[Cite as In re A.M., 2023-Ohio-671.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
IN THE MATTER OF: CASE NOS. 2022-A-0090 2022-A-0091 A.M. AND A.M., DEPENDENT CHILDREN Civil Appeals from the Court of Common Pleas, Juvenile Division
Trial Court Nos. 2018 JC 00136 2018 JC 00137
OPINION
Decided: February 28, 2023 Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor; Christopher R. Fortunato and Jessica Fross, Assistant Prosecutors, 25 West Jefferson Street, Jefferson, OH 44047 (For Appellee, Ashtabula County Children Services Board).
Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Appellant, Samuel Marshall, Jr.).
Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, LPA, 34 South Chestnut Street, Suite 100, Jefferson, OH 44047 (Guardian ad Litem).
MARY JANE TRAPP, J.
{¶1} In this consolidated appeal, appellant, Samuel Marshall, Jr. (“Mr. Marshall”),
appeals the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division,
overruling his objections to the magistrate’s decision and granting permanent custody of
his two minor children to appellee, Ashtabula County Children Services Board (“ACCSB”). {¶2} Mr. Marshall asserts two assignments of error, contending that (1) the trial
court erred in finding that clear and convincing evidence supported granting permanent
custody of the children to ACCSB, and (2) ACCSB failed to show that reasonable
reunification efforts were made prior to seeking permanent custody of the children.
{¶3} After a thorough review of the record and pertinent law, we find that clear
and convincing evidence supported the trial court granting permanent custody of the
children to ACCSB and its determination that ACCSB made reasonable reunification
efforts.
{¶4} Thus, we affirm the judgment of the Ashtabula County Court of Common
Pleas, Juvenile Division.
Substantive and Procedural History
{¶5} This appeal involves the two minor children of Mr. Marshall and Rebecca
Henery (“Ms. Henery”), who were born, respectively, in 2013 and 2016.
{¶6} This matter began on July 27, 2018, when ACCSB received a hotline call at
3 a.m. indicating that the children were present at the home of a babysitter where the
police had been called. Ms. Henery reported that she was intoxicated and unable to pick
up the children. Mr. Marshall arrived by taxi but appeared to be intoxicated. ACCSB took
emergency temporary custody of the children at the scene. The trial court filed an ex
parte order granting emergency temporary custody of the children to ACCSB.
{¶7} On July 30, 2018, ACCSB filed a verified complaint for temporary custody,
alleging neglect and dependency. The trial court held a shelter care hearing. Mr. Marshall
and Ms. Henery appeared and stipulated to probable cause. The trial court continued
Case Nos. 2022-A-0090, 2022-A-0091 ACCSB’s emergency temporary custody of the children. The court appointed a guardian
ad litem (“GAL”) for the children and counsel for Mr. Marshall and Ms. Henery.
{¶8} On August 15, 2018, ACCSB filed a case plan. The case plan stated that
Mr. Marshall and Ms. Henery admitted to chronic alcohol use. There were concerns that
it interfered with their parenting and that there was other substance abuse. The case plan
required Mr. Marshall and Ms. Henery to maintain sobriety; to complete an age-
appropriate parenting class; to complete drug and alcohol assessments, follow any and
all recommendations, and comply with random screens; to complete mental health
assessments and follow any and all recommendations; to obtain employment and provide
proof of income; and to obtain adequate housing and provide proof of residency. Mr.
Marshall was instructed to focus on “intimate partner violence.”
{¶9} On August 28, 2018, the trial court held an adjudication hearing. Ms.
Henery appeared with counsel. Mr. Marshall did not appear but was represented by
counsel. The trial court adjudicated the children as dependent and dismissed the
allegation of neglect.
{¶10} On September 25, 2018, the trial court held a disposition hearing. Mr.
Marshall and Ms. Henery appeared and were represented by counsel. The trial court
adopted the case plan and granted temporary custody of the children to ACCSB.
