[Cite as In re C.C.,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

IN THE MATTER OF: C.C., J.H., AND : OPINION M.H., DEPENDENT CHILDREN. : CASE NOS. 2016-T-0050 : and 2016-T-0058

:

Appeals from the Trumbull County Court of Common Pleas, Juvenile Division, Case No. 2007 JC 00246.

Judgment: Affirmed.

Tammy Richardson, Trumbull County Children Services Board, 2282 Reeves Road, N.E., Warren, OH 44483-4354 (For Appellee – Trumbull County Children Services Board).

Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH 44123 (For Appellant – J.H.).

Kimberly Anne Valenti, P.O. Box 1149, Hudson, OH 44236 (For Appellant – Rachel Wargo.)

Kristie M. Weibling, Kristie M. Weibling, L.L.C., 3685 Stutz Dr., Suite 100, Canfield, OH 44406 (Guardian ad litem).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} In these consolidated appeals, appellants, Rachel Wargo (“mother”) and

J.H., age ten, appeal the judgment of the Trumbull County Court of Common Pleas,

Juvenile Division, terminating mother’s parental rights over J.H.; his step-sister, C.C.,

age 13; and his sister, M.H., age eight, and granting appellee, Trumbull County Children Services Board (“the agency”) permanent custody. The principal issue is whether the

trial court’s judgment was supported by sufficient, credible evidence. For the reasons

that follow, we affirm.

{¶2} I. PROCEDURAL HISTORY

{¶3} This case has a long and sad history. On August 13, 2007, the agency

filed a complaint alleging that Me.C. (J.H.’s oldest step-sister), then age eight; and Mi.C.

(J.H.’s step-brother), then age six (neither being involved in these appeals); and C.C.,

then age four; and appellant, J.H., then age two, were dependent and requesting

temporary custody. The complaint alleged that Rachel Wargo was the children’s

mother; that her boyfriend, Michael Hanick (“Hanick”), was J.H.’s father; and that they

lived in a trailer in Vienna, Ohio. The complaint further alleged that Earl Carroll was the

father of Me.C., Mi.C. and C.C. The complaint alleged that on August 9, 2007, police

were called to the trailer. Mother said that Hanick had been drinking and had struck

Mi.C. and C.C. Police arrested Hanick for domestic violence and removed him from the

trailer. The complaint alleged that on August 10, 2007, while in the Girard Municipal

Court, mother and Hanick made statements demonstrating they were unable to protect

the children from further harm.

{¶4} The court issued an emergency ex parte temporary custody order in favor

of the agency for the purpose of foster care placement pending a determination of the

dependency complaint. An adjudicatory hearing was held in September 2007. Me.C.

said that Hanick had sexually abused her. However, due to the lack of physical

evidence, the only finding was that the four children (Me.C., Mi.C., C.C., and J.H.) were

dependent.

2 {¶5} In December 2007, mother and Hanick had their second child, M.H. She

was added to the case plan. In July 2009, the children (Me.C., Mi.C., C.C., and J.H.)

were returned to mother and Hanick. As a condition of their return, mother was required

to obtain a home with at least three bedrooms to accommodate the children.

Consequently, mother left the trailer and moved into rental housing in McDonald, Ohio

with Hanick, and legal custody was restored to them. Hanick underwent services to

address Me.C.’s allegations and was released with no issues noted.

{¶6} In April 2014, Me.C., then age 14, told a guidance counselor at school that

Hanick was sexually molesting her again. Ex parte custody of Me.C. was granted to the

agency. On April 7, 2014, the agency filed a complaint alleging that Me.C., Mi.C., C.C.,

J.H. and M.H. were dependent children and that Me.C. was also an abused child.

Me.C. was removed from the home via an ex parte temporary custody order.

{¶7} On April 30, 2014, Me.C. was found to be abused and remained in the

agency’s custody. The other four children (Mi.C., C.C., J.H., and M.H.) were found to

be dependent and allowed to remain with mother under a protective supervision order.

Pursuant to the protective supervision order, dated April 30, 2014, Hanick was ordered

not to return to mother’s home. The protective supervision order also ordered the

custodian of the children, i.e., mother, to follow that order. Thus, mother was ordered to

keep Hanick out of the house. However, mother failed to comply with this order and

allowed Hanick to remain.

{¶8} In late May 2014, Me.C. was placed with her paternal grandfather. During

a visit at their grandfather’s home, C.C. told Me.C. that Hanick had touched her private

parts on several occasions. Me.C. reported this to her caseworker, Megan Martin. C.C.

3 told Ms. Martin that Hanick put his fingers in her private part. Another referral was

made based on C.C.’s report. On May 27, 2014, the agency filed a motion requesting

an emergency ex parte order removing Mi.C., C.C., J.H., and M.H. from mother and

placing them in the agency’s temporary custody. Court filings alleged that, according to

the police, the McDonald rental was in deplorable condition with so much clutter police

could not get through the front door. In addition, M.H., then age six, was “filthy dirty.”

The order was granted and the children were placed in foster care.

{¶9} On July 12, 2014, at the disposition hearing, C.C.’s report of sexual abuse

was substantiated and the home was noted to be filthy. C.C., J.H., and M.H. were

ordered to remain in the agency’s temporary custody, and Me.C. and Mi.C. were

ordered to remain in the temporary custody of their paternal grandfather.

{¶10} Meanwhile, Hanick was indicted on two counts of rape committed against

Me.C. and two counts of rape committed against C.C. He pled guilty to all counts.

Twelve-year old C.C. told the Judge that Hanick ruined her life. Hanick apologized to

both girls in open court for raping them. He was sentenced to serve a term in prison of

ten years to life concurrently for each count, with ten years being mandatory.

{¶11} On March 13, 2015, the agency filed a motion for permanent custody of

C.C., J.H. and M.H. The two fathers of these three children did not participate in the

permanent custody hearing. C.C.’s father, Earl Carroll, voluntarily surrendered parental

rights over Me.C., Mi.C., and C.C. to the agency.

{¶12} II. THE TRIAL TESTIMONY

{¶13} The case was heard by the court’s magistrate over two days, on October

20, 2015, and December 9, 2015. Megan Martin, the children’s first caseworker,

4 testified that in 2007, Me.C., age eight, told her and mother that Hanick was sexually

abusing her. Five years after the children, including Me.C., were returned to mother, in

April 2014, Me.C. told Ms. Martin that Hanick was abusing her again. She told Ms.

Martin that Hanick had sexual intercourse with her many times. Mother told Ms. Martin

she did not believe Me.C.’s allegations. After the other four children were returned to

mother, in late May 2014, C.C. told Ms. Martin that Hanick was molesting her. Mother

told Ms. Martin that Me.C. and C.C. were lying about being raped because there was no

physical evidence. However, Ms. Martin told mother that Hanick’s saliva was found in

C.C.’s underwear. Despite this DNA evidence, mother still did not believe C.C.

{¶14} Ms. Martin said that mother’s refusal to believe Me.C. and C.C., even after

Hanick pled guilty, shows mother is unable to protect the children.

{¶15} Jessica Watkins, the children’s present case worker, testified that in 2008,

a case plan was developed to address the family’s needs. Mother and Hanick were

given case plan goals, but this was before he was arrested. Earl Carroll, the Carroll

children’s father, did not participate in the case plan and so he had no goals.

{¶16} Mother’s case plan goals were: (1) to maintain independent and stable

housing, (2) to earn a stable income to support her family, (3) to obtain a mental health

assessment and follow any recommendations of her mental health care providers, and

(4) to take parenting classes. Ms. Watson said that mother attended parenting classes

and thus completed that goal, but failed to complete any of her other case plan goals.

