[Cite as In re S.J.,

.]

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

IN RE:

S.J., Jr.

Appellate Case No. 25550

Trial Court Case No. JC 2009-9919

(Juvenile Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 3rd day of July , 2013.

...........

MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Appellee, MCCS

CHARLES W. SLICER, Atty. Reg. #0059927, Slicer Law Office, 111 West First Street, Suite 518, Dayton, Ohio 45402 Attorney for Appellant, R.J.

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

FAIN, P.J. 2

{¶ 1} R.J. appeals from an order of the Montgomery County Juvenile Court overruling her

objections to a decision of a magistrate and awarding permanent custody of her son, S.J., to

Montgomery County Children Services (Agency).

{¶ 2} R.J. contends that the juvenile court abused its discretion in awarding permanent

custody of her child to the Agency, because the record does not support a finding that permanent

custody is in the best interest of the child. She further contends that the Agency failed to make

reasonable efforts at reunification and failed to explore potential placements with relatives or

friends.

{¶ 3} We conclude that the record supports the juvenile court's decision to grant

permanent custody of the child to the Agency. We further conclude that the Agency made

reasonable efforts at reunification and sought information regarding relative and other placement

alternatives. Accordingly, the judgment of the trial court is Affirmed.

I. The Course of Proceedings

{¶ 4} R.J. gave birth to S.J. on October 31, 2009. The child was immediately taken

into the temporary custody of the Agency. In January 2010, the child was adjudicated

dependent. The Agency filed a motion for permanent custody in November 2011. Hearings on

the motion were held in March and May of 2012.

{¶ 5} During the hearings, evidence was presented that the child has substantial

disabilities and is receiving services from Help Me Grow for feeding, occupational and speech

therapy. Despite help from the Agency, R.J. appears unable to grasp the nature of the child’s

developmental delays. 3

{¶ 6} R.J. has a “history of homelessness” and must rely upon relatives for housing.

At the time of the hearings, R.J. and the child’s father were residing in the paternal

grandmother’s home. She is unemployed and has no source of income. Furthermore, she has

mental health issues for which she needs long-term therapy and medication.

{¶ 7} R.J. consented to a case plan formulated by the Agency. The case plan required

R.J. to: (1) attend therapy for mental health issues; (2) obtain her GED; (3) obtain and maintain

stable housing and income; (4) attend visitation with the child; and (5) address personal hygiene

issues.

{¶ 8} R.J. was referred to treatment for mental health issues in 2009. However, she

did not engage in treatment until 2011, and her attendance at therapy has been inconsistent.

Furthermore, she was required to obtain her GED, but failed to complete this objective. R.J. had

no source of income and had no prospect of earning an income. She was denied Social Security

benefits and failed to appeal from that initial denial.

{¶ 9} R.J. and the child’s father were living with the father’s mother. The Agency and

GAL were not granted access to the home until March 2012, shortly before the hearings on the

Agency’s motion for permanent custody. Even then, the paternal grandmother did not permit

access to the entire home; some rooms remained locked during the home visit. At the time of

the home visit, the GAL noted that the home was not appropriate for the child and was infested

with cockroaches. The GAL noted that there were “approximately 7 dogs and 5 cats” in the

home with open litter boxes on both levels of the home. The evidence also indicates that the

dogs are permitted to urinate and defecate inside the home. The home had exposed electrical

wiring and missing plaster. 4

{¶ 10} The record demonstrates that from the time the Agency obtained temporary

custody, visitation was scheduled to occur twice weekly. When R.J. failed to attend “a

significant amount of visits,” the visitation was reduced to one visit per week. Visits for

January, February and March of 2011 were “fairly consistent.” However, from April to

September of 2011, R.J. only attended about half of her scheduled visitations. R.J. then

presented a medical note to the Agency indicating that she “was contagious,” and she did not visit

from October of 2011 until December 20th. The Agency could not ascertain the exact nature of

R.J.’s illness. During the first part of 2012, until the hearing in March, RJ. attended 75% of the

visitations. But the Agency experienced an ongoing problem with R.J. leaving the visitation

prior to the scheduled ending time.

{¶ 11} Finally, RJ. failed to rectify her issues with personal hygiene. The record shows

that S.J. began to get eye infections following visitations. The Agency then demanded that R.J.

shower before arriving for visitation and she wear clean clothes. The Agency informed R.J. that

she needed to keep her fingernails clean, but R.J. stated that she had a “very hard time” getting

her nails clean. Despite “multiple” conversations with R.J. about this requirement, the matter of

cleanliness remained an issue.

{¶ 12} Following the hearing, the magistrate issued a decision granting permanent

custody to the Agency. R.J. filed objections, which were overruled by the trial court. R.J.

appeals.

II. Evidence in the Record Supports the Trial Court’s Finding that an

Award of Permanent Custody to the Agency Is in the Child’s Best Interest 5

{¶ 13} R.J.’s First Assignment of Error states as follows:

THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO MONTGOMERY COUNTY CHILDREN SERVICES

BECAUSE THE AGENCY FAILED TO PROVE BY CLEAR AND

CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE

BEST INTEREST OF THE MINOR CHILD.

{¶ 14} R.C. 2151.414 establishes a two-part test for courts to apply when determining a

motion for permanent custody to a public services agency. The statute requires the court to find,

by clear and convincing evidence, that: (1) granting permanent custody of the child to the

agency is in the best interest of the child; and (2) either the child (a) cannot be placed with either

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

the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and no relatives are

able to take permanent custody of the child; or (d) has been in the temporary custody of one or

more public or private children services agencies for twelve or more months of a consecutive

twenty-two month period. In re K.M., 8th Dist. Cuyahoga No. 98545, 2012–Ohio–6010, ¶ 8,

citing R.C. 2151.414(B)(1).

