[Cite as In re T.A.M.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

IN RE: CASE NO. 3-18-13 T.A.M.,

ADJUDICATED DEPENDENT CHILD. OPINION [NATHAN MCIE - APPELLANT]

Appeal from Crawford County Common Pleas Court Juvenile Division Trial Court Nos. C 2165118 and F 2185059

Judgment Affirmed

Date of Decision: December 17, 2018

APPEARANCES:

Adam Charles Stone for Appellant

Michael J. Wiener for Appellee Case No. 3-18-13

PRESTON, J.

{¶1} Appellant, Nathan McIe (“McIe”), appeals the June 8, 2018 decision of

the Crawford County Court of Common Pleas, Juvenile Division, awarding

permanent custody of his minor child, T.A.M., to Crawford County Job and Family

Services (the “agency”). For the reasons that follow, we affirm.

{¶2} McIe is the adoptive father and sole parent of T.A.M. (See Case No.

F2185059, Doc. No. 5). On November 18, 2016, T.A.M. reported that he had been

sexually abused by McIe. (See Case No. C2165118, Doc. No. 22). McIe was

subsequently arrested and charged with three counts of rape and one count of

disseminating matter harmful to juveniles. (Id.). (See Case No. F2185059, Doc.

No. 5, State’s Ex. 2). McIe remained in the Crawford County Jail throughout the

pendency of the majority of T.A.M.’s case. (See Case No. F2185059, Doc. No. 5,

State’s Ex. 3).

{¶3} On November 22, 2016, the agency filed a complaint under R.C.

2151.27(A)(1) alleging T.A.M. to be an abused child. (See Case No. C2165118,

Doc. No. 1). In its complaint, the agency requested that the trial court grant it

temporary custody of T.A.M. (Id.). That same day, the trial court appointed a

guardian ad litem (“GAL”) for T.A.M. (See Case No. C2165118, Doc. No. 5).

{¶4} At a hearing on December 20, 2016, the agency orally moved to amend

the complaint from alleging that T.A.M. is an abused child to alleging that T.A.M.

-2- Case No. 3-18-13

is a dependent child. (See Case No. C2165118, Doc. No. 11). The trial court granted

the agency’s motion and amended the complaint to allege that T.A.M. is a dependent

child. (Id.). At the December 20, 2016 hearing, McIe entered an admission to the

allegations of the amended complaint and stipulated that sufficient evidence existed

for an adjudication of dependency; the trial court then adjudicated T.A.M. to be a

dependent child under R.C. 2151.04(C). (Id.). In addition, the trial court granted

the agency temporary custody of T.A.M. (Id.).

{¶5} On May 11, 2017, the trial court approved the agency’s case plan

regarding T.A.M. and incorporated that plan into its entry. (Case No. C2165118,

Doc. No. 22). On November 21, 2017, the agency filed a motion requesting that the

trial court grant an extension of the agency’s temporary custody over T.A.M. and

approve an amendment to the case plan. (Case No. C2165118, Doc. No. 27). That

same day, the trial court granted the agency’s motion, extended the agency’s

temporary custody of T.A.M., and approved and adopted the amendment to the case

plan. (Case No. C2165118, Doc. No. 28).

{¶6} On February 12, 2018, McIe pleaded guilty to one count of unlawful

sexual conduct with a minor in violation of R.C. 2907.04, a third-degree felony, and

one count of felonious assault in violation of R.C. 2903.11, a second-degree felony.1

1 Pursuant to plea negotiations, the State amended two of the counts of rape in the indictment to one count of unlawful sexual conduct with a minor and one count of felonious assault. (See Case No. F2185059, Doc. No. 5, State’s Ex. 2). In addition, the State agreed to dismiss one of the counts of rape as well as the count of disseminating matter harmful to juveniles. (See id.).

-3- Case No. 3-18-13

(See Case No. F2185059, Doc. No. 5, State’s Ex. 2). That same day, the Crawford

County Court of Common Pleas sentenced McIe to an aggregate term of five years’

imprisonment. (See Case No. F2185059, Doc. No. 5, State’s Ex. 1). McIe later

stipulated that the crimes to which he pleaded guilty were committed against T.A.M.

(See Case No. F2185059, Doc. No. 5).

{¶7} On April 30, 2018, the agency filed a motion for permanent custody of

T.A.M. (Case No. F2185059, Doc. No. 1). The motion also included a request for

the trial court to approve and adopt a second amendment to the case plan. (Id.). On

June 5, 2018, T.A.M.’s GAL filed his report recommending that the trial court

award permanent custody of T.A.M. to the agency. (Case No. F2185059, Doc. No.