{¶11} On October 11, 2018, Ms. Henery, through counsel, filed a motion
requesting the return of the children and for increased visitation. On January 24, 2019,
the trial court held a semi-annual review hearing. Ms. Henery appeared with counsel.
Mr. Marshall did not appear but was represented by counsel. The GAL reported that Ms.
Henery had made progress on her case plan, that she obtained separate housing from
Case Nos. 2022-A-0090, 2022-A-0091 Mr. Marshall in Conneaut, and that she had completed weekend visits with the children.
However, there were indications that Mr. Marshall had been violent, which caused Ms.
Henery to leave her residence and stay with a friend. The GAL also reported that Mr.
Marshall and Ms. Henery operated a business together on Main Avenue in Ashtabula.
The trial court found that Ms. Henery’s motion of October 11, 2018, was moot and
prohibited Mr. Marshall from being present during her visitation time with the children.
{¶12} Ms. Henery moved into a house on Humphrey Avenue in Ashtabula. In
March 2019, ACCSB placed the children in her care. According to ACCSB, however, the
house presented a safety hazard due to electrical cords from an outside generator and
the presence of multiple men associated with criminal activity.
{¶13} On July 18, 2019, ACCSB filed a motion to extend temporary custody. On
July 29, 2019, the trial court held a hearing on this motion and an annual review. Mr.
Marshall and Ms. Henery were present and represented by counsel. ACCSB reported
that the children were currently residing with Ms. Henery on a trial basis but that it
maintained temporary custody. Ms. Henery agreed with ACCSB’s request to extend
temporary custody for six months so that she could work on her case plan. Mr. Marshall
also agreed to the extension, indicating that although he was not complying with his case
plan, he was supportive of Ms. Henery’s efforts to regain custody. Upon Ms. Henery’s
request, the trial court vacated its prior order prohibiting Mr. Marshall from being present
during her visitation time with the children.
{¶14} After repeated requests from ACCSB, Ms. Henery agreed to move into an
apartment at Beatitude House in Ashtabula and was put on a waiting list. In August 2019,
Ms. Henery and the children stayed with Mr. Marshall at the Main Avenue store for a few
Case Nos. 2022-A-0090, 2022-A-0091 days. ACCSB arrived, removed the children from Ms. Henery’s care, and placed them in
foster care.
{¶15} On October 29, 2019, the trial court held a review hearing. Mr. Marshall
and Ms. Henery did not appear but were represented by counsel. The GAL reported that
Ms. Henery had completed a parenting class but had been inconsistent with her mental
health treatment. Courtney Santiago (“Ms. Santiago”), the parents’ ACCSB caseworker,
reported that Mr. Marshall had not completed the parenting class or substance abuse
treatment requirements and that he and Ms. Henery appeared to be residing in the Main
Avenue store. All prior orders were maintained, and the children remained in the
temporary custody of ACCSB.
{¶16} On January 9, 2020, ACCSB filed a second motion to extend temporary
custody. On February 12, 2020, the trial court held a hearing on the motion. Mr. Marshall
did not appear but was represented by counsel. Ms. Henery appeared late, after the
presentation of evidence. Ms. Santiago testified that Ms. Henery was officially residing
at Beatitude House; however, on several occasions when Ms. Santiago attempted to visit,
Ms. Henery was not present. On multiple occasions, Ms. Santiago observed Ms.
Henery’s vehicle at the Main Avenue store. In fact, the parents were involved in an
argument in front of that location at 6 a.m. that morning. Ms. Henery had also missed
multiple appointments for her mental health treatment. Ms. Santiago further testified that
Mr. Marshall had attended one recent counseling appointment, was employed at a
factory, and was residing in the Main Avenue store. The trial court extended temporary
custody for a six-month period.
Case Nos. 2022-A-0090, 2022-A-0091 {¶17} On April 14, 2020, the GAL filed a motion to suspend visitation. Ms. Henery
had arrived unexpectedly at the home of the children’s foster family on Easter evening,
entered their screened-in porch, and would not leave. The trial court granted the GAL’s
motion and held a hearing on April 29, 2020. Ms. Henery was present via audio and was
represented by counsel. Mr. Marshall did not appear but was represented by counsel.
The GAL withdrew her motion, and Ms. Henery was ordered to have no direct or indirect
contact with the foster family.
{¶18} On April 21, 2020, one of Ms. Henery’s neighbors at Beatitude House called
the police. According to the police report, Mr. Marshall discovered that Ms. Henery had
male company, opened her window, and began shoving items off the ledge while yelling.
On another occasion, Beatitude House prohibited a different male friend from visiting Ms.
Henery because of his alleged criminal activity.
{¶19} On June 4, 2020, ACCSB filed a motion to modify its temporary custody to
permanent custody.
{¶20} In August 2020, at the GAL’s request, the trial court appointed counsel for
the children based on the possibility that the GAL’s recommendation may conflict with the
children’s wishes. The GAL subsequently filed two reports recommending that the trial
court grant permanent custody to ACCSB.
{¶21} Following three continuances (two requested by Ms. Henery and one
requested by ACCSB), the magistrate held an evidentiary hearing on April 14, 2021.
ACCSB presented testimony from Captain Stephen Chase (“Capt. Chase”) from the
Ashtabula Fire Department (over the parents’ objections); Attorney Jane Hawn Jackson,
who previously served as the GAL; Ms. Henery; and Ms. Santiago. Ms. Henery testified
Case Nos. 2022-A-0090, 2022-A-0091 on her own behalf and presented exhibits. Mr. Marshall presented no witnesses or
evidence. The children’s foster mother made an unsworn statement, and the GAL’s
reports were admitted.
{¶22} Capt. Chase testified that the Main Avenue property was previously used
by an insurance business. In 2018, he discovered it was filled with combustible materials,
debris, trash, and extension cords. In 2019, he found evidence that the property was
being used as a residence and took steps to have it ordered vacated. Despite these
efforts, he observed Mr. Marshall and Ms. Henery on the property on multiple occasions.
He informed Mr. Marshall during several conversations that he could not be there. In
2020, he again observed residential evidence at the property and took steps to have the
electricity shut off. In 2021, the property was badly damaged in a fire, which the
department determined had been intentionally set.
{¶23} Ms. Santiago testified that prior to June 2020 when the ACCSB filed its
motion for permanent custody, Ms. Henery was not compliant with her case plan.
Although Ms. Henery was officially residing at Beatitude House, Ms. Santiago only found
her present at the residence during three out of ten visits. In addition, Ms. Henery was
charged with felony burglary for the incident when she appeared unannounced at the
foster family’s home and was required to participate in mental health court. Ms. Henery
also did not maintain steady employment or provide proof of income.
{¶24} After June 2020, Ms. Henery was compliant with her mental health and
substance abuse treatment requirements and had obtained suitable housing; however,
certain issues remained. For instance, Ms. Henery tested positive for amphetamines and
methamphetamines. She refused to submit to a hair screen for the purpose of detecting
Case Nos. 2022-A-0090, 2022-A-0091 ongoing drug use. Ms. Henery also did not maintain steady employment and was
observed at Mr. Marshall’s residence within the last 30 days. She had recently reported
to the police that Mr. Marshall “stabbed” the tire of her male friend’s vehicle and left a note
on her doorstep.
{¶25} Prior to June 2020, Mr. Marshall was not compliant with his case plan. He
did not complete his parenting class or anger management class requirements; maintain
steady employment; provide proof of income for the Main Avenue business; maintain
suitable housing; or follow substance abuse treatment recommendations. After June
2020, Mr. Marshall moved into a new apartment but remained noncompliant with his other
requirements. He tested positive for amphetamines and methamphetamines at the same
time as Ms. Henery and also refused to submit to a hair screen.
{¶26} Ms. Santiago testified that prior to the pandemic, Mr. Marshall and Ms.
Henery had supervised in-person visits with the children for one hour each week. Ms.
Henery missed one of those visits. During the pandemic, the visits were virtual, and Mr.
Marshall and Ms. Henery missed approximately half of them. Both interacted
inappropriately at times during their visits by discussing the custody case.
{¶27} The children’s foster mother stated that she had served in that capacity
since August 27, 2019. Since that time, the children have experienced a stable and
secure environment. The children do well in school, have many friends, and enjoy playing
several sports. She has enrolled the children in counseling services. She stated that it
is heartbreaking when Mr. Marshall and Ms. Henery do not show up for confirmed visits
with the children. She indicated that she would like to provide a permanent home for the
children and to provide ongoing contact with their biological parents and other relatives.
Case Nos. 2022-A-0090, 2022-A-0091 {¶28} Following the presentation of evidence, the magistrate heard argument from
counsel. Relevant here, the children’s counsel requested that ACCSB’s motion be
denied, arguing that ACCSB failed to meet its burden to show that the children cannot or
should not be placed back in the home of either parent and that granting permanent
custody to ACCSB is in the best interest of the children.
{¶29} On July 8, 2021, the magistrate filed a decision granting ACCSB’s motion
for permanent custody. It found, by clear and convincing evidence, that the children had
been in ACCSB’s temporary custody for a minimum of 12 out of the past 22 consecutive
months; that ACCSB made reasonable efforts to prevent the removal of the children from
their home, to eliminate the continued removal of the children from their home, or to make
it possible for the children to return safely home; and that granting ACCSB’s motion for
permanent custody would serve the children’s best interests.
{¶30} On July 16, 2021, the trial court filed a judgment entry approving and
adopting the magistrate’s decision and granting ACCSB’s motion for permanent custody.
Mr. Marshall and Ms. Henery both filed objections to the magistrate’s decision, and Ms.
Henery later filed supplemental objections following the filing of the hearing transcript.
{¶31} On October 14, 2022, the trial court filed a judgment entry overruling the
parties’ objections to the magistrate’s decision and granting permanent custody of the
children to ACCSB.
{¶32} Mr. Marshall filed two notices of appeal, which this court sua sponte
consolidated. He raises the following two assignments of error:
Case Nos. 2022-A-0090, 2022-A-0091 {¶33} “[1.] The Ashtabula County Juvenile Court erred and abused its discretion
in finding that clear and convincing evidence supported granting permanent custody of
the subject children to [ACCSB].
{¶34} “[2.] The Ashtabula County Children’s Services Board failed to show that
reasonable reunification efforts were made prior to seeking permanent custody of the
subject children.”1
Standard of Review
{¶35} It is well established that a parent’s right to raise a child is an essential and
basic civil right. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). The
permanent termination of parental rights has been described as “‘the family law equivalent
of the death penalty in a criminal case.’” Id., quoting In re Smith, 77 Ohio App.3d 1, 16,
601 N.E.2d 45 (6th Dist.1991). Based upon these principles, the Supreme Court of Ohio
has determined that a parent must be afforded every procedural and substantive
protection the law allows. Id.
{¶36} While the rights of a parent to his or her child are fundamental, they are
always subject to the ultimate welfare of the child, which is the polestar or controlling
principle to be observed. In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034
(1979). Although the termination of the rights of a natural parent should occur as a last
resort, termination is expressly authorized when necessary for the welfare of the child. In
re L.M.R., 11th Dist. Lake No. 2016-L-096, 2017-Ohio-158, ¶ 33.
1. Ms. Henery’s consolidated appeals are pending before this court in case nos. 2022-A-0107 and 2022- A-0108. 10
Case Nos. 2022-A-0090, 2022-A-0091 {¶37} “An appellate court will not reverse a juvenile court’s termination of parental
rights and award of permanent custody to an agency if the judgment is supported by clear
and convincing evidence.” In re Krems, 11th Dist. Geauga No. 2003-G-2535, 2004-Ohio-
2449, ¶ 36. “[C]lear and convincing evidence is more than a mere preponderance of the
evidence; it is evidence sufficient to produce in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established.” Id. “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.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481
N.E.2d 613 (1985).
Permanent Custody
{¶38} In his first assignment of error, Mr. Marshall contends that the trial court
erred in finding that clear and convincing evidence supported granting permanent custody
of the children to ACCSB.
{¶39} The trial court must apply a two-pronged analysis when ruling on a motion
for permanent custody. In re Krems at ¶ 33. The trial court may grant permanent custody
of a child to the movant if the court determines at the hearing, by clear and convincing
evidence, that one of the factors enumerated in R.C. 2151.414(B)(1)(a) through (e)
applies and that it is in the best interest of the child. R.C. 2151.414(B)(1).
{¶40} Under the first prong, the trial court determined that the children had “been
in the temporary custody of one or more public children services agencies * * * for twelve
or more months of a consecutive twenty-two-month period.” R.C. 2151.414(B)(1)(d). Mr.
Case Nos. 2022-A-0090, 2022-A-0091 Marshall suggests that this requirement was not met because Ms. Henery took care of
the children between March 2019 and August 2019.
{¶41} We note that Mr. Marshall did not raise this argument in his objections to
the magistrate’s decision. “An objection to a magistrate’s decision shall be specific and
state with particularity all grounds for objection.” Juv.R. 40(D)(3)(b)(ii). “Except for a
claim of plain error, a party shall not assign as error on appeal the court’s adoption of any
factual finding or legal conclusion, whether or not specifically designated as a finding of
fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that
finding or conclusion as required by Juv.R. 40(D)(3)(b).” Juv.R. 40(D)(3)(b)(iv).
{¶42} We find no plain error in the trial court’s determination. “‘Temporary
custody’ means legal custody of a child who is removed from the child’s home, which
custody may be terminated at any time at the discretion of the court * * *.” (Emphasis
added.) R.C. 2151.011(B)(57). “‘Legal custody’ means a legal status that vests in the
custodian the right to have physical care and control of the child and to determine where
and with whom the child shall live, and the right and duty to protect, train, and discipline
the child and to provide the child with food, shelter, education, and medical care * * *.”
(Emphasis added.) R.C. 2151.011(B)(21). “For the purposes of [R.C. 2151.414(B)(1)],
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 section 2151.28 of the Revised
Code or the date that is sixty days after the removal of the child from home.” R.C.
2151.414(B)(1). “The time that passes between the filing of a motion for permanent
custody and the permanent-custody hearing does not count toward the 12-month period
Case Nos. 2022-A-0090, 2022-A-0091 set forth in R.C. 2151.414(B)(1)(d).” In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411,
818 N.E.2d 1176, ¶ 26.
{¶43} Here, ACCSB obtained temporary custody of the children when they were
adjudicated dependent on August 28, 2018. ACCSB placed the children in Ms. Henery’s
care between March and August 2019. However, the trial court did not grant any legal
status to Ms. Henery with respect to the children’s custody. Therefore, for purposes of
R.C. 2151.414(B)(1)(d), ACCSB maintained temporary custody of the children from
adjudication through the filing of its motion for permanent custody on June 4, 2020.
{¶44} In addition, courts have explained that “R.C. 2151.414(B)(1)(d) anticipates
that the applicable period of 12 months of temporary custody may accrue in portions.” In
re M.Z., 9th Dist. Lorain No. 11CA010104, 2012-Ohio-3194, ¶ 10. “The statute calls for
the accumulation of 12 months of temporary custody over the span of the 22 months
directly prior to the filing of the motion for permanent custody.” Id. “There is nothing that
prohibits a court from looking back to the period of time that passed prior to the date the
children were temporarily returned to a parent’s care.” Id.; see also In re S.R., 10th Dist.
