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In re A.M.

Court of Appeals of Ohio, Fourth District, Athens

February 15, 2018

IN THE MATTER OF: A.M., Adjudicated Abused and Dependent Child, E.D., Adjudicated Dependent Child.

          Frank A. Lavelle, Athens, Ohio, for appellant-mother.

          Darren L. Meade, Columbus, Ohio, for appellant-father.

          Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          MARIE HOOVER, PRESIDING JUDGE

         {¶1} K.M., the children's biological mother, appeals the trial court's judgments that awarded Athens County Children Services ("the agency") permanent custody of seven-year-old A.M. and three-year-old E.D. J.C., A.M.'s biological father, appeals the trial court's judgment that awarded the agency permanent custody of A.M. For the reasons that follow, we affirm the trial court's judgments.

         I. FACTS

         {¶2} In May 2016, six-and-one-half-year-old A.M. reported to a teacher that her mother's live-in boyfriend, G.D., sexually abused her "100s of times." The agency subsequently sought and obtained emergency temporary custody of A.M. and her younger brother, E.D.[1] The agency additionally filed separate complaints that alleged A.M. and E.D. are abused, neglected, and dependent children. The agency requested the court to grant it temporary custody of the children.

         {¶3} The trial court later adjudicated A.M. abused and dependent and adjudicated E.D. dependent. The court dismissed the remaining allegations contained in the complaints. The court also placed the children in the agency's temporary custody. The court further found that the agency used reasonable efforts to prevent the children's continued removal from the home but that the mother's decision to continue living with G.D., the perpetrator, made reunification "inadvisable."

         {¶4} The agency developed a case plan for the family. The case plan indicated that the mother would need to change the following behavior in order to reduce risk to the children: (1) "learn new discipline techniques and strategies"; (2) "learn protective parenting capacities to prevent future abuse/neglect of her children"; and (3) "work with a mental health provider to learn about sexual abuse, her own protective capacities and the effects of this type of abuse." The case plan required the mother to work with a parent mentor, engage with Help Me Grow and any other service providers regarding E.D.'s development, [2] regularly visit the children, and undergo counseling in order to understand A.M.'s sexual victimization.

         {¶5} The case plan indicated that A.M.'s father, J.C., needs to develop a father-daughter relationship with A.M., obtain safe and stable independent housing, obtain a source of income to provide for A.M.'s basic needs, and learn new parenting techniques and strategies for a child that has experienced sexual abuse. The case plan required J.C. to regularly visit A.M., work with a parent mentor, and engage with Integrated Services to obtain housing, counseling, and case management needs.

         {¶6} On April 7, 2017, the agency filed a motion to modify the disposition to permanent custody. The agency asserted that the children cannot be placed with their parents within a reasonable time or should not be placed with their parents. The agency alleged that the mother has not made progress in addressing the sexual abuse that A.M. suffered and has not acknowledged that G.D. sexually abused A.M. The agency further asserted that even though the mother claims that she no longer shares a relationship with G.D., the two recently were spotted together at a grocery store and were observed leaving the store in the same vehicle. The agency argued that the mother's failure to address A.M.'s sexual abuse and to admit that G.D. was the perpetrator illustrates that she cannot adequately protect her children. The agency claimed that returning the children to their mother would not be safe when the mother refuses to believe that her paramour could have perpetrated sexual abuse against A.M.

         {¶7} The agency additionally asserted that A.M. cannot be placed with her father within a reasonable time or should not be placed with him. The agency alleged that her father is not an appropriate placement due to his mental health issues and his lack of appropriate housing for A.M.

         {¶8} At the permanent custody hearing, Nickie Webb, A.M.'s mental health counselor, testified that she sees A.M. approximately once per week. Webb explained that although A.M. has done well in foster care, A.M. is anxious about the children services case and would like to return home to her mother. Webb stated that A.M. enjoys visiting with her father, but A.M. has not mentioned a desire to live with her father. Webb related that A.M. definitely does not want to see G.D. and is "angry with him."

         {¶9} Webb indicated that A.M. has expressed concern that the agency's involvement is "her fault" as a result of reporting G.D.'s sexual abuse. Webb thus explained that A.M. should be placed in an environment with a caregiver who will reinforce that A.M. is not to blame for her family's children services involvement and who will validate A.M.'s feelings. She additionally related that A.M. might be afraid to report any future instances of abuse if A.M. felt that her mother did not believe her first report, or if she thought that her disclosure might lead to another removal from her home.

         {¶10} The children's foster mother testified that the children have lived in her home for a little over one year. She stated that when A.M. initially entered her care, A.M. lacked appropriate boundaries with strangers. The foster mother related that A.M. has since developed more appropriate boundaries and displays more caution around strangers.

         {¶11} The foster mother explained that when E.D. initially entered her home, he exhibited a speech delay. Further testing revealed that E.D. has a rare chromosomal abnormality that includes speech and cognitive delays. The foster mother testified that E.D.'s speech has improved since entering her care. Both children are doing well in her home and are very pleasant children. The foster mother indicated that A.M. and E.D. appear bonded to one another and interact like typical siblings.

         {¶12} The children's foster father testified that in early March 2017, he observed the mother and G.D. together at a grocery store. He stated that they left the store in the same vehicle.

         {¶13} ACCS parent mentor and family support worker Jennifer Brooks testified that she provides parent mentoring services and also supervises visitations. Brooks explained that she contacted all three parents involved in the case. She related that before she could complete a home visit with J.C., he began sending her inappropriate messages. Brooks stated that J.C. asked her if she was single and if she wanted to be in a relationship. Brooks immediately notified her supervisor and closed the case.

         {¶14} Brooks stated that she started working with the mother and G.D. around the beginning of August 2016. She explained that she closed G.D.'s case in January 2017 because he had completed all tasks listed on the initial referral. Brooks continues to work with the mother. Brooks related that she helped the mother with developmental information, parenting skills, potty training, and protective capacities regarding A.M. She testified that she discussed A.M.'s sexual abuse allegations and how to protect A.M. from further abuse.

         {¶15} Brooks indicated that throughout her discussions with the mother, the mother consistently related that she did not believe A.M.'s disclosures. Instead, the mother offered varying explanations for A.M.'s allegations: J.C. concocted the story and told A.M. to blame G.D. when J.C. actually was the perpetrator; G.D.'s brother was the perpetrator; A.M. is malicious and would say things to get attention or to get G.D. in trouble; A.M. walked in on G.D. and the mother having sex and may have gotten ideas from viewing them; A.M. may have seen pornographic movies; and A.M. is extremely jealous of E.D. and may have made up the story to get attention. Brooks explained that the mother's denials have made it impossible to work with the mother on her protective capacities. Brooks further noted that the mother and G.D. did not actually separate until the children had been in the agency's custody for five or six months and that they informed Brooks multiple times that they separated only because the agency expected them to do so.

         {¶16} Brooks agreed that the mother generally cooperated with her and appeared eager to learn. Brooks stated that the mother "did very well with parent mentoring. She took every piece of information and she also applied it during visitation." Brooks told the mother that she is "a really good mom." Brooks testified that the mother even asked if parent mentoring services could continue if the children returned home; and Brooks encouraged the mother to instead state, "when the kids come home." Brooks explained that the mother shared her plan to ask her sister to move into the house so that someone would always be at home to care for the children.

         {¶17} Despite the mother's parenting skills, the mother still refused to recognize that G.D. perpetrated sexual abuse upon A.M. This caused Brooks great concern regarding the mother's "capacity to protect" the children. Brooks did not agree with the mother's counsel that the mother has progressed in her understanding from shock, to denial regarding the number of occurrences, to acceptance. Brooks stated she does not believe the mother has "made progress in that aspect." Brooks related that the mother did not simply express disbelief at the number of occurrences, but instead, the mother did not believe that the incidents even occurred.

         {¶18} Tara Carsey testified that she worked with the family to develop a case plan to address A.M.'s sexual abuse and E.D.'s delays. Carsey indicated that the agency had concerns that the mother continued to live with G.D. for five or six months after A.M.'s disclosure and the children's removal. Carsey stated that she discussed the parties' living situation with the mother and advised the mother that her chances of having the children returned to her home would be increased if G.D. did not live in the home. Carsey related that G.D. moved out of the mother's home in late October or early November 2016.

         {¶19} Carsey explained that although the mother complied with the case plan requirements to obtain mental health counseling and participate in parent mentoring, the mother still did not believe that G.D. sexually abused A.M. Carsey offered to show the mother a recording of A.M.'s forensic interview to which she declined. Carsey indicated that the mother's denial led her to believe that the mother would not be able to adequately protect the children from future abusive situations.