{¶17} As for housing, Ms. Watkins said she was concerned about mother’s

ability to maintain housing due to her financial instability. She was evicted from her

rental in McDonald three months before trial in July 2015, due to non-payment of rent,

5 which was past due in the amount of $7,000. Ms. Watkins was also concerned because

mother did not keep that house clean. The rental house was dirty and very cluttered

and dog feces was observed on the floor. Due to mother’s lack of income, she moved

back into the trailer with her ex-husband, Earl Carroll.

{¶18} Ms. Watkins said she has been inside the trailer where mother currently

resides with Earl. She said it is small and cluttered. It has two bedrooms. Earl sleeps

in one bedroom; he keeps his belongings in the second bedroom; and mother sleeps on

a couch in the living room. Ms. Watkins said there is insufficient space for the children

to live in the trailer if they were to be reunited with mother. There are no beds,

dressers, blankets, or sheets that the children could use. She said that, even if Earl

was no longer living in the trailer, there would not be enough room for mother and the

children. Ms. Watkins said they would need at least three bedrooms. Ms. Watkins said

mother has thus not met her goal of maintaining independent housing.

{¶19} As for mother’s goal of earning a stable income to support her family, Ms.

Watkins said mother was not working and she never even tried to get a job. Mother

previously received social security disability for Mi.C. and child support from Earl Carroll

for his three children. However, since the children were removed in late May 2014,

mother has had no income. She relies on others to buy her food and pay her bills.

Thus, mother has not completed her goal of earning a stable income.

{¶20} Ms. Watkins said that mother’s mental health was a case plan goal

because she does not believe Me.C. and C.C. were raped. Ms. Watkins said this

limitation affects mother’s parenting because it prevents her from keeping the children

safe. In light of mother’s unwillingness to believe her children were raped, the agency

6 concluded mother needed counseling of her own. Pursuant to the court’s April 30, 2014

protective supervision order, the court ordered mother to obtain a psychological

assessment and to follow her providers’ recommendations. However, mother resisted

getting a psychological assessment for almost one year and only agreed to be

evaluated shortly before her annual court hearing. Dr. Thorn completed mother’s

psychological evaluation on March 3, 2015. The main concern of the evaluation was

mother’s daily abuse of marijuana. While mother completed a psychological evaluation,

she did not follow through with her doctor’s recommendation for mental health

counseling at PsyCare. After attending only two counseling sessions there, mother was

discharged from the program due to her failure to attend her appointments. As a result,

mother did not complete her mental health case plan goal.

{¶21} Ms. Watkins said a drug and alcohol assessment was added as a goal to

mother’s case plan because mother told her she smokes marijuana every day. Mother

said she has friends who supply her with marijuana and smoke it with her. Ms. Watkins

said she gave mother the names of counseling agencies to which she could go and

information for drug and alcohol treatment and mother has medical insurance through

welfare, but mother has refused to look into any kind of drug treatment or assessment.

She thus failed to meet her drug and alcohol assessment goal.

{¶22} Ms. Watkins said that when mother moved back in with Earl, she, i.e., Ms.

Watkins, was surprised because mother had told her he used to hit her and the children.

After she moved in with Earl, mother told Ms. Watkins that Earl sexually harasses her.

Mother said she does not feel safe with him in the trailer. Ms. Watkins referred her to

nearby domestic violence shelters where she would be safe, but mother refused to go.

7 As a result, Ms. Watkins said it would not be safe for the children to live in the trailer

with mother.

{¶23} Ms. Watkins said that mother did one urine screen and it was positive for

marijuana. Thereafter, every month during home visits, Ms. Watkins asked mother if

she was to screen her, what would be the result, and every time mother said she would

test positive for marijuana. Such admissions are treated as positive test results.

{¶24} Ms. Watkins said that Hanick had similar case plan goals; however, he did

not complete any of these goals because he was arrested soon after the children came

into foster care.

{¶25} Ms. Watkins said mother recently told her she plans to move in with a new

boyfriend in Texas named “Robert,” who she met on-line, as soon as these proceedings

were concluded, taking her children with her if they were returned to her. However,

mother never made Robert available for an investigation to be placed on the case plan.

{¶26} Ms. Watkins said that, in general, mother’s visitation at the agency went

well with the children. Mother has a bond with them and they seem happy to see her.

However, C.C. is not consistent with visitation because she often does not want to see

mother. Me.C. refuses to attend all visits with mother. Mother visits weekly, but her

visitation never progressed beyond one-hour supervised visits at the agency. Ms.

Watkins said there was never a time when there was enough progress to attempt off-

site visits with C.C., J.H., or M.H.

{¶27} Ms. Watkins said the agency tried to place C.C. with her paternal

grandfather. However, this was not successful as he failed to appear for a scheduled

off-site visit. Thus, Ms. Watkins was concerned about his ability to supervise and care

8 for C.C., who was then 12. Ms. Watkins said there are no other identified relatives for

placement for the children.

{¶28} Ms. Watkins said that C.C. and M.H. are now placed together in a foster

home. They are doing very well with their foster parents, Mr. and Mrs. Crawford, and

they are bonded with them.

{¶29} J.H. was placed in a separate foster home in July 2015, and was with that

family for three months as of the date of trial. J.H. has adjusted very well to his foster

parents, Mr. and Mrs. Jaros, and he is very bonded to them.

{¶30} Ms. Watkins said that both sets of foster parents are willing to adopt the

children currently in their homes. The agency would like to place the siblings together, if

possible, but they will do what is best to get permanency for the children.

{¶31} C.C., J.H., and M.H. are still receiving counseling services. Their

respective foster parents make sure their services are being maintained. Ms. Watkins

said she is especially concerned that if the children were to return to mother, she would

not follow through with their mental health treatment because she did not follow through

with her own mental health treatment.

{¶32} With respect to the children’s wishes regarding placement, Ms. Watkins

said that J.H., then age nine, said he would like to go back with mother, but if he cannot,

he would like to stay with his foster parents, the Jaroses.

{¶33} M.H., then age seven, said she would prefer to stay with the Crawfords

even if living with mother was an option.

{¶34} C.C., then age 12, said her preference would be to live with her paternal

grandfather.

9 {¶35} Ms. Watkins said that, based on her observation during visits, C.C., J.H.

and M.H. are most closely bonded to their respective foster parents. The children enjoy

seeing mother because they worry about her and want to make sure she is all right, but

the children are “much more relaxed” in their foster homes. They know that they are

safe there and that their needs are being met. The children are also bonded to each

other and enjoy seeing their sibings.

{¶36} Ms. Watkins said that mother does not show any insight into the agency’s

concerns. When the children were removed in May 2014, mother blamed the agency.

Mother has said that Me.C. never told her she was sexually abused. However, Ms.

Martin testified that in 2007, Me.C. told mother that Hanick sexually abused her.

Further, Ms. Watkins testified that in or before April 2014, Me.C. told mother that she

was being sexually abused by Hanick. Mother still does not believe that Hanick raped

the girls. Mother does not agree with her case plan goals. She has not shown any

significant change in her behavior or progress in achieving reunification with the

children. Mother is not able to safely and adequately care for the children. Ms. Watkins

said that, because mother does not feel safe in the trailer with Earl, she, i.e., Ms.

Watkins, is concerned the children would not be safe there if they were reunited with

mother.