Franklin No. 05AP-1356, 2006-Ohio-4983, ¶ 23; In re M.K., 12th Dist. Preble No. CA2011-
07-003, 2012-Ohio-36, ¶ 63. Accordingly, the trial court properly determined that the first
prong was met.
{¶45} Mr. Marshall next contends that the evidence presented at the hearing
“tended to show” that Ms. Henery was “working hard throughout the pendency of the
matter to complete her case plan.” (Emphasis added.)2
2. Although some of Mr. Marshall’s arguments address the termination of Ms. Henery’s parental rights rather than his own, courts have held that a parent has standing to do so. See, e.g., In re A.S., 9th Dist. Summit No. 23456, 2007-Ohio-2195, ¶ 10. 13
Case Nos. 2022-A-0090, 2022-A-0091 {¶46} We disagree with Mr. Marshall’s characterization of the evidence. Prior to
June 2020, Ms. Henery was not compliant with her case plan in several respects. While
she subsequently demonstrated substantial compliance, this occurred well after ACCSB
filed its motion for permanent custody. The “‘12 of 22’ provision[] set forth in * * * R.C.
2151.414(B)(1)(d) balance[s] the importance of reuniting a child with the child’s parents
against the importance of a speedy resolution of the custody of a child.” In re C.W., supra,
at ¶ 22. As one court has explained, “In enacting R.C. 2151.414(B)(1)(d), * * * the Ohio
General Assembly intended to provide a presumption that a parent who is unable to be
reunified with the child within the twelve-month period is necessarily unable, unsuitable,
or unfit to care for the child.” In re Workman, 4th Dist. Vinton No. 02CA574, 2003-Ohio-
2220, ¶ 39. “‘Once the children have been in custody for 12 of the previous 22 months,
the parents are presumed to be unfit and all the trial court must find is that granting
permanent custody is in the best interests of the children.’” Id., quoting In re Fricke, 3d
Dist. Allen Nos. 1-02-75, 1-02-76, and 1-02-77, 2003-Ohio-1116, ¶ 9; see also In re A.J.,
11th Dist. Trumbull No. 2010-T-0041, 2010-Ohio-4553, ¶ 42-46 (applying Workman).
{¶47} Further, “the dispositive issue is not whether a parent has complied with the
case plan, but whether the parent has substantially remedied the conditions that led to
the children’s removal.” In re R.A.D., 1st Dist. Hamilton Nos. C-200325 et al., 2021-Ohio-
372, ¶ 21. “A parent’s compliance with the case plan does not preclude a trial court from
awarding custody to a children-services agency, as long as it is in the child’s best interest.”
Thus, Ms. Henery’s substantial compliance with the case plan after June 2020, by itself,
was not dispositive.
Case Nos. 2022-A-0090, 2022-A-0091 {¶48} Mr. Marshall next contends that Capt. Chase’s testimony was irrelevant and
highly prejudicial. He argues that Capt. Chase testified to conditions at a building that no
longer exists and where he never observed the children reside.
{¶49} Since Mr. Marshall failed to raise this evidentiary issue in his objections to
the magistrate’s decision, he has waived all but plain error. See Juv.R. 40(D)(3)(b)(iv).
We find no plain error in the trial court’s admission of Capt. Chase’s testimony. “‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Evid.R. 401. “Although relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice.” Evid.R. 403(A).
{¶50} Capt. Chase testified about the conditions of the Main Avenue property
during the time period in which, by their own admissions, Mr. Marshall resided there, Mr.
Marshall and Ms. Henery operated a business there, and Ms. Henery and the children
lived there for a few days. Thus, Capt. Chase’s testimony was relevant, as it provided
context for the parents’ admitted activities.
{¶51} In addition, Evid.R. 403(A) references evidence that is unfairly prejudicial.
