[Cite as In re C.E., 2009-Ohio-6027.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

IN THE MATTER OF: 

 C.E. CASE NO. 5-09-02 

ALLEGED NEGLECTED AND 

DEPENDENT CHILD, 

 O P I N I O N 

 [AMBER WATSON, APPELLANT, 

 ROBERT ESSEX, APPELLANT]. 

 

IN THE MATTER OF: 

 L.W. CASE NO. 5-09-03 

ALLEGED NEGLECTED AND 

DEPENDENT CHILD, 

 O P I N I O N 

 [AMBER WATSON, APPELLANT, 

 ROBERT ESSEX, APPELLANT]. 

 

Appeal from Hancock County Common Pleas Court 

Trial Court No. 20630033, 20730033 

Judgment Affirmed in Part and Reversed in Part 

Date of Decision: November 16, 2009 

 
Case No. 5-09-02, 5-09-03 

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APPEARANCES: 

Drew J. Mihalik for Appellant Essex 

Charles R. Hall, Jr. for Appellant Watson 

Kristen K. Johnson for Appellee 

Barbara Dibble for CASA 

WILLAMOWSKI, J.

{¶1} This appeal is brought by parent-appellants Amber and Robert from 

the judgment of the Court of Common Pleas of Hancock County, Juvenile 

Division, terminating parental rights and awarding permanent custody to the 

Hancock County Job and Family Services – Children’s Protective Services Unit 

(“the Agency”). For the reasons set forth below, the judgment is affirmed in part 

and reversed in part. 

{¶2} On August 30, 2006, the elder half-sister of the children at issue in 

this case, C.H., was found wandering unattended in a parking lot. C.H. was three 

years of age at the time and was dirty and hungry. C.H. was eventually identified 

and taken home by officers from the Findlay Police Department. At the home, the 

officers found C.E., who was born on June 13, 2006, being cared for by Amber’s 
Case No. 5-09-02, 5-09-03 

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uncle. The home was determined to be unfit for children. Soon after, Amber 

arrived home and began to argue with the officers. While holding C.E., Amber 

began a physical struggle with the officers. Both C.H. and C.E. were removed 

from the home that day. 

{¶3} On August 31, 2006, the Agency filed a complaint alleging that C.H. 

and C.E. were neglected and dependent children. An emergency hearing was held 

on September 1, 2006. On September 6, 2006, the trial court entered judgment 

finding probable cause for the removal of the children and placing them in the 

emergency temporary custody of the Agency. On September 15, 2006, the trial 

court appointed Don Schmidt (“Schmidt”) as the guardian ad litem in this case. 

The adjudicatory hearing was held on October 5, 2006. Amber admitted to the 

allegations in the complaint at the hearing. The trial court accepted her admissions 

and found the children to be neglected and dependent. The dispositional hearing 

was held on November 9, 2006. On November 14, 2006, the trial court awarded 

temporary custody of both C.H. and C.E. to the Agency. On November 20, 2006, 

the Agency filed the first case plan.1

 The case plan required Amber to do the 

following: 1) maintain a safe and stable living environment; 2) obtain a mental 

health and substance abuse assessment and then follow the recommendations; 3) 

participate in parental education and other recommended related services; and 4) 

 

1

 The case plan also included recommendations for C.H.’s father. However, C.H. is not involved in this 

appeal as custody was awarded to her father. Thus, these recommendations will not be discussed. 
Case No. 5-09-02, 5-09-03 

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complete a life skills class. The case plan required Robert, and his wife, to 1) 

establish paternity of C.E.; 2) obtain a mental health and substance abuse 

assessment and then follow the recommendations; and 3) complete a community 

services assessment. The case plan was approved by the trial court on December 

5, 2006. 

{¶4} On February 23, 2007, the semi-annual review of the case plan was 

filed. During the review, the following progress or lack thereof was noted: 1) 

Amber remained without stable and safe housing; 2) Amber completed her 

evaluations, but mental health services were still needed; 3) Amber continues to 

resist the education offered by the Agency; 4) Amber participated in the Life 

Skills classes, but still needs additional services; 5) Robert is objecting to the 

mental health and substance abuse evaluations as illegal and prejudicial; and 6) a 

DNA test to establish Robert as C.E.’s father was scheduled for March 1, 2007. 

Following the review, it was recommended that the children remain in the 

Agency’s temporary custody. 

{¶5} On June 27, 2007, Robert filed a motion for unsupervised visitation 

with C.E.. Robert based his motion on the fact that he was not involved in any of 

the underlying reasons for the removal of C.E. from Amber’s home. On July 12, 

2007, the Agency filed a motion for a six month extension of temporary custody. 