{¶37} Ms. Watkins said the agency has concerns about mother’s ability to

protect the children because she allowed Hanick to remain in the house even after she

was aware of Me.C.’s allegations in 2007 that he molested her. Despite Me.C.’s

allegations, mother allowed him to remain in the home after 2009, when the children,

including Me.C., were returned to her. As a result, Hanick resumed raping Me.C.

10 Incredibly, after Me.C. was removed from the home the second time in April 2014,

mother still allowed Hanick to remain in the home, contrary to the court’s April 30, 2014

protective supervision order, which resulted in Hanick repeatedly raping C.C. In

addition, in July 2015, after Hanick was incarcerated, mother resumed her violent

relationship with Earl Carroll. Mother wants the children to move into the trailer with her

and Earl, knowing Earl had previously assaulted the children.

{¶38} Based on the foregoing, Ms. Watkins asked the court to terminate the

parental rights of mother and Hanick, and to grant permanent custody to the agency

with the aim that they be adopted. She said this is in the children’s best interests.

{¶39} Mother testified (as on cross-examination) that since July 2015, i.e., for

three months, she has been living in her trailer with Earl because she was evicted from

her rental in McDonald due to non-payment of rent. She has no money to pay the

$7,000 she owes in back rent. She has no verifiable income, but claimed she

sometimes works doing “scrapping,” i.e., she collects and sells scraps from people’s

garbage cans.

{¶40} Mother said she has applied for social security disability because she is an

insomniac, has manic depression, anxiety, and Asperger’s Disease. However, she did

not provide the name of any doctor who ever made any such diagnosis or any

documentation in support. She does not expect a hearing on her social security claim

for about a year and it is uncertain whether it will be approved. Mother said she smokes

marijuana every day and there is no reason she would ever want to stop.

{¶41} Mother said that she and Earl lived in the trailer in Vienna with their three

children while they were married from 1999 to 2004. She said that in 2004, she

11 obtained a restraining order against Earl due to domestic violence, which required him

to leave the trailer. She said that she, Me.C., Mi.C., and C.C. lived in the trailer until

December 2004. Mother divorced Earl in 2004. Hanick moved into the trailer with her

in 2005, and she had two children with him, J.H. and M.H. In 2009, mother and Hanick

moved to the McDonald rental and Earl moved back into the trailer.

{¶42} Mother said that after Hanick was arrested and she was evicted from the

McDonald residence in July 2015, she moved back into the trailer with Earl. She said

she put her furniture, including the children’s rollaway beds, in storage, but she did not

pay the storage fee so she probably lost everything.

{¶43} Mother said that Earl has been violent with her and she would like to “kick

him out,” but she does not know how to do it. She said he has assaulted her on

numerous occasions. She said that since she moved in with him, he constantly tries to

have sex with her. She said that, although she does not feel safe around Earl, she still

wants her children to come live with them in the trailer. She said she expects Earl will

continue to hit her, and she thinks that J.H., who was then nine years old, would defend

her. She said that while she would like to get rid of Earl, if she did, she does not know

how she would get by. She needs him to pay the $250/month lot rent for the trailer and

her other bills.

{¶44} At this point in mother’s October 20, 2015 testimony, the hearing was

continued for two months to December 9, 2015, at which time mother’s circumstances

had changed. Mother testified that in December 2015, Ms. Watkins came to the trailer

for a visit. At that time, Earl was no longer living there and mother had two unrelated

adults living with her in the trailer, a girlfriend named Kaleigh and Kaleigh’s boyfriend,

12 D.J. They pay all of mother’s bills. Mother said she has known D.J. for one month

since Kaleigh started dating him. Mother said she does not know D.J.’s last name or if

he has a criminal history because she is not “nosey.”

{¶45} Mother admitted that when Ms. Watkins visited her in December 2015,

she, i.e., mother, had “hickeys” all over her neck. She said the hickeys were from a

man she started seeing the previous week, but it did not work out. She said his name is

“Nick.”

{¶46} Mother said that during a visit with the children in the beginning of

December 2015, C.C. had an “attitude.” Mother said she “got pissed off” when Ms.

Watkins cut her visit short because mother was screaming at 12-year old C.C. and C.C.

was upset and crying when mother told her, “I’m the one fighting for you. Your dad [Earl

Carroll] gave you up.”

{¶47} Mother admitted Hanick is in prison for at least ten years because he pled

guilty to four counts of rape. However, when asked if she believes he raped her

daughters, sadly, mother testified, “I believe in innocent until proven guilty. I have never

seen anything inappropriate. * * * And if I have never seen it, what do you want me to

do?” Mother said Me.C. never told her about Hanick touching her; however, as noted

above, Ms. Martin and Ms. Watkins said that Me.C. told mother about the abuse in 2007

and again in or before April 2014.

{¶48} Mother said that when her children are returned to her, Kaleigh and D.J.

will move to Tennessee. She said that when they leave, her income will consist of child

support for the Carroll children, if Earl pays it; her son Mi.C.’s social security disability

income, if he is still receiving it; and her social security disability award, if she gets one.

13 {¶49} Attorney Kristie Weibling, the children’s guardian ad litem, testified that

J.H. is very bonded to his foster parents, Mr. and Mrs. Jaros. He is comfortable with

them and is doing well in school. He relies on them in making important decisions.

{¶50} Ms. Weibling said that M.H. and C.C. are very bonded to their foster

parents, Mr. and Mrs. Crawford. They are comfortable with the Crawfords and they do

very well in school. M.H., who is now eight years old, is very well behaved. C.C., who

is 13, can be complicated because she has experienced tremendous trauma from being

repeatedly raped by Hanick. Ms. Weibling said that the Crawfords have learned how to

deal with her behaviors. When she acts out, they redirect her anger and give her space

and she generally works out the problem herself.

{¶51} Ms. Weibling said that C.C. has made substantial progress with the

Crawfords and if she was removed from them, she believes C.C. would regress rapidly.

Ms. Weibling said that mother does not have the ability to help C.C. deal with the

trauma from which she continues to suffer.

{¶52} Ms. Weibling said that M.H. is extremely bonded to the Crawfords and it

would be very difficult for her to leave them. Ms. Weibling said it would be difficult for

mother to help M.H., an eight-year-old, keep her daily routine.

{¶53} Ms. Weibling said the Jaroses are interested in adopting J.H. and the

Crawfords are interested in adopting M.H. and C.C.

{¶54} Ms. Weibling said that Mrs. Crawford and Mrs. Jaros have agreed to

continue to facilitate ongoing contact among C.C., J.H., and M.H. Thus, the children will

be able to keep their sibling relationships while residing in separate homes.

14 {¶55} Ms. Weibling said she has monitored visits between mother and the

children at the agency. During one visit, when Mi.C., C.C., J.H. and M.H. were present,

mother turned her back to the video monitor and played her CD player loudly so Ms.

Weibling could not see or hear what she was doing or saying. Afterward, Mrs.

Crawford, who was present during the visit, said that mother was making inappropriate

comments to the children, telling them not to believe what the caseworkers tell them.

{¶56} Ms. Weibling said she is concerned about mother’s ability to protect the

children. This is mother’s second involvement with the agency. There were prior

disclosures made by Me.C. to mother that Hanick was touching her. However, because

mother does not believe Me.C. and C.C., mother is unable to protect the children. Ms.

Weibling is also concerned due to mother’s testimony that she has another man living in

her home and she does not know his last name or if he has a criminal history. Ms.

Weibling said that mother cannot provide for the children’s needs because she has

difficulty providing for her own. Ms. Weibling said mother has not followed through with

her mental health treatment and admits smoking marijuana daily.