5). Following a June 5, 2018 hearing, the trial court granted permanent custody of

T.A.M. to the agency and approved and adopted the second case plan amendment

on June 8, 2018. (Case No. F2185059, Doc. No. 6).

{¶8} On June 12, 2018, McIe filed a notice of appeal. He raises one

assignment of error.

Assignment of Error

Crawford County Job and Family Services Did Not Comply with Statutory and Administrative Requirements in Its Ongoing Reasonable Efforts to Reunify the Minor Child, T.A.M. (date of birth: * * *, 2004) with his Parents.

{¶9} In his assignment of error, McIe argues that the trial court erred by

awarding permanent custody of T.A.M. to the agency. Specifically, McIe argues

-4- Case No. 3-18-13

that the agency “failed to exercise reasonable efforts to reunify the family as

required by law,” “failed to consider a relative placement in whose home the child

resided and with whom the child had a previous relationship,” and “failed to provide

case plan services, a home study or even a background check on a suitable

alternative placement.” (Appellant’s Brief at 11). McIe concludes that the agency’s

“failure to make such inquiries and provide services is demonstrative of its failure

to make reasonable efforts for reunification.” (Id.).

{¶10} The right to raise one’s child is a basic and essential right. In re

Murray,

(1990), citing Stanley v. Illinois,

,

(1972) and Meyer v. Nebraska,

,

(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and

management of the child.”

quoting Santosky v. Kramer,

,

(1982). However, the rights and interests of a natural parent are not

absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08,

. These

rights may be terminated under appropriate circumstances and when the trial court

has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-

52, 5-02-53 and 5-02-54,

, ¶ 6.

{¶11} “R.C. 2151.414 outlines the procedures that protect the interests of

parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.

Crawford Nos. 3-17-07, 3-17-08 and 3-17-09,

, citing In re

-5- Case No. 3-18-13

B.C.,

,

. “When considering a motion for

permanent custody of a child, the trial court must comply with the statutory

requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,

, ¶ 13, citing In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-

03,

. “R.C. 2151.414(B)(1) establishes a two-part test for

courts to apply when determining whether to grant a motion for permanent custody:

(1) the trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-

(e) applies, and (2) the trial court must find that permanent custody is in the best

interest of the child.” In re Y.W., 3d Dist. Allen No. 1-16-60,

, citing In re S.G., 9th Dist. Wayne No. 15AP0005,

, ¶ 10 and In

re Brown,

(3d Dist. 1994). R.C. 2151.414(B)(1) provides,

in relevant part, that a trial court

may grant permanent custody of a child to a movant if the court

determines at the hearing held pursuant to [R.C. 2151.414(A)], by

clear and convincing evidence, that it is in the best interest of the child

to grant permanent custody of the child to the agency that filed the

motion for permanent custody and that * * *:

(a) The child is not abandoned or orphaned, has not been in the

temporary custody of one or more public children services agencies

or private child placing agencies for twelve or more months of a

-6- Case No. 3-18-13

consecutive twenty-two-month period, * * * and the child cannot be

placed with either of the child’s parents within a reasonable time or

should not be placed with the child’s parents.

***

(d) 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 *

* *.

R.C. 2151.414(B)(1)(a), (d). “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f

one or more of the factors enumerated in R.C. 2151.414(E) is found to be present

by clear and convincing evidence, the trial court shall find that the child cannot be

placed with the parents within a reasonable period of time or should not be placed

with the parents.’” In re A.M. at ¶ 13, quoting In re A.F., 3d Dist. Marion No. 9-11-

27,

, citing In re Goodwin, 3d Dist. Shelby No. 17-08-12,

.

{¶12} R.C. 2151.414(E) provides, in relevant part:

In determining at a hearing held pursuant to [R.C. 2151.414(A)] * * *

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

-7- Case No. 3-18-13

clear and convincing evidence, at a hearing held pursuant to [R.C.

2151.414(A)] * * * 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:

***

(3) The parent committed any abuse as described in [R.C. 2151.031]

against the child, caused the child to suffer any neglect as described

in [R.C. 2151.03], or allowed the child to suffer any neglect as

described in [R.C. 2151.03] between the date that the original

complaint alleging abuse or neglect was filed and the date of the filing

of the motion for permanent custody;

***

(5) The parent is incarcerated for an offense committed against the

child * * *;

***

(7) The parent has been convicted of or pleaded guilty to one of the

following:

***

-8- Case No. 3-18-13

(b) An offense under [R.C. 2903.11] * * * and the victim of the

offense is the child * * *;

***

(d) An offense under * * * [R.C. 2907.04] * * * and the victim of

the offense is the child * * *;

***

(12) The parent is incarcerated at the time of the filing of the motion

for permanent custody * * * and will not be available to care for the

child for at least eighteen months after the filing of the motion for

permanent custody * * *.