Schmidt filed his review report on August 3, 2007. In the report, Schmidt noted 
Case No. 5-09-02, 5-09-03 

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that Amber was making some progress and that Robert was feeling frustrated with 

the process. Schmidt also noted that he was still concerned with Amber’s lack of 

income, the fact that Amber was expecting another child soon, that Robert was not 

utilizing his full visitation with C.E., and that Amber still needs to participate in 

more life skills educational classes. On August 7, 2007, Amber filed a motion to 

allow her unsupervised visits with her children. In support of this motion, Amber 

attached the certificates of completion for the following classes: 1) Keys to 

Caregiving Parent Training; 2) Living Skills Program; 3) Getting It All Together – 

“Stress and Time Management with Little Ones” Parenting Infants and Toddlers 

Series; and 4) Good Beginnings – “Play and Toys” Parenting Infants and Toddlers 

Series. A hearing was held on all these motions on August 9, 2007. Amber 

withdrew her motion for unsupervised visits at the hearing. Robert’s motion was 

taken under consideration. The trial court granted the Agency’s motion for a six 

month extension of temporary custody. Robert’s motion was subsequently denied 

on August 16, 2007 

{¶6} On August 16, 2007, the second semi-annual review of the case plan 

was held. The review noted that Amber had obtained housing, and had completed 

the life skills class. However, Amber was still receiving individual education on 

life skills, needed psychological evaluation, and needed additional parent 

education as her expectations of the children were unrealistic. The review further 
Case No. 5-09-02, 5-09-03 

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stated that Robert had completed his psychological evaluation and was 

recommended for individual counseling, but declined. No requirement for 

individual counseling for Robert appeared in subsequent case plans. Robert’s wife 

had her evaluation scheduled, but the results were not yet available. An amended 

case plan was filed on September 4, 2007. The new plan required Amber to 

receive a psychological evaluation and participate in play therapy with C.H. 

Robert and his wife were required to complete a psychological evaluation as well 

and to participate in parent education regarding toddler care. In addition, Amber 

was required to continue her life skills and parental educational training. The trial 

court approved the amended case plan on September 14, 2007. 

{¶7} On September 16, 2007, L.W. was born to Amber.2

 The trial court 

granted an ex parte order removing L.W. from Amber on September 17, 2007. 

The decision was based upon the fact that C.H. and C.E. had been adjudicated as 

neglected and dependent and they still were in the temporary custody of the 

Agency. The emergency hearing was held on September 18, 2007. The trial court 

found probable cause for the removal and placed L.W. in the emergency 

temporary care of the Agency. On September 19, 2007, Schmidt was named the 

GAL of L.W. as well as the other children. The adjudicatory hearing concerning 

L.W. was held on October 11, 2007. The trial court found L.W. to be a dependent 

 

2

 The father of L.W. was unknown at that time. 
Case No. 5-09-02, 5-09-03 

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child and L.W. was added to the case plan.3

 Robert was subsequently determined 

to be the father of L.W. as well as C.E.. A dispositional hearing was held on 

November 28, 2007. Following the hearing, the trial court granted temporary 

custody of L.W. to the Agency. 

{¶8} On January 8, 2008, the Agency filed motions for permanent 

custody of all three children. The motion for L.W. alleged that it would be in his 

best interest for parental rights to be terminated because the parents have 

repeatedly failed to remedy the problems causing removal, have chronic mental 

illness, and have failed to demonstrate a commitment to the child. The motions 

for C.H. and C.E. indicated that the children had been in the temporary custody of 

the Agency for more than fifteen months as well as all the reasons set forth in the 

motion for permanent custody of L.W.. On February 19, 2008, Amber filed a 

motion for a second psychological evaluation. This motion was granted on that 

same day. 

{¶9} The third semi-annual review was conducted on February 7, 2008. 

The Agency noted that Amber had maintained her housing since June 2007, and 

was working on the classes and therapy requested. However, the Agency was 

concerned by the fact that Amber was unemployed, had quit school, had been 

receiving parent educator services since she was fourteen yet still was having 

 

3

 The amended case plan also included services for C.H.’s father. 
Case No. 5-09-02, 5-09-03 

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issues with her parenting skills.4

 The Agency also said that Robert chose not to 

comply with the requested therapy5

 due to his belief that it was unnecessary. 

Robert attended visits regularly, but usually left half way through while his wife 

only attended a few visitations. The reason for the early departure was claimed to 

be Linda’s work schedule, so the visits were changed from one two hour visit a 

week to two one hour visits per week. 

{¶10} On June 26, 2008, a pretrial was held on the motions for permanent 

custody. Amber moved for a continuation on the motion and no objections were 

made. Thus, the trial court granted the continuance until September 2008. A 

fourth semi-annual review was then held on August 7, 2008. The review noted 

that Amber still had issues with her parenting skills and that there was concern 

about her mental health. The review also noted concerns that Robert was using 

opiates outside doctor recommendations. Due to these concerns, the Agency 

determined that there were safety issues in returning the children to either Amber 

or Robert at that time. The trial court then granted Robert’s request for a second 

psychological evaluation. Due to the second examination, the hearing was again 

continued and was rescheduled for January 7, 8, and 9, 2009. 

{¶11} On September 24, 2008, Robert moved for extended and 

 

4

 At the time of the third review, Amber was twenty years of age. 