{¶57} As to the children’s wishes, M.H. wants to remain with the Crawfords.

Prior to her father, Earl Carroll, surrendering his parental rights, C.C. wanted to live with

his father, i.e., her paternal grandfather. Now that her father has surrendered his

parental rights, C.C. understands she cannot live with her grandfather so she now

wants to stay with the Crawfords.

{¶58} Ms. Weibling said J.H. would prefer to stay with mother, but, in talking to

him, his desire to go with her reflects his desire to be with his siblings and to return to

his former school. Ms. Weibling said that if J.H. could not reside with mother, he would

15 like to stay with the Jaroses because he is comfortable and happy with them. Ms.

Weibling said that, while the agency previously wanted to place all three children

together, the agency now believes the children should stay in their respective foster

homes.

{¶59} Ms. Weibling said that Me.C. has been in foster care since April 2014 (20

months), and that Mi.C., C.C., J.H. and M.H. have been in foster care since May 27,

2014 (18 months). Ms. Weibling said that each of the children needs a legally secure

permanent placement and they cannot get such placement without the agency getting

permanent custody. She also said it is in the children’s best interests to terminate the

parental rights of mother, Hanick, and Earl.

{¶60} Ms. Weibling said she recommends that mother’s, Hanick’s, and Earl’s

paternal rights be terminated and that permanent custody be granted to the agency for

purposes of adoption. Ms. Weibling said mother has not yet substantially complied with

her case plan goals. Ms. Weibling said that, even if the agency’s specific concerns

about mother, e.g., her inability to maintain housing, her lack of income, her mental

health issues, and her chronic drug abuse, were addressed, her recommendation would

not change due to mother’s inability to protect the children. In support, she referenced

the history of Me.C. and C.C. being removed from mother due to Hanick repeatedly

raping them; mother doing nothing to prevent it; and even telling the caseworkers that

her daughters were lying. Ms. Weibling said that, although mother loves the children,

she is incapable of protecting them or properly caring for them.

{¶61} Ms. Weibling said that, although Hanick will be incarcerated for at least ten

years, the problem that occurred at that time, i.e., mother’s inability to protect the

16 children, has not been remedied. Ms. Weibling said mother exposed the children to

Hanick after she was on notice of Me.C.’s initial allegations in 2007. Further, mother

said she wants the children to come live with her and Earl in the trailer, although she

admitted he previously assaulted the children. And, even while her children have been

in foster care, mother has allowed random men, e.g., Robert, Nick, and D.J., into her life

knowing virtually nothing about them.

{¶62} Ms. Weibling said that, even if the children were returned to mother, she

has failed to secure income to support them, in violation of her case plan. She can no

longer rely on Earl or her children for income. Earl has voluntarily surrendered

permanent custody to the agency, so he is no longer liable for child support for his three

children. Mi.C. might have a social security disability benefit, but that is uncertain, and

mother’s claim for social security disability is also uncertain.

{¶63} Mother did not present any witnesses to testify on her behalf. Thus, no

one testified that it was in the children’s best interests that they be reunited with her.

{¶64} The magistrate entered a lengthy and highly-detailed decision

recommending that, as to C.C., the voluntary surrender of custody by Earl be accepted

and that mother’s parental rights be permanently terminated, and that, as to J.H. and

M.H., the parental rights of mother and Hanick be permanently terminated. The

magistrate further recommended that permanent custody of C.C., J.H., and M.H. be

vested in the agency for purposes of adoption. J.H. and mother, through counsel, filed

objections to the magistrate’s decision. Based on the court’s independent review of the

magistrate’s decision, objections, transcript, and the record, the court found that the

17 magistrate properly determined the facts and applied the law and overruled the

objections.

{¶65} J.H. appeals, asserting four assignments of error. The first three allege:

{¶66} “[1.] The Juvenile Court abused its discretion in determining that clear and

convincing evidence supported its decision to award permanent custody to the Trumbull

County Department of Children’s Services.

{¶67} “[2.] The decision to award permanent custody was against the manifest

weight of the evidence.

{¶68} “[3.] The Juvenile Court abused its discretion in finding the award of

permanent custody was in the best interests of the children.”

{¶69} Further, mother appeals and asserts the following as her sole assignment

of error:

{¶70} “The juvenile court abused its discretion and committed reversible error to

the prejudice of mother in finding that the minor children could not or should not be

returned to either parent (mother) under 2151.414(E)(1) and that it was in the best

interests of the minor children to award permanent custody to TCCS as its findings were

not supported by clear and convincing evidence and was against the manifest weight of

the evidence thus the award of permanent custody to TCCS is a termination of her

parental rights in violation of mothers’ constitutional fundamental liberty interests, the

right to parent her children and further error to fail to sustain mothers’ objections to the

magistrate’s decision.” (Sic throughout.)

{¶71} Because the foregoing assignments of error are related, they are

considered together.

18 {¶72} III. TWO-PRONG TEST FOR ADJUDICATING MOTION FOR

PERMANENT CUSTODY – R.C. 2151.414(B)(1)

{¶73} It is well settled that a parent’s right to raise a child is a basic civil right. In

re Hayes,

(1997). Thus, a parent defending a motion for

termination of parental rights “‘must be afforded every procedural and substantive

protection the law allows.’”

quoting In re Smith,

(6th

Dist. 1991).

{¶74} R.C. 2151.414 sets forth the guidelines to be followed by a juvenile court

in adjudicating a motion for permanent custody. R.C. 2151.414(B)(1) outlines a two-

prong analysis. Under the first prong, the juvenile court must determine, by clear and

convincing evidence, whether one of the following circumstances applies: (a) that the

child cannot be placed with either of the child’s parents within a reasonable time or

should not be placed with them based on an analysis of R.C. 2151.414(E); (b) that the

child is abandoned; (c) that the child is orphaned; or (d) that the child has been in the

temporary custody of one or more public children services agencies for at least 12

months of a consecutive 22-month period.

{¶75} In determining whether the child cannot be placed with either parent within

a reasonable period of time under R.C. 2151.414(E), the juvenile court must consider all

relevant evidence before making this determination. The juvenile court is required to

enter such a finding if it determines, by clear and convincing evidence, that one or more

of the eight conditions enumerated in R.C. 2151.414(E) exist with respect to each of the

child’s parents. In re Krems, 11th Dist. Geauga No. 2003-G-2535,

. “‘The existence of a single [R.C. 2151.414(E)] factor will support a finding that a

19 child cannot be placed with either parent within [a] reasonable period of time.’” In re

J.S.E., J.V.E, 11th Dist. Portage Nos. 2009-P-0091 & 2009-P-0094,

,

¶40, quoting In re S.M., 11th Dist. Geauga No. 2008-G-2858,

.

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

{¶77} (E) In determining * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, * * * that one or more of the following exist as to each of the child’s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:

{¶78} (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 * * * that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. (Emphasis added.)

{¶79} If the court determines that one of the four circumstances under R.C.

2151.414(B)(1) is present under the first prong of the permanent custody analysis, the

court proceeds to a determination of the second prong in which it considers whether the

award of permanent custody to the agency is in the best interest of the child, based on

an analysis of the factors in R.C. 2151.414(D).

{¶80} In determining the child’s best interest under the second prong, R.C.

2151.414(D) requires that the juvenile court consider all relevant factors, including, but

not limited to, the following: (1) the interaction and interrelationship of the child with the

20 child’s parents, siblings, relatives, foster parents and out-of-home providers, and any

other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (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.