{¶ 15} R.C. 2151.414(D) directs the trial court to consider all relevant factors when

determining the best interest of the child, including but not limited to: (1) the interaction and

interrelationship of the child with the child's parents, relatives, foster parents and any other

person who may significantly affect the child; (2) the wishes of the child; (3) 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 6

consecutive twenty-two-month period; (4) 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; and (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are

applicable.

{¶ 16} R.J. does not dispute that at the time of the hearing, the child had been in the

temporary custody of the Agency for more than twelve months. She does dispute the trial

court’s finding that it is in S.J.’s best interest to grant permanent custody to the Agency.

{¶ 17} S.J. has resided with the same foster family since he was born and released from

the hospital. The evidence supports a finding that S.J. is bonded with his foster family. The

foster family is willing to adopt S.J. The evidence also shows that R.J. misses many of her

scheduled visitations with the child, and that she leaves early when she does attend.

{¶ 18} Although the child is too young to express his wishes with regard to custody, the

Guardian Ad Litem indicated that the child’s best interests would be served by granting custody

to the Agency. R.J. expresses the desire to retain custody of her son, but she failed to comply

with the terms of her case plan, including visitation, which was designed to aid her in rectifying

the problems that resulted in the Agency’s intervention.

{¶ 19} The trial court found that a legally secure placement could not be achieved unless

the Agency was granted permanent custody. Again, the record demonstrates that R.J. failed to

comply with the terms of her case plan, which would have aided in reunification. Finally, the

trial court noted that R.J. no longer retained legal custody of S.J.’s older half-brother, who was

placed into the legal custody of his paternal grandmother. 7

{¶ 20} A trial court's decision on termination “will not be overturned as against the

manifest weight of the evidence if the record contains competent, credible evidence by which the

court could have formed a firm belief or conviction that the essential statutory elements for a

termination of parental rights have been established.” In re A.U., 2d Dist. Montgomery No.

22264, 2008–Ohio–186, at ¶ 15 (citations omitted). Furthermore, “issues relating to the

credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact.”

In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007–Ohio–3433, at ¶ 22. The “rationale of giving

deference to the findings of the trial court rests with the knowledge that the trial judge is best able

to view the witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v.

City of Cleveland,

,

(1984); In re J.Y., 2d Dist. Miami No.

07–CA–35, 2008–Ohio–3485, ¶ 33.

{¶ 21} Our review of the record, transcript, and exhibits indicates that there is

competent, credible evidence that would allow the trial court to conclude that the statutory

elements for termination under R.C. 2151.414(B) have been satisfied.

{¶ 22} The First Assignment of Error is overruled.

III. The Agency Made Reasonable Efforts to Reunify the Child with his Mother

{¶ 23} R.J.’s Second Assignment of Error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT MONTGOMERY

COUNTY CHILDREN SERVICES BOARD HAD MADE EVERY

REASONABLE EFFORT TO REUNIFY THE MINOR WITH 8

DEFENDANT-APPELLANT OR EXTENDED FAMILY.

{¶ 24} R.J. contends that the Agency failed to prove that it made reasonable efforts to

reunify the child with her. She further contends that the Agency failed to explore possible

relative placements for the child.

{¶ 25} The record demonstrates that the Agency developed the case plan in 2009. Due

to the fact that R.J. is unable to read, the caseworker spent more than two hours explaining the

plan to her. R.J. indicated that she understood the terms of the plan. The caseworker reviewed

the terms of the plan with R.J. on a monthly basis. The Agency made the appropriate referrals

for R.J. with regard to the objectives of her case plan. Despite this, R.J. failed to comply with

her case plan. Based upon this record, we conclude that the Agency did demonstrate that it

exercised reasonable efforts toward reunification.

{¶ 26} We next turn to the claim that the Agency did not explore alternate placement

with friends or family. We have held that consideration whether a child can be placed with a

relative is not required by the statute, although “[t]hat possibility is a matter that ought to be

considered in connection with the child's interaction and relationship with the child's parents,

relatives, foster caregivers, out-of-home providers, and any other person who may significantly

affect the child.” In re S.F., 2d Dist. Montgomery No. 25318,

.

{¶ 27} In any event, in the case before us, consideration was given to the possibility of

placement of the child with a relative; the caseworker attempted to contact relatives, as well as a

family friend. An interstate home study was done regarding the child’s maternal aunt who lived

in Georgia. The results of this home study were negative, due to lack of income and poor home

conditions. The maternal grandmother was contacted, but she eventually indicated that she was 9

not interested in assuming custody. The Agency conducted a home study with regard to the

paternal grandmother, with whom R.J. and the father were residing. Again, the results of the

home study were negative, because the house was unfit for habitation. Furthermore, the paternal

grandmother has a diagnosis of schizophrenia rendering her unable to assume custody. Finally,

the Agency contacted a friend of the family who had indicated interest in custody. That family

moved during the pendency of the case, and did not provide the Agency with contact information.

{¶ 28} We conclude that there is clear and convincing evidence in this record that the

Agency made reasonable efforts to reunify the child and R.J., and that the Agency did explore the

possibility of placing the child with family or friends.

{¶ 29} The Second Assignment of Error is overruled.

IV. Conclusion

{¶ 30} Both of R.J.’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

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FROELICH and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck Matthew T. Crawford Charles W. Slicer Hon. Nick Kuntz