5

 The mentioned therapy was a recommendation of Dr. Connell and was never required in any subsequent 

case plan. 
Case No. 5-09-02, 5-09-03 

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unsupervised visitation with C.E. and L.W. The trial court granted the motion on 

November 7, 2008. The visits were extended to two hours, twice a week. The 

visits were allowed to be unsupervised as long as Robert stayed at the visits for the 

full two hours for four consecutive weeks and fully cooperated with the Agency. 

On December 11, 2008, the second psychological evaluations of Amber and 

Robert were filed. Robert then filed a motion for custody of C.E. and L.W. on 

December 12, 2008. The trial court then granted Robert unsupervised overnight 

visits with the boys as of December 18, 2008. On December 29, 2008, Schmidt 

filed his GAL report. Schmidt recommended that permanent custody of C.E. and 

L.W. should be granted to the Agency.6

{¶12} On December 29, 2008, the Agency filed an amended motion for 

permanent custody of C.H., C.E., and L.W.. The basis for the amended motion 

was 1) that the children had been in the custody of the Agency for more than 

twelve months of a consecutive 22 month period, 2)Amber and Robert had failed 

to remedy the problems causing the removal of the children from the home, 3) 

chronic mental illness, physical disability, or chemical dependency of a parent so 

severe that it makes the parent unable to provide an adequate home within one 

year of the hearing, and 4) that Amber and Robert were unwilling to provide the 

basic necessities for the children or prevent neglect. The hearing on Robert’s 

 

6

 The recommendation for C.H. was that her father be granted custody of her. 
Case No. 5-09-02, 5-09-03 

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motion for custody and the Agency’s amended motion for permanent custody was 

held on January 5, 7, and 8, 2009. At the conclusion the trial court took the 

motions under advisement. On January 16, 2009, the trial court entered its 

judgment granting the motion for permanent custody of C.E. and L.W. to the 

Agency and denying Robert’s motion for custody.7

 Amber and Robert both 

appeal from this judgment. Amber raises the following assignments of error. 

First Assignment of Error 

[The Agency] failed its duty to use reasonable case planning and 

diligent efforts at reunification with the parent. 

Second Assignment of Error 

The trial court’s decision to terminate [Amber’s] parental rights 

and grant permanent custody to the [Agency] is against the 

manifest weight of the evidence. 

Third Assignment of Error 

The trial court erred in granting permanent custody for the 

children because it was not in their best interest. 

Fourth Assignment of Error 

The trial court erred by not making a finding on the record as 

to the wishes of the children and not appointing them separate 

counsel. 

Fifth Assignment of Error 

The trial court erred in granting permanent custody for the 

children because [Amber] lack[s] affluency. 

 

7

 The trial court granted the motion for custody of C.H.’s father. 
Case No. 5-09-02, 5-09-03 

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{¶13} Robert raises the following assignments of error. 

First Assignment of Error 

The lower court erred in granting permanent custody of C.E. 

and L.W. to [the Agency] because the case plan implemented by 

the Agency was not reasonably calculated to succeed in 

reunifying the two boys with their biological father, [Robert]. 

Second Assignment of Error 

The lower court’s decision to terminate [Robert’s] parental 

rights and grant permanent custody to [the Agency] and deny 

[Robert’s] motion for custody is not supported by sufficient 

evidence and/or is against the manifest weight of the evidence. 

{¶14} The right to raise one’s own child is a basic and essential civil right. 

In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. “Parents have a 

‘fundamental liberty interest’ in the care, custody, and management of their 

children.” In re Leveck, 3d Dist. No. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, 

¶6. These rights may be terminated, however, under appropriate circumstances 

and when all due process safeguards have been followed. Id. When considering 

a motion to terminate parental rights, the trial court must comply with the 

statutory requirements set forth in R.C. 2151.414. These requirements include in 

pertinent part as follows. 

(B)(1) Except as provided in division (B)(2) of this section, the 

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

court determines at the hearing held pursuant to division (A) of 

this section, by clear and convincing evidence, that it is in the 

best interest of the child to grant permanent custody of the child 
Case No. 5-09-02, 5-09-03 

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to the agency that filed the motion for permanent custody and 

that any of the following apply: 

* * * 

(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-twomonth period * * *. 

For the purpose of division (B)(1) of this section, a child shall be 

considered to have entered the temporary custody of an agency 

on the earlier of the date the child is adjudicated pursuant to 

[R.C. 2151.28] or the date that is sixty days after the removal of 

the child from home. 

(2) With respect to a motion made pursuant to [R.C. 

2151.413(D)(1)], the court shall grant permanent custody of the 

child to the movant if the court determines in accordance with 

division (E) of this section that the child cannot be placed with 

one of the child’s parents within a reasonable time or should not 

be placed with either parent and determines in accordance with 

division (D) of this section that permanent custody is in the 

child’s best interest. 

(C) In making the determination required by this section * * 

*, a court shall not consider the effect the granting of permanent 

custody to the agency would have upon any parent of the child. 

A written report of the guardian ad litem of the child shall be 

submitted to the court prior to or at the time of the hearing held 

pursuant to division (A) of this section * * * but shall not be 

submitted under oath. 

* * 

(D)(1) In determining the best interest of a child at a hearing 

held pursuant to division (A) of this section * * *, the court shall 

consider all relevant factors, including, but not limited to, the 

following: 
Case No. 5-09-02, 5-09-03 

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

child’s parents, siblings, relatives, foster caregivers and out-ofhome 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 

services 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. 

* * * 

(E) In determining at a hearing held pursuant to division (A) of 

this section * * * 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 clear and convincing 

evidence, at a hearing held pursuant to division (A) of this 

section * * * 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: 

(1) Following the placement of the child outside the child’s 

home and notwithstanding reasonable case planning and 

diligent efforts by the agency to assist the parents to remedy the 

problems that initially caused the child to be placed outside the 

home, the parent has failed continuously and repeatedly to 

substantially remedy the conditions causing the child to be 
Case No. 5-09-02, 5-09-03 

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placed outside the child’s home. In determining whether the 

parents have substantially remedied those conditions, the court 

shall consider parental utilization of medical, psychiatric, 

psychological, and other social and rehabilitative services and 

material resources that were made available to the parents for 

the purpose of changing parental conduct to allow them to 

resume and maintain parental duties. 

(2) Chronic mental illness, chronic emotional illness, mental 

retardation, physical disability, or chemical dependency of the 

parent that is so severe that it makes the parent unable to 

provide an adequate permanent home for the child at the 

present time and, as anticipated within one year after the court 

holds the hearing pursuant to division (A) of this section * * *; 

* * * 

(4) The parent has demonstrated a lack of commitment toward 

the child by failing to regularly support, visit, or communicate 

with the child when able to do so, or by other actions showing an 

unwillingness to provide an adequate permanent home for the 

child; 

* * 

(16) Any other factor the court considers relevant. 

R.C. 2151.414. 

{¶15} Amber’s first assignment of error alleges that the Agency failed to 

use reasonable case planning and make diligent efforts to reunite the children with 

her. Case plans are tools that the Agency uses to set forth the goals of the parents 

to allow for the return of the children to their parents. Leveck, supra at ¶10. 

These plans must take into consideration the individual circumstances of each 

case, including the abilities of the parents and the children. Id. “Nevertheless, the 
Case No. 5-09-02, 5-09-03 

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issue is not whether there was anything more that [the Agency] could have done, 

but whether the [Agency’s] case planning and efforts were reasonable and diligent 

under the circumstances of this case.” Id. 

{¶16} In this case, the children were removed from the home when CH 

was found wandering the parking lot, dirty, hungry, and unattended. The Agency 

investigated and the home was found to be filthy and unfit for the children to 

remain. In response to these problems, the Agency’s case plan required Amber to 

1) obtain additional parenting knowledge and skills; 2) obtain mental health and 

substance abuse assessments; 3) obtain a more detailed psychological evaluation; 

and 4) obtain safe and stable housing. The case plan included requirements that 

Amber comply with the recommendations of the evaluations. The terms of the 

case plan were reasonably calculated to remedy the reasons for the removal of the 

children from the home. Thus, the trial court did not err in finding that the 

Agency had made reasonable case planning and made diligent efforts to return the 

children to Amber. Her first assignment of error is overruled. 

{¶17} Amber’s second assignment of error is that the judgment 

terminating her parental rights was against the manifest weight of the evidence. If 

a child has been in the temporary custody for twelve of twenty-two consecutive 

months, the trial court may terminate parental rights if it finds that doing so is in 

the best interest of the child. R.C. 2151.414(B)(1)(d). The time begins to run 
Case No. 5-09-02, 5-09-03 

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whenever the child is adjudicated pursuant to R.C. 2151.28 or 60 days after the 

child is removed from the home, whichever is earlier. Id. However, only the time 

between the start date and the date of the filing by the Agency of the motion for 

permanent custody is to be considered by the trial court. In re C.W., 104 Ohio 

St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176. “In other words, the time that 

passes between the filing of a motion for permanent custody and the permanentcustody hearing does not count toward the 12-month period set forth in R.C. 

2151.414(B)(1)(d).” Id. at ¶26. 

{¶18} In this case, C.E. was adjudicated a neglected and dependent child 

on October 5, 2006. L.W. was adjudicated a dependent child on October 11, 

2007. A motion for permanent custody was filed for both boys on January 8, 

2008. At that time, C.E. had been in the temporary custody for more than twelve 

of twenty-two consecutive months. The trial court’s findings to this effect are 

supported by the evidence. Thus, the trial court did not need to determine 

whether C.E. could be returned to Amber within a reasonable time, only if 

termination of parental rights would be in his best interest. Id. at ¶21. However, 

at the time the motion was filed and the time for determination of the twelve 

month period was established, only three months had passed since L.W. had been 

adjudicated a dependent child. The Agency filed an amended motion alleging 

that the twelve month period had been met on December 29, 2008. Since this 
Case No. 5-09-02, 5-09-03 

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motion is an amendment and not a new motion, it relates back in time to the 

original filing.8

 Civ.R. 15(C). The time between the filing of the motion and the 

hearing cannot be counted in the time calculation. In re Arnold, 3d Dist. No. 1-

04-71, 1-04-72, 1-04-73, 2005-Ohio-1418, ¶10. The trial court must thus make 

additional findings before terminating parental rights to L.W. 