{¶81} The juvenile court may terminate the rights of a natural parent and grant permanent custody of the child to the moving party only if it determines, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody to the agency that filed the motion, and that one of the four circumstances delineated in R.C. 2151.414(B)(1) * * * is present. In re

.

{¶82} IV. THE LIMITED APPELLATE STANDARD OF REVIEW OF THE

TRIAL COURT’S RULING ON A MOTION FOR PERMANENT CUSTODY

{¶83} Once the clear and convincing standard has been met to the satisfaction

of the trial court, the appellate court must examine the record and determine if the trier

of fact had sufficient evidence before it to satisfy this burden of proof. In re Meyer,

(3d Dist. 1994). In a civil action, the evidence is legally sufficient

if the plaintiff produced some evidence on every element essential to establish its cause

of action. Strother v. Hutchinson,

(1981).

{¶84} Further, in cases involving the termination of parental rights, “an appellate

court will not reverse a judgment as being contrary to the weight of the evidence as long

as there is some competent, credible evidence supporting the judgment.” In re Kangas,

11th Dist. Ashtabula No. 2006-A-0084,

.

{¶85} When applying the manifest-weight standard of review, the reviewing court

reviews the entire record, “‘weighs the evidence and all reasonable inferences,

21 considers the credibility of witnesses and determines whether in resolving conflicts in

the evidence, the [finder of fact] clearly lost its way and created such a manifest

miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’” Id.

at ¶82, quoting State v. Thompkins,

(1997).

{¶86} “Under the manifest weight standard of review, we are ‘guided by a

presumption’ that the fact-finder’s findings are correct.” Terry v. Kellstone, Inc., 6th Dist.

Erie No. E-12-061,

, ¶13, citing Seasons Coal Co. v. Cleveland,

(1984). See also Eastley v. Volkman,

, 2012-

Ohio-2179, ¶21. We must make “‘every reasonable presumption * * * in favor of the

judgment and the finding of facts.’”

quoting Seasons Coal

. “‘If

the evidence is susceptible of more than one construction,’” we are “‘bound to give it

that interpretation which is consistent with the * * * judgment [and] most favorable to

sustaining the * * * judgment.’”

quoting Seasons Coal

.

{¶87} V. THE TRIAL COURT’S FINDINGS UNDER THE FIRST PRONG OF

THE TEST– CHILDREN CANNOT BE PLACED WITH ANY OF THE PARENTS

WITHIN A REASONABLE TIME – R.C. 2151.414(B)(1)(a)

{¶88} Under the first prong of the permanent custody analysis, the court found

that the children were not in the agency’s custody for 12 out of 22 months and that the

children were not abandoned or orphaned. However, the trial court found the children

cannot be placed with any parent within a reasonable time and should not be placed

with them pursuant to R.C. 2151.414(E). As to Hanick, J.H. and M.H.’s biological

father, the court found that he is in prison for raping his two step-daughters and is

22 expected to be there for more than 18 months after the permanent custody hearing.

Thus, R.C 2151.414(E)(12) applies. Further, since Hanick pled guilty to rape; the victim

(C.C.) was J.H. and M.H.’s sibling; and the victim lived in the same household as J.H.

and M.H., R.C. 2151.414(E)(7)(D) applies.

{¶89} Mother argues the trial court erred because it did not make a finding that

the R.C. 2151.414(E)(1) factor (parent failed to remedy the conditions causing the

child’s removal) applied to her. However, while the court did not specifically refer to

R.C. 2151.414(E)(1), the trial court made findings of fact regarding the elements of this

factor and thus essentially found R.C. 2151.414(E)(1) applied to her. The court found

that mother is unable to protect the children because she “does not anticipate dangers

to them” and “is not protective of her children from those who will prey on them.” The

undisputed evidence established that this inability to protect the children was the

condition, as to mother, that caused the children to be removed from the home. The

court found this condition still exists and thus has not been remedied. Further, the court

found that the agency gave mother case plan goals to remedy this condition and made

repeated efforts to help her remedy that condition, but that, other than attending

parenting classes, she failed to meet every one of her goals, as discussed below.

Further, the court found that the agency offered mother services, such as drug/alcohol,

mental health, transportation, financial assistance, and shelter from abusive

relationships, but mother failed or refused to use those services, as discussed below.

Whether mother used the various services provided by the agency is pertinent to

whether mother continuously and repeatedly failed to substantially remedy the condition

that caused the children’s placement outside the home. In re A.L.a, 11th Dist. Lake

23 Nos. 2011-L-020 and 2011-L-021,

, ¶94. The findings of the court that

follow support a finding that R.C. 2151.414(E)(1) applied as to mother.

{¶90} With respect to mother’s first and second goals, the court found she failed

to establish independent income to support her and her family and to maintain housing.

Since the children were removed from mother in May 2014, she has had no regular

income. She allows third parties, like her ex-husband and itinerant friends, to stay with

her in her trailer and to support her.

{¶91} Due to mother’s virtual lack of income, she does not have adequate

housing. In July 2015, she was evicted from her McDonald rental due to non-payment

of rent. In that same month, mother returned to the trailer to live with her ex-husband,

Earl Carroll, because she had no money. Mother claimed Earl regularly subjected her

to domestic violence and unwanted sexual advances, but she refused the services of a

homeless shelter offered by the agency. Further, the court found the trailer is

inadequate and unsuitable to accommodate the children because it is cluttered and

there are only two bedrooms, one of which is unusable as it is filled with Earl’s “junk.”

Mother put her furniture, including the children’s beds, in storage, but, because she did

not pay the storage fee, she presumes she has lost everything. After mother threw Earl

out, she has temporarily allowed a girlfriend and the girlfriend’s boyfriend to live with her

in the trailer and they pay her bills.

{¶92} With respect to mother’s third goal regarding her mental health, the court

found that she failed to follow through with this goal. After refusing to obtain a mental

health assessment for nearly a year, just before the annual court hearing, mother finally

obtained one. “[T]he timing of a defendant’s efforts to comply with a case plan is

24 relevant to the issue of compliance.” In re A.L.a, supra, at ¶95. As part of mother’s

assessment, her doctor recommended she attend mental health counseling sessions at

PsyCare, but, although she has a welfare medical card to pay for the services, she was

discharged for failing to attend her appointments.

{¶93} Further, the court found there was a risk that mother’s cognitive abilities

do not associate certain situations as presenting a risk to the children. Despite Me.C.

and C.C.’s reports of abuse and Hanick’s admission of guilt, mother still does not

believe her daughters were sexually abused. The court found that, although Me.C.

reported the abuse in 2007, mother did not protect her when she was ordered to return

home in 2009. Even after Me.C. was finally removed from the home in April 2014 due

to new molestation allegations, mother did nothing to protect C.C., and she was

subsequently molested. Thus, mother has had two children abused while in her care,

despite prior warnings of impending abuse. The court found that mother does not

understand the need to protect the children from danger such as “what they

experienced from Mr. Hanick.” The court noted that, when asked if she checked the

background of people who would be around her and/or her children, she said she does

not pre-judge people. Mother’s failure to accept mental health counseling services,

although covered by welfare, shows she repeatedly failed to substantially remedy the

conditions that caused the children to be removed. In re A.L.a, supra, at ¶94.

{¶94} As to mother’s fourth goal to take parenting classes, while she attended

the classes and weekly one-hour supervised visitations at the agency, visitation never

progressed beyond this minimal amount and mother never sought to increase it.

25 {¶95} As to mother’s fifth goal to have a drug and alcohol assessment, she

refused to obtain such assessment. She admits she smokes marijuana every day and

testified there is no reason she would ever stop. The court noted that mother’s “affect

and reasoning in court demonstrate poor understanding of the needs of children,

children’s basic safety requirements, and their need to be free of abusive situations.”

