In re A.B.

2023 Ohio 326

• Court: Ohio Court of Appeals
• Decided: February 3, 2023
• Docket: 29598
• Status: Published

Opinion

[Cite as In re A.B., 2023-Ohio-326.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: A.B. & A.B. : : : C.A. No. 29598 : : Trial Court Case No. G-2018-006197- : 0F,0L; G-2018-006198,0H,0M : : (Appeal from Common Pleas Court- : Juvenile Division) :

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OPINION

Rendered on February 3, 2023

MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee

MISTY M. CONNORS, Attorney for Appellant

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EPLEY, J.

{¶ 1} The biological mother (“Mother”) of A.B.1 and A.B.2 appeals from a judgment

of the Montgomery County Court of Common Pleas, Juvenile Division, that awarded

permanent custody of A.B.1 and A.B.2 to Montgomery County Children Services

(“MCCS”). For the reasons that follow, the judgment of the trial court will be affirmed. -2-

I. Facts and Procedural History

{¶ 2} A.B.1 and A.B.2 were born to Mother and Father (who is not a party to this

appeal) in October 2016 and October 2017, respectively. At the time this case began, the

children (along with two older siblings – L.J. and D.J.) were in the care and custody of

Mother.

{¶ 3} MCCS became involved with A.B.1 and A.B.2 in late 2018 after receiving a

referral that Mother had failed to take A.B.2 to follow-up medical appointments after the

boy had surgery. A few months later, another referral was made, again alleging medical

neglect, and also raising concerns about housing stability. In January 2019, MCCS was

granted temporary custody of A.B.2, and by March 2019, temporary custody of A.B.1 was

granted to MCCS. At that time, the older children were removed from Mother’s care and

placed with foster families as well.

{¶ 4} A case plan was created to facilitate reunification and had the following

objectives: (1) obtain stable housing; (2) maintain a stable income; (3) complete a mental

health assessment; (4) complete “batterer’s intervention;” (5) sign releases of information;

(6) complete visitation with the children; (7) submit to a parenting evaluation and follow

any recommendations; and (8) submit to a psychological evaluation and follow any

recommendations. Despite Mother’s compliance and progress with the reunification plan,

on December 18, 2020, MCCS filed for permanent custody of A.B.1, A.B.2, and D.J. It

did, however, file a motion for the reunification of Mother and L.J.

{¶ 5} The permanent custody hearing was held on November 9, 2021. During the

proceeding, the magistrate heard testimony from Kerri A., the foster mother of A.B.1 and -3-

A.B.2, Dr. Richard Bromberg, a clinical psychologist who interviewed Mother, Nakeyia

Allen, the family’s case worker, and Mother. On December 17, 2021, after considering

the witness testimony (no exhibits were presented), the magistrate granted permanent

custody of A.B.1 and A.B.2 to MCCS and terminated Mother’s parental rights. L.J. and

D.J. were reunited with Mother.

{¶ 6} Mother filed objections to the magistrate’s decision on January 3, 2022 and

supplemental objections on July 14, 2022. The trial court overruled the objections on

August 26, 2022, finding by clear and convincing evidence that A.B.1 and A.B.2 had been

in the temporary custody of MCCS for 12 or more months of a consecutive 22-month

period and that permanent custody was in the best interest of the children.

{¶ 7} Mother has filed a timely appeal.

II. The trial court did not abuse its discretion

{¶ 8} Mother raises a single assignment of error: the trial court abused its

discretion when it granted MCCS permanent custody of A.B.1 and A.B.2. We disagree.

{¶ 9} The United States Supreme Court has described a parent’s rights in the care,

custody, and control of her children as “perhaps the oldest of the fundamental liberty

interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054,

147 L.Ed.2d 49 (2000). This interest, however, is not absolute. “The state has broad

authority to intervene to protect children from abuse and neglect.” State ex rel. Allen Cty.

Children Servs. Bd. v. Mercer Cty. Common Pleas Court, Prob. Div., 150 Ohio St.3d 230,

2016-Ohio-7382, 81 N.E.3d 380, ¶ 58 (O’Connor, C.J., dissenting).

{¶ 10} Because awarding permanent custody is a “drastic remedy that involves the -4-

termination of parental rights, permanent custody determinations must be based upon

clear and convincing evidence.” (Citations omitted.) Id. “Clear and convincing” means

more than a preponderance, but less than “clear and unequivocal.” In re Rose, 2017-

Ohio-694, 85 N.E.3d 498, ¶ 19 (2d Dist.).

{¶ 11} R.C. 2151.414 sets forth a two-part analysis for courts to consider when

determining a motion for permanent custody to a public services agency. First, the trial

court must find by clear and convincing evidence that the child either (a) cannot or should

not be placed with the parent within a reasonable time; (b) is abandoned; (c) is orphaned

with no relatives able to take permanent custody; or (d) has been in the temporary custody

of a public or private children services agency for 12 or more months of a consecutive 22-

month period. In re I.W., 2d Dist. Clark No. 2019-CA-76, 2020-Ohio-1643, ¶ 20; R.C.

2151.414(B)(1).

{¶ 12} If the first prong is met, the court must then determine whether granting

permanent custody is in the best interest of the child. In re J.N., 2d Dist. Clark No. 2019-

CA-82, 2020-Ohio-4157, ¶ 26; R.C. 2151.414(B)(1). To help with this determination, R.C.

2151.414(D)(1) lists factors the court must consider:

(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;

(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 * * *; -5-

(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.

“No one element is given greater weight or heightened significance.” In re C.F., 113 Ohio

St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.

{¶ 13} Once a decision is made regarding permanent custody of a child, an

appellate court will not reverse absent an abuse of discretion. In re J.N. at ¶ 22. The term

“abuse of discretion” implies the court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). “[T]he discretion which a trial court enjoys in custody matters should be accorded

the utmost respect, given the nature of the proceeding and the impact the court’s

determination will have on the lives of the parties concerned.” Miller v. Miller, 37 Ohio

St.3d 71, 74, 523 N.E.2d 846 (1988). Because “[t]he knowledge a trial court gains through

observing the witnesses and the parties in a custody proceeding cannot be conveyed to

a reviewing court by a printed record[,] * * * the reviewing court in such proceedings should

be guided by the presumption that the trial court’s findings were indeed correct.” (Citations

omitted.) Id.

{¶ 14} A.B.1 and A.B.2 had been in the custody of MCCS from March 8, 2019 until

the permanent custody motion was filed on December 18, 2020. This 21-month timeframe

was more than the requisite 12 months of a consecutive 22-month period set forth in R.C. -6-

2151.414(B)(1)(d). Trial Tr. at 113. The trial court’s analysis, therefore, focused only on

whether the grant of permanent custody to MCCS was in the best interest of A.B.1 and

A.B.2.

{¶ 15} When determining the best interest of the child, the court must consider all

relevant factors, including those found in R.C. 2151.414(D). The trial court found the first

factor particularly important – the interaction and interrelationship of the children with their

parents, relatives, foster parents, and any other person who may significantly affect the

child.

Interaction and interrelationships of the children

{¶ 16} The court first heard testimony from Kerri A. (“Kerri”), the foster mother of

A.B.1 and A.B.2. Kerri told the court that she had been the boys’ foster mother since

February 2021 and that they had made great progress in the nine or ten months they had

been together. Both boys, according to Kerri, were enrolled in Head Start and were

reaping the benefits. “They are learning by leaps and bounds in school. * * * Being in

school has really helped them tremendously.” Trial Tr. at 24. The children’s speech, which

had been a major issue, had also improved since being placed with Kerri. She testified

that “they don’t mumble jumble in their own special language anymore” and that there

had been a “[o]ne hundred percent improvement” in their time together. Trial Tr. at 29.

{¶ 17} Kerri also testified about the loving relationship she had developed with

A.B.1 and A.B.2. She stated that both boys were “smart,” “funny,” and “full of life” and

noted that their bond “shows in the face[s], their actions and just the way they are.” Trial

Tr. at 20. She further told the court that the boys were close with her extended family and -7-

that her family saw them as “part of the family.” Nakeyia Allen, Mother’s caseworker,

testified that the A.B.1 and A.B.2 were doing well in Kerri’s care, noting that from the time

A.B.1 had been with Kerri, “his speech has improved tremendously. * * * [H]e just always

appears to be happy and bonded with [Kerri].” Trial Tr. at 131-132.

{¶ 18} Despite the bond with the children, Kerri admitted two things. First, she

explained that while she loved A.B.1 and A.B.2, she was unsure if she was ready to adopt

them. “I love them, and they love me. I mean, it’s just – this is a hard decision going into.

I didn’t realize going into foster care that this is something that, uh, would come up so

fast.” Trial Tr. at 23. Kerri also acknowledged that the boys were bonded with their mother,

testifying, “Every little thing that she gives them, they bring it home, and they act like she’s

[given] them a million dollars, and it’s a simple washcloth from the dollar store. They carry

it around until they go to bed.” Trial Tr. at 20-21. She also noted that they talk about their

older brother D.J. all the time.

{¶ 19} Notwithstanding the bond that A.B.1 and A.B.2 had with Mother and their

older brother, there was troubling testimony regarding the interaction and interrelationship

of the children with the older siblings that could have significantly affected them in a

negative way. Allen, Mother’s caseworker, disclosed that there had been allegations

(which were later confirmed) that L.J. had inappropriately touched other children,

including his brother, D.J. In fact, he had been removed from one foster home due to

reports that he “sexually touched the son of the foster parent.” Trial Tr. at 114. D.J., too,

had been removed from a foster home after allegations that he “perp’d” on a five-year-old

in the household. -8-

{¶ 20} In light of L.J.’s and D.J.’s sexual abuse history, the court (along with MCCS

and the guardian ad litem) expressed concern about Mother’s housing plan. According to

trial testimony, Mother resided in a two-bedroom apartment. If reunited with all four

children, Mother planned to give L.J. his own room, and have D.J., A.B.1, and A.B.2 all

sleep in a room with her. Mother also testified that she had given L.J. and D.J. boundaries

as to where they could and could not go in the apartment and that they had been told they

could not be left alone with A.B.1 and A.B.2. She had had several cameras installed in

the home to protect the children from each other, but there were no cameras set up in

L.J.’s room. MCCS feared that, due to their ages and speech limitations, A.B.1 and A.B.2

would be susceptible to abuse by their older brothers. The trial court noted that it doubted

Mother could “effectively parent all her children long-term if she must also simultaneously

protect them from one another.” Entry at 10. While giving L.J. his own room was a strategy

for sexual abuse mitigation, D.J. had also been accused of sexual abuse and would have

been in the same room as A.B.1 and A.B.2. The trial court concluded that the interaction

and interrelationship of the children with their parents, siblings, relatives, foster

caregivers, and out-of-home providers weighed in favor of granting permanent custody to

MCCS.

Need for a legally secure permanent placement

{¶ 21} The trial court was also concerned about the children’s need for a legally

secure permanent placement and whether that could be achieved without a grant of

permanent custody to MCCS. Dr. Richard Bromberg, an expert in clinical psychology,

testified that he met with Mother in December 2020 to do a clinical interview and -9-

psychological testing. Dr. Bromberg diagnosed Mother with (1) mood disorder (disruptive

mood dysregulation disorder); (2) personality disorder; (3) substance abuse disorder; and

(4) “a pretty debilitating anxiety disorder, [with] a pretty classic case of panic disorder with

agoraphobia.” Trial Tr. at 71-72. He opined that all of these diagnoses would make it very

challenging to raise A.B.1 and A.B.2, let alone all four children at once.

{¶ 22} Dr. Bromberg also administered a Child Abuse Potential Inventory. Based

on Mother’s score, Dr. Bromberg made several findings. First, he stated that he believed

Mother had been untruthful in a lot of her answers. He also testified that “we can’t rule out

the existence of physical child abuse. We can’t rule out neglect. We can’t rule out more

significant psychological impairment. We can’t rule out more significant substance use

and abuse.” Trial Tr. at 81. Dr. Bromberg further testified that Mother’s personality

disorder “is very destructive * * * in a person’s relationships because it involves

dysfunctional * * * interpersonal skills, and * * * relationships are really interfered with. * * *

[Y]ou have a lot of relationship problems all the way around.” Trial Tr. at 64-65.

{¶ 23} Finally, when Dr. Bromberg was asked about his concerns with respect to

Mother’s ability to parent all four children, he told the court, “I think it would be unfair to

the mom. * * * I think it would be unfair to the kids, * * * because it’s putting everybody –

it’s compromising everybody.” Trial Tr. at 89-90. Based on the trial testimony, the court

did not believe that a secure permanent placement could be achieved without a grant of

permanent custody to MCCS.

The wishes of the children

{¶ 24} As to the wishes of the children, another factor found in R.C. -10-

2151.414(D)(1), the trial court held that due to the young ages of A.B.1 (five years old)

and A.B.2 (four years old), they were unable to formulate an opinion regarding their

custody, and therefore, the factor was inapplicable.

Custodial History

{¶ 25} A.B.1 and A.B.2 had been in the custody and care of MCCS for more than

12 of the preceding 22 consecutive months; A.B.1 had been two-years old and A.B.2 had

been one-year old when they went into foster care, meaning they had spent most of their

lives in the custody of MCCS. Additionally, the boys had been in the foster care of Kerri

for approximately nine months and were thriving. The trial court, however, made no

finding on this factor.

R.C. 2151.414(E) Factors

{¶ 26} The final factor the trial court must consider when determining whether

granting permanent custody to the agency is in the best interest of the children is whether

any of the factors in divisions (E)(7) to (11) of R.C. 2151.414 apply in relation to the

parents and child. The trial court determined that there was no evidence presented

relevant to these factors.

{¶ 27} After considering the requisite factors, the trial court found by clear and

convincing evidence that both children had been in the temporary custody of MCCS for

over 12 months of a consecutive 22-month period and that it was in the best interest of

A.B.1 and A.B.2 to grant permanent custody to MCCS and divest Mother of parental

rights. The trial court’s decision was detailed, analyzed the requisite factors, and was

reasonable. Based on our review of the record and the discussion above, we cannot say -11-

the trial court abused its discretion.

{¶ 28} The assignment of error is overruled.

III. Conclusion

{¶ 29} The judgment of the trial court will be affirmed.

WELBAUM, P.J. and TUCKER, J., concur.