[Cite as In re N.Q.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: N.Q., D.C., H.C. and D.F.

Appellate Case Nos. 25428

Trial Court Case Nos. JC2009-10396 JC2009-10398 JC2009-9915 JC2009-9917

(Civil Appeal from Common Pleas (Court - Juvenile Division) ...........

OPINION

Rendered on the 19th day of July, 2013.

...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for MCCS-Appellee

DARYLE C. TIBBS, Attorney Reg. No. 0085935, 19201 Reed Hartman Highway, #213, Cincinnati, Ohio 45242 Attorney for P.F.-Appellant

DAWN GARRETT, Atty. Reg. No. 55565, 7865 Paragon Road, Suite 107, Centerville, Ohio 45459-4027 Attorney for Minor Child H.C.-Appellee

Representative for PAUL GILBERT, Atty. Reg. No. 10129, 58 Cider Mill Way, Tipp City, Ohio 45371 Guardian ad Litem for Minor Children - N.Q., D.C., H.C. and D.F. ............. 2

WELBAUM, J.

{¶ 1} Appellant, P. F., appeals from a judgment terminating her parental rights and

granting permanent custody of her minor children, N.Q., D.C., H.C., and D.F. to the Montgomery

County Children Services (MCCS). 1 P.F. contends that MCCS failed to prove by clear and

convincing evidence that it made diligent efforts to reunify the children with her. P.F. further

contends that MCCS failed to prove by clear and convincing evidence that reunification is not

possible within a reasonable period of time.

{¶ 2} We conclude that the record contains sufficient clear and convincing evidence

that an award of permanent custody to MCCS is in the best interests of N.Q., D.C., H.C. and

D.F., and that they cannot be placed with either parent within a reasonable time or should not be

placed with either parent. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In early November 2009, MCCS filed a complaint for abuse and dependency,

alleging that P.F.’s minor child, D.C., had a large bruise on his forehead and a laceration on his

finger, and that P.F. had no explanation for the injury. D.C., who was a little over two years old,

had been admitted to Children’s Medical Center due to possible abuse. D.C. was also below

normal height and weight for his age, suggesting failure to thrive, and he appeared

developmentally delayed. The complaint indicated that P.F. had said that she was unable to care

for her children due to her mental status, that she had gone to Miami Valley Hospital on October

1 For privacy purposes, we will use the initials of Appellant and the children. 3

30, 2009, to be admitted for mental health problems, and that she had been referred to Crisis

Care. P.F. reported crying daily and had hit herself over the head with a B.B. gun. P.F. had

four children, including D.F. (male, d.o.b. 1/8/2002); H.C. (female, d.o.b. 7/4/2005); D.C. (male,

d.o.b. 5/9/2007); and N.Q. (female, d.o.b. 1/8/2009). At the time the complaint was filed, P.F.

was twenty-two years old.

{¶ 4} Dependency complaints were filed regarding the three remaining children, and

MCCS was granted temporary custody of all four children in November 2009. The children

were then placed in foster care.2

{¶ 5} Care House monitored the case for the first several months, and then MCCS

caseworker, Sherree Spence, took over in February 2010. Spence met with P.F., and made sure

that she had a copy of the case plan that Care House had prepared. Spence also prepared another

case plan, with the same objectives, and gave it to P.F. The elements of the case plan were

explained to P.F. many times. They included: (1) obtaining and maintaining stable and legal

income and housing; (2) completing a drug and alcohol assessment and following all

recommendations; (3) having a parenting/psychological assessment, and following

recommendations, particularly regarding past abuse so that it does not interfere with the ability to

parent her children; (4) visiting the children on a regular basis consistently; (5) providing

relatives who could possibly take care of the children; and (6) obtaining domestic violence

education.

{¶ 6} The drug and alcohol assessment was a concern because P.F. had admitted to

2 The complaints and orders of custody were filed on various dates in November 2009, but the time frames are irrelevant for purposes of this appeal. 4

regular marijuana use. In this regard, MCCS made two referrals. The first was to Crisis Care

in November 2009. After an assessment, Crisis Care sent P.F. to Day-Mont for treatment. P.F.

was supposed to get group therapy twice a week for mental health and drug treatment. She was

also supposed to have an individual session once a month. P.F. attended two group sessions in

November, seven in December, and one on January 4, 2010, during which she had a panic attack

and had to be escorted out of the group. She did not return to Day-Mont after that.

