[Cite as In re K.M.S., 2017-Ohio-142.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

MARION COUNTY

IN RE:

CASE NO. 9-15-37

K.M.S., ABUSED, DEPENDENT

NEGLECTED CHILD. OPINION

[AMBER SMITH - APPELLANT] IN RE:

CASE NO. 9-15-38

K.S., ABUSED, DEPENDENT

NEGLECTED CHILD. OPINION

[AMBER SMITH - APPELLANT] IN RE:

CASE NO. 9-15-39

M.C., ABUSED, DEPENDENT

NEGLECTED CHILD. OPINION

[AMBER SMITH - APPELLANT] [THOMAS CONKLE - APPELLANT] Case Nos 9-15-37, 38, 39

Appeals from Marion County Common Pleas Court

Juvenile Division Trial Court Nos. 13 AB 0006, 13 AB 0007 and 13 AB 0008

Judgments Affirmed Date of Decision: January 17, 2017 APPEARANCES:

Robert C. Nemo for Appellant, Thomas Conkle Jr. Todd A. Workman for Appellant, Amber Smith Justin J. Kahle for Appellee SHAW, J.

{¶1} This consolidated appeal concerns custody of three minor children K.M.S. (case number 13AB0006), K.S. (case number 13AB0007), and M.C. (case number 13AB0008). The appellants are the mother of the children, Amber Smith (“Amber”), and the father of M.C., Tom Conkle (“Tom”). The father of K.M.S. did not participate in the trial court proceedings despite being properly served, and the father of K.S. remains unknown.

{¶2} Amber and Tom appeal the September 14, 2015 judgments of the Marion County Court of Common Pleas, Family Division, which granted the motions for permanent custody of the children filed by Appellee, Marion County Children Services (“the Agency”), and terminated Amber’s and Tom’s parental Case Nos 9-15-37, 38, 39 rights. On appeal, Amber and Tom claim the trial court (1) erred in determining that granting the motion for permanent custody and terminating their parental rights is in the children’s best interest; (2) erred in finding that the Agency used reasonable efforts to reunify them with the children; (3) erred in finding that the children could not be placed with them in a reasonable amount of time or should not be placed with them; and (4) committed prejudicial error by not ruling on the appropriateness of an alternative placement that would have been in the best interest of the children.

Statement of the Case

{¶3} While these appeals concern three separate cases with two separate appellants, we will discuss their procedural histories together, as they are intertwined.

Initial Agency’s Involvement

{¶4} The Agency filed complaints in all three cases on January 10, 2013, alleging that Amber’s children were neglected and dependent children, as defined in R.C. 2151.03 and 2151.04. (Doc. No. at 1.) 1 At the time, K.M.S. was eight years old, K.S. four years old, and M.C. four months old. The complaint stated that the children lacked adequate parental care and that their condition or environment warranted guardianship by the State because Amber was smoking marijuana in the home in front of the children and allegedly told the oldest, K.M.S., that she would

“woop her butt until it bleeds” if she told anyone about the drug use. (Id.) The Case Nos 9-15-37, 38, 39 complaint further alleged that Amber was giving K.M.S.’s ADHD medication to her friends, and that K.S. “had been choking the baby.” (Id.)

{¶5} The trial court appointed a guardian ad litem (“GAL”) for the children.

After a hearing, the trial court issued temporary orders by which it required Amber to abstain from the use of illegal drugs, complete drug screenings, and allow the

Agency to enter the home to assess the safety and well-being of the children.

{¶6} On February 7, 2013, the Agency filed amended complaints, in which it listed Tom as the father of M.C. The first case plan was filed and approved on

February 8, 2013. It listed Tom as the biological father of M.C. and a nonrelated adult of K.M.S. and K.S. The concerns expressed in the plan included Amber having difficulty dealing with K.M.S.’s unruly behavior, failure to give K.M.S. her

ADHD medicine, M.C. being born underweight and drug positive, Amber’s and Tom’s ongoing drug use, as well as Amber’s mental health and history of abuse as a child. The plan included objectives for Amber and Tom to complete in order to reduce risk and address safety issues of the children.

{¶7} On February 27, 2013, Amber appeared in court for an adjudication pre-trial and agreed to stipulate to the children being dependent. (Doc. Nos. 18, 19.)

Tom did not appear at the hearing. The Agency presented evidence in support of its complaint and the trial court made dependency findings as to K.M.S., K.S., and

M.C. with regard to Amber based upon Amber’s stipulation and the evidence presented by the Agency. (Id.)

Case Nos 9-15-37, 38, 39

{¶8} On April 19, 2013, the trial court held an adjudication hearing based upon the Agency’s complaint, where Amber, the GAL and counsel for the Agency were present. The trial court found by clear and convincing evidence K.M.S. and

K.S. to be dependent children as to Amber and their fathers. The trial court issued orders permitting the children to remain in Amber’s legal custody. (Doc. Nos. 22,

24.) Tom did not appear for the adjudication hearing and a separate hearing for adjudication was set for Tom pertaining to his parental rights to M.C. (Doc. No.

24.)

{¶9} On April 29, 2013, Tom appeared before the court. The trial court advised Tom of his right to counsel during the proceeding and his right to have one appointed if he were determined to be indigent. Tom waived his right to counsel and stipulated to M.C. being a dependent child. (Doc. Nos. 25, 26.) Based upon the stipulations and the evidence presented by the Agency in support of its complaint, the trial court found M.C. to be a dependent child. The trial court issued orders allowing the children to remain in the legal custody of Amber, but with a

“safety plan” in effect directing Amber not to have unsupervised contact with the children or be under the influence of drugs while with the children. Tom was to assist Amber in providing care for the children and arrange for appropriate care while he was at work. (See Doc. No. at 26, 27). The matter was set for a thirty-day review.

Case Nos 9-15-37, 38, 39

Temporary Custody

{¶10} On May 20, 2013, the Agency filed a motion for temporary emergency custody of the children because Amber tested positive for heroin and marijuana while caring for the children. (See Doc. No. at 27.) In support of the motion, the Agency stated that it had decided to discontinue the “safety plan” because Amber had not tested positive for heroin since the “safety plan” was initiated.^[2] On May 13, 2013, the caseworker went to the home to inform Amber that the “safety plan” would no longer be in effect. The caseworker was greeted by an individual at the home who informed her that Amber was not there and was living at her old apartment. The caseworker went to Amber’s apartment, but was not able to make contact with her. The next morning, the caseworker returned to both Tom’s home and Amber’s apartment and was not able to make contact with Amber at her apartment until the following afternoon. At that time, the caseworker observed

Amber caring for the children in her apartment with her cousin present. The caseworker administered a drug screen to Amber and she tested positive for marijuana, heroin, and Klonipin. The caseworker reported that Amber admitted to the drug use and indicated that she was in possession of illegal drugs, which she intended to sell for money.

Case Nos 9-15-37, 38, 39

{¶11} The same day, the trial court granted the Agency’s motion for emergency temporary custody of the children, removing the children from Amber’s custody. Tom subsequently requested and was appointed counsel. The Agency filed a new case plan to assist Amber’s and Tom’s reunification with the children.

The case plan identified objectives focusing on Amber’s and Tom’s substance abuse and addiction problems, as well as mental health issues. The caseworker also gave

Amber and Tom the appropriate referrals to begin treatment and counseling for addiction and substance abuse, and for Amber to address her mental health concerns.

{¶12} Initially, K.M.S. and K.S. were placed together with the same foster family, while M.C. was in another placement. Throughout the course of the proceedings, K.M.S. had five different placements because of her behavioral problems, which manifested in K.M.S. attempting to or actually hurting other children in the household, including K.S.^[3] K.M.S. was placed with a relative for a short period of time, but the placement was disrupted due to her behavior. The

Agency explored other potential kinship placements for each of the children, but could not find a suitable relative willing to accept the placement. K.M.S. was eventually placed at a state facility, Buckeye Ranch, where she continued to exhibit behavioral problems. K.S. also displayed behavioral issues, and the Agency was Case Nos 9-15-37, 38, 39 concerned that Amber and Tom could not handle the children’s problems without first receiving help themselves. K.S. and M.C. appeared to thrive in their foster placements despite initial health and behavioral concerns.

