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In the Matter of:

September 19, 2011


APPEARANCES: John K. Clark, Jr., Jackson, Ohio, for appellant.

The opinion of the court was delivered by: Harsha, P.J.

Cite as In re M.H.,


{¶1} Mother appeals the grant of the permanent custody of her daughter, M.H., to the Vinton County Department of Job and Family Services (VCDJFS) and argues that the trial court's decision was against the manifest weight of the evidence. However, the record contains some competent and credible evidence that granting custody to VCDJFS was in M.H.'s best interest. Specifically, evidence supports the court's findings that Mother failed to remedy issues related to housing, employment, visitation, and counseling as called for in the reunification plan and that M.H. did not wish to be returned to Mother's custody.

{¶2} Next, Mother contends that the trial court erred in finding that VCDJFS made reasonable efforts to either reunite her with M.H. or to place M.H. with a suitable relative. However, the trial court was not required to make a "reasonable efforts" finding when the child has been in the custody of the agency for more than twelve months of a consecutive twenty-two-month period. Likewise, the court's award of permanent custody was proper because the statutory language referring to relative placement is precatory and serves only as a discretionary guideline.

{¶3} Mother next contends that VCDJFS violated her due process rights by poorly managing her reunification case plan. Although VCDJFS could have been more zealous in their attempts to administer Mother's case plan, the record reveals that Mother herself made minimal efforts at best in complying with the plan, including the failure to communicate the address where she was living in a timely manner, report her employment status, and attend scheduled visitations. Consequently, we perceive no due process violation in VCDJFS' management of the reunification case plan.

{¶4} Finally, Mother argues that VCDJFS "bargained in bad faith" when they agreed to dismiss a motion for permanent custody of M.H. in return for her voluntarily surrendering permanent custody of several other of her children. However, there is no evidence in the record to support the conclusion that such an agreement existed. Accordingly, we affirm the decision of the juvenile court.

I. Facts

{¶5} In 2008, M.H. and six of her siblings were alleged to be neglected and dependent children. The court granted temporary custody of the children in March 2008 to VCDJFS on the basis that Mother and Father lacked adequate housing. After the state withdrew the allegations of neglect, Mother and Father admitted that all seven children were dependent under R.C. 2151.04(C). Accordingly, the court adjudicated the children dependent and ordered them to remain in the temporary custody of VCDJFS. While in the temporary custody of the agency, M.H. resided with foster parents.

{¶6} After VCDJFS subsequently filed a motion for permanent custody of all seven children, Mother and Father voluntarily agreed to surrender permanent custody of four of the children. By agreement of the parties the court also placed two of the children into a "planned permanent living arrangement." Finally, the parties agreed that M.H., the youngest of the children, should remain in the temporary custody of VCDJFS and that the agency would prepare a new case plan with the goal of reuniting the mother and child.*fn1

{¶7} In February 2010, VCDJFS filed the new case plan, which identified the following problems that prevented reunification:

[Mother] is unable to meet the basic needs of the child. When placed with [Mother], [M.H.] has had poor [attendance] at school. The child did not attend school for periods of time. [Mother] did not provide adequate supervision or parenting to [M.H.]. [Mother] is dealing with issues from the past and the current surrender of her other six children. [Mother] has a history of responding to stressors in a negative manner. Additionally, after January 7, 2010 [Mother] will no longer have a home as she states she is moving.

{¶8} The plan called for the following changes on Mother's part: 1. [Mother] will need to be able to meet the basic needs for [M.H.], including a stable, safe and drug free home.

2. [Mother] will need to find a suitable place to live.

3. [Mother] will complete parenting classes to learn healthier ways to cope with her child for the appropriate age level.

4. [Mother] will have an assessment complete[d] by ISS and learn how to deal with stressors, in an appropriate manner.

5. [Mother] will have an assessment for HRS completed and follow the recommendations from the counselor.*fn2

{¶9} VCDJFS agreed to the following:

1. Worker will request progress notes weekly and monthly from HRS, and ISS.

2. Worker will receive verification that [Mother] attended Parenting Classes.

3. Worker will have weekly contact with [Mother] by phone and face to face reviewing the progress on the goals.

4. Worker will perform home study and safety audit when [Mother] obtains new housing.

{¶10} In February 2010, VCDJFS also sought to dismiss its still pending motion for permanent custody of M.H. In two subsequent entries the court granted the agency's motion and noted that the agency "indicated it would be dismissing its motion for permanent custody and then refilling [sic] it." VCDJFS filed a new motion for permanent custody of M.H. under R.C. 2151.413 in July 2010.