{¶ 7} When P.F. spoke with Spence in April or May 2010, P.F. said that she was still

engaged in services at Day-Mont. However, this was untrue, as Day-Mont informed Spence that

P.F. had not been seen since January 2010. P.F. also had three drug screens at Day-Mont – one

in November 2009 and two in December 2009. The first and third screens were positive for THC.

{¶ 8} In April 2010, MCCS referred P.F. to Dr. Richard Bromberg for a psychological

and parenting assessment. Bromberg clinically interviewed and psychologically tested P.F. on

April 26, 2010. The tests and checklists that Bromberg administered included: the Personality

Assessment Inventory; the Substance Abuse Subtle Screening Inventory; the Parenting Stress

Index; the Axis II Personality Checklist; and the Child Abuse Potential Inventory (CAPI).

Bromberg also gave P.F. a parenting questionnaire and conducted a mental status examination.

{¶ 9} P.F. told Bromberg that she had marijuana in her system at the time of their

interview. She also said she had been involved with MCCS three times previously – twice about

physical abuse of her children, and once regarding an incident in which one of the children was

left at a mental institution with her.

{¶ 10} P.F. stated that she had never been employed and that her stepfather took care of 5

her completely. In addition, she said she had experienced panic attacks since the age of nine,

which is when Children Services took her away from her own mother due to physical abuse.

P.F. made serious suicide attempts by cutting herself at ages 11, 14, and 16, and was treated for

panic attacks and depression at Grandview Hospital at age 18. P.F. also told Dr. Bromberg that

she had been diagnosed as bi-polar, and had out-patient treatment at Miami Valley Hospital at

age 20.

{¶ 11} Furthermore, P.F. reported daily mood swings and said that the most minor

thing could make her snap. She said she could be violent, and that when her emotions would get

“messed up,” she could have blackouts, which would involve her destroying things, putting holes

in walls, and ripping down doors. P.F. also reported anxiety and rated both her anxiety and

depression at a very high level – nine out of a possible 10.

{¶ 12} Subsequently, Bromberg observed P.F. during a visitation with the children.

He noted that two children had real difficulty during the visitation, and some of the children were

not responsive to P.F.’s attempt to set limits. Based on the tests, interview, and observations,

Bromberg diagnosed P.F. as having bipolar disorder, cannabis abuse, anxiety disorder, and a

somatization disorder, which was a preoccupation with her health conditions and pain.

Bromberg concluded that P.F. was in a serious mental state and needed a great deal of assistance.

He also noted that she showed a high level of stress, anxiety, paranoia, and personality disorder,

and fit the criteria for having a substance abuse disorder.

{¶ 13} In addition, P.F. scored 200 points higher than the 164 point cutoff score of the

CAPI. This test represented P.F. as someone who was really in the “danger zone” when around

children. Bromberg stated that the high cutoff score, together with the additional tests he 6

performed, presented concern over P.F.’s reunification with the children, as related to child

abuse.

{¶ 14} Dr. Bromberg made the following recommendations for P.F.: (1) evaluation by

a psychiatrist for use of psychotropic medication; (2) individual counseling for 12 to 24 months;

(3) outpatient drug treatment and active involvement in two to three Alcoholic Anonymous or

Narcotics Anonymous meetings per week; (4) random drug testing; and (5) parent education

classes. Bromberg expressed concern over P.F.’s ability to pay attention or to participate in

parenting classes due to problems with concentration, ability to focus, and patience.

{¶ 15} In April 2010, Spence also referred P.F. to the Consumer Advocacy Model

(CAM) program, which was a dual-diagnosis program. P.F. first went to CAM in mid-June

2010 and began treatment in July 2010. Drug and alcohol counseling was recommended, and

P.F. was scheduled for group work once a week and for individual counseling once a week.

There were three levels that P.F. was supposed to complete, which would normally take five to

six months.

{¶ 16} Both P.F. and her counselor described her attendance at CAM as “sporadic.”

At the time of the custody hearing, P.F. still had 16 to 17 weeks remaining before she could

possibly complete her treatment program. If P.F. had consistently attended treatment, she would

have been done by the time of the hearing. P.F. gave various excuses for failing to attend,

including that she was not feeling well, was “running late,” or did not have transportation. Both

CAM and MCCS provide bus tokens, but P.F. refused to ride the bus, telling her caseworker that

her ex’s family hated her and was gang-related. She was afraid that his family would see her

and kill her. 7

{¶ 17} During her own testimony, P.F. denied being afraid of people who are in gangs.