{¶13} The record discloses that throughout the first year of the Agency’s involvement, Amber and Tom struggled to remedy their substance abuse and addiction issues. Amber initially participated in rehabilitation treatment and counseling, but failed to consistently attend appointments and eventually was unsuccessfully terminated from the programs. The Agency also offered for Amber to participate in Family Dependency Treatment Court, but Amber declined. Tom completed the initial assessment for substance abuse treatment, but failed to follow through with the treatment. Both Amber and Tom continued to test positive for heroin and marijuana on screenings.

{¶14} The record indicates that as the case proceeded Amber and Tom stopped using most illegal drugs, but they continued to use marijuana. The caseworker observed this conduct demonstrated a lack of insight into the seriousness of the situation, and a lack of commitment to be fully engaged in the recommended treatment. Amber’s and Tom’s attendance at counseling sessions were inconsistent, and they only started to more actively participate in their treatment toward the conclusion of the Agency’s involvement.

{¶15} Despite their struggles with substance abuse and addiction, the caseworker’s notes indicated that both Amber and Tom visited with the children Case Nos 9-15-37, 38, 39 consistently and their interactions with the children were described as positive. Both parents occasionally demonstrated desired behavior and there were no reports that either parent had been under the influence of illegal drugs while visiting with the children.

Motion for Permanent Custody

{¶16} On September 26, 2014, the Agency moved for modification of temporary custody to permanent commitment. As the basis for permanent custody, the Agency alleged that the children had been in its temporary custody for twelve or more months of a consecutive twenty-two-month period; the children could not be placed with either parent within a reasonable amount of time as determined by the analysis of R.C. 2151.414(E)(1)-(2); and permanent custody to the Agency was in the best interest of the children.

{¶17} On January 29, 2015, Amber filed a motion for custody, requesting that Ronald James, the children’s maternal grandmother’s boyfriend, be designated the legal custodian of the minor children. Amber also requested that the court interview K.M.S. Tom moved for in-camera interviews with each child.

{¶18} A hearing on the matter of permanent custody took place on April 21, July 8, and July 9, 2015. At the time of the April hearing, K.M.S. was ten years old, K.S. was nearly seven years old, and M.C. was nearly three years old. The report of GAL was filed on July 30, 2015, with a recommendation that the children should be placed in the permanent custody of the Agency. (Doc. No. at 162.) The GAL Case Nos 9-15-37, 38, 39 testified in the case on August 24, 2015. After that, on September 14, 2015, the trial court issued its judgment entry, terminating Amber’s and Tom’s parental rights and granting permanent custody of the children to the Agency. (Doc. No. at 165.)

{¶19} Amber and Tom appeal, raising the following assignments of error.

Amber’s Assignments of Error

1) The trial court erred when it granted permanent custody of the minor children to the State as it was not in the best interest of the children.

2) The trial court erred when it granted permanent custody of the minor children to the State when the State failed to make reasonable efforts at reunification.

3) The trial court erred when it granted permanent custody of the minor children to the State when the children could have been placed with the biological parents within a reasonable time.

4) The trial court erred when it granted permanent custody of the minor children to the State when the children could have been placed with alternative caregivers and said placement would have been in the children’s best interest.

Tom’s Assignments of Error

1) The trial court erred by finding that granting permanent custody of Appellant’s daughter and his two step-daughters to Appellee was in the best interest of the children.

2) Appellee neither made a good faith effort at achieving reunification nor used reasonable efforts to do so.

3) The trial court erred in finding that the children could not be placed with their parents within a reasonable period of time or should not be placed with the parents.

- 10 - Case Nos 9-15-37, 38, 39

4) The trial court committed prejudicial error by not ruling on the appropriateness of an alternative placement that would have been in the best interest of the children.

{¶20} Before addressing the particular assignments of error, we summarize the law applicable to this case.

Summary of Permanent Custody Procedure {¶21} R.C. 2151.414 contains procedures that protect the interests of parents and children in a permanent custody proceeding. See In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26 (2014). This section of the Revised Code requires that before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of two prongs of the permanent custody test, as required under R.C. 2151.414(B). See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, ¶ 9 (2004). The outline of this test is provided below.