R.C. 2151.414(E)(3), (5), (7)(b), (d), (12).

{¶13} “‘If the trial court determines that any provision enumerated in R.C.

2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which

requires the trial court to ‘determine, by clear and convincing evidence, whether

granting the agency permanent custody of the child is in the child’s best interest.’”

In re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38 and 9-15-39,

, quoting In re A.F. at ¶ 55 and citing R.C. 2151.414(B)(1). “The best interest

determination is based on an analysis of R.C. 2151.414(D).”

{¶14} “Under R.C. 2151.414(D)(1), the trial court is required to consider all

relevant factors listed in that subdivision, as well as any other relevant factors.”

-9- Case No. 3-18-13

at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12 and 8-13-13, 2014-

Ohio-755, ¶ 27. The R.C. 2151.414(D)(1) factors include:

(a) The interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster caregivers and out-of-home

providers, and any other person who may significantly affect the

child;

(b) The wishes of the child, as expressed directly by the child or

through the child’s guardian ad litem, with due regard for the maturity

of the child;

(c) The custodial history of the child, including whether the child

has been in the temporary custody of one or more public children

services agencies or private child placing agencies for twelve or more

months of a consecutive twenty-two-month period * * *;

(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.

R.C. 2151.414(D)(1). “Under this test, the trial court considers the totality of the

circumstances when making its best interest determinations. No single factor is

-10- Case No. 3-18-13

given more weight than others.” In re N.R.S.,

, citing In re

Schaefer,

,

, ¶ 56.

{¶15} If the trial court makes these statutorily required determinations, a

reviewing court will not reverse a trial court’s decision unless it is not supported by

clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and

16-12-16,

, citing In re Meyer,

(3d

Dist. 1994), citing In re Adoption of Holcomb,

(1985) and In

re Adoption of Lay,

(1986). “Clear and convincing evidence

is that which is sufficient to produce in the mind of the trier of fact a firm belief or

conviction as to the facts sought to be established.” In re S.G.,

, at

¶ 10, citing Cross v. Ledford,

(1954), paragraph three of the

syllabus.

{¶16} McIe does not appear to challenge any of the trial court’s findings

under R.C. 2151.414. Instead, McIe argues that the trial court erred by granting

permanent custody of T.A.M. to the agency because the trial court erroneously

concluded that the agency used reasonable efforts to reunify the family by placing

T.A.M. with T.A.M.’s paternal grandmother, Iva McIe (“Iva”). (Appellant’s Brief

at 8-12). However, McIe’s argument is misplaced. “[A] trial court is not obligated,

under R.C. 2151.419, to make a determination that the agency used reasonable

efforts to reunify the family at the time of the permanent custody hearing unless the

-11- Case No. 3-18-13

agency has not established that reasonable efforts have been made prior to the

hearing.” (Emphasis sic.) In re N.R.S. at ¶ 25, citing In re C.F.,

,

, ¶ 41, 43 (concluding that the reasonable-efforts determination

under R.C. 2151.419 does not apply to permanent-custody motions under R.C.

2151.413 or to hearings on such motions under R.C. 2151.414). In this case, the

trial court made reasonable-efforts findings both at the time that the agency was

awarded temporary custody of T.A.M. and at the time that the agency was granted

an extension of temporary custody over T.A.M., and McIe does not offer argument

or evidence refuting these findings. (See Case No. C2165118, Doc. Nos. 11, 28).

As a result, the trial court was not required to make reasonable-efforts findings at

the permanent custody hearing before awarding permanent custody of T.A.M. to the

agency.2

{¶17} Nevertheless, although he does not frame his arguments as such, we

interpret McIe’s arguments as challenging the trial court’s best-interest findings

under R.C. 2151.414(D)(1)(d). That is, McIe’s arguments raise the question of

whether the trial court properly considered T.A.M.’s need for a legally secure

permanent placement and whether that type of placement could be achieved without

2 Even if the trial court had been required to make reasonable-efforts findings at the permanent custody hearing, it is far from certain that the agency’s efforts to place T.A.M. with Iva, or lack thereof, would have been relevant to its reasonable-efforts findings. See In re M.O., 4th Dist. Ross No. 10CA3189, 2011-Ohio- 2011, ¶ 16 (“[A] public children services agency has no statutory duty to make ‘reasonable efforts’ to place the child with an extended family member before it can obtain permanent custody of the child.”), citing In re Warren, 5th Dist. Stark No. 2007CA00054,

.

