Consequently, CPSU determined that the children were not safe in

Garcia’s custody, and eventually had them removed. CPSU also conducted a

home study of Joseph’s sister, Danner. Upon completion of the home study,

CPSU determined that Danner would not be a suitable placement for the children.

{¶64} In light of the foregoing, we find that there was clear and convincing

evidence supporting the trial court’s finding that granting CPSU permanent

custody was in the children’s best interest.

{¶65} Accordingly, we find that the trial court’s decision was not against

the manifest weight of the evidence and that the trial court did not abuse its

discretion by granting CPSU permanent custody of the children, as there was clear

and convincing evidence to support its decision.

{¶66} Therefore, we overrule Joseph’s and Tracy’s remaining assignments

of error.

{¶67} Having found no error prejudicial to either Joseph or Tracy herein, in

the particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr