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In re H.J.H.

Court of Appeals of Ohio, Fourth District, Highland

April 27, 2018

IN THE MATTER OF H.J.H. ALLEGED DEPENDENT CHILD

          Lynn A. Turner, Hillsboro, Ohio, for appellant.

          Anneka P. Collins, Highland County Prosecuting Attorney, and Molly Bolek, Highland County Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE

         {¶1} After the Highland County Juvenile Court granted permanent custody of H.J.H. to the county Children's Services Division ("agency"), the mother appealed. But the first assignment of error fails to attribute error to the trial court. Instead she asserts the agency failed to treat the case objectively and acted prejudicially against her and the father, expecting them to fail, and failing to credit them with completion of the case plan. We construe her first assignment of error to be that the trial court erred when it found the agency made reasonable efforts towards reunification.

         {¶2} The record reflects that the trial court made reasonable-efforts findings at several stages of the proceedings. Therefore, the agency established that reasonable efforts had been made prior to the hearing on the motion for permanent custody. Where the court has made earlier findings that the agency made reasonable reunification efforts, it need not do so at a hearing on a motion for permanent custody. Nonetheless the trial court made such a finding, and the record supports it. We overrule the mother's first assignment of error.

         {¶3} The mother also contends that the trial court's finding that it was in H.J.H.'s best interest to award permanent custody to the agency was not supported by clear and convincing evidence. She contends that she and the father substantially completed their case plan, demonstrated substantial remediation of the problems that created the initial removal, and presented clear and convincing evidence that it was in the best interest to reunite H.J.H. with them. However, the court considered all relevant factors, including the progress on the case plan, and determined that substantial compliance with the case plan does not override consideration of the child's best interest. The primary issue precluding reunification was the parents' continued failure to provide appropriate, adequate, safe and sanitary housing - a basic requirement of the case plan. The trial court's decision was not against the manifest weight of the evidence. We overrule mother's second assignment of error and affirm the trial court's judgment.

         I. FACTS

         {¶4} The agency sought temporary custody of H.J.H. immediately at birth in October 2015. At that time H.J.H.'s three siblings had been adjudicated dependent and were in the agency's temporary custody. H.J.H.'s parents subsequently admitted H.J.H. was dependent and agreed to the agency's temporary custody for a one-year period. In September 2016 at the annual review hearing, the parents agreed that the agency had made reasonable efforts to finalize the permanency plan and to eliminate the need for continued removal of H.J.H. from their home. The parents subsequently agreed to extend temporary custody of H.J.H. to the agency for another one-year period.

         {¶5} In September 2017, the agency filed a motion for permanent custody pursuant to R.C. 2151.413 and R.C. 2151.414. A week later the mother filed a motion to revest custody with her.

         {¶6} At the December 2017 permanent custody hearing, agency caseworker Walter Curren testified that he had been the family's caseworker since April 2015, prior to H.J.H.'s birth, due to agency proceedings involving H.J.H.'s siblings. Curren testified that two of the siblings had been placed with their fathers and one was in a Planned Permanent Living Arrangement. The mother had all parental rights in a fourth child terminated and permanent custody granted to the agency in 2000. Curren testified that the mother had complied with much of her case plan, except the requirement that she procure stable, appropriate housing.

         {¶7} Curren testified that the mother moved a total of eight different times during the past two years and had refused Curren's request for access to the homes. Curren had great difficulty making unannounced home visits. Curren testified that the parents were currently residing in an old trailer that appeared adequate despite a musty odor, when he first inspected the trailer after they had moved in. However he testified that when he inspected the trailer in June or July 2017, it was cluttered, there was no working air conditioning, the mother refused to open any windows, and the heat was so overwhelming he had to exit the trailer. Curren had been unable to inspect the trailer until the week of the hearing because no one would answer the door when he would attempt an unscheduled visit. During the December inspection he found the trailer "freezing" without heat; it had a number of electrical space heaters sitting around, dirty dishes stacked to the top in the sink, the floors completely cluttered with junk and bags full of clothes; the hallways had paths through the junk to access the back rooms; there was no place to sit down; and a large open bottle of pills was sitting on an end table. When Curren inspected the back bedrooms he found that they were also very cluttered. Because it had an operational space heater, the mother's bedroom was the only warm room in the trailer.

         {¶8} Curren testified that he did not believe the home was fit for a two-year-old child because of the amount of clutter and trash everywhere, the lack of heat, and the fire hazard posed by the number of space heaters scattered throughout the cluttered floors. The musty smell in the trailer was so strong that he left the trailer with a throbbing head. On cross-examination Curren acknowledged that he did not see any pets inside the home and that "pets were a huge issue * * * from the initial on-site it was pet feces all over the home." Curren testified that when the mother moved into a new residence it would be suitable, but as time progressed the home would get progressively worse. He saw the situation in the trailer experience the same "downward slide."

         {¶9} The mother testified that she had moved eight times over the past two years and admitted that these moves did not show stability in housing. However, the mother testified that she believed she provided suitable housing because the trailer had heat, running water, and "the basics" for children.

         {¶10} During a recess in the hearing the guardian ad litem and Curren went to the trailer to inspect it. Curren testified that both parents accompanied him and upon entering the home the parents immediately began picking up trash, doing dishes, and cleaning the home. Curren testified that the home was cold, and when the father attempted to start the furnace it produced only cold air. Curren testified that the home was cluttered, the carpet did not look like it had been vacuumed in many months, and there were dirty cotton swabs and shards of metal on the carpet, a lawnmower in the kitchen, and bare wires protruding from the living room wall. Curren testified that in June, the home looked neat, but by December, it was "a 180-degree difference." Curren observed five electrical heaters and a propane heater. Curren testified that the trailer was surrounded by tin metal debris and an old rotted-out shed.

         {¶11} Testimony of the guardian ad litem, Lee Koogler, confirmed Curren's description about the trailer. Koogler testified that he did not believe the trailer was safe or suitable for a two-year-old child.

         {¶12} The trial court entered judgment granting permanent custody of H. J.H. to the agency and terminating the mother and father's parental rights. The trial court found by clear and convincing evidence that H.J.H. had been in the agency's temporary custody for 12 or more of a 22-month period; the mother's parental rights to H.J.H.'s sibling had been involuntarily terminated and she failed to provide clear and convincing evidence that, notwithstanding the prior termination, she could provide a legally secure placement and adequate care for the health, welfare and safety of the H. J.H.; that H.J.H. cannot be placed with the mother within a reasonable time and should not be placed with her; and that it was in ...


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