She testified that she didn’t like the environment on the bus, and that other people from her past,

being younger, did not like her. She also said she often saw the man against whom she had filed

a protection order. However, P.F. later admitted that she had seen him only once on the bus,

two or three years previously.

{¶ 18} At the final custody hearing in April 2011, P.F. admitted that she had used

marijuana pretty consistently since her children entered foster care in November 2009. While

in the CAM program, P.F. had two clean urine scans in August and September, 2010, but

thereafter, drug tests were positive, and P.F. also acknowledged using marijuana.

{¶ 19} P.F. saw a psychiatrist at CAM and was prescribed Zoloft and Trazodone to

help with her anxiety, sleep, and depression. MCCS was waiting for P.F. to complete substance

abuse treatment with CAM before referring her for further mental health treatment, because she

could not receive treatment from two different providers at once. However, P.F. never progressed

beyond the initial stage of the three stages of substance abuse treatment.

{¶ 20} MCCS felt that domestic violence education was important because all of P.F.’s

significant relationships had been violent toward herself or her children. MCCS referred P.F. to

Artemis sixteen times for domestic violence education, but P.F. never went. The education

involved as little as four weekly classes, and could have been completed in a month. P.F. did

not sign up for the classes because she did not think she needed them. She also stated that

signing up always “slipped” her mind, and that she would sign up if she could just remember.

Trial Transcript, Volume III, p. 473.

{¶ 21} Regarding the case plan objective of consistent visitation, P.F. was scheduled for 8

two hours of visitation per week. She was required to show up for visits one hour early because

several visits had either begun late or were canceled very late, or P.F. simply did not show up at

all. There were also issues with P.F.’s mother, who drove her to visits. P.F.’s mother was

obviously under the influence of some kind of substance and had difficulty walking and standing

upright. Because of this issue, MCCS ultimately had to ban P.F.’s mother from its grounds.

When the caseworker, Spence, told P.F. that her mother would have to leave, P.F. began

screaming and became hysterical at the visitation center, stating that Spence could not tell her

that her mother could not attend visits, and that her mother would be there whether Spence liked

it or not.

{¶ 22} In addition, P.F. spent most of her time at visits with the older two children,

H.C., and D.F. P.F. demonstrated a lot of animosity toward her older daughter, H.C., and spent

a lot of time yelling at her and calling her names. P.F. was also very adamant about demanding

physical affection from her children and having them tell her that they loved her. When H.C.

refused, P.F. would become very upset with H.C., calling her a traitor, stating that she didn’t love

H.C., and that H.C. was not her child. Trial Transcript, Volume II, p. 269. Spence described

P.F. as being frequently overwhelmed during visitation, and as having problems with

supervising, acknowledging, and bonding with the children.

{¶ 23} The visitation department conducted a visitation assessment between March and

May 2010. On the first visit, Mindy Norris, a social program specialist, was present for the last

40 minutes. During this time, P.F. spent the last half-hour cleaning. This was consistent during

every visit. P.F. included the older children in the cleaning, but ignored the younger children.

She also complained in front of the children about the foster families. In addition, P.F. broke 9

out in loud, exuberant song at almost every visit, which did not appropriately fit some situations.

Norris also noted that P.F.’s mood was changeable, switching from being energetic and happy to

suddenly scolding and telling one of the children that his sister was “mean.” Id. at p. 214.

Norris also indicated that P.F. had acknowledged that the two younger children were not very

bonded to her.

{¶ 24} With regard to the objective of maintaining stable and legal income and

housing, P.F. had lived in subsidized housing for about three or four years. At the time of the

custody hearing, a paramour was living with her, which would jeopardize her ability to stay in

Dayton Metropolitan Authority Housing. P.F.’s rent was $25 per month, which her step-father

paid. This amount of rent resulted from temporary employment that she had for a few weeks as

a waitress, but she lost that job because the other waitresses were against her (according to P.F.).

P.F. could have had her rent decreased to zero, but she failed to contact the housing authority to

let them know that she was again unemployed. She was also barred from the Job Center for a

year, beginning in June 2010, because she failed to let them know that her children were not

living with her.

{¶ 25} P.F.’s only source of income was from her step-father, who paid for her rent,

groceries, phone bill, and other expenses. The step-father told MCCS’s caseworker that he was

struggling to maintain his household and P.F.’s as well.

{¶ 26} P.F. had only completed her education through the eighth grade, and was 23 at

the time of the final custody hearings. She had never held a job, other than the brief job as a

waitress, and had failed to obtain her GED, despite being referred by MCCS. P.F. went to a

GED orientation, but left because her anxiety prevented her from staying in a room with multiple 10

people for four hours.