-12- Case No. 3-18-13

a grant of permanent custody to the agency—specifically, by awarding custody of

T.A.M. to Iva. See In re A.R., 4th Dist. Highland No. 14CA10,

, ¶

20-25. Accordingly, while McIe does not explicitly set forth a best-interests

argument, we will consider whether clear and convincing evidence supports the trial

court’s R.C. 2151.414(D)(1)(d) findings.

{¶18} With respect to R.C. 2151.414(D)(1)(d), the trial court found that in

“the course of [McIe’s] companion criminal proceedings[,] the caseworker solicited

from [McIe] names of relatives or other interested persons who would be willing to

assume a long-term placement of [T.A.M.]” (Case No. F2185059, Doc. No. 6). The

trial court also found that the caseworker contacted the persons suggested by McIe

but that they “never followed through for the necessary physical home evaluation,

a criminal records check and a child welfare FACSIS check.” (Id.). As to potential

placement with Iva, the trial court found that due to “a previous substantiated child

welfare case[,] [Iva] was excluded from consideration.” (Id.). Based on these

findings, the trial court concluded that “no relative or other interested person has

been identified as properly suitable to assume the long-term placement of the child

and * * * that it would be in the best interests of [T.A.M.] to grant permanent custody

as a legally secure permanent placement cannot be achieved without a grant of

permanent custody * * *.” (Id.).

-13- Case No. 3-18-13

{¶19} We find that clear and convincing evidence supports the trial court’s

conclusion that a legally secure permanent placement for T.A.M. could not be

achieved without a grant of permanent custody to the agency. At the permanent

custody hearing, Brook Rachel (“Rachel”), an ongoing caseworker with the agency,

testified that after being removed from McIe’s custody, T.A.M. was initially placed

with a foster parent but that he was removed from the foster home after less than a

month and placed at Boys Village “[d]ue to his sexual behaviors.” (June 5, 2018

Tr. at 7-8). Rachel stated that although T.A.M. continued to undergo counseling

and therapy at Boys Village, “he [had not] been making much progress” and “[h]e

continue[d] to have sexual acting out behaviors with other peers, [and said] things

that [were] inappropriate to peers and staff.” (Id. at 8). She testified that during the

entirety of T.A.M.’s stay at Boys Village, he only had contact with one family

member, Iva, on one occasion. (Id.). According to Rachel, on the day T.A.M. saw

Iva, he did not want to “comply with the therapy and counseling on that day” and

he had “a lot of behaviors” including “[c]ontinued sexual acting out.” (Id. at 8-9).

{¶20} In addition, Rachel testified that McIe suggested four potential

placements for T.A.M.—Ellen Gregory, Gina Gregory, Gartrell McIe, and Iva. (Id.

at 9). She stated that the agency did not establish contact with either of the Gregorys

or with Gartrell McIe. (Id. at 9-10). As to potential placement with Iva, Rachel

testified that although Iva requested that she be considered as a placement for

-14- Case No. 3-18-13

T.A.M., the “agency [was] unable to approve her due to her substantiated case in

regards to this ongoing case.” (Id. at 10). Finally, she testified that there were no

other placements available for T.A.M. at the time of the permanent custody hearing

and that she did not believe that it was possible for T.A.M. to have a legally secure

placement without granting permanent custody to the agency. (Id.).

{¶21} On cross-examination, Rachel agreed with McIe’s counsel’s assertion

that the agency was required to use reasonable efforts to “maintain the child in the

home” and to “keep the child with the family, if possible.” (Id. at 11). She stated

that when T.A.M. was removed from McIe’s custody, McIe, Iva, and T.A.M. were

all residing in the same home. (Id. at 13). Rachel testified that the agency did not

conduct a home study on Iva, did not run a background check on Iva, and did not

provide Iva with any services under the case plan. (Id. at 12). She confirmed that

Iva was excluded as a potential placement for T.A.M. due to substantiated

allegations arising from T.A.M.’s case. (Id.). Rachel stated that although Iva

attempted to contact the agency, the agency did not provide services, assessments,

or referrals for Iva. (Id. at 12, 14).