{¶19} In determining whether to terminate Amber’s parental rights, the 

trial court made the following findings as to both C.E. and L.W. 

[Amber] has been diagnosed as having “Developmental 

Disorder Not Otherwise Specified, Major Depression, 

Recurrent; Bipolar Disorder and Post-traumatic Stress 

Disorder”. Doctors have stressed the importance of [Amber] 

maintaining a medication regimen for the Bipolar Disorder but 

she has been noncompliant. [Amber] did complete the life skills 

group but only minimal progress was noted and she was unable 

to demonstrate any change in her parenting skills. Therapist 

Peg Wood recommended that [Amber] attend the “Personality 

Skills Group” but she refused. It was also recommended that 

she attend the “Mind over Mood Group” and she only attended 

once. Becky Shoemaker, the parent educator for [the Agency] 

worked with [Amber] for an extended period of time over 

several years. Following hours of intensive work with the 

mother, Shoemaker opined that [Amber] could not parent any 

of her children either together or individually. 

* * * 

Dr. Connell describes the mother as having significant deficits in 

cognitive, interpersonal, and emotional functioning which 

impairs her ability to effectively parent her children. He 

further goes on to opine that it is unlikely that she will ever be 

 

8

 This court notes that only seven days had elapsed between the amended motion and the hearing date. 

Thus, if this would have been a new motion, the hearing would have been held before the response time 

had expired. This potentially would have been a due process problem. 
Case No. 5-09-02, 5-09-03 

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able to function independently as a parent to any of her three 

children. He continues that she has been involved in some form 

of parent education for the past six year (sic), but has failed to 

exhibit the judgment and decision making essential for effective 

parenting. 

Jan. 16, 2009, J.E., 4-5. These findings are supported by the record. The findings 

indicate that Amber suffers from chronic mental illness and lacks the ability to 

provide a stable and safe home for the children. Thus, pursuant to R.C. 

2141.414(E)(2)(4), there is a reasonable basis for determining that the children 

cannot be placed with Amber within a reasonable time. Amber’s second 

assignment of error is overruled. 

{¶20} In the third assignment of error, Amber claims that the trial court’s 

judgment is not in the best interest of the children. The trial court must consider 

the factors set forth in R.C. 2141.414(D) when determining what is in the best 

interest of the children. The trial court’s determination must be supported by 

clear and convincing evidence. In re M.E., 8th Dist. No. 86274, 2006-Ohio-1837, 

¶9. The trial court in this case stated that it had considered the statutory factors. 

J.E., 4. The trial court based its determination upon the report of Dr. Connell, 

which was entered into evidence. Thus, the findings were supported by 

competent, credible evidence. The trial court did not err in determining that 

termination of Amber’s parental rights was in the best interest of the children. 

Therefore, the third assignment of error is overruled. 
Case No. 5-09-02, 5-09-03 

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{¶21} Amber’s fourth assignment of error alleges that the trial court erred 

by failing to make a finding concerning the wishes of the children or by failing to 

appoint separate counsel for the children. Amber relies upon an Ohio Supreme 

Court opinion holding that it may be necessary to appoint separate counsel for a 

minor if his or her wishes contradict those of the guardian ad litem. In re 

Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110. This court 

agrees with the holding in Williams. However, that holding does not apply in this 

case. Here, the children in question are toddlers and are not capable of 

understanding the proceedings or making their wishes known. The trial court 

correctly considered the maturity level of the children and determined that they 

could not make their wishes known. Since the children cannot express their 

wishes, they did not conflict with the recommendation of the guardian ad litem. 

Thus no appointment of separate counsel was necessary. The fourth assignment 

of error is overruled. 

{¶22} In her final assignment of error, Amber claims that her parental 

rights were terminated because she lacked finances. The law does not permit the 

termination of parental rights simply because other parents would be better able to 

provide for the child. In re Alexis K., 160 Ohio App.3d 32, 2005-Ohio-1380, ¶22, 

825 N.E.2d 1148. “Only where there is a ‘demonstrated incapacity or something 

akin to criminal neglect that the law is justified in interfering with the natural 
Case No. 5-09-02, 5-09-03 

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relations of parent and child.’” Id. citing In re Konneker (1929), 30 Ohio App. 

502, 511, 165 N.E. 850. Although Amber’s lack of financial resources may have 

hindered her ability to find suitable housing for her children, this was not the 

reason the trial court terminated her parental rights. The trial court instead 

focused on her mental health and seeming inability to apply the parenting skills 

she learned in her classes. The judgment entry does not indicate that the trial 

court’s judgment is based upon her lack of finances in any way. Thus, Amber’s 

fifth assignment of error is overruled. 

{¶23} Robert’s first assignment of error alleges that the Agency’s case 

plan was not reasonably calculated to reunite the children with him. His second 

assignment of error claims that the judgment terminating his parental rights was 

against the manifest weight of the evidence. Since these two assignments are 

interrelated, they will be addressed concurrently. The case plans set forth four 

objectives for Robert and Linda: 1) complete a psychological evaluation; 2) 

obtain additional parenting knowledge and skills; 3) possibly obtain community 

services; and 4) obtain mental health and substance abuse assessments. This court 

notes that the second and third objectives for Robert and Linda were eventually 

dismissed by the Agency as not necessary. The first and fourth objectives were 

eventually completed by the parties. 
Case No. 5-09-02, 5-09-03 

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{¶24} The first objective was to complete a psychological evaluation. 

Robert and Linda were both evaluated by Dr. David Connell. Robert then 

received a second evaluation by Dr. Patrick. April Allison, the second case 

worker in this matter, testified that Robert had completed this objective, even 

though he had objected to being subjected to the evaluation. Tr. 500. She 

believed that Robert was angry with the process and did not understand why he 

was not given his sons when they were removed from Amber’s home.9

 

{¶25} Robert did attend all of the psychological evaluation appointments 

and no diagnosis of mental health issues were found.10 At trial, Dr. Connell 

testified that given what he had previously seen, he would not grant Robert 

custody of the children. Tr. 103. However, he also testified that this opinion 

could change as he had not observed Robert with the children or read records 

concerning the interaction of Robert with the children. Tr. 126, 136. Dr. Connell 

testified that if Robert had a history of healthy visits, counseling, and drug testing 

for a possible drug problem, Robert could effectively parent the children. Tr. 137. 

Noticeably, although the social workers and Dr. Connell testified that the children 

should not be placed with Robert, they did not testify that the children would be in 

danger of abuse or neglect if placed with Robert. Instead, they focused on his 

 

9

 The children have never resided in Robert’s home. They were removed from Amber’s home and no 

allegation has ever been made that Robert’s home is inappropriate. 

10 Dr. Connell testified that he believed that Robert was deceitful, self-centered, and may have a drug 

problem. However, Dr. Connell did not state that he found any mental illness. 
Case No. 5-09-02, 5-09-03 

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inappropriate relationship with the much younger Amber, while being married to 

Linda, and possible drug problem. 

{¶26} Dr. Carol Patrick conducted the second psychological evaluation on 

Robert. Contrary to Dr. Connell, Dr. Patrick found Robert to be very cooperative 

and saw no indication of drug abuse. Tr. 154-56. She found that the successful 

unsupervised overnight visits were indicative of Robert’s ability to effectively 

parent the children and had no concerns of abuse or neglect. Tr. 158, 197-98. 

{¶27} The fourth objective was to obtain a mental health and substance 

abuse evaluation. April Allison, the caseworker from June 2007 until August 

2008, testified that Robert was referred to Firelands for these assessments and that 

the assessments had been completed. Tr. 513. No follow up treatment was 

recommended by Firelands. Tr. 514. Her personal opinion was that Linda and 

Robert both needed additional mental health counseling, such as marital 

counseling. Tr. 514-15. She also believed that Robert has a drug problem due to 

his having been convicted of a drug offense in the 1980’s in Pennsylvania and a 

positive drug screen.11 Tr. 516. However, Dr. Connell’s independent testing of 

hair follicle came back negative for marijuana, amphetamines, 

methamphetamines, opiates, ecstasy, cocaine, and PCP. CPSU Exhibit 3. Robert 

denied all use of illegal drugs or drug abuse. 

 

11 Robert tested positive for Dilaudid and barbituates in 2008. He tested negative for Percocet for which 

he had a prescription. He had no prescription for Dilaudid, which is a pain killer stronger than Percocet. 
Case No. 5-09-02, 5-09-03 

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{¶28} At the trial, the testimony was focused less on Robert’s parenting 

abilities and more on his attitude toward the Agency. The relationship between 

Robert and the Agency was clearly a combative one. The case workers were 

primarily concerned with the inappropriateness of the affair between Robert, a 

sixty-something married man, and Amber an 18 year old woman. The testimony 

indicated that the case workers suggested that Linda and Robert should seek 

marital counseling, they were concerned that Linda was going to leave Robert, 

that Robert was too old or sick to care for the children, and that Robert was 

denying a drug problem. Because of his drug related conviction more than two 

decades ago, the case workers contended that Robert must have a drug abuse 

problem despite his denials and two drug tests which were both negative for 

illegal and unauthorized prescription drugs.12 The case plan had required a 

mental health and substance abuse assessment and further required that Robert 

and Linda follow the recommendations. Robert and Linda had the assessments 

and no further services were recommended by the assessors. Although, the case 

workers claimed to continue to have concerns, they did nothing to address them 

after the assessment. April Allison believed that Robert and Linda needed marital 

counseling, but never made it part of any case plan. April testified that she had 

 

12 Dr. Connell administered a hair follicle test. Firelands also did a drug screen that came back positive 

for opiates, which they credited to authorized use of Percocet. 
Case No. 5-09-02, 5-09-03 

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concerns and told Robert they should consider counseling, but that was the extent 

of her involvement. 

{¶29} Then Kimberly Freetag-Shope, the CASA case manager, testified 

that within the two weeks prior to the trial, she had observed Robert and Linda in 

their home caring for the boys. She testified that she saw an appropriate family 

and that Linda had a positive attitude about her marriage and raising the boys. Tr. 

308. Linda herself testified that although she had many misgivings at the 

beginning and was very angry with Robert for his affair, they had worked through 

those issues. She testified that she intended to remain in her marriage and that she 

desired to have the boys join their family. Tr. 329. She also testified that she 

would treat the boys as her own and that her daughter has accepted her brothers 

and enjoys having them in the home. Tr. 329, 352. As for the drug abuse 

question, no additional tests were ever requested and no additional services were 

required. The Agency’s claim of concern about potential drug abuse is belied by 

the fact that it was not further addressed by the case plan. 

{¶30} The Agency also never requested medical records to determine the 

status of Robert’s health. In fact, the only direct testimony about whether 

Robert’s health limited his ability to parent was that of Kimberly Freetag-Shope. 

She observed Robert in his home playing with the boys. She testified that the 

home was appropriate, Robert and Linda’s interactions with the boys were 
Case No. 5-09-02, 5-09-03 

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appropriate, and that she saw no physical limitations on Robert’s ability to care 

for the children. Tr. 305-314. Linda testified that any of Robert’s health 

problems did not impact his ability to parent the boys. Tr. 323. She also testified 

that although she and Robert smoke, they have limited the smoking to the garage 

so as to not trigger the boys’ asthma. Tr. 346. This claim was confirmed by 

Kimberly Freetag-Shope’s testimony that there was no smell of smoke in the 

home when she visited. Tr. 311. Linda also testified that she and Robert would 

quit smoking if instructed to do so by the court. Tr. 356. 

{¶31} Neal Schroeder, the Harmony House Case Manager testified that 

although Robert’s visits were initially sporadic and short, Robert has improved. 

During his visits, there were no problems with how Robert parented the children. 

Tr. 397. Any issues had to do with rule violations, such as forgetting to turn off a 

cell phone. Tr. 400. Prior to the hearing, Robert had progressed from supervised 

visits of two hours per week to four hours per week to unsupervised visits, to 

overnight unsupervised visits. Robert had even had a face to face visit with the 

foster parents at a transfer to discuss the boys medical conditions. This visit was 

uneventful and Robert was attentive to what the foster parents told him. Tr. 410. 

The GAL recommended granting the Agency permanent custody of the children, 

but also testified that if the trial court were to find Robert capable of parenting, he 

should be granted custody. Tr. 784, 791. 
Case No. 5-09-02, 5-09-03 

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{¶32} In reaching its decision, the trial court based its decision primarily 

on the mere speculation of the case workers and Dr. Connell. 

In particular this court is concerned regarding the relationship 

between the child’s natural parents. The father is [Robert], age 

62. The mother is [Amber], age 21, who has a third child in the 

custody of the child’s biological father. The two children who 

are the subject of this case were conceived and born while 

[Robert] was living with his wife of 17 years. * * * [Robert’s] 

current narcotic drug usage is unclear as is his entire life 

history. It is known that [Robert] served several years in prison 

in 1987 after pleading guilty to four counts of Intent to Deliver 

Heroin. 

J.E. 3. Although these facts may be offensive to many people, they do not affect 

one’s current ability to parent a child. The fact that Robert had an affair which 

resulted in the birth of these children may mean he was a lousy husband, but does 

not have any bearing on his ability to parent. Likewise, a conviction more than 20 

years ago for which the sentence is complete and no other instances of legal 

trouble is also irrelevant to whether Robert can effectively parent the children. 

Also irrelevant is Robert’s health since no one ever testified that it would interfere 

with his ability to parent the children. There was merely speculation that it might 

someday. Most noteworthy is that not one of the Agency’s witnesses testified that 

the children would be in any danger of neglect, abuse, or dependency if returned 

to Robert. All of the case workers and the GAL testified that Robert’s home was 

physically appropriate for the children. The sole issue was whether Robert could 

parent the children. However, the Agency made no effort to insure that all of the 
Case No. 5-09-02, 5-09-03 

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speculative concerns about Robert, which formed the basis of the Agency’s case 

against Robert, were addressed in any case plan. Robert did everything he was 

required to do and complied with the requirements set by the trial court in order to 

obtain more visitation. He successfully met the goals set by the trial court and at 

the time of the hearing had progressed to unsupervised overnight visits. 

{¶33} Based upon the evidence in the record, the Agency did not make a 

good faith effort to provide a case plan which would result in the reunification of 

Robert with his sons. Robert’s first assignment of error is sustained. Before a 

trial court can terminate parental rights, the Agency must first prove that it has 

made a case plan to try and correct the problems and return the children to their 

parents. Since the Agency failed to do so in this case, Robert’s second 

assignment of error claiming that the judgment was against the manifest weight of 

the evidence, is also sustained. 

{¶34} The judgment of the Court of Common Pleas of Hancock County, 

Juvenile Division, is affirmed in part and reversed in part. 

Judgment Affirmed in Part and 

Reversed in Part 

ROGERS, J., concurs. 

/jlr 
Case No. 5-09-02, 5-09-03 

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SHAW, J., concurs in part and dissents in part: 

{¶35} I concur with the majority opinion overruling Amber’s five 

assignments of error and affirming the trial court’s judgment as to Amber. 

Because I believe the decision of the trial court with regard to Robert was 

supported by clear and convincing evidence, which was within the prerogative of 

the trial judge and not the appellate court to weigh, I respectfully dissent from the 

majority decision to sustain Robert's assignments of error and reverse the trial 

court's judgment as to Robert. 

{¶36} The majority decision as to Robert is based primarily upon 1) 

criticism by the majority of agency conduct with regard to Robert, 2) an apparent 

personal preference by the majority for the testimony of Dr. Patrick over the 

testimony of Dr. Connell with regard to Robert’s fitness to parent and 3) an 

independent weighing by the majority of the significance of Robert’s criminal 

history and drug abuse issues, together with a unique review of the GAL report - 

all of which leads the majority of the appellate court to conclusions which are 

simply different from the conclusions of the agency, different from the 

conclusions of Dr. Connell, different from the conclusions of the GAL, and 

different from the conclusions reached by the trial judge upon his evaluation of all 

the evidence as trier of fact. 
Case No. 5-09-02, 5-09-03 

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{¶37} The testimony and recommendations of the agency, the GAL and 

Dr. Connell all clearly supported the trial court’s judgment. However, the trial 

judge did not base his decision merely upon those recommendations. On the 

contrary, the trial judge considered all of the testimony, including that of Robert’s 

wife--which I would note, was particularly insightful both as to Robert’s fitness to 

parent and as to the home environment which would be offered to the child if 

Robert gained custody. Based upon all of the evidence, the trial judge then made a 

number of relevant and thoughtful findings with regard to Robert in paragraphs 5 

and 6 of the final judgment entry. The following are particularly instructive: 

“In particular this court is concerned regarding the relationship 

between the child’s natural parents. The father is Robert Essex, 

age 62. The mother is Amber Watson, age 21, who has a third 

child in the custody of the child’s biological father. The two 

children who are the subject of this case were conceived and 

born while Mr. Essex was living with his wife of 17 years. From 

the report of Dr. David Connell (CPSU Exhibit 3) Mr. Essex’s 

marital history, educational background, number of previously 

born children, family background, are unclear and have been 

the subject of contradictory reports offered by him. Mr. Essex 

has been prescribed Percocet for back pain but when tested in 

April 2008 he tested positive for barbiturates and Dilaudid but 

negative for Percocet. Mr. Essex had no prescription for 

Dilaudid, which is a much more powerful drug than Percocet. 

Mr. Essex’s current drug usage is unclear as is his entire life 

history. It is known that Mr. Essex served several years in 

prison in 1987 after pleading guilty to four counts of Intent to 

Deliver Heroin.” 

* * * 
Case No. 5-09-02, 5-09-03 

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“While the child has been in custody, the parents have had three 

case workers in addition to a parent educator. Despite Mr. 

Essex having several successful unsupervised visitations with the 

child, none of them have recommended a return of the child to 

his home nor have they offered an opinion that the child can be 

returned home anytime within the foreseeable future.” 

* * * 

“* * * The father appears to be an inappropriate parent for the 

reasons expressed by Dr. David Connell. Dr. Connell stated 

that while Mr. Essex is an intelligent person, his personality 

traits are indicative of manipulativeness, deceitfulness, lack of 

self-awareness, callous disregard for the feelings of others, and 

serious criminal behavior in his past.” 

* * * 

“The court is further aware that it has before it two psychological 

evaluations that arrive at contradictory conclusions. It is this 

court’s responsibility to weigh the evaluations and decide which 

one is the most credible. This court has read both evaluations and 

viewed the testimony of the respective doctors and has concluded 

that the testimony of Dr. Connell is more thorough and 

persuasive.” (Emphasis added.) 

{¶38} In my opinion, the trial court carefully set forth the evidence and 

then accurately identified and performed its responsibility to evaluate the 

credibility and persuasiveness of that evidence, exactly as it is supposed to do 

under the law. Unfortunately, in my view, the majority has simply re-evaluated the 

credibility and persuasiveness of this same evidence--as represented in a written 

transcript only--and has substituted the personal assessment of the appellate court 
Case No. 5-09-02, 5-09-03 

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for that of the trier of fact--which is exactly what we are not supposed to do as a 

reviewing court under the law. 

{¶39} For all of these reasons, I would overrule Robert’s assignments of 

error and affirm the judgment of the trial court in its entirety. 

/jlr