{¶ 27} At the custody hearing, P.F. admitted telling Dr. Bromberg that she could get

violent when her emotions were “messed with.” For example, she said that she had attempted

suicide in front of her boyfriend and best friend, after learning that he had cheated on her with the

friend. At the time of the suicide attempt, her infant son, D.F., was present in his crib. P.F.

stated that:

I have a tendency to prove my point to people through violence * * *

because I feel like I’m the stronger one. So I know I would have gone to jail if I

cut one of them, so I can’t go to jail if I cut myself, so that’s what I proved to

them. I did it in front of them and to prove a point * * * . Trial Transcript,

Volume III, p. 509.

{¶ 28} Finally, with regard to the case plan objective of providing relatives who were

suitable for caring for the children, the known biological fathers of the children either refused to

establish paternity or did not desire contact with the children. P.F.’s step-father was investigated

for possible placement, but he had a criminal conviction which made it inappropriate for him to

care for the children. A non-relative of D.F. was also investigated, but her criminal record also

eliminated her for placement. P.F. never gave the agency names of possible placements.

{¶ 29} The children were doing well in their foster-care placements, and the agency

believed they were all adoptable. D.C., the child who had been physically abused, had been with

the same foster parent for seventeen months. When D.C. was hospitalized before going into

foster care in November 2009, he had paper plates and feces in his digestive system, in addition 11

to having been physically abused. When the foster mother picked D.C. up from the hospital, he

was withdrawn, was very pale, and would not smile. She was told that he was likely a dwarf

because of his size. D.C. was only 32 inches tall and weighed only 25 pounds at 18 months of

age. Seventeen months later, D.C. weighed 45 pounds and was 42 inches tall. He was average

size for his age and was very talkative.

{¶ 30} Parenting classes were not a specific case objective, but were recommended by

Dr. Bromberg. MCCS did not implement parenting classes until September 2010 (and then only

at the request of P.F.’s attorney), because the agency was waiting until P.F. was capable of

paying attention and participating.

{¶ 31} MCCS indicated that P.F. had not completed most of her case plan objectives,

and that the agency did not believe that she could complete her objectives in a reasonable amount

of time. MCCS also indicated that the agency did not believe P.F. would be able to parent her

children in a reasonable amount of time, and that an award of permanent custody to the agency

was in the best interests of the children.

{¶ 32} In September 2010, MCCS filed motions seeking permanent custody of the

children. The trial court then appointed counsel for P.F., and appointed a guardian ad litem

(GAL) for the children. Subsequently, in late October 2010, the GAL filed a motion, asking the

court to order an independent mental evaluation of P.F. by Dr. James Barna. In addition, the

GAL moved to dismiss the permanent custody motion, based on the alleged unconstitutionality

of R.C. 2151.414.

{¶ 33} After the trial court ordered an independent mental evaluation, Dr. Barna

administered the following tests to P.F.: (1) the Minnesota Multi-Phasic Personality Inventory-2 12

(MMPI-2); (2) verbal reasoning tests from the Wechsler Adult Intelligence Scale; and (3) the

CAPI test (the child abuse potential test that had already been administered by Dr. Bromberg).

Dr. Barna also received Dr. Bromberg’s report as well as Bromberg’s computer-generated reports

and scoring profiles.

{¶ 34} In addition, Dr. Barna observed P.F. during several visitation sessions at the

visitation center. During the first visitation, Barna stayed only 20 minutes because P.F. was

distraught. Barna left a message with the MCCS caseworker indicating that P.F. was “out of

control,” and that he was not going to be able to stay to supervise the visit that day. Trial

Transcript, Volume II, p. 276.

{¶ 35} Barna was not able to interpret P.F.’s CAPI test results because she appeared to

be adopting what is called a “fake-good” approach to the test. The MMPI-2 results for the

second half of the test were also invalid. Barna concluded that the results of the intelligence test

indicated that P.F. had average verbal reasoning intelligence. He, therefore, concluded that if

P.F. possessed such reasoning scores, she had the capacity to learn whatever she needed to parent

her children. He further stated that P.F. had “at worst” intermittent mild depression, and that

she had “the requisite capacity to parent her biological children.” Defendant’s Ex. A, p. 15.