{¶22} Rachel reiterated that T.A.M. had not made much progress at Boys

Village, that he continued to act out in a sexual manner, and that Boys Village had

reported that T.A.M. was “very off” the day he saw Iva. (Id. at 14-15). Regarding

T.A.M.’s prospects for adoption, Rachel testified that the agency’s

-15- Case No. 3-18-13

“recommendation is always for * * * the child to complete the program that they’re

in before [it] would look.” (Id. at 15). According to Rachel, completing the program

at Boys Village “would be the best opportunity for [T.A.M.] so he can learn his

coping skills on everything that’s happened to him.” (Id.). Although Rachel

conceded that T.A.M. was not taking full advantage of the programs at Boys Village

and that he “still ha[d] behaviors,” she remarked that granting permanent custody to

the agency so that he could continue to receive services at Boys Village was in

T.A.M.’s best interest because the agency “[did not] know what [was going to]

happen after right now.” (Id. at 15-16). Rachel further testified that, even given

additional time to set up referrals for Iva, the agency would not place T.A.M. with

her under any circumstances because “[s]he had a substantiated case in 2016 with

sexual allegations with [T.A.M.], and it was substantiated.” (Id. at 16). Finally,

when asked whether there were any circumstances under which the agency “would

* * * attempt to reunify [T.A.M.] with the home that he came from,” Rachel

responded, “[N]o.” (Id.).

{¶23} On examination by T.A.M.’s GAL, Rachel testified that T.A.M. was

removed from the home because McIe was the sole custodial parent of T.A.M. and

Iva did not have custody of T.A.M. (Id. at 17). She testified that regardless of the

fact that T.A.M. was also living with Iva at the time he was removed, he would have

been removed because McIe was T.A.M.’s only residential parent. (Id.). Rachel

-16- Case No. 3-18-13

also stated that she believed that other children had been removed from Iva’s home

and that she believed that those children were under Iva’s care and custody at the

time of their removal. (Id. at 17-18).

{¶24} Furthermore, Rachel testified that despite T.A.M.’s lack of progress in

the program, it would be in his best interest to remain in the program. (Id. at 18).

Rachel agreed with T.A.M.’s GAL’s assessment that removing him from the

program and placing him “back home” would “be setting him up to fail most likely

because of his behaviors[,] * * * he would offend on someone.” (Id.). Rachel

testified that the fact that T.A.M. had not successfully completed the program did

not mean that he could not complete the program. (Id.). Although she could not

speculate on T.A.M.’s chances of being adopted, she opined that T.A.M. would have

a greater chance of being adopted if the agency gained permanent custody over him

so that he could complete the program at Boys Village. (Id. at 20-21).

{¶25} On re-cross-examination, Rachel testified that she believed that other

children had been removed from Iva’s care and custody but that she could not

remember with certainty the year in which the children were removed. (Id. at 22).

She identified the two children but “could not tell * * * why they were removed.”

(Id.). Rachel testified that she only knew that two children were removed from the

home but she could not state why they were removed or whether Iva was at fault.

(Id. at 23). She further testified that T.A.M. continued to have “sexual behaviors”

-17- Case No. 3-18-13

at Boys Village despite being in the program since December 2016. (Id.). However,

she declined to “say that [T.A.M. was] failing at the program.” (Id. at 24). Instead,

she characterized T.A.M.’s progress as follows: “He has done * * * some

counseling, he’s done some therapy. He’s kind of back and forth. He will go some

way and make progress and then he’ll go backwards, and then he’ll make some

progress and then he won’t.” (Id.).

{¶26} Therefore, the record establishes that the agency and the trial court

considered a slate of alternative placements for T.A.M. in lieu of permanent

custody. First, the record demonstrates that three suggested relative placements

were excluded from consideration due to their failure to establish contact with the

agency. Furthermore, the record supports that Iva was not a suitable candidate for

placement of T.A.M. due to previous exclusionary contact with the agency and

substantiated allegations arising out of the same case that necessitated T.A.M.’s

removal from McIe’s custody. Finally, it is clear that, despite T.A.M.’s lack of

progress in the program at Boys Village, granting permanent custody to the agency

in order to allow T.A.M. to complete the program affords him the best chance of

eventually settling into a safe, stable, and secure home environment. Removing

T.A.M. from the program and placing him with Iva would deprive him of much-

needed therapeutic resources and would likely frustrate the efforts to help T.A.M.

cope with the abuse inflicted on him by McIe. In sum, clear and convincing

-18- Case No. 3-18-13

evidence supports the trial court’s conclusion that a legally secure permanent

placement for T.A.M. could not be achieved without a grant of permanent custody

to the agency.

{¶27} McIe’s assignment of error is overruled.

{¶28} Having found no error prejudicial to the appellant herein in the

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

Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr

-19-