{¶11} Ultimately the court held a two-day final custody hearing on the motion. There Patty Smith, Mother's caseworker at VCDJFS testified that Mother cancelled some visitations with M.H. in 2010 claiming illness or car issues. Smith indicated that Mother displayed a lack of supervision at a March visitation with M.H. and two of her other siblings. On another visitation in April 2010, Mother was thirty minutes late.

{¶12} Smith testified that Mother told her in March 2010 that Mother was working at a Wal-Mart store but would not tell Smith an address to allow her to verify employment. Smith also claimed that she had problems communicating with Mother because Mother had more than five different telephone numbers in the year leading up to the custody hearing.

{¶13} Smith claimed that Mother provided no evidence that she was staying in a home as of April 2010 and that on May 27, 2010, Mother told her she did not have an address. Smith testified that Mother at some point provided her or Smith's supervisor, Sara Zinn, with a P.O. Box address in Kentucky for mailing purposes, but did not provide the physical address of where she resided. Mother also provided Smith with her mother's mailing address. Smith said that in late August 2010, at a preliminary hearing on the final custody motion, Mother provided Smith's supervisor, Sara Zinn, with her physical address in Kentucky.

{¶14} Smith claimed that after receiving the Kentucky address, she twice scheduled a home visitation with the local children services agency in Kentucky, but that the home study process could take six to eight months to complete through the interstate compact system. However, Smith claimed that Mother did not "demonstrate" or "indicate" that the home in Kentucky was her permanent address. Smith also claimed that in October 2010, Mother told her she did not have a home.

{¶15} Sara Zinn, Smith's supervisor, testified that Mother was homeless in April 2010 and that Mother provided her only with a P.O. Box address before that point. Zinn testified that Mother did not request a home study of the Kentucky home and was not in "permanent" residency there. On the second day of the hearing, Zinn said that VCDJFS scheduled two visitations with M.H. in December 2010 and that the first was a "good visit." However, Mother did not appear for the second visit.

{¶16} The court conducted an in camera interview with M.H. and summarized her testimony. M.H. related that she loved living with her current foster parents, that Mother did not call her on holidays and had not given her presents, and that when she lived with Mother, they "sometimes" had food. M.H.'s current foster parent testified that

M.H. wanted to stay with her and that M.H. became upset after a visitation with her mother and had to go to an emergency counseling session.

{¶17} In making its decision, the court accepted a report by M.H.'s guardian ad- litem in lieu of live testimony. The G.A.L reported that M.H. did not want to return to Mother's custody and that M.H. told her there were times living with Mother when there was not enough food to eat and she slept on the floor. M.H. also related staying at her grandmother's home where there were rats, and she slept on the floor and was scared.

M.H. said she felt safe at her foster parent's home. The G.A.L. also detailed Mother's issues with visitation in 2010 prior to the final custody hearing. The G.A.L. reported that Mother had supervised visitations with M.H. only five times and cancelled a number of scheduled visitations. Ultimately, the G.A.L. felt that it would be in M.H.'s best interest to grant permanent custody to VCDJFS.

{¶18} Mother testified she provided the P.O. Box address in February 2010. However, she also admitted at the hearing that she did not provide VCDJFS with her actual physical in Kentucky until late August 2010 but said that it was her permanent address. When asked by the court why she thought a P.O. Box would be sufficient for VCDJFS to conduct a home study, Mother responded that she "didn't really think about that." Mother testified that she lived in a home in Kentucky with her boyfriend Keith Morris and that the home was in a safe, drug free area. She admitted that one of her boyfriend's sons was having sex with one of her daughters when they lived in the same house together. Another of Mother's teenage daughters also became pregnant while under her care when she left the daughter and her boyfriend alone at the house to go grocery shopping.

{¶19} Mother blamed VCDJFS for the cancelled visitations, claiming that they would cancel visits because of "emergencies."

{¶20} Mother testified that as of February 2011 (the second day of the final custody hearing) she had been employed for two weeks into a job as a nurse's aide in Portsmouth. Previously, she held a job at a Wal-Mart in Chillicothe where she worked for four or five months between February and April 2010. She denied refusing to tell VCDJFS where she was working.

{¶21} Mother admitted that she did not go to obtain HRS counseling as required in the case plan and claimed she did not know anything about it. Concerning the parenting class, Mother said she previously completed the same class in 2008 and that VCDJFS had the certificate of completion. Asked if she thought she needed to take the parenting class again, Mother said that she discussed this with someone at VCDJFS and they told her they would get back to her on it, but they never did.

{ΒΆ22} Mother said that she had the same phone number for a year and complained that VCDJFS employees never returned her calls. She admitted, however, that sometimes her phone may have been temporarily disconnected because it ...

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