{¶ 36} During his report and testimony, Dr. Barna spent the majority of his time

criticizing Dr. Bromberg’s testing and evaluation. Barna testified that he did not recall telling

the State’s attorney on February 11, 2011, that P.F. was not doing very well. He also did not

recall telling the MCCS caseworker that P.F. was out of control, although he did recall that she

was very distraught and that he left the visitation session early as a result.

{¶ 37} Barna attached no clinical significance to the prior diagnosis of bipolar disorder. 13

He also did not know that P.F.’s treatment for panic attacks and depression six years earlier

were significant issues. Barna further ascribed no importance to P.F.’s self-report of panic

attacks and that the smallest things made her snap. In addition, Barna did not administer a

substance abuse test because he felt that P.F.’s described use of marijuana was recreational.

Finally, Barna found no evidence of paranoia despite P.F.’s high score on the paranoia index.

{¶ 38} Barna concluded that any elevation in P.F.’s paranoia score was solely caused

by the involvement of MCCS. In checking the results for the MMPI-2, Barna noted which

paranoia-related questions had been marked true. Barna then asked P.F. what the particular

response referred to. When P.F. said that her response had referred to MCCS, Barna eliminated

the response. Barna indicated that when he eliminated those responses, P.F.’s paranoia score

was within a normal range. Barna admitted that the manual for the MMPI-2 does not provide

for reading questions to patients.

{¶ 39} As an additional matter, Barna contradicted himself during his testimony. He

first said that he was not aware of the bipolar disorder diagnosis when he wrote his report. He

then stated that he was aware of the bipolar disorder diagnosis before he wrote the report. Trial

Transcript, Volume II, p. 380. The magistrate also noted on the record at one point, that Barna

was yelling when he was being cross-examined by the State. Id. at pp. 393-394.

{¶ 40} Finally, in response to a question from the trial court about what “capacity to

parent” means, Barna said it meant that P.F. could adequately parent her children, but needed

help. Barna stated that “She’s got too many children too close. You give them to her right

today, it’s going to be a disaster.” Id. at p. 450.

{¶ 41} At the conclusion of the hearing, the GAL recommended a second extension of 14

temporary custody in order to implement parenting classes and Dr. Barna’s recommendations.

The magistrate then filed a decision granting permanent custody of the four children to MCCS.

{¶ 42} Both P.F. and the GAL filed objections to the magistrate’s decision.

Subsequently, the trial court overruled the objections, concluding that the children could not be

placed with either parent within a reasonable period of time or should not be placed with either

parent. The trial court further found that a grant of permanent custody of the children to MCCS

was in the best interests of the children. P.F. appeals from the judgment granting permanent

custody to MCCS.

II. Did MCCS Fail to Prove Diligent Efforts

to Reunify the Mother and Children?

{¶ 43} P.F.’s First Assignment of Error is as follows:

The Agency Failed to Prove by Clear and Convincing Evidence that It

Provided Diligent Efforts to Reunify the Children With Mother.

{¶ 44} Under this assignment of error, P.F. contends that MCCS failed to prove by

clear and convincing evidence that it made diligent efforts to reunify P.F. with her children.

According to P.F., MCCS made it impossible for her to reunify with her children by placing

stipulations on visitations, by refusing to provide referrals for parenting classes, and by requiring

case plan objectives that had no relationship to why MCCS initially became involved. P.F. also

argues that she complied or substantially complied with her case plan objectives.

{¶ 45} R.C. 2151.414(B)(2) provides that a trial court “shall grant permanent custody

of the child to the movant if the court determines in accordance with division (E) of this section 15

that the child cannot be placed with one of the child's parents within a reasonable time or should

not be placed with either parent and determines in accordance with division (D) of this section

that permanent custody is in the child's best interest.”

{¶ 46} In the case before us, the trial court concluded that the children could not be

placed with either parent within a reasonable time, or should not be placed with either parent,

based on R.C. 2151.414(E)(1). This part of the statute provides 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,

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.

{¶ 47} The trial court noted that MCCS had made diligent efforts to provide services

and referrals, and that P.F. had failed continuously and repeatedly to substantially remedy the

conditions causing the children’s placement outside the home. In particular, the court stressed

P.F.’s failure to complete outpatient treatment at Day-Mont and CAM, her continuous use of

marijuana throughout her involvement with MCCS, and her failure to complete parenting classes. 16

{¶ 48} The record supports the trial court’s conclusion. The problems that initially

caused the children to be placed outside the home were P.F.’s admission that she could not take

care of the children due to her mental health problems, and the condition of D.C., who was

significantly undernourished and appeared to have been physically abused. According to P.F.,

one of the other children had been physically abused previously by the child’s father. P.F. stated

that she was the one who took the blame for the abuse. No matter who abused the children,

P.F., at a minimum, failed to protect them from harm.