Unfavorable evidence is not equivalent to unfairly prejudicial evidence. State v. Tate,
11th Dist. Lake No. 2010-L-145, 2011-Ohio-6848, ¶ 49. Rather, evidence may be
considered unfairly prejudicial when it tends to “arouse a jury’s emotions,” “evoke * * * a
sense of horror,” or “rouses an instinct to punish.” Id. at ¶ 50. In a bench trial, the trial
judge is presumed to possess the ability to remain objective when examining the
Case Nos. 2022-A-0090, 2022-A-0091 evidence. State v. Mamounis, 11th Dist. Trumbull No. 2003-T-0163, 2005-Ohio-2654, ¶
28.
{¶52} Finally, Mr. Marshall challenges the trial court’s determination under the
second prong of the required analysis, i.e., that it was in the children’s best interest to
grant permanent custody to ACCSB. In determining the best interest of a child, the trial
court shall consider all relevant factors, including, but not limited to, those set forth in R.C.
2151.414(D)(1)(a) through (e). R.C. 2151.414(D)(1).
{¶53} R.C. 2151.414(D)(1)(a) requires the trial court to consider “[t]he 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[.]”
{¶54} Mr. Marshall contends that the evidence showed there was a positive bond
between Ms. Henery and the children and that his interaction with the children was
appropriate.
{¶55} The magistrate expressly found that the children are bonded to their parents
and that the parents have participated in supervised visits. However, Mr. Marshall fails
to acknowledge the remainder of the magistrate’s findings, including that the children are
thriving in the care of their foster mother where all of their needs are being met; the
children are bonded to their foster mother; the parents’ visits have not progressed to
unsupervised visits due to their inappropriate behavior and case plan noncompliance;
and the parents’ virtual visits during the pandemic have been highly inconsistent and, at
times, inappropriate. The magistrate’s findings are supported by substantial competent,
credible evidence in the record.
Case Nos. 2022-A-0090, 2022-A-0091 {¶56} R.C. 2151.414(D)(1)(b) requires the trial court to consider “[t]he 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[.]”
{¶57} Mr. Marshall states that the children wished to be returned to their parents
and that the magistrate found the children were too young to express their wishes despite
the fact that they had been appointed separate counsel. However, Mr. Marshall does not
accurately recite the magistrate’s findings. The magistrate found that the “children are
too young to express their wishes independently; the children’s wishes were expressed
through the report, recommendation, and testimony of the Guardian ad Litem, and
arguments of counsel.” Thus, the magistrate properly considered the children’s wishes.
{¶58} R.C. 2151.414(D)(1)(c) requires the trial court to consider “[t]he custodial
history of the child, including whether the child has been in the temporary custody of one
or more public children services agencies * * * for twelve or more months of a consecutive
twenty-two-month period * * *[.]”
{¶59} Mr. Marshall again notes that the children were placed in Ms. Henery’s care
for a period of time in 2019 and suggests ACCSB did not have temporary custody for a
consecutive 12-month period. As explained above, however, Mr. Marshall’s reading of
the statute is incorrect. Further, Mr. Marshall fails to acknowledge the children’s full
custodial history, including that ACCSB removed the children from Ms. Henery’s care
when it discovered she had stayed with them at the Main Avenue property where
documented safety hazards existed.
Case Nos. 2022-A-0090, 2022-A-0091 {¶60} R.C. 2151.414(D)(1)(d) requires the trial court to consider “[t]he 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[.]”
{¶61} Mr. Marshall points to the evidence at trial indicating that Ms. Henery began
substantially complying with her case plan after June 2020 and that he had obtained
housing and employment. As explained above, however, the dispositive issue is whether
the parents have substantially remedied the conditions that led to the children’s removal.