The court noted it is unclear if this was caused by her marijuana abuse or mental health

issues, or both. Mother’s refusal to obtain a drug and alcohol assessment, although

covered by her welfare medical insurance, further shows she repeatedly failed to

remedy the conditions that caused the children to be removed.

{¶96} In view of the foregoing findings of fact, which were supported by clear

and convincing evidence, the trial court essentially found that R.C. 2151.414(E)(1)

(parent failed to remedy the conditions causing the children’s removal) applied to her.

{¶97} VI. THE TRIAL COURT’S FINDINGS UNDER THE SECOND PRONG

OF THE TEST – THE BEST INTERESTS OF THE CHILDREN – R.C. 2151.414(D)(1)

{¶98} Under the second prong of the permanent custody analysis, the trial

court’s judgment demonstrates it properly considered all factors required under R.C.

2151.414(D) regarding the best interests of the children. As to the children’s

relationships, the court noted that, with respect to J.H., his foster parents, the Jaroses,

have become his primary source of comfort. He goes to them for affection and support.

The court also noted that C.C. and M.H. have adjusted well to their foster parents, Mr.

and Mrs. Crawford.

{¶99} The court found C.C. now refuses to visit with mother following a recent

incident during visitation, when mother screamed at her and told her that her father had

26 given her up. The trial court found that among the three children involved in this case,

C.C., who was then 12, has endured the most trauma and has the most to deal with due

to the abuse inflicted on her by Hanick while C.C. was living with mother. The court

found that M.H. and C.C. have adjusted well to their foster home. They have visited

J.H.’s foster parents and enjoy being with them.

{¶100} Pertinent to mother’s relationship with the children, in 2007, while Me.C.,

Mi.C., C.C., and J.H. were in mother’s care, they were found to be dependent. In April

2014, Me.C. was found to be abused. And, in May 2014, Mi.C., C.C., J.H., and M.H.

were found to be dependent. This court has held that such prior adjudications are

relevant to a child’s relationship with his parent. A.L.a, supra, at ¶106.

{¶101} As to the children’s wishes, the court noted J.H. has said that he would

prefer to live with mother and that he misses the school he attended when he lived with

her, but he would be fine staying with the Jaroses. Previously, C.C. wanted to live with

her paternal grandfather, but now would prefer being with the Crawfords. M.H. wants to

live with the Crawfords.

{¶102} The court noted the children’s custodial history. In 2007, C.C. and J.H.

were removed from mother and placed in the agency’s custody until 2009. Then, in

May 2014, C.C., J.H. and M.H. were removed from mother and, since then, have

remained in foster care.

{¶103} As to the final best interest factor, the court found that C.C., J.H., and M.H.

need a legally secure permanent placement and that such placement cannot be

achieved without a grant of permanent custody to the agency. In support, this is

mother’s second involvement with the agency and, as noted, the children were

27 previously adjudicated dependent in 2007 and 2014 while in her care. As of the trial

date, C.C., J.H., and M.H. had been in the agency’s temporary custody since May 2014,

i.e., one and a half year. Further, mother still does not have stable housing or

sustainable income and has not shown a sincere motivation to obtain either. She does

not have a legally secure permanent placement for the children and has not

demonstrated a likelihood that she will in the foreseeable future.

{¶104} VII. APPELLANTS’ ARGUMENTS

{¶105} Under J.H.’s first three assigned errors and mother’s assignment of error,

they argue that the court’s award of permanent custody was not supported by sufficient,

credible evidence. In support, they reference the following: (1) J.H. said he would prefer

to live with mother; (2) the children have a bond with mother; (3) the children’s

interaction with mother was positive; (4) mother has housing; and (5) mother completed

parenting classes. However, when determining whether a child cannot be returned to

the parents within a reasonable time, the trial court is entitled to consider “all relevant

evidence,” not just isolated portions that arguably militate in the parent’s favor. R.C.

2151.414(E);

. And, in weighing the evidence, the court reviews

“the entire record,” not just isolated portions chosen by the appellant.

{¶106} As to J.H.’s and mother’s argument that J.H. said he would prefer to live

with mother, the trial court was entitled to consider that he is just ten years old and that

both Ms. Watkins and Ms. Weibling testified it was in the children’s best interests that

permanent custody be granted to the agency. The court could also consider Ms.

Weibling’s testimony that J.H. indicated the reason he wants to return to mother is

because he wants to live with his siblings and misses his former school.

28 {¶107} As to J.H.’s and mother’s argument regarding the children’s bond with

mother, the court was entitled to consider Ms. Watkins’ testimony that the children are

most closely bonded to their foster parents and that the children are “much more

relaxed” with their foster parents than with mother. The court could also consider that

both C.C. and M.H. have stated they would prefer to stay with the Crawfords even if

living with mother was an option.

{¶108} As to J.H.’s and mother’s argument regarding the children’s interaction

with mother, while visits with her were in general positive, the court was entitled to

consider that during the 20 months of weekly supervised one-hour visits at the agency,

mother’s visitation with the children never progressed beyond that point and she never

sought to increase visitation with them. The court could also consider that Me.C.

refuses to attend all visits with mother and that, due to a recent traumatic visit with

mother, C.C. now refuses to visit with her.

{¶109} Further, despite J.H.’s and mother’s argument that mother completed

parenting classes, the court could consider Ms. Watkins’ testimony that this was the

only goal mother completed. Mother failed or refused to complete every other goal set

by her case plan. In fact, Ms. Watkins testified that mother does not agree with her

case plan goals.

{¶110} J.H. and mother argue that because Hanick is now in prison, the threat of

abuse has been removed. They cite Ms. Watkins’ testimony in support. However, while

she conceded the specific threat posed by Hanick has been removed, she said mother

poses a threat to the children due to her inability to protect them. For example,

29 although mother admitted that Earl has assaulted her and the children, she testified she

wants the children to move in with her and Earl in the trailer.

{¶111} Next, J.H. and mother argue that because mother’s divorce decree

awarded the trailer to her, she has housing. However, the court was entitled to consider

Ms. Watkins’ testimony that mother failed to meet her goal to maintain independent

housing. The court was also entitled to consider that under the divorce decree, mother

is not entitled to the trailer until it is paid off; mother still does not have title to it; and

there is no evidence the trailer was ever paid off. Further, the court was entitled to

consider that mother has no money with which to pay her utilities or the $250/month lot

rental fee for the trailer. Moreover, the trailer is cluttered and only has two bedrooms,

which are inadequate for the children. Also, mother has lost the children’s beds due to

her failure to pay the storage fee. Further, in 2009, the trial court determined that the

trailer was insufficient to accommodate the children. Thus, while the divorce decree

grants mother the trailer, ample evidence was presented to support the court’s finding

that mother failed to complete her goal of maintaining independent housing.

{¶112} Mother argues the agency never offered financial assistance to pay her

bills. As to the so-called “reunification funds,” Ms. Watkins testified mother never said

she needed financial assistance until after the time such funds were available (within 15

months after the children were removed). Moreover, during that period, the utilities

were on and the bills were current. Also, the agency referred mother to various

agencies, including Catholic Charities, which paid at least one of her bills.

{¶113} Next, contrary to mother’s argument, the agency never refused to provide

transportation to her for her visitation or to attend her mental health counseling

30 sessions. The evidence showed transportation was never an issue for her. She fails to

reference the record in support of this argument. Moreover, the record shows that she

drove to visitation and wherever else she wanted to go and that Earl gave her gas

money.