Permanent Custody Test: First Prong—R.C. 2151.414(B)(1) {¶22} The first prong of the test requires a finding by clear and convincing evidence that there exists one of the statutorily-prescribed situations of R.C. 2151.414(B)(1):

(a) 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.

(b) The child is abandoned.

(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.

- 11 - Case Nos 9-15-37, 38, 39

(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, * * * .

(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state. R.C. 2151.414(B)(1).

Permanent Custody Test: Second Prong—Best Interest of the Child

{¶23} “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.” (Emphasis sic.) In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 55; see R.C. 2151.414(B)(1). The best interest determination is based on an analysis of R.C. 2151.414(D).

{¶24} 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. In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12, 8-13-14, 2014-Ohio-755, ¶ 27. The factors of R.C. 2151.414(D)(1) 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;

- 12 - Case Nos 9-15-37, 38, 39

(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 determination and no single factor is given greater weight than others by the statute. See In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56 (2006); In re Z.Y., 8th Dist. Cuyahoga No. 86293, 2006- Ohio-300, ¶ 13.

Standard of Review {¶25} When an appellate court reviews whether a trial court’s permanent custody decision is against the manifest weight of the evidence, the court “weighs the evidence and all reasonable inferences, 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.” Eastley v. Volkman, 132 Ohio St.3d 328, - 13 - Case Nos 9-15-37, 38, 39 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App. 3d 103, 115 (9th Dist. 2001).

{¶26} In a permanent custody case, the ultimate question for a reviewing court is “whether the juvenile court's findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008–Ohio–4825, ¶ 43. “Clear and convincing evidence” is: “[T]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104, (1986).

{¶27} In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368 (1985), citing Cross v. Ledford, 161 Ohio St. 469 (1954) (Once the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.). “Thus, if the children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm belief that permanent - 14 - Case Nos 9-15-37, 38, 39 custody is warranted, then the court's decision is not against the manifest weight of the evidence.” In re R.M., M.M., D.M., B.M., 4th Dist. Athens Nos. 12CA43, 12CA44, 2013-Ohio-3588, ¶ 55 (4th Dist.).

{¶28} As an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence, upon which the fact finder could base its judgment. In re B.H., 5th Dist. Fairfield No. 14-CA-53, 2014-Ohio-5790, ¶ 79. Reviewing courts should accord deference to the trial court’s decision because the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that cannot be conveyed to us through the written record. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 79-80 (1984).

{¶29} Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, “ ‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court should find a trial court’s permanent custody decision against the manifest weight of the evidence only in the “ ‘exceptional case in which the evidence weighs heavily against the [decision].’ ” Id., quoting Martin at 175; accord State v. Lindsey, 87 Ohio St.3d 479, 483 (2000).

- 15 - Case Nos 9-15-37, 38, 39

{¶30} With the above standards in mind we proceed to address the issues raised by Amber and Tom on appeal.

{¶31} At the outset we note that Amber and Tom raise similar arguments on appeal, therefore we elect to discuss their corresponding assignments of error together.

First and Third Assignments of Error {¶32} In their first assignments of error, Amber and Tom challenge the second prong of the permanent custody test, alleging that the trial court erred in its best interest determination. The third assignments of error concern the first prong of the permanent custody test and allege that the children could have been placed with their parents within a reasonable period of time.

First Prong of the Permanent Custody Test—R.C. 2151.414(B)(1) {¶33} As stated above, in order to satisfy the first prong of the permanent custody test, the trial court had to find one of the statutorily-prescribed situations of R.C. 2151.414(B)(1)(a)-(e). The trial court’s finding that “[t]he children have continuously been in the temporary custody of the Agency for twelve of the last twenty-two consecutive months” fulfilled R.C. 2151.414(B)(1)(d). (Doc. No. 165 at 9.) Amber and Tom do not dispute this finding, and we find that it is supported by the record.