Mr. Marshall fails to acknowledge the magistrate’s finding that neither parent had
remedied the concerns that were the basis for the children’s removal. Specifically, both
parents demonstrated ongoing instability in their lives with respect to employment and
income, safe housing, substance abuse, and their relationship. In addition, for over two
years, neither parent was able to interact with the minor children in an unsupervised
fashion. The magistrate’s findings are supported by substantial competent, credible
evidence in the record.
{¶62} Finally, R.C. 2151.414(D)(1)(e) requires the trial court to consider “[w]hether
any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents
and child.” The magistrate found no applicable factors under these subsections, and Mr.
Marshall does not challenge this finding on appeal.
{¶63} In sum, we conclude that clear and convincing evidence supported the trial
court’s granting permanent custody to ACCSB.
{¶64} Mr. Marshall’s first assignment of error is without merit.
Case Nos. 2022-A-0090, 2022-A-0091 Reunification Efforts
{¶65} In his second assignment of error, Mr. Marshall contends that ACCSB failed
to show that it made reasonable reunification efforts prior to seeking permanent custody
of the children.
{¶66} Mr. Marshall cites R.C. 2151.419(A)(1), which provides:
{¶67} “Except as provided in division (A)(2) of this section, at any hearing held
pursuant to section 2151.28, division (E) of section 2151.31, or section 2151.314,
2151.33, or 2151.353 of the Revised Code at which the court removes a child from the
child’s home or continues the removal of a child from the child’s home, the court shall
determine whether the public children services agency * * * that filed the complaint in the
case, removed the child from home, has custody of the child, or will be given custody of
the child has made reasonable efforts to prevent the removal of the child from the child’s
home, to eliminate the continued removal of the child from the child’s home, or to make it
possible for the child to return safely home. The agency shall have the burden of proving
that it has made those reasonable efforts. If the agency removed the child from home
during an emergency in which the child could not safely remain at home and the agency
did not have prior contact with the child, the court is not prohibited, solely because the
agency did not make reasonable efforts during the emergency to prevent the removal of
the child, from determining that the agency made those reasonable efforts. In determining
whether reasonable efforts were made, the child’s health and safety shall be paramount.”
(Emphasis added.)
{¶68} The Supreme Court of Ohio has held that “R.C. 2151.419(A)(1) does not
apply in a hearing on a motion for permanent custody filed pursuant to R.C. 2151.413.
Case Nos. 2022-A-0090, 2022-A-0091 However, except for some narrowly defined statutory exceptions, the state must still make
reasonable efforts to reunify the family during the child-custody proceedings prior to the
termination of parental rights. If the agency has not established that reasonable efforts
have been made prior to the hearing on a motion for permanent custody, then it must
demonstrate such efforts at that time.” (Emphasis added.) In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 43.
{¶69} Mr. Marshall argues that the fact ACCSB did not increase visitation or
provide unsupervised visitation demonstrates it did not make reasonable reunification
{¶70} We disagree with Mr. Marshall’s assertion. In determining whether the
agency made reasonable efforts, the issue is not whether the agency could have done
more, but whether it did enough to satisfy the reasonableness standard. In re Elliott, 11th
Dist. Ashtabula No. 2005-A-0018, 2006-Ohio-738, ¶ 16. The record shows that ACCSB
made numerous reunification efforts, including adopting case plans for both parents;
providing a caseworker; providing regular supervised visitation with the children; and even
temporarily placing the children in Ms. Henery’s care. During the pandemic, ACCSB
continued to provide regular virtual visitation. The fact that visitation did not increase or
become unsupervised was the result of the parents’ own actions and behavior and not
ACCSB’s lack of effort.
{¶71} In sum, we conclude that clear and convincing evidence supported the trial
court’s determination that ACCSB made reasonable reunification efforts.
{¶72} Mr. Marshall’s second assignment of error is without merit.
Case Nos. 2022-A-0090, 2022-A-0091 {¶73} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, Juvenile Division, is affirmed.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
Case Nos. 2022-A-0090, 2022-A-0091