{¶ 49} The case plan objectives – which included obtaining stable and legal housing

and income, drug and mental health assessments, domestic violence education, consistent

visitation, and parenting/psychological assessments – were directly related to these issues.

Despite having been afforded substantial assistance and many referrals for treatment, P.F. failed

to make even minimal progress toward resolving the issues that caused the children to be

removed. In fact, some things, like domestic violence education, she simply refused to do.

P.F.’s ongoing issues with violence, in addition to the matters already mentioned, included an

incident in November 2010, when she reported to her caseworker that she had gotten into a fight

and had sustained a broken collarbone and bruises.

{¶ 50} The stipulations on visitation were caused by P.F.’s failure to appear at

visitation, or to appear in a timely manner. Furthermore, the time stipulation was not an undue

restriction – the agency simply required P.F. to appear an hour before visitation was to begin, so

that the agency, foster parents, and children could be assured that she would be present. There

was no reason for the children to be subjected to the stress of appearing for visits that their

mother failed to attend. MCCS also acted reasonably in barring P.F.’s mother from visitation, 17

because she was under the influence of some type of substance during visitations.

{¶ 51} In addition, MCCS did not refuse to provide P.F. with referrals for parenting

classes. The testimony indicates that P.F. was unsuccessful throughout the case at attending any

group activity. She also lacked the attention span required to participate. There was no reason

to believe that she would be able to participate in parenting classes, but MCCS scheduled them

anyway, at P.F.’s request. Furthermore, by her own admission at the hearing, P.F. had not

attended any parenting classes and had missed recent appointments for parenting classes because

she was allegedly looking for some other kind of provider. Thus, even though P.F. was given an

opportunity to attend parenting classes, she made no effort to do so.

{¶ 52} As an additional matter, Dr. Bromberg indicated that the first thing that needed to

take place was for P.F. to stop taking marijuana, because this impacted everything else.

However, P.F. continued to consistently use marijuana, even up to the time of the custody

hearings.

{¶ 53} The remainder of P.F.’s discussion in connection with this assignment of error

focuses on her compliance or substantial compliance with case plan objectives. We have

thoroughly reviewed the record and find no support for P.F.’s position. Accordingly, the First

Assignment of Error is overruled.

III. Did MCCS Fail to Prove by Clear and Convincing Evidence

that Reunification is Not Possible Within a Reasonable Period of Time?

{¶ 54} P.F.’s Second Assignment of Error states that:

The Prosecution Did Not Prove by Clear and Convincing Evidence that 18

Reunification With Mother Is Not Possible Within a Reasonable Period of Time.

{¶ 55} Under this assignment of error, P.F. contends that MCCS failed to prove that

she lacked capacity to provide adequate parental care. In this regard, P.F. focuses on the

differing opinions of the two expert witnesses. Specifically, Dr. Barna testified that P.F. had the

capacity to parent her children. He also suggested staggered visitation and participation in

parental skill building. Dr. Bromberg’s opinions have already been discussed.

{¶ 56} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is

required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of

the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford,

,

(1954), paragraph three of the syllabus.

{¶ 57} In the case before us, the triers of fact were the trial judge and magistrate, who

were both aware of Dr. Barna’s testimony. The magistrate, who heard the witnesses,

specifically found Dr. Bromberg’s testimony credible and did not rely on Barna’s testimony.

After reviewing the objections to the magistrate’s decision, the trial court noted Barna’s opinion,

but also stressed Barna’s statement that giving the children to the mother right away would be a

disaster.

{¶ 58} The trier of fact is “ ‘in the best position to weigh the evidence and evaluate the

testimony.’ ” In re C.C., 10th Dist. Franklin Nos. 04AP–883, 04AP–884, 04AP–885,

04AP–886, 04AP–887, 04AP–888, 04AP–889, 04AP–890, 04AP–891, and 04AP–892,

, quoting In re Brown,

,

(3d

Dist. 1994). (Other citation omitted.) 19

{¶ 59} “ ‘Weaknesses in the factual bases of an expert's testimony go to the weight and

credibility of the expert's testimony * * *.’ ” In re G.K., 9th Dist. Summit Nos. 24276, 24278,

, quoting Dejaiffe v. KeyBank USA Natl. Assn., 6th Dist. Lucas No.