{¶34} In their third assignments of error, Amber and Tom seem to suggest that the trial court was also required to find that the children could not be placed - 16 - Case Nos 9-15-37, 38, 39 with either parent within a reasonable time or should not be placed with the parents. Such a finding would satisfy R.C. 2151.414(B)(1)(a). “But if, as in this case, 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, then the trial court does not need to consider the first element,” which is listed in R.C. 2151.414(B)(1)(a). In re Elliott, 7th Dist. Jefferson No. 03JE30, 2004-Ohio-388, ¶ 36; see also In re J.P., 12th Dist. Butler No. CA2011-01-014, 2011-Ohio-3332, ¶ 35; In re J.C., 4th Dist. Adams No. 07CA834, 2007-Ohio-3783, ¶ 20; In re Damron, 10th Dist. Franklin No. 03AP-419, 2003-Ohio-5810, ¶ 9 (“The plain language of R.C. 2151.414(B)(1)(a) reveals that this subsection is only triggered when none of the remaining three subsections are triggered.”).

{¶35} Accordingly, we conclude that the trial court was not required to find that the children could not or should not be placed with the parents within a reasonable period of time. Therefore, any errors alleged with respect to the trial court’s failure to make such a finding or to the trial court’s analysis of factors of R.C. 2151.414(E), are immaterial.

Second Prong of the Permanent Custody Test—Best Interest Test under R.C.

2151.414(D)(1) {¶36} The following evidence was presented to the trial court relative to the best interest consideration in R.C. 2151.414(D)(1).

- 17 - Case Nos 9-15-37, 38, 39

Evidence Regarding Amber {¶37} The Agency presented the testimony of the ongoing caseworker, Jackie Hamilton, who stated that she became involved with the case in February of 2013. At that time, Amber was the primary caretaker of the children. She maintained that from the beginning the Agency’s goal was reunification. She also confirmed that the children were permitted to remain in Amber’s custody during the first three months the case was open. Ms. Hamilton recalled that one of the case plan objectives was for Amber to complete a mental health assessment within thirty days of the court-stamped date on the case plan. In March 2013, Ms. Hamilton drove Amber to the Marion Area Counseling Center and watched the children in the waiting room so that Amber could comply with that case plan requirement. The recommendations from the assessment were for Amber to attend counseling at least once a month. She was also prescribed medication to treat her depression and anxiety issues. Ms. Hamilton recalled that in May of 2013, the Agency removed the children from Amber’s custody because she tested positive for opiates and other drugs.

{¶38} The Agency also learned of troublesome behavior exhibited by Amber during the first year of the Agency’s involvement. In the fall of 2013, Amber, who lived in government-assisted housing, allowed an individual named “Amigo” to live in her apartment for $50.00 a week. (July 8 &9, 2015, trans. at 138-140). At trial, Amber explained that she did this to earn money for Christmas presents. During the - 18 - Case Nos 9-15-37, 38, 39 course of his stay, “Amigo” and his friend “Ray-Ray” began selling drugs out of Amber’s home.^[4] Amber claimed she lived with Tom while she rented her apartment to these individuals and was unaware of their drug trafficking until she walked in on a sale one morning a few months later. Amber stated she “kicked out” “Amigo” and “Ray-Ray” immediately after discovering their actions in her home. (Id. at 139, 141). Amber was later subpoenaed to testified in a federal case against “Amigo” and “Ray-Ray” in Chicago. (Id. at 140). Amber admitted to being “on drugs” during this time. (Id. at 141).

{¶39} Amber eventually completed the drug and alcohol assessment required by the case plan. Ms. Hamilton assisted Amber in enrolling in some rehabilitation programs in 2014 for opioid addiction. One such program was a clinic under the supervision of Dr. Mark Piacentini. At trial, Lisa Smith, a medical assistant with the program explained that the “recovery group” assisted people suffering from heroin addiction by conducting small group meetings and prescribing either Suboxone or Subutex to assist with the withdraw symptoms from heroin.

{¶40} In order to get a seven-day prescription for the medication, a “patient” must meet the requirements of the program, which included attending regular meetings and passing a urine test. Ms. Smith testified that Amber first came to the program in April of 2014 and continued weekly with the program until July 2014, when she was caught attempting to “cheat” on a drug test by using someone else’s