{¶114} Mother argues that since the agency returned the children to her and

Hanick in 2009, she cannot be criticized for not protecting her children after that time.

However, the argument lacks any merit in view of the undisputed facts. Hanick

underwent services to address Me.C.’s allegations and was released with no issues

noted. But, more importantly, in 2007 and in or before April 2014, Me.C. reported the

abuse to mother and she did not believe her own daughter. Further, on April 30, 2014,

mother was ordered to keep Hanick out of the home and mother failed to comply with

that order. And, mother was living in the same house when Hanick repeatedly raped

Me.C. and C.C.

{¶115} Upon review of the record, we find substantial evidence which tends to

prove every essential element of the agency’s motion for permanent custody. Further,

as the trier of fact, the trial court was entitled to find, as it obviously did, that the

testimony regarding the negative aspects of mother’s behavior as they relate to the

statutory factors outweighed the positive. In doing so, the trial court did not clearly lose

its way and create such a manifest miscarriage of justice that J.H. and mother are

entitled to a new trial.

{¶116} We therefore hold that J.H.’s first three assigned errors and mother’s

assigned error lack merit because the trial court’s judgment granting permanent custody

to the agency was supported by sufficient, credible evidence.

31 {¶117} J.H.’s first, second, and third assignments of error and mother’s assigned

error are overruled.

{¶118} For J.H.’s fourth and last assigned error, he alleges:

{¶119} “The trial court erred by not appointing a guardian ad litem for the mother,

as testimony showed she suffers from mental and cognitive issues, and she was thus

deprived of due process of law; moreover, said failure constitutes plain error and

prejudices the rights of both mother and appellant.”

{¶120} VIII. WHETHER TRIAL COURT COMMITTED PLAIN ERROR IN NOT

APPOINTING A GUARDIAN AD LITEM FOR MOTHER

{¶121} J.H. argues that, although he did not raise the issue below, the trial court

committed plain error in not appointing a guardian ad litem for mother because, if a

guardian had been appointed, the court might have reunited him with mother.

{¶122} However, J.H. fails to demonstrate the trial court committed plain error.

First, there was no error because mother was not entitled to a guardian ad litem. While

mother may have “cognitive issues,” in the case cited by J.H., In re B.E., 4th Dist.

Highland No. 13CA26,

, the court held that the appointment of a

guardian ad litem requires that the record reveal the ward appeared “mentally

incompetent.” Id. at ¶18. Accord R.C. 2151.281(C); Juv.R. 4(B)(3). Mental

incompetence means that the person cannot understand and participate in the

proceedings. In re D.C.H, 9th Dist. Summit No. 22648,

. Nothing in

the record indicates the extent to which, if at all, mother’s “cognitive issues” impeded

her ability to understand and participate in the hearing. In fact, mother’s testimony

reflects a grasp of the issues and shows that she provided assistance to her attorney in

32 advocating reunification. In similar circumstances, the Ninth District in

held the trial court did not commit plain error in failing to appoint a guardian ad litem for

the mother. Id. at ¶15.

{¶123} However, even if mother was entitled to a guardian ad litem, there is no

plain error because J.H. fails to demonstrate that he or mother was prejudiced. The

following explanation by the Fourth District in

is pertinent here:

{¶124} In the case at bar, even if appellant was entitled to a guardian ad litem, appellant cannot demonstrate that the failure to appoint a guardian ad litem affected the outcome of the proceedings. Appellant’s counsel “safeguarded her rights and interests by actively participating in the court proceedings, drawing the court’s attention to the positive aspects of appellant’s life as they relate to the statutory factors, and arguing against the termination of appellant’s parental rights. Appellant has failed to demonstrate how a guardian ad litem would have acted differently or produced a different result.” In re M.T., [6th Dist. Lucas No. L-09-1197, 2009- Ohio-6674,] ¶18 * * *. Appellant’s counsel zealously represented appellant and advocated that the trial court deny appellee permanent custody. Thus, if a guardian ad litem believed that denying permanent custody was in appellant’s best interests, then appellant's counsel fully advocated that position, and appellant did not suffer prejudice.

{¶125} The record shows that neither mother nor J.H. was prejudiced by the lack

of a guardian ad litem for mother because her counsel vigorously represented her below

just as a guardian ad litem would have done. Mother’s counsel highlighted the positive

aspects of her life with respect to the statutory factors and advocated that permanent

custody not be granted to the agency. We therefore hold that the trial court did not

commit plain error in not appointing a guardian ad litem for mother.

{¶126} Appellant’s fourth assignment of error is overruled.

{¶127} IX. CONCLUSION

33 {¶128} For the reasons stated in this opinion, the assignments of error lack merit

and are overruled. It is the order and judgment of this court that the judgment of the

Trumbull County Court of Common Pleas, Juvenile Division, is affirmed.

THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

_____________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶129} Finding merit in mother’s first issue under her assignment of error, and

J.H.’s first assignment of error, I would reverse and remand. I do not find the agency

carried its burden of proving by clear and convincing evidence that the children could

not be placed with mother.

{¶130} Part of mother’s case plan included that she obtain work. The purpose of

a case plan under R.C. 2151.412 is to reunite parents and children. Therefore, it

follows that the case plan must be reasonably related to resolving the issues that led to

the removal of the children. The record clearly shows mother suffers from various

cognitive disabilities, however the record does not contain any psychological

evaluations or other assessments of those disabilities. She testified she suffers from

insomnia, manic depression, severe anxiety disorder, and stage two Verbal Asperger’s

disease, and finds it difficult and painful to be around people.1 Under the

circumstances, finding regular employment would be difficult and it is unclear why the

1. I respectfully disagree with the majority’s assertion that mother did not identify the doctor making these diagnoses: she did, testifying it was a psychologist or psychiatrist at PsyCare, a facility she was sent to by the agency.

34 case plan does not include a recommendation for disability assistance. She testified

she has applied for Social Security Disability on her own even though the record reveals

the agency did nothing to help her obtain it. Obtaining the disability determination

should have been part of her case plan, and the agency should have worked with her

on this as it would have alleviated the financial burdens standing in the way of

reunification. Poverty is no reason to terminate parental rights. The requirement of

employment in her case plan, despite her disabilities, appears from the record to be

unrealistic and discriminatory.

{¶131} Mother’s case plan required her to obtain stable housing. Despite her

disabilities she accomplished this goal. She had the rental house in McDonald until

three months before the initial hearing date below. Due to her lack of income (which

could have been rectified if the agency helped her to obtain disability assistance), she

had to move into the trailer in Vienna, occupied by her former husband Earl Carroll – but

which she owned as a result of their divorce. Ms. Watkins testified the rental house in

McDonald had been very cluttered and dirty, but admitted the trailer was cleaner and

better kept. Mother was current on her utilities.

{¶132} Mother’s case plan required her to undergo counseling, which she

initiated, before being released from the program for missing appointments. However,

the failure to include in her case plan any objectives and goals for her counseling

including assessments and evaluations for trauma, domestic violence and overall

cognitive abilities as well as specific reports and notes regarding the sessions she did

attend, make it impossible for this court and presumably the trial court to properly

35 assess what problems were identified, and why the failure to continue counseling was

relevant to her ability to properly care for her children.