         {¶20} Carsey testified that E.D. had speech delays when he first entered the agency's care and that the mother now understands E.D.'s issues.

         {¶21} Carsey stated that A.M.'s father J.C. consistently visited her. However, Carsey also testified that the agency had concerns with J.C.'s mental health and that A.M. should not be placed with him. She related that during a home visit, J.C. exhibited strange behavior. J.C. was not making sense when he spoke. He talked about how he was being watched with the cameras on the poles out front and listened to with the devices that were in the house. J.C. had been admitted to Appalachian Behavioral Health where he spent about three weeks. Although J.C. was receiving medication and case management to work on his social skills, Carsey still had concerns with J.C.'s cognitive ability and ability to protect A.M. Carsey further indicated that J.C.'s living situation was not conducive for a healthy environment for A.M. J.C. lived in a three-bedroom trailer with his mother, stepfather, and two adolescents who are in his mother's legal custody.

         {¶22} Carsey related that in October 2016, the agency determined that it would seek permanent custody of the children, but the agency did not actually file its permanent custody motion until April 2017. Carsey explained that in October 2016, the agency decided that it would seek permanent custody because the mother and G.D. had not fully separated and J.C.'s mental health was a serious concern. Carsey stated that after the agency decided that it would seek permanent custody, it continued to provide services to the family, but the agency did stop reunification efforts.

         {¶23} Carsey ultimately testified that placing the children in the agency's permanent custody would serve their best interests. She explained that the children need a safe and stable home, with people who can keep them safe from abuse and neglect.

         {¶24} The children's guardian ad litem testified that granting the agency permanent custody of the children would serve their best interests. The guardian ad litem agreed that the mother was not capable of providing the children with a safe home because of her unwillingness to believe A.M. about being abused. The guardian ad litem related that the mother would not be able to adequately protect A.M. from future abuse if the mother does not believe A.M.'s story. Likewise, the guardian ad litem did not believe that J.C. could provide A.M. with a safe, stable home due to his mental health issues and lack of independent housing.

         {¶25} Michele Papai testified that in late May 2017, the mother was referred to her for counseling. Papai testified that the mother appeared to be motivated. Papai explained that the mother still has "a question in her mind" whether G.D. was the perpetrator and would like to undergo therapy with A.M. to resolve the issues. Papai opined that the mother would be capable of parenting the children and keeping them safe. Papai testified that they discussed how to keep the children safe if they returned home. She stated that they also discussed that G.D. should have no contact with A.M. Papai believed that the mother possessed an understanding of how to keep her daughter and her son safe.

         {¶26} The mother testified that she is capable of protecting the children; and that although A.M.'s disclosure initially shocked her, she has accepted that A.M. suffered sexual abuse. She stated:

It was shocking at first. I'm always home so I'm struggling with the fact of when [G.D.] could have done it, and how he could have done it with me always being home. But there is still always the possibility that something did happen and I just finally come [sic] to accept that even with me always being home and always being around him.

         {¶27} The mother explained that she was a stay-at-home mother and could not understand when G.D. could have perpetrated the abuse. She stated that when she, A.M., E.D., and G.D. lived together, it was not "even physically possible" for G.D. and A.M. to have been left alone for the number of times that A.M. alleged the abuse occurred. The mother related that G.D. did not have the opportunity to be alone with A.M. She explained that G.D. worked until 3 or 4 o'clock in the morning and that A.M. left for school before G.D. woke up. The mother stated that G.D. left for work at 4:30 pm and A.M. arrived home from school around 4:00 pm. She testified that G.D. worked five nights per week "but he even went on his days off cause they needed more help." The mother indicated that G.D. "was always at work" and that he "did not like being at home."

         {¶28} The mother explained that she and G.D. are no longer romantically involved and that she will not have any contact with him, except as necessary to maintain G.D.'s relationship with E.D. The mother stated that she and G.D. met at a grocery store in March 2017 only to ensure that they did not duplicate Easter gifts for E.D. The mother further related that she will "not get with anybody else, " but instead will "direct all of [her] attention to just the kids."

         {¶29} The mother indicated that she will be able to keep the children safe. She stated that her sister will move into the home and will be able to watch the children during the mother's working hours.

         {¶30} The mother testified that after she learned about E.D.'s rare genetic disorder, she researched his condition in order to learn more about it. She explained that the disorder may cause heart problems later in life and was the cause of his speech delay.