L-05-1191,

. The Sixth District Court of Appeals also observed in G.K.

that:

[O]nce expert testimony is properly before the trial court, the “burden falls on the

opposing party to discredit or minimize the expert's testimony through

cross-examination.” Johnson v. Knipp (1973),

,

. It then becomes the role of the trier of fact to assess the expert's

credibility and to assign weight to the expert's testimony and opinions.

(Citations omitted.)

{¶ 60} In the present case, the trial magistrate and trial court were not required to

believe Dr. Barna’s testimony. Evidence in the record supports the decision to accord little

weight to Barna’s testimony, including the fact that he contradicted his own testimony and the

fact that a good deal of his test results were invalid.

{¶ 61} We have previously concluded that the agency made diligent efforts to reunify

P.F. with the children. Furthermore, the fact that an individual may have sufficient intelligence

to comprehend child-rearing principles does not mean that the person is, therefore, capable of

properly assimilating and employing them. The testimony at trial indicates that P.F. was

redirected many times with respect to things that she should be doing during visitation, like

paying attention to all her children, attending to their needs, and so forth. However, she was

never able to adequately assimilate instructions. She continued to make the same mistakes, and 20

also belittled her children, calling them names like “traitor” when they failed to do what she

wished. The testimony clearly indicated that P.F. had no idea how to parent her children and

was overwhelmed by simple tasks. There was no indication, after a year and a half of little to no

progress, that she would ever be able to effectively parent the children.

{¶ 62} Accordingly, the Second Assignment of Error is overruled.

IV. Is Granting Permanent Custody to the Agency

in the Best Interests of the Children?

{¶ 63} P.F.’s Third Assignment of Error is as follows:

The Grant of Permanent Custody Is Not in the Best Interests of the Children.

{¶ 64} Under this assignment of error, P.F. contends that MCCS failed to prove that

permanent custody is in the best interests of the children based on the factors in R.C.

2151.414(D).

{¶ 65} R.C. 2151.414(D) provides, in pertinent part, as follows:

(1) In determining the best interest of a child at a hearing held pursuant to

division (A) of this section or for the purposes of division (A)(4) or (5) of section

2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall

consider all relevant factors, including, but not limited to, the following:

(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 21

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.

{¶ 66} After considering R.C. 2151.414(D), the magistrate concluded that granting

permanent custody to MCCS was in the best interests of the children. The trial court agreed.

P.F. contends on appeal that MCCS failed to present evidence that she met any of the factors in

R.C. 2151.414(E)(7)-(11). As a result, she contends that MCCS did not clearly and

convincingly prove that permanent custody to the agency is in the best interests of the children.

{¶ 67} This particular issue was not raised in P.F.’s objections to the magistrate’s

decision. Instead, P.F. generally objected to the determination that permanent custody was in

the best interests of the children, and supported her objection by citing parts of the record that 22

contained statements of the two eldest children about whether they wanted to be with their

mother. See, e.g., Case No. 2009-10398, Supplemental Objections of P.F. To Magistrate’s

Decision and Judge’s Order Granting Motion for Permanent Custody, Doc. # 21, pp. 10-11.3

Accordingly, we conclude that P.F. waived this argument, absent plain error. See, e.g., In re

A.J.S., 2d Dist. Miami No. 2007 CA 2,

.

{¶ 68} In Goldfuss v. Davidson,

,

(1997), the

Supreme Court of Ohio held that:

In appeals of civil cases, the plain error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances where

error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging

the legitimacy of the underlying judicial process itself. (Citations omitted.)

at syllabus.

{¶ 69} The circumstances of the case before us do not present a situation where the

plain error doctrine should be applied. The factors involved in R.C. 2151.414(E)(7)-(11)

involve matters such as whether a parent has been convicted of feloniously assaulting a sibling

or other child who lived in the parent’s household; whether the parent has withheld food or

medical treatment when the parent had means to provide the food or treatment; whether the

parent has abandoned the child; or whether the parent has previously had parental rights

involuntarily terminated. If such evidence had been presented, it would have militated in favor

3 The record includes documents filed in separate cases for each of the four minor children, but the relevant pleadings are essentially the same. For purposes of convenience, we have referred to the objections in D.F.’s case. 23

of awarding permanent custody to the agency. The absence of such evidence is, at best, a

neutral factor and would not have assisted P.F. Consequently, any error in this regard would

have been harmless.