{¶133} The requirement in Mother’s case plan that required she undergo a drug

and alcohol assessment, although helpful, is not evidence-based and does not appear

to be relevant in any way to removal of the children. Mother did not complete the drug

and alcohol assessment. She admitted to being a daily user of marijuana. However,

use of marijuana or alcohol does not, in and of itself, mean a parent is unfit. Nothing in

the record indicates she used marijuana in the presence of the children, or that it

interfered with her parenting. Ms. Watkins testified that mother never appeared

impaired at her weekly visitation with the children, or when Ms. Watkins visited mother’s

house.

{¶134} There are positive aspects to mother’s conduct which need to be

emphasized. Her case plan required her to complete parenting classes, which she did,

and Ms. Watkins testified she thereafter displayed skills learned.

{¶135} Mother is bonded with her children, and all except M.H., who is not subject

of this case, appeared bonded with her. She only missed visitation twice, due to her car

breaking down, and the visitations were successful. Mother would bring the children

food, hand out plates, and feed them. She would discuss school with them, and play

music CDs. She enjoyed cutting her sons’ hair. The literature supports the extensive

trauma experienced by children when they are removed from their primary caregiver.

{¶136} The record reveals that mother was able to provide for the children’s daily

needs and activities. The children are all bright, and get good grades. Ms. Watkins

36 admitted the agency had never received any referral regarding the children due to lack

of nourishment or proper clothing.

{¶137} The failures in mother’s conduct recounted by the majority, and

encapsulated above, when there is no evidence that would indicate or provide reliable

data of the case plan requirements for the trial court or this court when deciding the

issues at hand, would not constitute a basis for depriving her of parental rights. Rather,

the point referred to by the agency witnesses, the guardian ad litem, and the magistrate

was that mother is unable to provide for the safety of her children, due to her failure to

identify and acknowledge Michael Hanick’s rape of M.C. and C.C. But Mr. Hanick is in

prison for at least ten years; his parental rights have been terminated. Mr. Hanick was

the offending adult, not the mother in this case, yet the court relied on penalizing her for

his sexual abuse, despite her cognitive difficulties. The record is clear that mother was

not complicit in the abuse. The majority’s opinion, as well as the lower court, assumes

for its conclusions that somehow the entire family, including the children, would not

recognize, and/or do the right thing once confronted with the situation again and as

such were prospectively unsafe. This is unsupported by any evidence-based protocols

in the record. The failure of mother to acknowledge and recognize the abuse, after the

fact, could be related to her own trauma. However, there is no evidence that she knew

anything about the abuse while it was happening. Furthermore, she as well as the

agency, assumed in 2007 that Mr. Hanick’s issues had been remedied. In fact, by the

time of the hearings in this matter, mother had cut off all contact with him. There is no

expert testimony, or evidence-based submissions, as to why the factor relied upon in

the trial court is determinative of the outcome in this case considering she has cut off all

37 contact with Mr. Hanick. The affect of unknowingly and unwittingly having your children

victimized, then breaking off the relationship and working with the agency should be

sufficient to support mother’s reunification with her children as we have no scientific or

otherwise expert data in the record that mother’s failure to believe her children,

retrospectively would result in mother involving herself with another sex offender in the

future.

{¶138} M.C. first revealed Mr. Hanick had been molesting her in 2007. She

entered the custody of the agency, with the other children remaining with mother and

Mr. Hanick. M.C. told a caseworker she informed mother of the molestation; mother

denied this. While the agency believed M.C., it could not find any evidence of

molestation, and Mr. Hanick cooperated successfully in receiving treatment. Eventually,

M.C. was returned home to mother and Mr. Hanick.

{¶139} In April 2014, M.C. told her school counselor that Mr. Hanick was

molesting her again. Custody of M.C. was granted to the agency. Late in May, C.C.

told M.C. during visitation that Mr. Hanick was now molesting her. All of the children

were removed from the home; Mr. Hanick was arrested, and eventually pleaded guilty to

raping the two girls. He is serving ten years to life imprisonment.

{¶140} The fact that mother does not accept that Mr. Hanick raped her daughters

is deeply troubling. However, it should be noted the evidence is that C.C. never said

anything to her, and that Mr. Hanick successfully completed his program following the

initial incident with M.C. in 2007. Mother did testify that she never saw any indication

Mr. Hanick was molesting the girls.

38 {¶141} The legal standard for decision here is provided by R.C. 2151.414(E),

which provides, in pertinent part:

{¶142} “(E) In determining at a hearing held pursuant to division (A) of this section

or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a

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

not be placed with the parents, the court shall consider all relevant evidence. If the court

determines, by clear and convincing evidence, at a hearing held pursuant to division (A)

of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised

Code that one or more of the following exist as to each of the child’s parents, the court

shall enter a finding that the child cannot be placed with either parent within a

reasonable time or should not be placed with either parent:

{¶143} “(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.” (Emphasis added.)

{¶144} Mr. Hanick is the reason these children were placed outside the home.

Again, he is imprisoned; his parental rights have been terminated. While it was the

state, rather than mother, which remedied the condition, it was remedied. Mother

testified she has ceased all contact with Mr. Hanick; does not receive correspondence

from him anymore; and has not visited him in prison. Under these circumstances, I

cannot find the agency proved its case the children could not be placed with mother by

the high standard of clear and convincing evidence.

39 {¶145} However, the record discloses information about mother’s relations with

several other men, during which time she did not have custody of her children, which

was used in the trial court, and by the majority, in bolstering the conclusion mother

cannot provide for the safety of the children. She moved back into the trailer with her

former husband, Earl Carroll, who previously committed domestic violence against her

and the children, and who sexually harassed her when she returned. However, by the

second hearing date, she had obtained Mr. Carroll’s eviction. Thus, he does not enter

the equation.

{¶146} By the time of the second hearing date, mother’s friend, Kaleigh Lemon,

and her boyfriend D.J., had moved into the trailer with mother. They were paying the

bills. Mother admitted she did not recall D.J.’s last name, and had not enquired about

his criminal history, if any. However, she also testified that Kaleigh and D.J. would

move out of the trailer, and go to Tennessee, if and when the children were returned to

her.

{¶147} Mother briefly dated a man named Nick during the course of the

proceedings below, but testified he was out of her life. She also has an ongoing internet

relationship with a man named Robert, from Texas. She testified she would like to

move to Texas with the children to be with him. Robert has never been interviewed by

the agency – but, presumably, the agency would add him to the case plan if the

relationship goes forward. Penalizing the mother for her association with men, while her

children were not in her care, is again a fact that does not support removal or

reunification of the children, without expert testimony signaling same.

40 {¶148} This is a very difficult case. The trial court’s magistrate, and all counsel

involved, did exemplary work. However, I believe we must use more scientifically

accepted, peer-reviewed, evidence-based assessment tools in cases such as this, to

support the record when dealing with permanent custody. They are available in

various fields relating to family law. See, e.g., Daniel G. Saunders, Ph.D. (2015)

Research Based Recommendations for Child Custody Evaluation Practices and Policies

in Cases of Intimate Partner Violence, Journal of Child Custody, 12:1, 71-92, DOI:

10.1080/15379418.2015.1037052. Use of evidence in the case plan can be tailored,

and the data used to treat and assess strengths and weaknesses of the family and to

facilitate a better record for the trial court to make factual determinations which will be

more scientifically reliable and improve outcome.

{¶149} The majority notes that the termination of parental rights is the family law

equivalent of the death penalty, and the agency must carry its burden by clear and

convincing evidence. The agency, as well as the court, needs to employ an evidence-

based approach in using more than conjecture and lay opinion testimony in order to

sustain their burden under a clear and convincing evidence standard in this matter. The

record does not support the finding of the trial court.

{¶150} Finding that it did not, I respectfully dissent.

41