         {¶31} On cross-examination, the mother explained that during her relationship with G.D., G.D. mentioned that he had lost custody of his daughter. G.D. indicated that the child's mother physically abused the child and that the agency would not allow G.D. to obtain custody of his child. The mother was not alarmed that G.D. had lost custody of his own daughter.

         {¶32} The mother stated that she had difficulty believing that A.M. suffered sexual abuse as many times as she claimed and denied that she ever stated that she did not believe A.M. She agreed that she offered alternate explanations for A.M.'s story. The agency's counsel asked the mother about her statement that A.M. and G.D. could not have been alone together, and the mother explained: "I don't see how it could have happened * * *, but I did say that there's always that possibility that something did happen."

         {¶33} J.C. testified that in 2012, he stopped living with K.M. and A.M. He stated that after he stopped living with A.M., he saw her "every once in awhile." J.C. indicated that his visits with A.M. occurred mostly around holidays or her birthday. J.C. explained that he currently lives with his mother, stepfather, eleven-year-old niece, and twelve-year-old nephew. He stated that he gets along well with his niece and nephew and that A.M. also interacts well with them. J.C. believes that he, his mother, and stepfather can provide A.M. with an appropriate home. J.C. related that the household has sufficient income to provide for A.M.'s basic needs.

         {¶34} J.C. testified that in the summer of 2016, he spent three weeks at Appalachian Behavioral Healthcare (ABH). He explained that he had a nervous breakdown and anxiety and stress. J.C. related that he was diagnosed with PTSD and stress syndrome. He indicated that he was prescribed medication and that he continues to take his medication. J.C. stated that the medications help him and that he does not believe that his mental health constitutes a barrier to parenting A.M. On cross-examination, J.C. stated that he also was diagnosed with schizophrenia and was prescribed medication for it.

         {¶35} J.C. explained that after his release from ABH, he started "equine therapy." He testified that approximately two to three months after he started the therapy, he learned that it was the wrong type of counseling for him. J.C. indicated that he then started seeing a mental health counselor and meets with her almost every week. J.C. testified that he has a case manager at Integrated Services and that they work on housing. J.C. related that he has applied for HUD housing and plans to eventually move out of his mother's house.

         {¶36} J.C. stated that he did ask Brooks if she would like to go on a date and that he has not yet received any parent mentoring services. He indicated that he did not understand why the agency failed to refer him to a different parent mentor.

         {¶37} J.C.'s mother, P.W., testified that she and her husband, along with J.C., could provide a safe and stable permanent home for A.M. She admitted that she had prior children services involvement; but she stated that she worked with the agency and the cases were eventually closed.

         {¶38} The mother's sister, S.M., testified that she intends to move in with K.M. if the children return home. She stated that she would be able to help the mother care for the children. S.M. related her belief that the mother is more protective of the children than she had been before their removal and that she is careful about who she allows around the home. S.M. disputed any assertion that the mother and G.D. are still romantically involved. She stated that although they were spotted together at a grocery store in March 2017, they met only to discuss E.D.'s Easter gifts and to ensure they did not duplicate gifts.

         {¶39} On August 16, 2017, the trial court granted the agency permanent custody of the two children. The court found, by clear and convincing evidence, that permanent custody is in the children's best interests and that the children cannot be placed with their parents within a reasonable time or should not be placed with their parents. The court thus granted the agency permanent custody of the two children.

         {¶40} The parties timely appealed.

         II. ASSIGNMENTS OF ERROR

         A. Mother

         {¶41} K.M. raises two assignments of error:

         First Assignment of Error:

The trial court's decision terminating parental rights, [sic] was against the manifest weight of the evidence.

         Second Assignment of Error:

Children services' decision to ask for termination of parental rights was extremely premature, and failed to satisfy the "reasonable efforts" requirements imposed by law.

         B. Father

         {¶42} J.C. raises one assignment of error:

The trial court's ruling to terminate appellant's parental rights, and grant Athens County Children Services permanent custody of his daughter, was against the manifest weight of the evidence.

         III. LAW AND ANALYSIS

         {¶43} The mother's first assignment of error and the father's sole assignment of error assert that the trial court's decision to grant the agency permanent custody of the children is against the manifest weight of the evidence. Both parents argue that the evidence does not clearly and convincingly show that placing the children in the agency's permanent custody is in their best interests. The parents also tangentially ...


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