{¶ 70} In arguing that granting MCCS permanent custody is not in the children’s best

interests, P.F. also points to the following: (1) testimony that her visitations were inconsistent

until she had reliable transportation in December 2010; (2) her own testimony that she is bonded

with her children; (3) the fact that D.F. wants to return to her, that H.C. is ambivalent, and that

two of the children are too young to express their wishes; and (4) the fact that adoption of the

children is not guaranteed.

{¶ 71} The Eighth District Court of Appeals has consistently held that “only one of the

factors set forth in R.C. 2151.414(D) needs to be resolved in favor of the award of permanent

custody in order for the court to terminate parental rights.” (Citations omitted.) In re Z.T., 8th

Dist. Cuyahoga No. 88009,

. We have followed a similar approach. See

In re R.L., 2d Dist. Greene Nos. 2012CA32, 2012CA33,

(noting that

“[n]ot every statutory condition must be met before a determination regarding best interest may

be made.”). The case before us presents more than one reason for terminating parental rights, as

both the magistrate and trial court concluded that custody to the agency was in the children’s best

interest under all four factors set forth in R.C. 2151.414(D)(1)(a)-(d).

{¶ 72} Because the trial court is clothed with substantial discretion in making decisions

on the best interests of the children, “the proper standard for review of that decision is abuse of

discretion.” In re K.H., 2d Dist. Clark No. 2009-CA-80,

, ¶ 66. After

reviewing the record, we find no abuse of discretion. 24

{¶ 73} The trial court was not required to credit P.F.’s testimony about her bond with

the children. Instead, the court noted that P.F.’s interactions with the children had generally not

been positive, that throughout her involvement, visitation was sporadic, that P.F. had called her

child names like “traitor,” and that P.F. seemed completely overwhelmed by the children during

visitation and had to be constantly reminded to attend to and acknowledge all the children. The

children were also doing very well in foster care. R.C. 2151.414(D)(1)(a). Evidence in the

record supports these findings. Furthermore, the children had been in the temporary custody of

MCCS from November 2009 through April 2011 (the date of the final custody hearing), or for a

period of approximately seventeen months – thus qualifying under R.C. 2151.414(D)(1)(c).

{¶ 74} With regard to R.C. 2151.414(D)(1)(b), which refers to the children’s wishes,

only two children were old enough to express a preference. Only one of these children, D.F.,

who was the eldest, expressed a preference for staying with his mother. However, the trial court

could properly have chosen to accord little weight to D.F.’s preference, given P.F.’s criticism and

attempts to influence the children against their foster families. For example, P.F. was observed

complaining in D.F.’s presence about the foster families and D.F.’s appearance. As another

example, an incident occurred during a different visitation, when H.C. gave D.F. a piece of

candy, and D.F. cried because he wanted more. P.F. stated to H.C. in D.F.’s presence: “Why

don’t you give him more candy; what is wrong; you didn’t use to be like this before foster care;

you are a totally different child than you were before you went into foster care.” Trial

Transcript, Volume II, p. 225.

{¶ 75} Finally, regarding the possibility of adoption, the Tenth District Court of

Appeals has noted that “[n]othing appears in the current version of R.C. 2151.414(D) that would 25

indicate the trial court must consider the probability that the child will be adopted before granting

permanent custody.” (Citations omitted.) In re A.S., 10th Dist. Franklin Nos. 05AP–351,

05AP-352,

. Although the statute has since been amended, the reference in

R.C. 2151.414(D)(1)(d) to a “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,” has

remained unchanged. The legislature has not chosen to add a requirement of probability of

adoption before granting custody.

{¶ 76} The Tenth District Court of Appeals also correctly observed that “[a]doption

into a secure, safe environment, whether it be with [the foster parent] or any other family, cannot

take place without [the agency] first gaining permanent custody * * *.”

{¶ 77} The evidence before the trial court indicated that the children are adoptable, and

that the foster parents of three of the children had expressed interest in adopting them. The

fourth child, D.F., had been recently transferred to a different foster home, but he was bonded

with that family and adored his current school. In addition, the evidence indicated that no

appropriate placements, other than those associated with permanent custody, existed.

{¶ 78} In light of the foregoing discussion, the trial court did not err in concluding that

granting MCCS permanent custody is in the best interests of the children. Accordingly, the

Third Assignment of Error is overruled.

V. Conclusion

{¶ 79} All of P.F.’s assignments of error having been overruled, the judgment of the

trial court is affirmed. 26

.............

FROELICH and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck Kirsten A. Brandt Daryle C. Tibbs Dawn Garrett Representative for Paul Gilbert Hon. Anthony Capizzi